Auckland Pride v Minister of Immigration

[2023] NZHC 635

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 635

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 Respondent

AND

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 and E G R Dowse and F Richards for the Respondents N Levy KC and J K Mulgan for the Intervenor

Judgment:

27 March 2023

ORAL RESULTS JUDGMENT OF GENDALL J

[1]                 Given the urgency required in this case I will now give my results judgment on the applicant’s present without notice application for interim orders. My detailed written reasons will follow. At this point I thank counsel and the parties for being

AUCKLAND PRIDE v MINISTER OF IMMIGRATION [2023] NZHC 635 [27 March 2023]

willing to appear at such short notice today, on what is an important issue which has garnered and will no doubt garner further public attention.

[2]                 At the outset I need to say that, while I have some considerable sympathy with the applicants’ position here, ultimately I am of the view that their present application for interim orders should be dismissed.

[3]                 My sympathy for the applicants’ position is grounded largely in the information provided by the applicants and the Crown which, to my eye, appears to clearly raise some issues of public order, issues which a Minister or their delegated decision-maker would have been unable to ignore.

[4]                 This is a finely-balanced decision, and I accept that the applicants have indeed raised a possible case upon which it might be said to be arguable that no reasonable Minister could have concluded that s 16 of the Immigration Act 2009 is not to be invoked in the circumstances as are apparent, amongst other  things,  from  the  public domain here. In coming to that conclusion, I have had regard to publicly-made comments by the Minister of Immigration and the Minister of Finance, as well as other Members of Parliament.

[5]                 Particularly, the Minister of Immigration, although he decided not to intervene, condemned Ms Keen-Minshull’s views as “inflammatory, vile and incorrect”. That to me may well raise a possible issue of reasonable belief of disorder in the Minister’s mind at the time he decided not to intervene under s 16.

[6]                 I am of the view that the applicants have properly brought their application here in the pursuit of their charitable purposes which, amongst other things, are to celebrate and advocate for the rainbow and takatāpui communities in New Zealand. It was also generally accepted by many parties before me that Ms Keen-Minshull’s views may well be potentially harmful to those communities, communities which are deserving of protection, being particularly vulnerable to harm and discrimination.

[7]                 However, it is largely for technical and procedural reasons that the applicant’s application for interim orders, in my view, must fail here. The Courts are often

reluctant to make their way into the merits of the exercise of a discretionary decision made by a Minister. In my view, it would not be appropriate in this case for the Court to substitute its own views relating to the material in the public domain and placed before the Minister here, in the absence of a clear indication that the discretion is exercised in a manner that no reasonable Minister could have done. That is a significant threshold.

[8]                 In the information before the Minister was the expression of an opinion, too, that it was almost certain that the events planned by Ms Keen-Minshull, (and resulting counter-protests), would occur regardless of whether she herself is physically present in New Zealand. When that factor is also taken into account I am of the preliminary view that the Minister is right with his view that to bar her entry on the basis of s 16 would not be appropriate or particularly meaningful in reducing or preventing the harm identified by the applicants.

[9]                 I need to say, too, that I am to some extent troubled by the fact that, understandably, given the urgency in this matter, Ms Keen-Minshull, as an affected party, has not been given the opportunity to be heard on this application.

[10]              It is for these preliminary reasons and the further written reasons I will outline in my later Reasons Judgment to follow, that I am therefore of the view that the applicants’ application for interim orders should be dismissed. That application is now dismissed.

[11]Costs, if any may be sought, are reserved for further submissions.

Gendall J

Solicitors:

Morrison Mallett for the Applicants Copy to Siobhan Davies Barrister Crown Law Office for the Respondents Tredwells for the Intervenor