Part 4: Investigation by Immigration New Zealand

4.1
In this Part, we summarise Immigration's investigation of Mr Liu's permanent residency status between May 2005 and September 2007. The investigation culminated in the decision of the Minister of Immigration, Hon David Cunliffe, not to revoke Mr Liu's permanent residency status at that time. However, in the paper recording his decision, he said that the file should continue to be assessed as a potential prosecution file and that he did not discount the possibility of reconsidering the matter in the future.

May 2005: Start of Immigration's investigation

4.2
Mr Liu arrived in New Zealand in December 2001 and was granted permanent residency in June 2002. In May 2005, shortly after he had applied for New Zealand citizenship, Immigration began investigating him with a view to considering his status as a permanent resident.

4.3
The investigation was prompted by an alert the New Zealand immigration authorities had received from the Australian immigration authorities. The Australian authorities had been told by the Chinese authorities that Yang Liu was believed to be a false identity and that Mr Liu was Yong Ming Yan. Yong Ming Yan was wanted in China for passport fraud and "economic crimes". Interpol had issued a Red Notice in his name, which meant that he was wanted with a view to extradition to China.

4.4
As a result of discussions with the Australian immigration authorities, Immigration officials became aware that Mr Liu had married shortly after he had arrived in Australia. He had not declared his Australian marriage when he applied for his New Zealand permanent residency permit.

4.5
Under the legislation at the time (the Immigration Act 1987), a permanent residency permit could be revoked if it had been procured by fraud, forgery, false or misleading representation, or by concealing relevant information. Immigration began investigating Mr Liu with a view to considering whether to revoke his permanent residency permit on the grounds that he had not declared his marriage, or that he had a passport in another name.

March 2006: Submission to revoke

4.6
In March 2006, a submission was forwarded to the Minister of Immigration (Hon David Cunliffe) recommending that Mr Liu's permanent residency permit be revoked. The submission recorded that, in response to the allegations made against him, Mr Liu claimed that the Chinese authorities were politically motivated because of his involvement in pro-democracy activities in China and overseas, and that his life would be in danger if he returned to China.

4.7
Mr Cunliffe told us that, given the potential risks to Mr Liu's life if he returned to China, he was particularly concerned to understand whether the charges faced by Mr Liu were likely to be well-founded, and the implications of revoking his residency permit. He asked the officials for further advice.

July 2006: First deferral of decision

4.8
In July 2006, Immigration officials advised the Minister that, although it would be possible to proceed with the revocation, they recommended deferring the decision pending the outcome of the Australian authorities' investigations.

4.9
Officials believed that evidence the Australian authorities obtained during their investigation might help establish whether Mr Liu's permanent residency had been procured by fraud, rather than by mistake. If the authorities could prove fraud, the case for revocation would be stronger and it was less likely that a decision to revoke would be successfully appealed. They anticipated knowing the outcome of the Australian authorities' investigation by September 2006.

4.10
The Minister accepted this recommendation and deferred the revocation decision.

November 2006: Second deferral of decision

4.11
In September 2006, a warrant to arrest Mr Liu was issued in Australia, for allegedly opening and operating bank accounts under a false name. In November 2006, his Australian permanent residency was cancelled (although Mr Liu was later successful in having this decision overturned by the courts).¹

4.12
Proceedings had also been started by the Australian authorities and funds owned or controlled by Mr Liu had been frozen. A settlement was agreed with the authorities under which the proceedings that had been initiated were discontinued and Mr Liu agreed to forfeit A$3.75 million (which was later repatriated to China).

4.13
In the meantime, Mr Liu's file had been referred to Immigration's Fraud Branch. The Fraud Branch asked for the revocation submission to be deferred again, because of concerns that references to their investigation in the submission could prejudice their investigation.

September 2007: The Minister's decision

4.14
In March 2007, after Mr Cunliffe had queried the reason for the delay, the revocation submission was referred back to him.

4.15
The submission was comprehensive. It explained that the proposed basis for revocation was Mr Liu's failure to declare his marriage and that he had a passport in a different name, and outlined the factors Mr Cunliffe had to weigh in making his decision. On the one hand, there were the suspicions of fraud and other offending in New Zealand and China, Mr Liu's settlement with Australian authorities, and the cancellation of his Australian residency permit. On the other hand, Mr Cunliffe had to take account of Mr Liu's personal and domestic circumstances in New Zealand, and his claims that he would be killed if he returned to China.

4.16
The submission also explained Mr Liu's appeal rights under the Immigration Act if his permanent residency permit were revoked.

4.17
Mr Cunliffe told us it was the most difficult and complex case he was called on to consider in his time as Minister of Immigration. He was mindful that, if he revoked residency, it was likely that his decision would be judicially reviewed. He was concerned to ensure that, if he did decide to revoke Mr Liu's residency, the case for revocation was as solid as possible.

4.18
Mr Cunliffe sought further advice on the submission from a senior legal adviser at the Department of Labour. That advice confirmed that there were valid grounds for revoking Mr Liu's permanent residency under the Immigration Act.

4.19
Mr Cunliffe told us that he did not take issue with that advice, and recognised there were strong grounds for suspicion. However, he was faced with two contradictory versions of events, and none of the allegations against Mr Liu had been proven before an appropriate authority. Immigration's fraud investigation was continuing. Mr Cunliffe decided that the appropriate course of action was to defer the decision to revoke until the investigation was completed.

4.20
The revocation submission that had been presented to him by Immigration officials provided him with two options – "sign revocation" or "not sign revocation". He crossed both these options out and wrote the following note at the bottom of the paper:

I have decided that the most appropriate route for this case at this time is for it to continue to be assessed by [Border Security Group] as a potential prosecution file. I do not discount the possibility of reconsidering it in the future.

4.21
The note is dated 24 September 2007.

4.22
Immigration notified Mr Liu of Mr Cunliffe's decision in October 2007, including advising him that the Minister did not discount the possibility of reconsidering the matter in the future as a consequence of further investigations.

Our comments

4.23
The issues confronting Mr Cunliffe were difficult. The allegations made against Mr Liu raised a question about whether Mr Liu should retain his New Zealand residency. But the political situation in China, and concerns about its human rights record, meant that the revocation of Mr Liu's New Zealand residency could have serious implications for his safety. It is apparent from our review of the files, and discussions with him, that Mr Cunliffe was particularly concerned to know whether the allegations were true.

4.24
The advice provided to Mr Cunliffe by officials, in particular the advice provided by the senior legal adviser in August 2007, conveyed, in reasonably strong terms, that it was open for the Minister to revoke Mr Liu's residency. We were told that Immigration does not usually provide advice that strongly advocates that the Minister should make a particular decision. The strongly worded advice on this occasion was not common.

4.25
However, despite this advice, from the information provided to the Minister it remained unclear whether Mr Liu had committed the offences that were alleged. In those circumstances, the decision Mr Cunliffe made not to revoke Mr Liu's residency until the fraud investigation was complete was both open to him and understandable. He effectively put the issue on hold until the prosecution investigation had been brought to an appropriate conclusion. That is how his decision was understood by Immigration, and its investigation of Mr Liu continued.

4.26
In our view, this decision was made in an appropriate way. It represented a sensible way in which the difficult decisions arising from unproven allegations could be addressed. The reasons for the Minister's decision were made clear, and were formally recorded on the file in the way that was understood.

4.27
Also, although the Department's effective recommendation was not being followed, the decision-making process shows that Mr Cunliffe addressed the issues with considerable thought and care. There was no evidence of favouritism or that the Minister made the decision for improper reasons.

1: Liu v Minister of Immigration [2008] FMCA 595.