WU AND ZHONG V THE MINISTER OF IMMIGRATION [2016] NZCA 511

WU AND ZHONG V THE MINISTER OF IMMIGRATION [2016] NZCA 511 [19 October 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA331/2016[2016] NZCA 511BETWEEN DONGMEI WU AND WEN ZHONGApplicantsAND THE MINISTER OF IMMIGRATIONFirst RespondentAND CHIEF EXECUTIVE, MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTSecond RespondentHearing: 3 October 2016Court: Kós P, Harrison and Brown JJCounsel: C Curtis and T G Zohs for ApplicantsBCL Charmley for RespondentsJudgment: 19 October 2016 at 2.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B There will be no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] Dongmei Wu and Wen Zhong (the Zhongs) seek leave from this Court to appeal against a decision of the High Court at Auckland.1 Palmer J declined the Zhongs' applications for leave to appeal and to bring judicial review proceedings to challenge a decision of the Immigration and Protection Tribunal dismissing their appeals against deportation.2 The Judge did, however, grant the Zhongs' applicationsfor leave to appeal and bring judicial review proceedings against the Tribunal'sdecision relating to the status of Olivia, their daughter. That part of his decision is not the subject of the present application for leave to appeal.[2] The Immigration Act 2009 does not allow for appeals from the High Court to this Court from decisions declining leave to appeal or judicially review a decision of the Tribunal. There is a right, however, to apply directly to this Court under s 245(1)for leave to appeal the Tribunal's decision. The applicants must identify a question of law for that purpose which is of such general or public importance as to justify leave.3Background[3] The Zhongs are a married couple of Chinese origin. They have two daughters. One, Xinyuan, is a six-year-old Chinese citizen. The other, Olivia, is a one-year-old New Zealand citizen.[4] By way of further background:(a) In 2005 Ms Wu's older sister came from China to New Zealand with her husband. The sister remains here as a New Zealand citizen with primary care of her three children.(b) In September 2008 Ms Wu's sister obtained approval to sponsor her parents and Ms Wu as their dependent child to come to New Zealand. Later that year, while she and her parents were still in China, Ms Wu1 Wu v Minister of Immigration [2016] NZHC 1309 [HC judgment].2 Wu v Minister of Immigration [2015] NZIPT 600135-137, 502234 [Tribunal decision].3 Immigration Act 2009, s 245(3).began a relationship with Mr Zhong. Xinyuan was born in China in October 2009.(c) In July 2010, Ms Wu and her parents moved to New Zealand. After her application for a visitor's visa was approved, Ms Wu did not advise Immigration New Zealand that she had a partner and a child, which would have made her ineligible for a resident visa.(d) In September 2010 Mr Zhong and Xinyuan entered New Zealand, initially on visitors' visas. He later secured a work visa and Xinyuan was issued a student visa. Mr Zhong and Ms Wu married in New Zealand in October 2012. Olivia was born here in March 2015 and, as the child of a New Zealand resident, is a New Zealand citizen.[5] We respectfully adopt Palmer J's summary of subsequent events:Deportation[10] In 2013 the Minister of Immigration determined that the resident visas granted to Ms Wu and her parents were procured through the concealment of information. In April 2014 they were issued withdeportation liability notices. In December 2014 Mr Zhong's furtherapplication for a work visa was declined, making him also liable for deportation. All four of them appealed against deportation on humanitarian grounds.[11] On 25 November 2015 the Immigration and Protection Tribunal allowed the appeals of the parents. It was satisfied there were exceptional circumstances of a humanitarian nature relating to them. It considered those circumstances would make it unjust or duly harsh for them to be deported, considering their lack of culpability for the concealment of information.4It considered it would not be contrary to the public interest for them to remain.[12] But, in the same decision, the Tribunal found that no exceptional humanitarian circumstances applied to Ms Wu, Mr Zhong and their children.The Tribunal considered Ms Wu and Mr Zhong "have not established thatthey will not, given time, be able to re-establish themselves" in China.5It considered that their children's interests "will be substantially served by being in the care of both of their parents, whether in China or in New Zealand".64 Tribunal decision, above n 2, at [100]–[102].5 At [88].6 At [91].Decision[6] Ms Curtis submits that the Tribunal erred in law because it failed to assess what is known as the humanitarian test set out in s 207(1)(a) of the Immigration Act. That provision states:207 Grounds for determining humanitarian appeal(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.[7] The humanitarian test replicates the language of s 47(3) of the Immigration Act 1987 as interpreted by the Supreme Court in Ye v Minister of Immigration.7 The Supreme Court recently supported continuity in application between the old and new regimes.8[8] Ms Curtis's argument was essentially the same as that summarised by Palmer J in the High Court judgment as follows:[22] Ms Curtis, for Ms Wu and Mr Zhong, submits that the Tribunal failed properly to apply the test for a humanitarian appeal. She submits that the Supreme Court in Ye "mandated that the first stage of the s 207(1)(a) limb is drafted as a 'sequential' test involving three ingredients".She submits that the Tribunal's decision-making conflated, and did not deal sequentially with, the three ingredients: exceptional circumstances; of a humanitarian nature; and removal being unjust or unduly harsh. In particular, she objects that the Tribunal regularly inserted the effects of deportation into its assessment of whether there are exceptional circumstances of a humanitarian nature.(Footnote omitted.)[9] Ms Curtis submitted that as there are in law two stages of the s 207 inquiry— the first involving the three elements of the composite humanitarian test and the second into whether the public interest would allow a party to remain in7 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.8 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [8]–[9].New Zealand. She submits the Tribunal was not entitled to overlap or duplicate factual circumstances relevant to each separate stage of the inquiry. In argument Ms Curtis refined the point of law as being that the Tribunal did not correctly apply the s 207 test to the facts of the Zhongs' appeal. However, while this refined proposition may technically meet the threshold for a question of law, it is not arguable.[10] Like Palmer J,9 we are satisfied that the Tribunal correctly articulated the s 207 test.10 It then carefully considered whether the Zhongs had satisfied each of the discrete elements of the first stage of the inquiry. It was not satisfied on its factual findings that the circumstances were exceptional in the sense that they were"well outside the normal run of circumstances".11 The Zhongs' failure to satisfy the Tribunal on this first of three composite elements of the humanitarian test in a fact-specific inquiry spelled the end of their appeal.[11] Nevertheless, the Tribunal considered the remaining two elements of the first stage of the inquiry. To the extent that it may have treated certain facts as common to all three elements, it did not err in law. To the contrary, we regard that approach as a necessary feature of any inquiry. The Tribunal is not bound by statute to follow the artificial process of isolating consideration of certain facts or circumstances to the discrete elements of what is a composite inquiry.[12] The high threshold for a second appeal under the Immigration Act must be guided by the general test for a second appeal to this Court under s 67 of the Judicature Act 1908,12 which requires a question capable of bona fide and serious argument involving an interest of sufficient importance to outweigh cost and delay.13Ms Curtis has failed to identify an arguable question of law, let alone one of sufficient general or public importance to warrant a further right of appeal to this Court.9 HC judgment, above n 1, at [32]–[36].10 Tribunal decision, above n 2, at [45]–[46].11 At [48], applying Ye v Minister of Immigration, above n 7, at [34].12 Minister of Immigration v Jooste [2014] NZCA 23 at [5].13 Waller v Hider [1998] 1 NZLR 412 (CA) at 413–414.Result[13] The application for leave to appeal is declined.[14] There will be no order for costs.Solicitors:Marshall Bird & Curtis, Auckland for ApplicantsCrown Law Office, Wellington for Respondents