Supreme Sikh Council of New Zealand v Minister of Immigration [2012] NZHC 1754 (19 July 2012)

Last Updated: 18 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2647 [2012] NZHC 1754

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF an application for judicial review

BETWEEN SUPREME SIKH COUNCIL OF NEW ZEALAND

Plaintiff

AND MINISTER OF IMMIGRATION Defendant

Hearing: 13 June 2012

Counsel: F C Deliu for Plaintiff

A Longdill for Defendant

Judgment: 19 July 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4:30pm on the 19th July 2012.

_{JUDGMENT OF GODDARD J}

Solicitors:

F C Deliu, Auckland ([e-mail])

Crown Solicitor, Auckland ([e-mail])

SUPREME SIKH COUNCIL OF NEW ZEALAND V MINISTER OF IMMIGRATION HC AK CIV-2012-404-

2647 [19 July 2012]

[1] The plaintiff applied for interim relief under s 8 Judicature Amendment Act

1972, under s 27 of the New Zealand Bill of Rights Act 1990, under r 30.4(1) of the

High Court Rules, and in reliance on Esekielu v Attorney-General.[1]

[2] The relief was sought pending determination of an application for judicial review of a decision of the Minister of Immigration made on 10 May 2012, relating to closure of the Sibling and Adult Child Category and the Parent Category, as from

16 May 2012. A new two-tier Parent Category is to be implemented in late July

2012.

[3] As a result of the closures and consequential changes to immigration instructions, many of the plaintiff’s members were unable to apply for visas, for which they would have been eligible up until 15 May 2012.

[4] The plaintiff’s claim is founded on fairness in the process of implementing the announced policy changes: in particular on two alleged breaches of legitimate expectations in the following two respects:

(a) failing to give reasonable notice of the change, as has previously been done; and

(b) failing to publicly consult on the proposed changes, as has previously been done.

[5] The defendant’s response is essentially that interim relief is not necessary to preserve the position of the plaintiff pending the substantive review hearing, because the plaintiff and its members have no existing position to preserve. Furthermore, the plaintiff cannot demonstrate a respectable chance of success in the substantive proceeding. In relation to the substantive issues of fairness of process and breaches of legitimate expectations, the defendant’s response is that no legitimate expectation of extensive advance notice or of consultation prior to the implementation of

_{changes to immigration instructions or residence policy arises. Further, the}

defendant submits that there has in fact been no prior practice nor promise, explicit or implicit, to this effect that could properly give rise to any legitimate expectations.

[6] In support, the defendant adduced evidence establishing that major changes have previously been made to immigration instructions or residence policies without any consultation or any notice period whatsoever. By way of illustrative example, the Interim General Skills Category was closed on 12 November 2003 without any notification period at all. The procedure to be adopted in each instance has depended on the particular policy issues and whether the negative impacts of advance notice would outweigh the desired positive impacts.

Background

[7] The plaintiff is a charitable trust with a number of members who were in the process of organising applications under the Family Residence Categories of immigration instructions in existence up until 16 May 2012.

[8] The subject changes to the immigration instructions, certified by the Minister of Immigration on 10 May 2012, were publicly announced as follows:

The Sibling and Adult Child Category for new migrants will close on

15 May 2012, which will reduce the number of unskilled migrants who find it more difficult to get jobs and are more likely to end up on a benefit.

Research has shown that only 66% of people who gain residence as siblings

and adult children had a job after 18 months, despite a job offer being required for residence.

The existing Parent category will close on 15 May and the new two tier category will be available from late July.

[9] Evidence before the Court established that even in the short period that the categories remained open, Immigration New Zealand experienced a surge in applications which was not unexpected. Indeed, based on past experience, it was the very reason why in this instance a fairly short notification period was given.

[10] It is beyond doubt (and not disputed by the plaintiff) that the immigration instructions issued in this case were lawful.

[11] Section 22 of the Immigration Act 2009 provides that:

(1) The Minister may certify immigration instructions relating to–

(a) residence class visas, temporary entry class visas, and transit visas:

(b) entry permission:

(c) conditions relating to resident visas, temporary entry class visas, and transit visas, including, without limitation, conditions relating to–

(i) travel to New Zealand:

(ii) the holder’s ability to work or study in New Zealand

or in the exclusive economic zone of New Zealand:

(d) the periods for which each type of temporary entry class visa may be granted:

(e) the types of temporary visas that may be granted, and the name and description of each type.

[12] Under s 22(2) such immigration instructions take effect from:

(a) the date they are certified; or

(b) a date specified in the instructions as being the date on which they come into effect, which must not be earlier than the date they are certified.

[13] Immigration instructions certified by the Minister under subsection (1) are

“statements of Government policy”.[2]

[14] Cabinet had agreed to the changes that were proposed in May 2011, following a reference from the Cabinet Domestic Policy Committee. The author of the paper prepared for Cabinet, which proposed the changes, observed, inter alia:

Notice of a change in policy would be expected to generate a large rush of applications ahead of the implementation date. It is proposed that the new policy be announced shortly before the existing policy is rescinded. This will enable applications which have already been sent to be received, but forestall a large number of applications from being lodged under the previous policy.

[15] This was based on previous experiences of the Department of Labour when significant changes had been made to residence policy. Some examples were cited. For instance, in 1995 the General Category was changed and replaced by a General Skills Category. An advance notification period of six months was given and during that period the number of residence applications received was equivalent to around

2.5 years of normal flow.

[16] In contrast, in 2001, the Humanitarian Category was closed on only two weeks’ notice. This short period of notice was considered sufficient to enable people with almost-final applications in train to complete them, but would avoid a large surge of applications. Even so, there was a significant increase in the number of applications made during that short period.

[17] Whilst in general, Immigration New Zealand does provide advance notice of upcoming policy changes on the Government website, it is nevertheless open to Ministers to agree to a briefer or even no advance notice period in situations where it is assessed that the negative impacts of advance notice would outweigh the positive impacts that the proposed change is seeking to achieve.

[18] Prior to any announcement by the Minister or Immigration New Zealand, the proposed changes to the family categories were inadvertently released into the public domain on 5 March 2012 by means of a press release issued by the New Zealand Labour Party. This was published on the www.scoop.co.nz website.

[19] The public release noted that the new Parent Category would be implemented in July 2012 and that the Minister would be asked in February to decide when the existing categories would close, and that the announcement and the closure would be close together. Following this inadvertent public release, Immigration New Zealand observed a noticeable increase in the number of applications received per working day under the family categories, both from across New Zealand and worldwide.

[20] The day after the leaked law change appeared in the press, the Minister of

Immigration appeared on Breakfast TV and did not refute a law change being

implemented in July. However, the Minister was not expressly asked this during the interview.

[21] A briefing paper prepared for the Minister of Immigration in May 2012 just prior to implementation of the changes to the family policies stated, inter alia:

Removing the current residence instructions before the introduction of the new Parent Category will mitigate potential Immigration New Zealand (INZ) processing risks between the announcement of changes and their implementation. If the existing categories remain open for some time beyond the formal announcement, a significant spike in Capped Family Residence applications is likely to occur before the implementation of the new Capped Family Category. As the categories are capped, this would lead to significant backlogs, likely dissatisfaction on the part of applicants and their onshore families, and potentially high levels of requests for ministerial intervention.

The plaintiff ’s evidence

[22] Affidavit evidence submitted in support of the plaintiff’s applications for interim relief and substantive review explained that many applications for family residence visas have to be commenced overseas and this considerably adds to the timeframe necessary for processing such applications.

[23] Mr Daljit Singh, the spokesperson for the plaintiff, advised in his evidence that there are literally hundreds of people wishing to lodge residency applications under the former policies. These persons had prepared the required documents but, at the time the subject residence categories were closed, were either waiting for their medicals or for police clearance certificates or similar to be processed. Sponsors for these applicants, who are in New Zealand, have to prepare the documents and courier them to India, as Immigration New Zealand does not accept scanned or faxed copies but only original documents. Many people had completed their medicals and police clearance certificates in India and had spent a lot of money arranging for these documents to be processed but had missed the opportunity to lodge them with Immigration New Zealand before closure of the policies because of the limited timeframe between the announcement of closure and the date of closure. Such truncated time did not allow for even the extreme efforts and measures taken by some of the deponents to meet the deadline.

[24] Evidence was also proffered of past conduct in immigration policy changes of allowing more than a few days’ notice to be given before an announced change was implemented. Notice periods of up to eight months were pointed to in some cases, with the shortest example cited being 17 days.

[25] Mr Deliu submitted that to have allowed only three working days’ notice was unreasonable and a breach of the legitimate expectations of the plaintiff and its members that a greater period would be given for such substantial changes to policy. The defendant’s actions in the present case were so different from past action as to amount to a breach of an established legitimate expectation that a longer period of notice would be given.

[26] Mr Deliu further submitted that by previously seeking public consultation for changes on immigration instructions, the defendant had created a legitimate expectation that consultation would be sought in relation to the changes in the present case. Again, previous examples where consultation had been sought for changes to immigration instructions were cited.

[27] Mr Deliu further argued that the process adopted in this case had failed to balance the national interest and the rights of affected individuals, and thus had failed to properly take into consideration guarantees in international instruments, such as the International Covenant on Civil and Political Rights and the United Nations’ Declaration of Human Rights.

[28] In relation to the need for the Court to preserve the position of the plaintiff, Mr Deliu asked the Court to put the plaintiff and its members back into the position that it and they would have been in had the alleged breaches not been committed.

Applicable principles

[29] Section 8 of the Judicature Amendment Act 1972 allows the Court to make an interim order to preserve the position of the plaintiff.

[30] Both counsel referred extensively to the relevant authorities.

[31] The central issue is, however, whether there is in fact a position to preserve? If not, the plaintiff’s application for interim relief fails.

[32] In Ministry of Fisheries v Antons Trawling Company Ltd, the Supreme Court confirmed the approach to interim orders under s 8 as follows:[3]

Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.

[33] However, the ambit of the orders sought by the plaintiff extend beyond the merely restraining and are in effect mandatory in nature, because they require positive action on the part of the Minister: action that in any event is impossible. The plaintiff is seeking to be put back in the position that it would have been had the Parent and Sibling and Adult Child Categories not been closed. The reality is however that they have been closed, with the result that there are presently no relevant residence categories in existence pursuant to which any Parent and Sibling or Adult Child residence applications could be received and determined.

[34] The categories have been closed in accordance with the Minister’s lawful powers to do so in exercising his discretion under the Immigration Act 2009. Thus, there is no status quo to be preserved, let alone a position to be improved or enhanced by mandatory direction of the Court.

[35] The present situation has similarities with that which pertained in Movick v Attorney-General, in which the Court of Appeal dismissed an appeal against a decision of the (then) Supreme Court, declining interim relief in an immigration case, observing:[4]

... But the orders sought go far beyond "preserving the position of the applicant" in that respect. To grant the application would amount to conferring on the appellant an authority to stay in New Zealand which, on

the information before this Court, he does not now have and which, in terms of s 14, only the Minister may grant.

[36] I accept Ms Longdill’s submission that the plaintiff, as a charitable trust with members who may have been intending to lodge residence applications under the Sibling and Adult Child or Parent Categories, but who did not do so before those categories were closed from 16 May 2012, has no legal or factual position that requires protection through the making of an interim order.

[37] While the period of time allowed between the announcement of the decision and the closure of the Sibling and Adult Child or Parent Categories was short and has undoubtedly caused grief to those immigrants who had hoped to attain residential status of that type, the closure of those immigration categories was neither unlawful or arbitrary. It is clear the period of notice was very carefully calculated and was deliberately short in order to avoid the inevitable spike in applications that would occur once announcement of the closures was made. This in turn would lead to significant backlogs and to the other unsatisfactory outcomes deposed to in the affidavit evidence filed on behalf of the defendant.

[38] The evidence put before the Court by both plaintiff and defendant relating to the shortness of the period of notice before permanent closure of the Adult Sibling Category and temporary closure of the Parent Category does not assist the plaintiff. It is clear that the period of notice given in any instance will be determined by policy factors and the exigencies underpinning particular change decisions. There is no established pattern of notice to which the plaintiff can point and to which the defendant should adhere, and which might be said to give rise to the legitimate expectation of lengthy notice in every instance.

[39] Nor is there any legitimate expectation created in respect of consultation prior to the implementation of any changes to immigration instructions or residence policy. The evidence of consultation in some past cases does not establish any consistent practice which could properly give rise to a legitimate expectation. On the contrary, the evidence submitted on behalf of the defendant establishes that major changes have previously been made in some instances without any consultation or notice period at all.

[40] In New Zealand Association for Migration and Investments Incorporated v Attorney-General, which involved similar issues to the present, Justice Randerson observed:[5]

That reflects two key policy considerations which often lie at the heart of legitimate expectations cases. On the one hand there is a public interest in holding a public authority to promises made in the interests of proper public administration and allowing people to plan with some assurance. On the other, there is also a public interest in allowing governments and other public authorities to change policy from time to time when it is perceived to be appropriate to do so. Indeed, the adoption of new policy to meet changing circumstances may be viewed as the duty of any government in furthering the public interest...

Conclusion

[41] The position is that there currently are no existing Adult Sibling or Parent Categories available under which applicants may seek residential visas. These were closed in the exercise of the Minister’s lawful discretion. Thus, there is no position to preserve and nothing the Court can direct the defendant to do.

[42] The application for interim relief is dismissed.

_{[43] Counsel may submit memoranda as to costs.}

_{Goddard J}

---

[1] Esekielu v Attorney-General (1993) 6 PRNZ 309 at 313 (HC).

[2] Section 22(8).

[3] _{Ministry of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, 18 PRNZ 754 at [3].}

[4] Movick v Attorney-General [1978] 2 NZLR 545 (CA) at 551.

[5] New Zealand Association for Migration and Investments Incorporated v Attorney-General [2006] NZAR 45 at [140].