CHAI v MINISTER OF IMMIGRATION [2023] NZHC 2536

CHAI v MINISTER OF IMMIGRATION [2023] NZHC 2536 [11 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-000989[2023] NZHC 2536UNDER section 245 of the Immigration Act 2009IN THE MATTER of an application for leave to appeal againsta decision of the Immigration and ProtectionTribunalBETWEEN HOOI KEAT CHAIApplicantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 30 August 2023Appearances: D J Ryken for ApplicantN N A El-Sanjak & A W M Britton for RespondentJudgment: 11 September 2023JUDGMENT OF JOHNSTONE JThis judgment was delivered by me on 11 September 2023 at 3pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Ryken & Associates, AucklandCrown Law Office, Wellington[1] Hooi Keat Chai is a Malaysian citizen, resident in New Zealand. InOctober 2018, Mr Chai was convicted of offences against the Immigration Act 1987,including that:(a) in his work visa application of February 2009, he made a false andmisleading statement that he worked for an employer in Malaysia fromOctober 2003 to June 2005, when in truth he was living in New Zealandunder the name Kok Tong Chai; and(b) when entering New Zealand in August 2009, January 2010 andMay 2010 he presented the work visa he had obtained in the manneroutlined above, knowing it had been obtained fraudulently.[2] These convictions rendered him liable for deportation.1[3] In June 2022, Mr Chai was served with a deportation liability notice. Heappealed against that liability to the Immigration and Protection Tribunal(the Tribunal). On 13 April 2023, the Tribunal declined Mr Chai's appeal(the Decision).2[4] In this proceeding, Mr Chai seeks leave under s 245(1) of theImmigration Act 2009 (the Act) to appeal the Tribunal's decision on the basis it madean error of law. He submits with reference to s 245(3) that this error involves aquestion of general or public importance which, for that or another reason, should besubmitted to the High Court for its decision.Background[5] Mr Chai is around 40 years old. Having lived in Malaysia until he was 19, hearrived in New Zealand in 2003 on a visitor visa under the name "Kok Tong Chai".When a further visitor visa expired in April 2004, Mr Chai stayed unlawfully inNew Zealand until departing in June 2005.1 Immigration Act 2009, ss 158(1)(a)(ii) and 161(1)(a)(ii).2 Chai v The Minister of Immigration [2023] NZIPT 600727.[6] In October 2005, back in Malaysia, Mr Chai changed his name toHooi Keat Chai. In November 2005, he entered New Zealand under his new name,failing to disclose his previous name. In making the fraudulent work visa applicationof February 2009 referred to above, Mr Chai again failed to disclose his previous nameand, as stated, he made false and misleading statements that he worked for an employerin Malaysia from October 2003 to June 2005, in that manner concealing his previousunlawful stay in New Zealand under the name Kok Tong Chai.[7] In June 2012, Mr Chai was granted New Zealand residence. In late 2012,Mr Chai married his wife, a citizen of Malaysia, in ceremonies in both Malaysia andNew Zealand. Mr Chai's wife is now a New Zealand resident. The couple have twochildren born in New Zealand, a daughter in November 2014 and a son inDecember 2018. The children are New Zealand citizens.The Tribunal's decision[8] The Tribunal was required to deal with Mr Chai's appeal against his liabilityfor deportation in accordance with s 207 of the Act. Section 207 relevantly provides:207 Grounds for determining humanitarian appeal(1) The Tribunal must allow an appeal against liability for deportation onhumanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian naturethat would make it unjust or unduly harsh for the appellant tobe deported from New Zealand; and(b) it would not in all the circumstances be contrary to the publicinterest to allow the appellant to remain in New Zealand.[9] The Tribunal determined the matter with reference to s 207(1)(a), identifyingexceptional humanitarian circumstances, but finding that they would not make itunjust or unduly harsh for him to be deported from New Zealand. The Tribunal'sessential reasoning was:[91] If the appellant is deported, it appears that the most likely outcome isthat he would return to Malaysia alone. There will be a significant burden onMs Toe to continue her restaurant business without the appellant's support tocare for their children. It will be difficult to finance physical contact with theappellant in Malaysia. If Ms Toe and children return to Malaysia, there arepotential difficulties for the children to acquire citizenship and to live therewithout citizenship. It is in the best interests of the children for the appellantto remain in New Zealand.[92] However, the Tribunal is satisfied that allowing the appellant's appealwould seriously undermine the integrity of the immigration system.Immigration New Zealand depends on applicants to provide reliable andaccurate information in applications for visas. It was a serious matter that theappellant was granted a temporary work visa based on his concealment of hisprevious identity. This fraud led to him obtaining a resident visa, to Ms Toeobtaining a resident visa based on her partnership with him and the childrenacquiring New Zealand citizenship on their births here.[93] Weighing the offending (immigration offences involving dishonesty)against the exceptional humanitarian circumstances (primarily, the effect ofdeportation on Ms Toe and the children), the Tribunal is satisfied that it is notunjust or unduly harsh for the appellant to be deported from New Zealand.Applications for leave to appeal[10] Section 245 of the Act relevantly provides:245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (beingeither the person who appealed or applied to the Tribunal, an affectedperson, or the Minister, chief executive, or other person) is dissatisfiedwith any determination of the Tribunal in the proceedings as beingerroneous in point of law, that party may, with the leave of the HighCourt (or, if the High Court refuses leave, with the leave of the Courtof Appeal), appeal to the High Court on that question of law.(3) In determining whether to grant leave to appeal under this section, thecourt to which the application for leave is made must have regard towhether the question of law involved in the appeal is one that byreason of its general or public importance or for any other reasonought to be submitted to the High Court for its decision.(Emphasis added).[11] The practical application of s 245 requires that applicants identify a seriouslyarguable question of law which either:(a) has importance extending beyond the particular case (and thus hasgeneral or public importance for the purposes of s 245(3)); or(b) for some other reason, warrants a decision from the High Court.3[12] The latter, "any other reason" limb requires "an exceptional case involvingindividual injustice to such an extent that the Court simply could not countenance theTribunal's decision standing".4[13] The issues raised need to go beyond the particular circumstances of theapplicant, or suggest the existing law needs revisiting.5 The following generally donot qualify:(a) misapplication of existing legal principles to the particular facts of acase;6(b) poor prospects of success;7 and(c) errors that were not material to the outcome.8Submissions for Mr Chai[14] For Mr Chai, Mr Ryken submitted that the Tribunal's reasoning suggested itwas applying a 'rule of thumb'; that is, a rule that deportation is not generally unjustor unduly harsh where immigration offending has given rise to liability to deportation,because the integrity of the immigration system typically overcomes exceptionalcircumstances of a humanitarian nature. The application of such a rule would bewrong.[15] Mr Ryken contrasted such reasoning with Supreme Court guidance to the effectthat examination whether deportation is "unjust or unduly harsh" in terms of3 Singh (Shivdev) v Chief Executive of the Ministry of Business, Innovation and Employment [2018]NZHC 972, [2018] NZAR 1120 at [24].4 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721at [8].5 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32].6 JW v Chief Executive of the Ministry of Business, Innovation and Employment [2022] NZCA 286at [19].7 See Allada v Immigration and Protection Tribunal [2014] NZHC 953 at [36].8 See, for example, Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at[16].s 207(1)(a) requires assessment of the particular reasons why deportation liability hasarisen.9 In cases where criminal offending gives rise to deportation liability, the natureof the offending requires consideration so as to determine whether deportation wouldbe unjust or unduly harsh, and:10This requires the Tribunal to assess the gravity of the particular offending andits effects, not merely the kind of offence involved. The Tribunal must assessthe degree of an appellant's culpability in all the circumstances.[16] Mr Ryken recognised that in cases such as Huang v Minister of Immigrationthe balancing required under s 207(1)(a) has been found inherently to involveassessment of the level of harshness that is acceptable in order to preserve the integrityof the immigration system.11 However, he submitted that the culpability of theoffending that founded the deportation liability in that case, where drug offending waspunished by seven years' imprisonment, was quite different to that in the present case,where Mr Chai's offending was punished by six months' home detention. In casesinvolving very serious offending, the need to ensure public interest factors relevant tos 207(1)(b) are considered distinctly under that limb of s 207, and do not come todominate the balancing exercise under s 207(1)(a), is not as acute. Allowing the natureof immigration-related offending to dominate the balancing exercise under s 207(1)(a)compromises the overall decision-making process under s 207.Submissions for Minister of Immigration[17] For the Minister of Immigration, Ms El-Sanjak submitted the Tribunal madeno seriously arguable error of law, and that its decision was simply the consequenceof its application of what it regarded as the relative weighting of the nature andseriousness of Mr Chai's offending as against the humanitarian circumstances theTribunal found to exist. On that basis, no questions of law of general or publicimportance arise.9 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].10 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [162].11 Huang v Minister of Immigration [2020] NZHC 956 at [36].Decision[18] I accept Mr Ryken's submission that application by the Tribunal of his 'rule ofthumb' would raise a question of law that should be submitted to this Court for itsdecision. The cases he draws in aid make it plain that s 207(1)(a) requires case-specificweighing of such exceptional humanitarian circumstances as are found to exist againstthe individual circumstances giving rise to deportation liability.12 It is at least arguablywrong (so as to require leave to appeal being granted), if not clearly wrong, forimmigration offending as a basis for deportation liability to be treated aspresumptively justifying deportation notwithstanding exceptional humanitariancircumstances. Immigration offending may generally tend to undermine the integrityof the immigration system, but the extent to which the offending in any particular caseactually had that tendency derives from the nature of the offending and the offender'sculpability in each case. If the general tendency of immigration offending toundermine systematic integrity is seen as of itself justifying the injustice or undueharshness of deportation, the weighing process is compromised.[19] Accordingly, determination of this application for leave requires assessment ofwhether the Tribunal did apply the alleged 'rule of thumb' or presumption.[20] Here, it should be observed that the Tribunal's essential reasoning cited at [9]above appeared under the sub-heading "Conclusion on unjust or unduly harsh todeport", towards the end of a lengthy section of the Tribunal's decision headed"Assessment". Initial sub-parts of the assessment dealt with the question whetherexceptional humanitarian circumstances were at stake.13 The Tribunal havingidentified such circumstances, it turned to consider "Whether it would be Unjust orUnduly Harsh for the Appellant to be Deported". The particular circumstances ofMr Chai's offending were then discussed.14 The discussion included reference toMr Chai's suggestion his offending was instigated by a dishonest immigration adviser,and facts that contradicted that suggestion, including that the District Court Judge whosentenced Mr Chai found the offending to involve some premeditation and planning.12 Guo v Minister of Immigration, above n 9, at [9]; and Helu v Immigration and Protection Tribunal,above n 10, at [162].13 At [61]–[80].14 At [82]–[83].[21] Mr Ryken submitted that the offending in Mr Chai's case could be contrastedwith, and seen as less serious than, offending where immigration applications are falsebecause the applicant does not have certain qualifications or experience that arenecessary for the type of application being pursued. However, the inaccuracies withinMr Chai's various applications concealed that he had remained unlawfully inNew Zealand for a period of around 14 months following the expiry of a visitor visain 2004. It is likely that aspect of Mr Chai's background would, if known, have beenviewed as an equally relevant feature of his applications.[22] Thus, it is apparent that assessment of Mr Chai's particular offending informedthe Tribunal's later observation,15 that "the integrity of the immigration system isseriously undermined if applicants conceal identities which would have made themineligible to apply for temporary and resident visas".[23] Coming now to the Tribunal's ultimate reasoning at [9] above, it can be seenthat:(a) Paragraph [91] summarises the exceptional humanitariancircumstances at play.(b) Paragraph [92] commences with a conclusory statement that " theTribunal is satisfied that allowing the appellant's appeal wouldseriously undermine the integrity of the immigration system".However, the Tribunal moves immediately to explain how thatconsequence would arise in the particular circumstances of Mr Chai'scase, referring to the inaccuracy of his temporary work visa applicationleading to the acquisition of his residence visa, and then to his wife'sresidence visa and his children's citizenship.(c) Paragraph [93] refers to the required exercise — that of weighing thereason for deportation liability (here, the offending) against theexceptional humanitarian circumstances — and sets out the Tribunal'sview of where the weighing exercise landed.15 At [88].[24] On this analysis, the Tribunal's reasoning does not support the proposition thatit applied a 'rule of thumb' or presumption to the effect that immigration offending asa basis for deportation liability overcomes exceptional humanitarian circumstances.Instead, the reference to the serious undermining of the integrity of the immigrationsystem was made for the purpose of summarising or characterising the significance ofthe "particular reasons why deportation liability has arisen". The Tribunal's view wassimply that Mr Chai's offending outweighed the exceptional humanitariancircumstances of his case.[25] Further, in my view, that assessment was not plainly wrong, such that anindividual injustice the Court could not countenance has arisen.16[26] On this basis, the proposed appeal does not raise a question of law that byreason of its general or public importance, or for any reason, should be submitted tothe High Court for its decision. I decline to grant leave to appeal.Result[27] Mr Chai's application for leave to appeal is declined.Costs[28] Mr Chai is to pay the respondent's costs, to be assessed on a 2B scale basis bythe Registrar._____________Johnstone J16 Machida v Chief Executive of Immigration New Zealand, above n 4, at [8].