CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Appellant. ALAVINE FELIUIA LIU Respondent. Randerson, Harrison and Miller JJ

Transcription

1 IN THE COURT OF APPEAL OF NEW ZEALAND CA754/2012 [2014] NZCA 37 BETWEEN AND CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Appellant ALAVINE FELIUIA LIU Respondent Hearing: 5 February 2014 Court: Counsel: Judgment: Randerson, Harrison and Miller JJ U R Jagose and L M Inverarity for Appellant A G James for Respondent 26 February 2014 at 3.00 pm JUDGMENT OF THE COURT A The appeal is allowed. The High Court s direction that an immigration officer reconsider the decision not to set aside the respondent s deportation order is cancelled. B There is no order as to costs. REASONS OF THE COURT (Given by Miller J) Introduction [1] The respondent, a Samoan citizen, became liable to deportation after his work permit expired. On 4 January 2012 he was served with a deportation order at CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT v LIU CA754/2012 [2014] NZCA 37 [26 February 2014]

2 Christchurch Men s Prison, where he was serving time for offences of violence against his partner. [2] An immigration officer considered cancelling the deportation order, exercising a power found in s 177 of the Immigration Act That provision confers an absolute discretion upon an immigration officer but prescribes that where cancellation is considered, regard must be had to relevant international obligations. [3] Information before the immigration officer indicated that deportation would adversely affect the respondent s immediate family, which comprises his partner, N, and two children, one of whom is the respondent s biological son. 1 All except the respondent are New Zealand citizens, and no question arose of them accompanying him to Samoa. Among the international obligations which the immigration officer accordingly considered was art 3.1 of the United Nations Convention on the Rights of the Child (the Convention), which provides that in all actions involving children their best interests shall be a primary consideration. 2 He did not expressly consider art 9.1, which relevantly provides that a child shall not be separated from its parents against their will except where competent authorities decide that separation is in the child s best interests. [4] The immigration officer decided not to cancel the deportation order. A week later, on 18 April 2012, the appellant was deported on leaving prison. He responded by moving for judicial review of the s 177 decision. He succeeded in the High Court, Whata J holding that arts 9 and 10 (which concerns movement between states for family reunification purposes and barriers to contact between parents and children in different states) were relevant international obligations which must be considered. 3 The Judge ordered that an immigration officer reconsider the decision He has other family in New Zealand, but it has not been suggested that their interests are relevant for present purposes. United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990). Liu v Chief Executive of Department of Labour [2013] NZHC 2753 [High Court decision].

3 [5] From that decision the Chief Executive appeals. It is said that arts 9 and 10 of the Convention are not relevant and that even if they are, the Judge was wrong to compel reconsideration. The power to cancel a deportation order under s 177 [6] Section 177 is the legislature s response 4 to the Supreme Court decision in Ye v Minister of Immigration. 5 In that case it was held that immigration officers must apply the exceptional circumstances of a humanitarian nature test in what is now s 207 of the 2009 Act 6 when deciding whether to cancel removal orders. 7 The legislature has specified that immigration officers are now under no such obligation. The section provides: 177 Deportation order may be cancelled (1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies. (2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand s international obligations. (3) If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise (a) (b) may make a decision as he or she thinks fit; and in doing so, is not under any obligation, whether by implication or otherwise, (i) (ii) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or to inquire into the circumstances of, or to make any further inquiry in respect of the information Inserted into the Immigration Act 1987 on 18 November 1991 as s 52A by the Immigration Amendment Act 1991, s 23(1). From 1 October 1999 s 52A was substituted for s 58, which largely resembled what is now s 177 of the current Act. Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 [Ye (SC)]. Formerly s 47 of the Immigration Act Supplementary Order Paper 2009 (32) Immigration Bill 2007 (132-3) (explanatory note) at 105.

4 provided by or in respect of, the person who is the subject of the deportation order or any other person. (4) Whether or not an immigration officer considers cancelling a deportation order, (a) (b) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and section 23 of the Official Information Act 1982 does not apply in respect of the decision. (5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record (a) (b) a description of the international obligations; and the facts about the person s personal circumstances. [7] Absolute discretion finds a definition in s 11: 11 Meaning of absolute discretion of the decision maker If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that (a) (b) the matter or decision may not be applied for; and if a person purports to apply for the matter or decision, there is no obligation on the decision maker to (i) (ii) (iii) consider the purported application; or inquire into the circumstances of the person or any other person; or make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and (c) whether the purported application is considered or not, (i) (ii) the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application. [8] It will be seen that an immigration officer s discretion under s 177 is not in every sense absolute. Although there is no right to apply, or to a reasoned decision, a deportee may require an immigration officer to consider cancellation by giving the

5 officer information about the deportee s personal circumstances that is relevant to New Zealand s international obligations. Relevance is an objective standard. When considering cancellation, whether in response to such information or of his or her own volition, the officer must consider relevant international obligations. Where any are relevant, the officer must record a description of them and the facts about the deportee s personal circumstances. Manifestly, s 177 offers an inauspicious setting for judicial review but, as Whata J recognised, the courts may at least review an immigration officer s decision for compliance with these requirements. 8 The decision in this case [9] The respondent entered New Zealand in 2006 on a visitor s permit, followed by his then wife and two children. A third child was born in The couple separated in 2008 after the wife obtained a protection order. She has deposed that the respondent used violence against her throughout the marriage. She and the children of that relationship returned to Samoa in [10] In 2008 the respondent began living with N and her child of a previous relationship. A son was born in There is evidence that the respondent has a close relationship with the children. However, he assaulted N on a number of occasions, the last on 3 January He also breached a protection order and a sentence of community work. This led to the sentence, of six months imprisonment, following which he was deported. 9 [11] The Immigration Service had granted a series of work permits allowing the respondent to remain in New Zealand, latterly because of his relationship with N. The immigration officer who made the s 177 decision had also recommended that the respondent seek a visa under s 61 of the Immigration Act 2009, having formed the opinion that his relationship with N was genuine. The respondent did not take that advice. He remained in the country unlawfully after his last work permit expired on 17 June At [31]. Police v Feliuai DC Christchurch CRI , 20 February 2012.

6 [12] Before making the s 177 decision the immigration officer interviewed the respondent and N, who strongly opposed deportation, citing the interests of the children, and indicated that she would resume her relationship with the respondent if he undertook treatment for alcohol abuse. Submissions were received from counsel. The decision recorded the investigations that the officer had undertaken and listed sources of information such as counsel s submissions which had been considered. No reasons were given, the officer relying on s 177(4)(a). The decision recorded and described the following international obligations that the officer had considered: United Nations Convention on the Rights of the Child (UNCROC) Article 3 - In all actions concerning children, their best interests shall be a primary consideration; Article 5 - the State shall respect the responsibilities, rights and duties of parents; Article 7 - the right to know and be cared for by parents as far as possible; Article 8 - the right of the child to preserve his or her identity including family relations without unlawful interference; Article 16 - no child shall be subject to arbitrary or unlawful interference with his or her family; Article 18 - the State is to use its best efforts to ensure recognition of the principle that both parents have common responsibilities for the up-bringing and development of the child; Article 19 - the State shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence; Article 24 - the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health; Article 27 - the right of every child to a standard of living adequate for the child s physical, mental, spiritual, moral and social development. International Convention on Civil and Political Rights (ICCPR) Article 17 - the right not to be subjected to arbitrary or unlawful interference with family; Article 23 - the family is the natural and fundamental group unit of society and the State;

7 Article 24 - the right of every child to measures of protection by the State, society and their family as required by their status as a minor. International Convention on Economic, Social and Cultural Rights (ICESCR) Article 6 - the right to work; Article 10 - the widest possible protection and assistance should be given to the family which is the natural and fundamental group unit of society; special measure of protection should be given to children and young persons without any discrimination for reasons of parentage or other conditions; Article 11 - the right to an adequate standard of living for himself and family; Article 12 - right to highest attainable standard of physical and mental health; Article 13 - the right to education [13] It will be seen that the international obligations enumerated did not include arts 9 or 10 of the Convention, although arts 3, 5 and 7 (among others) were considered. The evidence shows that the omission of art 9.1 was reasoned; the Immigration Service understood, following the judgment of this Court in Ye v Minister of Immigration, 10 that it was not relevant in deportation cases. The Convention [14] New Zealand became a party to the Convention in 1993, subject to certain reservations not one of which is presently relevant. 11 [15] Article 3.1 provides that in all actions by state agencies concerning children, the best interests of the child shall be a primary consideration. Best interests is a broad concept 12 which obviously extends to a child s interest in not being separated from its parents except for good cause. Under art 3 the child s interests are not the primary consideration, still less the paramount consideration as they would be in proceedings about care of children within the jurisdiction. In an immigration setting Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [69] [70] [Ye (CA)]. New Zealand Reservations to Convention on the Rights of the Child (New York, 20 November 1989) United Nations Treaty Collection <treaties.un.org> at 9. United Nations High Commissioner for Refugees UNHCR Guidelines on Determining the Best Interests of the Child (May 2008) at [1.1].

8 other considerations, such as the public interest, may be no less important. 13 The purpose provision of the 2009 Act emphasises that point, providing that the Act is intended to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals. 14 [16] Article 5 provides for the rights and responsibilities of parents to provide for the child s exercise of rights recognised in the Convention, and art 7 provides for the child s right to know and be cared for by its parents. These articles, like art 23.1 of the International Covenant on Civil and Political Rights, recognise the importance of both the child s interests and the family unit. 15 We have already mentioned art 10. Article 12 states that a child who is capable of expressing views is entitled to have those views given weight appropriate to its age and maturity. [17] Article 9 should be set out in full: 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 Ye (SC), above n 5, at [24] [25]. Immigration Act 2009, s 3(1). Puli uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA) at 329.

9 Was art 9.1 relevant here? [18] The Judge reasoned that art 9.1 was relevant for two reasons, which he developed in some detail. First, art 9.4 refers specifically to such separation occurring through deportation, and that term must refer to separation of the kind envisaged in art 9.1; it followed that art 9.1 applied to this case. 16 Second, construction should be informed by the principle, reflected in the Convention, that a child should be raised within a familial context unless it is not in their best interests to do so. 17 [19] We respectfully disagree with the Judge s first reason. We agree that such separation refers to the separation of child from parents against the latter s will, but the phrase is merely a shorthand way of expressing the grammatical subject of art 9.4. The article does not go on to provide that the obligation created in art 9.1 applies to separation that happens through deportation or imprisonment. Far from it, art 9.4 creates a different and lesser obligation in such cases; state parties must provide a family member with essential information concerning the whereabouts of the absent member. [20] Nor is it easy to reconcile the imperative nature of the obligation in art 9.1 with public interest considerations by way of example, public safety that may justify a parent s deportation or imprisonment notwithstanding the resulting separation from a child. In such cases one would expect the child s interests to be a primary but not paramount consideration. In Ye the Supreme Court confirmed that is indeed the case, albeit by reference to art 3.1 (and s 47(3) of the Immigration Act 1987) rather than art [21] These conclusions find support in other sources of authority which are gathered in the judgment of Glazebrook J in Ye. 19 We will not repeat them here. We do observe that superior courts in other jurisdictions have also recognised or held that art 9.1 does not apply to deportation. In Ye this Court mentioned two judgments High Court decision, above n 3, at [34] [37]. At [46]. Ye (CA), above n 10, at [68] [69], approved in Ye (SC), above n 5, at [24]. At [67] [71].

10 of the Supreme Court of Canada. 20 We also draw attention to the judgment of Mason CJ and Deane J in Minister of State for Immigration and Ethinc Affairs v Teoh, 21 Naidike v The Attorney-General of Trinidad and Tobago 22 (a decision of the Privy Council) and ZH (Tanzania) v Secretary of State for the Home Department 23 (a decision of the House of Lords). In the latter case Baroness Hale said that: 24 questions with respect to the upbringing of a child must be distinguished from other decisions which may affect them. The UNHCR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains the matter neatly, at para 1.1: The term best interests broadly describes the well-being of a child.... The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that: the best interests must be the determining factor for specific actions, notably adoption (article 21) and separation of a child from parents against their will article 9; the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies see: article 3. This seems to me accurately to distinguish between decisions which directly affect the child s upbringing, such as the parent or other person with whom she is to live, and decisions which may affect her more indirectly, such as decisions about where one or both of her parents are to live. Article 9 of UNCRC, for example, draws a distinction between the compulsory separation of a child from her parents, which must be necessary in her best interests, and the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death. [22] This interpretation also finds support in the art 9.2 reference to any proceedings pursuant to paragraph 1, which suggests art 9.1 is concerned with proceedings that relate to or are concerned with the welfare of the child, not proceedings that relate or are directed to the parent. That view is consistent with what Baroness Hale said in the passage just quoted. [23] Only one of the authorities to which we were referred holds that art 9.1 applies in deportation cases, but it seems that the Judge in that case, Ewebiyi v Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at [75] and Canadian Foundation for Children, Youth and the Law v Canada (Attorney-General) 2004 SCC 4, [2004] 1 SCR 76 at [10]. Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at Naidike v Attorney General of Trinidad and Tobago [2004] UKPC 49, [2005] 1 AC 538 at [74] per Hale LJ. ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. At [25].

11 Parr, 25 was not referred to the authorities just cited. We do not consider that references to art 9.1 in this Court s judgments in Huang v Minister of Immigration 26 at [29] and Puli uvea v Removal Review Authority, 27 assist the respondent. Indeed, the Court in Puli uvea recorded that art 9 did not apply. Both decisions also predate Ye. [24] With respect to the Judge s second reason, we agree that the family is a fundamental social unit and it is ordinarily in a child s best interests to be raised within it. Those norms underpin the Convention, as the preamble demonstrates. However, it does not follow that art 9.1 was relevant in the circumstances of this case, for several reasons. [25] First, s 177 speaks of obligations which New Zealand has assumed in international law and which are relevant in any given case. It envisages that there may be a number of such obligations. The immigration officer is expected to identify and consider such of them as are relevant on the facts known to the officer. This suggests that the section is concerned with specific, identifiable obligations. The Judge reasoned that art 9.1 is relevant because it supports the general principle, inherent in the Convention, that a child should be raised in its family unit. 28 That had the effect of making relevant a specific obligation not because it applied directly but because of a principle underlying it. [26] Second, an international obligation is relevant if, assessed objectively, it could reasonably apply to the facts of the case under consideration. By way of illustration, Mr James argued before us that the immigration officer also failed to consider the wishes of the respondent s son. As noted, art 12 of the Convention provides that a child is entitled to have its views given age-appropriate weight. We accept that that obligation may assume relevance in deportation cases, but it is necessary to bear in mind that the issue is not whether it is in the child s interest to be separated from its parents. The issue is whether a parent should be deported, with the consequence that parent and child may be separated. It may be quite apparent, as Ewebiyi v Parr HC Christchurch CIV , 7 December Huang v Minister of Immigration [2008] NZCA 277, [2009] 2 NZLR 700 at [29]. Puli uvea v Removal Review Authority, above n 15, at 328. At [46].

12 it is in this case, that the child s best interests favour the parent remaining in New Zealand. Or, again as in this case, the child may be very young. (The boy was aged three at the time.) [27] This leads to a further point: to the extent that international obligations overlap in any particular case, it may be reasonable to consider whether a given obligation adds anything of relevance, in the circumstances of any given case, to another which plainly applies. Here art 3.1 was engaged and there was no doubt that the interests of the child, a primary consideration under the Convention, favoured the respondent remaining in New Zealand. Article 9.1 could add nothing of relevance. Nor, on the facts, could art 12. [28] Recognising this difficulty, Mr James sought to elevate the interests of the child to something more than a primary consideration. He emphasised the imperative terms of art 9.1 ( shall not be separated ) and argued that art 9.1 creates a fundamental right. We have already held, following Ye, that the interests of the child are not the primary or paramount consideration in immigration cases. We emphasise too that under s 177 the immigration officer is not required to apply any particular test; it must follow that he or she need not attach particular weight to any given international obligation. 29 Article 10 [29] Article 10 provides: 1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. 2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are 29 Puli uvea, above n 15, at 334; Huang, above n 26, at [67].

13 prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention. [30] The statement of claim did not invoke art 10. On the facts, no question arose of reunification being precluded or contact denied. However, the Judge discussed the article briefly, ultimately concluding that the immigration officer ought to have considered it. [31] The Judge found art 10 relevant primarily because it begins with a reference to the obligations of state parties under art 9.1. For reasons just outlined, we take a different view of the meaning and relevance of art 9.1. Counsel agree that art 10 was not relevant here. We concur. Decision [32] The immigration officer did not err in law by failing to have specific regard to art 9.1, or for that matter art 10. It follows that the appeal must be allowed. [33] We do not need to respond to Ms Jagose s submissions about relief. The order that an immigration officer must reconsider the decision to set aside the deportation order is cancelled. [34] There will be no order as to costs. Solicitors: Crown Law Office, Wellington for Appellant