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High Court of New Zealand Decisions |
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF
PLAINTIFF PROHIBITED.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2007-404-3340
BETWEEN
H
Plaintiff
AND REMOVAL
REVIEW AUTHORITY
First Defendant
AND ATTORNEY-GENERAL
OF NEW
ZEALAND
Second Defendant
Hearing:
8 October 2007
Counsel: F Deliu for Plaintiff
M R Harborow for Defendants
Judgment: 12 October 2007
at 3.30 pm
RESERVED JUDGMENT OF RANDERSON J
This judgment was delivered by me on 12 October
2007
at 3.30 pm, pursuant to r 540(4) of the High Court Rules
Registrar/Deputy
Registrar
Solicitors: D J Gates, PO Box 222, Whangaparaoa, Auckland
Meredith Connell, PO Box 2213, Auckland
H V REMOVAL REVIEW AUTHORITY AND ANOR HC AK CIV 2007-404-3340 12 October 2007
Introduction
[1] The plaintiff is a 50 year
old Chinese National who, since her marriage to a
New Zealand resident in 2001, has been endeavouring to obtain permanent residence
in New Zealand.
[2] She has applied for residence twice but has been declined both times. Her
last application was declined
on 1 August 2006 and her work permit was then
revoked. She was then required to leave New Zealand but exercised her right of
appeal
to the Removal Review Authority under s 47 Immigration Act 1987. By a
decision issued on 23 May 2007, the Authority dismissed the
appeal.
[3] It is common ground that the plaintiff is unlawfully in New Zealand but a
removal order has not been sought by Immigration
New Zealand (INZ) pending the
outcome of this application for judicial review of the Authority's decision.
[4] The residence
applications by the plaintiff were based on the Partnership
policy of INZ. This required, amongst other things, that the applicant
provide
sufficient evidence to satisfy a visa or immigration officer that the plaintiff and her
husband had been living together
for 12 months or more in a partnership that was
genuine and stable.
[5] A number of issues were raised in support of the application
for judicial
review but chief among them was a submission that the Authority should have taken
into account the delays in processing
the successive applications for residence. It
was submitted that if they had been dealt with more promptly, the plaintiff would
have
been in a position to satisfy the policy requirements. Instead, it was submitted
the delays were so lengthy that there was eventually
a breakdown in the relationship
between the plaintiff and her husband.
[6] By the time of the hearing before the Authority,
there was no evidence that
the plaintiff and her husband were living together. Nor was there any evidence from
the husband supporting
the plaintiff's application. This remains the case today.
[7] The plaintiff has a daughter aged 24 years who is currently in
New Zealand
on a work permit. She is seeking residence here but she has not yet been invited to
make a formal application. However
she has entered "an expression of interest" in
accordance with current immigration policy. A further ground for judicial review
relates
to the Authority's consideration of the relationship between the plaintiff and
her daughter.
[8] Initially, the Minister of
Immigration was cited as first defendant but, by
consent, the first defendant is now the Removal Review Authority. The Authority
abides the decision of the Court and the second defendant is named on behalf of INZ.
The issues in more detail
[9] The grounds
of error alleged against the Authority were clarified during the
submissions of plaintiff's counsel:
a) Failure to have regard to the entire history
of the immigration
applications and, in particular, the effect of delay in processing them.
b) Failure
to consider whether the plaintiff would have met the residence
requirements.
c) Failing to take into
account inconsistencies by INZ in the application
of the policy discretion to defer the determination of the applications.
d) Failing adequately to consider the plaintiff's relationship with her
daughter.
e) Error
of law in relation to the approach to the plaintiff's request for
counselling.
f) Breach of the plaintiff's
reasonable expectations that she would be
afforded an opportunity for counselling and reconciliation and that she
would be entitled to stay in New Zealand.
g) Failing to consider the absence of an opportunity for a
humanitarian
interview.
Chronology
[10] It is convenient to set out a detailed chronology because it is relevant
to the
issue of delay and the reasons for that:
Mid 2001 The plaintiff and her husband met following an introduction
over the internet.
6 November 2001 The plaintiff married a New Zealand resident. The plaintiff
was then in New Zealand under a limited purpose permit.
23 December 2001 After a short period, the plaintiff
left New Zealand and
returned to China. She was later joined there by her husband
for
a period of just over one month before he returned to New
Zealand on 4 March 2002.
2 January 2002
The plaintiff applied for a Visitors Visa under the Partnership
policy. This was declined by INZ on the ground
that it was
not satisfied the relationship was genuine or stable in view of
the shortness
of time since the date of marriage and the fact
that the plaintiff had married within 10 days of her arrival
in
New Zealand.
18 April 2002 The plaintiff made her first application for residence under the
Partnership policy. Her daughter was initially included as a
secondary applicant but
was later removed from the
application because INZ determined she was not a dependant
child.
28 May 2002 The plaintiff had her first interview, with immigration
authorities in China.
28 July 2003 INZ advised the plaintiff that her application for permanent
residence would be deferred
for six months because she and
her husband had only lived together for a relatively short time.
However the plaintiff was granted a visitor's visa and told that
her file would be transferred
to the Hamilton branch of INZ.
25 September 2003 The plaintiff returned to New Zealand where she has resided
ever since.
12 August 2004 The plaintiff was then living in Christchurch and was
interviewed a second
time by INZ. This was about 13 months
after her application had been deferred for six months from
July 2003. By the time of this interview, the plaintiff had been
in New Zealand for nearly 12 months
and had been living with
her husband, although there were periods apart due to the
nature
of his employment. Expenses were being shared; the
daughter was living with them in rented accommodation; INZ
had concerns about the ability of the plaintiff and her husband
to communicate given the language difficulties.
20 August 2004 INZ
advised the plaintiff that her application would be further
deferred until February 2005 on the grounds that
it was not
possible to establish the stability of the marriage or whether it
would endure.
Reference was made to the relatively short
period of time they had been together since marriage; the
communication issue; and the lack of supporting documents.
1 March 2005 The plaintiff was further interviewed
by INZ. The
interviewing officer concluded that "it is a very difficult
marriage
to evaluate". Both the plaintiff and her husband were
clearly keen to have the matter dealt with and complained
about delay. The officer remained concerned about
communication issues and was surprised
at how little
documentation was provided despite this being sought on two
earlier occasions.
17 March 2005 INZ advised the plaintiff it was not satisfied the marriage was
stable and likely to endure.
Again, the issues of inability to
communicate and the lack of any substantial evidence of
financial or social interdependence were cited. The plaintiff
was given the opportunity to make any further
comments by
31 March 2005 but there is no evidence she did so.
11 April 2005 The plaintiff was advised
that her first residence application
was declined for the reasons notified to her on 17 March 2005.
The plaintiff appealed to the Residence Review Board. The
appeal was declined on 13 April 2006, the
Board finding that
INZ had correctly determined the residence application in
terms of the relevant
policy and there were no special
circumstances warranting the Minister's consideration of an
exception. There was no application for judicial review
following the Board's decision.
4 November 2005 While
the appeal to the Residence Review Board against the
decision on the first application was pending, the plaintiff
filed
a second application for permanent residence. Sometime after
August 2005, supporting documentation
was provided to INZ
such as joint bank statements and a tenancy agreement.
25 May 2006 It became evident
around this time that there were difficulties
in the plaintiff's marriage. Her husband wrote to INZ on this
date advising he no longer supported the application and that
the marriage had "been going down"
since October 2005. He
advised he had been to a marriage counsellor but the plaintiff
was "not
interested". He felt he had tried everything and could
do no more. He indicated he would be leaving Christchurch
and moving to Waihi. He attached a joint application to
dissolve the marriage signed by
both the plaintiff and himself
which stated that they had ceased living together on 1 May
2006.
This application was not filed and the parties remain
married.
13 June 2006 The plaintiff, accompanied by
her immigration consultant, was
interviewed again by an immigration officer. The consultant
had
indicated the plaintiff might change her application to
bring it under the policy relating to victims of domestic
violence. However the plaintiff advised she had decided not to
do this because she did not wish to have the police involved.
The plaintiff
advised that her last contact with her husband
was around 24 May 2006. She tolerated her husband's
changeable behaviour because she hoped their relationship
would work out eventually. Her husband
was in debt and all
her savings were exhausted. The issue of marriage counselling
was raised
by the plaintiff. The plaintiff was advised that INZ
would not extend the deadline for her to respond to earlier
correspondence.
26 June 2006 An immigration consultant wrote to INZ attaching
correspondence or emails which he said reinforced his belief
that the plaintiff's husband was attempting
to blackmail her in
connection with the residence application. He urged INZ to
reconsider the
application advising that if it was not for the
plaintiff's cultural upbringing and her own moral convictions
towards her husband, her case would "fall squarely on the
Domestic Violence policy which was
put in place to protect
spouses in our client's predicament". One of the emails
attached
indicated that her husband would renew support for
her residence application if she moved to Te Puke.
He
acknowledged he had to be a better husband and that he had
failed the plaintiff in many
ways. He stated that if the plaintiff
"cared about her marriage she would take my offer up".
5 July 2006
INZ advised the plaintiff that information that might be
prejudicial to her application had been received including
the
material from the plaintiff's husband. Comments were sought
by 20 July. It is not clear
whether any comments were
provided by the plaintiff.
1 August 2006 The plaintiff was informed that her second
residence
application was declined on the grounds that the marriage was
not genuine and stable
and was not supported by her husband.
The concerns already raised were reiterated in some detail.
Particular emphasis was placed on the events of 2006. The
plaintiff was advised that her application had
been considered
not only under the partnership or family category but also
under all other
residence categories.
1 September 2006 The plaintiff's work permit was revoked. She was advised
that if she
remained in New Zealand for more than a stipulated
period, she would be removed from New Zealand.
7 September
2006 The Ministry of Justice wrote to the plaintiff confirming she
had made a request under s 9
Family Proceedings Act 1980
that the Family Court arrange counselling. There is no
evidence that the plaintiff ever attended the counselling or that
her husband did.
3 October
2006 The plaintiff's request for reconsideration of the revocation of
her temporary permit was
declined.
1 November 2006 The plaintiff appealed to the Removal Review Authority. A
number of documents
and submissions in support of the appeal
were provided to the Authority by the plaintiff's immigration
consultant.
The Decision of the Authority
[11] The plaintiff's appeal to the Authority was heard by
Ms V J Shaw. The
Authority noted that the primary issue on appeal was whether the plaintiff's marriage
was genuine and stable. The decision commenced by setting out the history of
the
residence applications commencing from the time the plaintiff met her husband in
early 2001.
[12] The decision then set out
s 47 Immigration Act which relevantly provides:
47 Appeal against requirement to leave New Zealand
(1) A person
who is unlawfully in New Zealand may appeal to the Removal
Review Authority against the requirement for that person to leave
New
Zealand.
(2) The appeal must be brought within 42 days after the later of--
(a) The day on which
the person became unlawfully within New
Zealand; or
(b) The day on which the person received notification
under section
31 of the confirmation of the decision to decline to issue a permit, in the
case of a person
who, while still lawfully in New Zealand, had lodged
an application under section 31 for reconsideration of a decision
to
decline another temporary permit.
(3) An appeal may be brought only on the grounds that there are
exceptional circumstances of a humanitarian nature that would make it
unjust or unduly harsh for the person to be removed
from New Zealand, and
that it would not in all the circumstances be contrary to the public interest to
allow the person
to remain in New Zealand.
(4) For the purposes of subsection (3), the mere fact that a person's
circumstances are
such that the person would meet any applicable
Government residence policy requirements for the grant of a residence
permit does not in itself constitute exceptional circumstances of a
humanitarian nature.
...
[13] The Authority
also cited the following passage from Rajendra Patel v
Removal Review Authority & Anor [2000] NZAR 200, 204 in respect of the former,
but substantially similar, s 63B(2):
Section 63B appeals start from the premise that the appellants
are in New
Zealand unlawfully and are seeking an exemption. The stringent statutory
wording, "exceptional circumstances
of a humanitarian nature unjust or
unduly harsh", using strong words imposes a stern test. In its natural usage,
"exceptional
circumstances" sets a high threshold necessarily involving
questions of fact and degree. Associated in the test under the
paragraph is
that it be "unjust or unduly harsh" to remove on that account. It is a
composite test and the whole picture
is to be viewed, both circumstances and
effects; and as part of that whole picture, the effects on others as well as the
person removed may require consideration (Nikoo v Removal Review
Authority [1994] NZAR 509, 519).
[14] It is agreed that the appeal is governed by s 47 and it is common ground that
the statement of principle in Patel
correctly sets out the approach on an appeal to the
Authority.
[15] The Authority's principal conclusions were then stated as
follows:
[36] It is clear from the history of the appellant's marriage to a New Zealand
citizen and her two residence
applications based on that marriage that the
couple were extended ample opportunity by INZ to resolve the difficulties in
their marriage. Far from the difficulties being resolved, the marriage appears
to have progressively deteriorated to
the point where the couple were
physically separated.
[37] No evidence has been provided in support of the appeal
to establish
that the marriage is on any better footing than when INZ, not surprisingly,
declined the second residence
application in August 2006. Notably the
Authority has not been provided with any evidence that the couple are
presently
living together nor has the husband provided a letter of support for
the appeal.
[38] In light of this, coupled with
the absence of any evidence to establish
that the timely resolution of the couple's substantial marital difficulties can
realistically be achieved, the Authority concludes that the appellant's
marriage is hardly stable or likely to endure.
As such there are no features
arising from the marriage which constitute exceptional circumstances of a
humanitarian
nature such as to make it unjust or unduly harsh for the
appellant to be removed from New Zealand.
[39] Apart from
her marriage and recent residence in this country the
appellant has no real connection to New Zealand. She has lived for most
of
her life in China where she also has her immediate family. Her daughter,
while currently in New Zealand, is not
a permanent resident. Requiring the
appellant to return to her home country is hardly unjust or unduly harsh.
[40]
The Authority has considered all aspects of the circumstances of the
appellant as disclosed to it. Taken collectively, the
Authority finds that there
are no exceptional circumstances of a humanitarian nature such as to make it
unjust or unduly
harsh for the appellant to be removed from New Zealand.
Conclusion
[41] The first statutory requirement of section
47(3) has not been met and
accordingly, it is unnecessary for the Authority to consider the public
interest issue arising
under that subsection.
First Ground Failure to have regard to the entire history of the immigration
applications and, in particular,
the effect of delay in processing them.
[16] Mr Deliu carefully traversed the entire history of the plaintiff's residence
applications
since 2001. While agreeing that, in the early period, the plaintiff and
her husband did not have much opportunity to further their
relationship, he submitted
that by the time the first application was declined on 11 April 2005, the plaintiff and
her husband had
both been in New Zealand for over 18 months and, during this
period, there was no evidence of any difficulties in their marriage.
If they were
living apart at times, this was only due to the husband's employment requirements.
The plaintiff met the residence policy
criteria and, if her knowledge of English was
less than perfect, this should not have been a reason for declining her application.
Had the application been dealt with promptly at that time, the application would
likely have been granted.
[17] When it came
to the second application filed on 4 November 2005,
substantial further documentation supporting the fact that they were living together
was filed. It was not until the middle of 2006 that difficulties arose in the
relationship. Mr Deliu submitted that the stress
of not having the residence
application dealt with promptly was a contributing factor to the marriage difficulties.
Again, he submitted that if the application had been
dealt with promptly in late 2005
or early 2006 by which time the parties had lived together harmoniously for a further
nine to 12
months, it should have been granted at that time.
[18] Relying on Chandra v Minister of Immigration [1978] 2 NZLR 559, Mr
Deliu
submitted that INZ and the Authority were bound to exercise its discretion
fairly and in accordance with the principles of natural
justice. There is no quarrel
with that as a general proposition. But, in considering issues which are
predominantly
factual in nature, this Court on judicial review has a limited role. As
Baragwanath J stated in Topou v Removal Review Authority
[2001] NZAR 696 at
[23]:
It is clearly Parliament's intent, by maintaining limitation of the appeal right
to one of law, that
there should be no general right of appeal on matters of
fact. It would, in my opinion, be inconsistent with the expressed
Parliamentary intent for there to be so broad a right of judicial review as to
be equivalent to the appeal on the
facts which Parliament has excluded.
[19] Here, it is clear from the Authority's decision that it commenced its
assessment of
the factual issues from 2001 which marked the earliest relevant date.
The Authority had available to it the INZ file and reached
the conclusion that there
were no exceptional circumstances of a humanitarian nature which would make it
unjust or unduly harsh for
the plaintiff to be removed from New Zealand. The
grounds of appeal were summarised at [25] of the Authority's decision.
They
focused on the counselling issue and the submission that the plaintiff and her
husband should be given the opportunity
to reconcile and remain in New Zealand.
An alleged procedural error was dealt with by the Authority and is not at issue in this
Court.
[20] It seems that the issue of the effect of delay in processing the applications
was not raised before the Authority. Indeed,
the grounds of appeal suggest that the
principal grounds for appeal were that more, rather than less, time should have been
allowed
for the plaintiff to establish that she had a stable and enduring relationship.
[21] I have reviewed the factual history and
accept Mr Harborow's submission on
behalf of the second defendant that the periods of time which lapsed between the
making of the
applications and the final decisions on each of them are not
unreasonable and cannot be attributed to systemic or administrative
factors.
[22] In respect of the first application, the plaintiff was interviewed promptly in
China after making her application
in April 2002. Since the parties were not then
living together it was obvious that the stability of their relationship could not
be
adequately tested under the relevant policy until the plaintiff's arrival in New
Zealand in September 2003. A period of approximately
11 months elapsed from that
point until the plaintiff's second interview in Christchurch in August 2004. Since
the Partnership policy
required the plaintiff and her husband to have lived together
for 12 months or more in a genuine and stable partnership, the plaintiff
could not
have qualified until the 12 month period had expired. When the interview did take
place towards the end of that 12 month
period, the immigration officer was not
satisfied about the stability of the marriage and drew attention to the communication
difficulties
the plaintiff and her husband were experiencing.
[23] Rather than decline the application, INZ exercised its discretion under
the
Partnership policy to defer consideration of the application for a further six months.
The next interview was conducted on 1
March 2005 within the six month period.
Following that interview, the plaintiff was advised that the immigration officer was
still
not satisfied that the marriage was stable and likely to endure. Again the issue
of inability to communicate and the failure to provide
substantial evidence of
financial and social interdependence were given as grounds.
[24] The application was then formally declined
on 11 April 2005 after the
plaintiff was given a further opportunity to respond which she did not take up. The
appeal to the Residence
Review Board was declined. That decision is not in issue.
[25] In summary, in respect of the first application, the earliest
time it could have
been granted in terms of the Partnership policy was September 2004 and it was
finally declined seven months later,
after the officer was still not satisfied that the
policy requirements were met. On any view, the delay was not unreasonable and
is
adequately explained. The plaintiff's failure to produce adequate documentation
was at least a contributing factor.
[26] In relation to the second
application filed in November 2005, the period
which elapsed before it was declined in September 2006 was approximately 10
months.
On the plaintiff's own statement she and her husband had not been living
together from at least 1 May 2006. The signing of the application
for a dissolution
and the withdrawal of her husband's support for the application in May 2006 spelt
the death knell for a successful
application for residence by the plaintiff. Despite
discussion about counselling and the request made to the Family Court, there
is no
evidence the parties attended counselling and, unfortunately, the plaintiff's husband
has not supported her application from
mid 2006 onwards.
[27] In these circumstances, I am in no doubt that both INZ and the Authority had
sufficient grounds to reach
the conclusions they did, both under the relevant
immigration policy and in terms of s 47. It is not for this Court on review to
intervene in essentially factual and discretionary matters.
[28] As I indicated to counsel, in theory, it might be possible for
an applicant for
residence successfully to argue that systemic or administrative delay had operated
unfairly. However, on the facts
of the present case, I am satisfied there was no
unfairness. Every opportunity was given to the plaintiff to provide the material
necessary to establish her case but, in the end, it fell short of satisfying the
immigration officer. There was a proper basis for
the conclusions by INZ in this
respect.
Second Ground Failure to consider whether the plaintiff would have met the
residence
requirements.
[29] This ground of review has effectively already been answered. It is evident
from the Authority's decision that
the Authority specifically turned its mind to this
issue. It reached conclusions which were obviously open to it.
[30] Mr Deliu
was critical of the Authority's statement in para [37] of the decision
but I do not accept that criticism. Plainly, the Authority
concluded that it was not
surprising that INZ had, on the evidence, declined the second residence application
in August 2006. In
stating that no evidence had been provided on the appeal to
establish that the marriage was on any better footing, the Authority
was simply
noting that, even at the date of the hearing before it, no fresh or new material had
been put forward which could have
led to a different conclusion on the critical issue
of the stability and enduring nature of the marriage.
Third Ground Failing
to take into account inconsistencies by INZ in the
application of the policy discretion to defer a determination of the applications.
[31] Under para F2.35 of the relevant policy it is stated that:
An application can only be deferred if the applicant
has been assessed as
living together in a genuine and stable partnership with their New Zealand
citizen or resident
partner but the 12 month qualifying period has not been
met.
[32] Mr Deliu submitted that INZ had been inconsistent in
its exercise of this
discretion. While INZ had deferred the first application twice (in July 2003 and
August 2004) the notes of the
interview conducted on 13 June 2006 in connection
with the second application show that the plaintiff was advised that the immigration
office did not have the discretion to defer her application to test the stability of their
relationship.
[33] While it appears
that, by the time of the deferral granted in August 2004, the
couple had already been living together for more than 12 months and,
the decision to
defer at that time was outside the strict terms of the policy, the decision to defer did
not prejudice the plaintiff.
Rather, it was designed to assist her in providing more
time to satisfy INZ about her relationship with her husband. The decision
not to
grant a further deferral in June 2006 in connection with the second application, was
within the policy. Nevertheless, I have no doubt that INZ could have granted a
further deferral if
that was likely to assist the plaintiff. However, by that stage, the
marriage had plainly broken down and there was a proper basis
for INZ to decline
any further deferral at that time.
Fourth Ground Failing to adequately consider the plaintiff's relationship
with
her daughter
[34] There is no doubt that INZ and the Authority were well aware of the
plaintiff's relationship with her
adult daughter. The Authority dealt with this topic at
[39] of its decision quoted above. The Authority noted that, apart from her
marriage
and recent residence in New Zealand, the plaintiff had no real connection with New
Zealand. She had lived most of her life
in China where she also has other family.
[35] Her second immigration application shows that she has an elderly mother and
five
brothers and sisters ranging in age from the late 30s to the mid 60s. While the
daughter is the plaintiff's only child and is seeking
permanent residence in New
Zealand, there is no reason why the plaintiff and her daughter could not return to
China to live where
they could join the plaintiff's siblings and her mother.
Alternatively, if the plaintiff voluntarily returns to China she could renew
her
application for residence in New Zealand if her daughter is granted permanent
residence here.
[36] The Authority having
considered this issue, there is no basis on which this
Court could intervene on judicial review.
Fifth Ground Error of law in
relation to the approach taken by the Authority
to the plaintiff's request for counselling.
[37] I am unable to accept Mr Deliu's
submission that there has been any error in
approach in relation to the counselling issue. It appears to have been raised for the
first time in the interview which took place on 13 June 2006. That was after the
parties were living apart and the plaintiff informed
the immigration officer that she
did not know where or when she would be able to find her husband. Nor could she
say whether her
husband would agree to marriage counselling and how long it might
take. The request for counselling with the Family Court was not
made until
7 September 2006, after the plaintiff's work permit had been revoked. Again, there
is no reason to expect that counselling
might have assisted given the plaintiff's
husband has shown no sign of seeking to support her for well over 12 months since
mid
2006.
[38] Mr Deliu submitted that the Authority had wrongly rejected an appeal ground
based on s 9 Family Proceedings Act. It
had been submitted that INZ was barred
from further action because the request had been made.
[39] On this point, the Authority
said:
[31] There is no basis whatsoever for the submission that a referral to
relationship counselling pursuant to
section 9 Family Proceedings Act 1980
acts as a bar to the revocation of the appellant's temporary permit or, for that
matter, any other action by INZ in respect of the appellant's immigration
status.
[32] Further the revocation
of the appellant's work permit did not act as a
bar to the appellant receiving the six hours of counselling for which she
was
entitled. The counselling was to take place over the following weeks and a
report to be filed in the court by the
counsellor no later than 16 November
2006. The appellant has had ample opportunity to attend the counselling
offered
to her by Relationship Services had she decided to do so.
[40] I agree with the Authority's conclusions on this issue. INZ is
not bound to
defer further action when a request for counselling (formal or otherwise) is made. It
is a matter for the exercise of
discretion by INZ in the circumstances of the case.
Here, the plaintiff has had ample opportunity to pursue counselling and there
was no
sound basis for INZ to exercise its discretion by deferring any action to revoke the
plaintiff's permit or otherwise.
Sixth Ground Breach of the plaintiff's reasonable expectations that
she would
be afforded an opportunity for counselling and reconciliation and that she
would be entitled to stay in New Zealand.
[41] Mr Deliu submitted first that the plaintiff was reasonably entitled to expect
that she would be permitted an opportunity to
pursue counselling. However, he was
unable to point to any material to support that expectation other than Article 23 of
the United
Nations International Covenant on Civil and Political Rights which
affirms the importance of the family as the fundamental unit of
society and the right
of men and women to marry. Reference was also made to s 17 New Zealand Bill of
Rights Act 1990 relating to
freedom of association.
[42] While not seeking to diminish the importance of the family and the institution
of marriage, the
application of human rights conventions or relevant domestic
legislation must be sheeted home in a practical way to the circumstances
of the case.
On the facts of the present case, there is no basis for the plaintiff to have entertained
an expectation that she would
have been afforded an opportunity (or any further
opportunity) for counselling and the prospect of reconciliation with her husband.
I
agree with the submission made by Mr Harborow that the plaintiff has had ample
opportunity to pursue the issue of counselling but
to no avail.
[43] Nor could the plaintiff have any reasonable basis for an expectation,
engendered by the actions or statements
of INZ, that she would be entitled to stay in
New Zealand. Indeed, the position is the reverse. She has been repeatedly told by
INZ
that she has not satisfied the criteria which have, at all times, been made very
clear to her. It does not appear that any reasonable
expectations argument was put
before the Authority and it has not been demonstrated there has been any error in
that respect.
Seventh
Ground Failing to consider the absence of the opportunity for a
humanitarian interview.
[44] Mr Deliu submitted that the plaintiff
ought to have been given the
opportunity for a "humanitarian interview". Again this does not appear to have been
suggested at any
stage either to INZ or to the Authority. It is common ground that
there is no obligation on the immigration authorities to provide
such an interview
although, as a matter of practice, since Tavita v Minister of Immigration [1994]
2 NZLR 257 (CA), humanitarian interviews are conducted before removal actually
takes place (see the unreported judgment of Asher J in Qiong
& Ors v Minister of
Immigration and Attorney-General HC AK CIV 2005-404-5202 at [27] to [31]).
That stage has not yet been reached.
[45] It may be that a different type of humanitarian interview could have taken
place earlier, other than in the context of removal.
However the scope for such an
interview remains and the fact that no such interview has apparently been offered to
the plaintiff
cannot constitute reviewable error.
Conclusion
[46] For the reasons stated, the application for review is dismissed.
[47]
The second defendant informed the Court that he seeks costs. The second
defendant is to file and serve a memorandum as to costs
within 14 days of delivery
of this decision and the plaintiff within 14 days after receipt of the second
defendant's submissions.
______________________________
A P Randerson, J
Chief High Court Judge
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