HUANG v THE MINISTER OF IMMIGRATION [2020] NZHC 956

HUANG v THE MINISTER OF IMMIGRATION [2020] NZHC 956 [11 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2612[2020] NZHC 956UNDER section 245 of the Immigration Act 2009IN THE MATTER of an appeal against a decision of theImmigration and Protection TribunalBETWEEN QUANFU HUANGAppellantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 30 April 2020Appearances: S Dalley and P Sundar for the AppellantA Williams and E Cameron for the RespondentJudgment: 11 May 2020JUDGMENT OF GAULT JThis judgment was delivered by me on 11 May 2020 at 4:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors:Mr S Dalley and Ms P Sundar, Ryden and Associates, AucklandMs A Williams and Ms E Cameron, Crown Law, Wellington[1] Mr Huang seeks leave to appeal against a decision of the Immigration andProtection Tribunal (the Tribunal) dated 4 November 2019 dismissing his appealagainst liability for deportation,1 which arose following his conviction and sentenceof seven years' imprisonment on one charge of possession of a class B drug for supply.[2] Given the COVID-19 situation, the hearing took place by telephone.Factual background[3] Mr Huang is a citizen of China. He was born in Fujian province in 1984.After arriving in New Zealand in late 2007, he was granted a resident visa on27 August 2008. His wife, also originally from China, was already a New Zealandresident. They have three children, born in New Zealand in 2007, 2010 and 2013.[4] From 2008 all family members except the second child have spent significantamounts of time in China as well as New Zealand. The family were often apart.Mr Huang spent substantially more time in China than his wife. Two of their threechildren spent a substantial part of their early childhood living with their paternalgrandparents in China. In May 2015 Mr Huang moved out of the family home due torelationship difficulties.[5] In May 2016 Mr Huang was arrested during a Police investigation into theillegal importation of 200 kilograms of ephedrine into New Zealand. He eventuallypleaded guilty to one charge of possession of a class B drug for supply, and on29 September 2017 he was convicted and sentenced to seven years' imprisonment.[6] As a result of his conviction and sentence, Mr Huang became liable fordeportation under s 161(1)(c) of the Immigration Act 2009 (the Act). On 22 March2018 the Minister signed a deportation liability notice, which was served on Mr Huangon 23 April 2018. On 11 May 2018 Mr Huang lodged a humanitarian appeal to theTribunal against his deportation liability.21 Huang v Minister of Immigration [2019] NZIPT 600505.2 Section 206(1)(c) of the Act.Tribunal decision[7] The Tribunal's decision of 4 November 2019 determined that:(a) there were exceptional circumstances of a humanitarian nature presentin the case predominantly relating to Mr Huang's wife and theirchildren; but(b) balancing Mr Huang's offending against those exceptionalhumanitarian circumstances, it was not unjust or unduly harsh for himto be deported.[8] Mr Huang's issues with the Tribunal decision relate to this latter balancingexercise.Leave threshold[9] Under s 245 of the Act, appeals to the High Court are limited to questions oflaw. They may only be brought with leave. In determining whether to grant leave, theCourt must have regard to whether the question of law involved in the appeal is onethat by reason of its general or public importance or for any other reason ought to besubmitted to the High Court for its decision.3[10] In Machida v Chief Executive of Immigration New Zealand, the Court ofAppeal said:4[8] In its practical application, s 245 requires an applicant to identify aseriously arguable question of law which either:(a) has importance extending beyond the particular case (whichis what "general or public importance" entails); or(b) for some other reason, warrants a decision from the HighCourt.Although category (b) is open ended, we agree with a series of decisions inthe High Court which have held that it would only be in an exceptional caseinvolving individual injustice to such an extent that the Court simply could3 Section 245(3).4 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.not countenance the Tribunal's decision standing, that this alternativerequirement could be met.5[11] In Minister of Immigration v Jooste,6 the Court of Appeal stated that the testunder s 245(3) is similar to that applying to second appeals to the Court of Appealunder s 67 of the Judicature Act 1908, citing Waller v Hider.7 In that case, the Courtof Appeal had stated that upon a second appeal, the Court is not engaged in the generalcorrection of error. Its primary function then is to clarify the law and to determinewhether it has been properly construed and applied by the Court below.8Discussion[12] The basis on which the Tribunal is to determine a humanitarian appeal isgoverned by s 207 of the Act, which relevantly provides:207 Grounds for determining humanitarian appeal(1) The Tribunal must allow an appeal against liability for deportation onhumanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian naturethat would make it unjust or unduly harsh for the appellant tobe deported from New Zealand; and(b) it would not in all the circumstances be contrary to the publicinterest to allow the appellant to remain in New Zealand.[13] Mr Dalley, for Mr Huang, submitted there are two seriously arguable errors oflaw by the Tribunal, both relating to s 207(1)(a) of the Act:5 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19(c)]; Nabou v Minister ofImmigration [2012] NZHC 3365, [2013] NZAR 155 at [8]-[9]; Cao v Immigration and ProtectionTribunal [2014] NZHC 259 at [12]; Guo v Immigration and Protection Tribunal [2014] NZHC804 at [54]-[55]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [9]; Liu vMinister of Business, Innovation & Employment [2014] NZHC 3074 at [9]-[10]; Fu v ChiefExecutive of the Ministry of Business, Innovation & Employment [2014] NZHC 3346 at [23]; CVv Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594 at [78]; Ali vMinister of Immigration [2015] NZHC 1794 at [32]; and Chan v Minister of Immigration [2015]NZHC 2036 at [26].6 Minister of Immigration v Jooste [2014] NZCA 23 at [5]. See also Hai v Minister of Immigration[2019] NZCA 55 at [36].7 Waller v Hider [1998] 1 NZLR 412 (CA).8 At 413.(a) misapplying the Supreme Court decision in Guo v Minister ofImmigration,9 when determining whether existing exceptionalhumanitarian circumstances made it unjust or unduly harsh forMr Huang to be deported; and(b) considering the integrity of the immigration system in the second limbof s 207(1)(a), rather than separately under s 207(1)(b). Mr Dalley'sreference to the 'second limb' of s 207(1)(a) meant the balancing ofMr Huang's offending against the exceptional humanitariancircumstances identified (in the 'first limb') to determine whether itwas unjust or unduly harsh for him to be deported.Guo v Minister of Immigration[14] In essence, Mr Dalley submitted that the Tribunal erred, misapplying theSupreme Court decision in Guo v Minister of Immigration, by balancing all theexceptional circumstances of Mr Huang and his family against his offending, ratherthan balancing only his exceptional circumstances against his offending and thenseparately considering the unjustness and undue harshness of the deportation on theaffected family members. Mr Dalley submitted that unless the exercise is separatedin this way, the exceptional circumstances are diluted – the offending is effectivelydouble counted – and all visa holders found guilty of serious criminal offending wouldbe deported despite any exceptional circumstances. He submitted that it would beunjust and a breach of natural justice and the rule of law to punish the children for thecrime of another. He also submitted that including the consequences of deportationfor Mr Huang's innocent wife and children at the balancing stage amounted to takingan irrelevant matter into account.[15] I say at the outset that, however the balancing exercise is carried out, I agreethat the offending should not be double counted, as Ms Williams, for the respondent,acknowledged.9 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.[16] In Guo v Minister of Immigration, Mr Guo was convicted of importingpseudoephedrine and was served with a deportation order in 2009.10 In 2011, two ofhis children who had obtained New Zealand residence as his family members wereserved with deportation liability notices under s 158(1)(b)(ii) of the Act. The SupremeCourt granted leave to appeal against the decision of the Court of Appeal refusingleave to appeal to the High Court, but only in respect of the two children, notMr Guo.11 The Tribunal had not considered in any detail the unusual possibility ofpermitting the two children to stay in New Zealand despite the absence of their parentsgiven there was an older (adult) sibling who was a New Zealand citizen.[17] Subsequently, the Supreme Court allowed the children's appeal and grantedthem leave to appeal to the High Court under s 245 of the Act.12 In that judgment,the Supreme Court stated:13The language of s 207(1) (and similar language in other provisions relating todeportation and removal) has received considerable attention in the courts.It has been held that the expression "unjust or unduly harsh" is composite innature and that the Tribunal need not inquire separately as to whetherdeportation would be (a) unjust or (b) unduly harsh.14 Whether deportationwould be "unjust or unduly harsh" is to be assessed in light of the reasons whythe appellant is liable for deportation and involves a balancing of thoseconsiderations against the consequences for the appellant of deportation.The public interest is not immaterial to the application of s 207(1)(a) but isprimarily relevant to the application of s 207(1)(b). In determining whetherdeportation would be unjust or unduly harsh, the primary focus is on thepersonal circumstances of the person in respect of whom deportation isproposed and those of immediate family members who will be affected by thatperson's deportation.[18] Mr Dalley emphasised the words "involves" and "for the appellant" in themiddle sentence of this passage. He submitted the Supreme Court thus made itsuitably clear that the assessment of the unjust and unduly harsh component ofs 207(1)(a) involves a balancing exercise of the offending against the consequences ofdeportation for the appellant, but crucially, also includes a separate determination of10 Under the previous Immigration Act 1987.11 Guo v Minister of Immigration [2015] NZSC 76, [2015] 1 NZLR 732 at [23].12 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.13 At [9].14 See for instance Patel v Removal Review Authority [2000] NZAR 200 (CA) at 204; Esau vMinister of Immigration HC Wellington AP320/98, 5 October 2000 at [12]; Faatafa v Minister ofImmigration HC Christchurch CIV-2005-409-1494, 17 October 2005 at [50]; and Pal v Ministerof Immigration [2013] NZHC 2070, [2013] NZAR 1240 at [57]-[59].the unjustness and harshness of deportation on the affected immediate familymembers.[19] In Guo the Supreme Court was dealing with the deportation liability of thechildren, who were subject to deportation as a result of Mr Guo's non-disclosure ofhis involvement in drug importation when he applied for their residency. The childrenhad done nothing wrong. In that context, the Supreme Court expressed concern aboutthe Tribunal's references to the proposition that Mr Guo's offending could not bewithout consequences, which did not appear material to s 207(1)(a) when consideringthe deportation of the children.15 But the context is quite different here. This caseconcerns only the deportation liability of the offender.[20] The Supreme Court did contemplate the situation where deportation can beunjust and unduly harsh to a third party. The Court referred to Mr Guo's earlierreliance on hardship which the children would suffer, stating that such argumentscould carry Mr Guo only so far, because:16(a) The s 207(1)(a) exercise must focus on the personal circumstances ofthe person to be deported and in particular whether the deportation ofthat person would be unjust or unduly harsh. For this reason a findingas to a high level of hardship for Jiaxi or Jiaming if Mr Guo weredeported would not in itself necessarily justify the conclusion that MrGuo's deportation was therefore unjust or unduly harsh; in particularhaving regard to his high level of culpability.(b) That deportation would be unjust or unduly harsh to a third partywould not be determinative if the conclusion was reached under s207(1)(b) that deportation of Mr Guo was nonetheless required in thepublic interest. It would thus have been open to the Tribunal to haveupheld the deportation of Mr Guo (on the basis of either or both ofs 207(1)(a) and (b)) but to have allowed the appeals of Jiaxi andJiaming.[21] Read as a whole, and remembering that Mr Guo himself had not been grantedleave to appeal, I do not consider this passage supports Mr Dalley's submission in thiscase. As indicated, the Supreme Court was dealing with a different situation involvingthe deportation liability of innocent children. In cases involving the deportationliability of offenders, the consequences of deportation on family members of an15 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [22(c)].16 At [12].offender are relevant and the effect on children is of particular importance givenNew Zealand's international obligations.17 Where relevant, these effects are includedand assessed in s 207(1)(a) as part of determining whether it would be unjust or undulyharsh "for the appellant" to be deported. Otherwise, there would be no place for themto be considered within the terms of s 207(1)(a).[22] Nor do I consider the Supreme Court in Guo v Minister of Immigration wassaying that, in a case concerning only the deportation liability of the offender,the Tribunal must balance only the offender's exceptional circumstances against hisor her offending, and then separately determine the unjustness or undue harshness ofdeportation on affected family members. There is no room for such a separatedetermination in s 207(1)(a). That would be a substantial gloss on its terms.[23] Thus, I do not accept the submissions that the Tribunal erred by balancing allthe exceptional circumstances of Mr Huang and his family against his offending, thatthis involves 'punishing' his innocent family members for another's offendingcontrary to the rule of law, nor that including the consequences of deportation for hisinnocent wife and children amounted to taking an irrelevant matter into account.Section 207(1) does not mandate separate assessment of the consequences for thirdparties outside the balancing exercise. I do not consider there is inherent dilution ofexceptional circumstances or double counting of the offending unless the assessmentis separated in that way. It does not mean that all visa holders found guilty of seriouscriminal offending would be deported despite any exceptional circumstances. Rather,if the proposed determination of the unjustness and harshness of deportation onaffected family members were required separately from the balancing exercise, sucha finding would render the balancing exercise redundant and the offender could onlybe deported if the s 207(1)(b) public interest limb applied.[24] As indicated, where relevant, the consequences of deportation for familymembers are to be assessed as part of the exceptional circumstances under s 207(1)(a).In this case involving only the deportation liability of Mr Huang, I consider the17 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24]-[25], referring to theUnited Nations Convention on the Rights of the Child. See also O'Brien v Immigration andProtection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at [32].exercise involves balancing all the exceptional circumstances of Mr Huang and hisfamily against his offending. The outcome should not be any different whether theircircumstances are considered together or separately.[25] In this case, the Tribunal prefaced its consideration of family interests withreference to New Zealand's international obligations.18 The Tribunal then clearlyconsidered the impact of deportation on Mr Huang's wife and children, and concludedthere were exceptional circumstances.19 The Tribunal accepted they would notaccompany Mr Huang to China if he were deported.20 The Tribunal considered thathis wife would find it difficult raising the children without his emotional, practical andfinancial support and would suffer distress and sadness,21 and that the children'sdevelopment could be expected to be adversely affected by the loss of contact with aparent.22 They would lose close daily physical contact with their father as they growup.23 Unlike Guo, as the wife and children were not liable for deportation, there wasno issue about their absence of fault. In the context of this case, it was unnecessaryfor the Tribunal explicitly to record their absence of fault – the Tribunal did not suggestthey were at fault.[26] Balanced against those impacts, the Tribunal considered there were mitigatingfactors going to whether these exceptional circumstances made deportation unjust orunduly harsh – Mr Huang's previous absences, the support of his wife's family andthe ability to visit him for extended periods in China.24 As Mr Dalley appreciates, onan error of law appeal Mr Huang cannot realistically challenge the weighting in theTribunal's factual assessment.[27] I conclude there is no seriously arguable question of law as to whether theTribunal erred by misapplying s 207 as interpreted by the Supreme Court in Guo.18 Huang v Minister of Immigration [2019] NZIPT 600505 at [80].19 At [82]-[89] and [93]-[94].20 At [82].21 At [87] and [94].22 At [88].23 At [93].24 At [93]-[96].Integrity of the immigration system[28] I turn to the second question of law raised, that the Tribunal erred byconsidering the integrity of the immigration system in the second limb of s 207(1)(a),rather than separately under s 207(1)(b).[29] Section 207(1)(b) contains a separate public interest requirement for theTribunal to allow an appeal, that "it would not in all the circumstances be contrary tothe public interest to allow the appellant to remain in New Zealand". This requirementonly arises if the Tribunal is satisfied there are exceptional circumstances of ahumanitarian nature that would make it unjust or unduly harsh for the appellant to bedeported.25 Here, the Tribunal was satisfied it was not unjust or unduly harsh for theappellant to be deported and so said it was unnecessary for it to consider the 'publicinterest' limb of the test.26[30] It is common ground that the effect of allowing an appellant to remain inNew Zealand on the credibility of the immigration system in the eyes of reasonablemembers of the public may be relevant to the assessment of whether it would becontrary to the public interest to allow him to remain.27[31] Mr Dalley submitted that the Tribunal, however, erroneously considered thatMr Huang's serious offending undermined the integrity of the immigration system inits s 207(1)(a) analysis. Mr Dalley acknowledged that the nature and gravity of theoffending is relevant to determining whether it is unduly harsh or unjust to deportunder s 207(1)(a), but he submitted the Tribunal went further and took into accountthe integrity of the immigration system as a specific consideration at the wrong stagein the s 207 test, that is, in the s 207(1)(a) balancing, rather than separately in relationto s 207(1)(b). He relies on [92] of the Tribunal's decision:As well as the inherent seriousness of the offending itself, there is also anelement of the undermining of the integrity of the immigration system in thecontext of this offending. The offending was a premeditated attempt by theappellant, in orchestration with others, to smuggle into this country from his25 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [30]; and Helu vImmigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [153], in relationto the previous s 47(3) which was the same in this respect.26 Huang v Minister of Immigration [2019] NZIPT 600505 at [98].27 Helu v Immigration and Protection Tribunal at [176].home country a substantial quantity of a drug which would have caused realand significant damage to the New Zealand population. For a migrant whohas been afforded the privilege of permanent residence in this country to tryto take advantage of that status to commit such offences injurious to publicwelfare does undermine public confidence in the administration of theimmigration system, and hence its integrity. Mr Cheng's submission that theintegrity of the system is best served by the application of due process, not bycreating a public perception that serious offenders can be deported, does notadequately address the issue. Depending on the circumstances, publicconfidence in the administration of the immigration system can beundermined not only by deficiencies in due process but also by a failure torespond appropriately (by deportation liability) in cases where seriousoffending has threatened public safety, such that the person is undeserving ofretaining the right to reside in this country.[32] Mr Dalley submitted this went beyond an assessment of the nature and gravityof the offending and turns the purpose of this component into a specific considerationwith negative weighting at the wrong stage of the test. He submitted that if this factorhad been correctly omitted from the s 207(1)(a) balancing, the result of the balancingmay have been different, and that the result in relation to s 207(1)(b) may also havebeen in Mr Huang's favour as the Supreme Court's decision in Helu v Immigrationand Protection Tribunal indicates that s 207(1)(b) involves both positive and negativepublic interest factors.28[33] I accept that the passage of the Tribunal's decision relied on, contained withinits s 207(1)(a) analysis of whether it would be unjust or unduly harsh for the appellantto be deported, considered public confidence in the administration of the immigrationsystem, and hence its integrity.[34] However, it does not follow that the Tribunal erred. As indicated, Mr Dalleyacknowledged that the nature and gravity of the offending is relevant to determiningwhether it is unduly harsh or unjust to deport. The integrity of the immigration systemhas some relevance to the application of s 207(1)(a) given the need to determinewhether deportation would be "unduly harsh". That is evident from Ye v Minister ofImmigration,29 which concerned removal of an overstayer under the similar statutorytest of "exceptional circumstances of a humanitarian nature that would make it unjust28 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [196].29 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.or unduly harsh for the person to be removed" in s 47(3) of the Immigration Act 1987.The majority of the Supreme Court said:30The qualification of the word "harsh", by the word "unduly", recognises thatthere may be some degree of harshness in removing an overstayer fromNew Zealand. In particular some degree of harshness may be involved wherethe removal affects New Zealand citizen children. But the statutory test iscouched on the basis of undue harshness. Undue in this context means that theharshness goes beyond the level of harshness that must be regarded asacceptable in order to preserve the integrity of New Zealand's immigrationsystem[35] Accordingly, as the Supreme Court stated in Guo, the public interest is notimmaterial to the application of s 207(1)(a) but is primarily relevant to the applicationof s 207(1)(b).31[36] The Tribunal was correct to consider the nature and seriousness of Mr Huang'soffending in the context of balancing whether it would be unjust or unduly harsh toorder deportation. That inherently involved assessing the level of harshness that mustbe regarded as acceptable in order to preserve the integrity of New Zealand'simmigration system. I consider the Tribunal's reference to Mr Huang's actionsundermining "public confidence in the administration of the immigration system, andhence its integrity", involves seeking to identify a level of harshness that must beregarded as acceptable and therefore not "unduly harsh" given the particularoffending, rather than taking into account a separate specific consideration. I do notconsider the Tribunal was taking into account an irrelevant factor in its application ofs 207(1)(a). In relation to this issue as well, as Mr Dalley appreciates, Mr Huangcannot realistically challenge the Tribunal's factual assessment of the nature andgravity of his offending on an error of law appeal.[37] As the Tribunal concluded that deportation would not be unjust or undulyharsh, the separate public interest limb in s 207(1)(b) did not arise. Where it doesarise, the Supreme Court has indicated that something more than a general concern isrequired to outweigh a finding in s 207(1)(a) that deportation would be unjust orunduly harsh.3230 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [35].31 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9]. See [17] above.32 Ye v Minister of Immigration at [31]-[32] and [35].[38] I conclude there is no seriously arguable question of law as to whether theTribunal erred by considering the integrity of the immigration system in relation tos 207(1)(a) rather than s 207(1)(b).General or public importance or any other reason[39] Even if Mr Huang had identified an arguable question of law, leave would onlybe granted under s 245 of the Act if the question raised has "general or publicimportance" or comes within the "any other reason" ground.[40] The fact that the case concerns the serious issue of deportation, and particularlydeportation impacting family bonds, does not inherently make it of general or publicimportance. But I accept that if the questions of law were arguable, they potentiallyaffect the Tribunal's approach beyond this case and might therefore be of more generalimportance – even though I consider the decision the Tribunal reached in this case wasreasonably open to it on the facts.[41] In terms of the "any other reason" ground, I do not consider this is anexceptional case involving individual injustice to such an extent that the Court simplycould not countenance the Tribunal's decision standing.33Result[42] The application for leave to appeal is dismissed.[43] The respondent is entitled to costs on a 2B basis and usual disbursements.________________________________Gault J33 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721at [8].