Anh v Minister of Immigration HC Auckland CIV-2011-404-001544 [2011] NZHC 706 (18 July 2011)

Last Updated: 25 July 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2011-404-001544}

UNDER the Judicature Amendment Act 1972

AND UNDER the Immigration Act 2009

BETWEEN DINH NGOC HOANG ANH Plaintiff

AND MINISTER OF IMMIGRATION Defendant

Hearing: 7 July 2011

Appearances: JP Delamere and C Curtis for Plaintiff

A Longdill for Defendant

Judgment: 18 July 2011 at 5:00 PM

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 18 July 2011 at 5.00 pm, pursuant to Rule 11.5 of the High

_{Court Rules.}

Registrar/Deputy Registrar

Date...............

Solicitors: Marshall Bird & Curtis, PO Box 105-045, Auckland 1143

Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140

ANH V MINISTER OF IMMIGRATION HC AK CIV-2011-404-001544 18 July 2011

Application

[1] The plaintiff seeks to challenge, by judicial review, a decision by an immigration officer, Ms Noble, to decline to grant her a further student visa.

Background

[2] The plaintiff is a Vietnamese national, who has been in New Zealand since 27

June 2009. She formerly held student visas entitling her to be in New Zealand. Her last student visa expired on 7 February 2011. Before that expiry date she applied, through her immigration agent TDA Immigration and Student Services Limited, for a further student visa. The plaintiff sought a further student visa because she intended to take up the offer of a place with UUNZ Institute of Business and study for a New Zealand Diploma in Business.

[3] The plaintiff completed the student visa application form supplied by Immigration New Zealand, and provided further supporting documentation. One of the documents she attached to support her application was a letter from her previous education provider, the New Zealand Institute of Science and Technology. The letter stated:

... Ms. Dinh enrolled a 33-week General English course at New Zealand Institute of Science and Technology (NZIST) from 22nd March 2010 to 7th January 2011.

She started the course from 16th February 2010 and her attendance during her course was 68%. She started the course in Intermediate level and later, she progressed to High Intermediate level. Please take note.

If you need any further clarifications, please do not hesitate to contact us.

[4] Upon reviewing the plaintiff’s application for a further student visa, Ms Noble noted the level of attendance at the previous course at only 68 per cent. That was a matter that concerned her bearing in mind one of the conditions of a student visa is that the holder attends the place of study or training endorsed on the visa. Ms Noble considered no explanation was provided in the application or in any of the other supporting documents for the plaintiff ’s low attendance. She invited the

plaintiff, through her immigration agent TDA, to provide further information by 24

February 2011.

[5] TDA replied on the plaintiff’s behalf. It took the view the plaintiff was not required to supply any further information. TDA considered there were no grounds for suggesting the plaintiff had breached a condition of her visa or to suggest that she was not a bona fide student.

[6] Given that response, and in the absence of any explanation for the attendance level of 68 per cent, Ms Noble declined the application for a further student visa.

[7] TDA then pursued a complaint with the branch manager of Immigration New Zealand, Mr Andrews. Mr Andrews reviewed the file. He confirmed that Ms Noble had the right to request the further information about the attendance level and also to decline the application when there was no response to that request. However, Mr Andrews advised that Immigration New Zealand was willing to grant a further opportunity to the plaintiff to provide additional comment and any supporting documentation to explain her level of non-attendance. He extended the time for her to do that to 29 March 2011.

[8] However, TDA rejected that offer in an email of 24 March 2011. By that date the plaintiff had already commenced this application for judicial review.

The relief sought

_{[9] The amended statement of claim alleges:}

the defendant’s decision was unreasonable and substantively unfair;

there was a breach of due process and legitimate expectation; and

_{the defendant’s decision was pre-determined.}

[10] It seeks a variety of orders:

granting the plaintiff a student visa;

a declaration that a tertiary student is not required to satisfy a minimum level of attendance; and

a declaration that the direction at E3.20(c) requires a student to attend the

_{course listed on the visa to the exclusion of other courses.}

_{Alternatively for:}

an order remitting the application for reconsideration; and

_{a finding of breach of due process.}

The issue

[11] Despite the apparent breadth of the allegations and relief sought, at the outset of the hearing Mr Delamere confirmed that the issue before the Court was a narrow and confined one. The issue was the interpretation to be given to former reg 22 of the Immigration Regulations 1999 and current cl E3.20(c) of the Immigration Instructions, namely the clause providing that subject to any special direction to the contrary every student visa is subject to the condition:

(c) The holder attends the place of study or training endorsed on the visa

by an immigration officer; ...

[12] It was accepted that if that issue was determined against the plaintiff, the application for judicial review could not succeed.

Further evidence

[13] Prior to the hearing the plaintiff sought to adduce new evidence, namely an information sheet released by Immigration New Zealand confirming changes to the student policy and a media release by the Minister. However, Mr Delamere also confirmed that as the real issue was the interpretation of cl E3.20(c), whatever the

Department or defendant considered the matter to be was largely irrelevant as ultimately it was a matter for the Court to determine. He did not seek to rely on the proposed further evidence.

The plaintiff ’s case

[14] The plaintiff’s argument is that the defendant has wrongly interpreted cl E3.20(c) and imposed an unlawful condition on the plaintiff, namely an attendance and/or percentage attendance requirement, that the clause on its proper interpretation did not impose.

[15] Mr Delamere made a number of points in support. First he noted that the student visa application form issued by Immigration New Zealand in November

2010 did not require that for tertiary students. The form provides at F7:

If you already hold a student permit and you are applying for a further student permit, you must provide additional evidence. Please send photocopies, not original documents.

◻ I have attached evidence of my previous student performance.

◻ I have attached evidence of satisfactory attendance and progress

(primary and secondary students only).

◻ Not applicable.

[16] Mr Delamere submitted that the form was consistent with s 25 of the Education Act 1989 that required primary and secondary school students’ attendance at school. He noted the form did not refer to tertiary students and that no record or roll was taken to ensure the attendance of university or other tertiary students at their courses.

[17] Mr Delamere submitted that cl E3.20(c) was effectively exclusionary. It informs the holder of the student visa they may attend the course endorsed on the visa but no other.

[18] Next Mr Delamere noted that monitoring the student’s progress at the course

was provided for in cl E3.20(d):

The holder makes satisfactory progress, as determined by the Ministry of Education or other relevant national or governing body, in the course of study endorsed on the visa ...

and that no particular attendance level was required to satisfy this progress condition.

[19] Mr Delamere concluded that the defendant was seeking to impose an attendance requirement on the plaintiff which was not authorised by the regulation. For those reasons he submitted that the application for judicial review should be granted.

Decision

[20] The sole issue is the correct interpretation of the clause formerly contained in the Regulations and now contained in cl E3.20(c) of the Immigration Instructions.

[21] The purpose and principles underlying the immigration legislation must inform that determination. The plaintiff was initially granted a student permit under the Immigration Act 1987 on 4 February 2010. That permit was valid until 7

February 2011 and was initially subject to the 1987 Act. Section 24(4) of that Act confirmed the purpose of a student permit:

A student permit entitles the holder of the permit to be in New Zealand during the currency of the permit for the purpose of undertaking a course of study or training.

[22] As one might expect, that confirmed a student permit was granted for the purpose of undertaking a course of study. Section 27(1)(a) of the 1987 Act provided that every temporary permit was subject to such conditions as may be prescribed by regulation. Regulation 22 of the Immigration Regulations 1999 prescribed the standard conditions for student permits, including a condition in very similar terms to the condition in cl E3.20(c) and to the same effect. It seems that the condition was directed at ensuring realisation of the purpose of the visa provided for in s 24(4).

[23] The 1987 Act was replaced by the Immigration Act 2009. Section 415 of that

Act has the effect that a holder of a visa or permit under the former Act is deemed to

be the holder of a visa under the 2009 Act. The 2009 Act applies accordingly with any necessary modifications.

[24] The plaintiff was, as the holder of a student permit, deemed to hold a temporary visa under the Immigration Act 2009. The purpose of the relevant temporary visa is defined as:

(a) allowing a stay in New Zealand for the period or until the date specified in the student permit granted under the former Act; and

(b) allowing the holder to study; and

(c) subject to conditions equivalent to the conditions of the student permit granted under the former Act.

[25] Under the 2009 Act the conditions referred to are no longer prescribed by regulation but rather are specified in immigration instructions.[1]

[26] Clause E3.20 of the Immigration Instructions provides for the conditions of, inter alia, a student visa:

E3.20 Conditions of student visa, limited visa and interim visa for study purposes

See also Immigration Act 2009 s 378

Subject to any special direction to the contrary, every student visa, limited visa and interim visa granted for the purpose of study is subject to the following conditions:

(a) At all times during the currency of the visa to be in New Zealand, the holder has the means to maintain himself or herself in New Zealand, in the form of:

(i) funds held in New Zealand by or on behalf of or in trust for the holder; or

(ii) an acceptable form of financial undertaking by a third party supplied to an immigration officer before arrival in New Zealand; or

(iii) a current approved sponsorship undertaking (see E6); or

(iv) financial assistance available to the holder under any multilateral or bilateral aid programme administered in New Zealand by a Government department or statutory body; and

(b) At all times during the currency of the visa to be in New Zealand, the holder has the means to travel to a country to which the holder has a right of entry, such means to be in the form of:

(i) a fully paid travel ticket to any such country; or

(ii) sufficient funds held in New Zealand by or on behalf of or in trust for the holder (being funds additional to any sum required under paragraph (a)) to purchase any such ticket; or

(iii) an acceptable form of financial undertaking by a third party supplied to an immigration officer before arrival in New Zealand; or

(iv) a current approved sponsorship (see E6); or

(v) financial assistance available to the holder under any multilateral or bilateral aid programme administered in New Zealand by a Government department or statutory body; and

(c) The holder attends the place of study or training endorsed on the visa by an immigration officer; and

(d) The holder makes satisfactory progress, as determined by the Ministry of Education or other relevant national or governing body, in the course of study endorsed on the visa by an immigration officer; and

(e) The holder pays all or any fees that may be fixed from time to time and that are payable by the holder in respect of the course of study undertaken or to be undertaken.

Effective 29/11/2010 (Emphasis added.)

[27] Conditions (c) and (d) are directed at and provide for different requirements relating to the visa holder’s study. The purpose of a student visa is to permit the holder to be in New Zealand to undertake an approved course of study at an approved place of study. Condition (d) is directed at ensuring the holder makes satisfactory progress in that course of study. If the holder is not making satisfactory progress the purpose of the visa is frustrated and the visa may not be renewed. However, that does not mean, as Mr Delamere suggested, that there is no need to physically attend the place of study provided the holder makes satisfactory progress in terms of exam results.

[28] As noted the purpose of a student visa is to permit the holder to be in New Zealand to undertake an approved course of study at an approved place of study. That purpose demands more than just the student passing his or her exams. There is little sense in a student being in New Zealand to undertake a course of study at an approved place of study if not to attend, in the sense of being present at, that place of study. Condition (c) is directed at that aspect.

[29] The applicable plain meaning of “attend” is in my view:[2]

To present oneself, for the purpose of taking some part in the proceedings, at a meeting for ... instruction, ....

Condition (c) requires the student visa holder to attend, in the sense of being present at, the approved place of study. It is not simply an exclusionary condition intended to inform the visa holder they may attend the listed education provider in exclusion to any other, as pleaded by the plaintiff. That argument, taken to its logical extreme, would mean the holder would not have to physically attend the approved place of study at all, yet would still satisfy the conditions of the visa provided they did not attend any other place of study. I cannot accept that that is the intention of the instruction.

[30] This interpretation is consistent with the use of the words “attend” and

“attendance” elsewhere in the Immigration Instructions. For example:

(a) Clause E3.60 provides that breach of conditions of a person’s visa constitutes sufficient reason to deport a temporary entry class visa holder. Specific reference is made by way of example to “the holder of a student visa who fails to attend their place of study without reasonable excuse”. Clause U7.10 similarly provides that “a student visa holder who breaches any of the conditions of their visa (in particular those relating to attendance ...) may become liable for deportation”.

_{(b) Clause 6.1.1(a) defines “full-time study” as:}

For private training establishments full-time study is generally considered to be enrolment in a course of study that requires attendance for a minimum of

20 hours per week.

(c) Clause U6.5(a) relating to distance education (correspondence)

students provides that:

Distance education students may attend the New Zealand education provider at which they are enrolled so that they can undertake practical study or sit examinations, or for any other educational reason that requires their presence at the provider.

[31] The words “attend” and “attendance” as used in these clauses plainly envisage the student being present at the approved place of study. It is a standard condition to which the Immigration Instructions attach considerable importance as reflected in the consequences of non-compliance. Student visas are granted precisely so that students can during the currency of their visas be in New Zealand to undertake courses of study at places of study here, a concomitant of which is attendance at those places of study for that purpose.

[32] It is no answer that tertiary institutions do not always take records of attendance or may not require a certain level of attendance to satisfy course requirements. The requirements of the Education Act 1989 or of individual tertiary institutions are not in issue but rather the requirement of Immigration New Zealand that student visa holders attend their approved places of study. It appears from the student visa application form that evidence of satisfactory attendance may not be routinely required by the Department. The Department is, however, entitled to require such evidence. In the present case, evidence of attendance was provided and it was determined such attendance was unsatisfactory. In other cases where no records of attendance were taken such evidence might, for example, comprise a declaration as to attendance, if required.

[33] The argument advanced on behalf of the plaintiff as to the interpretation of cl E3.20(c) is untenable. I find that to satisfy the requirements of cl E3.20(c) the visa holder must attend the place of study or training by physically presenting him or herself there for the purpose of instruction in the course.

[34] That finding would enable the Court to deal with this application on the basis that the immigration officer was entitled, in the absence of any explanation by the plaintiff, to take the view that 68 per cent attendance was not sufficient compliance with the requirement that the person attend the place of study.

[35] However, it must be acknowledged that there may be grey areas in relation to what is required to satisfy the obligation to attend. A student could hardly be said to be satisfying the requirement to attend if he or she only attended for instruction 10 per cent of the time. Equally there could be little doubt that if the student attended

90 per cent of the time, that would be regarded as sufficient attendance. But there will be grey areas.

[36] An almost 70 per cent attendance such as in this case falls into such a grey area. It may be able to be explained. Indeed, I note that was the recorded position taken by the officer and, subsequently, the branch manager in this case. Unfortunately, on the basis of the advice she received, the plaintiff chose not to avail herself of that opportunity. I note however that it seems she has complied with the other obligations of the permit. There is no information before the Court apart from this attendance issue to suggest that she was other than a bona fide student.

[37] The position the plaintiff finds herself in is because of the incorrect interpretation of cl E3.20(c) that her advisers took on her behalf. I accept that although they were mistaken in taking that view, they did so in good faith. In the circumstances, I consider it reasonable to allow the plaintiff one last opportunity, in light of this decision, to provide information to the defendant to enable consideration of whether or not there was a good reason for her not attending more than 68 per cent of the time.

Result

[38] The interpretation of the Regulations and Immigration Instructions and particularly the requirement under cl E3.20(c) to attend contended for by the defendant is confirmed as the correct interpretation.

[39] However, in the particular circumstances of this case, the defendant is

directed to reconsider the plaintiff’s application for a further temporary student visa.

[40] To enable the defendant to do so the plaintiff is to provide any further information to the defendant within 10 working days of the delivery of this decision. In the event the plaintiff fails to do that the decision declining the visa will be confirmed.

_{[41] In the circumstances I make no order for costs.}

Venning J

---

[1] Immigration Act 2009 s 22.

[2] Oxford English Dictionary (online version, June 2011).