Jiaxi Guo v Minister of Immigration

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young J
Judgment Date02 September 2015
Neutral Citation[2015] NZSC 132
Docket NumberSC 124/2014
Date02 September 2015
Jiaxi Guo
First Appellant
Jiaming Guo
Second Appellant
Minister of Immigration

[2015] NZSC 132


Elias CJ, William Young, Glazebrook, Arnold and Blanchard JJ

SC 124/2014


Appeal against refusal of leave to appeal deportation — the appellants' father was subject to a deportation order by reason of his conviction and sentence of imprisonment on drug charges — he had embarked on this enterprise prior to residency being granted and had not disclosed this information — the non-disclosure was material to the grants of residency in favour of the appellants and deportation notices were therefore served on the appellants — the Immigration and Protection Tribunal said that their deportation was not unjust or unduly harsh under s207(1) Immigration Act 2009 (IA) (Grounds for determining humanitarian appeal — exceptional circumstances of a humanitarian nature) — whether the Tribunal had failed to give consideration to whether, in light of the absence of fault on their part, it was just that the appellants face the hardship of deportation or whether such hardship was, for this reason, undue — whether the Tribunal had erred in its proportionality analysis by only considering hardship in the context of the family as a whole and not appellant by appellant — whether the Tribunal's concern that there be consequences in respect of the father's offending was relevant to the deportation of the children.


R M Dillon for Appellants

C A Griffin and M F Clark for Respondent

  • A The appeal is allowed.

  • B The appellants are granted leave to appeal to the High Court against the dismissal by the Immigration and Protection Tribunal of their appeals on the question whether the Tribunal erred in law in concluding that it would not be unjust or unduly harsh to deport them from New Zealand.

  • C All issues as to costs, including the order for costs made in the High Court, are reserved. Any application in respect of costs is to be made within 10 working days.


(Given by William Young J)

The nature of the appeals

The appellants were unsuccessful in their appeals to the Immigration and Protection Tribunal against deportation liability notices. 1 They subsequently sought to appeal to the High Court under s 245(1) of the Immigration Act 2009 (the 2009 Act). Such appeal is limited to questions of law and requires the leave of the High Court or, if it refuses leave, of the Court of Appeal. The appellants' applications for leave to appeal were dismissed in the High Court, 2 as were their subsequent applications to the Court of Appeal. 3


The appellants' challenge in this Court to the refusal of the Court of Appeal to give leave to appeal to the High Court raised jurisdictional issues. These were resolved in their favour and they were granted leave to appeal against the Court of Appeal's judgment. 4


This is a distinctly unusual appeal. All that is in issue is whether the appellants should have leave to appeal to the High Court. As will be apparent, we are of the view that such leave is appropriate. To explain why we differ from the Court of Appeal, we must explain why we consider that leave should be granted. It is not, however, our role to determine whether the Tribunal's decision should be set-aside. We note in passing that s 245(1A) of the 2009 Act now provides that decisions of the Court of Appeal as to leave are final. 5


The appellants' parents are Jianyong Guo and Meihua Hong. They are Chinese citizens who came to live in New Zealand in March 2002. They were accompanied by Jiaxi, the first appellant, who was then 11 years of age. Their second child, Ellen was born in New Zealand on 18 February 2004 and is a New Zealand citizen. Their third child Jiaming, the second appellant, was born on

25 May 2006 and is not a New Zealand citizen. 6 The family was granted residency on 6 September 2006 on an application made by Mr Guo which listed Mrs Hong, Jiaxi and Jiaming as secondary applicants

Mr Guo is subject to deportation under s 91(1)(a) of the Immigration Act 1987 by reason of his conviction and sentence of imprisonment on charges associated with his importation of pseudoephedrine. He had embarked on this enterprise prior to residency being granted 7 and had not disclosed this to Immigration New Zealand. His non-disclosure of his involvement in drug importation was material to the grants of residency in favour of Mrs Hong, Jiaxi and Jiaming. For this reason, they too are subject to deportation; in their cases under s 158(1)(b)(ii) of the 2009 Act. Deportation liability notices were accordingly served on them.


Mr Guo appealed against the deportation order and Mrs Hong, Jiaxi and Jiaming appealed against the deportation liability notices.


Some of the complexities of the processes which followed are immaterial for present purposes. What is relevant is that:

  • (a) Mr Guo's appeal was pursuant to s 105 of the 1987 Act and the other appeals were on grounds which included s 207 of the 2009 Act. 8 These two sections provide for an appeal in relation to deportation to be allowed on humanitarian grounds. They are in similar but not identical terms. For the purposes of the present appeal to this Court it is s 207 which is material and the relevant portion of that section is reproduced later in these reasons.

  • (b) In the end the four appeals were heard together by the Tribunal in

    December 2012.
  • (c) On 4 July 2013, Mrs Hong left New Zealand for China for what she intended to be a temporary visit. Her departure, however, had the effect of withdrawing her appeal (under s 239 of the 2009 Act). On 10 July, the Tribunal, then unaware of Mrs Hong's departure, issued a decision dismissing all appeals. 9

  • (d) On 15 July Mrs Hong was served with a deportation order at Shanghai Airport and as a result is now an “excluded person” and subject to a permanent prohibition on entry into New Zealand. 10

  • (e) On learning of Mrs Hong's departure from New Zealand, the Tribunal recalled its 10 July decision.

  • (f) On 25 July, the Tribunal reissued a revised decision dismissing the appeals of Mr Guo and Jiaxi and Jiaming. 11

  • (g) Applications for leave to appeal to the High Court were refused by that Court and the Court of Appeal. 12

  • (h) This Court subsequently refused Mr Guo leave to appeal to this Court from the Court of Appeal decision but granted Jiaxi and Jiaming leave to do so. 13

The legal context

The humanitarian ground on which the appeals of Mrs Hong, Jiaxi and Jiaming were argued is provided for by s 207(1) of the 2009 Act:

207 Grounds for determining humanitarian appeal

  • (1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

    • (a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

    • (b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

As noted, s 105 of the 1987 Act on which Mr Guo sought to rely is not in identical terms but, for present purposes, the differences are of no significance.


The language of s 207(1) (and similar language in other provisions relating to deportation and removal) has received considerable attention in the courts. It has been held that the expression “unjust or unduly harsh” is composite in nature and that the Tribunal need not inquire separately as to whether deportation would be (a) unjust or (b) unduly harsh. 14 Whether deportation would be “unjust or unduly harsh” is to be assessed in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation. The public interest is not immaterial to the application of s 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, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected by that person's deportation.


Eligibility for deportation is usually associated with fault on the part of the person to be deported, most obviously, the commission of offences or misrepresentations on applications for residency. In this context, the present appeals 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 the circumstances in relation to them were “exceptional”. This was accepted by the Tribunal. 15


Another feature of the case was the reliance which Mr Guo and, to a lesser extent, Mrs Hong placed on the hardship which their children would suffer if they (either both Mr Guo and Mrs Hong or just Mr Guo) were deported. Such hardship consisted of either separation from their father if they stayed in New Zealand or the upheaval associated with them being required (whether practically or legally) to go to China. Absent that consideration, the claim of Mr Guo to remain in New Zealand was tenuous to say the least.


Such arguments, however, could carry Mr Guo (and Mrs Hong for that matter) only so far. This is because:

  • (a) The s 207(1)(a) exercise must focus on the personal circumstances of the person to be deported and in particular whether the deportation of that person would be unjust or unduly harsh. For this reason a finding as to a high level of hardship for Jiaxi or Jiaming if Mr Guo were deported would not in itself necessarily justify the conclusion that Mr Guo's deportation was therefore unjust or unduly harsh; in particular having regard to his high level of culpability.

  • (b) That deportation would be unjust or unduly harsh to a...

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2 cases
  • DG (Bangladesh) v The Refugee Protection Officer
    • New Zealand
    • High Court
    • 1 July 2020
    ...of Immigration [2014] NZCA 513 at [11]. The Court of Appeal's decision in Guo was overturned on appeal in Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 but without reference to the Court's application of the leave 26 Waller v Hider [1998] 1 NZLR 412 (CA) at 413; applied......
  • Minister of Immigration v Dongmei Wu
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    ...so given the Tribunal referred at [96] of the IPT decision, above n 2, to the Supreme Court's decision in Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 as authority for a different 71 High Court decision, above n 1, at [66]. 72 Ririnui v Landcorp Farming Ltd [2016] NZSC......

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