Cao v Ministry of Business, Innovation and Employment
[2014] NZHC 1551
•4 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-000487 [2014] NZHC 1551
BETWEEN SHIZHAO CAO
Plaintiff/Applicant
AND
THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant/Respondent
Hearing: 4 June 2014 Counsel:
FC Deliu for Applicant
A Longdill for RespondentJudgment:
4 July 2014
JUDGMENT OF FOGARTY J
This judgment was delivered by me on 4 July 2014 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: FC Deliu, Auckland
Meredith Connell, Auckland
SHIZHAO CAO v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 1551 [4 July 2014]
Introduction
[1] This is an interlocutory dispute over whether or not there should be discovery against the defendant of the reasons for refusal of a visa. There is no dispute that there is a document containing the reasons. The dispute is whether or not the Crown is obliged to discover the document, having regard to the scheme, purpose and content of s 61 of the Immigration Act 2009 which provides:
61 Grant of visa in special case
(1) The Minister may at any time, of the Minister’s own volition, grant a
visa of any type to a person who—
(a) is unlawfully in New Zealand; and
(b) is not a person in respect of whom a deportation order is in force.
(2) A decision to grant a visa under subsection (1) is in the Minister’s
absolute discretion. (Emphasis added.)
[2] There is a decision, as distinct from the reasons for the decision. The relevant passages being:
Thank you for your request for a visa under s 61 of the Immigration Act
2009. We received your request on 21 January 2014.
Our decision on your request
We have decided to refuse your request.
This decision was made at the absolute discretion of the decisionmaker under section 11 of the Immigration Act 2009. As section 11 applies, reasons do not have to be supplied for this decision.
[3] As to the decision being in the Minister’s absolute discretion, s 11 provides:
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.
[4] Section 61 of the 2009 Act has a predecessor which is s 35A of the Immigration Act 1987. Like s 61 and s 11, the predecessor also deploys the concept of “absolute discretion”. As may be noticed, s 11(c)(ii) provides that s 27 of this Act and s 23 of the Official Information Act do not apply. Section 27 is a general provision obliging decisionmakers under the Immigration Act 2009 to provide reasons in writing which contain the information required under s 23 of the Official Information Act.
[5] So, in short, the effect of s 11(c) is to remove the usual power of a member of the public to obtain official information. The respondent argues that the statutory policy of not obliging the decisionmaker to provide reasons of excluding the power of the applicant to obtain reasons under the Immigration Act or under the Official Information Act, coupled with the concept of absolute discretion, should inform the High Court’s decision as to whether or not discovery is necessary. Ms Longdill submits that in most cases the Court should not find it necessary to call for the reasons.
[6] Ms Longdill was not prepared to go so far as “no” in every case, because she could not anticipate every possible type of pleading. In general terms, she contended the effect of the concept of absolute discretion is to limit judicial review to manifest irrationality. On the facts of this case there were ample reasons to explain the refusal under s 61 so it was not a case of manifest irrationality. Therefore, further discovery should be denied.
The circumstances of the applicant
[7] The applicant is an unlawful overstayer. He is married to a New Zealander and they have one child. He has a long history of endeavouring to obtain a visa. After his first refusal, he complained to the office of the Ombudsman, inter alia on the ground that the lack of reasoning meant his family circumstances may not have been taken into due consideration. It would appear that for a time the government department was not aware that he was married and had a child.
[8] On 18 November, the Ombudsman wrote to his then counsel, Ms Moira McFarlane. The Deputy Ombudsman explained that the Chief Ombudsman had been discussing with the Ministry the issue of recording reasons for decisions made on s 61 requests for visas. That the Ministry had now issued a new internal circular (IAC No 13/08), requiring in para 34:
[9] Immigration officers considering s section 61 requests should briefly record their reasons for the decisions on the file.
[10] The letter also records that in response to the Chief Ombudsman considering how to address complaints about s 61 decisions made before the new circular came into effect, the Ministry had suggested a fresh updated s 61 request to be made with all the information and evidence Mr Cao wishes to be considered in this respect. That the Ministry advised that a new specialist team of senior immigration officers had been established to process s 61 requests and all new requests will be processed under the new circular.
[11] As a result, Mr Cao made a fresh updated s 61 request. That is the request that was refused in the decision quoted above.
The statement of claim
[12] This is an application for judicial review. It pleads particulars of Wednesbury
unreasonableness and error of law as follows:
a. The decision-maker operated under an error of law whereby its
30 September 2013 Internal Administration Circular 13/08 asserted
at para 14 that there were “no immigration instructions that apply when considering a request” and/or at para 23 that “[t]here are no specific immigration instructions” when inter alia Operational Manual A23.5.5 was applicable.
b.The decision was in breach of the s 27 of the New Zealand Bill of Rights Act 1990 natural justice rights held by the plaintiff and/or a legitimate expectation created by the defendant by virtue of its
30 September 2013 Internal Administration Circular 13/08 that reasons would be given and/or recorded.
c.The decision was also or in the alternative a breach of a legitimate expectation created by the defendant by virtue of its settlement that the plaintiff’s s 61 application would be considered taking into account his full circumstances, including wife and child.
d.The decision was in violation of an implied term of the settlement, namely to act in good faith by genuinely and properly considering the plaintiff’s s 61 application.
e.The decision was Wednesbury unreasonable in that it failed to take into account relevant considerations, particularly the plaintiff’s full circumstances including his resident wife and citizen child, INZ’s Operational Manual, international human rights law, the substantial supporting evidence and/or his counsel’s extensive submissions.
f. The decision was additionally or alternatively Wednesbury unreasonable in that no reasonable decision-maker would act in this manner.
g. Section 11 of the Immigration Act 2009 and its application, insofar as it construed the law to mean that foreign overstayers had less (or no) due process rights than anybody else in New Zealand, is discriminatory and therefore unconstitutional.
h.The decision was irrational as there was no basis or documentation for the refusal to give reasons and so as such was an abuse of discretion.
WHEREFORE the plaintiff seeks:
i. Initially, discovery of the full (unedited) physical and electronic file numberd 12505570;
ii. A judgment in the plaintiff ’s favour;
iii. An order quashing the decision;
iv. A declaration that s 11 of the Immigration Act 2009 is struck down or otherwise applied consistent with s 6 of the New Zealand Bill of Rights Act 1990;
v. A direction that the defendant reconsider in a manner not inconsistent with the opinion of this Honourable Court;
vi. Costs; and/or
vii. Such other relief as seen fit.
[13] It will be noted that the pleadings do not record particulars of errors in the reasoning. This is because the plaintiff has never seen the reasons. The plaintiff argues that the reasons must be relevant to determination of the claim because the reasons will either support the Ministry or they will support the plaintiff. Therefore it is a relevant document, is admissible and should be discovered. There is no question of imposing any onerous obligation on the Ministry.
The respondent’s points in opposition to discovery of the reasons
[14] In summary, the respondent’s position is:
(a) Discovery is not available as of right in judicial review proceedings generally;
(b)In this context, Court ordered discovery would undermine the statutory regime, in which Parliament has decided:
(i)Section 61 decisions do not require any reasons to be given (as in provided to) the applicant.
(ii)There is no right on requesters to demand any reasons pursuant to s 27 of the Act and s 23 of the Official Information Act
1982.
(c) Discovery is not necessary to fairly dispose of the issues in this proceeding, given the very limited space for judicial review to operate in the light of the very broad discretion conferred on the decisionmaker.
[15] The respondent relies on the dictum of Hammond J in Wellington
International Airport v Commerce Commission1 where he said:
1 Wellington International Airport v Commerce Commission HC Wellington CP151/02, 25 July
Relevance alone is not a sufficient test for discovery. Discovery must also be necessary for fairly disposing of the proceedings.
And emphasises in its submissions this standard:
The ultimate question is whether the Court could fairly and effectively adjudicate on the issues in the proceedings without the additional material sought.
Statutory context
[16] Section 3(1) of the Immigration Act 2009 provides
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.
[17] The statute provides for appeals against many decisions and also excludes judicial review in some limited respects.
[18] Ms Longdill, for the respondent, accepted that judicial review of s 61 decisions has not been excluded. There is no privative clause strictly speaking. Ms Longdill emphasised that at the time someone applies for a visa under s 61, that person is unlawfully in New Zealand. Usually, as here, there has been a history of failed applications of one sort or another.
[19] Ms Longdill emphasised that by s 11(b), there is no obligation on the decisionmaker to consider any “purported” application that this is reinforced by s 11(c) which has been set out and briefly considered above. That, of itself, is no answer to discovery. For it a person in government elects to consider an application, the person must do so according to the law.
[20] It is the respondent’s submission that the statutory context means that the Court’s ability to review the decision is deliberately narrowed by Parliament. This is understandable, given the Crown’s historic and continuing control over movement of
people and goods across the border of the realm. Parliament has expressly
2002.
contemplated and dealt with the question as to whether reasons need to be disclosed and has provided that the applicant has no right to them. So, for the Court to order discovery would amount to ordering provision of reasons and would accordingly undermine Parliament’s intention reflected in ss 61 and 11.
The Court’s power to order discovery in judicial review
[21] Section 10 of the Judicature Amendment Act includes a power of the High Court to order discovery. The Judicature Amendment Act is a procedural reform of the inherent jurisdiction of the High Court to judicially review the exercise of government powers, in order to ensure that all government action is according to law. The inherent jurisdiction of the High Court is the jurisdiction transferred to New Zealand judges on appointment by letters of patent as it exists with the counterpart High Court judges in the United Kingdom which includes the power to issue the great prerogative writs of certiorari, mandamus, prohibition, and the standard remedies of injunction and declaration.
[22] Associated with these common law remedies is the power of the common law courts to require the parties to litigation to disclose relevant documents.
[23] There is a constitutional convention of mutual respect between the three branches of government: the legislature, the courts of inherent jurisdiction, the judges with inherent jurisdiction (High Court, Court of Appeal and Supreme Court); and Ministers of the Crown (executive government).
[24] From time to time the legislature does pass statutes further empowering the judiciary. But I am not aware of any statute ever passed with the intent of disempowering any aspect of the inherent jurisdiction of the High Court judges who sit in the High Court, Court of Appeal and Supreme Court. Accordingly, it is not a legitimate argument to say that because the Immigration Act 2009 does not permit citizens to obtain the reasons for decisions, therefore the High Court in the exercise of its inherent jurisdiction does not have the power to require the Minister to disclose those reasons.
[25] Because of the importance of the argument being advanced by the Crown, I adjourned the hearing to enable Ms Longdill and Mr Deliu to search the authorities for precedents in the United Kingdom, Canada and Australia. I have had the benefit of memoranda filed in response to that leave.
[26] In her further submissions, Ms Longdill properly drew the attention of the Court to the decision of Knight v Commissiioner of Inland Revenue.2 In this case the Court of Appeal was considering s 13 of the Inland Revenue Department Act 1974 which, in subs (3)(a)(i) provided:
(3) Without limiting the generality of subsection (1) of this section, it is hereby declared that no officer of the Department shall be required to produce in any Court or tribunal any book or document or to divulge or communicate to any Court or tribunal any matter or thing coming under his notice in the performance of his duties as an officer of the Department, except when it is necessary to do so for the purpose of –
(a) Carrying into effect –
(i) The Inland Revenue Acts, including all Acts, whether repealed or not, at any time administered by the Department.
[27] Cooke P stated:3
The carrying into effect of the Inland Revenue Acts must include their proper implementation or administration. When the Commissioner is properly a party to litigation, whether as a claimant or as a defendant, it seems to me that in the natural and ordinary use of language the conduct of the litigation by him is activity in the carrying into effect or implementation or administration of the Acts. In such a case it can be reasonably said to be necessary that, subject to any justified claim of public interest immunity, he should comply with ordinary obligations of a litigant to make discovery of relevant documents.
[28] Cooke P also held that s 27(3) of the New Zealand Bill of Rights Act 1990 was relevant to claims that the Crown should have a special privilege to resist discovery in certain contexts:4
The relevant effect of s 27(3) is that the Crown as a defendant in litigation should be in the same position as an individual. That cannot exclude public
2 Knight v Commissioner of Inland Revenue [1991] 2 NZLR 30.
3 At [35]
4 At [37].
interest immunity, which applies wherever the public interest demands, no matter whether or not the Crown is a defendant… [T]he preferred interpretation for the purposes of this action against the Crown must be against the claim of special privilege.
[29] Ms Longdill submitted that she was unable to locate any Canadian authorities which addressed similar statutory provisions to s 11 of the Immigration Act 2009 but identified some relevant authorities in Australia and the United Kingdom.
[30] In Australia s 13 of the Administrative Decisions (Judicial Review) Act 1977 gives the Federal Court the power to require an additional statement in order to provide evidence of “the evidence or other material on which those findings were based or adequate particulars for the reason for the decision”.5
[31] In Commissioner of Taxation v Nestle Australia Ltd6 the Full Court of the Federal Court described s 13 as providing machinery to inform people of the nature of administrative decisions affecting their interests, so that they might determine whether it is appropriate to file review proceedings. Discovery processes were held to be “essentially different” and were best thought of procedural machinery to assist in the resolution of conflicts between litigants. That there was “no necessary relation” between s 13 process and discovery powers.
[32] Similarly, in Mostyn v Deputy Commissioner of Taxation7 the Court held that the Court could review decisions under s 13 and in order to do so the Court must have evidence of the decision either on discovery or through interrogatories:
The Court, in control of its own process, cannot be kept in the dark as to what the decision making process was.
[33] The Full Court of the Federal Court took the same approach in Australian Securities Commission v Somerville.8 Of course the Australian courts have also recognised that fishing exercise discovery can be inappropriate in this context. Ms
Longdill concluded her analysis of the Australian authorities in this way:
5 Administrative Decisions (Judicial Review) Act 1977, s 13(7).
6 Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 265.
7 Mostyn v Deputy Commissioner of Taxation (1986) 18 ATR 214 (FCA).
8 Australian Securities Commission v Somerville (1994) 51 FCR 38.
Thus, regardless of whether a decision-maker is required to provide reasons, Australian authority suggests discovery is available subject to the ordinary procedural limitations. Tests of relevance and necessity accordingly ought to be invoked when assessing the appropriate scope of discovery in a judicial review proceeding.
[34] Ms Longdill then examined the UK authorities: Under the former s 44(2) of the British Nationality Act 1981, the Secretary of State was not required to give reasons for its decision whether or not to grant naturalisation to those satisfying the criteria for citizenship. Section 44 provided:
44 Decisions involving exercise of discretion
(1) Any discretion vested by or under this Act in the Secretary of State
… shall be exercised without regard to the race, colour or religion of
any person who may be effected by its exercise.
(2) The Secretary of State … shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of
Sta te … shal l not be s ubj ect t o appeal t o, or revi ew in, any cour t .
(3) Nothing in this section affects the jurisdiction of any court to entertain proceedings of any description concerning the rights of any person under any provision of this Act. (Emphasis added.)
[35] Notwithstanding s 44(2), in R v Secretary of State for the Home Department, ex p Fayed9, the Court of Appeal held, by a majority, that while s 44(2) relieved the Secretary of State from the duty to give reasons for its decision, the Fayeds were entitled to know “the case which they had to meet” before a decision on their naturalisation application was made.10
[36] Ms Longdill sought to distinguish the United Kingdom line of authority by arguing that while s 44(2) is similar to s 11 of the New Zealand Immigration Act, it does not contain the provision in the New Zealand legislation that the decision is under an “absolute discretion”.
[37] As I have already observed, absolute discretion is defined in s 11. But it falls short of enabling the decisionmaker to be irrational. The common law requires all
persons exercising government power to exercise the powers in good faith and for
9 R v Secretary of State for the Home Department, ex p Fayed [199] 1 WLR 763 (CA).
10 Per Lord Woolf, at 774.
their proper purpose.11 As I have already referred to, Ms Longdill agrees that there is no privative clause. There is no such thing as an unreviewable exercise of government power.
[38] The Australian and United Kingdom authorities are consistent with my understanding of the function of judicial review and the responsibilities of it. There is a very real distinction between the ability of private individuals to require information on immigration files and the ability of the High Court, seized with an application for judicial review, to know what the reasons for the decision are, particularly when the Court has evidence that there will be reasons, because of an internal circular requiring those to be written down.
[39] The Court will examine those reasons taking into account the “absolute discretion” conferred on the decisionmaker by the statute. Consideration of the reasons by the High Court does not thereby undermine the statutory scheme but simply performs the essential function of examining the decision to ensure that all statutory powers are exercised in good faith, for their proper purpose. There will be an order for discovery of those reasons. There will be leave to apply for further discovery, after examination of those reasons.
[40] The applicant is entitled to costs on this interlocutory application on a 2B
basis.
11 See Takora Properties v Rowling [1986] 1 NZLR 22.
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