Oosterveen v Ministry of Business, Innovation and Employment [2014] NZHC 1709 (22 July 2014)

Last Updated: 28 July 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-004763 [2014] NZHC 1709

IN THE MATTER	of the Judicature Amendment Act 1972
IN THE MATTER	of Section 69(2) of the Immigration Act 2009
BETWEEN	KARIN OOSTERVEEN Applicant
AND	MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Hearing:	14 July 2014
Counsel:	R J Hooker and C Oh for Applicant J Foster for Respondent
Judgment:	22 July 2014

_{JUDGMENT OF COLLINS J}

Introduction

[1] This judgment explains why I am dismissing applications for interim relief sought by Ms Oosterveen in relation to judicial review proceedings she has brought against the Chief Executive of the Ministry of Business, Innovation and Employment. Immigration New Zealand (INZ) is a division of the Ministry of Business, Innovation and Employment and its officials have made the decisions which Ms Oosterveen wishes to challenge.

[2] The interim orders Ms Oosterveen has sought would have the effect of permitting Ms Oosterveen and her partner Ms De Grauw, to enter New Zealand in circumstances where INZ has not yet decided if they should be allowed to enter

_{New Zealand.}

OOSTERVEEN v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 1709 [22

July 2014]

[3] I have concluded Ms Oosterveen is wrong in law when she claims she is entitled to enter New Zealand. I have also concluded that the orders sought by Ms Oosterveen are not “reasonably necessary” to preserve her position because, if granted, the orders sought would have the effect of improving Ms Oosterveen’s position.

Background

[4] Ms Oosterveen is a citizen of the Netherlands. On 30 January 2013 she filed an application for a residence class visa¹ under INZ’s skilled migrant category.

[5] Ms Oosterveen’s application explained that she had an offer of skilled employment in New Zealand. The offer was to be the customer service manager for Bethells Beach Cottages. Ms De Grauw, a Belgian national, was named as Ms Oosterveen’s partner in the application, which was submitted to INZ’s London office.

[6] On 10 July 2013 resident visas were granted to Ms Oosterveen and Ms De

Grauw on the condition that they travelled to New Zealand before 10 July 2014.²

The visas record that the holders of the visas’ “initial stay [is] subject to grant of entry permission ...”.

[7] The letter which INZ sent to Ms Oosterveen on 10 July 2014 did not specifically refer to the need for Ms Oosterveen and Ms De Grauw to apply for and obtain permission to enter New Zealand. The letter did say that the resident visa allowed Ms Oosterveen and Ms De Grauw “... to live, work, and study in New Zealand”.

[8] After being advised that they had been granted resident visas, Ms Oosterveen and Ms De Grauw arranged to travel to New Zealand. Those arrangements involved

_them:

1. Immigration Act 2009, s 4. Residence class visa means a permanent resident visa or a resident visa. The visa in this case was a resident visa.

² Section 50(1).

(1) giving up their employment in Belgium;

(2) surrendering their superannuation schemes; (3) cancelling their insurance policies;

(4) giving up their accommodation in Belgium;

(5) moving to Ms Oosterveen’s parents’ home in the Netherlands;

(6) purchasing air tickets to travel to New Zealand on 4 March 2014; (7) paying a migration levy; and

_{(8) placing their belongings in a shipping container.}³

[9] On 27 February 2014 INZ received information from an anonymous source which raised concerns that Ms Oosterveen’s job offer from Bethells Beach Cottages was not genuine. The information received by INZ suggested Ms Oosterveen and the owner of the Bethells Beach Cottages had colluded to construct a false job offer to enable Ms Oosterveen and Ms De Grauw to apply for residence class visas. The information was passed on to INZ’s London office for further investigation.

[10] On 28 February 2014 INZ emailed Ms Oosterveen and advised her that information had been received that could lead to her and Ms De Grauw’s resident visas being cancelled. INZ asked for a response by 28 March 2014.

[11] On 3 March 2014 INZ advised Ms Oosterveen that it was “suspending [her] nationality based visa-waiver status by special direction in accordance with the Immigration Act 2009 section 69(2)(d)”. That letter also advised Ms Oosterveen that her resident visa did “not confer entry permission into New Zealand and [that she] may be refused entry to New Zealand in accordance with the Immigration Act 2009

_{section 108(5)”.}

³ The container with Ms Oosterveen’s and Ms De Grauw’s possessions is still in Antwerp.

[12] INZ and Ms Oosterveen then exchanged correspondence in which Ms Oosterveen sought copies of the letters and documents which INZ had received from the anonymous informant. INZ advised Ms Oosterveen on 27 March 2014 and

1 April 2014 that it would withhold some of the information for “Privacy Act reasons”.

[13] On 14 April 2014 Ms Oosterveen commenced her application for judicial review in which she challenged INZ’s decision to suspend her “nationality based visa-waiver status”. INZ then appreciated it had made a mistake when it purported to suspend Ms Oosterveen’s visa-waiver status as she and Ms De Grauw had resident visas and so did not require a visa-waiver. INZ’s purported decision of 3 March

2014 was meaningless.

[14] On 24 April and 2 May 2014 INZ provided Ms Oosterveen with the anonymous information it had received and subsequently asked Ms Oosterveen to respond to that information by 18 June 2014.

[15] A further document was provided to INZ on 15 April 2014 as part of its investigation into Ms Oosterveen’s and Ms De Grauw’s applications for residence class visas. That document was apparently provided to INZ on a confidential basis. On 28 May 2014 INZ told Ms Oosterveen that the 15 April 2014 document corroborated the earlier anonymous information and contained no new allegations. However, INZ also explained that as the document was received during an investigation and on the basis that it would remain confidential, INZ believed it could not disclose that document to Ms Oosterveen. INZ also said that it would not rely on the 15 April 2014 document when reaching its decision about whether or not to cancel Ms Oosterveen’s and Ms De Grauw’s resident visas.

[16] INZ has advised Ms Oosterveen not to travel to New Zealand pending the completion of its investigation. Ms Oosterveen has been told that she is unlikely to be granted permission to enter New Zealand and that if she is refused entry her resident visa would be cancelled and she would be liable to be turned around at the New Zealand border. INZ has also informed Ms Oosterveen that she is the subject of a border alert which has been placed on INZ’s computer system.

[17] The Minister of Immigration has extended the travel condition on Ms Oosterveen’s and Ms De Grauw’s resident visas to 10 January 2015. That extension has been made to enable INZ to complete its investigations into whether or not Ms Oosterveen’s and Ms De Grauw’s resident visas should be cancelled.

Key legislative provisions

General

[18] The Immigration Act 2009 (the Act) aims to manage immigration into New Zealand in a way “that balances the national interest, as determined by the Crown, and the rights of individuals”.⁴ To advance this purpose the Act establishes an immigration system that requires persons who are not New Zealand citizens to hold a visa or to have the benefit of a visa-waiver⁵ to travel to New Zealand and “be granted entry to stay in New Zealand”.⁶ The Act provides for immigration instructions “which set rules and criteria for the grant of visas and entry permission”.⁷

[19] Under s 342 of the Act it is an offence to make any statement or provide any information, evidence or submissions in support of an application for a visa or entry permission knowing that it is false or misleading in any material respect.

Resident visa

[20] Those who may apply for a residence class visa include applicants who are not in New Zealand and who wish to come to New Zealand and stay indefinitely.⁸

[21] The holder of a resident visa is entitled to travel to New Zealand and apply for entry permission.⁹ Those who are granted entry permission are entitled to stay in

_{New Zealand indefinitely and/or study in New Zealand.}¹⁰

⁴ _{Immigration Act 2009, s 3(1).}

⁵ _{Sections 14(1)(a)(ii) and 69.}

⁶ _{Section 3(2)(a)(ii).}

⁷ _{Section 3(2)(b).}

⁸ _{Section 71(1)(a).}

⁹ _{Section 74(1)(a).}

¹⁰ Section 74(1)(b).

[22] Section 22 of the Act authorises the Minister to certify immigration instructions relating to a number of matters, including residence class visas and entry permission.

[23] Section 72 of the Act provides that an application for a residence class visa must be determined in accordance with the residence class visa instructions applicable at the time the application was made. Any discretion exercised by the Minister of Immigration or an immigration officer must also be in accordance with the residence class visa instructions.

Entry permission

[24] The granting of a visa to a person outside New Zealand does not in itself entitle the holder of that visa to be granted entry permission.¹¹ Rather, the effect of a visa granted outside of New Zealand is that the holder of the visa has permission to “apply for entry permission”.¹² In addition, a visa indicates that “at the time the visa [was] granted, there [was] no reason to believe that the holder [would] be refused entry permission if the holder’s travel is consistent with the conditions of the visa relating to travel”.¹³

[25] The holder of a resident visa may apply for entry permission if he or she is outside New Zealand¹⁴ or he or she can apply for entry permission on his or her arrival in New Zealand.¹⁵

[26] Under s 107(4) of the Act, the effect of a refusal to grant entry permission to New Zealand is that any visa the person holds is cancelled and if he or she arrived in New Zealand he or she is liable to be turned around.

[27] Those who apply for entry permission have a responsibility to inform the

_{Minister of Immigration or an immigration officer of any relevant fact, including any}

¹¹ _{Immigration Act 2009, ss 17 and 46(1).}

¹² _{Sections 43(1)(a)(ii) and 74(1)(a)(ii).}

¹³ _{Section 43(1)(b).}

¹⁴ _{Section 98.}

¹⁵ Section 103(1)(d).

material change in circumstances that has occurred between the grant of a resident visa and the application for entry permission.¹⁶

[28] Section 108 of the Act governs decisions relevant to entry permission in relation to resident visa holders. Section 108(5) and (6) of the Act provide:

(5) If the holder of a resident visa arrives in New Zealand for the first time as the holder of the visa and the visa was granted outside New Zealand,—

(a) the Minister or, subject to any special direction, an immigration officer may, in his or her discretion,—

(i) grant entry permission to the person; or

(ii) refuse entry permission to the person;

...

(6) The Minister’s or immigration officer’s decision under subsection ... (5)(a) must be made, and any discretion exercised, in terms of the residence instructions applicable at the time the person applied for the visa.

Cancellation of resident visa

[29] A resident visa is cancelled if the holder of the visa is refused entry into New Zealand.¹⁷ A decision to refuse entry permission must, however, be made in accordance with the residence class visa instructions applicable at the time the holder of the resident visa applied for a residence class visa.¹⁸ Alternatively, the Minister of Immigration or an immigration officer may cancel a resident visa at any time before the holder of that visa arrives in New Zealand if the person no longer meets the rules or criteria of the immigration instructions applicable at the time the application for

_{the residence class visa was made.}¹⁹

¹⁶ _{Immigration Act 2009, s 112(3).}

¹⁷ _{Section 64(1)(b).}

¹⁸ _{Section 108(6).}

¹⁹ Section 65(1)(b).

Immigration Instructions

[30] The Immigration Instructions certified by the Minister of Immigration pursuant to s 22 of the Act are policy statements and as such they are:²⁰

... not to be construed with the strictness which might be regarded as appropriate to the interpretation of a statute or statutory instrument. [They are] a working document providing guidance to immigration officials ... [They] must be construed sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed, that is, as part of a comprehensive and coherent scheme governing immigration into this country.

Residence Instructions

[31] Rule R5.30 of the Residence Instructions provides that applications for residence class visas must be approved if the immigration officer is satisfied that:

(a) The Applicant has provided all evidence required by the applicable residence instructions, and any additional evidence requested by an immigration officer; and

(b) The Applicant meets applicable residence instructions, including the requirements of health and character.

[32] If an immigration officer has reasonable cause to believe that an applicant has supplied incorrect information, the officer should consider declining the application under the character provisions of the Residence Instructions.²¹

Entry Permission Instructions

[33] Rule Y3.1 of the Entry Permission Instructions sets out the categories of people who will normally be refused entry permission. Those categories include persons who “are unable to meet the requirements for entry permission for a visa

_{under the relevant instructions”.}²²

²⁰ _{Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.}

²¹ _{Immigration New Zealand Operational Manual, r R5.15.1.}

²² Immigration New Zealand Operational Manual, r Y3.1.c.

Ms Oosterveen’s proceeding

[34] The gravamen of Ms Oosterveen’s claim is that “as a holder of a resident visa she has the right to travel to New Zealand and to be granted entry permission”.²³ Ms Oosterveen says she cannot be denied entry into New Zealand simply because she is the subject of an investigation concerning the information she supplied when she was granted a resident visa. Ms Oosterveen submits if she enters New Zealand and if inquiries later establish that her resident visa should be cancelled then, at that juncture, she is exposed to the possibility of deportation under s 158(1) of the Act.²⁴

[35] Ms Oosterveen’s proceeding is based upon two strands of argument, namely:

(1) As a matter of statutory construction Ms Oosterveen’s resident visa “entitles her to come to New Zealand and live, work and study in New Zealand ...”.²⁵

(2) Ms Oosterveen has a substantive legitimate expectation that she can move to New Zealand.²⁶

[36] The interim orders which Ms Oosterveen seeks pursuant to s 8 of the

_{Judicature Amendment Act 1972 are:}

²³ _{Applicant’s submissions, 9 July 2014 at [61(a)].}

24. 158 Deportation liability of residence class visa holder if visa or citizenship obtained or held by fraud, forgery, etc

(1) A residence class visa holder is liable for deportation if—

(a) the person is convicted of an offence where it is established that—

(i) the person’s residence class visa or entry permission was procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or

(ii) the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or

(b) the Minister determines that—

(i) the person’s residence class visa or entry permission was procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or

(ii) the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information.

²⁵ _{Applicant’s submissions, 9 July 2014 at [13].}

²⁶ At [28].

(1) A declaration that the resident visas issued to Ms Oosterveen and Ms De Grauw on 10 July 2013 continue in force pending further order of the Court;

(2) An order that the decision of INZ of 3 March 2014 to suspend the resident visas is quashed;

(3) A declaration that the border alerts issued by INZ in respect of

Ms Oosterveen and Ms De Gauw should not be continued with;

(4) A declaration that Ms Oosterveen and Ms De Grauw cannot be subject to a purported decision under s 65 of the Act; and

(5) A declaration that Ms Oosterveen and Ms De Grauw are not subject to any discretion to refuse entry under s 108(5) of the Act.

Analysis

[37] I proceed on the basis that the approach I should follow when considering Ms Oosterveen’s application for interim relief is that explained by the Court of Appeal in Carlton & United Breweries Ltd v Minister of Customs.²⁷ I must therefore be satisfied that the orders sought are “reasonably necessary” to preserve Ms Oosterveen’s position. The strength of her case is a material consideration.

Redundant claims for relief

[38] The first two interim orders sought by Ms Oosterveen are unnecessary because:

(1) the Minister of Immigration has extended Ms Oosterveen’s and

Ms De Grauw’s resident visas until 10 January 2015; and

(2) INZ accepts that the purported suspension of Ms Oosterveen’s and

_{Ms De Grauw’s nationally based visa-waiver status was a mistake.}

²⁷ Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).

Is there a right of entry into New Zealand?

[39] INZ acknowledges that if Ms Oosterveen and Ms De Grauw had travelled to New Zealand prior to 27 February 2014 they would have likely been granted entry permission. Ms Oosterveen submits that her so-called “right of travel and entry is therefore the position to be preserved” through her application for interim relief.

[40] I disagree. The fact Ms Oosterveen and Ms De Grauw would in all likelihood have been granted entry permission prior to INZ becoming aware of the allegations which are currently being investigated is not determinative of Ms Oosterveen’s application. What is more important is whether or not Ms Oosterveen and Ms De Grauw have, or had, at the material time a right of entry into New Zealand. The answer to that question is clearly no because of the regime of the Act.

Regime of the Act

[41] The Act clearly prescribes a two-step process for persons such as Ms Oosterveen gaining entry into New Zealand. Step one involves the granting of a resident visa. Step two is the granting of permission to enter New Zealand. The granting of a resident visa does not automatically confer a right of entry to New Zealand to the holder of a resident visa.

[42] A decision to decline Ms Oosterveen’s entry permission must be made in accordance with the residence instructions applicable at the time she applied for her residence class visa. The residence instructions included a provision that would have entitled an immigration officer to decline Ms Oosterveen’s application for a residence class visa on the grounds of “reasonable cause to believe” she had supplied

incorrect information in support of her application.²⁸

[43] I cannot at this juncture assess the strength of the evidence that INZ is currently evaluating. I can, however, conclude that had the information that has emerged been known to INZ at the time it was considering Ms Oosterveen’s

_{application for her residence class visa, the decision-maker would have had}

²⁸ Refer to paragraph [31] above.

“reasonable cause to believe” Ms Oosterveen had supplied incorrect information in support of her application and that she may have committed an offence under s 342 of the Act. On that basis INZ would have been entitled to decline Ms Oosterveen’s and Ms De Grauw’s applications for residence class visas. It follows therefore that if Ms Oosterveen and Mr De Grauw were to arrive in New Zealand today, INZ would be entitled to refuse them entry permission pursuant to s 108(5)(a) of the Act.

Status quo

[44] Ms Oosterveen’s application for interim relief does not preserve her position. Rather, if I were to make the orders she seeks she would be significantly better off because she would be permitted entry to New Zealand in circumstances where she has no right to be granted permission to enter New Zealand. Granting the orders sought would also have the effect of me usurping the decision which INZ is currently required to make either under s 65(1)(b) of the Act if Ms Oosterveen remains out of New Zealand or under s 108(5) of the Act if Ms Oosterveen travels to New Zealand. I am not prepared to usurp the statutory functions and responsibilities of INZ in the way urged by Ms Oosterveen.

Substantive legitimate expectation

[45] Ms Oosterveen’s claim for interim relief is even less convincing in relation to her claim that she had a substantive legitimate expectation that she would enter New Zealand.

[46] In New Zealand there is a degree of judicial ambivalence towards recognising the concept of substantive legitimate expectation.²⁹ In Canada the Supreme Court recently affirmed that the doctrine of substantive expectations cannot give rise to

_{substantive rights.}³⁰

²⁹ GXL Regulatory Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [45]; Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982, [2013] NZAR 1474 at [184].

³⁰ Agraira v Canada (Minister of Public Safety and Emergency Preparedness) [2013] SCC 36, [2013] 2 SCR 559.

[47] However, there is also authority for the proposition that ‘the categories of

legitimate expectations are not closed for the purposes of administrative law”.³¹

[48] Proponents of the doctrine of substantive legitimate expectation recognise it is an effective supervisory action where public bodies and officials fail to act fairly and consistently with the public.³²

[49] In England “the threads of the doctrine of substantive legitimate expectation” have been helpfully drawn together by Cranston J, who has identified 10 elements to the doctrine.³³

[50] If the doctrine were to gain traction in New Zealand it might found a claim for judicial review where:

(1) a public authority has given a clear and unambiguous undertaking;³⁴

(2) the undertaking was reasonably understood to mean what the applicant claims;³⁵

(3) the decision-maker knew of the representation and chose to act contrary to it;³⁶

(4) the applicant has suffered some detriment by relying on the representation;³⁷ and

(5) the decision-maker’s conduct cannot be objectively justified as being

in the public interest and a proportionate response to the circumstances of the case;³⁸

³¹ _{Burt v Governor-General [1992] 3 NZLR 672 (CA) at 679.}

³² _{R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 at [68].}

³³ United Kingdom Association of Fish Producer Organisations v Secretary of State for

_{Environment, Food and Rural Affairs [2013] EWHC 1959 (Admin) at [92].}

³⁴ _{Paponette v Attorney-General of Trinidad & Tobago [2010] UKPC 32, [2012] 1 AC 1 at [30].}

35. R (Davies) v Revenue and Customs Commissioner [2011] UKSC 47, [2011] 1 WLR 2625; R (Patel) v General Medical Council [2013] EWCA Civ 327, [2013] 1 WLR 2801 at [47]- [48].

³⁶ _{Paponette v Attorney-General of Trinidad & Tobago, above n 34, at [46].}

³⁷ Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1

AC 453 at [60]; R (Patel) v General Medical Council, above n 35, at [47]-[48].

[51] The letter sent by INZ to Ms Oosterveen and Ms De Grauw on 10 July 2013 did not refer to the need for them to apply for permission to enter New Zealand. However, the resident visas sent to Ms Oosterveen and Ms De Grauw on 10 July

2013 clearly stated that their ability to initially stay in New Zealand was subject to them being granted entry permission. INZ did not give Ms Oosterveen a clear and unambiguous undertaking that she and Ms De Grauw had an unconditional right to enter New Zealand. If it were possible for Ms Oosterveen to bring a claim based on substantive legitimate expectation it would fail at the first hurdle.

Conclusion

[52] The application for interim relief is dismissed.

_{[53] The respondent is entitled to costs on a scale 2B basis.}

_{D B Collins J}

Solicitors:

Vallant Hooker & Partners, Auckland for Applicant

Crown Law Office, Wellington for Respondent

³⁸ R (NADARAJAH) v Secretary of State for the Home Department [2005] EWCA Civ 1363.