Minister of Immigration v Dongmei Wu

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeWilliams J
Judgment Date20 June 2019
Neutral Citation[2019] NZCA 237
Date20 June 2019
Docket NumberCA649/2017

[2019] NZCA 237

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Williams, Brown and Clifford JJ

CA649/2017

Between
Minister of Immigration
Appellant
and
Dongmei Wu
First Respondent

And

Wen Zhong
Second Respondent

And

Immigration and Protection Tribunal
Third Respondent
Counsel:

K G Stephen and K Orpin-Dowell for Appellant

R E Harrison QC and C Curtis for First and Second Respondents

No appearance for Third Respondent

Immigration — appeal — Chinese citizens issued deportation notices — whether the Immigration and Protection Tribunal had erred in failing to consider information provided in relation to a New Zealand citizen who was the child of parents who were eligible for deportation — Immigration Act 2009

Appeal by the Minister of Immigration (“the Minister”) against a High Court (“HC”) decision which found that the Immigration and Protection Tribunal (“the Tribunal”) had erred in failing to consider, or consider sufficiently, certain information provided in relation to a New Zealand (“NZ”) citizen who was the child of parents who were eligible for deportation. The Judge considered that the Tribunal's finding that it was entitled to accord no weight to the information about a NZ born daughter's Chinese citizenship status was inconsistent with prior findings by the Tribunal in Guo v Minister of Immigration [2013] NZIPT 600006-7. Wu (“W”) was a Chinese citizen. She entered NZ with her parents in August 2010. She had not disclosed to Immigration NZ that she had a daughter, Xinyuan, (“X”) in China in the care of the father Zhong (“Z”), also a Chinese citizen. Had those details been disclosed, W would not have qualified for a resident visa. In 2012, Z and X entered NZ on a visitor visa granted on the basis of his relationship with W. Z obtained a work visa but a further application was declined. He then became eligible for deportation. In 2013, the Minister determined that W's visa was procured through concealment of relevant information and she was issued with a deportation notice. W and Z appealed to the Tribunal against their deportation notices under s207 Immigration Act 2009 (“IA”) (grounds for determining humanitarian appeal). Prior to the appeal being heard, W gave birth to a second child, Olivia (“O”) who was a NZ citizen. The Tribunal found there to be no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for W and Z to be deported. The Tribunal considered that the evidence had not established that the children would be significantly compromised by their residing in China. W had presented evidence after the hearing concluded but before it issued its decisions from the Chinese Consulate General in Auckland that O had no right to become a Chinese citizen, and that it would be necessary for the family to apply for continual visas for O to remain in China. The Tribunal stated it was not prepared to accept, at face value, that she could not become a citizen of China. In Guo the Tribunal concluded that a foreign born child to Chinese citizens would be able stay in China on a series of visas or obtain Chinese nationality on turning 18.

The issues were: whether the HC had erred in its finding that the Tribunal was not legally able to accord no weight to the only information it apparently had about a NZ citizen child's citizenship status and whether the Tribunal was obliged, notwithstanding s228(2) IA (Information Tribunal may consider - Tribunal was not obliged to seek any information further to those provided) to seek any information, further to that provided to it by the persons specified in s228(2) IA.

To the extent that the Tribunal may be taken to have considered information provided to it by witnesses in a different appeal, s230 IA applied (Tribunal must disclose prejudicial information). It was not procedurally fair to rely on information obtained as an inquisitor and then, adopting an adversarial approach, reject information inconsistent with it, not because of the inconsistency, but because it was unsworn and unsubstantiated. There was a potential inconsistency between the new information from W and the basis for its rejection in the Tribunal's reasons. The information upon which the Tribunal relied in Guo was a relevant consideration for the Tribunal in the current case and had to be taken into account. It was for the Tribunal to decide whether to accept that information or to use its inquisitorial powers to make further enquiries in light of the new information to determine whether the Guo information was still correct. The Tribunal had failed to make that decision transparently. Reasoning applied to resolve like cases should be generally consistent. It would be inconsistent for the Tribunal to rely on specific information to support findings about a NZ citizen child's immigration status in China in Guo but not to do so in the present case whose characteristics were materially similar.

The duty to provide proper reasons applied consistently in materially similar cases. Where those reasons included reliance on prejudicial information provided to or obtained by the Tribunal outside the confines of the appeal before it, the prior obligation to disclose that information and to allow the appellant time for comment. The Tribunal's error was in failing to accord W and Z natural justice.

The appeal was dismissed. The case was remitted to the Tribunal for reconsideration of the new information in accordance with the judgment.

  • A The appeal is dismissed.

  • B We answer the questions of law as follows:

    • (a) Whether the High Court erred in its finding that the Tribunal “was not legally able to accord no weight to the only information it apparently had about a New Zealand citizen child's citizenship status in the country to which its decision would send her”.

      No. The High Court was correct to find the Tribunal erred by failing to accord any weight to the information provided by Ms Wu in the particular circumstances of this case. The Tribunal was required to consider that information and, if it chose not to rely on it because it was inconsistent with other information previously available to it, it was required to disclose that other information and provide the first and second respondents an opportunity to respond to it before coming to a final decision.

    • (b) Whether the Tribunal was obliged, notwithstanding s 228(2) of the Immigration Act 2009, “to seek any information”, including “foreign law and legislative facts”, further to that provided to it by the persons specified in s 228(2) of that Act.

      No, but the lack of such obligation was immaterial. The Tribunal was obliged to act consistently when assessing the likely treatment in China of a New Zealand citizen who was the child of parents deported to that country. The view the Tribunal expressed in Guo v Minister of Immigration about that issue was a relevant consideration in this appeal and the Tribunal was required to have regard to it. If new information provided by the appellants suggested that Guo was no longer correct, but the Tribunal intended nonetheless to follow it, the Tribunal was required to disclose that intention and to give the first and second respondents an opportunity to comment further.

  • C The case is remitted to the Tribunal for reconsideration of the new information in accordance with this judgment.

  • D The appellant must pay the first and second respondents one set of costs for a standard appeal on a band A basis and usual disbursements.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Williams J)

Introduction
1

This is an appeal from a decision of Palmer J, who found that the Immigration and Protection Tribunal (the Tribunal) erred in failing to consider, or consider sufficiently, certain information provided in relation to a New Zealand citizen who was the child of parents who were eligible for deportation. 1

Background
2

Ms Wu is a Chinese citizen. She entered New Zealand with her parents in August 2010. She did not disclose to Immigration New Zealand that she had a daughter, Xinyuan, in China in the care of Mr Zhong, the child's father. Had these details been disclosed, she would not have qualified for a resident visa.

3

Mr Zhong is also a Chinese citizen. In September 2012, he entered New Zealand on a visitor visa granted on the basis of his relationship with Ms Wu. He brought their daughter Xinyuan, then two years old. One month later, Ms Wu and Mr Zhong married. Xinyuan was granted a student visa in order to attend primary school. Mr Zhong obtained a work visa but a further application for a second work visa was declined. He then became eligible for deportation.

4

In 2013, the Minister of Immigration (the Minister) determined that Ms Wu's visa was procured through concealment of relevant information. She was issued with a deportation notice on 19 May 2014.

5

Ms Wu and Mr Zhong appealed to the Tribunal against their deportation notices on humanitarian grounds. 2

6

Prior to the appeal being heard, in March 2015 Ms Wu gave birth to a second child, Olivia. Olivia is a New Zealand citizen.

7

Section 207 of the Immigration Act 2009 (the Act) governs humanitarian appeals. It provides as follows:

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.

Tribunal decision
8

The Tribunal found there to be no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for Ms Wu and Mr Zhong to be deported from New Zealand. 3 The Tribunal...

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