TAU'ILI'ILI V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV-2009-485-000075

TAU'ILI'ILI V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV-2009-485- 000075 10 July 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2009-485-000075BETWEEN ESETA TAU'ILI'ILI Appellant AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent Hearing: 28 May 2009 Counsel: R F Logan for Appellant C Linkhorn for Respondent Judgment: 10 July 2009 In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4:00 pm on the 10 th day of July 2009.JUDGMENT OF JOSEPH WILLIAMS J[1] Eseta Tau'ili'ili is a Samoan citizen. She applied for residence to Immigration New Zealand (INZ) on 6 December 2006. Her application related not only to herself, but also to her husband and three Samoan-born children. [2] On 31 July 2008, INZ declined the application. In the intervening 18 months the family had been granted a series of work and student permits and the couple had a fourth child – a son named Ronnie Jordan.[3] On 22 September 2008, Ms Tau'ili'ili appealed to the Residence Review Board (RRB). The application and appeal were heard within INZ's Family (Siblings and Adult Child) immigration category. This provides as follows:Siblings and adult children of New Zealand citizens or residents meet Sibling and Adult Child policy if: (a) they have no other immediate family who are lawfully and permanently in the same country in which the principal applicant is lawfully and permanently; and (b) they have an acceptable offer of employment in New Zealand; (c) in each case the adult child or sibling must be sponsored by an adult sibling or parent who: (i) is in New Zealand, and (ii) is a New Zealand or Australian citizen or the holder of a current residence permit that is not subject to requirements under s 18A of the Immigration Act 1987, and (iii) has been a New Zealand or Australian citizen and/or the holder of a residence permit or a returning resident's visa for at least three years immediately preceding the date the application under Sibling and Adult Child policy is made, and (iv) in each of the three 12 month portions within that three year period, has spent a total of 184 days or more in New Zealand.[4] The appeal to the RRB was lodged under s 18C(1) of the Immigration Act 1987 (the Act). Ms Tau'ili'ili failed to satisfy requirement (a) of the Siblings and Adult Child category that there be no other immediate family living in the home country. Her biological father and brother still live in Samoa. Because of this it was accepted that the only live ground on the appeal was under s 18C(1)(b):The special circumstances of the appellant are such that an exception to Government Residence policy should be considered.[5] The RRB declined the appeal on 12 December 2008 finding that special circumstances did not exist in accordance with the statutory ground. [6] On 13 January 2009, Ms Tau'ili'ili appealed to this Court under s 115 of the Act.Factual background[7] The appellant is 32 years old, and her husband Sipoti Ronnie Tautasi is 39. Their three oldest children, Perumi aged 11, Sebrina aged 10, and Mathew aged 8 are also Samoan citizens and have been in New Zealand since 2001 with their parents. A daughter Kathleen who was born in 2002 in New Zealand is a New Zealand citizen but their youngest child, Ronnie Jordan, who was also born in New Zealand, does not hold New Zealand citizenship. The four eldest children are at school in Porirua and, according to the Acting Principal of their school are all making steady progress in their learning. These children are active in local sport and community activities, as are their parents. [8] As noted, the appellant's biological father is lawfully and permanently living in Samoa, but she says she has only ever had limited contact with him because of a breakdown in her parents' relationship when she was young. She also has a brother in Samoa, Peniamina. He was adopted in accordance with Samoan custom by his maternal grandmother when he was two. The appellant was also raised by this grandmother but was older when this happened so did not lose the mother/child relationship that she had with her natural mother. She says she is not close to her biological brother. [9] The appellant has six immediate family members lawfully and permanently living in New Zealand. They are her mother Losivale Hill-Mathews, her half sisters Vaiiliili Taafi, Victoria Hill-Mathews, Christine Hill-Mathews, and her half-brother Donald Hira Matiu. Her New Zealand stepfather Donald Hill-Mathews has recently passed away. Her full brother, Ponifasio is a New Zealand citizen but is now resident in Australia. She also has another Samoan-born half sister, Aiga to whom, according to the RRB, the Minister of Immigration has granted residence in New Zealand. [10] These people and, where applicable, their respective families live in Wellington in a typically close-knit Samoan extended family network. The appellant and her half sister Aiga currently live together with their respective families in a single home.[11] The appellant's husband currently works at Taylor Preston Ltd as a cleaner, and is said to be a very good employee. At the time of the appeal before the RRB, the appellant herself was not working because of the recent birth of her son but her intention was that when he got older she would also work at Taylor Preston Ltd if she could. I do not know whether this remains the position. [12] The family are healthy and well. [13] The appellant says she has a very close relationship with her mother to whom she has provided care and support during the recent loss of her husband, the appellant's stepfather.Grounds of appeal[14] Appeals to this Court must relate to a question of law. My role is therefore limited in the manner described by Blanchard J in Bryson v Three Foot Six Limited[2005] 3NZLR 721 (SC) at [25]:An appeal cannot, be said to be on a question of law where the fact finding Court has merely applied the law which it correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding Court unless clearly unsupportable.[15] For present purposes it can safely be concluded that an appeal on a point of law is a concept co-extensive with judicial review. I must therefore be satisfied that the RRB applied the correct legal test, considered all relevant matters and set aside any irrelevant matters in arriving at a rational decision – in the Wednesbury sense - having followed a proper process. Just want amounts to a rational or reasonable decision depends on the circumstances. As Wild J said in Wolf v Minister of Immigration [2004] NZAR 414 at [47]:Whether a reviewing court considers the decision reasonable and therefore lawful, or unreasonable and therefore unlawful and invalid, depends on the nature of the decision: upon who made it; by what process; what the decision involves (i.e. its subject matter and the level of policy content in it) and theimportance of the decision to those affected by it, in terms of its potential impact upon or consequences for, them.[16] I agree with and respectfully adopt that reasoning. [17] It is necessary also to mention s 18F(1) of the Act. It provides that all appeals to the RRB are on the papers. Section 18F(2)(a) provides:It is the responsibility of the appellant to ensure that all information, evidence and submissions that the appellant wishes to have considered in support of the appeal are received by the Board within the period of 42 days prescribed by s 18C(3) of this Act.Thus the appellant has primary responsibility for bringing forward relevant evidence to the RRB. There is no obligation on the RRB to make its own inquiries but it may do so if it chooses (s 18F(4)(a)). [18] In a written submission running to 115 pages, Mr Logan for the appellant carefully unpicked the RRB's decision. He advanced 12 separate grounds of appeal before me that I have arranged below in the order I intend to follow. The grounds were that the RRB: (a) failed to identity the appellant's overwhelmingly strong family nexus to New Zealand as a significant positive factor in the weighing exercise in favour of a finding of special circumstances; (b) failed to assess and weigh up the appellant's positive voluntary contribution to New Zealand society and the taxes she and her husband pay; (c) failed to assess and weigh up the following factors in the relevant balancing exercise: (i) the appellant's social connections to the New Zealand community;(ii) the sense of stability and belonging the appellant felt with her extended maternal family in New Zealand; (iii) the pattern of consistency and reliability demonstrated by the appellant and her family over seven years; (iv) the absence of a home for the appellant and her family in Samoa; (v) the appellant's arguable entitlement in 1986 to New Zealand citizenship; (vi) the appellant's circumstances satisfy the objective of the Siblings and Adult Child policy if not its letter; (d) wrongly imposed a requirement that medical or psychological evidence must be adduced in order to attach weight to the relationship between the appellant and her New Zealand resident family members, including the impact of separation upon her. (e) failed to properly consider the best interests of the appellant's New Zealand citizen child; (f) failed to consider the evidence cumulatively and weigh overall positive and negative factors in a proper balancing process; (g) assessed the appeal in a manner inconsistent with established practice of the RRB. [19] I turn now to deal with these grounds.Nexus[20] The appellant argued that the usual approach in the RRB is to assess where the appellant's immediate family nexus lies. If it lies in New Zealand, it will be seen as a positive factor in the balance and weighed accordingly. If it lies in the home country then this will be seen as an overall negative factor. The appellant argued that while reference is made to the large number of the appellant's immediate family members residing in Wellington, the RRB did not take the next step of determining where the appellant's nexus lay. As a result, it was argued that this positive aspect of the appeal was undervalued. [21] I agree with the Crown that the RRB was aware of the fact that all but two of the appellant's family members were either resident in or entitled to reside in New Zealand. It was also aware that the appellant's relationship with those two Samoan resident family members was not close. The extensive discussion of the factual background in the RRB's decision covers these matters. The section in the decision headed "Summary" refers to the extended family network in New Zealand. [22] I do not consider that it is appropriate to require the RRB to adopt a particular form of words in order to satisfy an inquiry into whether relevant evidence was considered. That is so even if, as pressed upon me by counsel for the appellant, this is usually how it is done. The real test is whether account has been taken of the fact that the appellant resides in this country in a close-knit extended family group with the bulk of her immediate family connections. There can be no doubt that this was to the forefront of the RRB's consideration. The decision itself demonstrates this. It was not accorded as much weight as the appellant would have wanted but weight is a matter for the Board, and not an issue of law.Contribution[23] The appellant argued that the RRB failed to consider material put to it in relation to voluntary work and tax payments when undertaking its balancing exercise. The appellant's voluntary work is referred to at paragraph [58] of theRRB's decision in the Summary of Submissions. At paragraph [71] it is noted that while Mr Tautasi is well regarded at work, neither he nor the appellant are seen to have the skills or qualifications that would lead them to make an exceptional contribution to the country. It is not surprising that paying taxes was not seen as either positive or negative. While voluntary work was not expressly identified in the analysis section, the text of the decision shows that it was identified for consideration but little weight was attached to it. I can find no fault with that approach. [24] Once again, I cannot see as a general proposition that requiring the RRB to conform with slavish repetition of submissions, or a particular formulaic response to them will assist the quality or accountability of decisions. I am satisfied that this issue was not ignored. On the contrary, I note that it was considered but that little weight was attached to it. As the authorities make clear, that conclusion is entirely within the discretion of the RRB. There is therefore nothing in this ground.Six related factors[25] Under this heading I have grouped the six related factors in ground (c) above into four distinct categories. The first relates to the place the appellant and her family have made in New Zealand and covers the first three factors listed by counsel for the appellant under this head. The second relates to the circumstances in which the appellant and her family may find themselves on return to Samoa. The third relates to the appellant's argued entitlement to New Zealand citizenship as a result of the Citizenship (Western Samoa) Act 1982. Finally, is the argument that the appellant comes within the spirit if not the letter of the relevant policy. [26] The essence of the first category was an argument that no proper account had been taken of the fact that New Zealand is now home for this family in almost every sense. This was reflected in evidence adduced in relation to extensive community contributions, the sense of stability and belonging that comes from being with a close-knit New Zealand-based extended family, and that the appellant and her family have been exemplary citizens.[27] I can see how these considerations might be given particular weight. If I had considered them I might have placed greater reliance upon them. But it is not my role to substitute my own view of matters for that of the Board. An overall assessment of the decision makes it clear that the RRB was aware of these issues but was less impressed by them than I might have been. Once again, it is not my role to second-guess that conclusion. It is enough that the RRB gave genuine consideration to these issues and demonstrated appropriate analytical depth. That is not to say that each consideration must be microscopically analysed against the evidence. That is too high a standard in light of the role and workload of the RRB. It is enough that the thrust of the arguments was squarely in the consideration of the Board and a rational response given. I am satisfied in this category that is what has happened. [28] The next issue related to the appellant's likely circumstances in Samoa. The evidence was that the appellant had no home or land in Samoa as her family's assets there had been taken over by another family. This is an issue more appropriately dealt with in the context of the best interest of the children where, in my view, it has greatest impact. I will address this below. [29] The appellant argued that no proper consideration was given to the argument before the RRB that the appellant could well have been entitled to New Zealand citizenship in 1986 if her biological mother had included her in a New Zealand citizenship application form in 1986 following the enactment of the Citizenship (Western Samoa) Act 1982. [30] This could well have been argued as a significant matter before the Board but, in fairness, it was not advanced with any particular vigour before me. On my brief perusal of the legislation, I cannot see how such an argument would succeed. Section 7(1)(b) of the 1982 Act requires that the appellant must have been in New Zealand before the Act commenced or have entered New Zealand with a right to stay indefinitely. Ms Tau'ili'ili does not satisfy either requirement. [31] Finally under this heading, it was argued that the Board failed to take account of the fact that the appellant complied with the spirit of the Sibling and Adult Child policy, if not its letter. The essence of this argument was that while there wasadmittedly immediate family living in Samoa the connections were in fact tenuous and the objective of the legislation would not be undermined if an exception were made in this case. [32] On its own, this argument would have limited weight. There would need to be other positive factors to be considered within the context of this factor. I also consider that this factor fits best under the "best interests of the children" consideration below, so I will address it there.Medical or psychological evidence[33] The appellant argued that the effect of the way in which the RRB analysed the appellant's relationship with her New Zealand relatives was to require evidence of likely medical or psychological harm if the appellant was separated from her New Zealand family. The Board said:While the appellant and her family have lived in New Zealand for seven years in one extended family, the Board does not accept that there is any particular emotional dependence between any of them. The Board can appreciate that the presence of extended family would be supportive to theappellant and her own family and that their presence could be supportive to the extended family, the appellant 's mother in particular, whom theappellant appears to have assisted more recently around the time of the death of her stepfather. However, there is no evidence either from theappellant or her family or independent evidence of a medical or psychiatric nature, that the physical presence of the appellant and her family is needed for anyone concerned to adequately function in daily life. No medical or psychiatric evidence has been advanced that separation of the respective families would lead to distress that would make the appellant 's circumstances. (At para [66]).[34] I read this passage as indicating that evidence of emotional dependence will need to go further than the usual level of emotional dependence that one would expect of an extended family network in order for this factor to be decisive. The standard established is whether the dependence is such that separation would prevent either the appellant or those remaining from functioning adequately in daily life. The RRB simply said there would need to be cogent evidence of this, whether from family members or independent professional sources.[35] This is confirmed in the following paragraph in which the RRB concludes that the evidence against such a level of dependency is found in the fact that the appellant has made her own way in life, as have the others of her extended family. [36] Again, that is a conclusion that the Board is entitled to reach on the facts as described, at least if that factor is considered in isolation.The children's best interests[37] The appellant argues that the RRB erred by failing to properly consider the interests of her New Zealand-citizen child. As I indicate below, I consider that it is appropriate to look to the interests of all of the children although the interests of the New Zealand-citizen child are a particular focus. The Board's references to these matters are at paragraphs [63], [68] and [70]. [38] Paragraph [63] provides:As regards the appellant's children, in particular, the appellant's six year old daughter who is a New Zealand citizen, the Board has considered the relevant international convention regarding the rights of children (Articles 3, 9 and 28 of the Convention on the Rights of the Child 1989; Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966). The best interests of the appellant's New Zealand-citizen child shall be a primary consideration in determining this appeal.[39] And at paragraph [68]:The appellant's children may well have enjoyed being among extended family but will have the appellant and her spouse to support them in returning to Samoa and starting their lives there. While evidence was put forward that it would be preferable that their education not be disrupted, the fact remains that the children can continue their education in Samoa and adjust to their lives there generally, with their parents, together as a family unit. Relatives in Samoa may not be wealthy and able to provide financial assistance in that sense but will nevertheless be some form of emotional support should that be needed.[40] And at paragraph [70]:It will be the decision of the appellant and her spouse as to whether they wish their New Zealand-citizen daughter to remain in New Zealand with extended family or return with them to Samoa. In the Board's view, the best interests of that child would be to return with their parents. As stated above,while it is highly likely the standard of living in Samoa will be lower than that which the family would have had in New Zealand, there is no evidence that the best interests of the appellant's New Zealand-citizen daughter would be compromised by living in Samoa. The child can continue her education and, while never having lived in Samoa before, she will have the support of both of her parents and will be with her immediate family in that respect.[41] The thrust of the appellant's case was that these conclusions failed to take any account of the evidence tending to suggest that it would not be in the interests of the appellant's New Zealand-citizen child to move to Samoa. Counsel pointed to the absence of a home or land for the family in Samoa, the lack of employment opportunities for the parents and the limited extended family support when compared with that available in New Zealand. [42] The Crown argues that it was enough that the RRB acknowledged the primary consideration test (at paragraph [63]) and expressed a view on where the New Zealand-citizen child's best interests lay (paragraph [70]). [43] There has been a good deal of litigation around the meaning of the requirement in the Convention on the Rights of Children 1989 that the best interests of the child must be given primary consideration. Its meaning is important because this is the only mandatory relevant consideration other than the operative government immigration policy in which an indication is given as to appropriate weighting. I should say at the outset that on my reading of the Convention, it applies to all children and not just New Zealand citizen children. It follows that consideration must be given to the best interests of all children in this case. Having said that, I accept that the interests of New Zealand citizen children are qualitatively different. They have stronger grounds for expecting that their right to remain in the country will be vindicated and so are entitled to expect particularly careful consideration of their best interests. [44] The leading decision on the meaning of the Convention in New Zealand's immigration context is that of the Court of Appeal in Huang v Minister of Education[2009] 2 NZLR 700. I am advised however that leave to appeal this decision to the Supreme Court has been granted and the matter will be reconsidered there. In any event the Court of Appeal said of the effect of the Convention at [49]:The word "primary" implies that the weight to be given to the child's best interests must be substantial. But beyond that, there is necessarily scope for a margin of appreciation on the part of the state which must be entitled to specify other considerations and the weight to be given to them. It is also important to recognise that art 3 is of general application and not just confined to the immigration context – a particular context which necessarily invokes the state's rights to control its borders. On the basis that art 3 leaves some margin of appreciation to states, it was open to Parliament to stipulate as to the weight to be given to countervailing factors, and in particular, its entitlement to control its borders. We consider that this is what the legislature did in enacting s 47(3) and its precursor.[45] Section 47(3) requires appellants in removal cases to show exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh to remove the appellant. This is an intentionally high standard. The standard to be met by the appellant in this case is much lower – simply special circumstances warranting an exception to policy. [46] The Court of Appeal in Minister of Immigration v Al Hosan [2008] NZCA 462 described the weighing task between factors in the following terms at paragraph [73](b):[W]e see the position of the children as citizens of New Zealand as very important matters which must be treated as a primary consideration. But we do not see them as trump cards. Rather, they must be given appropriate weight in the balancing exercise described at [64] above. The position that a s 22 appellant starts from is that he or she has done or omitted to do something that calls into question the integrity of New Zealand's immigration laws. The gravity of the breach will vary from case to case. In that context the interests of the children will be a matter of importance, but those interests may be outweighed by the need to control the border and provide a disincentive for dishonest actions on the part of immigration applicants.[47] Al Hosan was a case in which the appellant's residence permit was revoked. In such cases the "unjust or unduly harsh" standard applies in the same way that it does to removal cases. But the essential weighing process remains the same in s 18C appeals such as this one even if the standard to be met by appellants is lower. The underlying point is that the best interests of children – especially New Zealand- citizen children – are to be seen by the RRB as very important. Being primary interests they might perhaps be seen as of the first order but they do not trump other important considerations. They can be outweighed, in appropriate cases, by the need to protect the integrity of the New Zealand immigration policy framework and thecountry's borders. The question is whether the threat the appeal represents to the framework or our borders is such that the best interests of the children should be overridden. [48] I do not think the RRB applied this test correctly. The RRB did not establish what was in the children's best interests and then weigh that against other relevant factors. It seems unarguable to me that it is in the best interests of all children in this case to stay in New Zealand if at all possible – and all the more so, the New Zealand- citizen child who has a right to be here. Relocation to Samoa will necessarily entail a much lower standard of material wellbeing and education. It will also sever physical ties with their New Zealand resident relations. To suggest, as the RRB has, that their best interests are in Samoa because that is where their parents must go is circular and illogical. [49] The correct approach is to identify objectively whether the children's best interests lie in New Zealand or Samoa and then to assess the impact of giving effect to those best interests on the integrity of the policy framework and New Zealand's borders. That will necessarily involve an assessment of whether the parents should be allowed to piggyback on the interests of their children and whether the objective of the policy is undermined if this is allowed to occur. For example, will allowing this appeal encourage illegal immigrants to have babies here to strengthen their cases? Or was the nature of the relationships between the appellant and her father and brother in Samoa such that the appeal was consistent with the spirit of the policy anyway and there was no real threat to the policy framework? It is not for me to suggest answers to these questions. I simply find that they are questions that should have been asked and answered by the statutory decider. [50] That brings me to the balancing exercise in which all relevant factors were to be weighed up.Balancing exercise[51] The appellant argues that the RRB failed to properly balance all positive and negative factors in reaching a conclusion as to whether the appellant's circumstances were "special". [52] The appellant argued that even though the RRB set out the correct approach in the early part of its decision, it failed to carry that approach into effect. At paragraph [37] of the decision, the RRB said:Whether an appellant has special circumstances will depend on the particular facts of each case. The Board balances relevant positive and negative factors in each case to determine whether the appellant 's circumstances, when considered cumulatively, are special.[53] After each particular factor was considered and rejected as lacking special characteristics in itself, the cumulative analysis was set out at paragraph [72]. It provided:Considered cumulatively, the Board finds that the appellant 's circumstances are not special and do not warrant the Board recommending that the Minister consider making an exception to policy in this case.[54] The appellant argues that even though the decision begins with the correct mantra, no effective balancing of positive and negative factors was actually undertaken. [55] I agree. The RRB runs through a series of factors argued by the appellant and concludes that none of them is individually sufficient to make the circumstances of the appellant "special". But it is established practice, as confirmed at paragraph [37] of the decision, to then balance all of the positive and negative factors in the round. This second look must be undertaken to a level that is proportionate to the affected interests of the appellant and the state. [56] There is no evidence that this was done to the required standard. It may be that such an analysis would lead to the same result – it is not appropriate for me to speculate about that – but in the area of immigration there may well be many cases that come close to or cross the line on a balancing test. Fine judgements willsometimes be required. The RRB should be able to demonstrate in a transparent and accountable way how that balancing exercise was undertaken. [57] It is not enough in my view to reproduce the standard test at the start of the decision, knock out each individual factor as being insufficient alone in the course of the decision and then discount cumulative effect in a single sentence at the end. This is too formulaic. The risk in this approach is that a wrong test may be applied. That is, the RRB may proceed on the basis that an appeal can only succeed if one or other of the considerations is alone sufficient to make the case "special". It may unconsciously exclude the possibility that while no individual factor is special, when considered as a whole, a special case is still made out. [58] Just such a conclusion is invited in this case because the RRB has reduced that balancing exercise to the simple assertion contained in paragraph [72]. That perception can only be avoided if a more careful second look is taken in which factors are weighed among and between each other. In this case, consideration was required of the cumulative effect of at least the following significantly (if not decisively) positive factors: - the family's strong nexus to New Zealand and strong internal bonds; - their likely return to relative poverty in Samoa – indeed perhaps even poverty by the standards prevailing in Samoa; - the effect of such return on the children, particularly the New Zealand citizen child, they having fully integrated into New Zealand life; [59] Against this must then be weighed the risk to the integrity of the framework around the Parent and Adult Sibling policy if the appellant was granted residency. It probably does not matter whether that is seen as a negative factor in the balance or just as the standard against which to assess whether an exception should be made. Either way it raises the question already addressed of whether the application meets the spirit if not the letter of the policy. This is a matter for the RRB rather than me, and there may well be other factors in the perspective of the expert body, but I sawno evidence of such a balancing or comparative exercise in the decision under appeal.Inconsistency with standard practice[60] It is unnecessary for me to consider this ground of appeal.Conclusion[61] It follows that for the foregoing reasons the appeal should be allowed. The matter is remitted back to the RRB to be reconsidered in a way that: (a) properly balances the best interests of the children – and in particular the New Zealand-citizen child – against the integrity of the relevant policy framework; and (b) properly balances all relevant considerations both negative and positive in a thorough second look. [62] Costs are reserved to be dealt with by memoranda if necessary. "Joseph Williams J"Solicitors: Crown Law, PO Box 2858, Wellington Robert Logan, Barrister and Solicitor, PO Box 14-214, Kilbirnie, Wellington