HU & ORS v IMMIGRATION AND PROTECTION TRIBUNAL [2017] NZHC 1247

HU & ORS v IMMIGRATION AND PROTECTION TRIBUNAL [2017] NZHC 1247 [9 June 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-528[2017] NZHC 1247BETWEEN JINGQING HUFirst ApplicantGUIFENG LISecond ApplicantXINGZHI HUThird ApplicantXINZHI FAITH HUFourth ApplicantSHUNZHI TIMOTHY HUFifth ApplicantAND IMMIGRATION AND PROTECTIONTRIBUNALFirst RespondentMINISTER OF IMMIGRATIONSecond RespondentHearing: 28 April 2017Appearances: No appearance for First and Second ApplicantsM Kan and A Y H Young for Third to Fifth ApplicantsK G Stephen and B C L Charmley for Second RespondentE Y Y Ho and K K F Yung for Applicant for joinderJudgment: 9 June 2017JUDGMENT NO 2 OF PALMER J (LEAVE TO APPEAL)This judgment is delivered by me on 9 June 2017 at 9 am pursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors:Michael Kan Law, AucklandCrown Law, WellingtonFocus Law, AucklandSummary[1] On 27 January 2017 I declined to hold a decision to deport the applicants was unreasonable.1 They now apply for leave to appeal to the Court of Appeal. I do notagree with the applicants' characterisation of the aspect of the Tribunal's decisionthey say is unreasonable. Even if the characterisation were correct, I consider the statutory requirements for allowing the appeal of the deportation decision would not exist. Accordingly I decline leave to appeal.[2] The applicants propose an additional ground of review also be the subject of appeal. Leave was not given for that ground to be argued and it was not considered in the 27 January judgment. I do not consider it would be within the jurisdiction of the Court of Appeal to hear, nor within my jurisdiction to grant leave to have heard, an appeal on that ground. Neither do I consider the circumstances are so special as to justify granting leave to bring a further judicial review proceeding on that ground so long after the statutory deadline for doing so expired. I also decline applications to appoint a litigation guardian for the New Zealand citizen child and join him to the proceedings.The previous judgments[3] On 21 July 2016, in the leave judgment in this proceeding, Heath J granted leave for the applicants to apply for judicial review of the decision of the Immigration and Protection Tribunal about their liability for deportation.2 He did notconsider the other two grounds of appeal argued by the applicants' counsel,Mr Singh, had merit – those being that the Tribunal had erred by not considering the interests of the children separately from their parents or was biased.3 He decided the only point which required attention was whether the decision was unreasonable, on the basis that it was inconsistent with the primary findings the Tribunal had made.41 Hu & Ors v Immigration and Protection Tribunal & Anor [2017] NZHC 41, [2017] NZAR 508 [the 27 January judgment].2 Hu & Ors v Immigration and Protection Tribunal & Anor [2017] NZHC 1661 [the leave judgment].3 At [35]–[36].4 At [14] and [34].[4] The summary in my 27 January 2017 judgment declining the judicial review application was:[1] Mr Jingquing Hu and Ms Guifeng Li face deportation to China. They have four children, three of whom are Chinese citizens and one who is a New Zealand citizen. The Immigration and Protection Tribunal decided that deportation of the eldest child to China, in her last year of secondary school in New Zealand, constituted an exceptional circumstance of a humanitarian nature that would make it unjust and unduly harsh for her and her family to be deported. The Tribunal considered this justified a temporary visa to allow the oldest child to complete her secondary education but did not justify further relief from deportation after that. Heath J granted leave to Mr Hu, Ms Li and their Chinese citizen children to challenge the decision on the ground it is unreasonable because of elements of inconsistency in the reasons given.[2] The law of judicial review is bedevilled by whether and how"unreasonable" public decisions are allowed to be. I consider the Supreme Court's established reformulation of the Edwards v Bairstow test of when a finding of fact constitutes an error of law offers a better account of unreasonableness in judicial review than the tautologous words used inWednesbury. Where a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable. That may involve the adequacy of the evidential foundation of a decision or the chain of logical reasoning in the application of the law to the facts. Unremarkably, unreasonableness, also termed irrationality, is to be found in the reasoning supporting a public decision.[3] But, whatever test of unreasonableness is used, the Tribunal'sconclusion here is supported by evidence and there is no defect in the chain of logical reasoning from the Tribunal's factual findings or legal propositionsto its conclusion. I decline the application.Application for leave to appeal[5] Represented by Mr Singh, the applicants all applied for leave to appeal the judgment to the Court of Appeal. The grounds of appeal were whether the 27 January judgment was correct that:(a) the Tribunal's conclusion to deport the non-resident family members was not unreasonable; and(b) the Tribunal was correct to hold the parents' resources meant it wouldnot be unjust or unduly harsh to deport the non-resident family members.[6] There was then a change of counsel. Represented by Ms Ho, Mr Hu applied to be appointed litigation guardian for Sam Hu, his New Zealand citizen child, who applied to be joined to the proceeding to seek leave to appeal to the Court of Appeal as an interested party. Both applications were opposed by the Crown. At the leave hearing Mr Hu and Ms Li represented themselves, did not appear and abided theCourt's decision without making submissions. Ms Ho represented the New Zealand citizen child. Mr Kan represented the third, fourth and fifth applicants. I heard all the applications together.Law of appeal[7] Sections 245 and 249 of the Act allow for appeal and judicial review to the High Court, of Tribunal decisions, in certain circumstances.[8] Section 249B of the Immigration Act 2009 (the Act) provides for appeal, from a decision of the High Court on judicial review, to the Court of Appeal in similar circumstances:249B Appeal to Court of Appeal against judicial review of matterswithin Tribunal's jurisdiction(1) This section applies in respect of judicial review proceedings for which leave was granted under section 249(3).(2) Any party to the proceedings who is dissatisfied with any determination of the High Court in the proceedings may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the Court of Appeal. Section 56 of the Senior Courts Act 2016 applies to any such appeal.(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the issue involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.[9] The "any other reason" wording in s 249B(3) is the same as that in themandatory considerations for appeals to the High Court in s 245(3) of the Act. In relation to that limb of s 245 the Court of Appeal has stated "that limb would beengaged only in exceptional circumstances involving individual injustice to such anextent that the Court could not countenance the first instance decision standing".5[10] There is conflicting High Court authority on whether the same approach applies to application for leave to bring judicial review proceedings in the High Court. The Court of Appeal left that conflict unresolved in Kumar v Minister of Immigration & Anor because no substantive ground of judicial review had been demonstrated to be anything but moot in that case.6 Whether the same approach applies to appeals to the Court of Appeal of judicial reviews undertaken by the High Court does not arise in this case, for the same reason. The same point applies to MrStephens' submission, in oral argument for the Crown, that the test should be higher in appeals to the Court of Appeal than to the High Court.Submissions[11] Mr Kan's written submissions started with the grounds of appeal above:(a) T he Tribunal found exceptional humanitarian circumstances to exist for all the children which required allowing the appeal against deportation.(b) The judgment's treatment of the law of unreasonableness and itsapplication to the facts here was wrong.(c) The parents' sufficiency of resources to provide for their children in China was not a legal basis on which to find the absence of exceptional circumstances.[12] In addition, in his written submissions in relation to the New Zealand citizen, Mr Kan submitted the Tribunal failed:(a) to investigate the effects of removal on the child to the required degree of scrutiny; and5 Machida v Chief Executive, Ministry of Business Innovation & Employment [2016] NZCA 162, [2016] NZAR 662, [2016] 3 NZLR 721 at [8].6 Kumar v Minister of Immigration & Anor [2016] NZCA 492, [2016] NZAR 1591.(b) to afford the child his right to be heard under s 27 of the New Zealand Bill of Rights Act 1990.[13] If joined, the New Zealand citizen child represented by Ms Ho would adoptMr Kan's submissions, emphasising the second set of submissions in relation to the child not being interviewed or afforded an opportunity to be heard which she says is contrary to the United Nations Convention on the Rights of the Child. She also submitted, despite the wording of s 228 of the Act but relying on Wu v Minister of Immigration,7 that there is a duty on the Tribunal to further investigate the impact on the citizen child. During the hearing I asked Ms Ho what additional facts would be provided from an interview with the child that would be relevant to the unreasonableness issue. She said we do not know the answer because no interview has occurred, but it would be evidence of how he would be affected by his family being deported to China.[14] The summary of Mr Stephens' written submissions, for the Crown, were:(a) there is nothing at stake going beyond the particular circumstances of the applicants or to suggest the existing law should be revisited by the Court of Appeal;(b) the leave application is a challenge to factual findings which were available on an evidential basis;(c) this was not an exceptional case involving individual injustice to suchan extent that a Court simply could not countenance the Tribunal'sdecision standing;(d) the judgment's approach to unreasonableness was correct; and(e) there was no element of inconsistency in the Tribunal's decision.7 Wu v Minister of Immigration [2016] NZHC 1309 at [65]–[66].[15] Mr Kan's oral argument in response to the Crown's written submissions was more difficult to follow. He submitted that use of the term "matter" in the heading ofs 249B somehow meant that his submissions were not challenging factual findings. Instead, referring to his arguments that the Tribunal failed to consider the position of the New Zealand citizen child, Mr Kan submitted his clients were challenging"matters" that should have been considered in the lower court's jurisdiction. Thismakes no sense to me.[16] During the hearing I expressed concern that the challenge to the Tribunal'sconsideration of the New Zealand citizen child appeared to be a separate legal error from the unreasonableness question for which Heath J had given leave to be heard by the High Court. In response, Mr Kan submitted that there is no jurisdictional bar and it is up to the Court of Appeal to decide how much weight to give to the point. He also appeared to rely on a broad interpretation of the inconsistencies in theTribunal's decision with which Heath J was concerned, as relating to both:(a) the paragraph in the Tribunal's decision that appeared to find therewere exceptional humanitarian circumstances relating to all children; and(b) the New Zealand citizen child never having been interviewed in theface of an international obligation to consider the child's interests.[17] In response, for the Crown, Mr Stephens noted the child's position wasconsidered by the Tribunal and the argument that he should have been interviewed is a different ground of judicial review than that to which Heath J gave leave to be heard.Should there be an appeal on unreasonableness?[18] The question in terms of s 249B(3) is "whether the issue involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision". That questionmust first be applied to the issue of whether the Tribunal's decision, to deport the parents and non-citizen children, was unreasonable in light of its findings. Mr Kansubmits the relevant finding was that exceptional humanitarian circumstances existed for all children. That is the ground which Heath J gave leave to be the subject of judicial review and was the subject of the judgment of 27 January 2017.[19] The Tribunal's generic statement in paragraph [77] appears to find there were exceptional humanitarian circumstances for all the children. The judgment of 27 January acknowledged this was confusing and "expressed with unfortunate ambiguity".8 But the judgment found that, read in the context of the precedingparagraphs, "[t]he Tribunal's finding about exceptional humanitarian circumstanceswas tied directly to the eldest child's completion of secondary school" and it was "tolerably clear" that would make deportation unjust and unduly harsh and it wouldnot be contrary to the public interest for them to remain while that circumstance continued to exist.9 The judgment also suggested the most marginal call by the Tribunal was its assessment of the circumstances of the second child (the NewZealand citizen) but the evidence supported the Tribunal's conclusion.10 The secondchild was described as facing a "greater challenge" and "stronger humanitarian grounds" than the two younger children.11[20] On further review, I continue to adhere to this characterisation of theTribunal's decision. Paragraph [77] is the last of eight paragraphs under the heading "Conclusion on children's best interests". These paragraphs summarise longer versions of consideration of the appellants' background and the best interests of theyounger children, the New Zealand citizen child and the eldest child from paragraphs [35] to [69]. I do not agree with the applicants' characterisation of this aspect of the Tribunal's decision. Accordingly I do not agree it was unreasonable.[21] Despite that conclusion, if it were just a matter of how to interpret paragraph[77] of the Tribunal's decision, I would still consider granting leave to appeal. Reasonable courts can differ in interpreting confusing and ambiguous wording and the consequences of a wrong interpretation for the family are significant.8 The 27 January judgment, above n 1, at [34](a) and [35].9 At [34](a) and [35].10 At [36].11 Re Li [2016] NZIPT 502519-20 at [76] [the Tribunal decision].[22] The problem for the applicants is that, even if the Tribunal did find exceptional humanitarian circumstances existed for all children, the Tribunal must also be satisfied deportation is unjust or unduly harsh in order to be able to allow an appeal under s 207 of the Act.12 It is quite clear the Tribunal's only finding that deportation would be unjust and unduly harsh was in relation to the eldest child and only for the time required for her to complete secondary school.13[23] Mr Kan submits the Tribunal was not correct to hold the parents' resourcesmeant it would not be unjust or unduly harsh to deport the non-resident family members and, therefore, the 27 January judgment was not correct to uphold it. But, even if this can be considered to be the same ground of review, I see no reason why the Tribunal was wrong in that respect. There is something discomforting about the possibility that having money may weigh against humanitarian exceptions to deportation. But it would not address all humanitarian exceptions, only those created by not having money. There is nothing unreasonable about a conclusion that financial resources can mitigate otherwise harsh effects of moving to another country.[24] So even if the applicants were correct about the Tribunal's finding ofexceptional humanitarian circumstances, the pre-conditions in s 207 for the Tribunal to allow a wider appeal of the deportation decision would not be met. Accordingly, in terms of the threshold for leave to appeal, I consider there are no exceptional circumstances involving individual injustice such that the Court could not countenance the decision standing. I do not consider the issue, due to its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision. Any differences between the available approaches to s 249B in relation to judicial review compared to appeal, identified above, do not make any difference to that conclusion.[25] I note that, had the result of the judgment of 27 January 2017 depended on its development of a new version of unreasonableness, I would have been inclined to grant leave to appeal. But it did not, as the judgment made clear at paragraph [37].12 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [38].13 The Tribunal decision, above n 11, at [87].Should there be an appeal regarding the New Zealand citizen child?[26] Mr Kan and Ms Ho also submit leave to appeal to the Court of Appeal should be granted because the Tribunal failed to investigate the effects of removal of the New Zealand citizen child or afford him the right to be heard.[27] Mr Kan's interpretation of the inconsistencies in the Tribunal's decision withwhich Heath J was concerned is too broad. This is a new ground of review. It is quite clear that this was not the ground of review for which Heath J gave leave to be heard by the High Court. So it was not considered in the 27 January judgment.[28] Where appeals are limited to questions of law, the Court of Appeal has been reluctant to reopen a new ground not within the scope of the question for which leave to appeal to the High Court was granted.14 But here s 249B, which governs appeal to the Court of Appeal, only applies in respect of judicial review proceedingsfor which leave was granted, by virtue of subs (1). Contrary to Mr Kan's submissionI consider there is a jurisdictional bar. I consider the Court of Appeal would not have jurisdiction, under s 249B of the Act or s 56 of the Senior Courts Act 2016, to hear an appeal based on a ground of judicial review for which leave has not been granted and which has not been the subject of judicial review or judgment by the High Court. Neither do I consider I would have jurisdiction to grant leave to appeal to the Court of Appeal under s 249B on such a point.[29] I consider the only route by which the proposed ground of judicial review could be heard would be by way of a fresh judicial review. I have previously observed in RM v Immigration and Protection Tribunal, in an immigration context:15(a) Leave for judicial review of Tribunal decisions is required to provide consistency with appeals, which is understandable.(b) "Judicial review can be a means by which even those with hopeless claims can try to slow down decision-making in order to delay theinevitable order that deports them".14 Godfrey Hirst NZ Ltd v Commerce Commission [2016] NZCA 560.15 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [39]-[40], [41] and [49].(c) There is a time limit on applications for leave to bring judicial review proceedings under s 247 of the Act, though I explicitly left open"whether there might be exceptions to those requirements in some circumstances, consistent with the remedial constitutional function ofjudicial review".[30] The last point is consistent with the exception in s 247(1)(b) where the High Court can decide further time to bring judicial review should be allowed "by reason of special circumstances". Given the scheme and purpose of the Act, somethingextraordinary would need to exist in order for the circumstances to be special enough for a further judicial review to be taken after leave on another ground was granted, argued and lost.[31] The time limit under s 247 for an application for judicial review, which expired on 31 March 2016, has well and truly passed. The circumstances now, one and a quarter years after the original statement of claim was filed, do not justify extending the 28 day time limit for filing a fresh application for judicial review.[32] In the Tribunal, a principal thrust of the applicants' submissions was that "the principal appellants' [the parents'] humanitarian circumstances cannot be seen in isolation from the interest of their children, especially the New Zealand citizenchild".16 The submissions were adamant that the parents would leave the New Zealand citizen child behind in New Zealand if they were deported to China andincluded 12 paragraphs addressing the child's position.17 The Tribunal doubted that.[33] The Tribunal's decision demonstrates that determining the best interests of the children was firmly in its mind, which it considered "a primary consideration".18The Tribunal also examined the specific circumstances of the New Zealand citizen child in eight paragraphs including on the basis of a letter he had written outlining his views, which it canvassed in its decision.19 The Tribunal also had before it the16 Jinquing Hu & Ors "Humanitarian Appeal against Deportation: Pt 4F – Explanation of Appeal" (Exhibit A to Applicant's Affidavit in Support of Notice of Interlocutory Application for Leave to Apply for Judicial Review, dated 22 March 2016) at [31] and see [114].17 At [49] and [53]–[63].18 The Tribunal decision, above n 11, at [3], [33] and [49].19 At [57].child's New Zealand passport, birth certificate school reports, school photos andawards.20 The child's letter was also before the High Court in the judicial review proceeding, attached to Ms Li's affidavit of 22 March 2016.[34] The ground on which the applicants now effectively seek a fresh judicial review was also squarely before Heath J in considering whether to grant leave forjudicial review. The applicants filed a "memorandum of law" in the High Courtdated 18 April 2016 which was primarily directed at emphasising the importance of the considerations relating to the New Zealand citizen child. So the High Court has already considered whether the proposed ground should be the subject of judicial review. Heath J, in the leave judgment, was satisfied "the only point which requires attention" was unreasonableness.21[35] I agree. There is nothing to suggest further views of the New Zealand citizen child, which were already strongly against deportation in his own words, would make any difference to whether the Tribunal's decision was sound in law. There is certainly nothing in these circumstances that is so special as to justify a further judicial review to be taken after leave on another ground was granted, argued and lost.Should I appoint a litigation guardian and join the New Zealand citizen child?[36] In the High Court, initially, the application for judicial review was brought in the name of the parents but amended to be in the names of the three non-citizen children as well. The Crown consented. Mr Hu applied to the High Court to be appointed litigation guardian of his other three children on the basis the applicationfor leave to review substantially relies on the children's circumstances. The Crownconsented to this as well. The Court ordered accordingly. No one suggested there was any need for the New Zealand citizen child to be joined or separately represented before the determination of the judicial review.[37] After the 27 January judgment Mr Hu applied to be appointed litigation guardian for his New Zealand citizen child who applied to be joined to the20 Jinquing Hu & Ors, above n 16, "List of Attachments to the Submissions" at 24.21 The Leave judgment, above n 2, at [14].proceeding to seek leave to appeal to the Court of Appeal. The Crown opposed the ancillary applications to appoint a litigation guardian for the New Zealand citizen child and to join the child to these proceedings.[38] The Crown submitted there was no jurisdiction to join the child to the interlocutory application for leave to appeal. But, in order to deal with the matter in a timely manner, I heard the ancillary applications together with the application for leave to appeal. So that question did not arise.[39] The Crown also objects that the child was not and could not have been a party to the appeal to the Tribunal since, as a New Zealand citizen, he is not subject to deportation and his immigration status does not turn on the outcome of this proceeding. However, that does not alter the fact that this proceeding directly impacts on him in a significant way.[40] The Crown submitted that the child fell outside the categories of minor which s 375(2) of the Act anticipates requires appointment of a litigation guardian. But the categories in s 375(2)(c) include any appeal or review proceedings by the minor under this Act. If I had granted leave to appeal and joined the child to the proceeding, that criterion would have been met.[41] The Crown has a better point when it submits the child's interests can betaken into account without joining him as a party. The Supreme Court in Ye v Minister of Immigration considered:22(a) parents can be ordinarily expected to put forward all that can reasonably be said on behalf of their children;(b) a child may need to be separately represented if there is good reason to believe a parent will not adequately represent the child; but(c) even in that circumstance it is not necessary to make a child a formal party.22 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [48]-[49].[42] Here, the parents abided the decision. Mr Kan made the arguments on behalf of the non-citizen children. That may have been a reason to consider the child should have been separately represented and joined. Though it also has the air of a device to achieve that result.[43] I can see no other reason why the child's interests could not have beenadequately represented by the parents, as they were before the Tribunal and in the High Court leave proceeding and the High Court judicial review. But, in any case, I have not granted leave to appeal. So the application to appoint a litigation guardian and for joinder falls away.Result[44] I decline the applications for leave to appeal to the Court of Appeal, to appoint a litigation guardian for the New Zealand citizen child and to join the child.[45] I award costs to the Crown on a 2B basis for these applications...................................................................Palmer J