MINISTER OF IMMIGRATION v Q [2020] NZCA 288

MINISTER OF IMMIGRATION v Q [2020] NZCA 288 [22 July 2020]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE RESPONDENT AND OF HER CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA355/2019[2020] NZCA 288BETWEEN MINISTER OF IMMIGRATIONAppellantAND QRespondentHearing: 11 June 2020Court: Kós P, French and Goddard JJCounsel: I C Carter and E G R Dowse for AppellantNo appearance for RespondentA M Toohey as counsel assisting the CourtJudgment: 22 July 2020 at 9 amJUDGMENT OF THE COURTA The appeal is allowed.B The respondent's application is remitted to the Immigration and ProtectionTribunal to be reconsidered in light of this judgment.C No order for costs is made.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Section 207 of the Immigration Act 2009 provides:1207 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.(2) In determining whether it would be unjust or unduly harsh to deport fromNew Zealand an appellant who became liable for deportation undersection 161, and whether it would be contrary to the public interest to allowthe appellant to remain in New Zealand, the Tribunal must have regard to anysubmissions of a victim made in accordance with section 208.[2] It is common ground that:(a) Ms Q, the respondent, did not commit (and did not know of)the immigration fraud by her husband that resulted in her gainingresident status; and(b) Ms Q's lack of culpability is relevant to the assessments made unders 207(1)(a) and (b).[3] But at what point in the s 207(1)(a) analysis may Ms Q's non-culpability beconsidered? Can non-culpability be part of the "exceptional circumstances ofa humanitarian nature"? Or is it relevant only to the next step: whether it would beunjust or unduly harsh for her to be deported?[4] That is what we must decide. It is a relatively short point, but it has generatedsome confusion in the cases.1 We refer to the Immigration Act 2009 as the 2009 Act hereafter.Background[5] Ms Q's husband came to New Zealand from China in 2004 on a student visa.His mother joined him. Based on the mother's partnership with a New Zealand citizen,they were granted residence in 2009. Ms Q met the son when he returned to China onholiday. She travelled to New Zealand in 2010 to meet with him and they marriedhere. He supported her application for residence made in September 2011 underthe Family (Partnership) category. She was granted residence in August 2012.She became a permanent resident in 2013. That same year a son was born tothe couple. He is a New Zealand citizen by birth.[6] Ms Q became liable for deportation from New Zealand because, pursuant tos 158(1)(b)(ii) of the 2009 Act, the Minister determined that false evidence had beenprovided in support of her residence application by the husband. Ms Q asserted shehad no knowledge of her husband's fraud and (due to her limited English languageabilities) had relied on him to complete her residence application. Ms Q's husband,who admitted his fraud, supported this assertion. Because of s 158(1A), that made nodifference to her liability for deportation.[7] Ms Q appealed the finding that she was liable for deportation tothe Immigration and Protection Tribunal on humanitarian grounds under s 207 ofthe 2009 Act. That claim succeeded, and the Minister's appeal to the High Court wasdismissed.2 Her husband, also being liable for deportation, sought refugee status.That claim failed and he has returned to China.[8] Ms Q has since left New Zealand with her son and joined her husband in China.Despite that the Crown submits the appeal is not moot. Ms Q retains live rights inrespect of her residence status which she may yet exercise. Because Ms Q did notparticipate in this appeal, Ms Toohey was appointed counsel assisting the Court,to present arguments contradicting those of the Crown. At the hearing we expressedour appreciation of the standard of submissions we received from counsel.2 [Q] v Minister of Immigration [2017] NZIPT 600408 [Tribunal decision]; and Minister ofImmigration v Q [2018] NZHC 3173 [High Court judgment].Legislative context[9] This appeal concerns the interpretation of New Zealand legislation governingthe expulsion from New Zealand of persons who are not lawfully present in thiscountry. The legislation prescribes the circumstances in which such expulsion mayoccur, and provides for certain safeguards. The legislation reflects New Zealand'sinternational obligations in this field.3 In some cases the interpretation ofthe legislation is informed by reference to relevant international obligations. But inthis case, while referring to relevant international obligations in general terms, neithercounsel sought to suggest they provided a signal of any strength in relation to the issuewe need to determine in relation to s 207(1)(a). So we focus on the domesticlegislative history.[10] Humanitarian appeals were first provided for by a 1977 amendment tothe Immigration Act 1964.4 Section 20A(2) provided a humanitarian test similar tothe current s 207(1)(a): "the Minister may make an order [that the appellant not bedeported] if he is satisfied that, because of exceptional circumstances ofa humanitarian nature, it would be unduly harsh or unjust to deport the offender fromNew Zealand".[11] The Immigration Act 1987 provided that the Minister might revoke a residencepermit if "the permit was procured by fraud, forgery, false or misleadingrepresentation, or concealment of relevant information".5 If the relevant fraud was theact of another, it was not necessary to show knowledge or intention of the visa holderfacing revocation.6[12] The 1987 Act also retained the idea of humanitarian appeals, but three differenttests applied. An overstayer's appeal to the Removal Review Authority might be3 Including New Zealand's obligations under the International Covenant on Economic, Social andCultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force3 January 1976); the International Covenant on Civil and Political Rights 999 UNTS 171 (openedfor signature 16 December 1966, entered into force 23 March 1976); and the United NationsConvention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989,entered into force 2 September 1990).4 Immigration Amendment Act 1977, s 6.5 Immigration Act 1987, s 20(1)(b). We refer to the Immigration Act 1987 as the 1987 Act hereafter.6 See, for example, Rajan v Minister of Immigration HC Auckland M1151/94, 31 July 1995 at 10;and Man v Attorney-General HC Wellington AP39-90, 14 May 1993 at 8.upheld where "there are exceptional circumstances of a humanitarian nature thatwould make it unjust or unduly harsh for the person to be removed from New Zealand,and it would not in all the circumstances be contrary to the public interest to allowthe person to remain in New Zealand".7 A person whose residence permit was revokedcould appeal to the Deportation Review Tribunal on grounds that "it would be unjustor unduly harsh for the appellant to lose the right to be in New Zealand indefinitely".8In the case of a person subject to a deportation order on the grounds of criminaloffending, it would have to be shown that it "would be unjust or unduly harsh to deportthe appellant from New Zealand, and that it would not be contrary to the public interestto allow the appellant to remain in New Zealand".9[13] The 2006 ministerial review of the 1987 Act expressed the view thatthe humanitarian test applying to overstayers was "well established as a tight test thatrequires the humanitarian circumstances to be exceptional and the public interest to betaken into account".10 It was noted that 10 to 20 per cent of such applicationssucceeded in any particular year. The paper proposed a single test based on the"overstayer" test discussed above.11 At that stage it was suggested that whatconstituted an "exceptional circumstance" would not be set out in legislation "as thiswould create a de facto policy. Exceptional circumstances must be assessed on acase-by-case basis, taking into account the particular situation of the individual."12[14] These changes were reflected in the Immigration Bill 2007,13 andparliamentary debates when the Bill was introduced suggest they were designed tostreamline the approach to immigration appeals.14 There was however no particulardiscussion of the test to be applied, and with which we are here concerned.7 1987 Act, s 47(3).8 Section 22(5).9 Section 105(1).10 David Cunliffe Immigration Act Review Discussion Paper (Department of Labour, April 2006) at[432].11 At [440].12 At [441].13 Immigration Bill 2007 (132-1), pt 7.14 See, for example, (16 August 2007) 641 NZPD 11233; and (22 September 2009) 657 NZPD 6769and 6770.[15] Section 3 of the current 2009 Act sets out its purpose, which is "to manageimmigration in a way that balances the national interest, as determined by the Crown,and the rights of individuals".15 It goes on to provide that the immigration system"provides a process for implementing specified immigration-related internationalobligations" and "establishes a specialist tribunal to consider appeals against decisionsmade under this Act and to consider humanitarian appeals".16[16] The 2009 Act pursued the same policy as its predecessor in relation tonon-culpability.17 Section 158(1)(b) made clear that knowledge or intention onthe part of the visa holder was not a prerequisite to deportation.18 It also removed theelement of ministerial discretion in fixing liability for deportation in the event of fraud(whether of the permit holder or another). A person is liable to deportation if anyinformation provided in relation to their permit application is "fraudulent, forged,false, or misleading, or any relevant information was concealed".19[17] The provision was amended in 2015 to add s 158(1A),20 stating explicitly thatliability for deportation arises whether or not the permit holder was the person whoprovided the fraudulent, forged, false or misleading information or concealedthe relevant information. The High Court has observed, correctly, that "[t]hisamendment is a fairly direct indication in the statute that knowledge is not anecessary element of the grounds for issuing a deportation liability notice."21[18] Part 7 of the 2009 Act then established a single humanitarian appeal testevidently based on the "overstayer" test in s 47 of the 1987 Act. It also establisheda single appeals tribunal, the Immigration Protection Tribunal, replacing the RefugeeStatus Appeals Authority, Removal Review Authority, the Deportation ReviewTribunal and Residence Review Board. As Ms Toohey submitted to us, the purposeof the establishment of a single statutory threshold and single appeals tribunal was to15 2009 Act, s 3(1).16 Section 3(2)(d) and (f).17 See above at [11] in relation to the 1987 Act.18 See, for example, Pal v Minister of Immigration [2013] NZHC 2070, [2013] NZAR 1240 at [46]and [50]–[51].19 2009 Act, s 158(1)(b)(i).20 Immigration Amendment Act 2015, s 42(2).21 Panchal v Minister of Immigration [2017] NZHC 2080 at [29].ensure the exceptional circumstances aspect of the test applied to all appeals, tostreamline the appellate process and to comply with New Zealand's internationalobligations.Tribunal decision[19] The Immigration and Protection Tribunal allowed Ms Q's appeal inSeptember 2017.22 In combination, the Tribunal considered Ms Q's humanitariancircumstances were exceptional: Ms Q was well-settled and established inNew Zealand, hard-working, distressed to discover the fraud and estranged from herparents and family (whom she did not believe would support her on her return toChina). It would be in her New Zealand citizen son's best interests to remain inNew Zealand as he would be guaranteed rights and benefits (such as healthcare andeducation) that would not be guaranteed to him in China without the benefit of Chinesecitizenship.23 Further, Ms Q had no knowledge of the fraud which was the basis ofher deportation liability.24 The Tribunal weighed the reasons for liability fordeportation against the exceptional humanitarian circumstances identified and wassatisfied that it would be unjust or unduly harsh for Ms Q to be deported.25 Finally, itwas not contrary to the public interest for Ms Q to remain in New Zealand.26[20] The Tribunal found that where it is clear there is no fault on the part ofan appellant, absence of fault may form part of an overall assessment of exceptionalhumanitarian circumstances. This was, it said, a context-dependent enquiry, and theweight that may be attached to each factor will vary from case to case.27Leave to appeal to the High Court[21] The Minister of Immigration was granted leave to appeal that determination ona question of law.28 The question approved was:22 Tribunal decision, above n 2.23 At [119]–[122].24 At [118] and [119].25 At [126].26 At [132].27 At [117].28 Minister of Immigration v Q [2018] NZHC 1071.Did the Tribunal err in law by considering the respondent's absence of fault asa factor relevant to its assessment of "exceptional circumstances ofa humanitarian nature" in s 207(1)(a) of the Act?High Court decision[22] In December 2018 Gendall J answered that question in the negative. The Judgefound that absence of fault alone is not a humanitarian circumstance.Such circumstance was "something which focuses on the impact of deportation onthe individual concerned", a "human welfare impact on the individual, or relatedparties, that will arise from that individual being deported".29 Absence of fault alonedid not qualify. However, once other humanitarian circumstances are established,absence of fault may be considered as a generally exceptional circumstance unders 207(1)(a), "essentially as an exacerbating feature".30 The Tribunal therefore did noterr by taking this into account.31 The Judge considered that once it is established thathumanitarian circumstances exist, absence of fault considerations could be factored inat each of the three steps in s 207(1).32[23] The Judge concluded that the Tribunal was required to assess the total pictureof the factual circumstances in making that determination. While all three stages ins 207(1) must be made out for an appeal to be successful, the three stages are not sodemarcated that they do not influence each other. Absence of fault could be consideredas an additional factor relevant to the assessment of whether the other humanitariancircumstances are sufficiently exceptional overall to make out the very high thresholdunder s 207(1)(a). This includes a consideration too of whether, in all thecircumstances, deportation would be unjust or unduly harsh and whether it would becontrary to the public interest to allow the appellant to remain in New Zealand.33Appeal[24] Mr Carter for the Minister submitted that absence of fault or non-culpabilitywas first relevant at the consideration of whether deportation would be "unjust or29 High Court judgment, above n 2, at [38] and [41].30 At [41].31 At [38]–[41].32 At [39].33 At [43]–[44].unduly harsh" in s 207(1)(a). It was also relevant in relation to the public interest testin s 207(1)(b). Absence of fault was not a "humanitarian circumstance", even giventhe broad view of that word permitted by the Supreme Court in Ye v Minister ofImmigration.34 A circumstance could not be exceptional if it was not humanitarian.The inquiry into humanitarian circumstances is an inquiry into the likely consequencesof deportation, and whether those consequences give rise to humanitarian concerns;not an inquiry into past events and the presence or absence of fault in connection withthe person's residence permit application. And in any event, absence of fault was notexceptional. The latter meant "well outside the normal run of circumstances",but absence of fault was a normal run of circumstance, expressly provided for in s 158.The three ingredients in s 207(1)(a) should have been, but were not, analysedindividually.[25] Ms Toohey, as contradictor, argued that absence of fault could establish thatdeportation would be an undeserved hardship, and was therefore concerned withhuman welfare and potentially relevant as a humanitarian circumstance.The humanitarian circumstances did not have to arise from the effect of deportationon the individual, and the High Court was too restrictive in suggesting otherwise.The better reading of s 207(1)(a) was that absence of fault was potentially relevant ina broad consideration of individual factors. A single humanitarian test for relief fromdeportation was provided, and restricting the relevant factors for consideration wasnot warranted. The balance between protecting the national interest and protectingthe rights of the individual was best achieved by a "broad and flexible approach towhat factors may be taken into account for the purposes of s 207".Discussion[26] We make five points.[27] First, the leading authorities have not found particular guidance onthe interpretation of s 207(1) in the relevant international instruments, legislativehistory or general purpose of the legislation. That purpose, as we have noted,is "to manage immigration in a way that balances the national interest, as determined34 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34], set out below at [28].by the Crown, and the rights of individuals".35 We do not think that broad spectrumaspiration gives particular emphasis to either stance advanced in relation to themeaning of s 207(1)(a). Rather, what is clear is that at the same time as it gave newemphasis to the strict liability basis for deportation, Parliament sought to engage afamiliar and materially unaltered test for humanitarian relief.[28] Secondly, it seems to us that part of the misunderstanding has arisen from theuse of labels like "ingredients", "considerations" and "limbs", which have conspiredto encourage disjunctive and erroneous analysis. In Ye Tipping J (giving the reasonsof the majority) said:[34] That brings us back to the first criterion in s 47(3) which has thefollowing ingredients: (i) exceptional circumstances; (ii) of a humanitariannature; (iii) that would make it unjust or unduly harsh for the person to beremoved from New Zealand. The need for the 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. It is unnecessary and undesirable to attempt to define thecompass of the word "humanitarian". It is unlikely to be difficult to decidewhether the circumstances of a particular case fulfil that description. If thereare exceptional circumstances of a humanitarian nature, it is then necessary todetermine whether they make it unjust or unduly harsh to remove the personfrom New Zealand.(footnote omitted)[29] The use of the expression "ingredients" does not mean that each of these is adisjunctive consideration, to be analysed separately. To do so would make no sense."Exceptional" in what way exactly? Paragraph [30] of the judgment in Ye makes itclear that that is not what the Supreme Court had in mind:[30] The subsection is drafted on the basis of two sequentialconsiderations. The first step is to determine whether there are exceptionalcircumstances of a humanitarian nature that would make it unjust or undulyharsh for the person concerned to be removed from New Zealand. If that isnot shown, the inquiry ends there and removal takes place. If it is shown thatit would, on the statutory basis, be unjust or unduly harsh to remove the personfrom New Zealand, the decision maker must move to the second inquiry.This concerns whether, despite the injustice or undue harshness, it would inall the circumstances be contrary to the public interest to allow the person toremain in New Zealand. A person seeking to avoid removal must demonstratenot only qualifying injustice or undue harshness but also that it would not be35 2009 Act, s 3(1).contrary to the public interest for them to be allowed to remain inNew Zealand.[30] The first "consideration" under s 207(1)(a) is a composite of the first andsecond "ingredients": exceptional circumstances of a humanitarian nature.To analyse the "exceptional circumstances" ingredient on its own might (or might not)invite consideration of non-culpability. But it would certainly invite consideration ofcircumstances of a non-humanitarian nature — only for those then to be eliminatedwhen the second ingredient is considered. It follows logically that the two ingredientsneed to be considered together.[31] Thirdly, the courts have repeatedly declined to be specific about what theadjectival qualification "humanitarian nature" means.36 We agree with the generalway Mr Carter put it in his submissions to us: that such circumstances "will relate to,for example, an appellant's welfare, safety or happiness". Unstated in s 207(1)(a),but recognised in some of the cases, is that the focus of the provision and itspredecessors is that these "exceptional circumstances of a humanitarian nature" mustbe the consequences or effect of the deportation.37 The provision requires acomparison of those consequences or effects with the likely position if the personconcerned is not deported. The question then is whether the adverse effects orconsequences of deportation relied upon by the applicant amount to exceptionalcircumstances of a humanitarian nature.[32] Fourthly, it follows as a matter of straightforward construction that, asGordon J noted in the High Court in Patel v Minister of Immigration:38The reason a person is made liable for deportation (or their level of culpability)is not a consequence or effect of deportation.[33] We agree with Mr Carter that absence of fault is similarly incapable ofamounting to an exceptional circumstance of a humanitarian nature, because it is nota consequence or effect of the deportation. Rather, it is a relevant consideration at thenext two stages of the inquiry:36 See above at [28].37 See, for example, Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].38 Patel v Minister of Immigration [2018] NZHC 2616 at [85].(a) Whether it would be unjust or unduly harsh for the appellant to bedeported from New Zealand — the second consideration unders 207(1)(a). This requires the court to balance the reasons whythe appellant is liable for deportation (to which absence of fault isrelevant) against the consequences for the appellant of deportation.39When engaging in this balancing exercise, the unjust or unduly harshthreshold may conceivably be reached more easily where the appellantlacks culpability.40(b) Whether it would "not in all the circumstances be contrary to the publicinterest to allow the appellant to remain in New Zealand" — unders 207(1)(b). Presence or absence of culpability is clearly relevant tothat assessment.[34] The relevance of non-culpability to those stages of analysis was conceded byMr Carter. Indeed, he accepted that it was entirely possible that the Tribunal mighthave reached the same ultimate result had it proceeded thus. It just should not haveconsidered non-culpability, prematurely, at the first stage in working out whatthe "exceptional circumstances of a humanitarian nature", consequential upondeportation, were.[35] Fifthly, both the Tribunal and the High Court (to some extent) gainedfoundation for the contrary interpretation from the decision of the Supreme Court inGuo v Minister of Immigration.41 That appeal in fact concerned whether leave shouldhave been given to appeal from the Tribunal to the High Court. In the course of itsdecision the Court observed:[10] Eligibility for deportation is usually associated with fault on the partof the person to be deported, most obviously, the commission of offences ormisrepresentations on applications for residency. In this context, the presentappeals have the unusual feature that those to be deported (Jiaxi and Jiaming)are without any fault. For this reason, it could fairly be said that thecircumstances in relation to them were "exceptional". This was accepted bythe Tribunal.39 Guo v Minister of Immigration, above n 37, at [9].40 At [21].41 See Tribunal decision, above n 2, at [116]–[117]; and High Court judgment, above n 2, at [20]–[26], citing Guo v Minister of Immigration, above n 37.(footnote omitted)However the matter in issue there was not the first consideration within s 207(1)(a) atall, but the second: whether it was unjust or unduly harsh for the appellants (who werethe innocent children of a convicted drug dealer) to be deported. That is clear fromthe record of counsels' argument,42 and from the judgment:43Whether deportation would be "unjust or unduly harsh" is to be assessed inlight of the reasons why the appellant is liable for deportation and involvesa balancing of those considerations against the consequences for the appellantof deportation. The public interest is not immaterial to the application ofs 207(1)(a) but is primarily relevant to the application of s 207(1)(b).In determining whether deportation would be unjust or unduly harsh, theprimary focus is on the personal circumstances of the person in respect ofwhom deportation is proposed and those of immediate family members whowill be affected by that person's deportation.That the issue in Guo was not the one before us is reinforced later in the judgment:[21] As noted, the Tribunal concluded that it would not be unjust or undulyharsh to deport Jiaxi and Jiaming from New Zealand. At first sight, thisconclusion appears to be a little surprising. Given that they had donenothing wrong, it is distinctly arguable that a comparatively low level ofinjustice and hardship would suffice to meet the s 207(1)(a) test.These considerations warrant careful analysis of the basis upon which thedecision was reached.Non-culpability there is directed clearly to the secondary stage consideration ofwhether it would be unjust or unduly harsh for the children to be deported fromNew Zealand. The Court continued:[23] In those circumstances we consider that there is an arguable questionwhether the Tribunal erred in law in concluding that it would not be unjust orunduly harsh to deport Jiaxi and Jiaming from New Zealand.[24] We see this question as warranting a grant of leave under s 245(3) ofthe 2009 Act given the practical significance of the issues raised as to theapplication of the "unjust or unduly harsh" test to those whose liability todeportation arises through no fault of their own.[36] The passage relied upon by the Tribunal (and to a degree by the High Court) isobiter dictum for present purposes and not authority on the issue now before this Court.42 Guo v Minister of Immigration, above n 37, at 249 and 251.43 At [9].Result[37] The appeal is allowed.[38] The respondent's application is remitted to the Immigration and ProtectionTribunal to be reconsidered in light of this judgment.[39] No order for costs being sought, none is made.Solicitors:Crown Law Office, Wellington for Appellant