AD v Chief Executive of the Ministry of Business, Innovation and Employment
[2020] NZHC 1010
•15 May 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-522
[2020] NZHC 1010
UNDER the Immigration Act 2009 IN THE MATTER
of an application for judicial review of a decision of Immigration New Zealand
BETWEEN
AD
Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Respondent
Hearing: 20 November 2019 Appearances:
J H Cottrell, A C Harris and M Miville Fogliani for Applicant S P Connolly and E J Cameron for Respondent
Judgment:
15 May 2020
JUDGMENT OF CLARK J
[1] This judgment determines two preliminary issues arising from AD’s application to judicially review two immigration decisions adverse to his interests:
(a)whether leave should be given to AD to commence his proceeding out of time; and
(b)whether a form of privative clause in the Immigration Act 2009 (the Act) precludes judicial review of a decision declining AD a temporary work visa.
AD v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2020] NZHC 1010 [15 May 2020]
Factual background
[2] Ms Cottrell confirmed she took no issue with the chronology of events provided by the respondent. It is convenient, therefore, to summarise the background by reference to this uncontentious statement of facts.
[3] AD is an Australian citizen. In April 2013 he travelled to New Zealand and, on arrival, was granted a residence class visa. On 24 December 2014 AD was convicted and sentenced in relation to charges under the Films, Videos and Publications Classification Act 1993. On 15 January 2015 Immigration New Zealand (INZ) placed an alert on AD’s file, effectively signalling that s 16(1)(a)(iv) of the Act applied. Section 16 prevents the grant of any visa or entry permission to any person who the Minister believes is, or is likely to be, a threat or risk to the public interest.
[4] On 1 November 2016 AD travelled to Australia. If the holder of a visa is outside New Zealand and the visa conditions do not allow further travel to New Zealand, the visa expires when the holder leaves New Zealand.1 Consequently, AD’s residence visa expired on 1 November 2016.
[5] On 5 December 2016 when AD attempted to return to New Zealand, he was unable to board his flight from Australia. He was advised that he should make an application to bring himself within the exceptions to non-eligibility for visa or entry permissions. Where s 16 of the Act creates an absolute bar to the grant of visa or entry permissions in the circumstances set out at s 16(1)(a) and (b), s 16 is subject to s 17. Accordingly, on 17 May 2017 AD requested the grant of a special direction under s 17.
[6] On 28 July 2017 INZ made two decisions. First, the alert put in place on 15 January 2015 was inactivated. This meant AD did not, after all, have to bring himself within the exceptions to the bar on his re-entry created by s 16. The second decision was that the visa waiver status normally applicable to Australians travelling to New Zealand was suspended in light of “character factors”. The effect of the Act is that (broadly speaking) Australians travelling to New Zealand are persons to whom a visa waiver applies. “Visa waiver” means a waiver under s 69 of the Act of the
1 By operation of s 63(2)(a) of the Immigration Act 2009.
requirement to hold a visa permitting travel to New Zealand.2 The Act draws a distinction between people travelling to New Zealand and people entering New Zealand. Those to whom a visa waiver applies do not need a visa to board a flight and travel to New Zealand but they must still apply on arrival at the border for visa entry.
[7] The suspension of AD’s visa waiver status meant he could not travel to New Zealand and apply for visa entry on arrival. The idea behind suspending visa waiver status is to forewarn the person that he or she must apply for a visa to enter New Zealand in advance of travel so that the application can be considered in advance.
[8] In AD’s case the decision to suspend his visa waiver status on 28 July 2017 was a decision made by special direction under s 69(2)(d) of the Act.3 The July 2017 decision is the first decision challenged by way of judicial review.
[9] The next event was on 3 January 2018 when AD applied for a temporary work visa in the partnership category.
[10] On 23 January 2018, INZ advised AD he would not be eligible for a temporary entry class visa unless granted a character waiver.
[11] On 30 August 2019 AD commenced judicial review proceedings. The gravamen of AD’s complaint was the delay in processing AD’s application for a work visa.
[12] On 26 September 2019 AD’s application for a temporary entry class visa was declined.4
[13] A final event that needs to be mentioned is the outcome of an appeal to the Immigration and Protection Tribunal. AD appealed on humanitarian grounds against his liability for deportation in 2015. That liability arose from his convictions for
2 Immigration Act 2009, s 4 definition of “visa waiver”.
3 In this judgment the decision on 28 July 2017 to suspend AD’s visa waiver status is referred to as the July 2017 decision.
4 The decision on 26 September 2019 to decline AD’s application for a temporary entry class visa is referred to as the September 2019 decision or the visa refusal decision.
possession and distribution of objectionable publications, and for possession of cannabis. For reasons that are unnecessary to traverse, the Tribunal found there were exceptional circumstances of a humanitarian nature. The Tribunal was satisfied it would not be contrary to the public interest to allow AD to remain in New Zealand. That decision was issued on 31 August 2016 and, accordingly, AD was not removed. But, as mentioned above at [4], AD travelled to Australia in November 2016 and it was that departure from New Zealand that triggered the subsequent events and decisions now challenged.
Application for judicial review and preliminary issues
[14] In his amended statement of claim filed on 18 October 2019 AD challenges as unlawful INZ’s decision to suspend his visa waiver status and requiring him to make an application for a visa. Section 247(1)(a) of the Act requires any review proceedings in respect of a statutory power of decision under the Act to be filed no later than 28 days after the date on which the person is notified of the decision, unless an exception to s 247 is made out.
[15] Accordingly, the first preliminary issue is whether AD has shown that, by reason of special circumstances, he should be allowed further time in which to commence his review proceedings.
[16] The second preliminary issue is whether s 186(3)(a) of the Act applies. Section 186 limits appeals and rights of review. Specifically, a person may not bring judicial review proceedings in respect of a decision relating to the refusal or failure to grant a temporary entry class visa.
[17]I deal with each of the preliminary issues in turn.
Leave to bring proceedings out of time
[18] The first preliminary issue is whether AD should be allowed further time to commence his proceeding challenging the July 2017 decision.
Applicant’s position
[19] AD’s broad position is that the July 2017 decision began a decision-making process that culminated in the decline of his visa application in September 2019. Thus, his challenge to the 2019 decision via this proceeding is not out of time in terms of s 247(1), of the Act.
[20] Ms Cottrell submitted that in suspending AD’s visa waiver status and “thereafter requiring him to apply for a visa in order for undetermined character factors” to be considered, INZ made a preliminary judgment as to AD’s character in order to guide INZ decision-makers to their desired outcome. Linked to that overarching position are Ms Cottrell’s following further arguments:
(a)In declining AD’s application for a temporary entry visa, INZ made a final determination that he did not meet good character requirements and was ineligible for the grant of a visa and entry permission.
(b)The July 2017 decision and September 2019 decision are a part of a single decision-making process in relation to AD’s character and it is superficial to characterise the decision as a refusal or failure to grant a temporary entry class visa which is not reviewable under s 186 of the Act.
The respondent’s position
[21] The respondent’s position is that the July 2017 decision is a separate decision from the September 2019 decision declining AD’s visa application.
[22] Even if the 2017 decision is part of a single decision-making process culminating in the 2019 refusal to grant a temporary entry visa, the 2019 decision is not reviewable.
[23] Addressing the merits of AD’s case, Mr Connolly submitted this was not a “marginal case” where it was necessary for the Court to consider the merits but in any event the merits are weak.
Discussion
[24] Ms Cottrell raised in support of special circumstances the findings of the Immigration and Protection Tribunal following AD’s appeal against deportation. AD had appealed on humanitarian grounds against his liability for deportation. (The liability arose from his convictions.) The Tribunal was required to determine whether or not “exceptional circumstances of a humanitarian nature” would make it unjust or unduly harsh for AD to be deported from New Zealand.5 The special circumstances of a humanitarian nature, which the Tribunal found to exist in that appeal, are different in kind from the special circumstances which are to be found under s 247(1)(a) in order that further time should be allowed in which to commence review proceedings.
[25] Ms Cottrell submitted that the fact AD “was ultimately refused a temporary entry class visa was of no material significance to either the applicant or INZ”. Ms Cottrell argues that the material determination was INZ’s conclusion that AD did not meet the good character requirements and was therefore ineligible for a visa or entry permission. These are strands of the overarching argument that the July 2017 decision and September 2019 decision are part of a single decision-making process in relation to AD’s character.
[26] I do not agree with that analysis. The waiver of a requirement for a visa permitting travel to New Zealand and the suspension in any individual case of a waiver are discrete decisions made under regulations and pursuant to s 69 of the Act. A waiver under s 69 does not of itself entitle a person subject to the waiver to be granted entry permission.6 INZ advised AD (via the 28 July 2017 letter to Ms Cottrell) that he may wish to make a resident visa application on partnership grounds to test his eligibility for residence in New Zealand and six months later, on 3 January 2018, AD applied for a temporary work visa. But the suspension of his waiver status and the process of considering his subsequent application for a temporary work visa were two discrete decision-making processes.
5 Section 206(1)(c) of the Immigration Act 2009.
6 Immigration Act 2009, s 69(6).
[27] That is illustrated in a way by the fact that the application for a visa entailed the provision by AD of information completely irrelevant and unrelated to visa waiver status. For example, there was to be an assessment of character and medical information was requested.
[28] When the proceeding was filed on 30 August 2019 the challenge was to INZ’s failure to make a decision on AD’s application for a work visa partnership category. As at 30 August 2019 when the statement of claim was filed, AD’s application had not been decided. INZ declined AD’s visa application on 26 September 2019 following which an amended application for judicial review was filed challenging both the July 2017 decision and September 2019 decision.
[29] The point is that, although AD had every opportunity to do so, he did not challenge the July 2017 decision when he commenced proceedings on 30 August 2019. His first challenge to the July 2017 decision was when he filed an amended statement of claim on 15 November 2019.
[30]Section 247 of the Act provides:
247 Special provisions relating to judicial review
(1)Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless—
(a)the High Court decides that, by reason of special circumstances, further time should be allowed; or
…
[31] Although it was decided in respect of the predecessor to s 247, Rajan v Minister of Immigration (Rajan) continues to be regarded as the leading authority on the meaning of “special circumstances” in s 247(1) of the Act.7 The Court of Appeal stated:8
7 Rajan v Minister of Immigration [2004] NZAR 617 (CA); and see C v Immigration and Protection Tribunal [2015] NZHC 3253 at [22]; and Rupal v Immigration and Protection Tribunal [2018] NZHC 422 at [76].
8 At [24] (emphasis added).
The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s 146A [the predecessor to s 247] time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans’ application was filed one month late and thus would require an extension of one third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay.
[32] The three-month time limit in s 146A of the Immigration Act 1987 was repealed in November 2010.9 The new Immigration Act 2009 replaced s 146A and introduced a 28 day time limit in s 247(1) of the Act. The parliamentary intent is clear. Judicial review proceedings must be brought promptly, even more promptly than the three-month period permitted under the predecessor to s 247(1).
[33] In C v Immigration and Protection Tribunal, Brewer J distilled the applicable legal principles from Rajan and cases since Rajan. In the context of s 247(1) of the Act “special circumstances” are to be interpreted in light of the Act’s emphasis on timeliness:10
… Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s 146A [the predecessor to s 247(1)] time limit for the filing of judicial review proceedings must be interpreted in that context.
[34] As Brewer J characterised it, Rajan provides a framework for deciding whether “special circumstances” exist by reference to the following three factors:11
(a)the length of the delay;
(b)the reason for the delay; and
(c)(in marginal cases) a brief examination of the merits.
The length of and reasons for the delay
[35] Almost two years and four months elapsed between the July 2017 decision and AD’s challenge to that decision via his amended statement of claim filed on
9 Immigration Act 2009, s 404.
10 C v Immigration and Protection Tribunal, above n 7, at [22].
11 Rajan v Minister of Immigration, above n 7, at [24]–[30].
15 November 2019. However, I am prepared to proceed on the basis the proceeding was commenced on 30 August 2019 with the filing of the first statement of claim. Even that somewhat unrealistic approach involves a delay of over two years. I say “unrealistic” because the obvious legislative intention is to ensure challenges to particular immigration decisions are brought within days of notification of the impugned decision not months or years.12 AD’s first iteration of his application for judicial review challenged INZ’s failure to make a decision on his visa application, not the July 2017 decision.
[36] Mr Connolly cited Kesonsung v Minister of Immigration in which Allan J stated “a long delay will ordinarily preclude the grant of leave in any circumstances”.13 Mr Connolly also relied on Zanzoul v The Removal Review Authority in which Dobson J cited Kesonsung v Minister of Immigration and added:14
… this was coupled with the notion that where there has been a substantial period of delay relative to the three month period permitted for filing such proceedings: virtually no circumstances will be sufficiently “special” to warrant the grant of leave.
[37] In Bhasin v Immigration and Protection Tribunal, a delay of three months was regarded as substantial and, coupled with a poor excuse, was not a marginal case.15
[38] More recently, Palmer J summarised the effect of judicial decisions between 2014 and 2018 relevant to the grant of extensions and suggesting an applicant’s excuse for delay will be a primary consideration.16
[39] On the basis of these authorities I have no doubt that the period of delay in this case is so great that leave should not be granted unless AD demonstrates truly special circumstances. In that regard AD has provided no reason for the delay in filing proceedings. AD had legal representation at the time the 2017 decision was notified
12 The applicant does not claim that the 28 July 2017 decision was not notified to him on 28 July 2017.
13 Kesonsung v Minister of Immigration HC Auckland CIV-2006-404-1597, 22 September 2006 at [35].
14 Zanzoul v The Removal Review Authority HC Wellington CIV-2007-485-1333 and CIV-2008-485- 854, 9 June 2009 at [26].
15 Bhasin v Immigration and Protection Tribunal [2018] NZHC 644 at [31] and [32].
16 Dennis v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 2169 at [21].
to him. Even had he raised ignorance of the time bar that is unlikely to have been a sufficient excuse.17 In any event, neither AD nor his counsel has offered any reason for the delay.
Merits of the applicant’s case
[40] Mr Connolly submitted there was little prospect of the substantive claim succeeding as the July 2017 decision was one of “absolute discretion” under the Act meaning, the only potential basis of review is Wednesbury unreasonableness.18
[41] Section 11 of the Act provides the meaning of “absolute discretion” under the Act. If a provision of the Act provides “that a matter or decision is in the absolute discretion of the decision maker” that means (relevantly) the matter or decision may not be applied for and if a person does apply for the matter or decision there is no obligation on the decision-maker to consider the application or inquire into the circumstances of the person or make any further inquiries.19 Section 378(8) specifically provides that “[t]he decision whether to grant a special direction is in the absolute discretion of the Minister”. The suspension of AD’s waiver status was effected by special direction under s 69(2). In Dean v Associate Minister of Immigration the Court of Appeal stated:20
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.
[42] Immigration instructions provide that people with certain convictions (including convictions in the nature of AD’s) will not normally be granted residence or temporary entry class visas unless they are granted a character waiver. I accept the submission made on behalf of the respondent that applying the normal process to AD does not suggest such a standard of unreasonableness that the merits of his claim justify the extraordinary extension of time he seeks.
17 Bhasin v Immigration and Protection Tribunal, above n 15, at [29], citing the Court of Appeal in
Fernandes v Immigration and Protection Tribunal [2014] NZCA 52 at [8].
18 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).
19 Section 11(1).
20 Dean v Associate Minister of Immigration [2019] NZCA 343 at [30].
[43] Perhaps the most telling point against the merits is that, as Mr Connolly submitted, had the July 2017 decision not been made, meaning AD retained his visa waiver status, he would still have been required to apply for a visa before entering New Zealand. The difference would have been that his application would have been made upon arrival at the border rather than prior to travel. Consideration of AD’s eligibility for a visa, including whether a character waiver should be granted, would still have occurred.
Decision
[44] AD has not demonstrated that, by reason of special circumstances, further time should be allowed to him in which to review the July 2017 decision.
Does s 186 bar AD’s review proceeding?
[45] I turn to the applicant’s alternative argument that s 186 does not bar him from applying to judicially review the September 2019 decision.
[46]Section 186 provides:
186 Limited right of review in respect of temporary entry class visa decisions
(1)No appeal lies against a decision of the Minister or an immigration officer on any matter in relation to a temporary entry class visa, whether to any court, the Tribunal, the Minister, or otherwise.
(2)Subsection (1) applies except to the extent that section 185 provides
(3)A person may bring review proceedings in a court in respect of a decision in relation to a temporary entry class visa except if the decision is in relation to the—
(a)refusal or failure to grant a temporary entry class visa to a person outside New Zealand:
(b)cancellation of a temporary entry class visa before the holder of the visa arrives in New Zealand.
[47] While acknowledging the effect of s 186(3)(a), Ms Cottrell submitted that AD is not barred from bringing review proceedings in respect of the September 2019 decision because:
(a)INZ made an error of law in suspending his visa waiver status and requiring him “as a citizen of the commonwealth of Australia” to make an application for a visa. The correct statutory procedure in relation to Australian citizens about whom there are character concerns, is to seek a special direction under s 17 of the Act.
(b)The arbitrary use of the power under s 69(2)(d) is inconsistent with the principles of fairness and natural justice.
(c)Citing Bulk Gas Users Group v Attorney-General, where it was alleged that a decision-maker made an error of law, there is a presumption against a privative clause being interpreted to exclude the supervisory jurisdiction of the Court.21
(d)The absence of statutory appeal rights as an alternative remedy fails to displace the presumption against the exclusion of appeal rights in this instance.
(e)The circumstances of AD’s case can be distinguished from the cases relied upon by the respondent in asserting s 186(3)(a) applies to bar him from bringing review proceedings.
Respondent’s position
[48] In summary, Mr Connolly submitted AD is an Australian citizen living in Australia. Part of his application for judicial review challenges the September 2019 decision declining AD’s application for a temporary work visa. AD identifies no error of law in relation to the 2019 decision itself but rather, suggests the error was in requiring him, as a citizen of Australia, to apply for a visa. By making that argument, the respondent submits AD is attempting to incorporate earlier decisions affecting AD (for example the suspension of the visa waiver) but no error is pleaded in relation to the 2019 decision itself. Consequently, s 189(3) applies to ban the proceeding.
21 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA).
Discussion
[49] In previous cases where the respondent has relied on s 186 as precluding a person from applying for judicial review, the courts have described the provision as lacking ambiguity, and that s 186 does not “need to be read restrictively or liberally but can be simply applied”.22
[50] The concern with legislation that restricts the availability of judicial review is that it can interfere with the supervisory role of the courts to hold public officers to account in the discharge of their powers. Senior courts have been reluctant to read legislation in a way that diminishes their “constitutional responsibility for upholding values which constitute the rule of law”.23 Therefore, privative clauses will be carefully scrutinised. As the exclusion of judicial review will be a product of the particular statutory setting the privative clause is to be construed in its statutory context.
[51] Section 186 appears in pt 7 of the Act dealing with appeals, reviews, and other proceedings. The purpose of pt 7 (amongst other purposes) is “to provide comprehensively for the system of appeal and review in respect of decision-making under [the] Act”.24 The Act provides for limited rights of reconsideration concerning temporary entry class visas if the holder is onshore.25 Section 186 itself provides limited rights of review in respect of temporary entry class visa decisions.
[52] While no appeal lies against a decision on any matter relating to a temporary entry class visa, there remains a right of reconsideration “for an onshore holder of a temporary visa in the circumstances set out in [s 185]”.26 As well, a person may bring review proceedings in respect of a decision in relation to a temporary entry class visa except if the person is “outside New Zealand”.
22 Liu v Minister of Immigration [2015] NZHC 2048 at [6]; and Kaur v Ministry of Business Innovation and Employment [2016] NZHC 2595 at [40].
23 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [3]–[4].
24 Immigration Act 2009, s 184.
25 Section 185(1).
26 Section 186(2).
[53] Thus, the legislative policy evident in s 186(3) is not at odds with the right of New Zealand citizens to invoke the supervisory jurisdiction of the High Court. As Fogarty J observed when examining s 186(3) in Liu v Minister of Immigration, “it is a relevant factor here that the common law recognises the Crown’s prerogative to control its borders”.27
[54]More fundamentally, AD pleads at [47] of his amended statement of claim:
In the event that the Court disagrees with the applicant’s characterisation of the decision-making process under s 69(2)(d), it is the applicant’s alternative submission that he is not precluded from commencing judicial review proceedings by reason of the fact that Immigration New Zealand made an error of law in requiring the applicant, as a citizen of the Commonwealth of Australia, to apply for a visa. In doing so, it acted outside its jurisdiction. As such, the decision to decline his application for a temporary entry class visa was not legitimately made and falls outside the ambit of s 186.
[55] No error of law is pleaded in relation to the 2019 decision itself. Nor, in suggesting (or requiring as AD puts it) that he apply for a visa in order to travel to New Zealand, is any error of law apparent. Any person to whom a visa waiver no longer applies must apply for a visa before travelling to New Zealand. A person who is not a New Zealand citizen may travel to New Zealand only if that person is the holder of a visa and the travel is consistent with the conditions of the visa or if that person is one to whom a visa waiver applies. The visa waiver did not apply to AD.
Result
[56] AD’s application for further time to commence his proceeding challenging the decision made on 28 July 2017 to suspend his visa waiver status, is dismissed.
[57]In relation to the September 2019 decision, AD is prevented by s 186(3)(a)
27 Liu v Minister of Immigration, above n 22, at [6]; Kaur v Ministry of Business, Innovation and Employment, above n 22, at [41] per Hinton J; Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [116]–[117] and authorities cited therein; and Chief Executive of Department of Labour v Yadegary [2008] NZCA 295, [2009] 2 NZLR 495 (CA) at [5].
from bringing review proceedings to challenge the refusal to grant him a temporary entry visa.
Karen Clark J
Solicitors:
Cottrell Law Ltd, Wellington for Applicant Crown Law Office, Wellington for Respondent
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