Vilceanu v Attorney-General HC Auckland CIV 2010-404-4358 [2011] NZHC 473 (11 May 2011)

Last Updated: 18 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2010-404-4358}

BETWEEN CEZAR VILCEANU First Plaintiff

AND CONSTANTA VILCEANU Second Plaintiff

AND ADRIAN VILCEANU Third Plaintiff

AND LISA VILCEANU Fourth Plaintiff

AND THE ATTORNEY-GENERAL First Defendant

AND THE MINISTER OF IMMIGRATION Second Defendant

Hearing: 5 May 2011

Counsel: FC Deliu for plaintiffs

IC Carter for defendants

Judgment: 11 May 2011 at 12:30 PM

_{JUDGMENT OF FAIRE J}

VILCEANU V THE ATTORNEY-GENERAL HC AK CIV 2010-404-4358 11 May 2011

Solicitors: Amicus Lawyers, PO Box 68 559, Auckland 1145

Crown Law, PO Box 2858, Wellington 6140

Preliminary matters

[1] Mr Deliu confirmed that the claim against the first defendant is no longer pursued. Accordingly, pursuant to r 4.56 I order that the first defendant be struck out from the proceeding. Counsel confirm there are no issues as to costs arising from this order.

[2] Mr Deliu abandoned a breach of rights claim based on an allegation of breach of the right of freedom of association in reliance on s 17 of the New Zealand Bill of Rights Act 1990. Accordingly, I proceed on the basis that that claim is abandoned.

The application

[3] The plaintiffs apply for judicial review of a decision of the Minister of Immigration dated 29 June 2010, in which the Minister refused to intervene in the plaintiffs’ case by refusing to change an order made by the Deportation Review Tribunal on 10 July 2009. That order confirmed the revocation of residence permits of the first, second and third plaintiffs. The order also provided for the grant of a temporary permit pursuant to s 22(7) of the Immigration Act 1987. Temporary permits were issued on 26 August 2009 for the period up to and including

31 December 2009. As a consequence, as at 1 January 2010, the first, second and third plaintiffs were in New Zealand unlawfully.

[4] The application alleges that the decision was contrary to law. The application makes allegations of legitimate expectation, unreasonableness, failure to take account of relevant considerations and failure to give reasons contrary to s 27 of the New Zealand Bill of Rights Act 1990.

The defence

[5] The second defendant denies that the decision was contrary to law. He raises an alternative affirmative defence that if there was an error of law the court should exercise its discretion against granting relief and in favour of dismissing the application for judicial review.

Background

[6] The first plaintiff was born on 1 April 1970. The second plaintiff was born on 3 December 1970. Both were born in Romania. They married in 1995. On

13 January 1996 their son, Adrian, the third defendant, was born in Romania.

[7] In 1999 Adrian developed health issues. A blood test carried out in March

2002 established conclusively that he had Thalassaemia Major (TM). In December

2001 the plaintiffs submitted an application for permanent residency in New Zealand. Correspondence passed over a period of time. Neither the first or second plaintiffs informed the Department of Immigration of Adrian’s diagnosis. In August

2003 the plaintiffs were issued residence visas. On 21 January 2004 they departed Romania for New Zealand. On 31 January 2004 Adrian attended Starship Hospital in Auckland, New Zealand. This was the first of his monthly transfusions and his desferal treatment which, he receives five nights per week. Apart from this treatment, since he has been in New Zealand, Adrian’s health has been satisfactory. Currently, the first plaintiff has work as an aircraft engineer and the second plaintiff as an accounts assistant.

[8] In 2005 the first and second plaintiffs’ daughter, Lisa, was born. She is a New Zealand citizen by virtue of s 6(1) of the Citizenship Act 1977, having been born in New Zealand before 1 January 2006.

Litigation history

[9] On 2 June 2005 the then Minister of Immigration issued revocation notices to the first, second and third plaintiffs. On 27 June 2005 the plaintiffs appealed the revocation notices to the Deportation Review Tribunal. On 26 January 2007 the Tribunal quashed the Minister’s decision on humanitarian grounds.

[10] The Minister appealed to the High Court from the decision of the Deportation Review Tribunal. The High Court allowed the appeal on 11 December 2007 and ordered that the case be remitted to the Deportation Review Tribunal for reconsideration. On 24 January 2008 the plaintiffs appealed to the Court of Appeal. The appeal was dismissed on 18 November 2008.

[11] A hearing took place before the Deportation Review Tribunal on 10 —

11 March and 21 May 2009. The Tribunal issued its decision on 16 July 2009. It confirmed the revocation of the plaintiffs’ residence permits. In so finding, it declined to apply the humanitarian exception from the consequences for the fraud of the first and second plaintiffs by reference to the mandatory relevant considerations in s 22(6) and an overall exercise of discretion. It granted leave to the plaintiffs to make submissions on whether a temporary permit should be issued pursuant to s 22(7). An application was made, which resulted in the issue of a temporary permit on 26 August 2009. This permitted the plaintiffs to remain in New Zealand until

31 December 2009.

[12] The plaintiffs did not exercise their s 117 right of appeal from the second Deportation Review Tribunal decision. They also did not apply for judicial review of that decision within the time specified for such applications in s 146(A) of the Immigration Act 1987, namely three months.

The application to the Minister of Immigration

[13] On 19 October 2009 the plaintiffs’ lawyer made application to the Minister of

Immigration. Subsequent correspondence from the plaintiffs’ lawyer dated

25 November 2009 and 22 December 2009 simply supported this initial application. The application sought a special direction pursuant to s 130 of the Immigration Act

1987 to rescind the Minister’s decision of 2 June 2005 to revoke the plaintiffs’ residence permits and returning residence visas pursuant to s 20(1)(c) and 20A(1)(c) of the Immigration Act 1987.

[14] It is appropriate to record that at the time the application was made the plaintiffs were legally entitled to be in New Zealand by virtue of the temporary permits issued to them on 26 August 2009. However, as of 1 January 2010 the plaintiffs’ right to remain legally in New Zealand was terminated. A briefing paper prepared for the Minister of Immigration, dated 7 May 2010, concluded that the Minister had two options, namely to:

(a) Decline to intervene; or

(b) Grant the family residence under s 35A of the Immigration Act 1987. At the time of completion of that briefing paper, the jurisdictional requirements for

the invocation of s 35A of the Immigration Act 1987 were all in place, namely that: (a) The plaintiffs were in New Zealand;

(b) They were required to hold a permit to be in New Zealand; (c) They did not hold a permit to be in New Zealand;

(d) They were not persons in respect of whom a deportation order was in force; and

(e) They were not persons in respect of whom a removal order was in force.

[15] Mr Carter submitted that the Minister’s decision was in fact a decision made pursuant to s 35A of the Immigration Act 1987. Mr Deliu was prepared to accept this because, for practical purposes, the effect of ss 130(6) and 35A(2) are effectively the same. Accordingly, the following analysis is based on the application that was considered by the Minister being one pursuant to s 35A.

The statutory provision

[16] The scope of the Minister’s discretion, which is the subject of this judicial review proceeding, is determined by s 35A of the Immigration Act 1987. Section 35A provides:

35A Grant of permit in special case

(1) The Minister may at any time, of the Minister’s own volition, grant a permit of any type to a person who—

(a) Is in New Zealand; and

(b) Is required under this Act to hold a permit to be in New

Zealand; and

(ba) Does not hold a permit to be in New Zealand; and

(c) Is not a person in respect of whom a deportation order is in force; and

(d) Is not a person in respect of whom a removal order is in force.

(2) Nothing in subsection (1) of this section confers on any person the right to apply to the Minister for a permit, and where any person purports to apply for a permit under this section,—

(a) The Minister is under no obligation to consider the application; and

(b) Whether the Minister considers the application or not,—

(i) The Minister is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and

(ii) Section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.

[17] Section 35A(2) provides a basis for an understanding of the breadth of the discretionary powers available to the Minister under s 35A.

[18] Mr Carter submitted that this case is similar to Kesonsung v Ministry of Immigration and Yure v Bentley, and that this application is, in effect, a last resort position for persons in the position of the plaintiffs.[1] I note that both Kesonsung and Yure v Bentley concerned the application of s 130, which deals with the prospective immigrant’s position. However, s 35A provides for the analogous position in relation to a person in New Zealand. It is a power to do something for the plaintiffs

notwithstanding the fact the plaintiffs have not managed to persuade the Deportation

Review Tribunal that the revocation of their residence permit should be set aside.

[19] Mr Carter submitted that a similar formula of language to “no right to apply, no obligation to consider, if considered then no obligation to give reasons” is used in several provisions of the Immigration Act, including ss 130 and 17(2). He drew attention to the position that in many cases involving this formula of language the scope for judicial review by the court has been held to be restricted.[2]

[20] In Singh v Chief Executive Office, Department of Labour the Court of Appeal, when dealing with s 130 said:

[t]he rights which a person who is seeking a special direction has under s

130 are very limited. Under a 1991 amendment to that section (introduced when the independent appeal bodies were established):

(6) Nothing in this section . . . gives any person a right to apply for a special direction . . . and where any person purports to make any such application —

(a) The Minister or appropriate visa officer or immigration officer is under no obligation to consider the application; and

(b) Whether the application is considered or not, —

(i) The Minister or appropriate officer is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and

(ii) Section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.

Section 23 of the Official Information Act 1982 entitles a person affected by an official decision, on request, to a statement of reasons for that decision, and s 36 of the Immigration Act 1987 creates the same right in respect of the refusals of permits. Such exclusions of the reasons provision of the Official Information Act are very rare and are almost all found in the 1991 amendments to the Immigration Act; see ss 7, 12, 17, 18E, 25, 35A, 52A of the 1987 Act and also the Dairy Board Act 1961, s 67B(17). The denials of procedural protections in s 130(6) are to be contrasted with the protections made available elsewhere in the Act. The balance of the protective and other provisions is a reflection of para (a), on the one side, and, on the other, paras (b) and (c) in the title to the 1991 Amendment Act which introduced many of them:

An Act to amend the Immigration Act 1987 in order to strengthen and more clearly define the legal framework for the operation of Government immigration policy, and, in particular, to —

(a) Provide for independent review of certain immigration decisions; and

(b) ensure a high level of compliance with immigration laws;

and

(c) ensure that persons who do not comply with immigration procedures and rules are not advantaged in comparison with persons who do so comply.

In summary Mr Singh’s legitimate expectations were met by his request being considered and a decision being made on that request last September. Accordingly this ground of appeal also fails.

[21] The authorities conclude that the ability to review a ministerial decision in these circumstances is extremely limited. That is because:

(a) No person has the right to apply to the Minister for a permit;

(b) Where a person does apply for a permit, the Minister is under no obligation to consider the application;

(c) If the Minister considers the application, the Minister is not obliged to give reasons for any decision other than reasons that the section applies; and

(d) The requirement for reasons for the refusal to grant a permit as provided by s 36 of the Immigration Act 1987 is expressly excluded from the exercise of the power under s 35A.

[22] This application, and its treatment by the Minister, must be considered against the following background:

(a) The material advanced to the Minister was available at the time of the second Deportation Review Tribunal hearing;

(b) The Minister was required to do no more than consider whether anything had arisen since the determination of the Deportation Review Tribunal. There is no suggestion of anything pre-dating the Deportation Review Tribunal that could not reasonably have been put

before the Tribunal: Huang v Minister of Immigration; Ye v Minister of Immigration;[3]

(c) There is no suggestion that the Deportation Review Tribunal did not fully and completely consider all material that was advanced on behalf of the three plaintiffs and Lisa. The Deportation Review Tribunal was entitled to expect that the parties would make their case by putting before the Tribunal all information which would lead to the orders that they were seeking. Whilst the Tribunal is entitled to seek more information, it would be the exception rather than the rule that it would do so before it determines the matters it must consider, set out in s 22(6) of the Immigration Act 1987: Minister of Immigration v Al-

Hosan;[4]

(d) As required by s 22(6)(f) the Deportation Review Tribunal considered the appellants, the three plaintiffs and Lisa as a family member. This, however, is not an appeal or review of that Tribunal’s decision. It is rather the remaining last resort process which has already been described as limited; and

(e) The Supreme Court has made it clear that the interests of children in general, and New Zealand citizen children in particular, are always an important consideration in immigration decision-making: Ye v Minister of Immigration.[5] The Supreme Court confirmed that the ultimate effect that should be given to them is a matter of assessment against all the other relevant circumstances of the particular case. Therefore, the status of a child will not, of itself, preclude the

_{deportation of the child’s other family members.}

[23] Judicial review is concerned with the decision-making process and not with the substantive and factual merits of the decision: Puli’uvea v Removal Review Authority.[6] Mr Deliu submitted that the court on judicial review ought to take a “hard look” at the decision. This is an apparent reference to Wolf v Minister of Immigration.[7] One must consider the nature of the application before the Minister and particularly the nature of the discretion given to the Minister. When that is taken into account bearing in mind the background leading up to this application I consider the standard that guides the court must be that of Wednesbury unreasonableness. Indeed, that was applied by Wilde J in R v Chief Executive, Department of Labour.[8]

Regardless of discussion elsewhere of the applicability of a lower standard in immigration cases, in Huang Xaio Qiong v Minister of Immigration Asher J discussed why a more liberal approach to judicial review is not warranted:[9]

It must be recognised that immigration policy is dictated by Parliament and the Executive. The task of Courts in a case such as this is not to interfere with such policy. Rather, it is to ensure, in accordance with established Wednesbury principles, that there has been procedural fairness, a proper consideration of relevant matters and exclusion of irrelevant matters, and no manifestly unreasonable decision.

Legitimate expectation

[24] Mr Deliu, in his written synopsis, did not deal specifically with the first pleaded ground, that of legitimate expectation. That is not surprising because what is apparent here is that the application was the subject of a briefing paper for the Minister, who then issued his decision. That, in fact, meets the legitimate expectation that the plaintiffs may have in relation to their application in this case.

[25] What was pleaded in this statement of claim was a reference to statements made before the election of the current government and the attitude of certain

political persons to the plaintiffs’ application. The defence is that this pleading was misconceived because there was no evidence that the representation was made by the current Minister of Immigration or his officials, and even if it had been, it would not be appropriate for him to fetter his discretion in the way contended by the plaintiffs. I consider this view to be correct. However, as the pleaded basis was not advanced in submissions, I need not analyse it further.

Unreasonableness

[26] Mr Deliu submitted that this case must primarily be looked at as one involving the rights of the first and second plaintiffs’ daughter, Lisa. She is a New Zealand citizen. Referring to numerous international agreements that protect the family unit and the interests of the child Mr Deliu submitted that the issue in this case is Lisa’s right to enjoy the basic rights of health, education, New Zealand culture and her English language. He submitted that although Lisa is not the subject of a deportation order or the loss of a residence permit, any orders that affect her parents similarly affect Lisa, who will be forced to leave New Zealand and return with her parents to Romania due to her age.

[27] Mr Deliu referred to the material that supported his application to the Minister, which contained comparisons between New Zealand and Romania. Without repeating the specific percentage differences, the material disclosed that a higher proportion of children were enrolled in pre-school education in New Zealand than Romania, a higher proportion were enrolled in primary school than in Romania and some 10 per cent more of the population were enrolled in secondary schooling in New Zealand than Romania and there was also a higher percentage involved in tertiary education. He also referred to the material dealing with a comparison in relation to health services and life expectancy.

[28] Mr Carter drew attention to the following matters that arise from the second

Deportation Review Tribunal hearing.

[139] The only family member whose circumstances are relevant is the

Vilceanus’ three year-old daughter, a New Zealand citizen. As she is

a child, we must have regard to her best interests as a primary, but not the paramount or determinative, consideration; Art 3.1 of the CRC.

[140] Her right as a New Zealand citizen to remain here is not at risk, but if the revocation of the rest of the family’s permits is maintained, she would go to Romania with them. Accordingly, no family unity issue arises in this case. She would retain her right to return here at any time, but lose the benefit of residence in this country in the intervening period.

[141] The Tribunal is told the Vilceanus’ daughter is a highly intelligent and adaptable child. She appears to her parents to be adept at language acquisition, including Romanian. If they must leave, she would be going to a life in a European country, probably to a standard of living lower than that enjoyed in New Zealand, though not so low as to be inadequate. Comprehensive state education and health systems exist there. She is clearly young enough to adjust to life in Romania, if the family return. We find that her interests, an important consideration in our assessment, lie in remaining with her parents and brother and whether that is in Romania or New Zealand is not material.

[142] The Tribunal rejects the submission that the daughter would be in a family “under exhaustive financial and psychological strain”, as it coped with the cost and worry of Adrian's treatment. As we find later, there is no real risk to the regular supply of Adrian's medication, the Romanian blood bank is no longer tainted and his medication is free. Their current fears, no doubt genuine, would abate once Adrian settled into the same treatment regime he enjoys here. ...

[168] As for their three year-old daughter, a New Zealand citizen, her best interests lie in remaining with her parents and it is not material whether that is in Romania or New Zealand. She would return with the family to Romania, and while not losing her citizenship here, she would not be able to enjoy its benefits until she decided to return at some time in the future, if indeed she chose to do so.

[29] For the sake of completeness, I refer to the Deportation Review Tribunal’s consideration of Adrian’s medical condition. After a thorough and comprehensive analysis the tribunal concluded that there was no material risk of interruption of supply of the drug desferal for Adrian in Romania, no increase in mortality and no material risk of seriously compromising Adrian’s quality of life should he return to Romania. Though Adrian did not knowingly participate in the fraud of his parents, he was clearly a benefactor of it. There are no additional factors under this heading which justify a review of the Minister’s decision.

Failure to take account of relevant considerations

[30] The Deportation Review Tribunal, which is the justification for the Minister’s decision, contained a comprehensive consideration of all the relevant circumstances. In particular, it specifically considers the matters set out in s 22(6) of the Immigration Act 1987. As there were no new matters, the Minister was entitled to rely on that prior determination. Accordingly, I conclude that there is no basis to conclude that the Minister failed to take into account relevant considerations in the determination he issued in this case.

Lack of reasons

[31] The starting point for an examination of this is s 35A itself. As I have recorded, that provides that a minister is not required to give reasons. In this case, that position is understandable because there has been an examination of the plaintiffs’ case, including Lisa’s position, by the Deportation Review Tribunal from which there was no challenge. No new fact or circumstance has arisen since the decision. Unavoidably, any further review would be a review of the merits of the case. That is not an appropriate inquiry for a judicial review. Counsel referred to s 27(1), New Zealand Bill of Rights Act 1990. However, that provision does not add to the common law principles of natural justice. It is also important to recall that neither the Bill of Rights Act nor international covenants can be used to override the plain meaning of legislation: s 4 Bill of Rights Act; Tavita v Minister of

Immigration.[10] What is required is consideration of the legal and factual context in

which the matter under review was decided. I accept Mr Carter’s submission that the content of natural justice in a particular situation must first be established before any question of any inconsistency or breach of s 27(1) arises. As the authorities I have earlier reviewed show, the content of natural justice is very restricted by the text and context of s 35A. In addition, one must take into account the protracted

_{immigration history of the Vilceanu family.}

[32] Mr Deliu raised the question of whether the Minister should have filed an affidavit setting out his reasons. However, clearly, if there is no obligation to give reasons there can be no obligation to file such an affidavit.

[33] I conclude there has been no breach of the principles of natural justice that

would require the court’s intervention in this case.

Conclusion and orders

[34] I conclude that the application for judicial review for be dismissed and I order accordingly.

Costs

[35] Counsel requested that the issue of costs be reserved for consideration in memoranda. Accordingly, if they are unable to agree memoranda in support, opposition and reply shall be filed and served at seven-day intervals.

---

[1] Kesonsung v Ministry of Immigration HC Auckland CIV 2006-404-1597, 9 November 2006, Stevens J; Yure v Bentley M1350-PL01, 8 November 2001, Chambers J
[2] Singh v Chief Executive Officer, Department of Labour [1999] NZAR 358 (CA); Kesonsung v Minister of Immigration, above n1; Kesonsung v Minister of Immigration HC Auckland CIV 2006-404-1597, 4 April 2006, Courtney J; Yure v Bentley, above n1. See also T & S v Minister of Immigration HC Auckland CIV 2004-404-348, 29 January 2004, Rodney Hansen J; Sun v Minister of Immigration HC Wellington CP145/02, 15 August 2002, Goddard J; Wongcharee v Minister of Immigration HC Auckland M1007-sw01, 26 July 2001, Rodney Hansen J, at [19]; and Prakash v Minister of Immigration HC Auckland M1462/98, 26 August 1998, Robertson J at 4 —6..

[3] Hung v Minister of Immigration [2010] 1 NZLR 135 (SC) at 136; Ye v Minister of Immigration _{[2009] NZSC 76; [2010] 1 NZLR 104 at [23].}
[4] _{Minister of Immigration v Al-Hosan [2008] NZCA 462, [2009] NZAR 259 at [47]- [51].}
[5] Above, n3, at [25].
[6] _{Puli’uvea v Removal Review Authority [1996] 3 NZLR 538 (CA).}
[7] _{Wolf v Minister of Immigration [2004] NZAR 414 (HC) at [48], Wilde J.}
[8] R v Chief Executive, Department of Labour HC Wellington CIV 2008-485-123, 10 June 2008 at _[24]-[29].

[9] Huang Xaio Qiong v Minister of Immigration [2006] NZHC 1149; [2007] NZAR 163 (HC) at [49].

[10] Section 4, New Zealand Bill of Rights Act 1990; Tavita v Minister of Immigration [1994] 2 NZLR 257.