FU v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 3346

FU v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 3346 [19 December 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-2620[2014] NZHC 3346UNDER Section 245 of the Immigration Act 2009IN THE MATTER OF an appeal against a decision of theImmigration and Protection TribunalBETWEEN YUANFEN FUAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentHearing: 11 December 2014Appearances: D Ryken and M Bozovik for the AppellantN Whittington and H Musgrave for the RespondentJudgment: 19 December 2014JUDGMENT OF MUIR JThis judgment was delivered by me on 19 December 2014at 2.30 pm, pursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors: Crown Solicitors, AucklandRyken and Associates, AucklandIntroduction[1] The applicant, Mr Fu, applied for New Zealand residence under the Family (Partnership) category on 22 August 2013. Because he had (in one unarguable respect at least) previously given false information to Immigration New Zealand("INZ") he needed a character waiver. INZ refused such waiver and declined his residence application. He appealed that decision to the Immigration and ProtectionTribunal ("the Tribunal") which dismissed his application on 2 September 2014.1[2] He now seeks leave to appeal that decision to the High Court under s 245 ofthe Immigration Act 2009 ("the Act").Background[3] The applicant first arrived in New Zealand on 3 August 2007 as the holder of a one month visitor visa. Prior to his arrival, INZ had received an anonymous letterindicating the applicant's intention was to work in New Zealand rather than visit as atourist. He was questioned at the border and denied such intention. He said that he was coming to New Zealand to visit a friend and for a holiday and would be leaving at the end of the month because he was expected back at work. INZ spoke to his employer in China who confirmed that he was on leave. It also spoke to theapplicant's New Zealand friend who confirmed that he was visiting for a holiday. Aone month visitor visa was issued.[4] The applicant's visa application included a declaration as to marital statuswhich was false. The applicant stated that he was married when in fact he was divorced. No specific mention of marital status occurs in the case officer's notesrelating to the visitor visa application. Those notes however appear to have been very limited.[5] Prior to the expiration of his visitor's permit the applicant applied for anextension which he stated was for the purposes of extending his holiday. He was granted a two month limited purpose permit upon production of a non-refundable ticket to return to China.1 Fu (China) [2014] NZIPT 202221.[6] The applicant remained in New Zealand after the expiry of that permit for a total period of five and a half years. In October and November 2012 he made unsuccessful requests for a work visa. In May 2013 he was granted a two month visitor visa for the express purpose of making arrangements to depart New Zealand, which he did on 27 June 2013.[7] He then made the application on 22 August 2013 for residence under the Family (Partnership) category. This was sponsored by his de-facto partner who the applicant had met in New Zealand in 2012 and with whom he had had a son born November 2012.The Immigration Instructions[8] Under s 72 of the Act residence class visas are to be considered in accordance with the Immigration Instructions relevant at the time. These are statements of government policy certified by the Minister of Immigration pursuant to s 22 of the Act. In Patel v Chief Executive Department of Labour the Court of Appeal said in relation to the interpretation of such documents:2A 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.[9] The relevant Instructions in the present case are A5.1, A5.15, A5.25 and A5.25.1.[10] A5.1 provides that applicants for all visas must be of good character and A5.15 (in so far as relevant) provides that applicants who are not considered of good character will not normally be granted a residence class visa unless a character waiver is granted.2 Patel v Chief Executive Department of Labour [1997] NZAR 264 (CA) at 271.[11] A5.25 identifies those applicants who will not normally be granted a residence class visa as including any person who:(i) in the course of applying for a New Zealand visa (or a permit under the Immigration Act 1987), has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information;[12] A highlighted note at the bottom of that page provides:When considering whether or not the applicant has committed an act that comes under A5.25(i), (j) or (k) or (l) above an Immigration Officer shall establish whether, on the balance of probabilities, it is more likely than not that the applicant committed such an act.[13] The requirement that something be "on the balance of probabilities more likely than not" appears tautologous but is clear in its intent.[14] In the present context therefore the question was whether, on the balance of probabilities, the applicant provided false information (in the sense that he never had an honest intention to be here as a tourist only at the time he entered the country or at the time of his visa renewal). Necessarily that involves divining, by reference to allavailable facts, what was in the applicant's mind at the time - assessing on a "more likely than not" basis whether he had an honest intention to be here as a tourist only or whether in fact his intention at the time of the respective statements was to seek work in New Zealand or was ambivalent in the sense that he intended to stay and work if he found the country to his liking.[15] In terms of A5.25.1 an immigration officer must not automatically decline residence class visa applications on character grounds. They must consider the surrounding circumstances to decide whether or not they are sufficiently compelling to justify waiving the good character requirement. The relevant (non-exclusive) circumstances identified in subpara (b) are:(a) If applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);(b) Whether there is more than one offence;(c) If applicable, the significance of the false, misleading or fraudulent information provided, or information withheld and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive INZ;(d) How long ago the relevant event occurred;(e) Whether the applicant has any immediate family lawfully and permanently in New Zealand;(f) Whether the applicant has some strong emotional, physical tie to New Zealand; and(g) Whether the applicant's potential contribution to New Zealand will besignificant.[16] It is common ground that a character waiver assessment was necessary, atleast on the basis of the applicant's false information as to marital status. In addition,the respondent relies on the suggested falsity (established on the balance of probabilities basis) of the statements the applicant made on arrival and on visa renewal about his intention.[17] Underpinning the application for leave is the proposition that if the only"falsity" relevant for waiver purposes was the incorrect statement as to marital status then a different result may have been reached by INZ and/or the Tribunal and that (assuming leave and ultimate success on appeal) the matter should be appropriately remitted to the Tribunal for reconsideration.The Tribunal's decision[18] In a detailed decision the Tribunal held that:3(a) The applicant provided false information relating to his marital status;3 Fu (China), above n 1, at [34]-[57].(b) His stated explanation that his immigration agent had advised him to do so to avoid declinature of his application "carr[ied] no weight";4(c) In the context of this initial dishonesty, INZ was entitled to considerwhether the applicant's stated exclusive intentions to holiday in New Zealand made on arrival and in his subsequent application were honest;(d) It was entitled in that context to consider the anonymous information received prior to his arrival and the fact that his unlawful presence for five and a half years after arrival, during which time he worked without a visa, confirmed the accuracy of that anonymous information;(e) It was therefore reasonable for INZ to conclude, on a balance of probabilities basis, that the applicant had deliberately and dishonestly made misleading statements about his intention to enter New Zealand as a tourist only. INZ therefore correctly determined the applicant was ineligible for a residence visa unless granted a character waiver; and(f) INZ's character waiver assessment was correct on the basis that there was an intention to deceive,5 false and misleading information had been provided on three separate occasions, it has resulted in the applicant living and working in New Zealand unlawfully for five and a half years during which he had paid no tax. Although he had links to New Zealand through his partner and son, they could live together4 At [34].5 In the case of the misinformation in relation to marital status it was clear that a separate inquiry was necessary into intentionality. In the case of statements made on entry into the country andrenewal of the applicant's visitors visa, the question of intention was necessarily considered atthe point of Instruction A5.25(i) and would not logically need to be reconsidered in the Instruction A5.25.1(3) context. I accept in that respect the respondent's submission that theInstructions cannot envisage the issue of intention being dealt with differently in terms of whether a character waiver was necessary and, if so, whether it was appropriately granted.as a family in China and these ties did not outweigh the seriousness ofhis "deliberate deceptions".6Integrity of the immigration system[19] I accept the submission of Mr Whittington that there is, within the context of the New Zealand immigration regime, a high premium on honest disclosure of personal circumstances. He referred me to the decision of Prasad v Deportation Review Tribunal where Lang J stated:7[56] The immigration authorities depend upon applicants beingscrupulously 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 ofdisclosure. Those obligations 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.[20] This same passage is quoted at the Tribunal's decision at [83].High Court's appellate jurisdiction[21] The present application is governed by s 245 of the 2009 Act. That provides:245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.(2) Every appeal under this section must be brought—(a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.6 At [87]-[90].7 Prasad v Deportation Review Tribunal HC Auckland CIV-2007-404-8059, 19 February 2008.(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.(4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may 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 High 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 it thinks fit.(5) Subject to subsection (2), every appeal under this section must be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act, including any ancillary general practices and procedures developed under section 260[22] I accept Mr Whittington's submission that the leave provision indicatesParliament's intent to limit appeals on immigration decisions. The position wassuccinctly stated by Duffy J in LMN v Immigration and Protection Tribunal where she said:8[2] Section 245 of the Immigration Act 2009 provides a right of appeal with leave to this Court against a decision of the Tribunal. The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus, factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whetherthe applicant falls into the remaining category of providing "any otherreason" for his appeal to be submitted to this Court for determination.8 LMN v Immigration and Protection Tribunal [2013] NZHC 2077.[23] The "any other reason" category was the subject of consideration by Kós J inTaafi v Minister of Immigration where he said:9 In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.[24] At the application for leave stage, the error of law which is required to be established must, in my opinion, be at least seriously arguable. Kós J adopts the same test in Taafi.10The alleged questions of law raised on the application[25] During the course of argument counsel agreed upon and provided me with a list of the alleged questions of law raised on the application. This was in terms:(a) Was the IPT correct to take into account Mr Fu's subsequent acts indetermining whether he gave false information to INZ?(b) Was (sic) the IPT's findings based on no or insufficient evidence in aBairstow v Edwards sense? (See also [19](b) of Taafi)?(c) Did the INZ officer improperly impose a burden on Mr Fu to show that he did not give false information?(i) Did the officer err in treating the allegations against Mr Fu as offences in the context of the character waiver assessment?(ii) Did the Tribunal err by adopting the finding (if it did)?(c) Did the Tribunal err in law in its finding of correctness as to the character waiver assessment?Questions (a) and (b): significance of overstaying and evidential foundation for The Tribunal decision.[26] I address these together as they were in argument. The Tribunal's finding thatthe applicant, on the balance of probabilities, provided false information at the point of entry into New Zealand and/or his visa renewal is, counsel accept, a finding of9 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19](c). These comments were in turn adopted by Faire J in SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [9].10 At [19].fact only elevated to error of law in circumstances where there was no evidence to support the finding or, in the words of Lord Ratcliffe in Edwards v Bairstow:11[T]he true and only reasonable conclusion contradicts the determination.[27] In Bryson v Three Foot Six Limited the Supreme Court emphasised that any intending appellant making that assertion "faces a very high hurdle" and that it was important that "appellate judges keep this firmly in mind".12 It went on to cite thefollowing passage from Lord Donaldson MR's judgment in Piggott Brothers & Co Ltd v Jackson where His Lordship pointed out the danger that an appellate court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the Tribunal that did so was certainly wrong:13It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option...[28] I therefore ask myself was the Tribunal's conclusion based on the balance of probabilities in respect of (effectively) the applicant's state of mind at the relevant times a "permissible option" on the evidence?[29] For the applicant Mr Ryken invites me to conclude that the act of overstayingsays nothing of the applicant's intention (in terms of purpose of entry into thecountry or extended stay) at the time the relevant statements were made. Heemphasises the fact that the applicant sought renewal of his visitor's permit andquestions why, if his intention on entry had been to work and overstay his visitor'spermit he did not simply set about that course immediately.[30] Nor, he suggests, does the fact of the anonymous communication advance the analysis. He emphasises that its source was undisclosed and that "there may have11 Edwards v Bairstow [1956] AC 14 (HL) at 36.12 Bryson v Three Foot Six Limited [2005] NZSC 34, [2005] 3 NZLR 721 at [27]..13 Piggott Brothers & Co Ltd v Jackson [1992] ICR 85 (CA) at 92.been any number of reasons why it might have been false". In the result he says itwould or should never tip the balance of probabilities in favour of a finding of dishonest intention in respect of the two statements.14[31] In addressing the relevant legal test I cannot accept as reasonably arguablethe proposition that the applicant's subsequent conduct in overstaying is not properly taken into account at all in determining whether or not there was an earlier intention to deceive. The respondent submits, and I agree, that in assessing intention, it is well established that all surrounding evidence is relevant. Examples are available in the criminal law,15 employment law16 and the law of contract.17[32] However, considerable care is necessary in drawing an adverse inference from the act of overstaying in itself. An honest intention to enter into the country as a tourist could well be substituted by a later intention to stay on. Mr Whittington candidly acknowledges that point. Although reserving possible circumstances in which the act of overstaying might, of itself, give rise to an adverse balance of probabilities finding, he agrees that it would typically be a very difficult conclusion to draw from that fact alone.[33] However he emphasises that this was not the position in the present case and that there were in fact three considerations, each working in combination, which brought INZ and the Tribunal to its balance of probabilities conclusion being:(a) The admitted false statement in respect of marital status;14 In a memorandum received on the date of publication of this judgment the respondent's counseladvises that, following hearing of the application for leave, a copy of the anonymous communication was sought by the applicant but that, with the passage of time, this could not belocated. He emphasises that the submissions he made in that respect were based on the "variousalerts and AMS notes before the Court in the Agreed Bundle of Documents" and wanted toclarify, if the Court had any contrary impression from the argument, that he had never personally seen the letter. I had no such impression. The argument was at all times advanced on the basis of the contemporaneous record (indicating, inter alia, that "we have received an anonymousletter stating that the client intends to go to New Zealand for work purposes instead of visitingpurposes") and on the basis of the steps which followed.15 Palmer-Brown v Police [1985] 1 NZLR 365 (CA) at 369; Rameka v R [2011] NZCA 75; and R v Heslehurst [2009] NZCA 444.16 Abbot v Alles Valore Ltd [2014] NZERA Auckland 421 at [18].17 Gibbons v Wholesale Distributions Ltd [2007] NZSC 37, [2008] 1 NZLR 277.(b) The anonymous letter received by INZ stating that Mr Fu's intentionin coming here was to work; and(c) The fact that he did work and remained illegally in the country for five and a half years.[34] Mr Whittington submits that on a balance of probabilities basis it was alwaysopen to "draw these threads together" and that the proposition that INZ's and theTribunal's conclusions was not a "permissible" one was not seriously arguable.Whether a different tribunal might have come to a different conclusion or indeed whether this Court might think a different conclusion appropriate was, he suggests, irrelevant in terms of the legal test. I accept that submission.[35] The respondent makes the point that although inquiries were made of the applicant's Chinese employer and of the friend the applicant stated at the border hewas here to visit, and although, in the result, it was determined that the allegation in the anonymous letter could not be substantiated, the matter remained of concern to INZ. In its Alert Notes dated 3 August 2007 it records:This passenger denied any intention of staying on in New Zealand after the 30th of August. The passenger denied that he was here to look for work. This passenger denied that he will apply for a different type of permit while in New Zealand. Despite some concerns the passenger may not be here for the reasons stated, there were insufficient grounds to consider issuing an LPP or refusing a permit. Should this passenger apply for further permits on- shore, the above information needs to be considered.[36] The respondent further says that when assessing the applicant's bona fides atthe time of the relevant statements INZ and the Tribunal were entitled to take into account the unlikelihood that, in combination, someone had falsely and maliciouslywritten to INZ about the applicant's work intentions and that the applicant, havingentered the country with an "innocent" intention and with the same innocentintention at the time of renewal, subsequently decided to stay on. Mr Whittington says that position is fortified by the false declaration about marital status. Again I accept that submission.[37] He acknowledged that the application for an extension was "a" factorsuggesting that the statement of intention at the point of entry was truthfully made but suggested this is not conclusive and that in any event it did not address the issue of intention at the time of renewal. He referred to submissions made to the Tribunalon behalf of the applicant in terms that INZ's assessment of the veracity of therenewal declaration was a "marginal call".18 He invites this Court to conclude thatthe appellate jurisdiction is not intended to revisit "marginal calls".[38] I agree that INZ's (and more significantly) the Tribunal's balance of probability assessments of truthfulness were permissible on the facts taking in combination the three factors the respondent identifies. It is certainly not the case that there was no evidence to support that conclusion and the authorities are clearthat beyond the "no evidence" category considerable caution is required. This is nota case where in my assessment, the true and only reasonable conclusion contradicts the determination and nor do any of the findings contradict others. Different tribunals may have given different weightings to one or more of the relevant considerations, as, for example, whether a favourable implication was available from the renewal application. But that is not determinative. In any event, taking that example, it must still have been open to conclude that, at a minimum, the applicant was keeping his options open when he made the two statements while he assessed whether he wanted to stay. If that was in fact his state of mind then his statements of intention (to be here as a tourist only) would again have been false.[39] To some extent the applicant's argument was advanced on a "straw man"basis in the sense that the Tribunal never considered the overstaying issue in an evidential vacuum. It faced the difficult determination of identifying what was in theapplicant's mind at relevant times. It did so by looking at the totality of the evidence and what conclusions might, on the balance of probabilities, be reasonably deduced from it. Its conclusion in that respect was, in my assessment, one open to it on the facts.[40] Accordingly, I find that no reasonably arguable point of law arises out of questions (a) and (b).18 Letter from Malcolm Pacific Immigration to IPT dated 2 May 2014 at 4.[41] In that context it is not necessary for me to determine whether the criteria in s 245(3) are satisfied.[42] I accept, however, that the respondent's proposition that the only context inwhich a question of general or public importance could be derived from issues (a) and (b) is if the applicant were arguing that subsequent conduct could never be taken into account in assessing the bona fides or a declaration at the point of entry into the country. The applicant does not frame his case in that way. Had he done so it would not, in any event, have been reasonably arguable for the reasons already indicated.[43] Nor (if relevant) would I have been prepared to find the exceptional circumstances recognised in Taafi as necessary to bring the case within the "any other reason" category of s 245(3). The applicant's partner is a citizen of China (andNew Zealand resident). Her mother and three siblings are also resident in China.The applicant's parents, two siblings and two older sons are resident in China. The applicant's partner is able to return to China with their son and be reunited as afamily, albeit as the Tribunal recognised, with some initial stress.19Question (c): improper burden imposed on the applicant?[44] Mr Ryken submits that INZ's assessment process improperly placed theburden on the applicant to prove, on the balance of probabilities, that he had an honest intention to be in New Zealand as a tourist at the time of entry and visarenewal. In making that submission he relies on the following passage in INZ'sdecision:While I agree that with the LIA [Licensed Immigration Advisor] that there is no evidence to support the suggestion that his statement to INZ was not true, equally we can say that there is no evidence to suggest that the statement WAS true.[45] Importantly however, the quoted passage continues:We can only surmise about someone's thoughts and intentions. However, the concrete evidence we do have is a statement from someone alleging the PA intended to work in New Zealand and we have the fact that a PA remained in New Zealand unlawfully working.19 Fu (China) above n 1, at [70].[46] I accept Mr Whittington's submission that, taken in its totality, the paragraph does not indicate the imposition of a burden on the applicant to prove innocence butrather explains the officer's reasoning process starting with a position that, in relation to what is in the person's mind at any given time, it is necessary to look at the extrinsic evidence.[47] However, even if some criticism might be made of the relevant paragraph there is no suggestion that the Tribunal proceeded on any misunderstanding in terms where the onus lay. Paragraph [36] of its decision (which essentially summarises its reasoning process) clearly assumes an evidential onus on INZ in terms:20Immigration New Zealand was correct to conclude that on the balance of probabilities, the appellant had acted deliberately and dishonestly in providing these misleading statements to Immigration New Zealand.[48] It was, in the Tribunal's assessment, the coincidence of subsequent conductand prior information which took it to the point where the relevant inference could be made on a balance of probabilities basis.[49] Accordingly, I accept the respondent's position that question (c) raises noseriously arguable question of law.[50] For completeness, I record Mr Whittington's concession that if the Tribunal'sdecision had involved the imposition of an onus on the applicant that would raise an issue of general or public importance in terms of s 245(3) of the Act.Question (d): treatment of allegations as offences[51] Mr Ryken's submission in this respect is based on two headings in INZ'sdecision being respectively:(a) The seriousness of the offence: A5.25.1(b)(i); and(b) Whether there is more than one offence: A5.25.1(b)(ii).20 Fu (China) above, n 1, at [36].[52] He acknowledges that no issue was taken in this respect before the Tribunal.[53] He submits, correctly, that the applicant was never prosecuted in respect of his stated intention to enter or remain in New Zealand as a tourist and that it isincorrect therefore to have described his provision of what INZ calls "misleadinginformation" as an offence. He draws a distinction between the matters identified in A5.25(a)-(h) in respect of which a conviction is required and (i) (the provision relevant in this case) which speaks only to the provision of false and misleading information.[54] His submission is that the process was tainted by this fundamental mischaracterisation.[55] In response, Mr Whittington submits that where the word "offence" is used inthe INZ determination it is not as a term of art meaning a criminal conviction but as a shorthand for ensuring that the criteria in A5.25.1 "had been ticked off". He suggests it was not therefore to be taken literally and relies on the extract from the decision in Patel v Chief Executive Department of Labour previously cited to support the proposition that clinical precision was not required in this context.[56] I do not consider that the headings are necessarily suggestive of a conviction although, under the first of these, the following sentence occurs which may arguably have that implication:In this instance this [the provision of the misleading information] was not punished by imprisonment but potentially could have led to a deportation and a five year ban from New Zealand.[57] Under the second heading there is nothing to suggest INZ regarded convictions as having occurred. There is simply a recitation of what are described asthe "repeated instances of providing misleading information".[58] Looking at the totality of the INZ decision, it seems unlikely that it proceeded on the basis of convictions having been entered. Had it done so, it would have been entitled to assume proof beyond reasonable doubt of dishonesty in respect of the twostatements of immigration intention. None of the officers' analysis of what was, onthe balance of probabilities, in the applicant's mind at the relevant time would have been necessary, nor reference made to the extrinsic facts.[59] Whatever the position however, there is no tenable suggestion that the Tribunal proceeded on the basis that criminal offences had occurred. The relevant passage is:21The character waiver assessment stated that providing the misleading information was significant because it had resulted in the appellant being unlawfully present in New Zealand for a long time. The time lawfully spent in New Zealand could have led to him being deported and banned from New Zealand for five years; he had, however, been given the opportunity to leave voluntarily.[60] As will be observed, the reference to punishment by imprisonment "in this instance" is not repeated. No terminology suggestive of "an offence" is included.[61] I accept therefore Mr Whittington's submission that, to the extent INZ might be criticised for imprecise wording (he did not consider it an error of law on INZ'spart and nor do I) the position was corrected at the Tribunal level.[62] I accept his further submission therefore that there is no seriously arguable question of law in this respect. Had there been then it would not, in my assessment,have been one of general or public importance in the sense of having "a widersignificance that extends beyond the applicant".22Question (e):[63] It was accepted by both counsel that if any of the previous alleged errors of law were made out then the Tribunal would have erred in law in its finding of correctness in respect of the character waiver assessment. Conversely, if the previous errors were not made out then it could not be said that the balancing exercise was wrong. Given my finding that there are no arguable errors of law in respect of questions (a)-(d) this additional question is not therefore engaged.21 Fu (China) above n 1, at [42].22 LMN v Immigration and Protection Tribunal, above n 8 at [2].New Zealand Bill of Rights Act 1990[64] Mr Ryken invokes s 25 of the New Zealand Bill of Rights Act 1990 in support of the proposition that all persons have the right to be presumed innocent until proven guilty according to law. He acknowledges that the application of the section is, on its face however, limited to those charged with a criminal offence. His more general submission that s 27 confers a right to justice which was breached by imposition of a burden of proof on the applicant to demonstrate his innocence, is adequately addressed by the previous conclusions in this judgment.Costs[65] I award costs to the respondent on a 2B basis. In the event of any disagreement between counsel brief memoranda may be provided. I encourage counsel to exchange drafts of such memoranda in advance so as to limit areas of difference.________________________________Muir J