Liu v Chief Executive of Department of Labour

• Jurisdiction: New Zealand
• Judge: WHATA J
• Judgment Date: 24 October 2012
• Neutral Citation: [2012] NZHC 2753
• Docket Number: CIV 2012-409-000896
• Court: High Court
• Date: 24 October 2012

BETWEEN

Alavine Feliuai Liu

Plaintiff

and

Chief Executive Of Department Of Labour

Respondent

[2012] NZHC 2753

Judges:

Whata J

CIV 2012-409-000896

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

Application for review of decision of immigration officer not to cancel deportation order — plaintiff unlawfully resident in New Zealand at various times — domestic violence issues — deported after third instance of offending against partner — plaintiff had young son with partner — immigration officer did not refer to art 9 United Nations Convention on the Rights of the Child (“UNCROC”) — art 9 provided that the state had to ensure that a child was not separated from a parent, unless it was in the best interests of the child to do so — whether immigration officer erred by not giving specific regard to art 9.1 UNCROC.

Counsel:

A G James for Applicant

L M Fong and L M Inverarity for Respondent

JUDGMENT OF WHATA J

1 Mr Liu was deported to Samoa. He was unlawfully resident in New Zealand and had been recently convicted of assaulting his female partner, Ms H. Mr Parr, the immigration officer, interviewed both Ms H and Mr Liu prior to making a decision not to cancel a deportation order. A focal point for his investigation was the status of their relationship and the interests of their children, N and A . 1 Mr Parr also had regard to Mr Liu's criminal history, a protection order against Mr Liu in favour of Ms H and her children and a family violence report. As he was required to do, he identified the international conventions that he considered in reaching a decision not to recommend cancellation of the deportation order. He does not refer to art 9 of the United Nations Convention on the Rights of the Child. Article 9 states:

Article 9

• 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

• 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

• 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

• 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

2 Mr Liu contends that Mr Parr should have taken into account art 9.1 and erred by not doing so. He also raises concerns about prejudicial material, apparent bias and failure to have regard to the wishes of Ms H. But the central issue in this case is whether Mr Parr erred by not giving specific regard to art 9.1.

Background

3 Mr Liu is a Samoan citizen. He travelled to New Zealand in April 2006 and was joined by his then wife, K, and his two daughters, in December of the same year. While in New Zealand they had a third daughter, and then a fourth daughter in August 2008, who was adopted out to extended family. Mr Liu's immigration history could be described as patchy. He held work permits between 20 June 2006 and 4 February 2008. A further work permit was declined, so that between 5 February 2008 and 16 June 2009 Mr Liu resided in New Zealand unlawfully. Mr Liu and K separated in early 2008 but a July police report shows that Mr Liu was allegedly harassing K and that she had taken out a protection order against him.

4 In February 2009, Mr Parr was assigned Mr Liu's file, and he interviewed Mr Liu and his new partner, Ms H. They had recently had a son, N, on X February 2009 and Mr Parr was satisfied that their relationship was genuine and stable. On that basis, in May 2009 Mr Parr recommended that Mr Liu be granted a one year work permit under s 35A of the Immigration Act 1987. The work permit was granted and extended for a further year with an anticipated expiry date of 17 June 2011.

5 On 6 September 2010 Mr Liu assaulted Ms H and was convicted and sentenced to supervision and community work. As a result of the conviction, Mr Parr determined that there was cause to deport Mr Liu under s 157 of the Immigration Act 2009. On 13 January 2011 he served a deportation notice on Mr Liu, but this was later cancelled to account for administrative error. Nevertheless, since 18 June 2011 Mr Liu has resided in New Zealand unlawfully. He did not exercise his right of appeal under s 206 of the Act against his liability for deportation. Mr Liu had, however, sent in a letter to the Immigration Service, care of Mr Parr, seeking to appeal under s 157(2) of the Immigration Act, the deportation liability notice. It seems from the record that was overtaken by Mr Parr's acknowledgment that the previous notice had been cancelled for administrative error. In any event, due to his assumed unlawful status, Mr Parr interviewed Mr Liu on 16 September 2011 and was again satisfied that the relationship between him and Ms H was genuine. He advised Mr Liu to request a visa under s 61 of the Act no later than 11 October 2011. No request was made.

6 Mr Liu was arrested on 3 November 2011 for again assaulting Ms H. On 19 December 2011 Mr Parr spoke to Ms H and she confirmed that she and Mr Liu had separated and that she had obtained a protection order in her and her children's favour. She was not at that time prepared to support a s 61 visa for Mr Liu.

7 On 3 January 2011 Mr Liu was again arrested for further offending against Ms H and remanded in custody at the Christchurch Prison. He was later convicted and sentenced for, among other things, two charges of male assaults female.

8 By that stage, Mr Liu had been served with a deportation liability notice on the ground that he was unlawfully in New Zealand and had exhausted his rights of appeal. 2

9 As Mr Parr was aware of Mr Liu's personal circumstances and that they were relevant to New Zealand's international obligations, he proceeded to consider whether to exercise his statutory discretion to cancel the deportation order under s 177 of the Act.

10 As part of that process, Mr Parr interviewed Ms H on 6 January 2012. Mr Liu was separately interviewed after service of the deportation notice on 4 January 2012, and again on 23 March 2012. Mr Parr particularly sought comment from them on the following matters: 3

• 42.1 the status of their relationship;

• 42.2 Mr Liu's relationship with A in New Zealand; and with his parents and siblings

• 42.3 whether Mr Liu posed a risk of violence to N or A ;

• 42.4 their views on the best interest of N and A ; and

• 42.5 potential ways in which Mr Liu's relationship with N and A could be maintained if Mr Liu was deported.

11 Ms H says that in the course of the interview, Mr Parr made inappropriate comments, saying that he could not understand why Mr Liu treated such a nice person as herself in the way that he did and predicting that within the next year she would find another man and remarry. She says that in this context Mr Parr told her about his personal experience as a police officer and that he would

go drinking with airline hostesses and pilots. She said that Mr Parr told her about a relationship he had had with an air hostess called C who was later arrested for drug smuggling in Australia

12 Mr Parr accepts that he talked generally about her work as a flight attendant, and about his former relationship. He says he told her this because of the difficult hours that C had worked on the trans Tasman flights. He denies that he said Ms H should remarry. He did mention in passing that in the past police officers had sometimes mingled with flight attendants at parties. He accepts that the general conversation following the interview was not appropriate.

13 Mr Parr reached a preliminary decision on 6 January 2012 and discussed the same with his manager, Ms Jackson. It was agreed that further information and consideration was necessary. He then spoke to Mr Liu's sister, S and interviewed Ms H again on 14 March 2012.

14 He received correspondence from counsel for Mr Liu and there was a further interview with Mr Liu on 23 March 2012. While he did not interview Mr Liu's parents, it was clear to him that Mr Liu enjoyed a close relationship with his family in New Zealand. After meeting again with Mr Liu and his counsel, Mr Parr formed the view that the deportation order should not be cancelled. Mr Parr confirms that the draft decision was reviewed by a legal team and that his decision specifies each international obligation that he considered was relevant. It does not refer to art 9.1 of the United Nations Convention on the Rights of the Child. He states that:

• 52. My decision also specifies the source documents that I relied upon, including:

  • 52.1 Mr Liu's criminal history;

  • 52.2 My records of interviews with Mr Liu on 4 January 2012 (incorrectly referred to as 4 December...