MINISTER OF IMMIGRATION v WU [2019] NZCA 237

MINISTER OF IMMIGRATION v WU [2019] NZCA 237 [20 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA649/2017[2019] NZCA 237BETWEEN MINISTER OF IMMIGRATIONAppellantAND DONGMEI WUFirst RespondentAND WEN ZHONGSecond RespondentAND IMMIGRATION AND PROTECTIONTRIBUNALThird RespondentHearing: 7 June 2018Court: Williams, Brown and Clifford JJCounsel: K G Stephen and K Orpin-Dowell for AppellantR E Harrison QC and C Curtis for First and Second RespondentsNo appearance for Third RespondentJudgment: 20 June 2019 at 10.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B We answer the questions of law as follows:(a) Whether the High Court erred in its finding that the Tribunal "wasnot legally able to accord no weight to the only information itapparently had about a New Zealand citizen child's citizenshipstatus in the country to which its decision would send her".No. The High Court was correct to find the Tribunal erred byfailing to accord any weight to the information provided by Ms Wuin the particular circumstances of this case. The Tribunal wasrequired to consider that information and, if it chose not to rely onit because it was inconsistent with other information previouslyavailable to it, it was required to disclose that other informationand provide the first and second respondents an opportunity torespond to it before coming to a final decision.(b) Whether the Tribunal was obliged, notwithstanding s 228(2) ofthe Immigration Act 2009, "to seek any information", including"foreign law and legislative facts", further to that provided to it bythe persons specified in s 228(2) of that Act.No, but the lack of such obligation was immaterial. The Tribunalwas obliged to act consistently when assessing the likely treatmentin China of a New Zealand citizen who was the child of parentsdeported to that country. The view the Tribunal expressed in Guov Minister of Immigration about that issue was a relevantconsideration in this appeal and the Tribunal was required to haveregard to it. If new information provided by the appellantssuggested that Guo was no longer correct, but the Tribunalintended nonetheless to follow it, the Tribunal was required todisclose that intention and to give the first and second respondentsan opportunity to comment further.C The case is remitted to the Tribunal for reconsideration of the newinformation in accordance with this judgment.D The appellant must pay the first and second respondents one set of costs fora standard appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] This is an appeal from a decision of Palmer J, who found that the Immigrationand Protection Tribunal (the Tribunal) erred in failing to consider, or considersufficiently, certain information provided in relation to a New Zealand citizen whowas the child of parents who were eligible for deportation.1Background[2] Ms Wu is a Chinese citizen. She entered New Zealand with her parents inAugust 2010. She did not disclose to Immigration New Zealand that she hada daughter, Xinyuan, in China in the care of Mr Zhong, the child's father. Had thesedetails been disclosed, she would not have qualified for a resident visa.[3] Mr Zhong is also a Chinese citizen. In September 2012, he enteredNew Zealand on a visitor visa granted on the basis of his relationship with Ms Wu.He brought their daughter Xinyuan, then two years old. One month later, Ms Wu andMr Zhong married. Xinyuan was granted a student visa in order to attend primaryschool. Mr Zhong obtained a work visa but a further application for a second workvisa was declined. He then became eligible for deportation.[4] In 2013, the Minister of Immigration (the Minister) determined that Ms Wu'svisa was procured through concealment of relevant information. She was issued witha deportation notice on 19 May 2014.[5] Ms Wu and Mr Zhong appealed to the Tribunal against their deportationnotices on humanitarian grounds.21 Wu v Minister of Immigration (No. 2) [2016] NZHC 3194 [High Court decision].2 The deportation notices applied also to Ms Wu's parents, but in Wu v Minister of Immigration[2015] NZIPT 600135-137 [IPT decision] the Tribunal allowed their appeals because they toowere unaware their daughter had a child at the time entry into New Zealand was granted.These decisions of the Tribunal were not challenged by the Minister.[6] Prior to the appeal being heard, in March 2015 Ms Wu gave birth to a secondchild, Olivia. Olivia is a New Zealand citizen.[7] Section 207 of the Immigration Act 2009 (the Act) governs humanitarianappeals. It provides as follows: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.Tribunal decision[8] The Tribunal found there to be no exceptional circumstances of a humanitariannature that would make it unjust or unduly harsh for Ms Wu and Mr Zhong to bedeported from New Zealand.3 The Tribunal considered that there was nothing abouttheir circumstances that was "truly an exception rather than the rule" in accordancewith the guidance of the Supreme Court in Ye v Minister of Immigration.4The Tribunal considered that the evidence did not establish that the children's nurture,development, socialisation, education and health would be significantly compromisedby their residing in China.5 This assessment, the Tribunal considered, applied toOlivia, even though she is a New Zealand citizen, equally as it did to Xinyuan.6[9] The hearing before the Tribunal concluded on 30 September 2015. Then, on16 October 2015, counsel for Ms Wu and Mr Zhong provided additional informationin relation to Olivia's likely immigration status in China. That information wasconsidered by the Tribunal before it issued its decision on 25 November 2015.3 IPT decision, above n 2, at [111].4 At [90]; and Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].5 IPT decision, above n 2, at [91].6 At [92]–[93].[10] It is the Tribunal's treatment of that information that was the focus ofthe appeal in the High Court and in this Court. The Tribunal recorded that it hadreceived further information post-hearing and set out its view of that material. Due toits importance, that aspect of the decision bears setting out in full:[72] Counsel wrote to the Tribunal after the hearing concluded, on16 October 2015, to indicate that [Ms Wu] had made contact with the ChineseConsulate General in Auckland. She was apparently told that [Olivia] has noright to become a Chinese citizen, and that it would be necessary for the familyto apply for continual visas for [Olivia] to remain in China, should the familybe returned there. In that regard, the Tribunal has been provided with nosubmissions in connection with the law in China, nor was any evidenceprovided by or on behalf of the appellants on oath.[73] Given that [Olivia] is the child of two citizens of the People'sRepublic of China, the Tribunal is not prepared to accept, at face value, thatshe could not become a citizen of China or that she could not acquirepermanent residence in China. No weight can be given to [Ms Wu's]unsubstantiated bare assertion to that effect. Nor has any evidence beenadvanced that establishes that there would be any impediment to [Olivia]obtaining ongoing visas to enable her to remain in China with her parents.[74] Counsel for [Ms Wu and Mr Zhong] submitted that the Chinese stateimposes heavy penalties upon parents of second and subsequent children.Again, however, no evidence was adduced to support that submission.While the one-child policy adopted by the Chinese state has resulted in theimposition of penalties, this has traditionally varied from province toprovince.[75] [Ms Wu's] brother has, despite his own financial difficulties, recentlyhad a second child, yet no evidence has been adduced to establish whether hehas had to pay any penalty. Nor is there any evidence that such penalties areimposed in Hunan or, if so, why the family could not establish themselves inan alternative part of China. If more were needed, China has, in fact, recentlyrevoked the one-child family policy in favour of a two-child family policy:see, for example, Chris Buckley "China Ends One-Child Policy, AllowingFamilies Two Children" New York Times (29 October 2015) atwww.nytimes.com:"Driven by fears that an aging population could jeopardize China'seconomic ascent, the Communist Party leadership ended itsdecades-old 'one-child' policy on Thursday, announcing that allmarried couples would be allowed to have two children."[11] In short, the Tribunal rejected the information conveyed through counsel byMs Wu as "unsubstantiated bare assertion", and further commented that there was noevidence ongoing visas would be refused by Chinese immigration authorities, even ifthe citizenship assertions were true.7 In relation to the comments made about China's7 At [73].one-child policy, the Tribunal relied on first its own knowledge that, first, enforcementwas variable and treated as a local matter;8 and second that the one-child policy hadbeen expanded to a two-child policy citing in that respect an article in the New YorkTimes.9High Court decision[12] Palmer J granted the applications for leave to appeal and to bring judicialreview proceedings in the High Court on the following questions of law:10(a) Did the Tribunal err in law, by failing to have regard to relevantconsiderations, in according no weight to the information provided toit by Ms Wu about the status under Chinese law of Olivia,a New Zealand citizen child?(b) Did the Tribunal have a legal duty to inquire into the status underChinese law of Olivia, a New Zealand citizen child of Ms Wu andMr Zhong, in order to address her interests in deciding on theirdeportation?[13] Palmer J also heard the substantive appeal.11 He held that the Tribunal madetwo errors of law:12First, it accorded no weight to the only information it had about Olivia'scitizenship status in the country to which its decision would send her andwhich was consistent with information on which it had based its own previousdecisions. Second, it failed to consider the foreign law and legislative factsupon which it has previously relied in its decisions, as to the implications ofdeportation on a New Zealand citizen child's rights and interests.[14] The Judge considered that the Tribunal's finding that it was entitled to accordno weight to the information about Olivia's Chinese citizenship status wasinconsistent with prior findings by the Tribunal.13 The Judge accepted thatthe Tribunal is generally entitled to determine the weight it attributes to particularevidence but in this case the information Ms Wu provided was consistent withinformation on which it based its previous decisions,14 and the Tribunal identified no8 At [74].9 At [75].10 Wu v Minister of Immigration [2016] NZHC 1309 at [63].11 High Court decision, above n 1.12 At [2].13 At [45], citing Guo v Minister of Immigration [2013] NZIPT 600006-7 at [160]; and Ye v Ministerof Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [274].14 See Guo v Minister of Immigration, above n 13, at [160].contrary evidence upon which it might have relied.15 The Judge held that thisinformation was a relevant consideration and failing to take it into account wasunreasonable.16[15] Palmer J considered that the legislative scheme made it clear the Tribunal didnot have a legal duty to make its own inquiries.17 The language of s 228 of the Actsaid this expressly.18 But the Judge considered neither the language nor the purposeof s 228 affected the discretion or duty of the Tribunal to use its own resources.19 Hefound that the Tribunal could also rely on "legislative facts" and in this case, shouldhave done so.20 The Tribunal had, the Judge considered, built up a "considerableinstitutional knowledge",21 and the Tribunal could refer to information it acquiredthrough its own activities.22 Acting in this way was viewed to be "consisten[t] withthe Tribunal's functions and the purpose of the Act".23[16] In the particular circumstances of making a decision where a New Zealandcitizen child is not separately represented and relies on the best efforts of her parents,Palmer J considered that the Tribunal had a legal duty to consider the foreign law andlegislative facts previously relied upon in its decisions as to the implications ofthe parents' deportation on the child.24Questions on appeal[17] In a subsequent decision Hinton J granted the Minister leave to appealthe decision of Palmer J to this Court on the following questions of law:25(a) whether the High Court erred in its finding that the Tribunal "was notlegally able to accord no weight to the only information it apparently15 At [46].16 At [47].17 At [60].18 At [59(b)].19 At [61].20 At [61] and [68].21 At [62], citing Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA).22 At [63].23 At [65].24 At [66].25 Minister of Immigration v Wu [2017] NZHC 2514 at [2].had about a New Zealand citizen child's citizenship status inthe country to which its decision would send her"; and(b) whether the Tribunal was obliged, notwithstanding s 228(2) ofthe Immigration Act 2009, "to seek any information", including"foreign law and legislative facts", further to that provided to it bythe persons specified in s 228(2) of the Immigration Act 2009.The statutory context[18] It is necessary to set out in some detail the provisions of the Act of particularrelevance in this appeal.[19] We have already referred to the test that must be applied in this case ascontained in s 207. An appeal on humanitarian grounds must be allowed bythe Tribunal if:26(a) there are exceptional humanitarian circumstances that makedeportation unjust or unduly harsh; and(b) it would not be contrary to the public interest for the appellant to remainin New Zealand.[20] In its decision in Ye, the Supreme Court made a number of relevantobservations about the structure of that test as then contained in s 47(3) ofthe Immigration Act 1987. 27 The two provisions are not materially different. The firstobservation was that the Act should be interpreted in a manner consistent withNew Zealand's international human rights obligations, including those contained inthe United Nations Convention on the Rights of the Child (UNCROC).28 By thismeans, it is accepted that the best interests of any child affected by possibledeportation of its parents are a "primary consideration" for the Tribunal, although26 Immigration Act 2009, s 207(1)(a) and (b).27 Ye v Minister of Immigration, above n 4.28 At [24], citing United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3 (openedfor signature 20 November 1989, entered into force 2 September 1990) [UNCROC].the Court noted that this directive did not prescribe the weight to be given to that factorin the circumstances of any particular case.29[21] In addition, the majority noted as follows:[34] The need for the [humanitarian] circumstances of the case to beexceptional means that those circumstances must be well outside the normalrun of circumstances found in overstayer cases generally. The circumstancesdo not have to be unique or very rare but they do have to be truly an exceptionrather than the rule. [36] The flavour of the subsection as a whole, with its interweaving ofthe concepts of exceptional circumstances, injustice or undue harshness andthe public interest suggests that Parliament, being mindful of humanitarianconsiderations, contemplated overstayers being allowed to remain inNew Zealand if there were humanitarian circumstances of a sufficientlyunusual kind that their remaining would not undermine the generalimportance of maintaining the integrity of the immigration system. The testwas designed to be strict but was seen as representing an appropriatereconciliation of personal humanitarian concerns with relevant aspects ofthe public interest.(Footnotes omitted.)[22] These principles are well settled and not at issue in this case.[23] It is next necessary to refer to the relevant provisions controlling the functionsand processes of the Tribunal.[24] The Tribunal is established under s 217 of the Act to (inter alia) determineappeals against liability for deportation.30 It is chaired by a District Court Judge whois joined by such other lawyers as may be appointed by the Governor-General onthe recommendation of the Minister of Justice following consultation withthe Minister of Immigration.31 The Tribunal may comprise a single member or a panelfor the purpose of considering individual appeals.32 The Tribunal in this case wasa single member.29 At [24]–[25]; and UNCROC, art 3(1).30 Immigration Act, s 217(2)(a)(v).31 Section 219.32 Section 221.[25] Parliament took care to advise what it considered was the nature of the Tribunalit established under the Act. The Tribunal, according to s 218(1), is a specialist bodywhose task is to decide appeals by making findings of fact before applying the law tothem and making a determination. Further, the Tribunal is empowered to approach itstask in either an inquisitorial or adversarial way, or to adopt a combination ofthe two.33 It will, it may be inferred, be for the Tribunal to adopt in any particular casethe approach that best enables it to discharge its statutory function.[26] Section 226(1) provides that whichever approach is taken, the onus remains onthe appellant to make out his or her case:226 Proceedings on appeal or matter(1) It is the responsibility of an appellant or affected person to establishhis or her case or claim, and the appellant or affected person mustensure that all information, evidence, and submissions that he or shewishes to have considered in support of the appeal or matter areprovided to the Tribunal before it makes its decision on the appeal ormatter.[27] Consistently with the Tribunal's inquisitorial dimension, it is empowered (ofits own motion rather than by application of a party) to require the Chief Executive ofthe Ministry of Business, Innovation, and Employment to provide it with relevantinformation in relation to any appeal.34 Further, the Tribunal may choose to relywithout further inquiry on findings of credibility or fact in relation to an appellant oraffected party made by a previous Tribunal.35 Such reliance may not be challengedby the individual affected.36[28] By the terms of cl 8 of sch 2, the Tribunal can receive evidence that would beinadmissible in a court of law, although the Evidence Act 2006 applies otherwise. Andby the terms of cls 10 and 11 of sch 2, the Tribunal can direct any person authorisedby it to inspect documents, require any person including a government agency toproduce documents or other information, and may summon witnesses.33 Section 218(2).34 Section 229(1).35 Section 231(1).36 Section 231(2).[29] Section 228 provides that the Tribunal may seek information from any source.Subsection 2 contains the following important rider:228 Information Tribunal may consider(2) However, the Tribunal is not obliged to seek any information,evidence, or submissions further to those provided by the appellant orthe affected person and the Minister, the chief executive, or a refugeeand protection officer (as the case may be), and may determinethe appeal or matter only on the basis of the information, evidence,and submissions provided by those persons.[30] That said, the Act does impose some specific procedural duties on the Tribunal.The Chair must ensure that appeals are heard expeditiously.37 And the Tribunal moregenerally must determine the matters before it "with all reasonable speed".38According to s 230, if the Tribunal is provided with any information prejudicial to anappellant or affected person, and it proposes to take account of that information, itmust give that person an opportunity to consider that information and comment beforemaking its determination:230 Tribunal must disclose prejudicial information(1) Except as provided in subsection (3), the Tribunal must disclose tothe appellant or affected person, and give the appellant or affectedperson an opportunity to rebut or comment on, information ormaterial that—(a) is provided to the Tribunal by a source other than the appellantor affected person; and(b) is or may be prejudicial to the appellant or affected person;and(c) the Tribunal intends to take into account in determiningthe appeal or matter.(2) The Tribunal must set a reasonable time within which the appellant oraffected person may rebut or comment on the information or material.(3) Subsection (1) does not require the Tribunal to disclose anyinformation or material if—(a) the disclosure would be likely to endanger the safety of anyperson; or37 Section 223.38 Section 222(1).(b) it is classified information that the Tribunal must keepconfidential and must not disclose under section 259.(4) The Tribunal must, however, notify the appellant or affected personof the fact of any non-disclosure on the grounds specified insubsection (3).Submissions[31] In relation to the first question of law, Mr Stephen for the Minister argued that,once the Tribunal considered the information contained in the 16 October 2015 emailfrom counsel, the Tribunal was entitled to give it no weight because as a matter ofsettled principle all matters of weight are for the assessment of the Tribunal.[32] Mr Stephen argued that the Judge was in error when he pointed to three mattersthat, in the Judge's view, took the case outside established principle:39(a) Olivia is a New Zealand citizen;(b) the information provided was consistent with information the Tribunalhad already received in an earlier case; and(c) the Tribunal referred to no evidence contrary to the position outlined inthe information.[33] First, Mr Stephen accepted that, as a New Zealand citizen, Olivia's interestswere to be given primary consideration. But the Tribunal had plainly applied thatstandard by carefully and separately considering her special position. It was wrong inprinciple to suggest the primary consideration "standard" dictated the weight to begiven to her interests. Second, there was no evidence from Ms Wu that repeat visaswould not be granted to Olivia even if the information in relation to the unavailabilityof Chinese citizenship was correct. Third, the position referred to in the earlier case,(Guo v Minister of Immigration,40 to which we will return below) was that Chinesecitizenship would be available once a New Zealand citizen who is a child of Chinese39 High Court decision, above n 1, at [46].40 Guo v Minister of Immigration, above n 13.citizen parents turned 18. The additional information was inconsistent with thatproposition and, to the extent of the inconsistency, unsubstantiated.[34] For Ms Wu and Mr Zhong, Mr Harrison QC re-cast the issue as one of naturaljustice. He submitted that summary rejection of the additional information when itwas provided in good faith breached the first and second respondents' natural justicerights. An opportunity ought to have been given, in light of the particular interestsinvolved, for Ms Wu and Mr Zhong to substantiate what the Tribunal dismissed asbare assertion.[35] In relation to the second question, Mr Stephen argued that the Tribunal hada discretion but no duty to seek further information in addition to that provided byMs Wu and Mr Zhong and the Chief Executive.41 In particular it was for Ms Wu andMr Zhong to prove their case,42 and the obligation was on them to ensure all relevantevidence was provided to the Tribunal.[36] Mr Stephen argued the plain words and legislative history of ss 226 and 228made the suggestion of a duty to undertake further inquiry untenable, irrespective ofwhether or not such inquiry related to "foreign law and legislative facts upon whichthe Tribunal had previously relied".[37] Mr Harrison submitted that the issue of further inquiry only arose becausethe Tribunal had (wrongly) summarily dismissed the new information asunsubstantiated. Although the Judge referred to either a duty to inquire into foreignlaw and legislative facts or to rely on them in circumstances where such material hadbeen relied on by the Tribunal in the past, Mr Harrison posited a broader and simplerapproach. Mr Harrison submitted that there was a qualified duty in these particularcircumstances to inquire and investigate where the Tribunal is faced with an obviousinformation shortfall which in fairness ought to be addressed before the appeal isfinally determined. Mr Harrison submitted that depending on the particularcircumstances of the case, the shortfall could be addressed by requiring the appellant41 Section 228(2).42 Section 226(1).or Chief Executive (or some other party) to submit further evidence, or by drawing onits own research in relation to foreign law and legislative facts.[38] It was submitted that the failure to do either of these in this case is the relevantbreach of natural justice.Analysis[39] Before addressing the specific questions, it is useful to discuss the generalpropositions of principle that apply to this case.[40] The Tribunal has a wide discretion to adopt its own procedures. As discussed,it can choose to be adversarial and put the appellants to proof or it can be inquisitorialand undertake its own investigation into the merits of the case before it.43 It can alsochoose to play both roles in a single appeal.44 The Tribunal is accorded this relativefreedom because it functions under pt 7 as a "specialist body" whose first task is tomake "findings of fact" before applying the relevant law to them and reachingthe necessary determinations.45 All of this is, of course, subject to the proceduralconstraints expressly provided in the Act, or implied by its purpose, or required bygenerally applicable principles of administrative law.[41] It is unquestionably the position that Ms Wu and Mr Zhong were responsiblefor making out their case before the Tribunal and, except perhaps in the exceptionalcircumstances referred to in Ye,46 that of their children, including Olivia.47[42] It is also the case, as we have noted, that, in accordance with its inquisitorialdimension, the Tribunal can seek information from any source.48 But it is expresslyunder no obligation to do so.49 It is fully entitled to restrict its inquiry to the material43 Immigration Act, s 218(2)(a) and (b).44 Section 218(2)(c).45 Section 218(1).46 Ye v Minister of Immigration, above n 4, at [27]. See also [48]–[50] and [53]. We acceptthe submission of Mr Harrison that the Act post-dated Ye and was designed to reverse its effect inrelation to immigration officers, but no relevant amendments were made to the Tribunal'spredecessor's power — that is the Removal Review Authority. See Supplementary Order Paper2009 (32) Immigration Bill (132–2) (explanatory note).47 Immigration Act, s 226(1).48 Section 228(1).49 Section 228(2).provided by the appellant, the Chief Executive, the Minister, or a refugee andprotection officer.50 This in our view is perfectly clear on the plain words ofthe applicable provisions and it is unnecessary to mine the legislative history of s 228to address any doubt about that proposition.[43] Mr Stephen responsibly accepted that the Tribunal cannot be faulted foraccepting Ms Wu's new information for consideration after the conclusion ofthe appeal hearing. Clause 8 of sch 2, and ss 226 and 228 required the Tribunal toreceive and consider any information, evidence or submission provided by Ms Wu orMr Zhong as long as it was of assistance in the Tribunal's opinion — a phrase thatmust be taken to mean relevant to the exercise of the Tribunal's discretion.51[44] The Tribunal in this case adopted an approach that was both inquisitorial andadversarial.[45] This may be seen in the response to a separate ground of appeal advancedbefore the Tribunal. The ground was that Ms Wu and Mr Zhong could be penalisedin China because Olivia was their second child.52 In relation to that matterthe Tribunal made its own inquiries.53 It cited and relied on a 2015 article inthe New York Times.54 As far as we can tell this article was not formally adduced inevidence. It reported that the long-standing one child policy in China had beenreplaced with a two-child policy. There does not appear to have been a supportingaffidavit from a relevant expert or official substantiating the report.[46] But in relation to Olivia's immigration status, the Tribunal adopted anorthodox adversarial approach, referring to the new information from Ms Wu asunsworn, unsubstantiated and unsupported by submissions from counsel.55 TheTribunal chose to give it no weight accordingly.5650 Section 228(2).51 Schedule 2, cl 8.52 IPT decision, above n Error! Bookmark not defined., at [74].53 At [75].54 At [75].55 At [72]–[73].56 At [73].Except for the context we are about to address, the Tribunal appears at first glance tohave conformed with its statutory requirements.The Guo decisionAs we have seen, it transpired that the Tribunal had in fact heard evidence and reachedrelevant conclusions on this very point two years and four months earlier inGuo v Minister of Immigration.57 The member who sat as the Tribunal on the decisionchallenged before us, was one of the three members of the panel in the Guo case.In that case, expert evidence was given by Dr Anne-Marie Brady, an AssociateProfessor of Political Science at the University of Canterbury. Dr Brady spoke fluentMandarin and visited China regularly.58 Her evidence related in part to the impacton New Zealand citizen children of deportation to China. The Tribunal summarisedthe relevant aspect of her evidence as follows:59(j) Foreign passport-holding children will not have a hukou,the internal "passport" that carries certain entitlements. They willhave to regularly reapply for visas to allow them to live with theirparents. As adults, they would encounter barriers to, or discriminationin, access to tertiary education, buying property, opening bankaccounts, owning shares or starting a business, getting married andobtaining access to militarily-sensitive areas or buildings.(k) Foreign passport-holding children would not have an identitycard, exposing them to the risk of detention by the police.[47] The Tribunal in Guo also undertook its own research as it is fully entitled todo. It referred in its reasons to the Australian Commonwealth Refugee ReviewTribunal's Research Response which it cited as China CHN31574.60 The paper isdated 13 April 2007. This research summary was prepared by that Tribunal's CountryResearch Section on the basis of publicly accessible information. It addresseda number of (probably) common issues that arise in relation to Chinese immigrationlaw and policy.57 Guo v Minister of Immigration, above n 13.58 At [56].59 At [62(j) and (k)].60 At [160], citing Refugee Review Tribunal (Australia) RRT Research Response: China (13 April2007).[48] One of the questions asked in the document was: "[w]hat is the Chinesegovernment's position in relation to children born overseas to Chinese nationals?"The paper summarised the position as follows:61The available information suggests that children born overseas to Chinesenationals who are returning to China are generally welcomed. This especiallyapplies to the overseas-born children of returning students or professionals.According to an IRB report, a university anthropologist who has researchedthe subject of family planning in China told the US Citizenship andImmigration Services that "[i]n general, people who return to China fromabroad are actively welcomed back to the 'motherland', and children bornoutside China largely forgiven."Regarding nationality of children born overseas to Chinese nationals,according to Liu Huawen:The Nationality law of PRC stipulates that any person born in Chinawhose parents are both Chinese nationals or one of whose parents isa Chinese national shall have Chinese nationality; moreover, anyperson born abroad whose parents are both Chinese nationals orone of whose parents is a Chinese national shall have Chinesenationality...[49] The Tribunal in Guo, drawing the evidence together, then concluded asfollows:[160] The evidence before the Tribunal suggests that Ellen will be able tostay in China on a series of visas (if she wishes to retain her New Zealandcitizenship) or obtain Chinese nationality; see Refugee Review TribunalResearch Response China CHN31574 (13 April 2007). We accept that shecannot obtain Chinese citizenship without relinquishing her New Zealandcitizenship, which she can only do on attaining the age of 18 years.The conclusions reached here appear to be a combination of the Tribunal's findingsabout the evidence of Dr Brady, the advice in China CHN31574 and the Tribunal'sown knowledge that (it seems) China does not tolerate dual citizenship. This meantthat Ellen (the child in that case) would be required to relinquish her New Zealandcitizenship upon reaching 18 years in order to obtain Chinese citizenship.61 At [3].Was the decision-making process procedurally fair?[50] In light of the cross-over in membership it is very likely indeed thatthe Tribunal in the current appeal had the information from Guo in mind when itreached its view of the position with respect to Olivia. If so it is, with respect,unhelpful that the Tribunal did not grapple with the substance of the informationMs Wu provided but chose instead to reject it because it lacked appropriate formalityand was unsupported by legal submissions or (we assume) other documentation.If the Tribunal was really minded to rely in this appeal on inferences it drew fromDr Brady's evidence, China CHN31574 and its own assessment in Guo, it needed tosay so.[51] If it had, a procedural question would then have arisen as to whether Ms Wuand Mr Zhong should have been afforded an opportunity to respond to informationprovided to the Tribunal from sources other than the parties before it orthe Chief Executive. One possible source of such obligation may be found in s 230of the Act. It will be recalled that, by the terms of s 230, prejudicial informationprovided to the Tribunal from sources other than the parties before it, and which itintends to take into account, must be disclosed. Further, a reasonable time must beprovided to the parties to respond to it.62[52] An alternative source would be an analogous general fairness obligation todisclose prejudicial material not otherwise known to the appellants, before relying onit. This obligation is referred to in Lal v Removal Review Authority, a case that arosein the context of a humanitarian appeal ground under the Immigration Act 1987.63The question McGechan J in that case posed was whether procedural fairness couldever oblige the Removal Review Authority (the Authority), as it then was, to point outa flaw in the appellant's appeal and to provide an opportunity to rectify it, even thoughthe Authority had a broad discretion as to whether to invoke its inquisitorial powers.64The Judge found that "[t]he vision of the [Authority] preferring expediency to justoutcome, in cases where the latter readily can be safeguarded, is not an attractive62 Immigration Act, s 230(2).63 Lal v Removal Review Authority HC Wellington AP95/92, 10 March 1994.64 At 21.one."65 Similarly, in Ye, the Supreme Court was prepared to accept that the Tribunalcould, in some circumstances, be obliged to make its own inquiries, ifthe circumstances and interests involved justified it.66[53] We acknowledge, as did the Judge in Lal and the Supreme Court in Ye, that itcannot be the Tribunal's responsibility to give notice of every reservation or concernthat it may have about an appeal or to provide appellants with iterative opportunitiesto marshal further evidence to meet those concerns.67 Not only would that beimpractical given the workload of the Tribunal, it would also be inconsistent withthe statutory provisions already traversed. The proposition is a narrower one than that,and necessarily a matter of fact and degree in light of context and the requirements ofjustice.[54] To the extent that the Tribunal may be taken to have considered informationprovided to it by witnesses in a different appeal, we consider s 230 applied.We acknowledge this is an extension of the manner in which s 230 is usuallydeployed.68 However, if there is any doubt about whether information obtained ina separate appeal was "provided" for the purposes of s 230, the statutory context,including the existence of s 230, means that the Tribunal was subject to an analogousobligation in any event, as a matter of procedural fairness.[55] It does not seem procedurally fair to rely on information obtained as aninquisitor (for example China CHN31574), and then, adopting an adversarialapproach, reject information inconsistent with it, not because of the inconsistency, butbecause it is unsworn and unsubstantiated. Such a process is unreasonably opaque.65 At 22.66 Ye, above n 4, at [27] applying the materially similar ss 18F(2) and 129P of the Immigration Act1987 in relation to the Residence Review Board and Refugee Status Appeals Authority; and n 46above.67 Lal v Removal Review Authority, above n 63, at 24; and Ye, above n 4, at [27]. See alsoDO v Immigration and Protection Tribunal [2016] NZHC 3158 at [65]–[66].68 Authorities have generally applied s 230 in circumstances where information was received fromthe police, Immigration New Zealand, family members or anonymous sources, not the Tribunalitself. See for example EG v Immigration and Protection Tribunal [2018] NZHC 1653; VT (SkilledMigrant) [2018] NZIPT 204560; Chand [2017] NZIPT 503489; AT (Afghanistan) [2017] NZIPT502986; Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3NZLR 721; and KO (Partnership) [2015] NZIPT 202214.Whether inquisitorial or adversarial, it is a basic requirement that the Tribunal mustbe transparent.[56] Furthermore, there is a troubling potential incongruity between the newinformation from Ms Wu and the basis for its rejection in the Tribunal's reasons. It isnot clear whether Ms Wu was suggesting Olivia could never become a Chinese citizenor simply that she would have to wait until she had turned 18 to make that election.If the new information was intended to convey that Chinese immigration law or policyhad changed since Guo, and this could be substantiated with further evidence, thatwould have gone to the core of the Tribunal's reasoning with respect to Olivia.Given that this could have been readily clarified by an exchange of emails withMs Wu, the prospect that the Tribunal might be allowed to make such a fundamentalerror without correction is, to use McGechan J's words, "not an attractive one".69[57] If on the other hand, Ms Wu's suggestion had merely been that Olivia couldnot get Chinese citizenship until 18, and in the meantime would suffer the burden ofrepeated applications for visitor visas, the Tribunal could have rejected that evidencewithout criticism, using the reasons adopted in Guo.[58] The ambiguity is unsatisfactory, even in light of the obligation on appellantsin s 226(1) of the Act to establish their case. Furthermore, as we have said,the additional step the Tribunal could have taken to clarify matters was notburdensome.[59] A further possibility is that the information from Guo had no bearing onthe Tribunal's decision in this case. The Tribunal member who was a member ofthe panel in Guo might simply have forgotten about the relevant information obtainedin that earlier decision. If so, that, in our view, would also be unsatisfactory.70[60] We agree with Palmer J that the information upon which the Tribunal relied inGuo was a relevant consideration for the Tribunal in this case and had to be taken into69 Lal v Removal Review Authority, above n 63, at 22.70 This is especially so given the Tribunal referred at [96] of the IPT decision, above n 2, tothe Supreme Court's decision in Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR248 as authority for a different proposition.account.71 It was, of course, for the Tribunal to decide whether to accept thatinformation as conclusive or to use its inquisitorial powers to make further enquiriesin light of the new information provided by Ms Wu so as to determine whether the Guoinformation was still correct. The point is that the Tribunal had to make that calltransparently and failed to do so. As the Supreme Court noted in Ririnui v LandcorpFarming Ltd, consistency of treatment is an "important principl[e]" of publicadministration.72 That is, similar cases should expect to be treated similarly anddifferent outcomes should be based upon the existence of distinguishingcharacteristics. Implicit in that is a requirement that reasoning applied to resolve likecases should also be generally consistent. It would be inconsistent for the Tribunal torely on specific information to support findings about a New Zealand citizen child'simmigration status in China in Guo but not to do so in the present case whosecharacteristics are materially similar.[61] Once again, this approach to decision-making is too opaque.Conclusion[62] It will be seen that although we have come to the same result as the High Court,we have done so for different reasons. In particular in our view, this is not a case abouta duty to inquire into foreign law or "legislative facts".73 Nor is it necessarily a caseabout failure to properly consider the new information. Rather, this is a case abouttwo obligations. First the duty to provide proper reasons applied consistently inmaterially similar cases. Second, where those reasons include reliance on prejudicialinformation provided to or obtained by the Tribunal outside the confines of the appeal71 High Court decision, above n 1, at [66].72 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [93].73 See K Davis "An approach to problems of evidence in the administrative process" (1942) 55 HarvL Rev 364 at 402–410. This is not a case in which the "legislative facts" referred to in Guo wouldnecessarily have helped the appellants. The Tribunal in Guo relied on the paper of the RefugeeReview Tribunal (Australia), above n 60, which found that "children born overseas to Chinesenationals who are returning to China are generally welcomed" and "shall have Chinesenationality". Guo adopted these findings at [160]–[161] to support the conclusion that the childin that case could remain in China on a series of visas (if she wished to retain New Zealandcitizenship) or could obtain Chinese nationality. Relying explicitly on these "legislative facts" isunlikely to have yielded a different result in the present case where the real question is whetherthese "legislative facts" are no longer correct as China's position on the status of New Zealand-citizen children has changed.before it, the prior obligation to disclose that information and to allow the appellanttime for comment.[63] It may seem counter-intuitive to require the Tribunal to have regard toa previous finding that would appear to support the conclusion now challenged.But such requirement is decisive in this case because being transparent would havetriggered the procedural safeguard of providing Ms Wu and Mr Zhong an opportunityto comment on the finding and its grounds. In the end we have come to agree withMr Harrison that the Tribunal's error was in failing to accord Ms Wu and Mr Zhongnatural justice.Result[64] The appeal is dismissed.[65] We have fashioned our answers to the questions posed as follows in light ofthat conclusion:(a) Whether the High Court erred in its finding that the Tribunal "was notlegally able to accord no weight to the only information it apparentlyhad about a New Zealand citizen child's citizenship status in thecountry to which its decision would send her".No. The High Court was correct to find the Tribunal erred by failingto accord any weight to the information provided by Ms Wu inthe particular circumstances of this case. The Tribunal was required toconsider that information and, if it chose not to rely on it because it wasinconsistent with other information previously available to it, it wasrequired to disclose that other information and provide the first andsecond respondents an opportunity to respond to it before coming to afinal decision.(b) Whether the Tribunal was obliged, notwithstanding s 228(2) ofthe Immigration Act 2009, "to seek any information", including"foreign law and legislative facts", further to that provided to it bythe persons specified in s 228(2) of that Act.No, but the lack of such obligation was immaterial. The Tribunal wasobliged to act consistently when assessing the likely treatment in Chinaof a New Zealand citizen who was the child of parents deported to thatcountry. The view the Tribunal expressed in Guo v Minister ofImmigration about that issue was a relevant consideration in this appealand the Tribunal was required to have regard to it. If new informationprovided by the appellants suggested that Guo was no longer correct,but the Tribunal intended nonetheless to follow it, the Tribunal wasrequired to disclose that intention and to give the first and secondrespondents an opportunity to comment further.[66] The case is remitted to the Tribunal for reconsideration of the new informationin accordance with this judgment.[67] The appellant must pay the first and second respondents one set of costs fora standard appeal on a band A basis and usual disbursements.Solicitors:Crown Law Office, Wellington for AppellantMarshall Bird & Curtis, Auckland for First and Second Respondents