Auckland Pride v Minister of Immigration
[2023] NZHC 758
•5 April 2023
PURSUANT TO R 5(2) OF THE SENIOR COURTS (ACCESS TO DOCUMENTS) RULES 2017, THE COURT FILE IN THIS PROCEEDING AND ALL THE MATERIAL CONTAINED THEREIN IS NOT TO BE ACCESSED NOR SEARCHED WITHOUT THE WRITTEN PERMISSION OF A HIGH COURT JUDGE.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-000142
[2023] NZHC 758
UNDER The Judicial Review Procedure Act 2016, Part 30 of the High Court Rules and Immigration Act 2009 BETWEEN
AUCKLAND PRIDE
GENDER MINORITIES AOTEAROA INSIDEOUT KŌARO
Applicants
AND
MINISTER OF IMMIGRATION
First Respondent
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Second RespondentAND
NEW ZEALAND FREE SPEECH UNION
Intervenor
Hearing: 24 March 2023 Appearances:
T Mijatov, M R G van Alphen Fyfe and S A Davies for the Applicants
A L Martin, E G R Dowse and F Richards for the Respondents N Levy KC and R D Mulgan for the Intervenor
Results Judgment:
24 March 2023
Reasons Judgment:
5 April 2023
REASONS JUDGMENT OF GENDALL J
AUCKLAND PRIDE v MINISTER OF IMMIGRATION [2023] NZHC 758 [5 April 2023]
Introduction
[1] On 24 March 2023, an urgent hearing was held for the purpose of considering an Application for Interim Orders filed late on 23 March 2023 in this proceeding. Given the urgency that was required, I issued an oral results judgment at the conclusion of the hearing. In that judgment I dismissed the Application for Interim Orders, and indicated that my further written reasons would follow.1 I now give those further reasons.
Background
The parties
[2] The applicants in this case are Auckland Pride Incorporated, Gender Minorities Aotearoa, and InsideOUT Kōaro (the applicants). As I understand it, they are all organisations that support and advocate for the rights and wellbeing of rainbow communities in Aotearoa New Zealand, including transgender, non-binary, and gender diverse people, as well as children and young people.
[3] Auckland Pride’s goal as a registered charity is to empower, celebrate, and serve Auckland | Tāmaki Makaurau’s takatāpuhi2 and rainbow communities through events and advocacy. It is a member-based organisation represented by a board of elected and appointed members, supported by a team of staff and volunteers. Gender Minorities Aotearoa is a nationwide transgender organisation and registered charity, run by and for transgender people, including binary and non-binary, intersex, and irawhiti takatāpui.3 InsideOUT Kōaro is also a registered charity with the particular focus of supporting all rainbow children and young people to have a sense of safety and belonging in their schools and communities.
1 Auckland Pride v Minister of Immigration [2023] NZHC 635.
2Takatāpui is a term of Te Reo Māori which refers to Māori who are not heterosexual and/or not cisgender. It is used both as a gender identity (similar to transgender), as an attraction or sexual orientation (similar to lesbian, gay, bi, or pansexual). It is also used as an umbrella term for all non-heterosexual and/or non-cisgender Māori people.
3Irawhiti takatāpui is a term which refers specifically to gender diverse and/or transgender Māori people.
[4] The respondents are the Minister of Immigration (the Minister), and the Chief Executive of the Ministry of Business, Innovation and Employment. Immigration New Zealand (INZ) is situated inside the Ministry of Business, Innovation and Employment, which is the reason for the Chief Executive’s inclusion as a party.
[5] Early on 24 March 2023, just before the Interim Orders hearing began, the New Zealand Free Speech Union also sought and was granted leave to participate in this proceeding as an intervenor.
Factual background
[6] The Application for Interim Orders concerned Ms Kellie-Jay Keen-Minshull (Ms Keen-Minshull, also known as “Posie Parker”, although I refer to her by her given names). Ms Keen-Minshull is a public figure and activist based in the United Kingdom. She is also a citizen of the United Kingdom and, as such, Ms Keen-Minshull was eligible for, and obtained, a New Zealand Electronic Travel Authority, providing her with the ability to travel to New Zealand without applying for a visa. She is described by the applicants as a person with anti-transgender, anti-Muslim, anti-abortion, and anti-feminist views.
[7] On 9 January 2023, Ms Keen-Minshull publicly announced her intention to travel to New Zealand on 25 and 26 March 2023, as part of her ‘Let Women Speak’ tour. She said she would do this to host public events in Auckland and Wellington, at which she would speak, and she would provide an opportunity for others to speak. Ms Keen-Minshull’s tour would take her first to Australia, with a final event on 23 March 2023, before travelling to New Zealand. Previous events overseas, related to the “Let Women Speak’ tour, had resulted in violence and arrests of both attendees and counter-protestors.
[8] The proposed events for New Zealand raised concerns for members of the applicants’ communities. As a result, the Rainbow Greens of Aotearoa New Zealand submitted an open letter to the Minister, asking for the denial or revocation of any visa already granted to Ms Keen-Minshull. Other submissions were also received by Immigration New Zealand.
[9] Prompted by the public concerns raised about the tour, Immigration New Zealand allocated the matter to Mr Peter Elms (Mr Elms), National Manager Border, to consider s 16 of the Immigration Act 2009 (the Act). Mr Elms holds a delegation pursuant to instructions made under that Act, to make decisions under s 16.
[10] Mr Elms received advice from the New Zealand Police on 17 March 2023, as well as risk assessment material from within Immigration New Zealand dated 20 March 2023. He recorded his decision relating to s 16 in an email of 21 March 2023. That email stated:
I have reviewed the circumstances surrounding the anticipated entry of Kellie-Jay KEEN-MINSHULL in order to determine her eligibility to enter New Zealand. In doing so I have reviewed the information assessment completed by INZ’s Risk Assessment Team and the New Zealand Police Intelligence Notification. I have also considered MBIE legal opinion.
KEEN-MINSHULL is the holder of a valid United Kingdom passport. She holds a current New Zealand electronic travel authority (NZeTA). KEEN-MINSHULL is reported to be intending to travel to New Zealand as part of her ‘Let Women Speak’ tour. I am advised that she does not require a work visa for the purpose of her visit. As a result of public disorder and public interest concerns raised in respect to the ‘Let Women Speak’ tour I have considered whether it is appropriate to withdraw KEEN-MINSHULL’s travel authority in accordance with section 16 Immigration Act 2009. I have determined that KEEN-MINSHULL’s purpose for travel does not meet the threshold to make her an excluded person and therefore ineligible for a visa or entry permission outlined in section 16. In making that determination I am not satisfied that there is reason to believe, based on the evidence available, that KEEN-MINSHULL is likely to commit an offence in NZ punishable by imprisonment, nor is there a likely threat or risk to security, public order or public interest.
Accordingly KEEN-MINSHULL’s NZeTA remains valid, and she is therefore eligible to travel to New Zealand as a visa waiver traveller.
[11] The Minister’s Office was briefed on this decision on 21 March 2023, and the Minister himself provided with a report the day prior. The Minister was provided with an opportunity to intervene with the decision made by Mr Elms pursuant to s 16. The Minister declined to do so on 22 March 2023 (the Minister’s decision).
[12]In brief, the information given to Mr Elms and the Minister provided:
(a)a detailed summary of Ms Keen-Minshull’s publicly expressed views, actions, planned events, and known associations;
(b)a summary of events organised by Ms Keen-Minshull where violence has previously occurred, including recent events in Melbourne on 18 March 2023;
(c)a comment that counter-protests were being planned in Auckland and Wellington and, although tension was expected, it was unlikely the events would result in violence as counter-protest organisers were encouraging no interaction with event attendees;
(d)a report that the police believed that it was almost certain that the events planned by Ms Keen-Minshull would go ahead regardless of whether she was physically present, based on previous events overseas; and
(e)confirmation that the police’s view had not changed since their advice was provided on 17 March 2023, or in light of the nature of the Ms Keen-Minshull’s event in Melbourne.
Application for interim orders / procedural background
[13] After informing the court of their intention to file an urgent Application for Interim Orders at approximately 8:00am on 23 March 2023, the applicants filed later that day, their Application for Interim Orders, an accompanying Memorandum of Counsel, three affidavits, and a draft Statement of Claim. The Application for Interim Orders was filed formally without notice, with service effected only upon the Crown (but no other party) on a Pickwick basis.
[14]The applicants sought Interim Orders until further order of the Court:
(a)prohibiting the Minister from permitting Ms Keen-Minshull from entering New Zealand as contrary to s 16 of the Act;
(b)alternatively, prohibiting the Minister from continuing to decline to make a decision under s 16 and until such decision was made, prohibiting Ms Keen-Minshull from entering New Zealand; and
(c)such other or alternative relief as the Court considers appropriate in its discretion.
[15]These Interim Orders were sought on the grounds that:
(a)the Orders are necessary to protect the Applicants’ position in the substantive proceeding, which alleges that the Minister’s and/or INZ's decision that Ms Keen-Minshull did not meet the threshold for exclusion under s 16 of the Act was unreasonable and unlawful;
(b)the court’s discretion favours granting relief, including because there is a strong case, and the public and private ramifications favour granting the orders; and
(c)the grounds set out in their accompanying Memorandum of Counsel.
[16] On the morning of 24 March 2023, prior to a 9:00am teleconference, the Crown filed submissions in opposition and annexures in support.
[17] During the 9.00 am teleconference, I scheduled an urgent hearing at the Wellington High Court, to begin at 10:00am. Counsel were helpfully available to appear in person.
[18] The urgency required for this matter derived from the fact that Ms Keen- Minshull was scheduled to arrive in New Zealand on the same day, 24 March 2023. This was one day following the filing of the applicants’ application. At the time the hearing began (and to date) I was unaware, as I understand were the parties, whether Ms Keen-Minshull was still present in Australia, or whether she had begun to travel to New Zealand. The Crown merely indicated that if there was to be any chance of preventing Ms Keen-Minshull’s entry into New Zealand were Interim Orders to be made, a decision was required prior to 1:00pm on 24 March 2023. It is for that reason
that I resolved to issue an oral results judgment at the conclusion of the hearing, with these further reasons to follow.
[19] Finally, I note that during the hearing, Crown counsel indicated that given the urgency of the matter some of the material in their submissions and annexures had not been assessed from a privilege and confidentiality perspective (and subsequently redacted) to the extent that it would have been had more time been available. The Crown sought directions, therefore, given the presence of media in the courtroom, and the significant public interest in this matter, to restrict the content of what the media could publish. Consequently, I made oral directions during the hearing to the effect that the media exercise caution in their reporting of certain matters. A direction is also to follow in this judgment that the court file may not be accessed without the permission of a Judge.4
The evidence filed by the applicants
[20]The applicants each provided an affidavit, being affidavits of:
(a)Max Tweedie,5 the Executive Director of Auckland Pride Incorporated;
(b)Te Ahi Wi-Hongi,6 (Te Ahi) the Executive Director of Gender Minorities Aotearoa; and
(c)Tabitha Besley,7 the Managing Director of InsideOUT Kōaro.
[21]Their position was summarised by Mr Tweedie as:
We are deeply concerned about the imminent arrival of Kellie-Jay Keen- Minshull (also known as Posie Parker) because of the risks posed to safety and wellbeing of transgender and gender diverse communities, and rainbow communities more broadly. Ms Keen- Minshull’s anti-transgender views and her intention to hold rallies espousing those views demonstrate her intention to incite hatred towards the Transgender Community in Aotearoa.
4 Senior Courts (Access to Court Documents) Rules 2017, r 5(2).
5 Max Tweedie’s pronouns are he/him.
6 Te Ahi Wi-Hongi’s pronouns are they/them.
7 Tabitha Besly’s pronouns are she/her.
[22]There were broadly four threads to the evidence filed.
[23] First, growing anti-transgender trends overseas and in New Zealand, particularly in regard to public events. Auckland Pride it seems had experienced interference and protests at some of its events. It said it had to increase the use of security services to ensure the safety of attendees, performers, and participants, in response to the increasing advent of anti-transgender and anti-non-binary rhetoric. Gender Minorities Aotearoa were of the view that the empowering of this rhetoric increased the risk of violence towards their communities. InsideOut Kōaro highlighted the significant vulnerabilities of their communities and agreed that growing anti-transgender rhetoric increased the risks of acts of violence and hate speech.
[24] Secondly, the evidence filed, it is claimed, establishes a broad link between anti-transgender and anti-non-binary rhetoric, and far-right activism, promoted by openly fascist individuals in New Zealand, Australia, and worldwide – as well as the publicly expressed intentions of such persons to attend events organised by Ms Keen-Minshull in New Zealand. Te Ahi claims that Ms Keen-Minshull is a central figure in campaigning against human rights for transgender people, and is known for her links to neo-nazi organisations such as the Proud Boys, who are designated as a terrorist entity in New Zealand.8
[25] This link it seems to some extent was verified by the material filed by the Crown, and through the provision of information made available to the Minister and Mr Elms. That information, it appears, goes some way to highlight Ms Keen- Minshull’s association to conservative, far-right, and white supremacist groups in the United States of America. The Applicants in this respect endeavoured to identify ideas which are shared by Ms Keen-Minshull and far-right activists, particularly what is said to be the promotion of a false connection between non-binary and/or transgender people and paedophilia. The information provided by the Crown tends to illustrate that Ms Keen-Minshull is indeed highly opposed to transgender persons.
8See New Zealand Police | Ngā Pirhimana o Aotearoa “Lists associated with Resolution 1373” New Zealand Police | Ngā Pirhimana o Aotearoa < community/counterterrorism/designated-entities/lists-associated-with-resolution-1373>.
[26] Thirdly, the Applicants provided evidence regarding events in Australia in the week prior to the filing of their own Application, which they said involved supporters of Ms Keen-Minshull advocating for fascist beliefs, and clashing with counter-protesters.
[27] Finally, the Applicants highlighted statements made by public figures expressing concern at the possibility of Ms Keen-Minshull entering New Zealand to personally deliver her views. These included various Green Party MPs, the Wellington Mayor Tory Whanau, the Minister of Justice, the Minister of Finance, and the Minister of Immigration.
Developments since the results judgment
[28] While my results decision was issued prior to the events of 25 and 26 March 2023, and accordingly those events have had no impact on my reasons, I consider that, although irrelevant for present purposes, it may be useful to note what occurred following the dismissal of the Application for Interim Orders.
[29] Ms Keen-Minshull entered New Zealand on 24 March 2023 and attempted to complete the event that she had organised in Auckland on 25 March 2023. This was met by a large number of pro-transgender activists, and the event was halted. Subsequently, Ms Keen-Minshull left the country the same day without travelling to Wellington as planned. I am informed also that, notwithstanding Ms Keen-Minshull’s absence, there was another large pro-transgender event/rally which took place in Wellington on 26 March 2023.
Approach to an Applications for Interim Orders
[30]Section 15 of the Judicial Review Procedure Act 2016 provides:
(1) At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2) The interim orders referred to in subsection (1) are interim orders—
(a) prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:
(b) prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:
(c) declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.
(3) However, if the Crown is a respondent,—
(a) the court may not make an order against the Crown under subsection (2)(a) or (b); but
(b) the court may, instead, make an interim order—
(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:
(ii)declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.
(4) An order under subsection (2) or (3) may—
(a) be made subject to such terms and conditions as the court thinks fit; and
(b) be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[31] The approach to s 15 begins with a statutory threshold, requiring that Interim Orders are necessary to preserve an Applicant’s position. If that threshold is satisfied, the court has a wide discretion in determining whether to grant Interim Orders. It is a flexible exercise of a broad discretion.9 The court is required to consider all of the circumstances, including the strength or weakness of the Applicant’s claim, and the private and public repercussions of granting relief.10
[32] Preservation of the Applicant’s position is not intended to allow for the improvement of that position.11 However, interim relief can encompass orders which
9See Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423, (1986) 2 TCLR 7 (CA)
10 Ministry of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at [3].
11 See, for example, Forser v New Zealand Chiropractic Education Trust [2010] NZAT 361 (HC).
place the applicant in the position they would have been in but for the alleged illegality:12
Like all legislation, s 15 should be interpreted in light of its purpose. There are two evident purposes of the interim relief power – to relieve the applicant from the adverse effects of a challenged decision until the challenge is heard and determined, and to preserve the ability of the Court to grant effective relief if the challenge is successful. The threshold question should be interpreted and applied in light of these purposes.
[33] Further, the courts generally take a generous approach to questions of standing in a public law case where the legality of state action or inaction is in issue.13
[34] As to the orders that can be made against the Crown, unlike the orders which the court may make under s 15(2)(a) and s 15(2)(b), an order under s 12(3) is not coercive in nature but is a declaration of what the Crown ought not to do pending the determination of the application for review. While the Crown is not bound to observe the terms of such an order, in practical terms an order under s 12(3) will usually achieve the object of interim relief. 14 In the present case, the only relevant and available order is essentially one declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power. I address this type of order further below.
[35] However, I note also the existence of r 30.4 of the High Court Rules 2016, which recognises the High Court’s inherent powers, and is “another route to the same end without the same threshold requirement”.15
12 Greer v Chief Executive of Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [22] relying on Whiskey Jacks Rotorua Ltd v Minister of Internal Affairs HC Wellington CIV-
2003-485-1901, 10 September 2003; Kiwi Foundation Ltd v Attorney-General HC Wellington CP346/97, 18 December 1997; and Taylor v Chief Executive of the Department of Corrections
[2010] NZCA 371, [2011] 1 NZLR 112.
13 Nga Kaitiaki Tuku Iho Medical Action Society Inc v Minister of Health [2021] NZHC 1107 at [52].
14 Hills v State Services Commission HC Christchurch A28/83, 25 March 1983; Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423, (1986) 2 TCLR 7; and Voss v Minister of Agriculture HC Auckland M450/97, 5 May 1997.
15 Christensen v Director-General of Health [2020] NZHC 887, [2020] 2 NZLR 566 at [59].
The Immigration Act 2009
[36]Section 16 provides:
16 Certain other persons not eligible for visa or entry permission
(1) No visa or entry permission may be granted, and no visa waiver may apply, to any person who—
(a) the Minister has reason to believe—
(i)is likely to commit an offence in New Zealand that is punishable by imprisonment; or
(ii)is, or is likely to be, a threat or risk to security; or
(iii)is, or is likely to be, a threat or risk to public order; or
(iv)is, or is likely to be, a threat or risk to the public interest; or
(b) is a member of a terrorist entity designated under the Terrorism Suppression Act 2002.
(2) This section is subject to section 17.
[37] Section 16 provides an exception to the presumption that a person who is not a New Zealand citizen, but to whom a visa waiver applies, is allowed to enter and be in New Zealand if they have been granted entry permission.16
[38] Section 16 clarifies the jurisdiction of the Minister in terms of determining non-eligibility of persons not specifically caught by s 15, which bars certain convicted or deported persons from entering New Zealand. The discretion that is provided to the Minister under s 16 is considerable.17
Positions of the parties
The Applicants
[39] The Applicants’ substantive case alleges that the Minister’s decision was unreasonable and unlawful, in that no reasonable Minister could have concluded here that s 16 is not to be invoked in the circumstances as are apparent from the public domain. They contend that there is a strong case that the Minister did and does have
16 Immigration Act 2009, s 14(1)
17Doug Tennent, Katy Armstrong, and Peter Moses Immigration and Refugee Law (3rd ed, Lexis Nexis, Wellington, 2017) at 113–117.
reason to believe that Ms Keen-Minshull would likely be a threat or risk to public order, in the words of s 16. As such, the Applicants say that Ms Keen-Minshull may not lawfully be permitted entry into New Zealand, and that interim orders will preserve that position until further order of the Court.
[40] Central to the Applicants’ case is the view that s 16 is a provision that provides the Minister with little discretion. Counsel for the Applicants, Mr Mijatov, submitted that s 16(1)(a) simply requires the Minister to have “reason to believe” in the existence of specified circumstances, and that this does not permit the Minister to subjectively fail to believe a state of affairs exists and thereby avoid scrutiny of a decision under s
16. He maintains that s 16 suggests an objective standard that is amenable to review. Mr Mijatov submits too that s 16 indicates that Parliament intended that the Minister would be able to have “reason to believe” even in the face of uncertainty as to an assessment of future risk, as indicated by the inclusion of the words “or is likely to be”.
[41] As to the matter of interim orders, the position the Applicants sought to protect was the entry of Ms Keen-Minshull on an unlawful basis. The second prong of the position they sought to protect (although their application was not advanced in such terms) is the harm that they identified in their evidence regarding the rhetoric encouraged by Ms Keen-Minshull and her supporters, and its effect on the transgender and non-binary community in New Zealand.
[42]As to the exercise of the court’s discretion, Mr Mijatov contends:
(a)The Applicants have a strong claim that the Minister’s decision was unreasonable and/or unlawful, as the decision was not supported by any evidence, the available evidence was inconsistent with or contradictory to the decision, and the only reasonable conclusion contradicted the decision. The Applicants say that “there is a material disconnect in the chain of logic from a fact or a legal proposition to a conclusion”.18
18Manawa Energy Ltd v Electricity Authority [2022] NZHC 1444; citing Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [28]-[31].
(b)The publicly available information described above discloses the existence of a known and real risk of the use of extreme language, transphobic content, and the clashing of attendees and counter- protestors at events organised by Ms Keen-Minshull, which is relevant to the public ramifications of granting or declining relief.
(c)The interim orders sought by the Applicants are not akin to final relief, as the Applicants’ substantive case being successful would continue to have utility in relation to any future travel plans made by Ms Keen-Minshull.
[43] Helpfully, and in fulfilment of his duty of candour in a without notice context, Mr Mijatov also highlighted both procedural and substantive factors that may have gone against the Applicants’ case here. Foremost among these from a procedural perspective was that Ms Keen-Minshull had not been served or advised of the case, but also there was the possible existence of further information not in the public domain that may have been relevant to the Minister’s decision, but unknown to the Applicants.
[44] As to substantive issues, Mr Mijatov identified that unreasonableness is often described as an “exacting standard”, “not easily met”, and that it might be said the Minister has an unfettered discretion in s 16, two points with which he respectfully disagreed in the present case. He said also the view that the events would proceed as planned even if Ms Keen-Minshull was absent was not an answer to the present Application, given that Ms Keen-Minshull is instrumental to those events, and also given s 16 focuses specifically on the risk posed by the person concerned.
The Crown
[45] Mr Martin for the Crown filed submissions on the morning of the hearing. He also appeared before me in opposition to the Applicants’ Application for Interim Orders, notwithstanding the application had been filed on a without notice basis. Importantly, Mr Martin stated:
It is not disputed Ms K-M’s views are harmful to minority communities. Nor is it disputed those communities are particularly
vulnerable to harm and discrimination. They deserve protection, and harmful views must be condemned. The Minister’s own public statements show the community’s concerns were known to and understood by him.
[46] However, before me Mr Martin submitted that something more than a person simply holding harmful views is required for the Minister’s decision-making power under s 16 to be available. Mr Martin said the bar must be relatively high and based on cogent evidence, given the serious nature of other matters which attract exclusion, and in light of the serious consequences for an excluded person. Specifically, he maintained that the Act does not currently authorise decisions to prevent a person from travelling to New Zealand on a temporary visa based on previous expressions of opinion. Exclusion of a person may only occur, according to Mr Martin, if that person poses certain threats – and that terms such as ‘public order’ and ‘public interest’ must be read in light of the matters that surround them, being criminal offending and membership of terrorist groups.
[47] Mr Martin contended too that upon the information available to the Minister, the decision made was reasonably open to him, and that therefore this is not a case where the interim relief sought should be granted. He claimed the Applicants’ case was not strong, as Mr Elms’ decision, and the Minister’s refusal to intervene were decisions that were reasonably open to them, given the high threshold in the statutory scheme. Mr Martin added too that all relevant and available information was before them.
[48] Mr Martin went on to express the view that what the Applicants in reality were seeking here was akin to final relief, it would require the Minister to positively make a decision, and this would be done in a context where the person most affected had not been heard. He suggested the court does not normally grant interim relief which amounts effectively to substantive relief, in the absence of a high level of confidence that an applicant will be successful in the substantive hearing.19
19 Falun Dafa Association of New Zealand Inc v Auckland Children’s Christmas Parade Trust Board
[2009] NZAR 122 (HC) at [64].
[49] Mr Martin also sought to highlight issues with the nature of the interim orders sought. He maintained the orders sought would in effect require either the Court to declare that Ms Keen-Minshull is an excluded person, or to require the Minister to remake the decision with only one outcome available. In this respect, he stated:
First, with respect, it is not appropriate for this Court to declare a person excluded under the Act. That is a matter for the Minister (or delegated decision maker) to determine based on the evidence at hand. Matters such as public order or public interest may require a balancing of issues and decisions as to weight, which must be for the decision- maker. Usually on a substantive judicial review, the Court would only grant relief referring the matter back to the decision maker for reconsideration. Therefore, the relief sought is also more than could be expected in the substantive [proceeding] which tells against relief.20
Second, the Court will not ordinarily on an interim basis make orders requiring a respondent to take a positive step in a plaintiff’s interest
[50] Finally, Mr Martin argued that it was unclear whether the Applicants had a position to preserve in any event, given the information presented to the Minister that it was almost certain that the events would go ahead in Ms Keen-Minshull’s absence.
Analysis
Do the Applicants have a position to preserve?
[51] The Applicants say the position they seek to preserve is their views as to the legality of Ms Keen-Minshull’s entry into New Zealand. However, it is also the case that they seek to prevent the harm they say will be caused to the communities they represent if Ms Keen-Minshull is granted entry to attend the events scheduled for 25 and 26 March 2023.
[52] Accordingly, the Crown is correct to say, at least in respect of the second point, that it is unclear whether the Applicants have a position that is necessary to preserve pending the substantive hearing. This is because of the information provided at the time to Mr Elms and the Minister that it was almost certain that the events scheduled for 25 and 26 March 2023 would go ahead in Ms Keen-Minshull’s absence, run by her supporters already present in New Zealand. I note also that, at the time of the hearing
20 Safe Water Alternative New Zealand Inc v Hamilton City Council [2014] NZHC 1463 at [31].
before me, it was unknown to the parties and the Court, whether it was possible to prevent Ms Keen-Minshull’s entry into New Zealand, as her precise whereabouts as I understand it were unknown. Those factors logically operated against it being possible for the Court to practically preserve the Applicants’ position at the time of the hearing, suggesting perhaps that in fact there was no position to preserve.
[53] However, I do accept that, notwithstanding the practical difficulties noted in the preceding paragraph, the view that the Minister’s decision may have been unlawful constituted a position that was to some extent eroded by Ms Keen-Minshull’s entry into New Zealand. I acknowledge that the entry of a person into New Zealand on the basis of an unlawful decision does not have the effect of making that decision lawful. The Applicants, as I see it, can still argue in the substantive proceeding that the Minister’s decision was unlawful. Nevertheless, if that decision is indeed unlawful, then in my view the entry of a person on that basis at one level tends to both encourage and deepen that illegality. It is for this reason that I consider the Applicants have a position to preserve. Having concluded, but only by a small margin, that the Applicants do have a position to preserve here, I will now go on to address the factors that I consider relevant to the exercise of the court’s discretion to grant interim relief.
The strength of the Applicants’ case
[54] As I previously noted in my Results Judgment in this proceeding, at a general level I have some considerable sympathy for the Applicants’ position here. It is clear in my view they have brought their case with good intentions and in what they saw was their proper service to the communities they represent. I consider the Applicants have gone some way to suggesting that a possible case might exist here to support a potential argument that no reasonable Minister could have concluded that s 16 is not to be invoked in all the present circumstances. This is despite the fact that their Interim Order Application before me failed. In coming to that tentative conclusion, I need to say that I had regard to publicly-made comments by the Minister of Immigration and the Minister of Finance, as well as other Members of Parliament.
[55] I accept that s 16 does allow for a considerable exercise of discretion by the Minister. There is merit, too, in the Crown’s view that s 16 must be interpreted in context, and with reference to the other circumstances in which a person may be
excluded from entry. That somewhat ameliorates in my view a consideration of the strength of the Applicants’ case here.
[56] Also of note is the significant threshold that applies to allegations of unreasonableness. I accept Mr Mijatov’s submission that there has been some movement in the standard that is applied in New Zealand as to unreasonableness. However, it remains a high threshold.
The position of Ms Keen-Minshull, and her right to be heard
[57] That Ms Keen-Minshull was not served, nor advised of the proceeding and the fact that she was not available to have her views heard, are factors that seriously limit the possibility of interim relief in the present circumstances. Given the urgency of the hearing, and the practicality at that time of Ms Keen-Minshull being either in transit or soon to be in transit, it is difficult to see how her presence or an expression of her views would have been achieved. Nevertheless, I am drawn to the view that in such circumstances, and given the extent to which Ms Keen-Minshull would be affected by the court making the orders sought by the Applicants, this is a factor that tells against the granting of interim relief.
[58] If the orders sought had been made, Ms Keen-Minshull would be dramatically affected, particularly given that she is a person from a visa waiver country, and had been granted a travel authority but had not been given any opportunity to be heard. As the Crown suggested before me, her exclusion from New Zealand on an interim basis would also have likely had a possible effect on her ability to travel to other countries. It does seem that no thought appeared to have been given to the possibility of Ms Keen-Minshull being advised of the proceeding, served, and granted permission to attend remotely. I do acknowledge however that given the urgency required, this may have not been practically able to be implemented. While the Application before me was for orders only on an interim basis (until any further order of this court was made) the ramifications of the orders sought in light of natural justice principles must tell against them being granted here.
The orders sought
[59]It is helpful to set out again the orders sought. These are orders:
(a)prohibiting the Minister from permitting Ms Keen-Minshull from entering New Zealand as contrary to s 16 of the Act until further order of the court; or
(b)alternatively, prohibiting the Minister from continuing to decline to make a decision under s 16 and until such decision is made, prohibiting Ms Keen-Minshull from entering New Zealand.
[60] The primary difficulty with the Application for Interim Orders is how they would need to be implemented. I consider that Mr Martin is correct to say that granting the orders would require the court to either make its own decision pursuant to s 16, or direct that the Minister reconsider, with only one option available to him. Either option would require the court to step into the Minister’s shoes, and effectively make a decision for him. It would also require the Minister to take positive action, which is technically an order which is not permitted by s 15 of the Judicial Review Procedure Act 2016.
[61] While it is indeed possible to draft an interim order in a manner that does not offend s 15, I consider it would be inappropriate to do so in circumstances where the court cannot be almost certain that the Minister’s decision was in fact substantively lawful and/or unreasonable. There is no jurisdictional bar to such orders, but they are “relatively rare”.21
[62]As noted by the Court of Appeal:22
There are strong policy reasons against a court making mandatory interim orders or declarations requiring positive action. Such orders may not be able to be monitored, may require interaction between parties who are at arms length, and may involve inappropriate intervention by the court in decisions about the best use of scarce
21Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112 at [27].
22 At [26].
resources or the balancing of delicate priorities which are best left to the discretion of the responsible authorities.
[63] By analogy with the Court of Appeal’s further comments in the Taylor case, a court will hesitate before making any order affecting the discretion of the Minister to control entry into New Zealand, and that hesitation will be even greater when the proposed orders have a mandatory quality in the sense of directing positive action.23 The need to maintain the Minister’s ability to manage immigration in a manner that balances the national interest as determined by the Crown, and the rights of individuals (in this case, Ms Keen-Minshull’s visa waiver and natural justice rights), militates against restrictions being put on the Minister’s ability to exercise the discretion contained in s 16 at an interim stage.24 This is a factor that in my view ultimately must mean here that it would be inappropriate to grant the Applicants’ interim relief.
Other factors
[64] Other factors as I see it that are relevant to the exercise of the discretion here are:
(a)the Applicants’ case has been brought properly and without delay;
(b)the expected duration of the orders sought is limited; but
(c)the balance of convenience, however, weighs in favour of the Court not intervening in the exercise of the Minister’s discretion.
[65] Finally, there is also some sense in the submission that the granting of the Interim Orders sought would effectively amount to final relief. While it is a rather simple analysis, the reality is that the Applicants seek to prevent Ms Keen-Minshull from entering New Zealand. Although the granting of Interim Orders would not obviate the need for a substantive hearing, it would effectively grant the Applicants the substantive relief they seek. I say this, given their desire to frustrate public events organised by Ms Keen-Minshull with this Application which is obviously in extreme
23 At [29].
24 At [29].
temporal proximity to those events. This is a further factor in my judgment that tells against the granting of interim relief.
Conclusion
[66] Balancing the factors noted above, I am of the view that in all the circumstances here it is inappropriate to grant interim relief. Primarily, my conclusion in this respect is based upon the view that to effectively grant the relief sought would require this Court to step into the shoes of the Minister, at an interim and urgent stage, without the benefit of fulsome argument or having provided an opportunity for Ms Keen-Minshull to be heard. I do not consider it to be appropriate for the Court to declare that Ms Keen- Minshull is properly an excluded person pursuant to s 16 of the Act, or to remit the decision back to the Minister by way of interim orders, with what in reality would be a fettered discretion. In order to justify such orders, the Applicants would have needed to establish that they had a reasonably arguable case that the Minister’s decision was unlawful and/or unreasonable. They have not done so here.
Freedom of expression
[67] Finally, for clarity, I make some brief comments regarding the position of the Intervenor, New Zealand Free Speech Union, and the right of freedom of expression.
[68] Of some significance to the Applicants’ submissions during the hearing was their view that Ms Keen-Minshull’s publicly articulated views were not to be described as an expression of opinion to be protected by the notions of freedom of expression. Mr Mijatov said effectively that “this is not matter of two competing notions in the market place of ideas”, but rather the objectively hateful views of a person designed to incite violent action. The Crown agreed that the present matter was not to be cast as a contest between freedom of expression and discrimination against minorities – although on a different basis.
[69] Counsel for the intervenor, Ms Levy KC, instead submitted (without addressing the substantive grounds in the Application for Interim Orders or the principles that apply to such applications) that if the Interim Orders were granted, then Ms Keen-Minshull’s right to freedom of expression would be improperly limited.
Ms Levy contended that public order and/or public safety is not seriously threatened by the public being able to listen to views that the Applicants do not agree with. She maintained that restricting a person’s entry to New Zealand on the basis of previously expressed opinions would be an unjustified and/or unreasonable limitation.
[70] Ultimately, given the way the Applicants’ case is expressed, I consider that no real issue relating to freedom of expression arose in relation to the Application for Interim Orders before me. Their case was narrowly focused on the Minister’s decision to not intervene pursuant to s 16. If a competing rights analysis is indeed required, that is a matter that is better aired in the substantive proceeding.
[71] Further, the notion that freedom of expression is not an absolute right here is evidenced in the power of the Minister to exclude persons from New Zealand on the basis that they are likely, in the Minister’s view, to be a risk to public order. I express the preliminary view (while it is not strictly necessary to do so) that:
(a)There are reasonable grounds to accept the Applicants’ argument that in a competing rights analysis, freedom of expression may in some circumstances, need to give way to the right of vulnerable communities to be free from discrimination, although I express no view as to whether the present situation before me is such a case.
(b)Had the Minister determined that Ms Keen-Minshull was likely to be a threat or risk to public order and therefore excluded her from New Zealand for the reasons identified by the Applicants, it is also reasonably arguable that this would represent a justified limitation on her right to freedom of expression. I consider that must be correct given the circumstances in which s 16 has been used previously to exclude persons from New Zealand, including to exclude well-known musicians.
[72]For present purposes it is not necessary to say any more on this aspect.
Conclusion
[73] Accordingly, for the reasons I have outlined above, and also those reasons noted in my results judgment of 24 March 2023, I dismissed the Applicants’ Application for Interim Orders in this proceeding. In doing so, I gave leave for the filing of submissions on costs. At this juncture, I express the preliminary view that in respect of the present Application costs should lie where they fall, in acknowledgement of the proper conduct of the Applicants’ case, and the significant public interest in this proceeding.
[74] Noting my comments in [19] above, I now order pursuant to r 5(2) of the Senior Courts (Access to Court Documents) Rules 2017 that the court file in this proceeding and all the material contained therein is not to be accessed nor searched without the written permission of a Judge of this Court.
[75] Finally, I direct the Registrar to liaise with counsel for the parties to arrange a suitable first call of the substantive proceeding.
Gendall J
Solicitors:
Morrison Mallett for the Applicants Copy to Siobhan Davies Barrister Crown Law Office for the Respondents Franks Ogilvie for the Intervenor
Copy to Roderick Mulgan Barrister.
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