Singh v Associate Minister of Immigration [2016] NZHC 2888 (1 December 2016)

Last Updated: 10 January 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000034 [2016] NZHC 2888

BETWEEN	AMARJIT SINGH Plaintiff
AND	ASSOCIATE MINISTER OF IMMIGRATION Defendant

Hearing:	13 October 2016
Appearances:	F C Deliu for Plaintiff C P Paterson for Defendant
Judgment:	1 December 2016

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 1 December 2016 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date..............................}

SINGH v ASSOCIATE MINISTER OF IMMIGRATION [2016] NZHC 2888 [1 December 2016]

Introduction

[1] Amarjit Singh, an Indian citizen, has been in New Zealand unlawfully since

1998. He has four children from a marriage to a New Zealand citizen and is currently in a relationship with another New Zealand citizen.¹ He has worked almost continuously and has no criminal convictions. In 2015 Mr Singh made a request under s 61 of the Immigration Act 2009 for a visa. The defendant, the Associate Minister of Immigration, refused the request.

[2] Mr Singh seeks judicial review of the defendant’s decision. The grounds for the application are that the defendant:

(a) erred in law;

(b) took into account irrelevant considerations;

(c) failed to take into account relevant considerations; (d) was manifestly unreasonable;

(e) erred in fact;

(f) breached Mr Singh’s right to natural justice; and

(g) breached Mr Singh’s legitimate expectation for his request to be

considered in substance.

[3] The defendant says that because s 61 confers an absolute discretion only one of the grounds relied on, namely that the decision was manifestly unreasonable, can

_{be raised and that ground cannot succeed.}

¹ When Mr Singh’s request was made to the Minister of Immigration under s 61 his partner wa s a

New Zealand resident but has since been granted citizenship.

Relevant statutory provisions

[4] Under s 61 the Minister of Immigration may grant a visa of any type to a person who is unlawfully in New Zealand and in respect of whom no deportation order or removal order is in force.² The decision to grant a visa under s 61(1) is “in the Minister’s absolute discretion.”

[5] The term “absolute discretion” is specifically defined in s 11 which provides,

relevantly:

(1) If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that –

(a) the matter or decision may not be applied for; and

(b) if a person purports to apply for the matter or decision, there is no obligation on the decision maker to –

(i) consider the purported application; or

(ii) inquire into the circumstances of the person or any other person; or

(iii) make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and

(c) whether the purported application is considered or not –

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

(i)(a) privacy principle 6 (which relates to access to personal information and is set out in s 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and

(ii) s 27 of this Act and s 23 of the Official Information Act 1982 do not apply in respect of the purported application.

² Section 61(1).

[6] The nature of the discretion conferred by s 61 means that there is very limited scope for judicial review of a decision made under it. The Court of Appeal said in Zhang v Associate Minister of Immigration:³

This definition of absolute discretion gives bleak prospects for judicial review unless Wednesbury unreasonableness can be identified ...

We regard s 61 as reserving to the executive the traditional power residing in the executive to make decisions about who may be permitted to stay in New Zealand ... s 61 preserves to the executive the absolute discretion to intervene in the deportation process. It precludes formal application and the legitimate expectations associated with that act.

Preliminary issue: meaning of Wednesbury unreasonableness

[7] Mr Deliu, for Mr Singh, cited error of law, taking irrelevant considerations into account, failing to take relevant considerations into account and refusing to intervene in the circumstances as all instances of Wednesbury unreasonableness. He relied on the statement in Associated Provincial Picture Houses Ltd v Wednesbury

Corporation:⁴

It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.

[8] It is clear, however, that Wednesbury unreasonableness is conduct falling only within the narrow scope of a decision so unreasonable that no reasonable authority could ever consider imposing it. In Council of Civil Service Unions v Minister for the Civil Service Lord Diplock said of irrationality as a ground for judicial review:⁵

By “irrationality” I mean what by now can be succinctly referred to as “Wednesbury unreasonableness” ... it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no

³ _{Zhang v Associate Minister of Immigration [2016] NZCA 361 at [14] and [38].}

⁴ _{Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229.}

⁵ Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410.

sensible person who had applied his mind to the question to be decided could have arrived at it.

[9] That approach has been consistently applied in New Zealand. In Wellington City Council v Woolworths New Zealand Ltd Richardson P, noting for the Court of Appeal, said:⁶

Even though the decision maker has seemingly considered all relevant factors and closed its mind to the irrelevant, if the outcome of the exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, the only proper inference is that the power itself has been misused.

To prove a case of that kind requires “something overwhelming” (Associated

Provincial Picture Houses Ltd v Wednesbury Corporation [1949] 1 KB 223,

230 per Lord Greene MR).

[10] Richardson P then cited Lord Diplock’s statement in Council of Civil Service

Unions v Minister for the Civil Service and continued:

Similarly, in Nottinghamshire County Council v Secretary of State for the Environment [1985] UKHL 8; [1986] AC 240, 247, 248 Lord Scarman used expressions such as “so absurd that he must have taken leave of his senses” and “a pattern of perversity” as setting the standard; and in Webster v Auckland Harbour Board [1987] NZCA 80; [1987] 2 NZLR 129, 131 Cooke P spoke of an unreasonable decision as “one outside the limits of reason”. Clearly, the test is a stringent one.

[11] More recently, in the immigration context, in Singh v Chief Executive,Ministry of Business, Innovation and Employment the Court of Appeal said of s 177, which also confers an “absolute discretion”:⁷

The only inference available from Mr Shand’s affirmation of performance of his obligations under s 77 is that, in accordance with New Zealand’s international obligations, he has treated Amanpreet’s interests as a primary consideration. But, within his discretionary power, he has decided that the statutory requirement to ensure the integrity of New Zealand’s immigration system – what may generally be termed “the national interest” – must prevail. A court cannot inquire further. In these circumstances, applying the Wednesbury approach, it cannot be said “there could only be one answer”, namely that the [immigration officer] should have cancelled the deportation orders. We are satisfied that the [immigration officer] reached a decision that was reasonably open to him on all the facts and having regard to New Zealand’s international obligations.

⁶ _{Wellington City Council v Woolworths New Zealand Ltd [1996] 2 NZLR 537 (CA) at 545.}

⁷ Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592 at

[66].

[12] I therefore do not accept Mr Deliu’s argument that the grounds other than (d) are available as grounds for judicial review of the defendant’s decision under s 61. For the reasons I discuss next, I do not consider that the defendant’s decision was unreasonable in the Wednesbury sense.

Mr Singh’s circumstances

[13] Mr Singh came to New Zealand in 1997 and sought refugee status. His application was declined which resulted in him being in New Zealand unlawfully. His appeal was dismissed in 1998.

[14] In 2000 he applied for refugee status under a false name, “Baljit Singh”. Pending determination of that application Mr Singh made a request in his true name of the then Associate Minister of Immigration to be allowed to remain. That request was refused.

[15] While Mr Singh’s “Baljit Singh” application was being dealt with he formed a relationship with a New Zealand citizen and in December 2001 the couple had twin boys. His application for refugee status under the false name was refused in August

2001. An appeal against the refusal to grant Baljit Singh refugee status was dismissed in June 2002 and the work permit that he had been granted as a refugee claimant revoked.

[16] In October 2003 Mr Singh appealed unsuccessfully, on humanitarian grounds, against the requirement to leave New Zealand, with the Removal Review Authority finding that the fact that Mr Singh was married to a New Zealand citizen and had New Zealand citizen children did not amount to exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be removed. By that stage, Mr Singh and his partner had a third child. Soon after, the relationship deteriorated. That child was placed (informally) with an aunt of Mr Singh’s wife.

[17] In 2005 Mr Singh requested that the then Associate Minister, the Honourable

Clayton Cosgrove, grant “Baljit Singh” a temporary entry permit to allow him to

remain in New Zealand and test his eligibility for residence on partnership grounds. That request was refused.

[18] Mr Singh did not engage with the immigration authorities under either of his identities for the next ten years. During that time he separated from his wife. During a period of reconciliation the couple had a fourth child but the relationship ended permanently some time in 2012 and soon afterwards Mr Singh formed a new relationship with his current partner.

Section 61 decision: unreasonableness

[19] The reasons advanced as exceptional circumstances justifying allowing Mr Singh to remain were his close relationship with his children and step-children. Insofar as his own children are concerned, it was suggested that he had provided a substantial amount of care for them, that Mr Singh’s ex-wife had been neglectful and that if he were forced to return to India the children would likely go into foster care. Insofar as Mr Singh’s current partner is concerned, Mr Singh has occupied the role of step-father to her two children but there is no realistic prospect of her moving to India.

[20] The Immigration Department produced a briefing paper which canvassed Mr Singh’s immigration history and personal circumstances. With regard to Mr Singh’s assertion of a custody battle in respect of the children, the report writer noted that there was no supporting evidence in the submission. However, subsequent to that briefing paper being prepared Mr Singh’s solicitor sent a copy of a consent memorandum regarding the custody arrangements for Mr Singh’s children and advised that Mr Singh had joint custody of his children and that if he was forced to leave the country he would never have access to them. Later, a copy of the parenting order was also forwarded to the Immigration Department. One of the conditions of the order was that the children should not be removed from New Zealand without the written consent of both parents. Those developments were the subject of a further briefing paper dated 11 December 2015.

[21] On 15 December 2015 the defendant wrote in the following terms:

Thank you for your representations dated 22 April, 6 August and

6 November 2015 regarding Amarjit Singh.

I have carefully considered your representations. I note that in 2000 Mr Singh claimed refugee status in New Zealand using a false identity and he was granted work permits under this false identity between 2000 and 2002. I also note that a request for ministerial intervention was made on behalf of Mr Singh in 2005 using his false identity. Under s 342(1) of the Immigration Act 2009 it is an offence to provide false or misleading information in support of any application or a request for a visa or any appeal. Also, under s 342(1)(b) it is an offence to supply information to an immigration officer or a refugee and protection officer knowing it is false or misleading. Immigration New Zealand (INZ) may wish to pursue this matter.

I also note that Mr Singh last held a permit in 2002 and despite being advised to make arrangements to depart on multiple occasions he has remained in New Zealand ever since. I do not condone such flagrant disregard for New Zealand’s immigration laws. I advise that I am not prepared to intervene in this case.

[22] Accepting all of the circumstances as they are described by Mr Singh’s lawyer, it cannot be said that the defendant’s decision was unreasonable in the sense already discussed. Mr Singh had been unlawfully in New Zealand for over 12 years by the time he made his request and during that time he had advanced a claim for refugee status under a false name, appealed unsuccessfully and made a s 61 request under that false name. It is correct, as Mr Deliu points out, that doing so did not constitute an offence under the Immigration Act 1987, which was current at the time of these events. But nevertheless, the use of this false information went to Mr Singh’s character.

[23] Moreover, Mr Singh remained in New Zealand, had children and took employment knowing that he was unlawfully in New Zealand.

[24] In these circumstances, even recognising the familial ties that Mr Singh now has to New Zealand, the decision to decline his request cannot be described as one so unreasonable that no reasonable minister could have made it.

Section 61 decision: other errors

[25] I have already held that the asserted error of law and taking account of irrelevant considerations or failing to take account of relevant considerations are not reviewable errors in the context of a decision under s 61. However, for the sake of

completeness, I briefly record Mr Deliu’s submissions in relation to those other

grounds.

Use of false identity as an offence

[26] Mr Singh asserts that the defendant made an error of law by treating Mr Singh’s use of a false identity as criminal conduct falling within s 342(1) of the Immigration Act 2009 and, in doing so, applied that Act retrospectively to Mr Singh’s conduct between 2000 and 2005. For the reasons I have already discussed, this does not fall within the scope of unreasonableness in the Wednesbury sense and is not amenable to judicial review. But in any event I would not regard this aspect of the decision as an error that would impugn the decision. The use of a false identity is, plainly, significant to Mr Singh’s character.

[27] It is true that when Mr Singh used his false identity he did so in the context of the Immigration Act 1987, not the Immigration Act 2009. Strictly, therefore, reference to s 342(1) of the Immigration Act 2009 was unnecessary. However, it is also clear that the defendant was not asserting an offence under s 342(1) but merely signalling it as an issue that Immigration New Zealand may wish to pursue; in this regard I note that the use of the false identity would have been captured by s 142 of the Immigration Act 1987 in any event.

Failing to take account of relevant considerations – additional material provided by

Mr Singh

[28] This complaint is that, on the face of the letter of 15 December 2015 it is not apparent that the additional material that Mr Singh’s lawyer provided (the consent memorandum and parenting order) were taken into account, even though the letter referred specifically to the covering letters from Mr Singh’s solicitor of 6 August and

6 November 2015. Mr Deliu’s complaint was that neither the actual letter of decision nor the draft alternative referred to any substantive aspect of the supplementary material. He contended that the first sentence had simply been adjusted to make reference to the additional covering letters, but that the further material had not, in fact, been included in the defendant’s consideration.

[29] I do not accept that this is an inference open on the facts. The supplementary material gave rise to a further memorandum, which stated that it was to be read in conjunction with the case note and supporting documents included in the ministerial file. That memorandum was dated 11 December 2015. There is no basis on which to conclude that it was not read and considered.

Error of fact – no evidence of a custody dispute

[30] This complaint related to the statement in the briefing paper that there was “no evidence of a custody battle”. Mr Deliu submitted that the statements on this point were shown to be wrong. That is not exactly correct. At the time Mr Singh made his original submission there appeared not to have been any evidence provided regarding the custody arrangements between Mr Singh and his ex-wife. So there was no error. It was the supplementary material that provided information about the custody arrangements and as already discussed, there is no reason to think that this information was not considered.

Breach of natural justice and legitimate expectation

[31] Finally, Mr Deliu submitted that Mr Singh was entitled to but did not receive a fair and impartial consideration of his request. In support of this submission Mr Deliu pointed to the fact that the defendant had signed both the actual and draft letter (the latter being struck through) and that he had focused on aspects of the request other than the important family circumstances that formed the basis for the request. I do not accept that the material produced by the defendant shows any lack of impartiality. It was for the defendant to identify the factors on which he would place weight in determining the request. Those factors were entirely legitimate and I have already concluded that the decision was not unreasonable.

[32] Nor do I accept that Mr Singh is entitled to complain of a breach of legitimate expectation. I have already referred to the Court of Appeal’s decision in Zhang which made clear that the absolute discretion conferred by s 61 precludes legitimate expectations usually associated with a formal application.

[33] At any rate the correspondence from Immigration New Zealand relied on by Mr Singh as creating a legitimate expectation did no more than acknowledge receipt of his s 61 request and indicate that it would “be considered as soon as possible”. The request was considered. Moreover, the same correspondence was also clear that under the Immigration Act the defendant was not required to consider the request nor provide reasons or make further inquiries. It could not have given rise to a legitimate expectation even if that were an available ground of appeal.

Conclusion

_{[34] Mr Singh’s application for judicial review is dismissed.}

P Courtney J