Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773
[2011] NZHC 1158
•29 September 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-1773
BETWEEN YATISH SURESH BABULAL Plaintiff
ANDCHIEF EXECUTIVE, DEPARTMENT OF LABOUR
Defendant
Hearing: 14 September 2011
Appearances: F C Deliu for plaintiff
A Longdill for defendant
Judgment: 29 September 2011 at 4:00 PM
JUDGMENT OF LANG J
This judgment was delivered by me on 29 September 2011 at4 pm, pursuant to Rule
11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
BABULAL V CHIEF EXECUTIVE, DEPARTMENT OF LABOUR HC AK CIV-2011-404-1773 29 September
2011
[1] Mr Babulal is a Fijian national. He is presently the subject of a deportation order issued under s 175 of the Immigration Act 2009 (―the Act‖) requiring him to be deported from New Zealand because he is currently unlawfully in this country.
[2] On 21 March 2011 an immigration officer, Mr Brendon Chase, reviewed Mr
Babulal’s personal circumstances but declined to cancel the deportation order.
[3] Mr Babulal says that, if he is deported to Fiji, his two daughters, Alani and Tahitia, will have no option but to accompany him. They are aged six and eight years respectively. They were born in New Zealand, and are consequently New Zealand citizens. They have lived with Mr Babulal in New Zealand for most of their lives. Their mother, with whom they have little contact, resides in Fiji. Leaving the children in New Zealand is not a realistic option because, although Mr Babulal’s mother and father live in New Zealand, they are not able to care for the girls on a full-time basis. In addition, the girls do not want to be separated from their father and Mr Babulal does not want to be separated from them.
[4] Mr Babulal believes that it would be disastrous for his daughters to return to Fiji at this stage of their lives. He contends that Mr Chase did not give genuine consideration to that factor when he declined to cancel the deportation order. Mr Babulal believes that New Zealand will be in breach of its international obligations to children if it deports him, and thereby requires his daughters to return with him to Fiji.
[5] As a consequence, Mr Babulal now seeks judicial review of Mr Chase’s
decision.
Grounds for review
[6] Counsel for Mr Babulal advances the application for review of Mr Chase’s
decision on three separate, but to some extent overlapping, grounds: (a) The decision was unreasonable;
(b)The decision failed to properly take into account relevant considerations; and
(c) The decision failed to record the facts about Mr Babulal’s personal
circumstances as required by s 177(5)(b) of the Immigration Act 2009.
[7] In the statement of claim Mr Babulal advanced three other grounds for review, but his counsel abandoned them (properly in my view) during the hearing.
[8] Before considering the remaining grounds it is necessary to have regard to the statutory scheme under which Mr Chase made his decision.
The statutory scheme
[9] The Immigration Act 2009 came into force on 29 November 2010, and
repealed the Immigration Act 1987 (―the 1987 Act‖).
[10] The purpose of the 2009 Act is set out in ss 3(1) and 2, which provide:
3 Purpose
(1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.
(2) To achieve this purpose, the Act establishes an immigration system that—
(a) requires persons who are not New Zealand citizens to—
…
(c) allows for the management of the immigration aspects of border control, by setting requirements that apply to persons arriving in New Zealand or who are intending to arrive in New Zealand; and
(d) provides a process for implementing specified immigration- related international obligations; and
(e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that —
…
(ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and
…
[11] As counsel for the defendant points out, one of the fundamental requirements of the Act is that all visitors to New Zealand must ensure that they enter and remain in New Zealand lawfully. They will only be in New Zealand lawfully if they hold a valid visa at all times.1 If they do not hold a valid visa, their presence in New Zealand will cease to be lawful2 and they will be under an obligation to leave New Zealand immediately.3 Failure to comply with that obligation will render them liable
for deportation.4
[12] A person who is unlawfully in New Zealand has a right of appeal on humanitarian grounds to the Immigration and Protection Tribunal, but this must be exercised within 42 days after the presence of that person becomes unlawful.5 There are only limited rights of appeal from the Tribunal to the High Court.6 Review proceedings to this Court must, likewise, be commenced within the timeframe prescribed by the Act.7 These provisions obviously reflect Parliament’s intention that immigration-based litigation is to be conducted expeditiously and in a streamlined manner. That intention is consistent with the notion that the status of a
person who is unlawfully in New Zealand should be determined as quickly as possible. If he or she is unable to remain in New Zealand lawfully, deportation should occur as quickly as possible. A person should not be left in limbo whilst his or her immigration status is determined.
[13] Deportation procedures are provided for in Part 6 of the Act, the purpose of which is described in s 153 as follows:
153 Purpose of Part
1 S 14.
2 S 9(1).
3 S 18(1).
4 S 154(1).
5 S 154(2) and (4).
6 S 245.7 28 days: s 247(1).
(1) The purpose of this Part is to support the integrity of New Zealand's immigration system and the security of New Zealand by providing for the deportation of certain persons from New Zealand.
(2) To this end, this Part—
(a) specifies when a person is liable for deportation; and
(b) specifies how that liability must be communicated to the person; and
(c) sets out the consequences of the liability for the person; and
(d) specifies the only situations in which an appeal right exists in respect of that liability; and
(e) provides for the person's deportation to be executed without the need for further inquiries if no appeal is made or an appeal is unsuccessful.
[14] A deportation order may be served on a person who is unlawfully in New Zealand by an immigration officer or a constable.8 Once served, the deportation order can be executed by taking the person subject to the order into custody, and ensuring that he or she is placed on board a craft and detained there pending removal from New Zealand.9
[15] Section 177 of the Act provides immigration officers with a very broad discretion to cancel a deportation order once it has been served. There is no right of appeal from a decision under s 177. The section provides as follows:
177 Deportation order may be cancelled
(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.
(2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.
(3) If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—
8 S 175(1).
9 S 178.
(a) may make a decision as he or she thinks fit; and
(b) in doing so, is not under any obligation, whether by implication or otherwise,—
(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or
(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.
(4) Whether or not an immigration officer considers cancelling a deportation order,—
(a) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and
(b) section 23 of the Official Information Act 1982 does not apply in respect of the decision.
(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—
(a) a description of the international obligations; and
(b) the facts about the person's personal circumstances.
[16] Section 11 of the Act defines ―absolute discretion‖ as follows:
11 Meaning of absolute discretion of the decision maker
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; and
(ii) section 27 of this Act and section 23 of the Official Information
Act 1982 do not apply in respect of the purported application.
[17] Section 177 was enacted in its current form as a direct legislative response to the judgments of the Supreme Court in Ye v Minister of Immigration10 and Huang v Minister of Immigration,11 both which were delivered on 20 July 2009. Those cases were concerned with the predecessor to s 177, s 58 of the 1987 Act. Section 58 gave immigration officers the power to cancel removal orders issued under the 1987 Act,
and provided as follows:12
58 Cancellation of removal order
(1) An immigration officer who has been designated by the chief executive for the purpose of making removal orders under section 54 may, at any time while the person named in the removal order is still in New Zealand, cancel a removal order that has been served by endorsing a copy of the order accordingly, and personally serving that copy on the person named in the order.
(2) The cancellation endorsement serves as a direction to any person who may be detaining the person in custody in reliance on the order to release the person from custody immediately.
(3) An immigration officer who cancels a removal order must ensure that any person who is detaining the person named in the order in reliance on this Part releases the person immediately.
(4) In the case of a person who has already been removed from or has left New Zealand, an immigration officer of the type referred to in subsection (1) may cancel a removal order by sending the person named in it a notice to that effect in the prescribed form.
(5) Nothing in this section gives any person a right to apply to an immigration officer for the cancellation of a removal order, and where any person purports to so apply –
(a) The immigration officer is under no obligation to consider the application; and
(b) Whether the application is considered or not, -
10 Ye v Minister of Immigration [2009] SCNZ 76.
11 Huang v Minister of Immigration [2009] SCNZ 77.
12 Transitional provisions in the 2009 Act replaced s 58 with a provision identical to s 177. This took effect during the period between 17 November 2009 and the date upon which the balance of the new Act came into force.
(i) The immigration officer is under no obligation to give reasons for any decision relating to the application, other than the reason that this subsection applies; and
(ii) Section 23 of the Official Information Act 1982 does not apply in respect of the application.
[18] The Supreme Court in Ye held that, in determining whether to cancel a removal order under s 58, an immigration officer was under an obligation to consider whether the person subject to the removal order might be entitled to remain in New Zealand under the humanitarian grounds specified in s 47(3) of the 1987 Act.13
Where such grounds were present, the immigration officer was required to exercise the power to cancel the order.14
[19] In Parmanadan v Minister of Immigration15 the Court of Appeal noted that the transitional amendments to s 58 were clearly intended to reduce the scope for challenge to s 58 decisions‖.16 It also observed that the amendments were ―a sharp legislative rejection of the necessity to apply the s 47(3) test at the s 58 stage of the process.‖17
[20] The wording used in s 177(3)(b)(i) now makes it clear that an immigration officer who is considering whether to cancel a deportation order under s 177 is under no obligation to have regard to the humanitarian grounds now contained in s 207 of the present Act. That issue is of no relevance to the present case, because Mr Babulal does not contend that Mr Chase ought to have had regard to the humanitarian grounds contained in s 207 of the Act. His concern relates instead to an alleged failure to have genuine regard to a mandatory consideration under s 177, namely information about his personal circumstances that was relevant to New Zealand’s international obligations.
[21] This aspect of the 2009 Act, enshrined in s 177(2) and (3), represents
Parliament’s endeavour to restrict the scope of judicial review of decisions made
under s 177 whilst at the same time ensuring that regard is paid to New Zealand’s
13 At [6] and [23].
14 At [29].
15 Parmanadan v Minister of Immigration [2010] NZCA 136.
16 At [7].17 Ibid.
international obligations, including those relating to children. These are to be found in the United Nations Convention on the Rights of the Child (―UNCROC‖),18 the International Covenant on Economic, Social and Cultural Rights (―IECSCR‖)19 and the International Covenant of Civil and Political Rights (―ICCPR‖)20.
[22] Section 177 removes any requirement to apply the test under s 207 in relation to humanitarian grounds generally, but preserves the need to have regard to New Zealand’s international obligations in relation to children. It does this by requiring an immigration officer to consider cancelling a deportation order if the person subject to the order provides information about his or her personal
circumstances that are relevant to New Zealand’s international obligations.21 In
addition, the immigration officer must have regard to those obligations when considering whether to cancel the order.22
Was the decision not to cancel the deportation order unreasonable?
Intensity of review
[23] It is trite law that judicial review is concerned with the validity of the decision-making process. Generally speaking, it is not appropriate for a court undertaking judicial review to scrutinise the substantive merits or correctness of the decision under challenge. The intensity with which the court should subject the decision to scrutiny may, however, vary according to context and the nature of the rights affected by the decision. Professor Taggart has suggested that the spectrum (or ―rainbow‖, as he prefers to call it) of intensity has at one end a review of the correctness of fact and law and, at the other, matters involving ―non-judiciability in the narrow sense of something that the Court cannot (rather than will not) resolve by
application of legal norms‖.23
18 Articles 3, 7, 8, 12, 16, 24, 27, 28.
19 Articles 10, 11 and 12.
20 Articles 17, 23 and 24.21 S 177(2)
22 S 177(3).23 M Taggart ―Administrative Law‖ [2006] NZ Law Review 75 at 82. See also the helpful discussion of this topic in D Knight ―Mapping the Rainbow of Review: Recognising variable intensity.‖ [2010] NZ Law Review 393.
[24] As regards the intensity of review, counsel for Mr Babulal submits that the Court should take a ―hard look‖ at the decision declining to cancel the deportation order.24 He submits that this is appropriate given the fact that the decision will inevitably have a severe impact on the lives of, and opportunities available to, Mr Babulal’s daughters. He draws support for this proposition from the judgment of Glazebrook J in the Court of Appeal decision in Ye.25 She considered that, because decisions in this context involve the human rights of children, the Court should subject them to ―anxious scrutiny‖.26 Counsel for Mr Babulal also relies upon the following comments of Wild J in Wolf v Minister of Immigration:27
I consider the time has come to state – or really to clarify – that the tests as laid down in GCHQ and Woolworths respectively are not, or should no longer be, the invariable or universal tests of ―unreasonableness‖ applied in New Zealand public law. Whether a reviewing Court considers a decision reasonable and therefore lawful, or unreasonable and therefore unlawful and invalid, depends on the nature of the decision: upon who made it; by what process; what the decision involves (i.e. its subject matter and the level of policy content in it) and the importance of the decision to those affected by it, in terms of its potential impact upon, or consequences for, them. This is a rather long-winded way of saying, as Lord Steyn so succinctly did in Daly:
―In administrative law context is everything.‖
[25] It is fair to say, however, that subsequent judgments at both first instance28 and on appeal29 have not supported a liberal approach to this issue. Asher J explained the reason for this in Huang v Minister of Immigration30 as follows:
It must be recognised that immigration policy is dictated by Parliament and the Executive. The task of Courts in a case such as this is not to interfere with such policy. Rather, it is to ensure, in accordance with established Wednesbury principles, that there has been procedural fairness, a proper consideration of relevant matters and exclusion of irrelevant matters, and no manifestly unreasonable decision.
24 Professor Taggart discusses (and rejects the need for) the emergence from American jurisprudence
of the ―hard look‖ intensity of review at 85 – 87 (above n 23).
25 Ye v Minister of Immigration [2009] 2 NZLR 596 (CA).
26 At [303] - [305].
27 Wolf v Minister of Immigration (2004) 7 HRNZ 469 (HC).28 See eg Vilceanu v Attorney-General HC Auckland CIV-2010-404-4358, 11 May 2011 at [23]; Yu v Chief Executive, Department of Labour HC Auckland CIV-2011-404-4300, 21 July 2011 at [4]; R v Chief Executive, Department of Labour HC Wellington CIV-2008-485-123, 10 June 2008 at [29].
29 See eg Huang v Minister of Immigration [2009] 2 NZLR 700 (CA) at [62]—[67].
30 Huang v Minister of Immigration [2007] NZAR 163 (HC) at [49].
[26] The reference in the above passage to Wednesbury principles relates to the principles established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation31. In that case Lord Greene MR said:32
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ―unreasonable‖ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ―unreasonably‖. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation (I) gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
[27] A decision made under s 177 does not readily lend itself to the so-called
―hard look‖ intensity of review for several reasons. First, the wording of the section makes it clear that the discretion is cast in the widest possible terms. The person subject to a deportation order has no right to apply for cancellation of the order.33
The most that he or she can do is provide information about his or her personal circumstances that may be relevant to New Zealand’s international obligations. Depending on the nature of the information, that may trigger the requirement to consider cancelling the deportation order.34 Otherwise, the cancellation of a deportation order is a matter within the absolute discretion of the immigration officer.35 That is not a promising start for a person seeking judicial review of a decision made under the section.
[28] If the immigration officer elects to consider cancelling an order, he or she is
required to have regard to New Zealand’s international obligations.36 Otherwise,
31 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229.
32 At 229.
33 S 177(2).
34 Ibid.
35 S 177(1).36 S 177(3).
however, the officer may make the decision ―as he or she thinks fit‖,37 and is under no obligation to apply any test.38 In particular, the officer is under no obligation to apply the test set out in s 207 in relation to humanitarian grounds.39 Nor is the officer required to inquire into the circumstances of the person subject to the order,
or to make any further inquiry into any information that the person may have provided.40 Furthermore, having made the decision, the immigration officer has no obligation to give reasons for it.41 The only exception to this is where the officer has had regard to New Zealand’s international obligations. Where that has occurred, the officer must record a description of those obligations and the facts about the personal
circumstances of the person subject to the order.42
[29] The wording of the section leads me to conclude that Parliament clearly intended the scope for judicial review of decisions made under s 177 to be extremely limited.43 In keeping with its commitment to observe its international obligations, however, Parliament did not word s 177 so as to completely exclude judicial review of all decisions made under s 177.
[30] Whether Parliament is capable of completely excluding judicial review at all is the question lying at the core of the jurisprudence dealing with privative legislative clauses. A privative clause is one which attempts to fetter or oust the Court’s jurisdiction to judicially review matters of administrative conduct or omission. 44 In Attorney-General v Zaoui,45 the Court of Appeal considered s 19(9) of the 1987 Act,
which provided that:
Except on the ground of lack of jurisdiction, no proceeding, report or finding of the Inspector-General shall be challenged, reviewed, quashed or called into question in any court.
37 S 177(3)(a).
38 S 177(3)(b)
39 S 177(3)(b)(i).40 S 177(3)(b)(ii).
41 S 177(4)(a).
42 S 177(5).43 As confirmed by the Court of Appeal in Parmanadan v Minister of Immigration, above n 15.
44 The leading case in this area is Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC
147 (HL), applied by the New Zealand Court of Appeal in Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA). These authorities establish the proposition that a misconstruction of a statutory provision or other legal error is reviewable, notwithstanding legislative attempts to oust judicial jurisdiction.
45 Attorney-General v Zaoui [2005] 1 NZLR 690 (CA) at [101].
[31] Anderson P dealt with the Crown’s submissions that this privative clause ousted that Court’s judicial review jurisdiction as follows:
The approach to privative clauses is now well established in New Zealand. Subject to the statutory context, material errors of law are generally considered to be jurisdictional errors. The errors asserted here are material errors of law. The failure to provide a summary is an allegation of a denial of natural justice. The failure to have regard to international human rights instruments is an allegation that the former Inspector-General had fundamentally misconceived his task. I agree with Williams J that there is nothing in the statutory context that militates against the conclusion that review was intended to be available with regard to such errors, despite s 19(9) of the Act.
[32] It is not accepted on the present facts to determine this issue. However, the emergent judicial approach, involving a reading down of privative language, supports my conclusion that Parliament must know that failure to have regard to a relevant consideration in this context will constitute a reviewable error of law. That will particularly be so where there has been a failure to have regard to a mandatory statutory consideration. In particular, judicial review will continue to be available where there is a challenge to a decision based on an alleged failure by an immigration officer to have regard to New Zealand’s international obligations when reaching his or her decision.
[33] Section 177(5) is of assistance in determining the intensity of review in this context. It is only engaged where an immigration officer has had regard to New Zealand’s international obligations in determining whether to cancel a deportation order. In that situation s 177(5) imposes requirements on the immigration officer to record a description of the international obligations to which he or she has had regard, and to record the facts about the personal circumstances of the person subject to the deportation order. Even where the section is engaged, however, the immigration officer remains free of any obligation to give reasons for his or her decision. The absence of any requirement to give reasons tells against an expectation by Parliament that the decision will be subject to close scrutiny by the courts, because a lack of reasons will virtually inevitably compromise such an undertaking. As a result, even if the court wished to take a ―hard‖ or ―anxious‖ look at such a decision, it would struggle do so.
[34] The decision issued by Mr Chase in the present case demonstrates that this is so. The decision reads:
The facts of Mr Babulal’s personal circumstances are recorded [in] the
following interviews:
1. Record of personal circumstances by Jenny Tims dated 30/11/10
2. Record of personal circumstances by Terri Bentley dated 13/12/10
3.Note book entry taken with Tracie Brent Jones dated 10/01/11 (Partner)
4. Statement taken with Mrs Maria Naisara dated 15/02/11 (ex Partner)
5. Statement taken with Tahitia Babulal dated 22/02/11 (Respondents
Daughter)
6. Statement taken with Alani Babulal dated 22/02/11 (Respondents
Daughter)
7. Statement taken with Madhuka Kumran dated 22/02/11 (Respondents
Mother)
8. Further statement taken with Mr Babulal dated 22/02/11
I have regard to the following international obligations:
Art 3 UNCROC Best interest of the child shall be primary consideration.
Art 7 UNCROC Right to know and be cared for by their parents.
Art 12 UNCROC Rights for child to express those views in all matters affecting them.
Art 16 UNCROC Subject to arbitrary or unlawful interference with
their family.
Art 24 UNCROC The rights to obtain the highest attainable standard of physical and mental health care.
Art 27 UNCROC Right to adequate standard of living for their physical, mental, spiritual, moral, social and social development.
Art 28 UNCROC Right to education.
Art 17 ICCPR The right not to be subject to arbitrary or unlawful interference with the family.
Art 23 ICCPR The family is a fundamental group unit of society
and is entitled to protection by society and the state. Art 24 ICCPR The right of every child to measures of protection by
the family, society and State required by their status
as minors.
Art 10 ICESCR The widest possible protection and assistance should be given to the family which is the natural
fundamental group unit of society.
Art 11 ICESCR The right to adequate standard of living.
Art 12 ICESCR The right to the highest attainable standard of physical and mental health care.
I am not obliged to provide reasons for my decision by virtue of Section
177(4) of the Immigration Act 2009 and I consider that deportation of Mr
Babulal should proceed.
[35] Parliament clearly intended ss 177(4) and (5) to restrict the amount of information that an immigration officer is required to record when making a decision under s 177. That in turn necessarily limits the information available to any court tasked with judicially reviewing the decision. As the decision in the present case demonstrates, the court will have no information regarding the reasoning process the immigration officer has employed when balancing the relevant competing factors that need to be taken into account in making any decision that has regard to New Zealand’s international obligations.
[36] Parliament must be taken to have intended that consequence. It chose to adopt that route, in my view, in order to restrict the level of judicial scrutiny to which decisions under s 177 may be subject. This suggests that, where an immigration officer makes a decision that requires him or her to have regard to New Zealand’s international obligations, Parliament intended the record of the decision to contain sufficient information to allow the decision to be judicially reviewed within a very narrow compass. It accepted that the court must have sufficient information to be able to determine whether the immigration officer who made the decision took into account the international obligations relevant to the particular case. The requirement to record the facts relating to the personal circumstances of the person subject to the deportation order also provides the court with the ability to determine whether the ultimate decision was reasonable in a Wednesbury sense, but no more than that.
[37] The application of Wednesbury principles in an immigration context is nothing new. The Court of Appeal took the same approach in Huang v Minister of Immigration46 where, albeit in a slightly different context under the 1987 Act, it said:
[67] As to intensity of review, we therefore propose to follow the approach adopted in Puli’uvea. The Court should ensure that the best interests of an affected child were genuinely taken into account as a primary consideration but, beyond that, how conflicting considerations are weighed is for the decision maker and not the Court unless unreasonableness considerations can be successfully invoked.
[38] In Ye the Supreme Court did not suggest that the courts should apply a different approach to intensity of review in this context. Instead, it determined the
case according to what it described at [11] as ―relatively straightforward principles of judicial review‖. The decision in Ye ultimately turned on the Minister’s failure to have regard to a relevant consideration, namely the principles contained in s 47(3) of the 1987 Act. The Court also said:
[25] It is appropriate, in the light of New Zealand’s obligations under art
3(1) [of the UNCROC], to interpret the relevant provisions of the
Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes. The words ―a primary consideration‖ in art 3(1) do not denote how this consideration ranks against any other relevant consideration such as the public interest. The child’s interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test.
[39] I do not consider that the changes introduced by the 2009 Act materially alter the approach an immigration officer is required to adopt when considering whether to cancel a deportation order. Section 177(3) requires an immigration officer to
―have regard to‖ New Zealand’s international obligations when making such a decision. He or she is not required to place those obligations to the forefront in terms of weight or to make them paramount. Similarly, Article 3(1) of the UNCROC does not make the interests of children in this context paramount.47 Rather, it makes them a ―primary consideration‖. As the Supreme Court observed in the passage cited above, the weight to be given to a child’s interests remains a matter of assessment against all the other relevant circumstances of the case.
[40] In Yu v Chief Executive of the Department of Labour48 Asher J dealt with an application for interim relief where the applicant had applied for judicial review of an immigration officer’s decision declining to cancel a deportation order under the
2009 Act. He described the scope of review as follows:
[10] Mr Yu applies for review under s 4 of the Judicature Amendment Act
1972. The grounds are well understood. The Court will intervene if there has been material procedural unfairness, or if the decision has been made in
excess of the authority’s statutory power. It will intervene when an error of
law is shown, or the authority has taken irrelevant matters into account, or failed to consider relevant matters, or the decision has the requisite degree of
unreasonableness
[41] I propose to adopt the same approach, and to apply the traditional Wednesbury standard of unreasonableness in the present context. This requires me to determine whether Mr Chase’s decision to exercise his discretion against Mr Balubal was not one that a reasonable immigration officer could arrive at having correctly applied the law to the factual material that was available at the time of the decision.
[42] In order to determine that issue it is necessary to identify the factual material available to Mr Chase when he made his decision.
The factual material available to Mr Chase when he made his decision
[43] The factual material available to Mr Chase came from four sources. First, he had notes obtained when immigration officers interviewed Mr Chase on
30 November 2010, 13 December 2010, and 22 February 2011. The first two interviews led to the interviewing officers deciding not to cancel the deportation order. Internal reviews subsequently identified shortcomings in the decision-making process, and the decisions were administratively set aside. For that reason Mr Chase interviewed Mr Babulal again on 22 February 2011, and reached his own decision not to cancel the deportation order.
[44] Secondly, on 10 December 2010 counsel for Mr Babulal provided the immigration authorities with extensive factual and legal submissions regarding the consequences of reaching a decision to deport Mr Babulal. Thirdly, Mr Chase interviewed several other people as well as Mr Babulal. On 15 February 2011 he spoke (presumably by telephone) with the mother of Mr Babulal’s daughters in Fiji. On 22 February 2011 he spoke not only to Mr Babulal but also to his two daughters and his mother. He took written notes of each of those interviews.
[45] Finally, Mr Chase held the file that the immigration authorities kept in relation to Mr Babulal. This recorded his dealings with them over the last 21 years.
Material supporting the exercise of the discretion in favour of Mr Babulal
[46] Mr Babulal frankly concedes that his own circumstances could not justify cancellation of the deportation order. The application for review relies instead on the various effects that deportation will produce for his two daughters. These were fully explained in the submissions that counsel for Mr Babulal filed with the immigration authorities on 10 December 2010. They were also confirmed to a large extent by the information obtained during the interviews that Mr Chase and others conducted.
[47] The effects of deportation for Mr Babulal’s daughters can be summarised as
follows:
(a) Mr Babulal’s daughters will be deported to a ―third world country
currently ruled by a military dictatorship‖.
(b)The girls have no legal right to enter Fiji and will have no right to remain there.
(c) His daughters will not be entitled to receive free education from the state as would be the case if they remained in New Zealand.
(d)His daughters will be subject to a health care system that is greatly inferior to that available in New Zealand.
(e) Mr Babulal and his daughters have a very strong family network in
New Zealand, but no corresponding family network in Fiji.
(f) It will be difficult for Mr Babulal to find employment in Fiji so as to be able to support his family.
(g)Mr Babulal can provide a good standard of accommodation for his family in New Zealand, but has no accommodation available to him in Fiji.
[48] Much of this material was clearly relevant to New Zealand’s international obligations, because it related directly to the effects that Mr Babulal’s deportation would have on his daughters. It was relevant to the numerous international obligations that Mr Chase identified in his decision.
[49] I also accept that in large part this material supported the exercise of the discretion under s 177 in favour of cancelling the deportation order so as to permit Mr Babulal and his daughters to remain in New Zealand. I say ―in large part‖ because Mr Chase had established before he interviewed Mr Babulal that, if Mr Babulal was deported, the two girls would be able to travel to Fiji with him under visitors’ permits. Once there, they could apply for residence in Fiji so that they could remain there with their father. Whilst it may be correct, strictly speaking, to say that Mr Babulal’s daughters had no ―right‖ to travel to or remain in Fiji, nevertheless there is no reason to believe that they will not be able to obtain the necessary permits to enable them to do so.
[50] Plainly, however, the interests of Mr Babulal’s daughters would be advanced in numerous areas if they were to remain here. In particular, it is likely that they will have more educational and career opportunities if they are permitted to remain in this country. Their standard of living might also be considerably higher. To that extent there was obviously material available to Mr Chase suggesting that New Zealand’s international obligations would be satisfied if the discretion under s 177 was to be exercised in favour of Mr Babulal. That was, however, just one factor, albeit a primary one, to be weighed in the mix.
Material supporting the exercise of the discretion against Mr Babulal
[51] There was also, however, a significant body of factual material available to Mr Chase that went the other way. One of the most significant matters that he was also entitled to take into account was the competing consideration of whether it was in the national interest to permit Mr Babulal to remain in New Zealand, given the manner in which he has flouted New Zealand’s immigration and criminal laws in the past.
Breach of immigration and criminal laws
[52] Mr Babulal first arrived in New Zealand in 1989. At that time he was
17 years of age, and held a student permit. In 1994 he was convicted on several dishonesty charges and received a sentence of 200 hours’ community work. He returned to Fiji on 31 August 1994.
[53] On 26 July 2000 Mr Babulal returned to New Zealand holding a visitor’s permit. This permitted him to remain in the country until 26 April 2001. He did not leave New Zealand when his permit expired, and instead applied on 21 May 2001 for a permit under s 35A of the Immigration Act 1987. In his application he said that he had married a New Zealand resident on 26 April 2001, the day his visitor’s permit expired. After an immigration officer interviewed Mr Babulal and his wife on 6 June
2001, the application was declined. Rather than return to Fiji, Mr Babulal elected to remain in New Zealand unlawfully for the next four years. His daughters Alani and Tahitia were born on 14 February 2003 and 30 September 2004 respectively whilst he remained unlawfully in this country during that period.
[54] On 20 April 2005 the immigration authorities located Mr Babulal and served a removal order upon him. He was removed from New Zealand to Fiji on 22 May
2005. His last minute request for the Associate Minister of Immigration to cancel the removal order was unsuccessful. As a consequence of his removal from New Zealand on this occasion Mr Babulal was not permitted to re-enter New Zealand for a period of five years.
[55] Two months later, on 29 June 2005, Mr Babulal applied for a work permit but his application was returned to him a short time later, presumably because he was not permitted to return to New Zealand at that time. Ten days later, on 11 July 2005, Mr Babulal applied for a visa to return to New Zealand. This application was declined on 14 August 2005.
[56] On or about 22 September 2005 Mr Babulal used a false identity to obtain a business visa permitting him to enter New Zealand for business purposes. He arrived in New Zealand under this false identity on 26 October 2005.
[57] On 19 December 2005 the immigration authorities charged Mr Babulal with breaching s 142 of the 1987 Act by producing a visitor’s visa that he knew had been obtained fraudulently. He pleaded not guilty to that charge, and it was scheduled to be the subject of a defended hearing on 23 August 2006. A few days before the defended hearing Mr Babulal breached his bail conditions by leaving the country and returning to Fiji.
[58] On 16 November 2007 Mr Babulal used a second false identity to obtain another business visa to enter to New Zealand. He arrived in New Zealand under this identity on 1 December 2007.
[59] The immigration authorities executed a search warrant at Mr Babulal’s residence on 4 June 2008. There they found a New Zealand passport bearing Mr Babulal’s photograph. The passport had been issued, however, in the name of one Wiremu Totahi Moka. Mr Babulal was charged with offences under the 1987 Act and the Passports Act 1992 as a result. In July 2010 he pleaded guilty to those charges, and on 17 November 2010 he was sentenced to ten months’ home detention. Twelve days later, on 29 November 2010, Mr Babulal was served with the deportation order.
[60] In summary, between 26 April 2001 and 14 September 2011, Mr Babulal has resided in New Zealand unlawfully for a total period of eight years and eight months. His unlawful presence in New Zealand has been aggravated by the fact that, on two separate occasions, he used a false identity to obtain business visas enabling him to enter New Zealand illegally, and he also arranged for a false passport to be manufactured for his use whilst he was unlawfully in New Zealand. Those factors obviously suggest that, as a matter of national policy, it would send all the wrong messages now to permit Mr Babulal to take advantage of the fact that his two daughters were born in this country whilst he was here unlawfully. This was clearly an important consideration, and one that needed to be given considerable weight.
Familial support
[61] It is common ground that, if Mr Babulal’s daughters return to Fiji with him, they will be in his care and the family unit will therefore be preserved intact. In addition, they can, if they wish to, have contact with their mother, who remains in Fiji. Mr Babulal’s father, and at least one of his sisters, also reside in Fiji. In addition, they will be reunited with another half brother, Jean, who lives in Fiji.
[62] There is currently a live issue as to whether Mr Babulal has, as he claims, fathered another child in recent months to a person with whom he has been involved in a relationship in New Zealand. The defendant believes that Mr Babulal has not been telling the truth about this issue, because it cannot find any birth records to support Mr Babulal’s version of events. The person who is said to be the mother of the child also appears to view her relationship with Mr Babulal as involving significantly less commitment by both parties than he would have the defendant believe. I do not consider this issue to be of any real moment in the present context, and I do not propose to refer to it further.
Connection with Fiji
[63] If Mr Babulal’s daughters return to Fiji this will not be the first occasion on which they have spent time there. They lived there with Mr Babulal after he was removed from New Zealand on 22 May 2005, and again whilst he was living in Fiji between 12 August 2006 and 1 December 2007. They can therefore be taken to be reasonably familiar with living conditions in Fiji.
Conclusion
[64] In the present case relevant factors went both ways. Although there was material to suggest that New Zealand would provide an environment that is more conducive to the overall wellbeing of Mr Babulal’s daughters, there was also a significant body of evidence to suggest that the national interest would be served by him being deported from New Zealand.
[65] The weight to be given to those respective factors was a matter entirely for Mr Chase. He was entitled, as he obviously did, to give the factors militating against the exercise of the discretion in Mr Babulal’s favour more weight than those supporting the opposite conclusion. For these reasons I do not accept that his decision to refuse to cancel the deportation order was unreasonable in a Wednesbury sense. It was a decision that was open to a reasonable immigration officer based on the factual and legal material that was available to him when he made his decision.
Did the immigration officer fail to have regard to relevant considerations?
[66] This submission is based upon an assertion that Mr Chase failed to pay genuine regard to factors supporting the exercise of the discretion under s 177 in favour of Mr Babulal. In his written submissions counsel for Mr Babulal submitted that Mr Chase had merely paid ―lip service‖ to those factors.
[67] This submission needs to be measured against the steps that Mr Chase took before he issued his decision. He was not bound to make any further inquiries at all before he made his decision. Had he wished to do so, he would have been perfectly entitled to reach his decision solely on the basis of the evidence that was already on the file. By that stage the file already contained the submissions and supporting material that Mr Babulal’s counsel had filed on 10 December 2010. There were also the notes taken when immigration officers had interviewed Mr Babulal on 30
November and 13 December 2010.
[68] Mr Chase did not elect to make his decision based solely upon that material. Instead, he chose to re-interview Mr Babulal and to ask him different questions (albeit again for the most part about the effects that deportation would have for Mr Babulal’s family). In addition, he interviewed Mr Babulal’s mother, his two daughters and their mother. The focus of those interviews was also on the consequences that deportation would produce for Mr Babulal’s daughters.
[69] Those acts are not, in my view, the acts of a person merely going through the motions. Rather, they are the acts of a person who has a genuine interest in reaching
his own conclusion, aided by speaking to those persons directly involved, as to the
likely consequences of deportation so far as Mr Babulal’s children are concerned.
[70] It defies belief and common sense that, having gone to the considerable trouble of interviewing these people, Mr Chase would effectively ignore, and pay no regard to, what they had told him. In reality, this submission was to the effect that, on the basis of the material available, Mr Chase was bound to conclude that the deportation order should be cancelled. It is another way of submitting that the decision was unreasonable in a Wednesbury sense.
[71] I do not accept that Mr Chase failed to have regard to any relevant considerations when he made his decision. This ground fails as a result.
Did the immigration officer fail to record the facts of Mr Babulal’s personal
circumstances as required by s 177(5)(b)?
[72] Mr Chase did not attempt to set out, in a narrative form, the substantive facts upon which he based his decision. Rather, he listed the documents that contained those facts. These were the notes taken during the interviews conducted both by Mr Chase and other immigration officers.
[73] Counsel for Mr Babulal submits that this is not sufficient to comply with the mandatory requirement in s 177(5)(b) that, to the extent that an immigration officer has had regard to New Zealand’s international obligations, he or she must record the facts about the personal circumstances of the person who is subject to the deportation order. He argues that, where s 177(5)(b) applies, the immigration officer must set the facts out in a narrative form.
[74] I do not accept this submission, principally because it flies in the face of the language used throughout s 177. Taken as a whole, the section imposes minimal formal requirements upon immigration officers who exercise the discretion vested in them under the section. If the submission is correct, immigration officers would potentially become subject to an onerous obligation to record in narrative form every
relevant fact about the person’s personal circumstances. If they failed to do so, they
would commit a reviewable error.
[75] The section contemplates the immigration officer recording the material facts upon which his or her decision is based. That can be done either by recording the facts in narrative form or by listing and/or describing the documents in which the facts are to be found. In the present case Mr Chase adopted the latter technique.
[76] If the immigration officer chooses to adopt this technique, however, he or she should ensure that all relevant documents should be included within the list or description. Failure to do so may lead a reviewing court to conclude that the immigration officer has not had regard to any documents that are not included in the list or description. This is an issue in the present case because, although Mr Chase deposes that he had regard to the material provided by Mr Babulal’s counsel on
10 December 2011, that document is not included in the list of documents in the
body of Mr Chases’s decision.
[77] In the end, however, the issue of whether Mr Chase had regard to that material is a question of fact. The material was clearly on the file that Mr Chase received, because one of the other immigration officers who made an earlier decision under s 177 expressly referred to it in her decision. It is also a bulky document, and could scarcely be missed. Finally, I have no doubt that Mr Chase would have been well aware when he made his decision that counsel for Mr Babulal had been involved throughout the interview process, and could well file judicial review proceedings in the event that Mr Chase exercised his discretion against Mr Babulal. For that reason it is inconceivable that Mr Chase would have made his decision without reading and taking into account the material that Mr Babulal’s counsel had provided in December 2010.
[78] This issue is placed beyond doubt, in my view, by questions that Mr Chase asked Mr Babulal on 22 February 2011 regarding the immigration status of his daughters in Fiji. These were as follows:
Q. You stated that your two children (Alani & Tahitia) were deported from Fiji. Can you please elaborate on this?
A. Yip they overstayed so they had to leave Fiji. That is why I had to call my Mother to pick them up and bring them here.
Q. What rules do you know about regarding NZ born children being born to Fijian Citizen parents wishing to reside in Fiji?
A. What I understand is that I have to apply for a permit for them. It
wasn’t easy the first time.
Q. Did you know that under the Citizenship of Fiji Decree 2009 your two NZ born children can gain Fijian residence and also have dual citizen?
A. No I didn’t know that.
[79] I consider that Mr Chase was probably alerted to this issue by the following submission in the material that counsel for Mr Babulal provided to the immigration authorities on 10 December 2011:
The two girls cannot return to Fiji having been the subject of a deportation order there. Annexed as ―D‖ is proof of this. Under New Zealand law, s 15(1)(e) and (f) prohibits the re-entry of anyone who was been excluded from New Zealand or who has been deported from another country. Though I do not portend to be an expert on Fijian immigration law, it is fair to draw the inference that a similar regime would exist there.
[80] For these reasons I accept Mr Chase’s evidence that, although he did not refer to the material from Mr Babulal’s counsel in the body of his decision, nevertheless he had regard to it when reaching his decision. This ground, too, fails as a result.
Result
[81] None of the grounds advanced in support of the application has been made out. The application for judicial review is accordingly dismissed.
Costs
[82] If counsel cannot reach agreement regarding costs they may file memoranda
(not to exceed five pages in length) so that I can deal with that issue on the papers.
Lang J
Solicitors:
Amicus Lawyers, Auckland
Meredith Connell, Auckland
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