Song v Minister of Immigration [2016] NZHC 1828

Song v Minister of Immigration [2016] NZHC 1828 [8 August 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-2907[2016] NZHC 1828IN THE MATTER of an appeal under Section 245 of theImmigration ActBETWEEN YAYUN SONGAppellantAND MINISTER OF IMMIGRATIONRespondentHearing: 25 May 2016Appearances: D Grove for the AppellantO Klaassen for the RespondentJudgment: 8 August 2016JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 8 August 2016 at 4:00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction and result[1] Ms Song is a Chinese national who, in 2008, applied for New Zealand residence under the Family (Partnership) category. The application included her then 23 year-old son as a dependent child. For various reasons, the determination of the application was delayed until 2014, at which point Immigration New Zealand (INZ)declined it on the ground that it was not satisfied that Ms Song's son was totally orsubstantially reliant on her for financial support.[2] Ms Song appealed INZ's decision to the Immigration and ProtectionTribunal, where she submitted that her son's dependence should have been assessedat the time her application was lodged, and not at the time it was determined. The Tribunal did not agree.1 Ms Song has now been granted leave to appeal against theTribunal's decision. The approved question of law is:2Whether the correct time for assessment of a child's dependence, as afinancial dependent in a residence visa application, is at the time the residence application is determined, or at the time of lodgement of the application or any time between unless expressly fixed by the direction of the Immigration and Protection Tribunal.Result[3] For the reasons given below, I hold that the answer to the question is that thecorrect time for the assessment of a child's dependence, as a financial dependent in aresidence visa application, is at the time that the application is determined, unless another time is fixed expressly by the direction of the Immigration and Protection Tribunal.1 ML (Partnership) [2015] NZIPT 202638.2 Song v Minister of Immigration HC Auckland CIV-2015-404-2907, 1 March 2016 (Minute) per Wylie J.FactsThe initial residency application and determination[4] Ms Song first arrived in New Zealand in August 2007 on a visitor visa. She began living with her Malaysian-born, New Zealand resident partner in November 2007, and lodged an application for residence under the Family (Partnership) category in October 2008.[5] Ms Song's residency application also included a secondary residency application for her son, as a dependent child. Her son was 23 years and seven months old at the time of the application, and lived in China, where he has remained. That he is now 31 years old reflects untoward delay in the determination of the application.[6] A number of criteria must be met for a person to be included as a dependent child in a residency visa application. In short, it was necessary for Ms Song to establish that:(a) the child was aged 17 to 24 at the date of the application, with no children of his or her own;(b) That the child was single; and(c) That the child was totally or substantially reliant on Ms Song (the principal applicant) and/or her partner for support.[7] Immigration New Zealand's ("INZ") determination of Ms Song's application was substantially delayed, particularly by INZ's concerns about the character and residency status of Ms Song's partner because his Malaysian passport, submitted in support of Ms Song's application, had been altered fraudulently. There were alsoinitial concerns about Ms Song's character because of a falsely backdated jointtenancy agreement that she had submitted. INZ eventually granted her a character waiver on that matter.[8] INZ, however, considered that Ms Song's provision of her partner's alteredpassport was determinative of her application, irrespective of whether she knew about the alterations. On 1 September 2010, it declined her application accordingly.[9] Ms Song, however, successfully appealed this decision. On 22 September 2011, the Immigration and Protection Tribunal ruled that INZ was wrong to notconsider whether Ms Song knew about the alterations to her partner's passport, anddirected that the application be reassessed.Reassessment of the application[10] INZ began its reassessment of Ms Song's application on 15 November 2011. In respect of her son's financial dependence, Ms Song advised that:(a) He continued to live alone in one of her properties in China;(b) He had graduated from junior high school and had a certificate in cookery;(c) He was studying English at home by himself; and(d) He had previously worked at a hotel but she could not remember how long he had been employed.[11] In support of her claim that her son remained dependent, Ms Song provided:(a) A letter from her brother confirming that he had borrowed money from her and was repaying her by sending monthly sums to her son;(b) A letter from the son's local Police Security Bureau certifying that hislevel of education was junior secondary level, that he was unemployed, and that he had no partner or children;(c) Evidence of three international financial transfers of NZ$1,350, $985 and $1,000 respectively.[12] Further investigations about Ms Song's partner's character delayed INZ's re- consideration of the application until 18 December 2013 when they were discontinued. That meant he was then an eligible sponsor for her residency application.[13] On 24 March 2014, INZ wrote to Ms Song seeking, among other information,further evidence about her son's financial dependence. On 27 March 2014, Ms Song responded to the request by submitting that it was inappropriate for INZ to require evidence of financial reliance given the length of time that the residence application had taken to process and the fact that her son was now 29 years old.[14] Nevertheless, on 6 June 2014, INZ sought further evidence as to thedependence of Ms Song's son. Ms Song's representative responded that instructionR5.1 of the Immigration New Zealand Operational Manual required that the applicable residence instructions should be those applying at the time the applicationwas made, and that instruction R5.6 provided that an applicant's age at the time ofthe application is the age at which the applicant will be assessed. He submitted that the combined effect of these instructions meant that the son's dependence had to beconsidered retrospectively. The representative also submitted that, in any event:(a) The son continued to live alone in China and was not currently working;(b) He was "enrolled full time as an office automation student";(c) He was studying English in the evenings in preparation for coming to New Zealand;(d) He survived on money sent periodically by Ms Song and also by hisuncle in repayment of the uncle's debt to Ms Song;(e) A number of documents were provided between June and August 2014 which included evidence from the local community confirmingthe son's unemployment.[15] On 10 September 2014, INZ advised Ms Song that an immigration officerhad telephoned the son's local Town Labour and Social Security Office about the certificate she had provided as to her son's unemployment. The officer had been toldthat the son had been unemployed since October 2013 but that records showed he had been employed for some time before then. As a result, INZ requested Ms Song to provide official evidence of her son's employment history.[16] On that same day, Ms Song's new counsel responded to INZ saying that, in view of the "inordinate passage of time that has elapsed, it is not in order for INZ toask whether [the son] is still financially reliant on [Ms Song]". Ms Song's counselthen confirmed that no further information or documents would be submitted.[17] On 8 October 2014, INZ declined Ms Song's residency application in its entirety, including the secondary application for her son. INZ noted that Ms Song's counsel would not provide official evidence of her son's employment history. Itappeared to INZ that the son had been in paid employment and had other means of financial support. His current unemployment was said to be by choice as he appeared to have the skills and knowledge to find employment and thus be financially self-reliant. Although INZ determined that Ms Song's relationship withher partner was genuine, stable and likely to endure, it was not satisfied that the son was totally or substantially reliant on Ms Song or any other adult for financialsupport. Ms Song's application was declined on that basis.The appeal to the Tribunal[18] Ms Song appealed INZ's decision to the Tribunal. Pursuant to s 187(1) of theImmigration Act 2009, the Tribunal's approach on appeal was to assess whether the decision was correct in terms of the instructions in INZ's Operational Manual.[19] The Tribunal considered three issues, only one of which is relevant to this present appeal; namely, whether a secondary applicant's dependence should beassessed at the time the application was made, or at the time it was assessed.33 The other issues were: whether the failure of a secondary applicant to meet the dependency requirements means that the application must be declined in its entirety and, if the answer to that question is affirmative, whether the principal applicant should be given an opportunity to[20] The Tribunal found that the correct time for assessment of a child'sdependence is at the time the application is determined, not at the time of lodgementor any time in between, unless expressly "fixed" by a direction of the Tribunal.[21] Although the Tribunal accepted that it had ruled otherwise in three previous cases, it distinguished those cases on the basis that, on each occasion, INZ had initially assessed those applications incorrectly. It followed that the applications had to be reassessed, because the status of the dependent children should not beprejudiced by INZ's error. Ms Song's case was different because the delay was notcaused by INZ's error, but by the investigation of character issues involving bothMs Song and her partner.Relevant law[22] Ms Song's application was made before the Immigration Act 2009 came intoforce. As I understand it, the relevant provisions and instructions under the previous Act are not materially different to the provisions that are currently in force. However, counsel have agreed that I am to consider the law and instructions which were in force at the time Ms Song made her application.4[23] R2.1.27 of the Immigration New Zealand Operational Manual which was in force at 2008 establishes when a dependent child may be included in an application:R2.1.27 When may dependent children be included in an application and be issued with a residence visa or granted a residence permit?For a 'dependent child' to be included in an application to be issued with a residence visa or granted a residence permit a visa or immigration officer must be satisfied that they are a dependent child.[24] R2.1.30a provides a definition of a dependent child:R2.1.30 Definition of 'dependent child'For the purpose of inclusion in an application, and despite the definition in section 2 of the Immigration Act 1987, a child is dependent if he or she is:a. withdraw the secondary applicant from the application.4 Immigration New Zealand Operational Manual (2014) at R5.1.i. aged 17 to 24, with no child(ren) of his or her own; andii. single, andiii. totally or substantially reliant on the principal applicant and/or the principal applicant's partner for financial support, whether living with them or not; or[25] R2.1.30c expands the definition of a dependent child:When determining whether a child of 17 to 24 years of age is totally or substantially reliant on the principal applicant and/or the principal applicant's partner for financial support, visa and immigration officers must consider the whole application, taking into account all relevant factors including: whether the child is in paid employment, whether this is full time or part time, and its duration; whether the child has any other independent means of financial support; whether the child is living with its parents or another family member, and the extent to which other support is provided; whether the child is studying, and whether this is full time or part time.[26] The Operational Manual does not state the time at which the financial dependence of a child aged 17 to 24 is to be assessed. As to the age of the child, however, the manual provides:R5.6 Age of applicantAn applicant's age at the time an application is made is the age at which the applicant will be assessed under residence instructions unless otherwise specified in a particular provision within residence instructions.Appellant's submissions[27] Mr Grove, for the appellant, submits that the Tribunal erred in finding that:5the correct time for the assessment of a child's dependence is at the time the application is determined, not at the time of lodgement or any timebetween, unless expressly "fixed" by the direction of this tribunal.5 At [55].[28] Counsel submits that the correct approach in assessing a child's dependenceis to assess the application based on the circumstances that existed at the time of the application, and not subsequently. To hold otherwise would be unfair, particularly given that initial eligibility may be rendered nugatory over the passage of time.[29] Mr Grove says that the particular unfairness resulting from the Tribunal's view is that a "dependent child" would have to avoid seeking or taking employmentbetween the time of an application and its determination, lest their application fail. He refers to three decisions which he says acknowledge this unfairness; two from the Tribunal and one from the Residence Review Board.6 Mr Grove also noted that an instruction in the Operational Manual says that that the fairness of a decision can depend whether an application is decided in a way consistent with other decisions.7[30] Mr Grove challenges the Tribunal's finding that the question of dependence is an assessment quite distinct from the calculation of a person's age. He notes thatinstruction R5.68 requires that an application will be assessed on the basis ofapplicant's age at the time of the application, rather than at the time of thedetermination. He says that this rule is an explicit recognition from INZ that it is sometimes necessary to engage in a legal fiction to prevent unfairness resulting from a delayed application. He argues that it is unrealistic to suggest that age and financial circumstances can be truly separated, and distinguishes financial circumstances from other matters such as criminal convictions by noting the societal expectations: a dependent child transitioning into adulthood is expected to pursue financial independence, and should not be unfairly discouraged from doing so simply because their application is delayed.[31] Mr Grove also submits that the wording of R2.1.27, which establishes when an independent child may be included in an application, supports his position. He says that according to this instruction, and in light of the other instructions whichexpand on its terms, a child only needs to be a "dependent child" at the time it is6 Residence Appeal No 16613 29 October 2010; AE (Refugee Family Support) [2011] NZIPT 200212; BD (Refugee Family Support) [2013] NZIPT 201276.7 A1.5(i)8 Quoted above at [26].included in the application. The instructions, therefore, do not require that a child is dependent at the time the application is determined.Approach on appeal[32] This appeal on a question of law is governed by s 245(3) of the Immigration Act, which provides that the Court must determine the relevant question of law and then:(a) confirm the decision in respect of which the appeal has been brought; or(b) remit the matter to the Tribunal with the opinion of the Court, together with any directions as to how the matter should be dealt with; or(c) make such other orders in relation to the matter as the Court thinks fit.[33] The Court's powers on an appeal relating to a question of law are tightlycircumscribed. The Court must not give any consideration to the factual merits ofMs Song's case, or give any weight to any agreement or disagreement with the Tribunal's result or the quality of its reasoning process.9Discussion[34] I address first Mr Grove's submissions about the immigration instructionsthemselves. I accept Mr Grove's point that applicants for residency can expect theirapplications to be determined on the basis of the residency instructions or immigration policy that existed at the time the application was made.10 I note also the pragmatic and sensible approach which the Court of Appeal says should be adopted for the interpretation of such documents:119 Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88; Sidhu v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZHC 2841, [2014] NZAR 1371.10 See Immigration New Zealand Operational Manual at R5.1; Chiu v Minister of Immigration[1994] 2 NZLR 541 (CA).11 Patel v Chief Executive Department of Labour [1997] NZAR 264 (CA) at 271.A policy document, such as the one in issue, is not to be construed with the strictness which might be regarded as appropriate to the interpretation of a statute or statutory instrument. It is a working document providing guidance to immigration officials and to persons interested in immigrating to New Zealand or sponsoring the immigration of a person to this country. It must be construed sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed, that is, as part of a comprehensive and coherent scheme governing immigration into this country.[35] Mr Grove submitted that the Tribunal and the respondent erred in law by applying the wording of the heading rather than the text of instruction R2.1.27.12 It is helpful to repeat them:R2.1.27 When may dependent children be included in an applicationand be issued with a residence visa or granted a residence permit?For a 'dependent child' to be included in an application to be issued with a residence visa or granted a residence permit a visa or immigration officer must be satisfied that they are a dependent child.(Emphasis added)[36] I accept that the wording of the heading may give rise to an available inference about the timing of the dependence assessment which is not as readily available on the wording of the rule. Because the instructions are policy documents, their wording is not to be interpreted with the strictness which might be applied to legislation,13 but the real point is that R2.1.27 itself, while not well worded, is silenton the issue and does not assist Ms Song's argument. Given the pragmatic approachto be adopted when interpreting the document, the statutory purpose and the overall scheme of the immigration rules are more relevant, as I discuss below.[37] I am not persuaded by Mr Grove that the criterion of financial dependency is something that is inseparable from age, which is required by R5.6 to be considered as the age at the time of application. The age of the secondary applicant inevitably increases from the moment the application is lodged, so fixing the age criterion as the age at the application date is necessary to avoid arbitrary disqualification by the mere passage of time while an application is properly assessed. Financial dependency, however, may not alter over time.12 Cited above at [23].13 Patel, above n 11.[38] The absence of specific provisions fixing the time at which the eligibility factors other than age are to be assessed gives rise to an inference that it is not assessed at the time of application.[39] I am satisfied that the Tribunal was right not to regard as determinative theprevious decisions basing the assessment of a child's dependency on the circumstances at the time of application. While I accept that consistency in decision- making is an element going to fairness,14 a precedent is only a precedent if the earlier case has the same material facts as the case under consideration. In the earlier cases referred to by Mr Grove, the Tribunal accepted that the applicant was unfairly disadvantaged by unnecessary delay caused by INZ. In this case, the Tribunal held Ms Song responsible for material delay; a finding I am required to accept, as I have noted at [33]. It is for the Tribunal to determine whether it should follow its own earlier decision, if it is relevant and based on materially similar facts, or to decide not to do so if the earlier decision was wrong. In any event, decisions of the Tribunal are not binding on this Court.[40] In addressing the unfairness which could flow from assessing dependence at the time of determination, Mr Grove raises a hypothetical situation of two dependent children, one of whom, because of a delay in processing the application, becomes financially independent while the other does not. He said assessing financial dependence at the time of determination would punish a child who attempted to become a productive member of society, and would reward children who, voluntarily or not, continue to rely on their parents.[41] I recognise that that is not a fanciful scenario. But I do not think Mr Grove's argument is assisted by the Tribunal's passing reference in AE (Refugee Family Support) to the unreasonableness of expecting dependents to forgo employment to remain eligible.15 Immigration officers are bound to apply the residence instructions and to exercise their discretion to grant or refuse a visa accordingly.16 The hypothetical provides a good example of a case in which the Minister might exercise14 Immigration New Zealand Operational Manual at A1.1 and A1.5.15 AE (Refugee Family Support), above n 6, at [31].16 Immigration Act 2009, s 72(1).the residual discretion under s 72(3) to exempt an otherwise ineligible person from the dependence criterion.The statutory wording and purpose[42] The answer to the question posed lies in the text and purpose of the Immigration Act and the instructions.[43] For the Minister, Ms Klaassen placed particular emphasis on the duty of candour in s 58 of the Immigration Act. The relevant portions of that provision are these:58 Obligation on applicant to inform of all relevant facts, including changed circumstances(1) It is the responsibility of an applicant for a visa to ensure that all information, evidence, and submissions that the applicant wishes to have considered in support of the application are provided when the application is made.(2) The Minister or immigration officer considering the application—(a) is not obliged to seek any further information, evidence, or submissions; and(b) may determine the application on the basis of the information, evidence, and submissions provided.(3) It is also the responsibility of an applicant for a visa to inform the Minister or an immigration officer of any relevant fact, including any material change in circumstances that occurs after the application is made, if that fact or change in circumstances—(a) may affect the decision on the application; or(b) may affect a decision to grant entry permission in reliance on the visa for which the application is made.(4) Without limiting the scope of the expression material change in circumstances in subsection (3), such a change may relate to the applicant or another person included in the application, and may relate to any matter relevant to this Act or immigration instructions..[44] It is significant that s 58(3)(b) extends the duty of candour to a material change in the circumstances which occurs after an application is granted but prior to entry in reliance on the resulting visa. That duty may be enforced under s 65(1) of the Act, which enables the Minister or an immigration officer to cancel a resident visa before its holder first arrives in New Zealand if the holder no longer meets the residency criteria set out in the instructions.[45] In Sidhu (Amandeep) v Chief Executive Ministry of Business, Innovation and Employment, Moore J observed that the duty of candour in s 58 is analogous to the duty of utmost good faith that often exists in insurance law.17 He held that the provision operates to ensure that an immigration officer is able to possess and weigh all relevant and available information when deciding to grant or refuse an application, and that the duty that the provision creates is a continuing one.18I respectfully agree. There is nothing in the Act exempting an applicant for adependent's visa from the obligations under s 58.[46] Ms Klaassen noted that in Prasad v Deportation Review Tribunal,19 this Court held that the duty of candour imposed under the predecessor to s 5820 required an applicant to inform the immigration officer about a change in marital status that occurred after an application for residency under the dependent child category was lodged. As Lang J noted21The immigration authorities depend upon applicants being scrupulously honest in disclosing their personal circumstances. Often these will be difficult to verify, so the integrity of the application process depends very much on a system of voluntary compliance with the obligations of disclosure. Those obligations continue beyond the lodging of the application by virtue of s 34G of the Act. They lie at the heart of the process by which Immigration New Zealand grants permits to those who wish to live here. If they are disregarded, the integrity of the process is destroyed.[47] The duty of candour applies generally and there is no reason why it shouldnot apply to evidence of a child's financial dependency. I reject Mr Grove's17 Sidhu (Amandeep) v Chief Executive Ministry of Buisness, Innovation and Employment [2014] NZHC 2841, [2014] NZAR 1371 at [48].18 At [48] and [51].19 Prasad v Deportation Review Tribunal HC Auckland CIV-2007-404-8059, 19 February 2008.20 Immigration Act 1987, s 34G.21 At [56].submission that a child's financial dependency is not a relevant fact amounting to amaterial change in circumstances. The immigration rules indicate that financial dependence is a key element in establishing that a child in the particular age bracketis a "dependent child". On the appellant's suggested interpretation of the law, theduty of candour in s 58 would be undermined and rendered meaningless in such cases.[48] It is plain in my view that Parliament intended that the circumstances which render an applicant (and, in a case such as this, a dependent of an applicant) eligible for entry into New Zealand by visa must exist at the time of entry. It follows that, unless the Immigration and Protection Tribunal decides otherwise, the time for the assessment of eligibility is at the time the application is determined.The answer to the question of law and result[49] The Tribunal adopted the correct legal approach. The answer to the approvedquestion is that the correct time for assessment of a child's dependence, as a financialdependent in a residence visa application, is at the time the residence application is determined, unless another time is fixed expressly by the direction of the Immigration and Protection Tribunal[50] I dismiss the appeal.Costs[51] The respondent is entitled to costs on a category 2B basis. Any application for costs shall be by memorandum filed and served not later than Monday, 29 August 2016. The appellant shall have until Monday, 19 September 2016 to file and serve a memorandum in reply. Costs shall then be determined on the papers unless the Court directs otherwise..Toogood J