JIANG v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2020] NZHC 1439

JIANG v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2020] NZHC 1439 [25 June 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-83[2020] NZHC 1439UNDER The Judicial Review Procedure Act 2016IN THE MATTER of a judicial reviewBETWEEN GUANGBO JIANGFirst ApplicantJINHONG WANSecond ApplicantMIAOJIN JIANGThird ApplicantLAI JIANGFourth ApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 5 June 2020Appearances: J R Moss for the ApplicantsB C L Charmley and M Djurich for the RespondentJudgment: 25 June 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 25 June 2020 at 3.30pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The applicants, a family of four, seek judicial review of a decision decliningthem entry into New Zealand on 17 January 2020.[2] The application for review initially raised a broad range of issues. Thestatement of claim alleged that the immigration officer considering the applicants' casefailed to take into account relevant considerations, issued a decision that wasunreasonable or substantially unfair, breached natural justice, failed to give reasonsand/or breached the applicants' rights or legitimate expectations.[3] By the time the application was heard however the applicants' case wassignificantly reduced in scope so as to allege that the immigration officer consideringthe position of the applicants "did not take into account relevant information whichled to a decision that was unreasonable". Specifically, Mr Moss on behalf of theapplicants submitted that the officer:(a) with reference to Ye v Minister of Immigration1 and the United NationsConvention on the Rights of the Child ("UNCROC") was required totake into account the interests of the children, the third and fourthapplicants, Miaojin Jiang ("Miaojin") and Lai Jiang ("Lai"), as arelevant matter and failed to do so;(b) declined a request by the first applicant, Guangbo Jiang to have alawyer present during the interview process; and(c) acted in a manner that was "biased and deceptive" towards the secondapplicant Jinhong Wan.[4] As a result Mr Moss submitted that the decision was made in error of law andwas unreasonable.1 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.Background[5] Each of the applicants are nationals of the People's Republic of China whoheld various visas enabling them to reside lawfully in New Zealand. Mr Jiang was theholder of a work visa under the Work to Residence category. Ms Wan, is the wife ofMr Jiang and held a work visa under the Partnership Work Visa category. Miaojin andLai, aged 16 and 7 respectively, are the children of the Mr Jiang and Ms Wan and wereholders of student visas as dependents of the first two applicants. Both children havebeen attending school in New Zealand, and in 2018 the family purchased a propertyin New Zealand.[6] The types of visas held by the applicants required them to apply for entrypermission upon arrival to New Zealand.2 Without such permission they were notentitled to enter the country.3 As a result, pursuant to s 109 of the Immigration Act2009 ("the Act"), entry could be granted or refused at the discretion of the relevantimmigration official.4 There will be sufficient grounds to refuse entry permissionwhere the applicant submits false information or withholds relevant information.5[7] In exercising the broad discretion under s 109 an immigration official is alsorequired to act in accordance with the immigration instructions contained inImmigration New Zealand's Operational Manual ("the immigration manual"). Theimmigration manual relevantly provides that:Y4.15 People who must be refused entry permission unless granted anexception to instructions: circumstances and compliance concernsSee also Immigration Act 2009 ss 22 and 107.(a) Entry permission must be refused to any person, except a person listed inY3.10(a), who is not otherwise dealt with under Y4.1 and:(i) makes a false declaration on any part of the New Zealand PassengerArrival Card or Crew Declaration, whether that declaration relates toan immigration matter or not; or2 Immigration Act 2009, s 103(1)(d).3 Section 14(1)(b). Entry permission does not flow from the fact that the individual is the holder ofa temporary entry class visa (s 46).4 Section 109(1).5 Section 112(6).(b) A person subject to (a) above may be granted entry permission if animmigration officer deliberately and properly does so as an exception toinstructions (see Y4.45).[8] It was against this background that on the evening of 17 January 2020 Mr Jiangmade a false declaration on his Passenger Arrival Card when the family returned toNew Zealand after a holiday in China. Mr Jiang failed to declare to New ZealandCustoms nine cartons of cigarettes concealed in his luggage (some 1,715 cigarettes inexcess of the family's entitlement), and thereby rendered himself and his family liablefor what is called "turnaround".[9] Upon discovering the cigarettes New Zealand Customs referred the family toImmigration New Zealand, which forms part of the Ministry of Business, Innovationand Employment, where their position was considered by a Border Officer,Alvin Ram.[10] Officer Ram undertook passenger risk assessments and completed a triageworksheet through interviewing both Mr Jiang and Ms Wan. The triage interviews notonly confirmed the position established by Customs but also confirmed thatapproximately two years before Mr Jiang had failed to declare four cartons ofcigarettes for which he had been fined. There is no dispute that in considering theapplicants' position Officer Ram was, in terms of s 109 of the Act and Y4.15, requiredto refuse the family permission to enter New Zealand unless they were granted entryas an exception in terms of Y4.45 of the immigration manual. This provides:6Y4.45 Making a decision to grant entry permission as an exception to instructions(a) An immigration officer must attempt to interview a person before deciding togrant entry permission as an exception to instructions.(b) The immigration officer must have regard to the principles of fairness andnatural justice (see A1).6 This instruction also refers to A1, however, the respondent acknowledges that A1 is not technicallyan instruction that binds Mr Ram as it does not fall within the categories provided for in s 22 ofthe Act on which the Minister may make instructions on.(c) When making the decision, an immigration officer must consider all of thesurrounding circumstances, including factors both for and against the grant ofentry permission such as:(i) whether the person has compelling and genuine reasons to enter NewZealand; and(ii) whether the person can take any action to meet the requirements for avisa and/or entry permission; and(iii) whether there is any other impediment to the grant of a visa and entrypermission.(d) An immigration officer must record reasons for the decision to grant entrypermission as an exception to instruction and enter those reasons into theMinistry's records.[11] As a result, Officer Ram proceeded to formally interview Mr Jiang. Theinterview began at around midnight on 17 January 2020 with Mr Jiang being assistedby an interpreter via telephone. The interview traversed Mr Jiang's employment inNew Zealand, his reasons for concealing the cigarettes and his affairs in China. At theconclusion Officer Ram informed Mr Jiang that he had offered potentially prejudicialinformation ("PPI") and was advised he may be turned around and removed fromNew Zealand on the next available flight. In response Mr Jiang requested that he begiven a chance to spend some time with his wife and children in New Zealand.[12] Having obtained comment from Mr Jiang Officer Ram consulted his supervisorand upon returning advised Mr Jiang that he had decided to refuse him entrypermission, that he was now liable for turnaround and would be placed on the nextavailable flight leaving New Zealand.[13] Officer Ram then formally interviewed Ms Wan. Ms Wan was questionedregarding Mr Jiang's employment and whether she had been aware of the concealedcigarettes. Following this Ms Wan too was informed she may have offered PPI andthat as her visa, as well as those of the children, were dependent on Mr Jiang's visaand as a decision had been made to cancel his visa, they no longer met the requirementsof their visas. Ms Wan responded by asking Officer Ram to:take into account the children are studying in New Zealand and have been for twoyears. The children can study as international students. We have lot of things to doin New Zealand. I wish you can reconsider for the four of us. Or especially for meand the two kids can you reconsider your decision.[14] Officer Ram spoke to his supervisor and upon returning informed Ms Wan thathe had refused entry permission to her and her children, and that they too were liablefor turnaround and would be placed on the next available flight leaving New Zealand.[15] Following the revocation of the applicants' visas Mr Jiang communicated witha lawyer who in turn requested that the respondent reconsider its decision on accountof a failure of the respondent to observe the relevant requirements in the immigrationmanual. The request to reconsider was declined. The applicants were returned toChina on the evening of 18 January 2020.Discussion[16] I begin my analysis by considering the basis for Mr Moss' submission thatOfficer Ram had an obligation to consider the interests of Miaojin and Lai and failedto do so. As Ms Charmley submitted on behalf of the respondent, it is difficult to seethe source of any specific obligation to take into account the interests of Miaojin and/orLai. The statutory framework considered by the Supreme Court in Ye, relied on byMr Moss, was subsequently repealed, and it is clear that the type of humanitarianinquiry at issue in that case is not the focus of the relevant provisions of the Actapplicable in this case. Thus, while the UNCROC was found to be relevant in Ye, theconclusion that the best interests of the child should be a primary consideration wasmade in the context of children who were New Zealand citizens. The Supreme Courtspecifically did not purport to draw any conclusion with regard to children not lawfullyin New Zealand, and indeed noted that New Zealand had made a reservation toUNCROC with respect to children unlawfully in New Zealand and that the reservationwould have relevance to future cases concerning such children.77 The reservation dated 16 April 1993 provides "nothing in this Convention shall affect the right ofthe government of New Zealand to continue to distinguish as it considers appropriate in its lawand practice between persons according to the nature of their authority to be in New Zealandincluding but not limited to their entitlement to benefits and other protections described in theConvention, and the Government of New Zealand reserves the right to interpret and apply theConvention accordingly".[17] The distinction is important. The children in Ye had an independent andfundamental right to remain in New Zealand even if their parents were deported.Miaojin and Lai do not have such a right. Instead, their right to be in New Zealandwas like Ms Wan's, at all times dependent on Mr Jiang's right to live and work inNew Zealand. As a result, to accept Mr Moss's submission and impose an obligationto independently consider the best interests of Miaojin and Lai would be entirelyinconsistent with the relevant provisions of the Act.8[18] It would also be inappropriate to impose an obligation on immigration officersto seek out additional information relating to the interests of children. Section 109provides that the Minister (or his or her delegate), in their discretion, may grant orrefuse entry permission to a holder of a temporary entry class visa. The effect ofrefusing entry permission to a holder of a temporary entry class visa is to make aformer visa holder, like the applicants in this case, subject to turnaround pursuant tos 115 of the Act. Section 112(1) in turn spells out that it is the responsibility of anapplicant for entry permission to ensure that all information, evidence and submissionsare provided when the application is made, while s 112(2) specifically states that theMinister (or delegated decision-maker) considering the application is not obliged toseek further information and may determine the application on the informationprovided to them. In these circumstances, to read in a requirement for Officer Ram toproactively seek information regarding Miaojin and/or Lai would fly in the face ofthese specific provisions.[19] In any event it is not correct to suggest that Officer Ram had no informationabout Miaojin or Lai prior to making the decisions in issue. In particular, the variousdocuments completed by Officer Ram make it clear that even before the formalinterviews took place he knew Mr Jiang was travelling with his family, that he andMs Wan had brought a house in Auckland in May 2018, and that the children werestudying at school in New Zealand. It was also clear Officer Ram understood the8 Y4.45(c) of the instructions requires an immigration officer to consider "all of the surroundingcircumstances" including whether the person has compelling and genuine reasons to enter NewZealand when considering whether to grant entry permission as an exception to the instructions.It is possible, that as in this case, the children's residence in New Zealand and their attendance atschool will make up part of the surrounding circumstances. However, this is distinct from anobligation to consider the best interests of the children and for this consideration to be elevated toparamount importance, as was the approach advanced by Mr Moss.revocation of Mr Jiang's visa would have a consequential effect on each of the otherapplicants, a point made explicitly by Mr Jiang when he was asked to comment at theend of his formal interview. Likewise Ms Wan, as noted, specifically reiterated thefact the children were studying in New Zealand when she was asked to comment inthe course of her own formal interview.[20] Finally, with regard to this issue no further details about the children'ssituations have been provided than that before Officer Ram, let alone any informationto indicate they have suffered significant adverse consequences as a result of beingreturned to China with their parents, other than a degree of social and educationaldisruption. The evidence is in fact unclear as to exactly what level either of thechildren was studying at in New Zealand, still less any difficulties they have had inresettling back in China, at what level they have been required to fit back into theChinese education system, or whether there are other any other particular issues thathave emerged.[21] Taken together I conclude there is no basis for suggesting there were relevantmatters not considered by Officer Ram at the time the applicants' visas were revoked.[22] The remaining issues can be addressed relatively quickly. First, there is noevidence before the Court to suggest that Mr Jiang (or indeed Ms Wan) ever requesteda lawyer be present at the time the interviews took place. Instead the availableevidence indicates that Mr Jiang sought and was permitted to obtain legal advice afterthe decisions had been made and prior to flying out the following evening.[23] Likewise, there is no evidence that Officer Ram was "biased and deceptive"towards Ms Wan at any point. There is simply no evidence before the Court to suggestthat Officer Ram conducted himself other than in an objective manner and inaccordance with appropriate procedure, noting that his actions were peer-reviewed atthe time. On the contrary, although as a matter of law the visas of Ms Wan and thechildren appeared to stand or fall with Mr Jiang's, Officer Ram independentlyconsidered whether exceptional circumstances existed for not revoking Ms Wan's visa.[24] Given this position there is otherwise no basis to suggest the decisions madeby Officer Ram were erroneous and/or otherwise unreasonable.Decision[25] The application for review is declined. Should the respondent seek costs amemorandum is to be filed within two weeks of the issue of this judgment, followingwhich the applicants will have two weeks to respond. I will then determine the issueon the papers._______________________________Powell J