FANG v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2015] NZHC 2059

FANG v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2015] NZHC 2059 [28 August 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-1971[2015] NZHC 2059BETWEEN MING BO FANGPlaintiffAND THE MINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTDefendantHearing: 26 August 2015Counsel: F Deliu for PlaintiffC Paterson for DefendantJudgment: 28 August 2015JUDGMENT OF FOGARTY JThis judgment was delivered by me on 28 August 2015 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, AucklandIntroduction[1] On 21 August 2015, Immigration Officer Karen McGilvary refused, under s 177 of the Immigration Act 2009 (the Act), to cancel a deportation order served on Mr Fang. Mr Fang is presently due to be deported from New Zealand tonight at 11.00 pm.[2] Mr Fang challenges by way of judicial review the immigration officer'sdecision under s 177 and seeks interim relief under s 8 of the Judicature Amendment Act 1972 to prevent the deportation pending that review.[3] At the end of the oral hearing this afternoon, I gave interim relief accordingly pending, in the first instance, delivery of my judgment setting out my reasons.[4] The threshold for interim relief, which is common ground, is that there is no respectable chance of success in the substantive judicial review proceedings and, argued by the Crown, interim orders are not necessary to preserve the position of Mr Fang who is unlawfully in New Zealand and subject to a statutory obligation to leave.Threshold for relief[5] In Esekielu v Attorney-General1 Hammond J considered the question of thethreshold which an applicant, in the immigration context, must meet for interimrelief. Having examined the context, he said:It seems to me therefore, that whilst the individual applicant should not be required to demonstrate a very strong probability of success on the merits, the kind of matters that that individual must establish in support a claim to interlocutory relief must be more than a showing that the question is notmerely trivial. I would have thought both that there must be a real contestbetween the parties, and that the applicant has a respectable chance insucceeding in that contest.[6] This is the test agreed to by counsel before me. Ms Paterson, for the Crown, has noted that this test is routinely applied in these cases. It was noted by the Court1 Esekielu v Attorney-General (1993) 6 PRNZ 309, 313.of Appeal in Singh v Minister of Immigration2 and expressly applied in Parmanadan v Minister of Immigration3.Factual background[7] The plaintiff was originally from China. He has overstayed his New Zealand visa. He came to New Zealand on a student visa which expired on or about May 2011. He studied for a week but has thereafter been living in New Zealand.[8] He has a partner who is Chinese and is a New Zealand citizen.[9] On 16 August, he was apprehended for a traffic offence and the police discovered that he was in New Zealand on an expired visa. He was taken into custody and served with a deportation order.[10] Between 17 August and 24 August, the defendant commenced and completed a process of considering whether the deportation order might be cancelled. This process is regulated principally by s 177 of the Act which provides:177 Deportation order may be cancelled(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.(2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.(3) If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—2 Singh v Minister of Immigration [2009] NZCA 50.3 Parmanadan v Minister of Immigration [2010] NZAR 424.(a) may make a decision as he or she thinks fit; and(b) in doing so, is not under any obligation, whether by implication or otherwise,—(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.(4) Whether or not an immigration officer considers cancelling a deportation order,—(a) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and(b) section 23 of the Official Information Act 1982 does not apply in respect of the decision.(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—(a) a description of the international obligations; and(b) the facts about the person's personal circumstances.[11] On 17 August, the defendant conducted a record of personal circumstances (humanitarian) interview with the plaintiff, in the absence of a lawyer. On 18 August, the defendant conducted a similar interview with the plaintiff's partner.On 20 August, the plaintiff, through counsel, lodged submissions with the defendant as to why it ought to cancel its deportation. On 24 August, the defendant affirmed its determination to deport the plaintiff which, as I have noted, was scheduled to occur to today at 2300 hours.Grounds claimed for relief[12] These proceedings have been commenced by way of judicial review, relying on the Judicature Amendment Act 1972, and the New Zealand Bill of Rights Act 1990 (NZBORA), principally. The plaintiff relies on the following grounds:(a) Right to counsel.[13] The submission is that the defendant failed to advise the plaintiff of his right to have counsel present at his humanitarian interview and/or by giving him only five minutes notice to arrange counsel, effectively depriving him of the right to counsel under s 23(1)(b) of the NZBORA.[14] In reply, the defendant relied on the terms of s 23(1)(b) of the Act and its record. Section 23(1)(b) of the NZBORA provides:23 Rights of persons arrested or detained(1) Everyone who is arrested or who is detained under any enactment—(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right.[15] There is a record of the humanitarian interview of some detail that runs for many pages. Very early on into the interview, after establishing the need for an interpreter or not and the name of the person being interviewed, there are questionsabout legal representation. Question one was:Do you understand you are able to talk to a lawyer or licensed immigration adviser before completing this record of personal circumstances?The plaintiff's answer was:I understand that I have been served with a D/O [deportation order] and that you are conducting a ROPC [record of personal circumstances] interview and that I can call a lawyer at any time.Question two:Do you wish to talk to a lawyer or licensed immigration adviser before completing this record of personal circumstances?The answer was:Client has requested he speak to his lawyer. Used my phone, explained situation to lawyer, gave phone to client – left room.Thereafter the lawyer's name and address is written down, together with the cellphone number. Then, under the heading:If the client wishes to talk to a lawyer/adviser, document the steps taken to facilitate that request. If you are unable to arrange this, describe what the impediments are.Answer:Client confirms that he has spoken to his lawyer. Client confirms happy to continue with the interview.[16] Based on these facts and the terms of the NZBORA, I do not think that the threshold requirement has been met.(b) No statement of information relevant to international obligation[17] The second ground of the appeal is that the defendant erred in law under ss 177(2) and 177(5)(b).[18] Attached to this judgment is a document entitled "Stage Two" whichaccompanied the decision not to cancel the deportation order and is self-evidently intended to be a record of compliance with subs (2) and (5) of s 177.[19] With reference to subs (5)(b), the Crown relies on the first paragraph,beginning "the facts about".[20] The records of the humanitarian interview (ROPC) run to 13 pages.[21] Mr Deliu argued that it was not sufficient compliance with s 177(5)(b) to make a general cross-reference to the notes of the interview.[22] This method has been expressly approved by the High Court, Lang J, in the decision of Babulal v Chief Executive, Department of Labour4 decided on 29 December 2011. This is demonstrated by consideration of [34] and [72] – [76] as follows:[34] The decision issued by Mr Chase in the present case demonstrates that this is so. The decision reads:4 Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773.The facts of Mr Babulal's personal circumstances are recorded [in] the following interviews:1. Record of personal circumstances Jenny Tims dated 30/11/102. Record of personal circumstances by Terri Bentley dated 13/12/103. Note book entry taken with Tracie Brent Jones dated 10/01/11(Partner)4. Statement taken with Mrs Maria Naisara dated 15/02/11 (ex Partner)5. Statement taken with Tahitia Babulal dated 22/02/1 1 (RespondentsDaughter)6. Statement taken witli Alani Babulal dated 22/02/11 (RespondentsDaughter)7. Statement taken with Madhuka Kumran dated 2210211 1 (RespondentsMother)8. Further statement taken with Mr Babulal dated 22/02/11I have regard to the following international obligations:Alt 3 UNCROC Best interest of the child shall be primary consideration.Art 7 UNCROC Right to know and be cared for by their parents.Art 12 UNCROC Rights for child to express those views in all matters affecting them.Art 16 UNCROC Subject to arbitrary or unlawful interference with their family.Art 24 UNCROC The rights to obtain the highest attainable standard of physical and mental health care.Art 27 UNCROC Right to adequate standard of living for their physical, mental, spiritual, moral, social and social development.Art 28 UNCROC Right to education.Art I7 ICCPR The right not to be subject to arbitrary or unlawful interference with the family.Art 23 ICCPR The family is a fundamental group unit of society and is entitled to protection by society and the state.Art 24 ICCPR The right of every child to measures of protection by the family, society and State required by their status as minors.Art 10 ICESCR The widest possible protection and assistance should be given to the family which is the natural fundamental group unit of society.Art 1I ICESCR The right to adequate standard of living.Art 12 ICESCR The right to the highest attainable standard of physical and mental health care.I am not obliged to provide reaso~~fosr my decision by virtue of Section177(4) of the Immigration Act 2009 and I coilsider that depoi-tation of MrBabulal should proceed.Did the immigration officer fail to record the facts of Mr Babulal's personal circumstances as required by s 177(5)@)?[72] Mr Chase did not attempt to set out, in a narrative form, the substantive facts upon which he based his decision. Rather, he listed the documents that contained those facts. These were the notes taken during the interviews conducted both by Mr Chase and other immigration officers.[73] Counsel for Mr Babulal submits that this is not sufficient to comply with the mandatory requirement in s 177(5)(b) that, to the extent that an immigration officer has had regard to New Zealand's international obligations, he or she must record the facts about the personal circumstances of the person who is subject to the deportation order. He argues that, where s 177(5)(b) applies, the immigration officer must set the facts out in a narrative form.[74] I do not accept this submission, principally because it flies in the face of the language used throughout s 177. Taken as a whole, the section imposes minimal formal requirements upon immigration officers who exercise the discretion vested in them under the section. If the submission is correct, immigration officers would potentially become subject to an onerous obligation to record in narrative form every relevant fact about the person's personal circumstances. If they failed to do so, they would commit a reviewable error.[75] The section contemplates the immigration officer recording the material facts upon which his or her decision is based. That can be done either by recording the facts in narrative form or by listing and or describing the documents in which the facts are to be found. In the present case Mr Chase adopted the latter technique.[76] If the immigration officer chooses to adopt this technique, however, he or she should ensure that all relevant documents should be included within the list or description. Failure to do so may lead a reviewing court to conclude that the immigration officer has not had regard to any documents that are not included in the list or description. This is an issue in the present case because, although Mr Chase deposes that he had regard to the materialprovided by Mr Babulal's counsel on 10 December 2011, that document is not included in the list of documents in the body of Mr Chases's decision.[23] Ms Paterson, for the Crown, argued that that reasoning of Lang J in Babulalhas been implicitly confirmed by the decision of the Court of Appeal in The Ministry of Business Innovation and Employment v Alavine Feliuia Liu.5 Paragraph [12] of that judgment reads as follows:[12] Before making the s 177 decision the immigration officer interviewed the respondent and N, who strongly opposed deportation, citing the interests of the children, and indicated that she would resume her relationship with the respondent if he undertook treatment for alcohol abuse. Submissions were received from counsel. The decision recorded the investigations that the officer had undertaken and listed sources of information – such as counsel'ssubmissions – which had been considered. No reasons were given, the officer relying on s 177(4)(a). The decision recorded and described the following international obligations that the officer had considered:United Nations Convention on the Rights of the Child (UNCROC)Article 3 - In all actions concerning children, their best interests shall be a primary consideration;Article 5 - the State shall respect the responsibilities, rights and duties of parents;Article 7 - the right to know and be cared for by parents as far as possible;Article 8 - the right of the child to preserve his or her identity including family relations without unlawful interference;Article 16 - no child shall be subject to arbitrary or unlawful interference with his or her family;Article 18 - the State is to use its best efforts to ensure recognition of the principle that both parents have common responsibilities for the up-bringing and development of the child;Article 19 - the State shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence;Article 24 - the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health;Article 27 - the right of every child to a standard of living adequate for thechild's physical, mental, spiritual, moral and social development.International Convention on Civil and Political Rights (ICCPR)5 The Ministry of Business Innovation and Employment v Liu [2014] NZCA 37.Article 17 - the right not to be subjected to arbitrary or unlawful interference with family;Article 23 - the family is the natural and fundamental group unit of society and the State;Article 24 - the right of every child to measures of protection by the State, society and their family as required by their status as a minor.International Convention on Economic, Social and Cultural Rights (ICESCR)Article 6 - the right to work;Article 10 - the widest possible protection and assistance should be given to the family which is the natural and fundamental group unit of society; special measure of protection should be given to children and young persons without any discrimination for reasons of parentage or other conditions;Article 11 - the right to an adequate standard of living for himself and family;Article 12 - right to highest attainable standard of physical and mental health;Article 13 - the right to education.[24] Ms Paterson argued that it is a reasonable inference, and I agree, that the Court of Appeal were looking at a s 177 decision which followed the same format as that in Babulal.[25] The principal issue in Liu was whether or not the officer should have listed and taken into account art 9 which begins, in cl 1:1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents areliving separately and a decision must be made as to the child's place ofresidence.[26] The Court of Appeal held, following an earlier Court of Appeal judgment inYe v Minister of Immigration6 that art 9 does not apply to deportation decisions. In6 Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [24] – [25].that respect, the Court of Appeal in Liu overturned Whata J who, in turn, was following Ewebiyi v Parr,7 saying in [23]:[23] Only one of the authorities to which we were referred holds that art 9.1 applies in deportation cases, but it seems that the Judge in that case,Ewebiyi v Parr8 was not referred to the authorities just cited. We do not consider that references to art 9.1 in this Court's judgments in Huang v Minister of Immigration9 at [29] and Puli'uvea v Removal ReviewAuthority,10 assist the respondent. Indeed, the Court in Puli'uvea recorded that art 9 did not apply. Both decisions also predate Ye.[27] The Court of Appeal in Liu did not otherwise discuss Ewebiyi. No Court of Appeal decision has discussed my findings as to the requirements of s 177(5)(b) which are in conflict with the reasoning of Lang J in Babulal.[28] I agree with Ms Paterson that the Court of Appeal in Liu were not criticising the approach taken by the immigration officer as found in Babulal, and seen again inLiu. I agree it is a reasonable inference that the approach was the same. I note no criticism was drawn of it from the Court of Appeal. Equally, it is not clear, however, that the Court of Appeal regarded that as an issue. There was no compare, contrast, and resolve analysis between that aspect of the reasoning in Babulal and my reasoning in Ewebiyi.[29] The relevant reasoning in Ewebiyi, differing from the approach of Lang J inBabulal, is contained in these paras:The meaning and purpose of s 177(2), (3) and (5)[41] One of the number of grounds for review is that the immigration officer did not comply with subs (5)(a) and (b). I have included subss (2) and (3) as subs (5) is intended to record discharge of the duty to consider cancelling the deportation order (subs (2)) having regard to relevant obligations (subs (3)).[42] It is convenient to deal with this issue first as it directly arises from the interpretation of s 177, rather than other issues which appeal to principles of common law as to natural justice and s 27 of the New Zealand Bill of Rights Act 1990. It was the Crown's case that the reference to the three sets of international obligations complied with s S(a) and the fact that the decision followed the RPC interview notes which complied with s 5(b).7 Ewebiyi v Parr HC Christchurch CIV-2011-409-002010, 7 December 2011.8 Ewebiyi v Parr, above at 7.9 Huang v Minister of Immigration [2008] NZCA 277, [2009] 2 NZLR 700 at [29].10 Puli'uvea v Removal Review Authority, (1996) 14 FRNZ, 322 (CA).[43] To consider this argument it is useful to examine whether or not the purpose of subs (5) can be discerned. Subs (5) is an exception to the policy in this statute that the immigration officer is under no obligation to give reasons. It also is set in a context where the immigration officer is not in fact obliged to make a decision in accordance with New Zealand's international obligations, subs (3). So why is it there?[44] All statutory provisions are enacted for a purpose. Ms Catran did not make any written or oral submissions on the purpose of subs (5) and the following analysis was not tested by oral argument. However, she did argue that s 177(3) particularly (b)(i) was:... evidence [of] a Parliamentary intention to confer a broad general discretion on immigration officers that is free of legalism.But when an immigration officer must have regard to relevant international obligations (s 177(3)), they must then record a description of the international obligations and the facts about the person's circumstances, and to information as to his personal circumstances, relevant to these international obligations (s 177(2)).[45] To my mind the purpose is reasonably self evident. Parliament intended that immigration officers must consider cancelling a deportation order if the facts engage New Zealand's international obligations. Not only did they impose a duty, they wanted the discharge of that duty evidenced in the decision. When sovereign Governments enter into international obligations they do not become domestic law until they are enacted. Therefore, it is a basic principle of international law and statutory interpretation that the fact that New Zealand has entered into international obligations does not obligate any Government officials to conform to them in the absence of a New Zealand statute. This New Zealand statute does not obligate adherence to the international obligations. This is deliberately so. Parliament hasCompliance with subs (5)[55] ...[56] Subsection (5) read in line with its purpose, is calling for a crisp succinct description of the relevant international obligations. Similarly, does it make sense for the obligation to record the facts about the person's personal circumstances to include facts utterly irrelevant to compliance with New Zealand's international obligations. Subs (2) addresses:... personal information ... relevant to New Zealand's international obligations.[57] When an issue arises between a separation of a father and a son, it requires a description of the relevant facts about the personal circumstances of the father and the son, including, for example, that the age of the child and the nature of the present relationship, the wishes of the child and so on. The decision does not conform to these requirements. The errors are manifested on the record, Appendix A. This is a system error as the RPC form assumes, wrongly, that allinformation collected in the interview is relevant. That cannot be right. Relevance is a qualifier applied to facts which are made relevant by considering them against the relevant international obligations. That is why subs (5) naturally orders: (a) international obligations, before (b) facts. If an immigration officer is not capable of identifying the relevant obligations and then selecting the relevant facts from the information at hand, the officer is not competent to apply s 177(3) and discharge subs (5).[58] Accordingly, I conclude that the decision does not comply with s 177(5). That is an error of law.[30] My interpretation of s 177 imposes on the officer the task of selecting fromthe information obtained in the interview(s) those facts about the person's personalcircumstances which are relevant to New Zealand's international obligations. Thepurpose of subs (5) is to demonstrate that the immigration officer has considered cancelling the deportation order which is an obligation, not a discretion, on the officer imposed by s 177(2).[31] What subs (5) does not require is any analysis of the significance of theinformation/facts about the person's personal circumstances viz-a-viz the international obligations.Applying the threshold test[32] That brings me then back to the critical threshold test.[33] All that said, the decision in Ewebiyi demonstrates on the face of it that there was a real contest as to the correct interpretation of s 177 and that one High Court Judge has been persuaded to that interpretation, after that Judge has considered a differing opinion by a colleague on the same bench. I note that the test is not the likelihood of the applicant succeeding on an argument but a much lower threshold of a real contest and a respectable chance of succeeding in that context.[34] I hasten to add, it is somewhat invidious that I am put into the position to make this judgment. It happened by chance as this matter has been placed in the Duty Judge List at short notice, the point having to be decided today because of the deadline of 11.00 pm on 26 August. And it was only near the end of the argumentthat it became apparent to counsel and myself that included in the reasoning inEwebiyi was consideration of Lang J's approach to the same issue in Babulal.[35] In my judgment the threshold established by Esekielu, of a "respectable chance of succeeding" is met in respect of this point as the point has been decided each way by the High Court.[36] Mr Deliu relied on three other grounds. It is not necessary to consider those grounds.[37] I turn to the second criterion submitted by the Crown, that interim orders are not necessary to preserve the position of Mr Fang, as he is unlawfully in New Zealand and subject to a statutory obligation to leave.[38] In support of the argument that the plaintiff's position is unmeritorious and not necessary to preserve, the Crown relied upon the decision of the Court of Appeal in Parmandan11[10] To be more specific, the corollary of an ultimately successful challenge by the appellant to his removal will be a grant of permission to reside in New Zealand. In other words, the end point of the whole process (which may include reconsideration of his case by an immigration officer)will be either the appellant's removal, or him being permitted to stay in NewZealand. Armed with such permission, the appellant, even if removed in the meantime, will be able to return to New Zealand. So allowing him to be removed would not compromise his legal rights should his challenge to removal be ultimately successful.[11] This is not to deny that there may be particular adverse consequences of a proposed removal which might warrant the making of a interim order. But the likelihood of such adverse consequences should be established by evidence and assessed in the context of both a legislative scheme under which the overstayer is necessarily illegally in New Zealandand is under a legal duty to leave8 (subject to a right of 'appeal' to theRemoval Review Authority on humanitarian grounds9), and also a legislative policy under which those who break the rules are not to be advantaged over those who comply.12[39] Mr Fang is unlawfully in New Zealand and has been for some considerable time. If Mr Fang is deported, technically his application for judicial review can11 Parmanadan v Minister of Immigration, above n 3, at [10] – [11]/12 As expressed in the Long Titles to the Immigration Amendment Acts 1991 and 1999.continue. If it succeeds, then Mr Deliu submitted that if the process mandated by the Immigration Act applies, either, Mr Fang would have to be brought back to New Zealand for interviews or one or more officials would have to fly to China to interview him, accompanied by a New Zealand lawyer of Mr Fang's choice. Thiswould all take place after a considerable lapse of time. It simply would not happen. In practical terms, the remedy would be pyrrhic.[40] Mr Fang's position in New Zealand is that he is a young man in a long-term relationship. Much of the questioning in the humanitarian interview was whether ornot his partner would go back to China with him or not. It is apparent from theinterviews, both were interviewed, that but for this calamity, their relationship isstrong. His partner was in Court throughout the hearing and visibly affected by it.She is a New Zealand citizen.[41] The immediate particular adverse consequence of the removal of Mr Fang from New Zealand will likely be either the end of his relationship with his partner or the effective removal of his partner as a New Zealand citizen from New Zealand to join him in China. Either outcome will be a significant disruption to the status quo. There are abundant authorities indicating that the family and familial relationships are relevant considerations in the exercise of discretion by the defendant. There is affidavit evidence before the Court that the relationship has the blessing of theplaintiff's partner's family and that the relationship is a strong one.[42] It is by no means obvious to me that Mr Fang would always going to be sent back to China after he was apprehended. In a substantive sense, I think the interim orders enabling him to stay in New Zealand while this litigation is progressed and to take advantage of any remedies should he succeed, will preserve the de facto position he was in prior to being apprehended by the police.[43] Finally, I take into account under this head as well that the interviewing officer did identify that there were international obligations relevant to his personal circumstances. By the Immigration Act, New Zealand has set up a process whereby these international obligations are to be discharged before deportation is given effect.[44] For these reasons, I confirm the interim order made on 26 August but now restate it. Pursuant to s 8(2)(a) of the Judicature Amendment Act 1972, the Court declares that the Crown ought not to take any further action against Ming Bo Fang or it would be consequential upon the exercise of the statutory powers of the Crown granted to the defendant under the Immigration Act 2009, until further declaration of the Court.[45] The plaintiff is entitled to costs on a 2B basis. I will receive written submissions exchanged in advance if counsel are not able to agree.