Jiaxi Guo v Minister of Immigration

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young J
Judgment Date02 September 2015
Neutral Citation[2015] NZSC 132
Date02 September 2015
Docket NumberSC 124/2014

[2015] NZSC 132

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 124/2014

Between
Jiaxi Guo
First Appellant
Jiaming Guo
Second Appellant
and
Minister of Immigration
Respondent
Counsel:

R M Dillon for Appellants

C A Griffin and M F Clark for Respondent

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.

Held: It was not the SC's role to determine whether the Tribunal's decision should be set-aside. It was also to be noted in passing that s245(1A) IA (inserted 7 May 2015) now provided that decisions of the Court of Appeal as to leave were final.

The expression “unjust or unduly harsh” was composite in nature and that the Tribunal need not inquire separately as to whether deportation would be (a) unjust or (b) unduly harsh. It involved a balancing of the reasons why the appellant was liable for deportation against the consequences for the appellant of deportation. The public interest was not immaterial to the application of s207(1)(a) but was primarily relevant to the application of s207(1)(b). The primary focus was on the personal circumstances of the person in respect of whom deportation was proposed and those of immediate family members who would be affected by that person's deportation.

Eligibility for deportation was usually associated with fault on the part of the person to be deported. In this context, the present appeals had the unusual feature that those to be deported (Jiaxi and Jiaming) were without any fault. For this reason, it could fairly be said that the circumstances in relation to them were “exceptional”.

By the time the Tribunal reached its decision that it would not be unjust or unduly harsh to deport Jiaxi and Jiaming from New Zealand, the family, including Jiaxi, had been living in New Zealand for more than 11 years. Jiaxi and Jiaming were both well-settled. Forced removal to China would be a considerable upheaval. As well, their future prospects in China (and particularly those of Jiaming) might be thought to have been less favourable than they would be in New Zealand. Given that they had done nothing wrong, it was distinctly arguable that a comparatively low level of injustice and hardship would suffice to meet the s207(1)(a) test. These considerations warranted careful analysis of the basis of the Tribunal's decision, and this revealed some areas of legal concern:

First, although the expression “unjust or unduly harsh” was composite in nature, it was not to be read as simply meaning “unduly harsh”. The Tribunal's application of s207(1)(a) in relation to Jiaxi and Jiaming was by reference solely to the extent of the hardship they would face if deported. There was no explicit consideration as to whether, in light of the absence of fault on their part, it was just that they face such hardship or whether such hardship was, for this reason, undue.

Secondly, the Tribunal's focus on whether deportation would be unduly harsh was in terms which suggested a comparison of the level of hardship which Jiaxi and Jiaming would suffer as against that of anyone who was required to go to another country as opposed to the proportionality of that hardship in respect of the basis on which they were liable to deportation. The only proportionality analysis explicitly carried out was in the context of the family as a whole and was not carried out appellant by appellant.

Thirdly, there were references in the Tribunal's decision to the proposition that G's offending could not be without “consequences”. This consideration was relevant in the case of Jiaxi and Jiaming, if at all, to the application of s 207(1)(b), rather than s207(1)(a). The basis for deportation of Jiaxi and Jiaming was not the offending itself but rather the fact that it had not been disclosed. Even if the Tribunal had been concerned with ensuring that there were “consequences” for G's deception, it was not clear that this consideration would be relevant when considering the deportation of the children.

Finally, the Tribunal appeared to have approached the case on the basis that what was in issue was whether the family as a whole should be deported or not. In those circumstances there was an arguable question whether the Tribunal erred in law in concluding that it would not be unjust or unduly harsh to deport Jiaxi and Jiaming from New Zealand.

This warranted a grant of leave under s 245(3) IA given the practical significance of the issues raised as to the application of the “unjust or unduly harsh” test to those whose liability to deportation arose through no fault of their own.

This was a most unusual appeal in that the point at issue was simply whether the appellants should have leave to appeal to the HC against the decision of the Tribunal. The focus of the argument which was put to the CA seemed to have been very much addressed to avoiding deportation for G and might have obscured the merit of some of the points to be made in favour of the children. For this reason the Court differed from the CA in this case.

Appeal allowed. Appellants granted leave to appeal to the HC.

JUDGMENT OF THE COURT
  • 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.

REASONS

(Given by William Young J)

The nature of the appeals
1

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

2

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

3

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

Background
4

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.
5

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.

6

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

7

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...

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