SHEN v MINISTER OF IMMIGRATION [2018] NZHC 919

SHEN v MINISTER OF IMMIGRATION [2018] NZHC 919 [3 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-2696[2018] NZHC 919BETWEEN LUYANG SHENApplicantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 24 April 2018Counsel: S O McAnally and B M Hojabri for ApplicantN Buter and E Dowse for RespondentJudgment: 3 May 2018JUDGMENT OF WHATA JThis judgment was delivered by me on 3 May 2018 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Keegan Alexander, AucklandCrown Law, Wellington[1] Mr Shen seeks leave to bring a civil appeal from a decision of the New ZealandProtection and Immigration Tribunal (the Tribunal). When he applied for residencyfor himself and his wife he told immigration officials he was in a "genuine and stable"marriage. He did not tell them that in fact during his 12-year marriage, he separatedfrom his wife for 3 years, during which time he fathered a daughter by a differentwoman and, at the time of the application, was in an intimate relationship with a thirdwoman who was pregnant with his son. Mr Shen claims the Tribunal erred in requiringhim prove the relationship with his wife was exclusive at the time of his resident classvisa application.Background[2] The following narrative is based on an amalgam of the narrative provided byMr Shen and key undisputed factual findings of the Tribunal.Mr Shen's relationships[3] Mr Shen and his wife met at university in China. They had a very goodrelationship, marrying after university in 1988, when they moved to Guangzhoutogether. His wife remained in China when the applicant spent a few years studyingin Australia, before returning to begin a business in China in 1992. During this time,in 1990, his wife gave birth to their daughter, Yu.[4] Mr Shen and his wife separated for a period between 1992 and 1995. Duringthis period, the applicant had a de facto relationship with Ms Wen Liu until he and hiswife reconciled in 1995 or 1996. After his wife's return, Mr Shen became more distantwith Ms Liu. He and his daughter moved back to live with his wife. He remained incontact with Ms Liu because she discovered that she was pregnant around this time.Mr Shen believes that he is the father of this girl, named Shitong, however, he hasnever confirmed it through a DNA test and never obtained guardianship rights.[5] At about this time Mr Shen began a relationship with Ms Tan. They bought ahouse together in their joint names. In 2000, Mr Shen began to make plans toimmigrate to New Zealand or Australia. He suggested to Ms Tan she might like toaccompany him and study or work, but she refused. They started breaking up in mid-2000, began to date less frequently and broke up sometime between August andOctober 2000. It so happens Ms Tan became pregnant during this period and later gavebirth to a son, Haonan. Mr Shen next saw Ms Tan in late 2001, began dating againand in 2002 became intimate again. He says he then found out Haonan was his child.The residency applications[6] Mr Shen applied for residence in New Zealand in June 2001 and for a workpermit in August 2001, and included Mrs Shen in those applications. Under therelevant instructions at the time, to be included in the residence application, his wifehad to demonstrate that she was legally married to the applicant and that they were ina genuine and stable marriage.[7] Mr Shen, Mrs Shen and Yu were granted residence on 25 July 2002 and hiswife and daughter subsequently became New Zealand citizens. Mrs Shen and Yumoved to New Zealand, but Mr Shen stayed in China. He began arguing with his wifeduring this period. Mr Shen says that on 15 October 2002, when he was in China andshe was in New Zealand, they had a serious argument by telephone. He rememberedthe date because his father was due to return home that day after receiving his firstcancer treatment at the hospital. This was the first time that Mr Shen and his wifetalked about getting a divorce.[8] On 4 March 2014, Mr Shen's current partner, Ms Tan, lodged an applicationfor residence under the Family (Partnership) category of instructions based on herrelationship with the applicant. During the processing of Ms Tan's application, shesubmitted a statement to Immigration New Zealand explaining her relationship withthe applicant: they had been in a relationship since 1996; they had ended theirrelationship for a period of time between 2000 and 2001, during which time she gavebirth to their son, Haonan; and they recommenced their relationship after meetingcoincidentally again in the latter half of 2001.[9] Given this disclosure, the Minister of Immigration (the Minister) determinedthat Mr Shen and his wife were not in a genuine and stable marriage during the periodin which his residence application was assessed and Mr Shen had provided false andmisleading information in his residence application. The Minister also determined thatMr Shen had concealed relevant information in his application, because he shouldhave provided information about the children from outside of his marriage.[10] As a result, Mr Shen was found to be liable for deportation under s 158(1)(b)(ii)or the Act. The Minister signed a Deportation Liability Notice for the applicant on 13April 2017. However, Mr Shen appealed the Minister's decision, both on the facts andon humanitarian grounds.The Tribunal's decision[11] The primary issue on appeal to the Tribunal, relevant to the present appeal, waswhether, on the balance of probabilities, Mr Shen had established that no false ormisleading information was provided to Immigration New Zealand in his residenceapplication and that he did not conceal relevant information.[12] The Tribunal dismissed the applicant's appeal on the facts. It held:[78] The Tribunal finds that, on the balance of probabilities, the appellant'srelationship with Ms Tan recommenced in late 2001 or early 2002. The datethat he and his wife decided to divorce or "separated" is less relevant than thedate he recommenced his relationship with Ms Tan and therefore no longerhad an exclusive relationship with his wife. His relationship with his wife,while it may have been entered into with the intention of being maintained ona long-term basis, had not been exclusive since at least 1992, when his affairwith Ms Liu began, followed subsequently by his affair with Ms Tan. Even ifit was exclusive at the point he made his application for residence, it was notexclusive after the appellant recommenced his relationship with Ms Tan in late2001/early 2002. The weight of the evidence indicates that after theirrelationship recommenced, the appellant's relationship with Ms Tan becamemore stable and his relationship with his wife deteriorated. Therefore, theappellant has not established, on the balance of probabilities, that he and hiswife continued to be in a genuine and stable marriage, as understood by F2.1.1of instructions, after this point, which was during the period in which hisresidence application was assessed. Accordingly, the appellant has notestablished, on the balance of probabilities, that he did not provide false andmisleading information about his relationship with his wife in his residenceapplication.[13] It also held that he had not established that he did not conceal relevantinformation about his son, Haonan, or his daughter, Shitong, in his residencyapplication.Threshold for leave[14] Mr Shen must show the Tribunal erred in law and that the errors of law areones that by reason of their general and public importance or for any other reasonought to be submitted to the High Court for its decision.1Grounds of appeal[15] The notice of appeal identifies two grounds of appeal, namely:(a) The Tribunal has conflated the applicable definition of a genuine andstable marriage by applying the qualifying definition of "genuine"(which is referable to the parties' intentions for their marriage when itwas entered into) with the definition of "stable" (which refers to thestability of the marriage at the present time, not the genuineness of theparties' intentions when they were married) and in doing so wronglyconcluded that at the time the applicant applied for a residence visa hismarriage was not stable because it was no longer exclusive; and(b) Due to the foregoing error, the Tribunal wrongly concluded:(i) Not only that the applicant's marriage at the relevant time wasnot stable, but also(ii) That the applicant was motivated to conceal that he had twoundisclosed children to women other than his wife because hebelieved that disclosing such children would reveal that hismarriage was not exclusive (being incorrect because exclusivityis not determinative of stability), such error causing the Tribunalto adopt an unduly unfavourable view of the evidence as towhether or not, at the time of his application for a residence visa,1 The threshold for leave was not subject to argument. For completeness, I adopt the approach setdown in Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162.the applicant had sufficient knowledge that the two children inquestion were indeed his.[16] With the benefit of oral argument, Mr Shen's grounds of appeal can be reducedto a single core issue: Whether "exclusivity" is a mandatory relevant thresholdcriterion of a stable marriage.Central argument[17] Mr Coyle submits the Tribunal identifies "exclusivity" as the threshold issuefor evaluating whether Mr Shen provided false or misleading information or concealedrelevant information about the state of his marriage for the purposes of F2.1 of theResidence Instructions. He contends the issue of exclusivity may be relevant towhether the marriage was genuine but it is not a defining characteristic for a stablemarriage. Thus, by elevating "exclusivity" as a mandatory relevant threshold criterionof a stable relationship, the Tribunal unlawfully fettered its discretion. It also adopted,he contends, an unduly moralistic approach that significantly intrudes into the realmof private relationships between individuals and that could not be validly justified byany clear policy objective. In this regard, the clear purpose and object of F2.1.1 is toavoid fraudulent sponsorships, immigration marriages, marriages of convenience orsham marriages. A threshold test of exclusivity, he says, does not further this purposeor object and imposes an unnecessary fetter or limitation on the rights of applicantsfor residency.Statutory framework[18] Section 158(1)(b)(ii) of the Immigration Act 2009 states:158 Deportation liability of residence class visa holder due to fraud,forgery, etc(1) A residence class visa holder is liable for deportation if –(b) the Minister determines that—(ii) any of the information provided in relation to theperson's, or any other person's, application, orpurported application, for a visa on the basis of whichthe residence class visa was granted was fraudulent,forged, false, or misleading, or any relevantinformation was concealed.[19] A Tribunal may allow an appeal against liability for deportation, relevantly onthe facts, where:2(ca) in the case of an appellant liable for deportation under section158(1)(b)(ii), the Tribunal is satisfied, on the balance of probabilities,that none of the information provided in relation to the person's, orany other person's, application, or purported application, for a visa onthe basis of which the residence class visa was granted was fraudulent,forged, false, or misleading, and no relevant information wasconcealed.(emphasis added)[20] For present purposes, under the relevant instructions at the time, in order to beincluded in the residence application, Mr Shen's wife had to demonstrate that she waslegally married to him and that they were in a genuine and stable marriage. Thedefinition then of "genuine and stable marriage" was:F 2.1.1 Definition of "genuine and stable marriage"(a) A genuine and stable marriage is a marriage that the visa orimmigration officer determines:(i) Is genuine, because it has been entered into with the intentionof being maintained on a long-term and exclusive basis, and(ii) Is stable because it is likely to endure.[21] Against this legislative background, I turn to assess whether leave should begranted as sought.Assessment[22] I can respond to Mr Shen's application reasonably briefly. The central issueresolved by the Tribunal was whether relevant information was concealed by Mr Shenas part of Mrs Shen's application process. First, for argument's sake, I am prepared toadopt Mr Coyle's primary contentions that "exclusivity" is not a mandatory threshold2 Immigration Act 2009, s 202(ca).criterion for the purposes of a "stable" marriage as it was defined in 2001, and theobject of F2.1.1 is to avoid fraudulent sponsorships, immigration marriages, marriagesof convenience or sham marriages. Even so, Mr Shen's extramarital relationships wereprima facie relevant to whether his marriage was stable as at 2001. He needed topersuade the Tribunal why they were not relevant; he failed to do so. To elaborate, heneeded to show why the following information was irrelevant: a lengthy period ofinstability in his marriage, evidenced by his de facto relationship with Ms Liu between1992 and 1995 and his relationship with Ms Tan from 1996, both of whom bore himchildren either prior to or during the period of Mr Shen's application for residency.This is not a matter of moral probity, but of full disclosure about the stability of hismarriage. At its highest, therefore, the proposed appeal point is substantively meritless.[23] Second, it is evident on the face of the Tribunal decision that it addressed thecorrect question; namely, whether Mr Shen failed to disclose information that wasrelevant to the stability of his marriage. The salient passage of the Tribunal's decisionat [78] concludes that "the weight of the evidence indicates that after their relationshiprecommenced, the appellant's relationship with Ms Tan became more stable and hisrelationship with his wife deteriorated." Indeed, it is tolerably clear the references toexclusivity simply arose because of the complete lack of it and Mr Shen's failure tomention that fact. It does not reveal any undue emphasis on the requirement forexclusivity. Rather, the decision turned on the Tribunal's assessment of all the factsand evidence.3 No genuine issue of law is raised by the appeal.[24] Third, exclusivity was not the only factor the Tribunal considered whenassessing whether Mr Shen concealed relevant information. An independent hurdlefor Mr Shen's case was the statutory declaration he provided for Ms Tan's 2014application, which confirmed he and Ms Shen had separated in 2001 (i.e. during theresidence application period).4 The Tribunal found Mr Shen's explanation that he hadmade a mistake in that statutory declaration was not credible.53 A similar conclusion was reached in Kumar v Minister of Immigration [2016] NZHC 1593 at [52].4 Shen v Minister of Immigration, above n 1, at [64].5 At [74].[25] Fourth, a separate issue was Mr Shen's failure to disclose his son, Haonan, anddaughter, Shitong. Mr Shen was under an obligation to declare all children he had,whether they intended to migrate with him or not.6 The Tribunal rejected Mr Shen'sexplanations that he was not confident he was the children's biological father. Thedecision relevantly states:[90] However, the Tribunal notes that the appellant suspected both thesechildren were his, although prior to his residence application being decidedthis had not been definitively confirmed through DNA evidence (and, in thecase of Shitong, he has never sought to have this confirmed). Both childrenshared his surname. He was, to different extents, either supporting or livingwith the mothers of the children, at some stage prior to his residenceapplication being approved. Further, while this was not raised with oracknowledged by the appellant, the Tribunal observes that revealing theexistence of these children would have cast doubt on the genuine and stablenature of his relationship with his wife.[91] The Tribunal finds that there is a clear pattern of behaviour on theappellant's part to conceal relevant information from Immigration NewZealand about his children born out of wedlock. The Tribunal does not acceptthat, on the balance of probabilities, the appellant did not know Haonan washis son prior to the approval of his residence application.[26] This finding is not directly challenged on appeal and is not affected by thefindings about stability. It provided a sufficient basis to dismiss Mr Shen's appeal tothe Tribunal.[27] Finally, the issue of the relevance of exclusivity is very particular to the factsof Mr Shen's application and heavily referable to the concealment in his case. It doesnot give rise to any question of public or general importance or any other reason thatmight justify appellate oversight.[28] Given the foregoing, application for leave to appeal is dismissed..................................................Whata J6 At [86].