Kaur v Ministry of Business, Innovation and Employment [2016] NZHC 2595 (31 October 2016)

Last Updated: 6 December 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000751 [2016] NZHC 2595

BETWEEN	GIYAN KAUR Applicant
AND	THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent THE ASSOCIATE MINISTER OF IMMIGRATION Second Respondent

Hearing:	24 May 2016 Memoranda filed 15-19 August 2016
Appearances:	F C Deliu for the Applicant D J Collins for the Respondents
Judgment:	31 October 2016

_{JUDGMENT OF HINTON J}

This judgment was delivered by me on 31 October 2016 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

..............................................................................

Registrar/Deputy Registrar

Counsel/Solicitors:

F C Deliu, Barrister, Auckland

Meredith Connell, Auckland

KAUR v MBIE [2016] NZHC 2595 [31 October 2016]

[1] The main issue in this case is whether privative clauses in ss 186 and 187 of the Immigration Act 2009, oust a judicial review by the applicant, who lives outside New Zealand.

History

[2] Ms Kaur is a 77 year old Indian national, living in India.¹

[3] She was a secondary applicant, in applications for residence class visas, made by her husband (Mr Singh) in 1998, 2000 and 2010. She signed the declaration in each application, using her thumbprint.

[4] The 1998 and 2000 applications were declined because, in respect of the

1998 application, Mr Singh and Ms Kaur gave false evidence to say that three of their daughters had died and, in the 2000 application, they falsely declared that they had not been refused a visa entry in the past.

[5] On 5 January 2012, INZ wrote to Mr Singh, advising him that INZ did not consider they met the good character requirement and inviting submissions in respect of a character waiver. On 21 February 2012, Mr Singh wrote to INZ, apologising for providing false information, saying it was unintentional or a simple error.

[6] In March 2012, Mr Singh died. In September 2012, Ms Kaur successfully applied to have a new application substituted for the 2010 application.

[7] On 18 February 2013, INZ conducted a character waiver assessment and, on

25 February 2013, it declined her application on the basis it did not think a character waiver was justified.

[8] In March 2013, Ms Kaur appealed against the INZ decision, to the

Immigration and Protection Tribunal (the Tribunal). That appeal was dismissed in

_{May 2014.}

¹ The applicant’s submissions record that she is in her 80’s, but her applications for a visa state her

date of birth as 1 March 1939.

[9] By way of further background, the Tribunal relevantly held:

[25] ... the appellant’s denial of any knowledge of the fraudulent information as to her daughters’ deaths is not persuasive ... While the appellant’s representative had advised that, nonetheless, they had used an agent and were misled by him, this information was not provided as a response when concerns relating to the three daughters were raised during the processing of the first residence application. Instead, ... the appellant’s son insisted that his sisters had died and that he would obtain further evidence of this. He even produced a letter from the village Sarpanch to this effect.

[26] In stark contrast, an Immigration New Zealand site visit to the appellant’s village resulted in testimony from a number of villagers stating that none of the appellant’s children had died and that in fact one of the daughters was living, with her own family, adjacent to the home of the appellant and her late husband.

[27] It is appreciated that the appellant would not have understood the English language on the application form that she signed but a lack of English does not absolve her from taking responsibility for her application. The falsehood that three of the couple’s children had died would, at that stage, have meant the difference between the appellant and her husband obtaining residence or not.

[28] The false death certificates were quite clearly lodged in order to deceive Immigration New Zealand. In the 16 years since the false documents were lodged, the appellant has not offered any explanation other than that the agent was wholly responsible. Her claim, that she had no knowledge of the deception, is an easy one to make and she has failed to produce any evidence to Immigration New Zealand that might help persuade it she had no such knowledge.

[29] Accordingly, the Tribunal finds that Immigration New Zealand’s decision that the appellant did not meet the character requirement was correct.

[10] On 27 November 2014, Mr Deliu, acting on behalf of Ms Kaur, wrote a lengthy letter to the Associate Minister of Immigration, explaining Ms Kaur’s position and requesting that the Minister of Immigration (the Minister) give:

a special direction to INZ to grant her a residence visa or alternatively, a

temporary visa, to enable her to remain in New Zealand with her children. ...

As per the above provisions, Ms Kaur has very limited options in order for her to visit New Zealand and live with her children. However, granting visas as an exception to instructions is not a foreign concept to the Minister.

Thus, the Minister has authority to grant temporary visas and/or permanent visas to those whose visa applications have been declined by INZ. We submit that Ms Kaur’s circumstances are extraordinary and warrant this special direction to be exercised. We ask the Minister to consider Ms Kaur’s

application on its merits as to grant her a residence visa as an exception to instructions (i.e. character requirement) and as per Ms Kaur’s exceptional circumstances of a humanitarian nature.

[11] On 5 December 2014, the Private Secretary, Diana Loughnan, wrote to

Mr Deliu, acknowledging receipt of his letter. She relevantly stated:

While your request will be considered as soon as possible, you should be aware that the Immigration Act 2009 does not require the Minister to consider your request. In the event that your request is considered, but declined, the Minister is not required to provide any reasons for that decision

...

[12] Ms Kaur’s request for special directions was then declined by a letter of a

Delegated Decision-Maker, Mr Hubscher, dated 6 March 2015. It relevantly stated:

The Associate Minister of Immigration has asked that I make a decision on your request.

I have carefully considered your representation. I advise I am not prepared to intervene in this case.

This proceeding

[13] Ms Kaur then filed the present judicial review proceeding, alleging primarily that the decision was a special direction under s 378, and delegation to Mr Hubscher was therefore unlawful and ultra vires, or if the decision was made under ss 72/76, there was a failure to give reasons, which were required under s 76. There is a range of other alleged errors. Ms Kaur also seeks NZBORA declaratory relief.

[14] The respondents applied (while acknowledging a failure to give reasons under s 76), for orders striking out Ms Kaur’s statement of claim, primarily on the basis that ss 186(3) and 187(8) are privative clauses, which preclude her from bringing review proceedings.

[15] On 6 November 2015, Muir J dismissed the strike-out application, on the basis he could not accept, without evidence (including relevant correspondence), that the process followed by Mr Hubscher was pursuant to ss 72 and 76; and if the process followed was pursuant to s 378, whether the power exercised was one which could lawfully be exercised by Mr Hubscher. As to the scope of the privative

clauses, Muir J considered the Court should, in a case such as this, be properly

possessed of the facts before dismissing an applicant’s claim.

[16] Affidavits by Mr Hubscher and Ms Cantlon were subsequently filed.

[17] On 3 May 2016, Thomas J gave leave to Ms Kaur to cross-examine Mr Hubscher about his understanding of his powers in relation to character waiver and, in particular, whether Mr Hubscher turned his mind to whether the applicant had a character issue which required a waiver, before considering the option of granting a character waiver.

[18] I gave the respondents leave to file a second affidavit of Mr Hubscher and

Mr Hubscher was cross-examined at the hearing.

Was the decision under challenge a decision under s 378 or under ss 72 and 76?

[19] Ms Kaur says the decision was a refusal to issue special directions under s

378, and, in particular, the decision-making power was not properly delegated to

Mr Hubscher, such that the decision was unlawful.

[20] The respondents say the decision was a refusal to grant a residence or temporary visa under ss 72 and 76 and, although the decision was partially in error, it is not reviewable because privative clauses in ss 186/187 apply, to block any review by a person outside New Zealand.

[21] Section 378 gives the Minister the right to issue special directions to an immigration officer in relation to any matter for which such a direction is contemplated by any provision of the Act or regulations made under it, relating to any person, visa or document.

[22] The request made by Mr Deliu did not fall within the scope of s 378.

[23] Special directions can only be issued under s 378 where such a direction is “contemplated” by a provision of the Act. Sections where a special direction is “contemplated” include ss 17, 45, 50, 51, 53, 69, 72, 86, 94, 95, 101, 103 and 108.

[24] Of the provisions that contemplate special directions, the only provision that could possibly apply to the “special direction” sought by Mr Deliu, is s 72.

[25] Section 72 applies to residence class visa applications and s 72(2) provides:

No application for a residence class visa that is received by an immigration officer may be referred to the Minister for decision at first instance, unless the Minister gives a special direction to that effect.

[26] That is clearly not the situation here. Mr Deliu’s letter was not a request at first instance, nor a request to refer an application to the Minister. It was a request for the Minister to grant a visa as an exception to instructions.

[27] There is no provision that “contemplates” a special direction in connection with the issue of a residence class or temporary entry class visa.

[28] A fair reading of Mr Deliu’s letter to the Minister puts it in the category of a request under ss 72 and 76. The letter cites s 378, and reference is made to “special directions”, but the substance of the letter is clearly directed at the issuance of visas. Mr Deliu says that his letter was only asking for a direction: a separate application for a visa under ss 72 and 76 would have had to follow. That is not what the letter says.

[29] Further, Mr Hubscher has provided two affidavits explaining his decision-making process, and he was cross-examined. He confirmed that he did not identify specific sections of the Act during the decision-making process, but, before he made a decision, he focussed on the best available options for Ms Kaur. Mr Hubscher said, while he did not remember details, he was certain that what he did (at least) was to consider the options of granting a residence or temporary entry visa, or granting a character waiver with leave to re-submit an application for a residence or temporary entry visa. I accept that evidence. The options considered by Mr Hubscher, also clearly included the relief sought by Ms Kaur in her letter to the second respondent.

[30] Mr Hubscher’s approach is consistent with general practice, according to the affidavit evidence of Margaret Cantlon, the manager of INZ Resolutions Team, and

Mr Hubscher himself. Ms Cantlon said that a request is treated based on its substance, rather than whether it was made formally under the correct section of the Act.

[31] For all of these reasons, I consider that the decision was made under ss 72 and 76.

[32] I add at this point that it would have significantly reduced the range of potential argument, if Mr Hubscher, in reply to Mr Deliu’s request, had clarified the provisions under which the decision was made. The same could of course be said of Mr Deliu’s request in the first place, but it is the decision that is open for review, not the “application”.

Is the decision subject to privative clauses in ss 186 and 187 of the Act?

[33] On the face of it, Ms Kaur is precluded from bringing review proceedings by ss 186(3) and 187(8) of the Act.

[34] Section 186(3) provides that a person may bring review proceedings in respect of a decision in relation to a temporary entry class visa, except if the decision is in relation to the refusal or failure to grant a temporary entry class visa to a person outside New Zealand.

[35] Section 187(8) provides, to similar effect, that a person may bring review proceedings in respect of a decision in relation to a residence class visa, except if the decision is in relation to the refusal or failure to grant a residence class visa to a person outside New Zealand.

[36] The decision under challenge falls within the exception to each provision, as it relates to a “refusal or failure to grant a residence class or temporary entry class visa to a person outside New Zealand”. Ms Kaur has not been in New Zealand since August 2001.

[37] Provisions which bar an application for judicial review are referred to as privative clauses.

[38] While on the face of it, ss 186(3) and 187(8) are the end of the matter, nothing is ever quite what it seems. There is a general presumption that Parliament does not intend to exclude judicial review for error of law.² In this case, there is an error of law, in terms of the failure to give reasons in respect of the temporary entry class visa refusal.

[39] Despite the presumption, Parliament may exclude review for error of law, with sufficiently clear legislative wording. Legislative purpose and context are relevant and, in particular, where Parliament has provided for statutory appeal rights, courts are more likely to apply a privative clause on its terms.³

[40] Turning to consider these points, in this case, the wording of the clauses is clear. There is no ambiguity that may be read to Ms Kaur’s advantage. On the face of it, ss 186(3) and 187(8) exclude judicial review for persons outside New Zealand. There is nothing in these provisions, or the legislation, that suggests they need to be read restrictively or liberally, rather than simply applied.

[41] Second, ss 186(3) and 187(8) relate to the Crown’s prerogative to control its borders, which is fundamentally a matter for the executive. As such, the provisions ought not to be read down by the courts, but instead applied on their terms. Greater procedural protections, including review rights, are afforded to onshore visa applicants, they having demonstrated eligibility to enter New Zealand.

[42] Third, the privative clauses relied on, do not deprive Ms Kaur of the right to challenge the refusal of her residence application.⁴ The privative clauses are part of a comprehensive code contained in part 7 of the Act, for challenging decisions made using statutory powers under the Act. The scheme provides an applicant with the ability to appeal to the Tribunal against a decision of INZ to decline a residence class visa. Ms Kaur has exercised that right already. She could have also sought leave to

_{appeal the Tribunal’s decision to the High Court on a point of law, or if leave had}

² The leading cases are Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153; O’Regan v Lousich [1994] NZHC 787; [1995] 2 NZLR 620 (HC); Zaoui v Attorney-General (No. 2) [2004] NZCA 244; [2005] 1 NZLR 690 (CA) and Ramsay v Wellington District Court [2005] NZCA 196; [2006] NZAR 136 (CA).

³ _{See Ramsay v Wellington District Court, above n 2, at [28]-[33].}

⁴ There is no right of appeal against a decision regarding a temporary visa, whether the applicant is onshore or offshore.

been declined, to the Court of Appeal. The request to the Minister is an exceptional discretionary mechanism, intended to come after an applicant’s rights of appeal have been exhausted. Understandably therefore, the ability to review the Minister’s decision has been expressly limited. (I remind myself, though, of the observation of Fogarty J in Cao v Minister of Business, Innovation and Employment,⁵ that if an official elects to consider an application, they must do so according to the law.)

[43] Three recent cases relating to residence visa applications, all support the

respondents’ argument.

[44] In Phan v Minister of Immigration,⁶ Brewer J was dealing with a now repealed privative clause in s 10(3) of the Immigration Act 1987, very similar to s 187(8) of the Act. He held that the express words of s 10(3) were sufficiently clear to rebut the presumption against excluding review for error of law. He said Parliament created the distinctions on the right to bring review proceedings, carefully and with merit and the availability of appeal rights displaced the presumption against ousting jurisdiction.

[45] Ibrahim v Associate Minister of Immigration and Liu v Minister of

Immigration are to similar effect.⁷

[46] Although there is no appeal right in the case of the temporary visa refusal, Ms Kaur can at any time re-apply for a temporary visa or residence visa and request ministerial intervention. To some extent therefore, the reconsideration relief sought is available in any event. I agree with Mr Deliu that, having to start again is clearly not the same as succeeding on a review application. The ability to re-apply is not an answer in itself to the proceeding, which the respondents argued. However, the fact that a further application/ministerial request can be made, is relevant in the context

_{of the application of privative clauses.}

⁵ _{Cao v Minister of Business, Innovation and Employment [2014] NZHC 1551.}

⁶ _{Phan v Minister of Immigration [2010] NZAR 607 (HC).}

⁷ Ibrahim v Associate Minister of Immigration HC Wellington CIV-2011-485-1142, 18 October

2011; and Liu v Minister of Immigration [2015] NZHC 2048.

[47] For all of the above reasons, I find that the privative clauses do preclude this review proceeding.

Did Mr Hubscher make any error or failure in the decision under ss 72/76?

[48] For completeness, I record that I am satisfied that all but one of the alleged errors of law lack merit. Further, the one error, of failure to give reasons under s 76, does clearly fall within the literal terms of the privative clauses, as opposed to, for example, the decision being ultra vires, which as Muir J said, arguably might not.

[49] Mr Deliu submits there were a number of errors: (a) Failure to provide reasons for the decision.

(b) The decision was ultra vires because there was no proper delegation of power to Mr Hubscher and/or because Mr Hubscher unlawfully confined his discretion.

(c) Ms Kaur had a legitimate expectation the second respondent would personally make the decision and would provide reasons.

(d) The decision was made in breach of natural justice because Ms Kaur should not be responsible for provision of fraudulent information and failure to give reasons (without relying on s 11(c)(i)), and, in any event, s 11(c)(i) is inconsistent with NZBORA. Ms Kaur had advanced additional breaches of natural justice, but Mr Deliu limited the argument to the points I have mentioned.

[50] The respondents concede there is an error, in terms of failure to provide reasons for the decision under s 76. The decision to grant a temporary visa as an exception to instructions, involves a standard discretion, not an absolute discretion.

_{There was a requirement to provide reasons and the failure to do so is an error.}⁸

8. Again, if the Minister had specified the basis of the decision, the need to provide reasons or to refuse to act, would have become apparent.

[51] The respondents say there was no such error under s 72 because that section confers an absolute discretion on the Minister and s 11 provides that absolute discretion means there is no obligation to give reasons. Mr Deliu says that “absolute” does not mean “absolute”. There can be no such “creature” in the law, he says, as it would mean the absence of the rule of law. However, as the respondents submit, the plain wording of s 11 and its impact are clear. The meaning of the word

“absolute” is plain. A decision under s 11 is “virtually unreviewable”.⁹ There was

no obligation to give reasons under s 72.

[52] Given my finding that the decision under review was made under ss 72 and

76, the applicant’s ultra vires/“no evidence of delegation” claims, effectively do not apply. Mr Hubscher did hold a delegation from the Minister to grant a residence class visa under s 72(3). The same applies in respect of his decision not to grant a temporary entry class visa under s 76. As to the “no evidence of delegation” claim, leaving to one side the legislative presumption in s 380(7), there is evidence that Mr Deliu’s request was referred to Mr Hubscher, who had the necessary delegations to deal with the visa applications and the relief sought by Ms Kaur.

[53] Alternatively, Ms Kaur claims that Mr Hubscher unduly confined his discretion by only considering two options: refusal to intervene, or granting a residence visa. For this proposition, Mr Deliu relies on the fact that two options were referred to in the briefing paper, and two draft letters had been prepared.

[54] It is clear from Mr Hubscher’s evidence, which I accept, that he did not confine his discretion in that way. He said it was always his practice to consider a range of options, whether expressly included in a briefing paper or not. He said he was certain that in this case, he would have considered at least granting either of the two visas sought or granting a character waiver with leave to re-submit an application for either of the two visas.

[55] I agree therefore with the respondents, the claim that Mr Hubscher unlawfully confined his discretion, must fail.

[56] There was then a claim of breach of legitimate expectation. This is said to arise in two ways: first, an expectation that the Minister would personally consider the request, and secondly, an expectation of compliance with immigration instructions.

[57] For a successful claim in legitimate expectation, there has to be a commitment by promise or policy and reliance on that commitment, which reliance has to have been reasonable.

[58] The Act provides that the Minister can delegate decision-making powers to immigration officers. The claim that there was evidence to contrary effect on the basis of a letter referring, in the context of a decision, to “the Minister”, is far-fetched.

[59] As to the second “expectation”, this is a re-packaging of arguments I have dealt with, mainly relating to an expectation of reasons and erroneous advice as to available options. These points fail for the same reasons I have already given. In addition, it seems Ms Kaur had no expectation of reasons, as Mr Deliu said in his letter of request that this was not a requirement.

[60] Ms Kaur’s claims, in terms of breach of natural justice, also largely repeat earlier claims and fail for the same reasons. Ms Kaur also claims under this head that Mr Hubscher needed to expressly refer to and rely on s 11, in making the decision as to the residence visa and not providing reasons. In fact, he did clearly signpost the application of s 11 before making the decision. Even if he had not done so, it would not be a breach of natural justice that would merit the Court’s

intervention.¹⁰

[61] Ms Kaur also argued under the heading of natural justice, that she was not responsible for the false information, but the law is clear that neither being a secondary applicant, nor being illiterate (which must include illiteracy in the

applicant’s home language), operate as excuses.¹¹ That must be reinforced, or the immigration system will be hopelessly undermined.

[62] To conclude, if the privative clauses did not apply, I would have found an error of law only to the extent of Mr Hubscher’s failure to give reasons. All other alleged errors of law fall away.

Declaration of inconsistency with the New Zealand Bill of Rights Act 1990 (NZBORA)

[63] Ms Kaur seeks a declaration that s 11(c)(i) of the Act is inconsistent with s 27 of NZBORA and cannot be justified under s 5 of that Act. The respondents accept that the privative clauses would not prevent such a declaration from being made. Section 11(c)(i) provides that, where a decision is in the “absolute discretion” of the decision-maker concerned, the decision-maker is not obliged to give reasons, other than the reason that s 11 applies. Mr Deliu filed lengthy submissions in support.

[64] Section 27 of NZBORA provides that every person has the right to observance of principles of natural justice by any public authority making a determination in respect of that person’s rights.

[65] The respondents submit that, unless I consider this is clearly an inappropriate case for such a declaration, this issue should be adjourned for separate argument. They filed relatively brief submissions on the point.

[66] In my view, the point is answered by White J in Ou v Department of Labour.¹² He found, and I agree, that the rules of natural justice do not expressly include a general duty to give reasons, at least not without regard to the circumstances of the particular Tribunal. Dealing with an interim application, he said a claim that s 58(7)(a) of the Immigration Act 1987 was inconsistent with s 27(c) of NZBORA was unlikely to succeed, because the general right to the observance of principles of natural justice does not require immigration officers

_{making decisions under s 58 to give reasons. Duffy J, dealing with a substantive}

¹¹ _{Pal v Minister of Immigration [2013] NZHC 2070.}

¹² Ou v Department of Labour HC Auckland CIV-2010-404-2730, 12 May 2010.

application in connection with s 177 of the 2009 Act, reached the same view as

White J in Ou.¹³ The same must logically follow here in connection with s 11(c)(i). [67] I therefore find that s 11(c)(i) is not inconsistent with s 27 of NZBORA.

Conclusion

[68] As Ms Kaur is outside New Zealand, the privative clauses in ss 186 and 187 preclude her from bringing review proceedings.

[69] Ms Kaur’s review proceeding is accordingly dismissed.

[70] The application for declaratory relief under NZBORA is also dismissed. [71] The respondents are entitled to costs on a 2B basis.

----------------------------------------- Hinton J

¹³ Fang v Ministry of Business, Innovation and Employment [2016] NZHC 1630.