Rajan v Minister of Immigration CA89/03 [2003] NZCA 141; [2004] NZAR 615 (3 July 2003)

Last Updated: 20 November 2020

IN THE COURT OF APPEAL OF NEW ZEALAND

CA89/03

BETWEEN S K RAJAN, K R V V RAJAN AND A RAJAN
Appellant

AND THE MINISTER OF IMMIGRATION
Respondent

Hearing: 23 June 2003

Coram: Keith J Blanchard J Glazebrook J

Appearances: G D S Taylor for Appellants
I C Carter and I C Vernon for Respondent

Judgment: 3 July 2003

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

• [1] Mr and Mrs Rajan are citizens of Fiji. They have been in New Zealand since 1992 and wish to stay. On 15 March 2001 they applied for work permits under the New Zealand Immigration Service’s October 2000 Transitional Policy. On 11 December 2002 the Associate Minister of Immigration declined to grant them the character waivers needed for them to qualify under that policy.
• [2] On 2 May 2003 John Hansen J dismissed their claim for judicial review of that decision. This was on the basis that the review proceedings were not filed within the time limit set out in s146A of the Immigration Act 1987 and that there were no special circumstances to justify an extension of time. The Judge also, however, examined the merits and concluded that the review proceedings would not in any event have succeeded.

Background facts

• [3] This matter has a long history. In 1989 Mr Rajan applied for resident status in Australia on the grounds that he was living in a de facto relationship with an Australian citizen, a Ms Hegvold. That application was approved in early 1990. Less than three months later Mr and Mrs Rajan were married in Fiji. Mrs Rajan was granted a spouse’s migrant visa and arrived in Australia at the end of March 1991.
• [4] In March 1992 the Australian authorities received information to the effect that the de facto relationship upon which Mr Rajan’s resident status was based had been contrived for immigration purposes. Before he could be spoken to by Australian authorities, on 23 April 1992 Mr Rajan left Australia to come to New Zealand with his wife and Australian born son.
• [5] At the airport in New Zealand Mr and Mrs Rajan were each granted a residence permit in reliance on their Australian residence status. Their Australian visas were, however, cancelled by the Australian authorities on 30 April 1992. On 5 June 1992 the New Zealand Immigration Service was informed about the Australian decision. After investigation the Minister of Immigration, on 21 May 1994, made an order revoking Mr and Mrs Rajan’s residence permits. A long saga of litigation followed – see Appendix One to this judgment.
• [6] The decision under appeal relates to the October 2000 Transitional Policy, which operated from 1 October 2000 to 30 March 2001. It enabled certain categories of persons who had been settled in New Zealand for a period of five years to apply for a two and a half year work permit and then to apply for residence two years after getting that permit. Mr and Mrs Rajan had been in New Zealand for five years and, as well as their Australian born son, they also had a daughter born in New Zealand. This prima facie meant that they qualified under the policy. The problem was that, because of the Australian fraud and their original entry into New Zealand in reliance on their Australian residence status, they did not meet the character requirements for residence without being granted a character waiver. The character requirements provided that an applicant had to have a character waiver if he or she:

in the course of applying for a New Zealand visa or permit, has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information.

• [7] In deciding whether to grant a character waiver the policy provided that officers must consider the surrounding circumstances of the application to decide whether or not they were compelling enough to justify waiving the good character requirement. Circumstances that could be taken into account included, but were not limited to, a number of factors. The relevant factor for Mr and Mrs Rajan was as follows:

if applicable, the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive the NZIS [Immigration Service].

• [8] Officers making a character waiver decision were required under the policy to record their consideration of the surrounding circumstances and their reasons for their decision to waive or decline to waive the good character requirement.
• [9] It is common ground that, because of s13C of the Immigration Act 1987, the Associate Minister, in declining the character waivers, was obliged to follow the character policy.
• [10] Mrs Rajan applied under the October 2000 policy in respect of herself and her husband. Through their immigration consultants they also applied for a character waiver in respect of Mr Rajan. The consultants erroneously considered Mrs Rajan did not need a character waiver. On 15 October 2001 the Immigration Service informed the Rajans’ immigration consultants that the Minister of Immigration had declined to grant character waivers for Mr and Mrs Rajan. On 24 January 2002 Mr and Mrs Rajan’s immigration consultants wrote again asking for reconsideration of the character waiver issue on the ground that there was no record of the reasons for declining the application. This time the issue of a character waiver was considered by the Associate Minister of Immigration and his decision not to grant a character waiver was conveyed to the Rajans’ immigration consultants by letter of 11 December 2002.
• [11] The Associate Minister recorded that he had considered the matter afresh after reviewing the file. He said that the Rajans had established themselves in New Zealand and that they had a New Zealand and an Australian born child who both appeared well settled in New Zealand. The Associate Minister went on to say, however, that, in light of the Rajans’ previous conduct in obtaining residence permits to enter New Zealand, he was not prepared to grant the character waivers. He set out his reasons as follows:
  1. The false information supplied with your client’s applications for residence permits upon arrival in New Zealand (i.e. that they had validly been granted residence status in Australia) was highly significant. The explanations offered by your clients concerning the manner in which they obtained Australian residence were rejected as not credible (that point being the subject of a decision of the New Zealand High Court). As a consequence the then Minister revoked your clients’ residence permits, that decision being upheld by the Deportation Review Tribunal, the High Court and the Court of Appeal. Your clients are well aware of those decisions and I noted that copies of them have previously been provided;
  2. The fact that Mr Rajan has not faced criminal charges as a result of the supply of that information does not affect the quality of that conduct. Given the effect of the fraud, arguments that Mrs Rajan may not have been aware of it assume lesser significance in the circumstances;
  3. In terms of the humanitarian circumstances of your clients’ case they have been entirely of your clients’ own making. The revocation of their residence permits occurred in 1994 and was confirmed by the Deportation Review Tribunal in 1996. Up until their application under the Transitional Policy your clients had done everything within their power to remain in New Zealand (including avoiding detection by the NZIS) despite the fact that successive Ministers and the courts have refused to intervene in their case. Ministers and the NZIS have repeatedly requested your clients to leave New Zealand but they have refused to do so;
  4. In terms of your client’s potential contribution to New Zealand, while they and their family appear to have settled well into New Zealand and advanced themselves in a significant manner, I did not consider their potential contribution to New Zealand to be so significant as to outweigh the other aspects of their case; and
  5. In terms of the interests of your clients’ children, Vicky and Ashnita, I am aware of New Zealand’s international obligations, and in particular that their best interests are a primary consideration in any decision that I make. I note, however, that as Australian and New Zealand citizens respectively, they are free to remain in New Zealand and to come and go as they please (including to undertake schooling). Whether or not their best interests involve their remaining in New Zealand is a matter for Mr and Mrs Rajan to decide.
• [12] The Associate Minister also recorded that it was vital that the integrity of the Trans Tasman Travel Agreement be maintained. Because the Rajans were granted residence in New Zealand on the basis of the Agreement, that they had defrauded the Australian Immigration Service was also in his view material.

High Court decision

• [13] In the High Court the Crown opposed judicial review both on substantive and procedural grounds. The Crown pointed first to the fact that the time limit provided in s146A of the Immigration Act for the issue of judicial review proceedings had expired on 12 March 2003. The proceedings were filed on 11 April 2003. The Crown submitted that no special circumstances existed justifying the exercise of the discretion to extend time.
• [14] John Hansen J accepted the Crown submission that there were no special circumstances. This was on the basis that it was not sufficient to amount to special circumstances to assert that an applicant was not aware of the time limit.
• [15] The Judge then went on to examine the merits on the basis that the Crown did not rely heavily on the s146A point. He held that none of the grounds relied on had been made out. He said:

Both Mr and Mrs Rajan’s positions have been considered extensively and frequently. There has been full consideration given to the position of the children. There has been no failure to be fair, just or equitable or to follow the due process of law. There has been no discrimination proved. Consideration has been given to New Zealand’s international obligations. The Associate Minister had adequate information before him. It was, as he said, comprehensive. None of that information has been shown to be erroneous. Although hard in human terms for the Applicants, they have not shown the decision was unreasonable, unjust, harsh or oppressive. Nor have they shown that the Associate Minister failed to consider the impact of the Bill of Rights Act or any other matters.

Section 146A

• [16] We deal first with the s146A time limit. Section 146A provides as follows:

146A Special provisions relating to judicial review of decisions under this Act

(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced within 3 months after the date of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.

(2) Where a person has both—

(a) Appealed against a decision of an Authority or the Tribunal under any of sections 115, 115A, and 117; and

(b) Brought review proceedings in respect of that same decision,—

the High Court is to endeavour to hear both matters together unless it considers it impracticable in the particular circumstances of the case to do so.

(3) In this section, statutory power of decision has the same meaning as in section 3 of the Judicature Amendment Act 1972.

(4) Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.

Submissions of Mr and Mrs Rajan on s146A

• [17] Mr Taylor, for Mr and Mrs Rajan, submitted that the Judge was wrong to hold that there were no special circumstances justifying an extension of time for filing the review proceedings. He recognised that there would normally be major difficulties in appealing against the non-exercise of a discretion under s146A but submitted that in this case there was an error of principle as the Judge had misunderstood the special circumstances the Rajans advanced. It was not that they were unaware of the time limit. It was rather that, because of delays by the Immigration Service in supplying material, their lawyer was not in a position to file the proceedings.
• [18] The letter refusing to grant the character waivers was provided to Mr and Mrs Rajan by their immigration consultants on 17 December 2002. The consultants advised that in their view there were no grounds for judicial review of the Associate Minister’s decision. On 31 January 2003, after consulting their solicitor, Mr and Mrs Rajan wrote to the Immigration Service requesting disclosure of the list of documents placed before the Associate Minister. They say that a list was requested rather than a copy of the whole of the file because they already had a large number of documents. On 28 February 2003 the Immigration Service faxed a letter to the Rajans’ solicitor enclosing the list of the documents that were before the Associate Minister at the time of the decision. On 11 March 2003 (the day before the expiry of the three month limit on 12 March 2003) Mr Shankar requested from the Immigration Service copies of 55 documents on that list. These were supplied on 27 March 2003. On 11 April 2003 the judicial review proceedings were filed.
• [19] Mr Taylor acknowledged that there were delays by the Rajans during the three month period but submitted that the most significant delay was on the part of the Immigration Service in supplying the list of documents. In his submission it was responsible for the Rajans to ask for the list to avoid duplication of disclosure. However, counsel needed disclosure of the actual documents in order to advise if there were grounds for judicial review. These documents arrived after the three months limit had expired due to the delays in the provision of the list.
• [20] Mr Taylor’s final submission was that the merits of the judicial review application are strong (particularly in relation to Mrs Rajan) and that this should weigh in favour of the extension of time.

Crown Submissions on s146A

• [21] Mr Carter, for the Crown, submitted that it was not necessary to wait for receipt of the documents before filing the statement of claim. The statement of claim in his submission contained only very general allegations. It could have been prepared on the basis of the Associate Minister’s letter and the documents the Rajans already had. In his submission the timing of the filing of the review proceedings was explained by the fact that a removal order had been served on Mrs Rajan on 8 April 2003 rather than by the necessity to peruse the documents. On 8 April 2003 a removal order had been served on Mrs Rajan and a letter sent to Mr Rajan asking him to make contact so that a removal order can be served. Mr Rajan had not made contact at the time of the hearing before us.
• [22] The Crown submitted further that it is inappropriate to examine the merits of a judicial review application and certainly inappropriate to conduct the full judicial review hearing. Unless there is clearly no merit in the review application, a consideration of the merits should play no part in the consideration of a s146A application to extend time.

Discussion

• [23] We accept the Rajans’ submission that the Judge appears to have misunderstood the circumstances that were advanced by them. It is therefore appropriate that we examine the question afresh to see if an extension of time is justified.
• [24] The term “special circumstances” is a commonly used phrase in the New Zealand statute book. It requires circumstances that are uncommon, not commonplace, out of the ordinary, abnormal – see Cortez Investments Ltd v Olperhert & Collins [1984] 2 NZLR 434 in which this Court considered the meaning of special circumstances in the context of s151 of the Law Practitioners Act 1972. Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s146A time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans’ application was filed one month late and thus would require an extension of one third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay.
• [25] We now examine the Rajans’ excuse for the delay. The reason advanced was that the Rajans needed copies of the documents that had been placed before the Associate Minister. They could not, it was submitted, responsibly file proceedings before they had these documents and the Immigration Service had caused the late filing by the delay in providing the list of documents.
• [26] In the statement of claim in the review proceedings the grounds of review were set out as follows:
  10. THE decision by the Respondent to decline character waiver without first offering the second applicant an opportunity to respond to the prejudicial matters was wrong in as much as it was wrong to decline to deal with the First Applicant’s case on its individual merit/s when it was unaffected by any allegation of fraud or dishonesty.
  11. THE Respondent failed to give any consideration to the interests of the infant children or to her obligation under the United Nations Treaty and or Protocol.
  12. THE Respondent failed to consider the impact of the provisions of the Bill of Rights Act and the need to be fair; just; equitable; follow the due process of the law and to adopt a non-discriminatory policy.
  13. THE Respondent has based her decision on erroneous and or inadequate information and or her decision is unreasonable; unjust; harsh and oppressive. Similarly the Associate Minister’s decision is flawed.
• [27] We agree with the Crown submission that these grounds are general and that they would have been able to be pleaded on the basis of the Associate Minister’s letter and matters within the knowledge of the Rajans. The only ground that arguably required the disclosure of the file was the ground relating to inadequate information being before the Associate Minister. Even in that regard the provision of the list would have sufficed and the list was provided in ample time to allow the proceedings to be filed before the three month time limit had expired. We note too that the Rajans were aware at the time of requesting the list of documents that the full file had been lost and that there was a long delay on the part of the Rajans before even requesting the list of documents. In our view therefore there was no excuse for the delay in filing.
• [28] The final question is whether the merits of the review application can be considered in this context. The Legislature has not limited the factors that can be taken into account in assessing whether there are special circumstances for s146A purposes. We therefore do not accept the Crown submission that the merits of the review proceedings are not relevant except where the case is clearly hopeless. We do accept the Crown submission, however, that it is inappropriate in this context for the judicial review proceedings to be argued fully where a question of leave under s146A arises. This would render s146A nugatory.
• [29] Brief examination of the merits may in some cases be called for. Even with a strong excuse for the delay, however, if the review proceedings were hopeless, this would suggest that the s146A discretion should not be exercised. An application for review would clearly be hopeless, for example, if filed in respect of matters that have already been the subject of an appeal. In the case of the October 2000 Transitional Policy there was no appeal right, however, so this consideration does not apply in this case.
• [30] Examination of the merits could tip the balance in a marginal case. For example where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. We doubt, however, that even very strong merits could ever justify an extension if (as here) there is no proper excuse for the delay in filing. In any event, on close examination, the merits of the Rajans’ judicial review application are weak – see Appendix Two. We therefore, for different reasons, would uphold John Hansen J’s decision that there were no special circumstances and accordingly that no further time should have been allowed for the filing of the review proceedings.

Result and costs

• [31] For the reasons given the appeal is dismissed.

• [32] Mr and Mrs Rajan are ordered to pay costs of $5,000 plus reasonable disbursements, to be set by the Registrar if necessary.

Solicitors:
Umarji Mohammed, Auckland for Appellants
Crown Law Office, Wellington for Respondent

APPENDIX ONE

CHRONOLOGY

Date Event

21/05/94	Minister of Immigration revokes Mr and Mrs Rajan’s residence permits on grounds that they were procured by fraud, forgery, false or misleading representation or concealment of relevant information
11/07/94	Notice of revocation of residence permits served on Mr and Mrs Rajan
27/07/94	Mr Rajan appeals to Deportation Review Tribunal against revocation of residence permits under s22 Immigration Act 1987
28/07/94	Appeals to High Court filed under s21 Immigration Act 1987 on behalf of both Mr and Mrs Rajan
26/10/94	Mrs Rajan granted New Zealand citizenship by Minister of Internal Affairs
06/04/95	Vicky Rajan, the Australian born son of Mr and Mrs Rajan, granted New Zealand citizenship
19/04/95	Minister of Internal Affairs gives notice of intention to deprive Mrs Rajan of her citizenship
25/07/95	Tompkins J hears the two s21 appeals and a parallel application for judicial review
31/07/95	Mr and Mrs Rajan’s appeals under s21 and application for judicial review dismissed by Tompkins J
22/09/95	Appeal to Court of Appeal from judgment of Tompkins J

Date Event

10/03/96	Ashnita Rajan (daughter) born in New Zealand. Now aged 7 years. New Zealand citizen by birth
02/04/96	Mr and Mrs Rajan’s s22 appeal heard by Deportation Review Tribunal
26/06/96	Mr and Mrs Rajan’s appeal to Court of Appeal from Tompkins J heard (appeal on application for judicial review only as High Court decision under s21 is final)
17/07/96	Deportation Review Tribunal confirms revocation of Mr and Mrs Rajan’s residence permits and dismisses their appeals under s22. Directs that a 4 month temporary permit be granted to Mr Rajan in expectation that Mrs Rajan’s New Zealand citizenship status would be resolved within that time
30/07/96	Appeal against decision of Tompkins J dismissed. Reported as Rajan v Minister of Immigration [1996] 3 NZLR 543
05/08/96	Minister of Internal Affairs gives notice to Vicky Rajan that he intends to deprive him of his New Zealand citizenship
07/08/96	Minister of Immigration advises Mr Shankar, Mr and Mrs Rajan’s solicitor, that he declines to intervene in their case
08/08/96	Mr Rajan granted work permit – valid to 17/11/96 in accordance with Deportation Review Tribunal’s direction

Date Event

05/11/96	High Court decision in Rajan v Minister of Internal Affairs (Anderson J, HC, Auckland, M1040/95) dismisses Mrs Rajan’s application for judicial review against the order made by the Minister of Internal Affairs to deprive her of her New Zealand citizenship (s19 Citizenship Act 1977). Judgment to lie in court for 42 days before it could be sealed and uplifted
15/11/96	Mr Rajan granted a further work permit current to 17 February 1997
18/12/96	High Court judgment of Anderson J sealed
28/01/97	Minister of Internal Affairs signs an order depriving Mrs Rajan of her citizenship. From this point on Mrs Rajan is unlawfully present in New Zealand (except for a 15 day exemption period in March 2001)
18/02/97	Mr Rajan’s last work permit expires. From this point on Mr Rajan is unlawfully present in New Zealand (except for a 15 day exemption period in March 2001)
14/03/97	Rajan family petition to the United Nations Human Rights Committee (UNHRC) on the grounds that the New Zealand Government had acted in breach of Articles 23 and 24 of the International Covenant on Civil and Political Rights 1986 and Article 9 of the Convention on the Rights of the Child 1989
09/04/97	High Court decision in Rajan v Minister of Internal Affairs (Robertson J, HC, Auckland, M1242/96) dismisses Vicky Rajan’s application for judicial review against the order made by the Minister of Internal Affairs to deprive him of New Zealand citizenship

Date Event

15/04/97	The Minister of Internal Affairs signs an order depriving Vicky Rajan of his citizenship
21/04/97	Letter from Mr Shankar to the Minister of Immigration, enclosing copy of petition to UNHRC and requesting permission for the Rajan family to be allowed to remain in New Zealand – letter claims Mrs Rajan “stateless” as her Fiji passport was cancelled due to her NZ citizenship
15/05/97	Minister of Immigration declines to intervene
07/09/98	Letter from Mr Shankar to the Minister of Immigration requests grant of work permits for both Mr and Mrs Rajan pending the outcome of the complaint to the United Nations Human Rights Committee
22/09/98	As at this date NZIS were unable to locate Mr and Mrs Rajan
01/10/98	Letter from Minister of Immigration to Mr Shankar advising he is not prepared to consider granting work permits to Mr and Mrs Rajan as they were unlawfully in New Zealand. Minister asks Mr Shankar to advise Mr and Mrs Rajan to contact NZIS re their immigration status or to leave New Zealand as soon as possible. Minister notes that his department has been trying to contact Mr and Mrs Rajan for some time
30/06/00	Letter from Mr Rajan to Minister of Immigration asking her to reconsider his case
22/08/00	As at this date NZIS has not been able to locate Mr and Mrs Rajan to serve removal orders

Date Event

00/09/00	October 2000 Transitional Policy
28/09/00	Mr Rajan lodges appeal to Removal Review Authority
02/10/00	Mrs Rajan lodges appeal to Removal Review Authority
31/10/00	Minister of Immigration notifies Mr Rajan that she has decided not to intervene
10/11/00	Removal Review Authority advises Mr Shankar that it was unable to consider Mr and Mrs Rajan’s appeals as revocation of their residence permits had been confirmed by the Deportation Review Tribunal and there was no right of appeal to the Removal Review Authority (s47(5)(c))

APPENDIX TWO

MERITS OF THE JUDICIAL REVIEW APPLICATION

• [1] Only three of the grounds of review were pursued on appeal. A fourth was abandoned after an application to adduce further evidence (regarding the disparity of treatment between Mr Rajan and his siblings) was declined. The application was refused on the basis that disparity of treatment between the siblings was not a ground set out in the letters asking for the character waivers. In addition, the evidence was available at the time of the High Court proceedings.
• [2] The first ground of appeal pursued was that Judge was wrong to hold that the best interests of the children had been properly considered. Mr Taylor submitted that the Associate Minister had abdicated his responsibility and not properly considered the best interests of the children under the two alternatives that were facing them – to stay in New Zealand and to be taken to Fiji. He had also not articulated, as he was obliged to do, what weight he had placed on that factor compared to other primary factors.
• [3] In our view this ground is weak. The Associate Minister correctly directed himself that the best interests of the Rajans’ children are, in terms of New Zealand’s international obligations, a primary consideration. This is, however, a primary and not the paramount consideration: Puli’uvea v Removal Authority (1996) 2 HRNZ 510, 517. It can be overridden by other factors as long as those factors are important enough (either singly or in combination) in the particular circumstances. The consideration of where the best interests of a child lie must be approached on a child-centred and not a parent-centred basis and the particular circumstances of the particular child must be taken into account by decision-makers (insofar as those circumstances are laid before them).
• [4] In this case the letters asking for the character waiver made it clear that the children would accompany their parents to Fiji if the parents were required to leave New Zealand. The letters recorded that the children were well settled in New Zealand and doing well in school. The letters did not, however, suggest that the children would not do equally well in school in Fiji, or that they would not settle in Fiji after the initial disruption of moving. Some of the letters attached from family and friends did suggest that there would be economic hardship in Fiji for the family but little supporting detail was given. There was nothing before the Associate Minister to suggest that the fact of moving itself would harm the children (again other than that the children were settled).
• [5] In these circumstances therefore we do not consider the Associate Minister either abdicated his responsibility to consider where the best interest of the children lay or that he took an inappropriate parent-centred approach when he made the remarks about the parents being able to decide if the children should remain in New Zealand. We do not either see this as a case where the decision-maker should have been more explicit about the factors that were seen as outweighing the best interests of the children. Read as a whole the factors the Associate Minister took into account are clear.
• [6] The next ground of appeal pursued was that the Judge was wrong to conclude that the material before the Associate Minister was adequate. Mr Taylor pointed to the fact that two attachments to a letter of 30 June 2000 written by the Rajans were not before the Associate Minister. He was unable, however, to say what was in those attachments or point to the difference they might have made. This ground of review could not succeed.
• [7] The final ground pursued was that the Associate Minister had not properly considered the position of Mrs Rajan and in particular had not properly taken into account the fact that she had been innocent of her husband’s fraud. Mr Taylor pointed to findings to this effect by Tompkins J when he was considering the initial revocation of Mrs Rajan’s residence permit – see Rajan v Minister of Immigration HC AK M1151/94 31 July 1995.
• [8] We have carefully considered this ground of appeal but have concluded that this too is weak. In our view the Associate Minister, in paragraph 2 of his reasons, did give consideration to this factor. While it could perhaps have been more clearly worded we consider that the Associate Minister was saying that, even making the assumption of innocence on the part of Mrs Rajan, the effect of the fraud would have outweighed the innocence. This was a conclusion that was clearly open to him. We comment that Mrs Rajan was in New Zealand at the time of the October Transitional Policy only because of that fraud. We note too that there was a long period during which the Rajans could not be located by the Immigration Service.
• [9] We also comment that the statement in paragraph 1 of the Associate Minister’s reasons that the High Court had rejected the explanations of Mr and Mrs Rajan was correct. The explanation that has been put forward by both Mr and Mrs Rajan throughout the saga of litigation was that the de facto relationship upon which the Australian residence was based was a true de facto relationship and not contrived for immigration purposes. We note that Mrs Rajan, in her affidavit in these proceedings filed in support of the application for interim relief, repeats this explanation.