Kaur v Ministry of Business, Innovation and Employment [2016] NZHC 872 (3 May 2016)

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UNDER	the Judicature Amendment Act 1972 and the Immigration Act 2009
IN THE MATTER	an application for judicial review
BETWEEN	GIYAN KAUR Applicant
AND	THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent
AND	THE ASSOCIATE MINISTER OF IMMIGRATION _{Second Respondent}

Hearing:	20 April 2016
Appearances:	F C Deliu for the Applicant M P Hardy for the Respondents
_Judgment:	_{3 May 2016}

This judgment was delivered by me on 3 May 2016 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

KAUR v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT & ORS [2016] NZHC 872 [3

[1] The applicant, Giyan Kaur, has unsuccessfully applied for residence and temporary entry class visas to New Zealand a number of times. In November 2014 she asked the Minister of Immigration to intervene on her behalf. A decision not to intervene was made on 6 March 2015, by Mr Christopher Hubscher, purportedly acting as a delegated decision maker.

[2] The applicant initiated judicial review proceedings in May 2015. The applicant applied to subpoena Mr Hubscher and for leave to cross examine him.

[3] The application to subpoena Mr Hubscher was made before any affidavit evidence had been filed. Since the date of that application, an affidavit of Mr Hubscher has been filed. In those circumstances, Mr Deliu, appearing for Ms Kaur, confirmed there was no longer need to subpoena Mr Hubscher. The application for leave to cross examine him, however, remains.

[4] Ms Kaur is an Indian woman now in her 80s. She has been out of New Zealand at all relevant times. She and her husband unsuccessfully applied for residence class visas in 1998 and 2000. In 2010, the couple made a further application for a residence class visa. Ms Kaur was the secondary applicant in each application. Following her husband’s death in March 2012, Ms Kaur successfully applied to become the primary applicant in the 2010 application. This application was declined in February 2013 on character grounds. Ms Kaur’s appeal to the Immigration and Protection Tribunal was declined in May 2014.

[5] In November 2014, Ms Kaur requested a special direction from the Minister of Immigration under s 378 of the Immigration Act 2009 (“the Act”) granting her a visa. This request was declined by Mr Hubscher acting on behalf of the Minister on

[6] The applicant then filed judicial review proceedings. Her substantive judicial review claim alleges:¹

(a) The delegation to Mr Hubscher of the decision as to whether to intervene was unlawful and ultra vires;

(b) Alternatively, Mr Hubscher unduly confined his discretion to choosing between whether to refuse to intervene or whether to grant a residence visa when Ms Kaur also sought a temporary visa;

(c) Alternatively, the respondents breached Ms Kaur’s legitimate expectation that the Associate Minister would be the person making the decision; and

27 of the New Zealand Bill of Rights Act. The applicant submits that the respondent acted on erroneous advice that Ms Kaur had previously provided fraudulent information to Immigration and failed to take into account a number of relevant considerations relating to Ms Kaur’s family and personal circumstances.

[7] The respondents applied to strike out the claim on the basis that the applicant’s judicial review claim was barred by certain privative clauses in the Act, or alternatively, that the statement of claim disclosed no reasonably arguable cause of action.

[8] The application was declined by Muir J on 6 November 2015. His Honour held that it would not be appropriate to strike out the claim given uncertainties as to which procedure under the Act was used to deal with the application and whether the

[10] Between December 2013 and April 2015 Mr Hubscher was a delegated decision maker appointed by the Associate Minister of Immigration. During this time he was also employed as the Manager of the Analysis and Project Management team, and was a designated Immigration Officer.

[11] In his affidavit Mr Hubscher sets out his understanding of his role as a delegated decision maker. In summary, Mr Hubscher states that his role was to make decisions on requests for ministerial intervention relating to immigration status.

[12] Mr Hubscher understood his powers to include the ability to grant a visa even where a person did not meet the relevant immigration instructions, or would otherwise be ineligible, to exempt people from certain requirements, grant a waiver on certain issues and to grant leave for a person to submit a new application.

[13] Mr Hubscher deposes that he understood his role was to evaluate any reasons for intervention in a particular case. In deciding whether to intervene, his role was not to be overly legalistic. He did not identify specific sections of the Act under which he was making his decision. He understood the power he was exercising gave him absolute discretion and he was not required to consider the individuals’ request or to give any reasons for his decisions.

[14] Mr Hubscher recalls the gist of Ms Kaur’s case, but does not specifically recall the details of his decision-making process. However, he attached to his affidavit the documents which he would have considered in making the decision. These documents are a briefing paper provided by the Immigration New Zealand resolutions team (the briefing paper), submissions made on Ms Kaur’s behalf, and 37 attachments provided in support of intervention.

[15] Mr Hubscher deposes that his practice was always to read the material provided, starting with the briefing paper. However, he would not always read every single document provided in the request for intervention thoroughly as the documents were often hundreds of pages long. He would at least read the cover letter and peruse the attachments.

[16] Mr Hubscher states that, given this consistent practice, he is sure that he read the briefing paper and the letter written on Ms Kaur’s behalf and that he would have perused the attachments provided by her lawyer.

[17] In this case, he is fairly sure that he would have made his decision soon after reading the material and that he did not speak to any other delegated decision makers, as he might if he considered the case particularly finely balanced.

(a) He is certain he considered all the issues raised in the briefing paper and request for intervention;

(b) He always kept an open mind about the issues raised and would not be bound by previous decisions;

(c) He always considered afresh whether there were exceptional circumstances justifying intervention, regardless of whether a previous decision maker had considered there were not; and

(d) He always considered whether any international obligations were relevant and had had training on this topic.

[19] Finally, Mr Hubscher deposes that his practice was always to consider all of the available options. Based on this, he considers that he would have at least considered granting a residence or temporary entry visa to Ms Kaur or granting a character waiver with leave to re-submit a visa application.

[20] The respondents have also provided an affidavit sworn by Ms Cantlon, the manager of the immigration resolutions team at Immigration New Zealand. This team supports the Minister, Associate Minister and delegated decision makers in their decision-making roles under the Act.

[21] Ms Cantlon’s affidavit sets out the process through which requests for ministerial intervention are processed and allocated to decision makers, outlines Mr Hubscher’s appointment as a delegated decision maker, clarifies Ms Kaur’s immigration history and responds to evidence adduced for Ms Kaur.

[22] Relevant to the current application, Ms Cantlon’s affidavit details that requests are received by the Associate Minister’s Office and are triaged by the Private Secretary, who decides whether to refer the request to the Associate Minister personally, or to a delegated decision maker. Where it is the latter, the request is forwarded to the immigration resolutions team and the manager randomly assigns the request to a delegated decision maker. The team then reviews the request and prepares a case note, setting out a non-exhaustive list of available options. The team also usually prepares draft letters for the different decisions that the decision maker could make.

[23] Ms Cantlon deposes that it is common for a person making a request to request a special direction under the Act when that is not possible in the particular case. She says that, in such a case, the decision maker will assess the closest other applicable option, looking at the substance of the request rather than whether it is made under the correct section of the Act. Further, she says that it has been the practice only to issue special directions where a power to issue a special direction in the particular circumstances is particularly referred to in the Act.

[24] Cross examination is not permitted as of right in judicial review proceedings;

... the need in the public interest “to fulfil the purposes of judicial review as a relatively simple untechnical and prompt procedure ... ”. It also reflects the experience of the Courts that in most cases, whether there is justification for the exercise of public powers, and the nature of it, will sufficiently emerge in the course of judicial scrutiny, without having to test affidavit evidence by cross-examination.

[25] Cross examination will be permitted “only on rare occasions when required by the interests of justice”.⁴Or, to put the test another way “cross-examination will always be permitted where it is necessary to enable the application for review to be decided properly and fairly”.⁵

[26] Finally, in the context of review of a decision under a section of the Act which provides that a decision maker does not have to give reasons for the decision, the Court should bear in mind that cross examination for the purpose of eliciting reasons for the decision may undermine the statutory provision.⁶Recently in Singh v Chief Executive, Ministry of Business, Innovation and Employment the Court of Appeal upheld the reasoning of Brewer J in the High Court refusing the application to cross examine the decision maker on the basis that:⁷

[17] In short, Mr Shand’s affidavit tells me what he did. Why he did what he did, and how he did what he did, will not assist me in deciding whether or not be complied with his obligations under s 177.

[27] Mr Deliu submits that natural justice requires that the decision maker be called as a witness given the failure to give reasons. Reasons are a crucial part of

³_{Wilson v White [2004] NZCA 191; [2005] 1 NZLR 189, (2004) 17 PRNZ 270
(CA) at [25].}

⁵Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 329 at [63]. See also Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 at [58]–[63].

⁶_{Singh v Chief Executive, Ministry of Business,
Innovation and Employment, above n 5, at [62].}

⁷At [61], affirming the comments of Brewer J in Singh v Chief Executive, Ministry of Business, Innovation and Employment [2014] NZHC 1916.

openness in the administration of justice, enabling the lawfulness of the decision to be assessed by a superior court and to protect against arbitrary, wrong and inconsistent decisions.⁸In addition, Mr Deliu says that judicial review is a vital safeguard of democracy, guarding against misuse of public power and protecting the rule of law.⁹

[28] As the decision maker did not give reasons for the decision, in Mr Deliu’s submission, the appropriate remedy is for the Court to require him to give evidence about his decision, so that the Court can fulfil its constitutional role and so the applicant is not disadvantaged at trial by not having the relevant evidence available.

[29] It is further submitted that cross examination is allowed where it is necessary to enable a judicial review application to be decided properly and fairly, where there is a lack of adequate or proper explanation of the decision making process, and where there is a conflict of affidavit evidence or the credibility of the deponent is at

(a) There is no explanation of the decision-making process or the decision itself;¹¹

(b) In their strike out application the respondents argued that the decision maker had turned his mind to jurisdictional issues. Muir J held that he was not prepared to accept, without evidence, that Mr Hubscher had thought about these issues;

(c) Mr Hubscher’s affidavit is self-serving and is designed to defend the decision under review. It is not objective, detached or neutral. As such it should be amenable to challenge as a biased and one-sided version

⁸_{Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546
(CA) at 565-567.}

⁹Citing R v Horse Ferry Road Magistrates’ Court, ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42 (HL);

Auckland District Court v Attorney-General [1993] 2 NZLR 129; R v Somerset County Council [1998] Env LR 11 (HC); and Philip Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007) at [6.2.2].

¹¹Zhang v Minister of Immigration [2015] NZHC 1369 is cited, where the Court said at [52] that “the lack of a statutory requirement to provide reasons does not obviate an administrative requirement to make good decisions by following approved processes.”

(d) It is necessary in the overall interests of justice that the decision- maker be questioned. His affidavit does not fully engage in the issues on review and the existence of a factual gap is sufficient to meet the test.

[30] Finally, the applicant refers to Huang v Minister of Immigration as an example of an immigration case where an immigration officer gave evidence.¹²

[32] The respondents submit that the current application must be considered bearing in mind the statutory context of Ms Kaur’s substantive judicial review claim. The respondents submit that the decision is subject to the privative clauses in ss

186(3) and 187(8) of the Act which bar judicial review of decisions refusing to grant residence or temporary visas to a person outside of New Zealand. Further, even if the Court decides that these provisions do not apply, the decision was made exercising the absolute discretion of the decision maker and is “virtually unreviewable.”¹³This affects the extent to which the decision maker’s evidence is relevant and it would undermine the provisions of the Act to allow cross examination. There are no material factual disputes revealed in the pleadings which would require cross examination to resolve, the respondents say.

[33] The respondents submit that the affidavit evidence filed will provide a sufficient basis on which the Court can determine the applicant’s claim. Further, there is no basis for the contention that Mr Hubscher’s evidence is self-serving or formulated to defend the decision. If the affidavit evidence fails adequately to respond to the matters raised by the applicant, the proper remedy is for an adverse

_{inference to be drawn against the decision maker, in the
respondents’ submission.}

¹²_{Huang v Minister of Immigration HC Auckland
CIV-2005-404-5202, 24 July 2006.}

[34] Mr Hardy, appearing for the respondents, emphasises the background of this case. He refers to the number of previous applications made by Ms Kaur and her husband, that they were declined, and that reasons were given on each. They appealed to the Immigration and Protection Tribunal, which made a decision and gave reasons. Then Ms Kaur made a request to the Minister, something she was not entitled to do and which did not have to be considered. Those circumstances, together with the privative clauses means, in Mr Hardy’s submission, that it is not appropriate to bring the decision maker to Court to cross examine him on his reasons, when the whole statutory scheme is to avoid this.

[35] One of the major planks of the application centred on the way in which the respondents were arguing their case. This related to the procedural steps the respondents submitted applied to Ms Kaur’s request. This was summarised in Muir J’s decision on the strike out application as follows:

[40] They start by assuming that they are entitled to all the protections associated with the exercise of an absolute discretion and identified in s 11. They rely in that respect on s 378(8). But faced with the argument that Mr Hubscher never had a generalised delegated authority to issue special directions, they say that he was not in fact acting under s 378 because the jurisdiction under that section of the Act was never appropriately invoked for the reasons identified by Whata J in Zhang. What they say Mr Hubscher was in reality doing was exercising the absolute discretion which had been delegated to him under s 72 to make a decision in relation to a residence class visa application and the further “standard” discretion invested in him as an immigration officer under s 76 to make such a decision in relation to a temporary entry class visa.

[41] They say further that insofar as the application was processed under s 72 it was dismissed in Mr Hubscher’s absolute and essentially unreviewable discretion.

[42] Insofar as it was processed as an application under s 76, the position ultimately advanced by the respondents in argument was that no decision had effectively been made in relation to the application because Ms Kaur had not submitted, with her s 378 request, the necessary documents (prescribed in reg 10) to support such an application. The respondents further argued, that although Mr Hubscher had been delegated the power conferred by reg 34(1)(a) to waive (by special direction), the requirements in reg 10(2)(e) for particular documents to be tendered, he had not exercised that power.

[43] But Ms Kaur was never told of any of this. She was simply advised, in respect of her s 378 application, that Mr Hubscher had declined to “intervene”. That word tends to suggest to me that Mr Hubscher was

exercising a s 378 discretion. If he was in fact declining a residence class visa under s 72(3) or a temporary entry class visa under s 76(1) words to that effect might have been expected. I accept, however, that the proposition cannot be elevated beyond that.

[44] Significantly none of the alleged process, whereby an apparently non- compliant s 378 request was in fact dealt with pursuant to the discretions (in one case ‘absolute’ but in the other not) in ss 72 and 76, was the subject of any evidence before the Court. There was no affidavit from Mr Hubscher and the Court was simply invited to rely on counsel’s summary of how the application was dealt with, all premised on the proposition that the respondents had “magnanimously” chosen not to dismiss the s 378 request outright but rather to process it as an application under ss 72 and 76.

[36] It was subsequent to that decision that Mr Hubscher’s affidavit was filed wherein he said that he did not “take an overly legalistic approach to decision making”. He understood the power he exercised gave him absolute discretion.

[37] At the hearing on the application to cross examine, Mr Hardy responsibly made the following concessions on the basis of Mr Hubscher’s affidavit:

(i) Mr Hubscher did not turn his mind to any deficiencies there may have been in the applicant’s request;

(ii) Therefore, Mr Hubscher did not turn his mind to whether, in his absolute discretion, the request should nevertheless be considered;

(iii) Mr Hubscher did consider the applicant’s request for a temporary entry class visa. He did so on the assumption that the request involved the exercise of absolute discretion.

[38] It is not in dispute that an application for a temporary entry class visa pursuant to s 76 of the Act is at the decision maker’s “standard”, rather than “absolute”, discretion.

[39] Mr Hardy submitted, however, that s 186(3), which contains a privative clause in relation to temporary entry class visa decisions, precludes review by a person, such as the applicant, who was “outside New Zealand” at the time of the request.

[40] The concession was, in my assessment, important and potentially dispositive of the case. I issued a Minute after the hearing questioning whether the application for leave to cross examine Mr Hubscher needed to be further considered. This was on the basis that, if the respondents’ position on s 186(3) prevailed, then that would be the end of the matter and, if not, it was conceded that Mr Hubscher misunderstood his discretion concerning the request for a temporary class entry visa.

(a) The proposition that the respondents are prepared to accept is that, in respect of the decision to refuse to grant a temporary entry class visa, reasons should have been provided under the relevant immigration instructions. The omission to provide reasons was therefore contrary to those instructions, notwithstanding the absence of a statutory requirement to provide reasons.

(b) However, the respondents do not concede that, subject to the s 186 privative clause, the absence of reasons amounts to an error that should vitiate the decision (i.e. that judicial review “would have to be allowed”, or “must succeed”). Even if the privative clause did not apply, the ultimate effect of the non-compliance with immigration instructions is a matter for the Court to determine at the substantive hearing. The respondents’ position is that the non- compliance in this case is not significant enough to justify intervention by the Court. This is an issue of law that can be dealt with appropriately on the evidence available.

(c) Ms Kaur also challenges the decision to refuse to grant her a residence class visa. The concessions made by the respondents do not relate to that decision.

[42] I agree with Mr Deliu that this position is somewhat different from that taken at the hearing when, to the best of my recollection, there was no reference to immigration instructions. As I understood counsel’s explanation, the respondents’ position was focused on s 76 of the Act.

[43] It is not suggested that the respondents’ concession relates to the residence class visa.

[44] The concession in any event disposes of the need for cross examination on this issue.

[45] I now turn to consider the application and the remaining areas in respect of which the applicant wishes to cross examine Mr Hubscher.

[46] The following are the areas in respect of which the applicant seeks to have

(iv) The distinction between whether Ms Kaur had a character issue and whether she should be granted a character waiver.

(v) Mr Hubscher’s conclusions as to his certainty about what he did when considering the request.

[47] Mr Deliu seeks to ask Mr Hubscher about the circumstances of the specific delegation to Mr Hubscher, although Mr Deliu conceded it was a minor point.

[48] The respondents say that all the relevant information regarding delegation is before the Court and Mr Hubscher cannot assist further.

[49] Like the respondents, I am somewhat perplexed as to what further information the applicant seeks. I refer to the other affidavits which address delegation. If further information is required, and if so that information should be specified, a supplementary affidavit would suffice.

[50] Other than that, the question of whether the decision was properly delegated is a question of law and not one on which further evidence from Mr Hubscher would assist.

[51] Mr Hubscher’s affidavit outlines the procedure he followed. All the information about whether or not policy has been complied with is before the Court. In the circumstances, all Mr Hubscher can do is point to the documents before him and his practice of how he would have approached any such decision.

[52] Cross examination of Mr Hubscher on this issue is not necessary to enable the application for review to be decided properly and fairly.

[53] Mr Deliu points out that the briefing paper did not give the option of granting Ms Kaur a temporary visa. He says, therefore, there is a prima facie case that the decision maker unduly confined his discretion.

[54] Although Mr Hubscher’s affidavit referred to his consistent practice of considering all options, and his certainty he would have done so in this particular case, in Mr Deliu’s submission that conclusion should be capable of challenge by cross examination. This is particularly so, in his submission, because, in order to have considered the option of a temporary visa, the decision maker must have been aware of it as an option. Mr Deliu suggests that could not have been the case when it was not referred to in the briefing paper. The temporary visa would have required an analysis under s 76 which does not provide that any such decisions are at the decision maker’s absolute discretion. Therefore, in Mr Deliu’s submission, Mr Hubscher could not have turned his mind to this as an option since he considered his decision as being at his absolute discretion.

[55] The respondents say that the options were addressed in the briefing paper, Mr Hubscher was not bound by that paper and the issue cannot be taken further in cross examination.

[56] Page 1 of the briefing paper under the heading “Request” notes that the request is for “grant a resident or temporary visa”. Page 6 of the briefing paper refers to the legislation in this regard. It is clear, therefore, that both requests were before Mr Hubscher as decision maker. Furthermore, Mr Hubscher explains in his affidavit that he understood his powers of intervention included granting a residence

[57] The Court will make its decision on the basis of Mr Hubscher’s affidavit. Mr Deliu will be able to make submissions asking the Court to conclude that Mr Hubscher did not in fact consider the option of a temporary visa. Mr Hubscher has stated he acted on the assumption he had absolute discretion. While Mr Deliu maintains that the Court should not be in the position of drawing adverse inferences but rather should hear from the witness and have him cross examined to be sure about the position, I am not satisfied it will be of material assistance given Mr Hubscher’s affidavit and the briefing paper.

The distinction between whether Ms Kaur had a character issue and whether she should be granted a character waiver

[58] Mr Deliu says that Ms Kaur’s request was not limited to seeking a character waiver but was on the basis that there was no character issue at all and therefore no waiver was required. Ms Kaur says that any falsities in previous applications were the fault of her late husband and that, because of language and literacy issues, she could not in any way be considered responsible for the provision of false information in the past.

[59] The respondents say that the character issue was extensively addressed in the briefing paper where Ms Kaur’s position in respect of character is set out. The option of a character waiver was outlined.

[60] This issue is dealt with in the plaintiff ’s statement of claim under the heading

“Breach of Natural Justice” where the first of the further and better particulars states:

The first defendant predetermined that the plaintiff had a character issue (that required a waiver) but she was in fact arguing the contrary and entitled to an open mind as to that.

[62] In his affidavit, Mr Hubscher relevantly outlines his understanding of his powers as including the ability to:¹⁵

(e) Grant the individual a waiver about a particular issue and direct the individual to make a fresh application.

[63] Mr Hubscher then makes general comments about matters he considered in reaching the decision, which relevantly included:¹⁶

(a) I am certain I considered all of the issues that are raised in the briefing paper and the request for intervention.

(b) In considering these issues, it was always my practice to keep an open mind about the issues raised and not be bound by previous decisions by INZ or the Tribunal. This approach is intrinsic to the role of the DDM.

[64] He then addresses options for intervention noting it was always his practice to consider a range of options whether or not they were expressly included at the end of the briefing paper.¹⁷He says he is certain he would at least have considered granting Ms Kaur a character waiver.¹⁸Nowhere does Mr Hubscher expressly state that it was open to him to consider Ms Kaur did not require a character waiver.

[65] On page 1 of the briefing paper in bold type there is reference to Ms Kaur needing a character waiver. Although the character issue is discussed, including the representations made on Ms Kaur’s behalf that she was ignorant of any previous falsities in applications, the briefing paper notes that the Immigration and Protection Tribunal held that Ms Kaur’s claimed ignorance was not persuasive.

[66] The briefing paper says that there is no record that the issues were put directly to Ms Kaur for comment and the character waiver determination was made

on the basis of information provided to Immigration New Zealand when Ms Kaur’s

A5.25 Applicants normally ineligible for a residence class visa unless granted a character waiver

A5.45 Applicants normally ineligible for a temporary entry class visa unless granted a character waiver

[68] Two options are set out in the briefing paper. Option A in the briefing paper

Grant Ms Kaur a character waiver for provision of false information and fraudulent documents with her residence application in 1998, and her subsequent non disclosure of previously declined visa applications ...

[69] There is no reference in the briefing paper to the possibility of the decision maker concluding that there was not a character issue as far as Ms Kaur was concerned.

[70] The issue raised in the statement of claim is not answered by the affidavit. That is whether Ms Kaur’s character was in issue, with the question of whether a waiver should nevertheless be granted being a subsequent question. I accept Mr Deliu’s submission that Ms Kaur made her request of the Minister because previous decision makers concluded a character waiver was required and she disputed that.

[71] There was some discussion at the hearing about whether a supplementary affidavit could address the matters of concern to the applicant. In my assessment, it is not an appropriate to deal with the character issue in that way. This is because the issue was raised in the statement of claim and Mr Hubscher’s affidavit did not squarely address it, so that, if he were to attempt to do so now, the applicant should be able to question him about that apparent omission.

[72] The respondents’ position is that they will stand or fall by the affidavit evidence and the Court can draw such adverse inferences it considers appropriate. The respondents have already made some concessions as referred to above. They did not make any concession on this issue. They might consider it appropriate to do so because an inference that Mr Hubscher did not consider whether indeed Ms Kaur had a character issue which required a waiver is clearly available, and I suggest likely, on the evidence. However, the fact that the position is unclear with the respondents apparently intending to ask the Court to infer Mr Hubscher considered the issue in two stages and the applicant inviting the Court to draw the opposite inference, is unsatisfactory.

[73] If the respondents do not concede the position and contend that Mr Hubscher did consider whether, in fact, Ms Kaur’s character was in issue, then cross- examination of Mr Hubscher will be required because it will be necessary to enable the application for review to be decided properly and fairly. This is different from the situation concerning the option of a temporary visa where Mr Hubscher says he was aware of that as an option and the briefing paper clearly identified that the request included a temporary visa.

[74] The cross-examination will not require any information being given about Mr Hubscher’s reasoning process. In that sense, it is not contrary to the policy position behind the “absolute discretion” given to designated decision makers.¹⁹The area in dispute is as to whether Mr Hubscher in fact turned his mind to the question of whether a character waiver was required, rather than as to his reasoning process around granting or not granting a character waiver. As noted by the Court of Appeal

in Stratford Racing Club, cross-examination is “particularly useful” in cases “where there is a lack of adequate or proper explanation of the decision-making process, where there is a material conflict of affidavit evidence, or where the credibility of a

²⁰Stratford Racing Club, above n 5, at [63], citing for the latter proposition Philip A Joseph

Constitutional & Administrative Law in New Zealand (3rd ed, Thomson Brookers, Wellington,

[75] Unlike the position in the Singh v Chief Executive, Ministry of Business, Innovation, the affidavit provided does not adequately explain the position on this issue and the resulting uncertainty is unsatisfactory. Cross-examination is consequently necessary in the interests of justice.

Mr Hubscher’s conclusions as to his certainty about what he did when considering the request

[76] In Mr Deliu’s submission, the way in which Mr Hubscher has expressed his affidavit by referring to factors considered and the options, opens up Mr Hubscher to cross examination. In his submission, it would not be right to allow Mr Hubscher to give what Mr Deliu describes as self-serving evidence without being challenged on it.

[77] Furthermore, Mr Deliu points to certain statements in Mr Hubscher’s evidence where he maintains he is “sure” that he would have taken certain matters into account as being unequivocal statements, and which must, in the circumstances of his evidence, allow for that conclusion to be challenged. The absence of any notes made at the time creates a greater impetus, says Mr Deliu, for cross examination.

[78] Mr Deliu suggests that Mr Hubscher had mixed two concepts, his consistent practice and what he had in fact done in the case. Given that, he had opened the door to be cross examined on his certainty.

[79] The respondents say that this is simply an attempt by the applicant to cross examine Mr Hubscher as to his reasons in circumstances where the decision was in his absolute discretion and there was no requirement to give reasons. Furthermore, it is an attempt to persuade Mr Husbcher to elicit reasons.

[80] Mr Deliu refers to the Cao decision and submits the same reasoning should be followed in this case. In that case, Fogarty J held that the fact that s 11 of the Act meant there was no obligation on the decision maker to provide reasons did not preclude the High Court from ordering discovery of documents recording those reasons in circumstances where an internal policy required a brief record of the

decision maker’s reasons to be made.²¹The decision in question had been made under s 61 of the Act. Fogarty J held that the High Court could examine a decision maker’s reasons, taking into account the “absolute discretion” conferred on the decision maker by the Act, saying:²²

There is a very real distinction between the ability of private individuals to require information on immigration files and the ability of the High Court, seized with an application for judicial review, to know what the reasons for the decision are, particularly when the Court has evidence that there will be reasons, because of an internal circular requiring those to be written down.

Consideration of the reasons by the High Court does not thereby undermine the statutory scheme but simply performs the essential function of examining the decision to ensure that all statutory powers are exercised in good faith, for their proper purpose.

[81] The Cao decision concerned quite a different context. The case concerned an application for discovery of a document made contemporaneously with a decision which was subject to review. Fogarty J did not require the disclosure of reasons where none had been recorded.

[82] The comparison arises because Fogarty J compelled disclosure, despite the statutory regime. It is relevant to the extent of answering the respondents’ submission that allowing cross examination would undermine the statutory regime. Since the Cao decision, however, the Court of Appeal decision Singh v Chief Executive, Ministry of Business, Innovation and Employment provides clear guidance

There is the further, if somewhat obvious point, that permitting cross- examination of Mr Shand with the aim of eliciting the reasons for his decision would undermine s 177(4)(a). This was the point made by William Young P in a judgment he delivered for himself and Hammond J in Huang v Minister of Immigration:²⁴

“[72] There has been no challenge to the decision to require Mr Fennell to give evidence, but it is right for us to note that this requirement does not sit particularly easily with ss 35A(6) and 58(5)

²¹Cao v Ministry of Business, Innovation and Employment [2014] NZHC 1551, [2014] NZAR

[the predecessor of s 177(4)(a)], as the practical effect was to require the immigration officer to give reasons, something which is specifically not required under those subsections.”

[83] Mr Hubscher makes it clear in his affidavit that he does not remember the details of his decision making process. Mr Hubscher has provided the court with all of the documentation which he reviewed when making his determination. As to instances where Mr Hubscher expresses an opinion that he is sure about things, the Court will consider his explanations as to why he reached that conclusion and, if the Court is not satisfied, then an adverse inference can be drawn from that.

[84] For the reasons set out above, leave is given to cross examine the decision maker about his understanding of his powers in relation to character waiver and, in particular, whether he turned his mind to consider whether the applicant had a character issue which required a waiver before considering the option of granting a character waiver.

[85] The applicant is to file and serve a memorandum as to costs within 21 days of this decision. Any response from the respondents is required 14 days thereafter.

High Court of New Zealand Decisions

Kaur v Ministry of Business, Innovation and Employment [2016] NZHC 872 (3 May 2016)