Chief Executive of the Ministry of Business, Innovation and Employment v EM
[2019] NZHC 1966
•13 August 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-404-2651
CIV-2017-404-2652 [2019] NZHC 1966
UNDER THE Immigration Act 2009, ss 245 and 249 IN THE MATTER OF
an application for leave to appeal and to bring judicial review
BETWEEN
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
ApplicantAND
EM
Respondent
IMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent
Hearing: 6 May 2019 Appearances:
N Fong for Applicant
D Calvert, J Petris, J Cottrell, A Harris for First Respondent W L Aldred counsel assisting the Court
Judgment:
13 August 2019
JUDGMENT OF COOKE J
Table of Contents
Background facts[4]
First Issue: Was the Tribunal’s jurisdiction excluded by 187(2)(d)(i)?[8]
Second issue: Exclusion under s 15(1)(f)[21]
Analysis[25]
Conclusion on meaning[35]
Application to the present case[38]
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v EM [2019] NZHC 1966 [13 August 2019]
Additional jurisdiction issue[46]
Conclusion[52]
[1] The Chief Executive of the Ministry of Business, Innovation and Employment (the Chief Executive) seeks to challenge a decision of the Immigration and Protection Tribunal (the Tribunal) which allowed an appeal in relation to a decision affecting EM, the first respondent.1 EM had been declined a residence class visa, and the Tribunal allowed the appeal and ordered reconsideration.
[2] The challenge is on two principal grounds: that the Tribunal had no jurisdiction to consider EM’s appeal as a consequence of s 187(2)(d)(i) of the Immigration Act 2009 (the Act); and that the Tribunal misinterpreted s 15(1)(f) of the Act which the Chief Executive says prevented the granting of the residence class visa contemplated here. This Court has granted the Chief Executive leave to appeal the decision of the Tribunal under s 245 of the Act to the extent it had jurisdiction, and leave to bring judicial review proceedings under ss 245 and 249 of the Act to contend the Tribunal had no such jurisdiction.2
[3] On 18 December 2018 the first respondent was granted a residence visa (partnership-based) by way of a special direction under s 17(1)(a) of the Act. This challenge is accordingly no longer of direct significance to him. Counsel who acted on his behalf, including before the Tribunal, have nevertheless appeared and made argument in relation to the issues that arise. In addition, Ms Aldred was appointed as counsel assisting the Court to ensure that all arguments were fully addressed. This was appropriate as the matters raised by the Chief Executive in this challenge involve important points of principle which may affect other cases. I accept that the case is not to be regarded as moot in those circumstances.3
Background facts
[4] EM is an Irish citizen, and an architect by profession. Before moving to New Zealand he had been living in Australia. He was on a temporary visa which expired on 7 September 2009 but he overstayed on that visa by just over two months.
1 EM (Skilled migrant) [2017] NZIPT 204065.
2 Chief Executive of Ministry of Business, Innovation and Employment v EM [2018] NZHC 2437.
3 See Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [32]–[33].
When he and his partner left Australia on 18 December 2009 they did so voluntarily. There was an automatic three year suspension on his ability to re-enter Australia on that kind of visa as a consequence of him overstaying pursuant to Schedules 2 and 4 of the Migration Regulations 1994. Those Regulations set out Public Interest Criteria (PIC) and Special Return Criteria (SRC) controlling immigration decisions. The suspension did not prevent him re-entering Australia on other visas to which the PIC and SRC exclusion did not apply.
[5] On 6 April 2016 EM submitted an expression of interest to be considered for a residence class visa in New Zealand. In the character section of the relevant form he was asked whether he had ever been “excluded or removed or deported” from any country, or “refused entry into any country” and he answered “no” to both questions. He nevertheless provided further information related to these answers in the following terms:
… I have answered ‘NO’ to this question but would like to include the following: At the end of my time in Australia, I overstayed on my visa by just over 2 months. The details of which were as follows: I was trying desperately to find a job that could sponsor me as an Architect so I could stay on and work in the country for longer but I was unable to do so. I was granted a temporary visa on 6 July 2009-7 Sept 2009 to find a job and apply for a work permit to enable me to work again but was unable to find one in time because of the short length of time I had left on the then current visa and the fact that I was not able to start work immediately due to restriction on my visa, not to mention this was the height of the financial crisis and companies were very reluctant to hire new staff until they saw how the recession was going to affect them.
I was given another 30 days to book flights and organise my departure. Unfortunately, the condition on the temporary I had been granted did not entitle me to work and I had no way of raising the funds for the flight. My family at home are on low income and couldn’t help me financially. I did explain this to immigration but there was nothing further they could do to help. In the end my partner at the time paid for my departing flights on 18 December 2009 and I paid her back at a later date.
The result of me overstaying was a 3 year ban from Australia which is mandatory with any overstay and has long since expired. I have since been granted a temporary holiday visa for Australia and I am now even eligible to apply for skilled migration visa and resident’s visa for Australia. So in answer to the question, because I left of my own free will and explained the situation upon departure, I do not believe I was ever refused entry, excluded, removed or deported. I just got caught out financially and left myself no option and was given the minimum punishment. I’m not sure if I needed to answer this at this point but again want to be 100% honest.
[6] EM’s expression of interest was selected by Immigration New Zealand and he was invited to apply for residence. He made an application under the skilled migrant category. At this stage in a subsequent form he changed one of his answers to the questions concerning removal, deportation or exclusion to “yes”. After exchanges between Immigration New Zealand and EM’s immigration advisor, by letter dated 23 March 2017 his application for residence under the skilled migration category was declined. There is some debate as to the basis upon which that decision was made, but two matters are referred to in the letter:
(a)Section 15(1) of the Act providing that no entry permission could be granted to any person who has at any time “been removed, excluded, or been deported from another country”; and
(b)The provision of false or misleading information, or the withholding of relevant and potentially prejudicial information in relation to exclusion.
[7] EM appealed the decision to the Tribunal. By decision dated 20 September 2017 the Tribunal allowed the appeal and directed Immigration New Zealand to reconsider its decision. Two key conclusions reached by the Tribunal are now challenged by the Chief Executive, namely:
(a)That s 187(2)(d)(i) did not apply to exclude the jurisdiction of the Tribunal as, contrary to Immigration New Zealand’s decision, the information provided by EM had in fact been correct; and
(b)That EM had not been excluded from Australia within the meaning of s 15(1)(f) of the Act.
First Issue: Was the Tribunal’s jurisdiction excluded by 187(2)(d)(i)?
[8]EM had a right of appeal under s 187(4) of the Act which relevantly provides:
(4)The grounds for an appeal under this section are that—
(a)the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the visa was made; or
(b)the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended.
[9]But there are limitations on this jurisdiction. In particular s 187(2)(d) provides:
187Rights of appeal in relation to decisions concerning residence class visas
…
(2) However, no appeal lies under this Act in respect of—
…
(d)a refusal of the Minister or an immigration officer to grant a residence class visa to a person who has been invited to apply for a visa, if a ground for the refusal is that the Minister or officer determines that the person,—
(i) whether personally or through an agent, in expressing his or her interest in obtaining an invitation to apply for a visa, submitted false or misleading information or withheld relevant information that was potentially prejudicial to the person; or
[10] The information said to be false or misleading within s 187(2)(d)(i) are EM’s answers on the expression of interest form responding “no” to the question whether he had been excluded from any country. The letter from Immigration New Zealand expressed the following conclusion:
From our assessment, we are satisfied that you fall within the provisions of the Immigration Act 2009, section 15(1) whereby
“no visa or entry permission may be granted, and no visa waiver may apply, to any person-
(f) who has, at any time, been removed, excluded, or deported from another country.”
Therefore, you are ineligible for a residence class visa unless you are granted a special direction under section 17 of the Immigration Act 2009.
In addition, we are also unable to approve this residence application as you fall within the provisions of instruction SM3.5, for having provided false and misleading information as part of an EOI (SM3.5.a.i), and withheld relevant, potentially prejudicial information from an EOI (SM3.5.a.ii).
For the above reasons, your residence application has been declined.
[11] On the face of it this suggests that “a ground” for the refusal was that EM had “submitted false or misleading information” as contemplated by s 187(2)(d)(i). But that is not what the Tribunal found in its decision. It first considered whether EM was an excluded person, and it reached the conclusion that he was not. This led the Tribunal to reach the following decision:
[93] The Tribunal finds that the appellant is not an excluded person as defined by section 15 of the Act. The Tribunal therefore has jurisdiction in relation to section 187(2)(b).
[94] Given that the appellant was not excluded, it follows that his answer to question 84 in his EOI was correct, and he did not provide false or misleading information in, or withhold prejudicial information from, his EOI. Immigration New Zealand therefore erred when it relied on SM3.5 to decline the application. The Tribunal finds it has jurisdiction in relation to section 187(2)(d).
[12] The submissions for the Chief Executive are that this approach inappropriately avoids the limitation on jurisdiction set out in s 187(2)(d)(i). In effect the Tribunal has first assessed whether the information provided by the applicant was false, and having concluded that it was not false, concluded that it had jurisdiction accordingly. By that technique the limitation on jurisdiction was illegitimately circumvented.
[13] In seeking to support the Tribunal’s decision, counsel for the first respondent argued that a decision that information was false or misleading needed to be made fairly. Counsel referred to a paper provided by the Tribunal putting matters in the following way:4
13. Finally, the instructions create a discretionary power to decline, not an obligation to decline. As with any discretionary power, INZ must exercise it reasonably and fairly. On rare occasions, the Tribunal has found that INZ’s exercise of its discretion has been so unreasonable that it was contrary to the intended purpose of the instructions. It is incumbent on INZ to address concerns it has over the information provided in an EOI at the earliest opportunity in the assessment process so it can decline applications which fail at the first hurdle.
[14] An approach of this kind appears to have been adopted by the Tribunal in other cases in which the Tribunal has concluded that the conclusion being challenged was unfair.5
4 Jeanne Donald Jurisdiction Matters: IPT Residence Appeals (2018).
5 See, for example, Re BC (Skilled Migrant) [2017] NZIPT 204066).
[15] I accept the submissions of counsel for the Chief Executive, which were effectively supported by counsel assisting the Court, that this approach is circular and illegitimate. The purpose of s 187(2)(d)(i) is to prevent the Tribunal conducting an inquiry into a finding made to refuse an application on this ground. A Tribunal cannot open an inquiry on appeal in order to determine whether the conclusion is fairly reached, and thereby bestow jurisdiction upon itself to engage in that very inquiry. I accordingly accept that the Tribunal’s reasoning was wrong in law.
[16] It is nevertheless necessary to determine whether the decision is, in fact, a decision which has “a ground for the refusal” that the applicant has provided “false or misleading information or withheld relevant information that was potentially prejudicial to the person”. Some scrutiny of the decision by the Tribunal is necessary to determine whether s 187(2)(d)(i) is engaged. It is also the substance, rather than the way the decision is worded, that will determine whether s 187(2)(d)(i) applies. The fact that a decision purports to be based on the false/misleading information ground does not necessarily mean that this was in fact a ground for the decision — the labels the decision-maker has used are not conclusive. But if it is a substantive ground for the decision the Tribunal cannot scrutinise the decision further, even if it has concerns that the conclusions might be wrong.
[17] Here there is no dispute about the facts. EM did answer the question “no” in the form when asked whether he had been excluded from any other country. But he also provided comprehensive information to be read alongside this answer which explained the full circumstances. Indeed it is difficult to imagine how EM could have been more forthcoming. It is not suggested that read together this information was in any way false or misleading, and neither was that the conclusion of the decision-maker. The substantive reason why the application was declined was that Immigration New Zealand had concluded, based on this very information, that he had, in fact, been excluded from Australia. Thus the true ground for the refusal was s 15(1)(f) of the Act. As a matter of substance there was no further or additional ground based on EM providing false or misleading information.
[18] The decision of the immigration official did purport to say that there was an additional ground for declining based on EM providing false or misleading information. But that was artificial. Just as it is wrong for the Tribunal to artificially
bestow upon itself jurisdiction by circular reasoning, it is equally wrong for a decision- maker to purport to exclude the jurisdiction of the Tribunal by similar techniques. As a matter of substance there was only one ground of refusal. The expression of an additional ground of refusal was illegitimate, just as the technique adopted by the Tribunal to avoid it was.
[19] Before leaving this topic, I wish to emphasise that the Court’s rejection of the Tribunal’s technique for avoiding the limits on its jurisdiction should not be taken as a rejection of the Tribunal’s view that a finding that an applicant has submitted false or misleading information needs to be made fairly. I agree with that view. In addition, information is not false or misleading simply because an applicant has ticked the wrong box when it is apparent from the application overall that this was a mistake. Real care is needed when making such findings, particularly given the absence of any appeal right as a consequence. But only the High Court would have jurisdiction to address such matters and quash such a decision for procedural unfairness, or mistake of law.
[20] Nevertheless, here I conclude the Tribunal had jurisdiction, but for different reasons from those adopted by the Tribunal. For that reason I do not accept the Chief Executive’s argument.
Second issue: Exclusion under s 15(1)(f)
[21]Section 15 of the Act provides (emphasis added):
15Certain convicted or deported persons not eligible for visa or entry permission to enter or be in New Zealand
(1) No visa or entry permission may be granted, and no visa waiver may apply, to any person—
(a)who, at any time (whether before or after the commencement of this section), has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more; or
(b)who, at any time in the preceding 10 years (whether before or after the commencement of this section), has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 12 months or more, or for an
indeterminate period capable of running for 12 months or more; or
(c)who is subject to a period of prohibition on entry to New Zealand under section 179 or 180; or
(d)who at any time (whether before or after the commencement of this section) has been removed or deported from New Zealand under any enactment; or
(e)who is excluded from New Zealand under any enactment; or
(f)who has, at any time, been removed, excluded, or deported from another country.
…
(3)Subsection (1)(d) does not apply to a person who—
(a)has been deported from New Zealand under section 158 of the Shipping and Seamen Act 1952; or
(b)was subject to a removal order under section 54 of the former Act, if the removal order has expired or been cancelled; or
(c)was deported under this Act but is not, or is no longer, subject to a period of prohibition on entry under section 179 or 180; or
(d)has been deported from New Zealand under section 20 of the Immigration Act 1964 on the grounds of being convicted of an offence against section 14(5) or 15(5) of that Act.
[22] In its decision the Tribunal concluded that the subsection did not apply because the nature of the limitation imposed upon EM did not amount to exclusion within the meaning of s 15(1)(f). The Tribunal held:
[81] … the appellant’s exclusion period from Australia was far from a complete prohibition on entry. It is true that during that three-year exclusion period, the appellant was unable to apply for visas that required specific PIC or SRC criteria. This precluded him from applying for most temporary visas (absent demonstrating compelling circumstances to have the exclusion waived). However, he was not prevented from applying for a number of permanent visas, as these did not require those specific criteria. For example, while the appellant was precluded from applying for a working holiday visa, he was able to apply for a residence visa on the basis of partnership.
[82] In contrast, information on the Australian Department of Immigration and Border Protection's website ( corporate/information/factsheets/79character) indicates that Australian law allows for permanent and complete exclusion:
A person who is removed from Australia after their visa is cancelled on character grounds will be permanently excluded from being granted another visa to re-enter Australia.
…
[89] Given the partial nature of the exclusion period to which the appellant was subject; the fact that the Australian government’s position was that the appellant had not been “formally excluded” from Australia; and the overall focus of section 15 on excluding individuals from New Zealand who have committed serious offences or immigration transgressions, the Tribunal is not satisfied that, in the particular circumstances of this case, the appellant had “been excluded” in the context of section 15(1)(f) of the Act.
[23] The Chief Executive argues that this approach is wrong, and that prohibition on re-entry, even partial prohibitions, amount to exclusion. The Chief Executive’s criticism of the approach adopted by the Tribunal has three interrelated aspects, namely:
(a)that the Tribunal’s approach involved an elaborate case by case assessment, rather than the application of a clear and definitive concept evident from s 15;
(b)that it will ultimately involve giving effect to foreign law rather than New Zealand law; and
(c)that it is inconsistent with the text, context and purpose of the relevant provision.
[24] In responding to those submissions both the first respondent and counsel assisting argued that s 15 itself contemplated that there were different types of immigration restriction that applied in New Zealand and other countries, and the nature of the restriction imposed under Australian law on EM here did not qualify as exclusion within the meaning of s 15(1)(f).
Analysis
[25] The Chief Executive argues that to be “excluded” has a limited and clear meaning in New Zealand law that does not require a case by case assessment of the laws and practices of foreign countries. The written submissions for the Chief Executive put this point in the following way:
32.… the Tribunal’s approach entails an overly nuanced analysis, which requires an immigration officer to make case-by-case judgements
based on factors not apparent from s 15 of the Act, including the duration of the exclusion period and the seriousness of transgression giving rise to the exclusion period. Whether or not a person is “excluded” under s 15(1)(f) should be susceptible to a clear answer.
[26] The text on enactment must always be interpreted in light of its purpose.6 The Court’s ultimate function is to make the statute work as Parliament must have intended.7 The place of s 15 in the overall scheme of the Act is accordingly important.
[27] Section 15(1)(f) refers to a person who has been excluded from another country. Section 15(1)(e) refers to a person excluded from New Zealand. It is apparent that the two subsections are referring to essentially the same concept, and identifying the nature of exclusion from New Zealand will inform what is meant by being excluded from a foreign country. A consideration of exclusion from New Zealand demonstrates, however, that it does not have a meaning that leads to a clear answer in all cases as the Chief Executive contends. Some of the features of s 15 are significant in this context:
(a)There is no definition of “excluded”. The only defined term is “excluded person” (in s 4), and it refers back to a person to whom ss 15 and 16 apply. It is accordingly circular. Neither is there precise machinery within the Act that identifies when someone will become an excluded person under New Zealand law for immigration purposes.
(b)Section s 15(1)(e) also speaks of someone excluded from New Zealand “under any enactment”, and accordingly can encompass other legislative provisions that operate to so exclude a person. Such provisions were not identified in a complete way by the Chief Executive in argument, although reference was made to persons excluded under a number of United Nations sanctions regulations. But even in New Zealand law, identifying when someone is excluded is not obvious.
6 Interpretation Act 1999, s 5(1); and Commerce Commission v Fonterra Co-operative Group Ltd
[2007] NZSC 36, [2007] 3 NZLR 767.
7 Northern Milk Ltd v Northland Milk Vendors Association Inc [1988] 1 NZLR 537 (CA).
(c)It is also apparent from s 15 that determining whether a person is “excluded” may involve some subtlety. It contemplates something different than being deported or removed as s 15 refers to these three ideas as separate concepts. It would also appear that the legislation contemplates that there is a difference between “a period of prohibition on entry” and being “excluded” as those two concepts are referred to as separate matters in s 15(1)(c) and (e).
(d)The concepts of removal, deportation and exclusion referred to in s 15 do not have mutually exclusive meanings. They appear closely interrelated, so that the meaning of each term is coloured by the others. Each is contemplating an adverse measure resulting in the person being unable to be in the relevant country.
(e)The other grounds of disqualification referred to in s 15 also involve significant transgressions only. That is particularly evident from the convictions referred to in ss 15(1)(a) and (b). So a person is only an excluded person if the significant transgressions are committed. This also provides context, and colour for the meaning to be given to the concept of being “excluded” from another country under s 15(1)(f).
[28] The Chief Executive argued, however, that the relevant provisions did identify a test providing clear answers notwithstanding a circular nature of the definition of “excluded person”. The argument was put in the following way in written submissions:
35. While the word “excluded” is not defined, s 4 of the Act defines an “excluded person” as “a person to whom section 15 or 16 applies”. As the respective headings of ss 15 and 16 state, these sections are concerned with persons who are “not eligible for visa or entry permission” to enter or be in New Zealand. Both sections begin with the words, “no visa or entry permission may be granted ...”. They specify who may not be granted a visa or entry permission, notwithstanding they may otherwise meet the relevant requirements. Provisions of this kind can also be found in immigration legislations of other jurisdictions. Further, both sections are subject to s 17, which vests an “absolute discretion” in a decision-maker, including the Minister of Immigration, to grant a visa or entry permission to persons who fall within ss 15 and 16.
[29] The reference at the end of this paragraph to the Minister’s discretion to allow entry under s 17 illustrates the difficulty with the Chief Executive’s argument as it contemplates that entry might still be permitted. As Mr Fong submitted, in ordinary usage being “excluded” from a place means that you cannot go there. It has an absolute connotation. That seems to me to provide an appropriate meaning of the word in s 15(1)(f). In the context of decisions affecting immigration rights, therefore, the statute appears to be contemplating a situation where the immigration measures of a foreign country prevent entry into that country. The key point, however, is that the measures must prohibit, rather than simply restrict entry.
[30] In many, perhaps most cases, the position may well be straightforward because the transgression involved is serious and the restriction on re-entry likely to be complete. But that was not so in EM’s case. He had committed a transgression under Australian law, and his rights of re-entry were adversely affected as a consequence. But given they arose from only a short period of overstaying at the conclusion of his visa period, and that he left Australia voluntarily, his chances of re-entering may have been reasonably good. That is reflected by the Minister’s decision to give a special direction which resulted in EM obtaining a residence visa in New Zealand, notwithstanding the transgression. A decision in Australia may well have been similar. A consideration of the detailed facts and circumstances seems unavoidable in the circumstances of EM’s case.
[31] Whilst it appears clear that s 15(1)(f) is contemplating a decision under foreign law, or the operation of foreign laws that curtail rights of entry otherwise available, such curtailment may involve matters of degree, ranging from a limitation or restriction upon the rights of entry on one end of a spectrum right through to complete prohibition. The concept contemplated by s 15(1)(f) seems to me to be at the prohibition end of the spectrum, when re-entry is not allowed. As with removal and deportation, it contemplates the situation when you are not allowed in the country. There will be cases where it is obvious a person has been excluded without the need for elaborate analysis, but in other cases the answer will not be so obvious, and a deeper analysis is needed.
[32] In the present case, for example, two material questions arose. First if a person is only prevented from entering a country for a period of time is the person excluded
within the meaning of s 15(1)(f)? Secondly, if the prohibition is not absolute, and entry is permitted in certain circumstances (but is more limited than usual) is the person excluded within the meaning of the section? It seems to me that the answer to those questions will depend on the particular circumstances involved in the restriction arising in the foreign country. In such circumstances it seems to me unavoidable that the analysis will require an understanding of the foreign country’s regime, and the restriction that has arisen. Only then can it be determined whether a person had been “excluded” within the meaning of s 15(1)(f). I accept that this potentially involves complexity in the application of that provision in such cases. But that seems to me to be inherent in the requirements of the section.
[33] Mr Fong referred to broader materials, including international materials, indicating that overstaying was a serious transgression with serious consequences. He contended that this provided strong contextual support for the submission that any consequential limitation of re-entry, including partial or incomplete prohibitions, were within what Parliament contemplated by “excluded”. But even under New Zealand law overstaying by itself does not result in a person being “excluded” from New Zealand. Only more serious transgressions are set out in ss 15 and 16 leading to those persons being defined as an “excluded person”. That is also the situation in Australia. For other countries regimes a case by case assessment will be required to evaluate whether the consequences of a transgression has led to a prohibition on re- entering the country, which is the standard that should be applied.
[34] I do not accept the Chief Executive’s related argument that the Tribunal’s approach involves the application of foreign law rather than New Zealand law. It is evident that the meaning of s 15(1)(f) is a question of New Zealand law. Whether the measure of a foreign country meets the requirements of the New Zealand law is a question of fact. For that reason I do not accept the Chief Executive’s criticism that the approach of the Tribunal is based on what excluded might mean under Australian law, rather than New Zealand law. The inquiry s 15(1)(f) contemplates requires an analysis on the meaning and effect of the laws of the foreign country, and the implications of decisions made under them. Considering those matters is a necessary element of the application of New Zealand law. Analysing what has happened to EM as a matter of fact under Australian law, and discretionary decision-making under that law, was accordingly necessary.
Conclusion on meaning
[35] The real issue in this case is not ultimately the correct meaning of being “excluded … from another country” under s 15(1)(f). It is the difficult application of that meaning in borderline cases where rights of re-entry are restricted, but not eliminated.
[36] I do not accept the Chief Executive’s contention that the Tribunal misinterpreted s 15(1)(f). To be excluded from another country contemplates a prohibition on re-entry into that country. If a person has committed some transgression that adversely affects their rights to re-enter a foreign country but it does not remove those rights, they will not have been excluded. In many cases the position will be clear. But in some it may become necessary to make a detailed assessment on whether the curtailment amounts to exclusion. Whilst that may amount to a difficult and detailed factual assessment in such cases, that seems to me to be unavoidable.
[37] It also needs to be remembered that the relevant immigration transgression in the foreign country will be relevant to the assessment of the individual on the merits under the immigration instructions. It may well be that in such cases that is the more appropriate place for the transgression to be taken into account.
Application to the present case
[38] The difference between the obvious case, and the more difficult case, is illustrated by the provisions of the laws of Australia that applied to EM.
[39] Under Australian law there is a clear category of person that is expressly treated as an excluded person under Australian law. Under s 503 of the Migration Act 1958, certain persons are excluded from Australia. They include people who have been deported for having committed criminal offences, or have been refused entry for a failure of the character test provided for by the legislation. This appears to be squarely the type of persons that s 15(1)(f) is contemplating — those who have committed serious transgressions of a kind that would lead to someone being deported, and/or not otherwise allowed to re-enter Australia.
[40] EM was not in that category. He had committed none of the transgressions identified in s 503 that would lead to him being classified as excluded from Australia by that provision. But he nevertheless engaged in a period of overstaying whilst in Australia on a visa, and by doing so he adversely affected his ability to re-enter in the future. But it only adversely affected that ability, rather than eliminating it.
[41] There were two limitations or qualifications attached to the decisions made under Australian law in terms of EM’s ability to re-enter Australia under the requirements set out in the schedules to the Migration Regulations 1994. First under PIC 4014 the restriction applied for only a three year period. Secondly that restriction did not prevent EM applying for types of visas not covered by PIC 4014, or obtaining a visa under PIC 4014 if the relevant Minister was satisfied of certain special circumstances. The position was summarised in the following terms in Ms Aldred’s submissions as counsel assisting the Court:
17.… as a matter of fact, the first respondent cannot be held to have been “excluded from” Australia in terms of s 15(1)(f) on its natural meaning. Rather, by virtue of his overstaying, his ability to obtain special categories of visa for Australia was curtailed, meaning that his options for re-entry were, for the subsequent three years, limited to:
17.1 Applying for other kinds of visa (including a residence class visa) that did not require satisfaction of PIC 4014; or
17.2 Establishing the existence of compelling or compassionate circumstances justifying re-entry within the three year period.
[42] In my view, the fact that the restriction was only for a temporary period of time does not, by itself, mean that EM was not excluded. It will be relevant to the overall assessment. But if there was a total prohibition on him re-entering Australia for that period of time, it seems to me that he would have been excluded from Australia.
[43] It also seems to me that if EM had tried, and failed, to obtain re-entry into Australia under the remaining avenues available to him because of the matter that had led to the restriction on his rights of entry, he would also have been excluded in the way contemplated by s 15(1)(f). That is not the case in the circumstances of this case, however.
[44] I also accept that, if the reality was that he would not have been able to obtain re-entry into Australia under the rights of entry avenues remaining available to him,
he would properly have been regarded as an excluded person. Put another way, if the restriction that had been placed on him made it apparent he would not be able to re- enter Australia for three years, then it seems to me that s 15(1)(f) would have applied. But if there remained a real prospect that he could re-enter within the three years notwithstanding the transgression that led to the limitation on his rights, then it seems to me that s 15(1)(f) did not arise. I do not understand the Chief Executive to contend that EM’s case was in the category of effective exclusion in this way.
[45] All this means that in the present case the Tribunal correctly interpreted s 15(1)(f), and it reached the correct conclusion on the facts of EM’s case. I accordingly dismiss the Chief Executive’s challenges on this ground.
Additional jurisdiction issue
[46] During the course of argument, Mr Fong for the Chief Executive identified a further issue concerning the jurisdiction of the Tribunal. It was not one that had been addressed in the pleadings, or the written submissions of counsel. Given that I did not invite counsel for the first respondent or counsel assisting to address it orally, I do not think it is appropriate for the Court to issue a formal decision on the point given the way it emerged. But it is appropriate to record the submission, to provide some preliminary comment.
[47] Mr Fong pointed out that the Tribunal’s jurisdiction under s 187(4) is limited to the application of the residence instructions, or to the existence of special circumstances where an exception to those instructions should be recommended. Mr Fong argued that the question whether someone is excluded from another country under s 15(1)(f) does not involve the interpretation or application of any of the residence instructions themselves. It is a preceding point of interpretation of the Act. He accordingly submitted that the Tribunal had no jurisdiction to address the point. It could only be addressed by the Court on an application for judicial review.
[48] Having considered the terms of the residence instructions that applied during the events of this case, I can see that Mr Fong’s point that the correct meaning of s 15(1)(f) is not part of them appears to be correct. There is reference in the introductory paragraphs in the instructions to persons excluded by a foreign country
(RA6), but the instructions say these paragraphs were not part of the instructions themselves (introductory words – RA). Importantly the instructions have since been changed.
[49] But Mr Fong’s point only goes so far. The Tribunal does not have a judicial review function. Neither the Tribunal, or the Chief Executive has jurisdiction to conclusively interpret the meaning of the Act. That is the function of the Court. But in exercising the powers given by the Act, it is necessary for both the Chief Executive and the Tribunal to apply the Act as they understand it. The Tribunal has the function of considering an appeal on the basis set out in s 187(4). Whilst that does not include a jurisdiction to correct the Chief Executive’s errors of law in the interpretation of the Act, it may nevertheless be necessary for the Tribunal to form its own view of the meaning of the Act in order for it to exercise its appeal jurisdiction. Its view may be different from the view taken by the Chief Executive. For example, in the present case, the Tribunal formed the view that the residence instructions did apply to EM as he was not an excluded person disqualified for consideration. That being its view, the Tribunal could have considered his case under the instructions on the merits. If the Chief Executive wanted to challenge the Tribunal’s approach in this respect, it could then do so by way of judicial review (as it has done in the present case).
[50] That does not appear to be what actually occurred in the present case. Rather the Tribunal has reached the conclusion that the Chief Executive has misinterpreted s 15(1)(f) and made orders requiring the Chief Executive to reconsider his decision. The Tribunal may have thought it had little alternative in the absence of any decision by the immigration officers on the merits. But by doing so it appears to have exercised a judicial review function, rather than the appeal jurisdiction under s 187(4), which may not have been technically correct.
[51] These points illustrate the difficulties with these kinds of jurisdiction argument, however, and further illustrate why a formal decision should not to be made on this point. Given it was not squarely raised in the case, I do not make any decision on this basis. The point also does not have much practical significance given the present case has come before the Court by way of judicial review in any event.
Conclusion
[52] Accordingly, for the reasons identified above I have reached the following conclusions:
(a)That the Tribunal did have jurisdiction to consider EM’s appeal notwithstanding s 187(2)(d)(i) of the Act.
(b)That the Tribunal correctly interpreted s 15(1)(f) of the Act, and reached the correct conclusion on the application of the provision on the facts of EM’s case.
[53] The Chief Executive’s appeal, and judicial review challenges are accordingly dismissed.
[54] The Chief Executive did not seek costs if it were successful. EM sought costs if successful. EM participated in the case notwithstanding having obtained residence on other grounds because of his counsel’s knowledge of the case and so that they could provide assistance. In the circumstances it seems to me to be appropriate to award EM costs on a 2B basis, but with an allowance for only one counsel.
Cooke J
Solicitors:
Crown Law, Wellington for Appellant and Second Respondent Cotterell Law, Wellington for First Respondent
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