A v Minister of Immigration
[2024] NZHC 602
•19 March 2024
ORDER MADE PROHIBITING PUBLICATION OF THE APPLICANT AND HIS FAMILY MEMBERS’ NAMES AND IDENTIFYING DETAILS. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-000473
[2024] NZHC 602
UNDER Section 15 of the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules AND
Immigration Act 2009
IN THE MATTER OF
An application for judicial review of the decision of a Delegated Decision Maker of the Minister of Immigration to decline to
intervene and cancel a deportation order pursuant to s 172 of the Immigration Act 2009 and grant a resident visa pursuant to s 61 of the Immigration Act 2009
BETWEEN
A
Applicant
AND
THE MINISTER OF IMMIGRATION
Respondent
Hearing: 14 February 2024 Counsel:
M L Clark for Applicant
I M G Clarke for Respondent
Judgment:
19 March 2024
Reissued:
23 April 2024 (Public version: anonymising identifying details to avoid increased risk of harm to applicant or his family and correcting slips)
JUDGMENT OF LA HOOD J
A v THE MINISTER OF IMMIGRATION [2024] NZHC 602 [19 March 2024]
Judicial review of a decision declining to cancel liability for deportation
[1] The applicant, Mr A, applies for judicial review of the Minister of Immigration’s decision (through a delegated decision maker) to decline to cancel his liability for deportation and grant him, and his wife and daughter, visas under ss 172 and 61 of the Immigration Act 2009.
[2] Mr A submits the decision was unreasonable because: his situation is indistinguishable from his son B’s (who was granted residence as a victim of people trafficking) as they were both required to travel to New Zealand to be witnesses in a people trafficking trial, which put their safety at risk; the decision maker failed to have regard to relevant considerations due to flaws in the process of reviewing the material in support of the application; and the decision was in breach of New Zealand’s international obligations.
[3] I conclude below that the application for review should be dismissed. Although A’s situation is similar to his son’s, it was a policy decision open to the Executive to draw a distinction between victims and witnesses of people trafficking. The process adopted by the decision maker did not result in a failure to have regard to relevant considerations (including New Zealand’s international obligations and the level of threat posed to Mr A). While there is cause for concern about the threat posed to Mr A on his return to India, it was open to the decision maker to conclude that deportation would not be in breach of New Zealand’s international obligations given factors that ameliorate the risk and Mr A’s breach of immigration obligations.
Circumstances leading to the challenged decision
[4] Mr A is a citizen of India. He entered New Zealand on a limited class visa on 3 November 2015 to give evidence as a witness in a people trafficking prosecution, in relation to which his son B was a victim. For the purpose of giving evidence, Mr A held four limited purpose visas between 28 September 2015 and 20 June 2017. Shortly before the expiry of his last limited purpose visa on 20 June 2017, Mr A twice requested and was denied a further limited visa to stay in New Zealand. Thus, Mr A’s presence in New Zealand became unlawful on 20 June 2017.
[5] On 14 October 2020, B was granted a residence visa as a victim of people trafficking.
[6] On 27 February 2023, seven years after becoming unlawful, Mr A sought Ministerial intervention, requesting the Minister to exercise powers under s 172 of the Immigration Act 2009 to cancel his deportation liability, and grant him, and his wife and daughter (who remain in India), resident visas under s 61 of the Act. The request was delegated to a delegated decision maker (DDM) who received a case note from the Ministerial Team at Immigration New Zealand (INZ) Resolutions. The case note, dated 27 June 2023, comprised a summary of the representations made on behalf of Mr A, his immigration history, an outline of the issues for consideration, the relevant INZ instructions and international obligations, and the possible options for determination.
[7] The DDM decided not to intervene in Mr A’s case, recording internally that Mr A’s “breach of the obligation(s) under the Immigration Act and the circumstance(s) do not in my view outweigh the obligation to depart New Zealand” (the Decision).
[8]Mr A challenges the DDM’s decision not to intervene on the grounds that:
(a)The Decision was unreasonable.
(b)There was procedural unfairness in that the DDM failed to review all the representations and supporting documents provided by the applicant, instead relying on a case note that excluded material information.
(c)The DDM failed to take into consideration New Zealand’s international obligations under the United Nations Convention against Transnational Organised Crime also known as the Palermo Convention.
The decision maker’s powers under the Immigration Act 2009
The legislation
[9] The Immigration Act 2009 is the empowering legislation under which the DDM declined to intervene in Mr A’s case.
[10] The purpose of the Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.1 The Act establishes a system where persons other than New Zealand citizens must hold a valid visa at all times whilst in New Zealand.2 It provides for the deportation of persons who are not New Zealand citizens and who fail to comply with immigration requirements.3 The purpose of the deportation system is to support the integrity of New Zealand’s immigration system and the security of New Zealand.4
[11] Upon becoming unlawful in New Zealand on 20 June 2017 on the expiry of his limited purpose visa, Mr A had an obligation to leave New Zealand under the Act and became liable for deportation.5 Once a person is unlawful and liable to deportation, they are not entitled to apply for a visa.6
[12] Section 172 of the Act enables the Minister to regularise the status of someone who is in New Zealand unlawfully. It relevantly provides:
172 Minister may cancel or suspend liability for deportation
(1) The Minister may at any time, by written notice, cancel a person’s
liability for deportation.
...
(5) The decision to cancel or suspend a person’s liability for deportation
is in the absolute discretion of the Minister.
[13] Mr A sought to invoke the Minister’s power under s 172, and ultimately under s 61, which provides that the Minister may at any time, of the Minister’s own volition,
1 Immigration Act 2009, s 3(1).
2 Section 14.
3 Section 3(2)(e)(ii).
4 Section 153.
5 Sections 18 and 154.
6 Section 169.
grant a visa of any type to a person who is unlawful in New Zealand and is not subject to a deportation order or a removal order. Section 61, like s 172, involves a power that may be exercised in the Minister’s absolute discretion.
[14]Section 11 sets out the meaning of an absolute discretion under the Act:
11 Meaning of absolute discretion of the decision maker
(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;
...
[15] Mr A’s case relies on S4.15 of the Immigration New Zealand Operations Manual, which applied to B. That policy provides:
S4.15 Residence Category for victims of people trafficking S4.15.1 Objective
The objectives of the residence category for victims of people trafficking are to:
a.enable victims of people trafficking to remain in New Zealand where they cannot return home because they will be endangered, at risk of being re-victimised or at risk of suffering significant social stigma and financial hardship as a result of being trafficked; and
b.recognise New Zealand's international obligations, particularly to:
i.offer protection and assistance to victims of people trafficking who are likely to be suffering the effects of trauma and abuse; and
ii.enable trafficking offenders to be prosecuted.
S4.15.5 Who is eligible for a resident visa for victims of people trafficking
a.Applicants in New Zealand may be granted a resident visa, if they:
i. hold a special temporary visa for victims of people trafficking (see WI16, U10.5 and V3.135); and
ii. have certification from the New Zealand Police (the Police) that they are believed to be a victim of people trafficking; and
iii. have certification from the Police that they have not obstructed the police investigation of their trafficking case during the validity of their special temporary visa; and
iv. are unable to return to their home country (see S4.15.10 below); and
v. meet health and character requirements (see A4 and A5).
b.Despite (a) above, child applicants are exempt from providing a certification from the Police that they have not obstructed the police investigation.
...
S4.15.10 Evidence of inability to return to the home country
a.Applicants must provide evidence either in the form of documents, or information provided at an interview with an immigration officer, that if they returned to their home country they would be:
i. endangered; or
ii. at risk of being re-victimised; or
iii. at risk of suffering significant social stigma and financial hardship
as a consequence of being trafficked.
b.INZ may refer to any relevant information when determining an applicant’s ability to return to their home country.
...
[16] Mr A submits that S4.15 reflects New Zealand’s international obligations under the United Nations Convention against Transnational Organised Crime also known as
the Palermo Convention.7 He particularly relies on the following articles of the Convention:
Article 23: Criminalization of obstruction of justice
Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:
(a)The use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in relation to the commission of offences covered by this Convention;
(b)The use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official in relation to the commission of offences covered by this Convention. Nothing in this subparagraph shall prejudice the right of States Parties to have legislation that protects other categories of public officials.
Article 23: Protection of witnesses
1.Each State Party shall take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by this Convention and, as appropriate, for their relatives and other persons close to them.
2.The measures envisaged in paragraph 1 of this article may include, inter alia, without prejudice to the rights of the defendant, including the right to due process:
(a)stablishing procedures for the physical protection of such persons, such as, to the extent necessary and feasible, relocating them and permitting, where appropriate, non- disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons;
(b)Providing evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness, such as permitting testimony to be given through the use of communications technology such as video links or other adequate means.
3.States Parties shall consider entering into agreements or arrangements with other States for the relocation of persons referred to in paragraph 1 of this article.
4.The provisions of this article shall also apply to victims insofar as they are witnesses.
7 United Nations Convention against Transnational Organised Crime and the Protocols
Thereto (opened for signature 15 November 2000, entered into force 29 September 2003).
The case law – approach to review
[17] Mr A relies on Gwyn J’s decision in Zhang v Minister of Immigration.8 In considering the discretion under s 190(5) of the Act, Gwyn J focused on three factors to determine the scope of the Court’s review: the policy content of the decision; the statutory framing of the discretion (including a provision that states there is no obligation to give reasons); and whether it is an “absolute” or an “ordinary” discretion.9
[18] In terms of policy content, Gwyn J held that there is a distinction between determinations that involve significant policy content, or wider policy ramifications beyond the case, and those that are focused on the individualised circumstances without, or with very limited, policy ramifications. Gwyn J concluded that there must be something more than the involvement of ministerial responsibility for a decision to be characterised as a “policy decision”. 10 Gwyn J also held that s 190(5) “plainly does not give the Minister an absolute discretion,”11 and the lack of a requirement to give reasons did not turn an ordinary discretion into an absolute discretion.12
[19] Gwyn J also discussed the authorities regarding the intensity of review in an immigration context.13 This included the Court of Appeal’s comments in Kim v Minister of Justice of New Zealand that human rights concerns warrant a more rigorous standard of review,14 which Gwyn J considered “cuts somewhat against” the Court of Appeal’s statement in WK v Refugee and Protection Officer that Wednesbury remains the governing test of unreasonableness in an immigration context.15 However, Gwyn J also noted that there is a question as to what the Wednesbury standard entails. She endorsed Palmer J’s observations in Hu v Immigration and Protection Tribunal16
8 Zhang v Minister of Immigration [2020] NZHC 568, [2020] NZAR 201 [Zhang].
9 At [49].
10 At [51].
11 At [53].
12 At [57].
13 At [80]–[88].
14 Kim v Minister of Justice of New Zealand [2016] NZHC 1490, [2016] 3 NZLR 425 at [7]. The issue was left open by the Supreme Court Kim v Minister of Justice of New Zealand [2021] NZSC 57, [2021] 1 NZLR 338 at [49], [51], and [478].
15 Zhang, above n 8, at [85]; and WK v Refugee and Protection Officer [2018] NZCA 258, [2019] 2 NZLR 223.
16 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [22]–[27].
regarding a reformulation of the Wednesbury test to accord with the test for when an error of fact amounts to an error of law from Bryson v Three Foot Six Ltd:17
An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law [because] proper application of the law requires a different answer.
[20] Gwyn J noted that this drew on the words of the United Kingdom House of Lords in Edwards (Inspector of Taxes) v Bairstow that “a view of the facts which could not reasonably be entertained” can constitute an error of law.18 She noted that this was not intended by Palmer J to be an all encompassing definition of unreasonableness, but rather provides operational content to assist with its determination.19 I agree the Hu formulation may be helpful, but I am not sure of its utility beyond allegations of an error of law due to an error of fact. It seems beyond argument that an error of fact, on a critical aspect of a decision, that meets the Bryson v Three Foot Six Ltd test will amount to Wednesbury unreasonableness. I therefore do not think the Hu formulation of unreasonableness is necessarily a departure from Wednesbury, or leads to the conclusion that the Court must apply a greater intensity of review.
[21] For myself, I agree with Cooke J that a more helpful framing of the Court’s role on judicial review is to determine the limits, or legal controls, on the statutory power and to determine whether the decision came within the limits of that power.20 I also consider this approach to be consistent with the Supreme Court’s decision in Unison Networks Ltd v Commerce Commission.21 I have more fully discussed these issues in another decision and will not repeat that here.22
[22] Section 172 of the Act is in a different category to the discretion in s 190(5) Gwyn J was considering in Zhang. Section 172 is a bare absolute discretion.23 The applicable principles are clear from the cases discussed further below, the essence of which is aptly captured by the Court of Appeal’s statement in Zhang v Associate
17 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26] citing Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, [1955] 3 WLR 410 (HL).
18 Zhang, above n 8, at [87]; and Edwards (Inspector of Taxes) v Bairstow, above n 17, at [29].
19 Zhang, above n 8, at [87]; and Hu v Immigration and Protection Tribunal, above n 16, at [30].
20 Patterson v District Court, Hutt Valley [2020] NZHC 259 at [14]–[16]; and New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456 at [83]–[85].
21 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53]–[55].
22 One Foundation Ltd v Minister of Internal Affairs [2023] NZHC 3869.
23 Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222 at [37]–[38].
Minister of Immigration that the “definition of absolute discretion gives bleak prospects for judicial review unless Wednesbury unreasonableness can be identified”.24
[23] The limits on the statutory power being exercised in this case are set by the scheme and purpose of the Act, particularly ss 11 and 172. The Court of Appeal in Zhang considered the limits on the exercise of the power in s 177. That section also confers an absolute discretion, but has mandatory descriptive obligations not present in s 172, including the mandatory obligation to have regard to and describe relevant international obligations.25 The Court said the following about the legal limits of the exercise of an absolute discretion under the Act:26
[9] Section 177, as is apparent from its wording, provides little scope for challenging an immigration officer’s decision not to cancel a deportation order. A recent decision of this Court makes this clear.
[10] In Singh, this Court, on appeal from a refusal by the High Court to judicially review the immigration officer’s decision, held, relevantly, that s 177 has severely circumscribed the scope for judicial review, effectively limiting it to a Wednesbury unreasonableness inquiry:
[46] We agree with those observations. Section 177 has severely circumscribed the scope for judicial review, effectively limiting it to a Wednesbury unreasonableness inquiry. This is consistent with this Court’s approach in Puli'uvea v Removal Review Authority and Huang v Minister of Immigration. In Puli'uvea the Court said:
The question which we have to address is whether there is any reviewable error of law in the decisions that have been taken or one of the decisions is so unreasonable that no reasonable immigration officer could have come to it.
…
[14] This definition of absolute discretion gives bleak prospects for judicial review unless Wednesbury unreasonableness can be identified.
...
Analysis
[22] Our analysis starts and ends with our construction of the relevant provisions of the Act.
24 At [14].
25 Immigration Act 2009, s 177(3) and (5).
26 Zhang v Associate Minister of Immigration, above n 23 (footnotes omitted).
[23] Mr Burrows, pursuant to s 61 of the Act, was exercising an absolute discretion. Pursuant to s 11 of the Act, he was not obliged to give reasons for his decision. His only obligation when giving his decision was to note that s 11 applied. Therefore, the availability of judicial review as a remedy is very limited. Effectively, the Court is limited to examining whether, on the information available to Mr Burrows, his decision could be seen as unreasonable in the Wednesbury sense.
…
[37] First, we do not accept Mr Deliu’s submission that because the Minister agreed to consider Mr Zhang’s case under the absolute discretion conferred by s 61 of the Act that this imposes upon the Minister substantive administrative law obligations that are greater than those imposed by s 177 of the Act. Both sections confer absolute discretions. Section 177 is more prescriptive and in part more constraining because it requires the immigration officer to record a description of the international obligations to which they have regard and the facts about the person’s personal circumstances. Section 61 has no equivalent provision.
[38] Second, having regard to the overall structure of the Act, 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. There could be many situations where the interests of the State mean that a particular person should be permitted to remain in New Zealand notwithstanding that, absent their particular circumstances, they would be deported. There might, for example, be a national security interest. There might be a personal factor such as an extreme health condition or political factors pertaining to the person’s home country that make deportation obviously wrong. In any event, 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.
[39] Mr Deliu submitted that Whata J failed to take into account the relevant consideration that Mr Zhang might have to return to China alone. That would have effects on him and on his family. Again, the absolute discretion conferred by the Act on the Minister and the absence of factors which, raising an apprehension of Wednesbury unreasonableness, would empower the Court to grant judicial review lead us to reject this submission.
[24] The Court of Appeal similarly held in Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment,27 that Parliament deliberately circumscribed the courts’ review powers by placing the ultimate decision under s 177 in the hands of the immigration officer.28 Beyond the mandatory considerations and recording obligations under s 177, the immigration officer is expressly not obliged to give reasons, limiting the scope of review to a Wednesbury-type assessment.29
27 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 (footnotes omitted).
28 At [64].
29 At [64].
[25]The Court of Appeal’s decision in Dean v Associate Minister of Immigration
accords with these authorities (and was a decision under s 172):30
[30] This Court has said that “absolute discretion” effectively limits judicial review to Wednesbury unreasonableness. This necessarily follows from the absence of specific statutory considerations or requirements to provide reasons to support the decision.
…
[45] The Minister was exercising an absolute discretion. He was bound to exercise it reasonably and in a way that promoted the policy and objects of the Act. Other than those limitations, he was free to take whatever relevant considerations he thought appropriate into account and to place such weight on them as he chose. The information that was before him is in evidence before us. It plainly shows there was more than one possible course of action upon which reasonable people may hold differing opinions as to which is to be preferred. This is the very essence of administrative discretion.
…
[56] Ms Dean contends the Associate Minister’s decision was inconsistent with New Zealand’s international obligations, in particular arts 2, 13, 17 and 23 of the ICCPR and the Associate Minister was advised in the briefing paper that he must consider New Zealand’s international obligations. Whilst the briefing paper did contain that advice, the power the Associate Minister was exercising did not require him to consider New Zealand’s international obligations. In this regard the briefing paper was more generously expressed in Ms Dean’s favour than it needed to be. The Associate Minister may have chosen to take the relevant articles of the ICCPR into account, but he was not obliged to do so. And if he chose to consider them, what weight he placed upon them was for him to decide.
[57] Moreover, it cannot be said that when the international obligations on which Ms Dean relies are applied to her case they would make the refusal to prevent her removal from New Zealand unreasonable.
[26] In dismissing an application for leave to appeal that decision, the Supreme Court said:31
[5] We accept that the intensity of review to be applied in a judicial review challenge to a decision to which s 11 of the Immigration Act applies may be an issue worthy of consideration by this Court. Having said that, there would appear to be some obstacles in the path of an argument for “heightened scrutiny” of a decision of this kind. Further, we do not see the present case as a suitable vehicle for a consideration of the issue. The unusual facts of this case and its chequered history of litigation as set out and analysed in the Court of Appeal’s decision do not provide an auspicious context for the
30 Dean v Associate Minister of Immigration [2019] NZCA 343, [2019] NZAR 1898 (footnotes omitted).
31 Dean v Associate Minister of Immigration [2019] NZSC 119 (footnotes omitted).
consideration of the issue. Nor do we consider there is a risk of a miscarriage of justice arising if we do not give leave to appeal.
[27] As is evident from these cases, there is extensive and binding authority that the absolute discretion conferred by ss 11 and 172 is very wide and the Court has limited ability to intervene on review. The following principles emerge from the authorities about the absolute discretion in s 172:
(a)It reflects the traditional power reserved to the Executive to make decisions about who may be permitted to stay in New Zealand.32
(b)It precludes formal applications and legitimate expectations associated with such an application.33 If an application is made, there is no obligation to consider it and no obligation to inquire into the circumstances or make any further inquiries.34
(a)No reasons are required to be recorded or given and the absence of recorded reasons does not amount to a reviewable error.35
(b)The discretion must be exercised reasonably and in a way that promotes the policy and objects of the Act, but there are no specific procedural requirements,36 and there is no obligation to take any specific matter into account.37
(c)There is no requirement to apply any particular test or consider international obligations, but if they are taken into account the weight to be placed upon them is a matter for the decision maker.38
32 Zhang v Associate Minister of Immigration, above n 23, at [38].
33 Immigration Act 2009, s 11(1)(a).
34 Section 11(1)(b).
35 Zhang v Associate Minister of Immigration, above n 23, at [25].
36 This contrasts, for example, with s 177(7), which, although an absolute discretion under s 11, contains procedural mandatory requirements in respect of international obligations.
37 For example, Devi v Minister of Immigration [2017] NZHC 728 at [21] and [29].
38 Dean v Associate Minister of Immigration, above n 30, at [56]; and Singh v Associate Minister of Immigration [2018] NZHC 44 at [90] and [94].
(d)There cannot be a process challenge based on whether, or how, international obligations were considered. The question on review is whether, in applying those obligations, the substantive decision was reasonably open.39
(e)The Court is precluded from reviewing a decision by conducting a broad proportionality assessment of the type undertaken by Courts in the United Kingdom.40
(f)The wide discretion gives bleak prospects for judicial review unless Wednesbury unreasonableness can be identified.41 A decision will not be unreasonable unless in the circumstances “there can only be one answer”.42
[28] It is clear therefore that the issue for the Court is narrow. The process by which the DDM’s decision was reached is largely irrelevant. The Court cannot interfere unless in the circumstances “there can only be one answer”.43 I accept the respondent’s submission that, in this context, the substantive decision will only be unreasonable if the application of New Zealand’s international obligations mandates that Mr A be permitted to remain in New Zealand.
[29] However, in case I am wrong about the proper approach to review, I still deal with Mr A’s procedural challenges below.
39 Dean v Associate Minister of Immigration, above n 30, at [57]; and Singh v Associate Minister of Immigration, above n 38, at [66].
40 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 27, at [64].
41 Zhang v Associate Minister of Immigration, above n 23, at [14].
42 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 27, at [66] citing ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166.
43 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 27, at [66] citing ZH (Tanzania) v Secretary of State for the Home Department, above n 42.
The issues to be determined
[30]The applicant’s case raises three essential issues:
(a)Are Mr A’s circumstances so indistinguishable to B’s that the only reasonable response was to grant his application given the objectives of S4.15?
(b)Was the summary of the material provided to the DDM (in the form of a case note), and the way in which the DDM reviewed the case note and supporting material, so deficient that it has resulted in an unreasonable decision?
(c)Do New Zealand’s international obligations under the Palermo Convention mean that the only reasonable decision was to allow Mr A to remain in New Zealand?
Issue (a): Are Mr A’s circumstances so indistinguishable to B’s that the only reasonable response was to grant his application given the objectives of S4.15?
S4.15 does not apply directly
[31] Mr A accepts that S4.15 cannot directly apply to him for two reasons. First, because he was not the holder of a special temporary visa for victims of people trafficking (as required by S4.15.5a.i.), and second, because he does not have certification from the New Zealand Police that he was believed to be a victim of people trafficking (as required by S4.15.5a.ii.).
[32] Mr A accepts he was not a victim of people trafficking. B travelled to New Zealand and remained here for six months, between June 2009 and January 2010, without the employment and work visa promised to him.44 Although Mr A lost the
$20,000 that he paid to the offenders, B was the one “trafficked” to New Zealand. While there might be an argument that Mr A is a victim of the people trafficking charge in relation to which he and B gave evidence because he has suffered loss through the
44 See the sentencing notes for the case in which Mr A and B gave evidence: [redacted].
offence,45 his counsel, Ms Clark, properly accepted that Mr A is not a person who has suffered the “effects of trauma and abuse” that S4.15 is aimed at protecting.46
[33] Moreover, the reality is that Mr A has never been treated as a victim, which is why he has never received the required special temporary visa, or certification as a victim. On the other hand, B was issued with a certificate that he was a victim of people trafficking by the New Zealand Police on 18 August 2015.
[34] It follows that the positions of Mr A and B are distinguishable when assessed against the objectives of S4.15.
Evidence of assurances given to Mr A
[35] Mr A says that he was given assurances by Immigration New Zealand (INZ) prior to giving evidence at both trials that he would be eligible to apply for a residence class visa and remain lawfully in New Zealand as a victim of people trafficking. The material provided to the DDM, and the summary of the case note of those representations, state that prior to giving evidence INZ gave assurances that all those who gave evidence would be granted work visas and the opportunity to apply for residence in New Zealand as victims of people trafficking.
[36] Affidavits have been filed by INZ’s National Manager of Investigations, Stephanie Greathead, and the Head of Operations Manukau, Nathaniel Mackay, stating that they are not aware of any such assurances being given by INZ and that it is very unlikely any assurances were given to Mr A. This is because, in the case of investigation staff, giving assurances to witnesses about future visa status could be seen as an improper inducement and, in relation to visa operations staff, they do not provide assurances to applicants surrounding any future visa applications or their outcomes.
[37] In reply, Mr A filed an affidavit attaching the notebook entries of Cam Moore, Manager of the Serious Offences Unit of INZ, detailing a briefing held with Mr A and B, and others who were to give evidence at the criminal trial on their arrival in
45 See definition of “victim” in s 4 of the Victims’ Rights Act 2002.
46 Immigration New Zealand Operations Manual, S4.15.1b.i.
New Zealand on 3 November 2015. Present at the briefing was Kerri Fergusson, Manager of the Employment Investigation Unit, who had previously travelled to India to meet with the group and take statements. The note records the following:
Kerri speaks about:
- [E]
- Being certified victims
- Summonses
- eligibility for applying to (sic) work visa (family)
- residents (sic) upon meeting stipulated criteria
- Discuss why hadn’t told them this previously (perception of inducement & the like)
- Request they speak to no one (family/friends/other witnesses) about their certification at this stage.
All understand & agree.
[38] Mr A’s affidavit provides no interpretation of these notes or elaboration of what was discussed at the meeting (perhaps unsurprisingly given the passage of time). It appears from the note that the whole group was told about their eligibility to apply for residence “upon meeting stipulated criteria” and their “eligibility” to apply for work visas. The part of the note that states “Discuss why hadn’t told them this previously (perception of inducement & the like)” does not appear to support Mr A’s position that there were assurances given prior to arriving in New Zealand. It is not clear whether there was anybody else in the group in Mr A’s position of being required to travel from India to be a witness who was not also a victim of trafficking (it appears not). I accept this could have left Mr A with the impression he was being treated the same as all the other members of the group who were victims. However, the fact is that B had been provided with certification that he was a victim of people trafficking on 18 August 2015 and Mr A had not.
[39] I consider that New Zealand’s obligation to protect witnesses and victims of people trafficking provided for in arts 24 and 25 of the Palermo Convention, and reflected in S4.15 (at least in relation to victims), are important obligations. They engage issues that are fundamental to the operation of an effective and humane justice system. Even if not a victim of people trafficking, there is little doubt that Mr A has suffered harm due to the criminal conduct he gave evidence about. His son is a certified victim of people trafficking, and he and his son have put themselves and their family at risk of violent retaliation by coming to New Zealand to give evidence.
Whether or not they were offered assurances about the ability to apply to remain in New Zealand prior to leaving India (which appears unlikely), or at all, the fact is they were brought here to give evidence with INZ’s knowledge of the risk this posed to them.47 Based on those risks, and due to the application of S4.15, B was granted residence in 2020, as have all the victims who gave evidence at the trial.
[40] There is affidavit evidence from Mr A’s mother-in-law, C, dated January 2023, of threats made to kill Mr A, his wife and daughter following the criminal trial and on Mr A’s return to India. Ms C explains that Mr A’s wife and daughter lived alone in their home village, but out of fear have now moved to live with her and that one of the defendants in the criminal trial, D, has now returned from New Zealand and lives back in their home village. The evidence is that both D, and his brother E, pose such a risk that Mr A’s wife and granddaughter have been living with Ms C for two years and that she is afraid that E and D may find out where they live. This evidence is corroborated by affidavit evidence from other members of the family living in India.
[41] Leaving to one side for a moment the intricacies of the immigration system, as the respondent acknowledged, there is room for considerable sympathy for Mr A’s predicament. He has suffered similar effects to B, although there can also be little doubt that, as the person trafficked, the harm to B has been greater.
[42] On the other hand, the intricacies of the immigration system are a matter of policy for the Executive which, on review of a decision under ss 11 and 172, must be respected. As a matter of policy, the Executive has decided not to extend the residence category for victims of people trafficking to witnesses in people trafficking prosecutions who are not victims (despite art 24 of the Palermo Convention); and to make residence visas under S4.15 only available to those who have been certified victims of people trafficking and those who hold a special temporary visa as victims of people trafficking. Moreover, there is a rational basis for this distinction given it is the people that have been trafficked across the borders that are likely to be “suffering the effects of trauma and abuse” associated with that trafficking.48
47 See [52] below. Mr A and B were threatened with physical violence and death three weeks before they were scheduled to travel to New Zealand, resulting in INZ arranging for their early departure.
48 Immigration New Zealand Operations Manual, S4.15.1b(i).
[43] I therefore consider that the similarity of the positions of Mr A and B do not lead to the conclusion that the only reasonable answer was to allow Mr A to stay in New Zealand.
Issue (b): Was the summary of the material provided to the DDM (in the form of a case note), and the way in which the DDM reviewed the case note and supporting material, so deficient that it has resulted in an unreasonable decision?
[44] I do not accept the submission that I can infer that a failure to put ticks beside any of the supporting documents attached to the case note indicates that they were not considered. The DDM’s affidavit deposes that he “considered and weighed all the information available to him”. He deposes that he marked with a tick the most pertinent information. I note that one of the paragraphs that was ticked by the DDM was paragraph 24, which stated:
The representations and supporting documents are tagged 0322 √
(Emphasis in original).
[45] This tick indicates the representation letter and supporting documents were considered particularly pertinent, which would be an odd thing to note if no regard was had to them.
[46] Even if there was an ability to undertake the sort of granular assessments urged upon me by Mr A to determine that there has been a failure to take into account relevant considerations, I do not consider it would be made out. The DDM says he considered and weighed all the information available to him and it is clear he considered the representation letter and supporting documents particularly pertinent. A failure to describe in his affidavit which of those documents he gave particular weight to cannot lead to the inference that he did not consider them at all. However, in case I am wrong about this, I will go on to consider whether material matters were missing from the case note.
International obligations under the Palermo Convention
[47] Mr A’s argument that there was a failure to take into account the Palermo Convention, is based on the case note making no express reference to it, and
the DDM putting a tick beside international obligations that did not include the Palermo Convention.49 Mr A submitted that the material matter contained in the supporting documents but not recorded in the case note is that the Palermo Convention applies to witnesses as well as victims.
[48] There is reference in the case note to S4.15 as a relevant instruction, and reference to the United Nations Office on Drugs and Crime Toolkit to adequately protect the victims of trafficking. There is also reference to B having been granted residence as a victim of people trafficking and Mr A being affected due to his involvement as a witness in the trial. There was therefore ample reference to international obligations to protect victims of people trafficking and description of the effect on Mr A of his son’s victimisation, including the requirement to be a witness.
[49]The case note also includes the following paragraph:50
The representative submits that INZ failed to comply with its international obligations and protect the identity of the witnesses giving evidence at trial. She notes it also failed to give the witnesses the opportunity to obtain legal advice before providing statements and ensure the safety and protection of the victims and witnesses from retaliation and intimidation. The representative asserts Mr [A’s] situation warrants consideration, and he should be treated like the other trafficking victims as he too provided testimony and is at risk of retaliation. She adds Mr [A] and his family continue to risk of being harmed or potentially killed by the brothers and their associates. Mr [A] also has significant commitments in New Zealand which would make it unduly harsh for him to be deported.
[50] Therefore, the case note sets out Mr A’s submissions summarising the Palermo Convention’s requirements in relation to witnesses. On this evidence, even assuming there was a requirement to have regard to international obligations, I do not consider the case note’s failure to record that the source of the international obligations was the Palermo Convention would be a breach of the requirement.
49 It included the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights as relevant as Mr A and his family wish to reunite and live in New Zealand with his son B, who had been granted permanent residence.
50 I also note that the representations letter in support of the application refers in considerable detail to the contents of S4.15.
The level of threat
[51] The other material matter relied upon by Mr A as missing from the case note, but contained the supporting material, is aspects of the affidavit evidence about the level of risk to him. This included evidence from Mr A’s mother-in-law (referred to in more detail above) and sister-in-law about threats to kill Mr A’s wife and daughter and Mr A should he return to his village.
[52] Mr A submitted that the case note fails to draw attention to specific threats to kill on return to India. However, the case note records Mr A’s reliance on threats of rape and murder against Mr A’s family and describes the threat to him as being from E (the brother of D, one of the defendants in the criminal trial) who “is best described as a gangland boss, and local police will provide no protection to Mr A upon his return to India”. The case note records the submission that contract killing is rife in India and Mr A is not eligible for witness protection in India as his testimony occurred in New Zealand. It also notes that Mr A and B were threatened by E with physical violence and death three weeks before they were scheduled to travel to New Zealand, resulting in INZ arranging the early departure of Mr A and B.
[53] I consider this material in the case note was sufficient to bring home to the DDM the reality of the threat posed to Mr A, even if it was not as detailed as the supporting material.
[54] I therefore reject the challenge alleging deficiencies in the contents of the case note and the way in which the DDM reviewed it alongside the supporting material.
Issue (c): Do New Zealand’s international obligations mean that the only reasonable decision was to allow Mr A to remain in New Zealand?
[55] The final question is, irrespective of any procedural failure, do international obligations to protect witnesses under the Palermo Convention mean that the only reasonable decision was to cancel Mr A’s liability for deportation?
[56] I will not repeat the matters referred to [39]–[41] above that support Mr A’s position. I accept the respondent’s position that relevant countervailing matters
include: the length of time that has passed since the trial in 2015; the fact that Mr A’s wife and daughter remain living in India within 30 kilometres of their home village and have not been located and/or harmed; that there is no evidence the threat exists outside that specific geographical location of their home village; and the DDM was entitled to take into account that Mr A was in breach of his immigration obligations and failed to take any steps to correct the position between 2017 and 2023.
[57] Given those countervailing factors, and the constraints on the Court’s ability to intervene, I am unable to say that the only reasonable decision was to allow Mr A to remain in New Zealand.
Conclusion
[58]For these reasons, I dismiss Mr A’s application for judicial review.
[59] I am not aware that Mr A is legally aided. If that is correct, my preliminary view is that the respondent is entitled to costs on a 2B basis. If costs cannot be agreed, the parties should file memoranda (not exceeding four pages) 10 working days after receipt of this decision and reply memoranda (not exceeding two pages) five working days after that. I will deal with costs on the papers.
La Hood J
Solicitors:
Vallant Hooker & Partners, Auckland for Applicant Crown Law Office, Wellington for Respondent
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