Zhang v Minister of Immigration

• Jurisdiction: New Zealand
• Judge: Gwyn J
• Judgment Date: 19 March 2020
• Neutral Citation: [2020] NZHC 568
• Court: High Court
• Docket Number: CIV 2019-404-000699
• Date: 19 March 2020

Under The Judicial Review Procedure Act 2016

Between

Yan Zhang

Applicant

and

Minister of Immigration

Respondent

[2020] NZHC 568

CIV 2019-404-000699

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Immigration, Judicial Review — application for judicial review of a decision declining to grant New Zealand residence under the Family (Partnership) category because the applicant's husband had already previously acted as a partner in two successful partnership residence applications — whether exceptional circumstances existed — reasons were not given — Immigration Act 2009 — Judicial Review Procedure Act 2016

Appearances:

S R G Judd for the Applicant

S M Earl & E A M Mok for the Respondent

JUDGMENT OF Gwyn J

Introduction

1 The applicant, Ms Yan Zhang, applied for New Zealand residence under the Family (Partnership) category of the immigration instructions (the Instructions) promulgated pursuant to the Immigration Act 2009 (the Act). Immigration New Zealand declined the application. Ms Zhang appealed to the Immigration and Protection Tribunal (the Tribunal). The Tribunal confirmed the decision of Immigration New Zealand as correct in terms of the Instructions but considered Ms Zhang had special circumstances that warranted consideration by the Minister of Immigration as an exception to the Instructions. 1 The Tribunal requested that the Minister make a decision pursuant to s 190(5) of the Act.

2 The decision under s 190(5) was made by the Associate Minister of Immigration, the Hon Kristopher Faafoi, on delegated authority from the respondent Minister. On 18 March 2019 the Associate Minister declined to grant the resident visa as an exception (the Decision).

3 Ms Zhang now seeks judicial review of the Decision.

Facts

4 Ms Zhang, a citizen of the People's Republic of China, met Kexiao Chen, a New Zealand citizen, in February 2015. A relationship developed where Mr Chen would fly back and forth to China to visit Ms Zhang. The pair married in China in May 2016. Shortly thereafter Ms Zhang discovered she was pregnant and in August 2016 came to New Zealand on a visitor visa. The couple's son was born in April 2017 and is a New Zealand citizen.

5 On 22 March 2018 the applicant applied for New Zealand residence under the Family (Partnership) category of the Instructions.

6 In a letter dated 16 August 2018 Immigration New Zealand declined the applicant's residence application because Mr Chen was found to be an ineligible

sponsor. Mr Chen was ineligible because a person may act as a partner only twice in their lifetime and he had previously acted as a partner in two successful partnership residence applications. His ineligibility was the only reason for the refusal of the application

7 The two instances in which Mr Chen had acted as partner are as follows: in 2002 he relocated to New Zealand from China with his then wife and their daughter. In 2004 he and his wife were granted residence visas under the general skills category. He acted as a secondary applicant in a successful residence class visa application; although the application was not made under the partnership category the Instructions deemed him to have acted as a partner. In 2008 he and his wife separated and he formed a relationship with a new partner.

8 In 2009 Mr Chen acted as a supporting partner for his new partner's application under the partnership category. Her residence visa was approved on 7 September 2010. The relationship subsequently broke down and the pair separated.

9 On the basis of these two previous instances of Mr Chen acting as a supporting partner Immigration New Zealand declined Ms Zhang's application.

Tribunal decision

10 Ms Zhang appealed the decision of Immigration New Zealand to the Tribunal pursuant to s 187(4) of the Act. This provision sets out that there will be grounds for an appeal where the decision was not correct in terms of the Instructions or where special circumstances of the appellant are such that consideration of an exception to the Instructions should be recommended by the Tribunal.

11 On 8 March 2019 the Tribunal issued its determination (Tribunal Decision). It held that the decision of Immigration New Zealand had been correct as it was made in accordance with the Instructions, there being no dispute that Mr Chen had acted as a supporting partner on two previous occasions and was therefore ineligible to act as sponsor of Ms Zhang's application. 2 However, while confirming that the decision was

correct in terms of the Instructions, the Tribunal considered there were special circumstances of the appellant that warranted consideration by the Minister of Immigration as an exception to the Instructions and requested the Minister consider the grant of a resident visa, with or without conditions, pursuant to s 190(5) of the Act. 3

12 The Tribunal noted that special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”. 4 The Tribunal identified the following salient factors in relation to the appellant:

• (a) Ms Zhang has been married to her husband, Mr Chen, since 2016 and he is a New Zealand citizen who has been living in New Zealand since 2002. 5 Their relationship is genuine and stable. 6

• (b) Ms Zhang and Mr Chen have a son who was born in New Zealand and is a New Zealand citizen. 7 Ms Zhang was then pregnant with their second child. 8

• (c) The couple's son has only ever lived in New Zealand and has never visited China. 9 The best interests of the children are a primary consideration and it is in their best interests that Ms Zhang remains living in New Zealand permanently where she is able to provide the necessary care and maintain their safe and loving family unit, with both parents. 10

• (d) Mr Chen has an adult daughter who is a New Zealand citizen and has lived in New Zealand since 2004. 11 Mr Chen's daughter has her own young daughter who is also a New Zealand citizen.

• (e) Mr Chen's previous relationships broke down for legitimate reasons and were not used as devices for migration. 12

• (f) China does not recognise dual citizenship and therefore Mr Chen is no longer a Chinese citizen and would be treated as a foreign citizen if he returned. 13

• (g) Mr Chen and the two children, who do not have Chinese citizenship, will have no automatic long-term permanent status in China. 14 They will be able to enter as temporary visitors. As visitors, they will not have access to health care, education or other services in the public system. Obtaining these services through the private system is costly and outside the family's means. Ms Zhang and Mr Chen do not have employment in China. Even if they were able to obtain employment the costs of private schooling would place significant strain on their resources. 15

• (h) Mr Chen is well-settled in New Zealand and holds a stable, senior position in a company in New Zealand. 16 He currently supports the family unit. 17

• (i) While Mr Chen may be able to reintegrate into life in China, as he was previously a Chinese national and speaks the language, this may require him to renounce his New Zealand citizenship and leave the country and home where he has been settled for the last 17 years and where his children are citizens. 18

• (j) Ms Zhang meets the health and character requirements for residence. 19

• (k) Ms Zhang has a clear updated Police certificate. 20

13 Cumulatively, these factors led to the conclusion that Ms Zhang had special circumstances arising from the best interests of her children, her genuine and stable relationship with Mr Chen, her lack of other viable pathways to obtain residence in New Zealand and the difficulty in relocating the family to China. 21

14 As a result, the Minister of Immigration was requested to make one of two decisions pursuant to s 190(5) of the Act: grant a residence visa with or without conditions, as an exception to the Instructions; or, decline to do so.

The Decision

15 On 18 March 2019 the Associate Minister of Immigration, on behalf of the Minister, declined to grant Ms Zhang a resident visa. 22 Reasons were not required and were not given. 23

16 In a sworn affidavit dated 2 July 2019 Mr Faafoi outlines the usual process that he adopted when making a decision pursuant to s 190(5), which he says he followed when making the Decision:

• (a) he would be provided with the Tribunal decision;

• (b) he would consider the Tribunal's decision with particular focus on the factual background and the Tribunal's assessment of special circumstances;

• (c) he was aware that he could ask for further information from the Immigration New Zealand file, however it was usually unnecessary to do so as the relevant circumstances were typically set out in detail in

  the Tribunal's decision and he could make his decision based on the factual background described, together with the special circumstances described;

• (d) after considering the matter he would make a decision and sign the Tribunal decision in the space provided to indicate whether the exception had been granted or not; and

• (e) the decision would then be returned to the Tribunal.

17 Mr Faafoi noted that he was aware he could grant a resident visa subject to conditions and of New Zealand's international obligations as they relate to the making of immigration decisions.

18 Mr Faafoi confirmed that he made the decision in the appellant's case and that he remembered making it. He also confirmed that he did not review any material beyond the Tribunal Decision.

The grounds for review

19 The applicant seeks judicial review on three separate but interrelated grounds:

• (a) In making the Decision the Associate Minister failed to properly consider one or more of the...