Devi v Minister of Immigration

[2017] NZHC 728

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002172 [2017] NZHC 728

UNDER

Judicature Amendment Act 1972, Part 30

of the High Court Rules, New Zealand Bill of Rights Act 1990 and Declaratory Judgments Act 1908

IN THE MATTER OF

an application for judicial review, cause of action under the Bill of Rights and claim for declaratory relief

BETWEEN

SANITA PRATIKA DEVI Plaintiff

AND

MINISTER OF IMMIGRATION First Defendant

ASSOCIATE MINISTER OF IMMIGRATION

Second Defendant

MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Third Defendant

Hearing:	24 February 2017
Appearances:	P Finau for Plaintiff M J Hodge and M J Mortimer for Defendants
Judgment:	12 April 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 12 April 2017 at 4.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

DEVI v MINISTER OF IMMIGRATION & ORS [2017] NZHC 728 [12 April 2017]

Introduction

[1]      In May 2016 Ms Devi  sought ministerial intervention in her quest for a temporary work visa.  A delegated decision maker refused that request.   Ms Devi challenges that decision.  She seeks judicial review on the grounds of:1

(a)       lack of due process in relation to the briefing paper on which the delegated decision maker made his decision;

(b)      unreasonableness in the Wednesbury sense.

[2]      Ms Devi also seeks relief under the New Zealand Bill of Rights Act 1990.

[3]      The defendants, who are the Minister of Immigration, the Associate Minister of Immigration and the Ministry of Business, Innovation and Employment, have defended the proceedings on the basis that the only ground of challenge open to Ms Devi is that of unreasonableness in the  Wednesbury sense in relation to the decision itself and that, in the circumstances, the decision cannot be shown to have been unreasonable.

The circumstances leading up to the decision

[4]      Ms Devi is a Fijian citizen, as is her husband, although he now has permanent residency in New Zealand.  Ms Devi and her husband have been married since 2005 and there is no suggestion that their relationship is not completely genuine.

[5]      Ms  Devi  first  came  to  New  Zealand  on  a  two-month  visitor’s  visa  in November 2006.   She returned the following year on a two-month visitor’s visa which expired in January 2008. While she was in New Zealand on that visa Ms Devi applied for a work visa.   The determination of that application took some time because Ms Devi was identified as having serious health issues.  In August 2008 she was granted a further visitor’s visa pending the outcome of her application for a work visa.

[6]      On 30 September the work visa application was refused on the ground of an adverse health assessment.  The medical assessors gave an opinion that Ms Devi was likely to impose significant costs or demands on New Zealand’s health services during her period of intended stay.  In particular, the health certificate recorded the following:

Medically recently very unwell with a 9 day general medical admission … Appears to have significant SLE2 with renal involvement – likely to require a renal biopsy.  Hospital discharge implies also had acute renal failure while hospitalised – presently resolving.

Also  experienced  respiratory  failure  while  in  hospital  in  February  and

required a tracheostomy …

Restrictive cardiomyophathy of uncertain origin.  Recurrent pericarditis that required pericardial drainage and a pericardial window.

Ischaemic colitis – right hemicolectomy and end iliostomy – 15/2/08 with significant wound complications.  Now has a stoma requiring regular stoma cares and nurse review – will require further surgery with reversal of the stoma in 6 months’ time. This will require hospitalisation.

In  addition  to  above  has  a  large  goitre  –  this  is  presently  not  causing problems but could well require surgery in the near future.

Discharged on high dose prednisone for three months.

[7]      Immigration New Zealand (INZ) gave Ms Devi the opportunity to comment on  the  concerns  raised  by  the  medical  assessor  and  to  seek  a  medical  waiver. Ms Devi confirmed that her earlier hospitalisation in Auckland had resulted in a debt to the Auckland Hospital of $162,000  and a further debt to  Counties Manukau District Health Board of $30,270.95.  A medical waiver was refused.  The reasons given were Ms Devi’s medical condition, the fact that her husband was neither a New Zealand citizen nor permanent resident, the lack of any arrangements or effort to repay the hospital debts, the significant risk of further complications associated with her medical  condition and that the condition was such that it had already created a burden on the New Zealand health services and presented a continued risk of further costs.

[8]      In January 2009 Ms Devi requested a visitor’s permit which was declined. She requested ministerial intervention, which was granted; in September 2009 the

Associate Minister of Immigration approved a work permit under s 35A of the Immigration Act 1987 valid until 4 July 2010.  The health requirement was waived but  the Associate  Minister  specifically  noted  that  “any  further  applications  for permits will be assessed against normal policy requirements”.  Contemporaneously, Mr Singh, Ms Devi’s husband, made an application for residence naming Ms Devi as the  secondary  applicant.    That  application  was  declined  because  of  Ms  Devi’s

medical condition.3

[9]      In June 2010, with her work permit due to expire, Ms Devi applied for a further work permit.  INZ granted her a further two-year work permit as the partner of a worker, valid until 28 June 2012.  The defendants maintain that this application was allowed on the erroneous belief that the health waiver granted in the context of the May 2009 request continued to apply; the customer interaction notes recorded that “the applicant appealed to the Minister of Immigration and on 24 September

2009 the Minister of Immigration approved and waived the health requirement”.  I agree that these notes do suggest that the health requirement had been waived permanently, whereas it is clear from the Associate Minister’s September 2009 letter that the waiver related only to that work permit and that subsequent applications would be determined in accordance with normal policy requirements.

[10]     In  June 2012,  with  her  two-year work permit  about  to  expire,  Ms  Devi applied for a further work visa.  That application was refused on the ground that she did not have an acceptable standard of health.   Ms Devi’s work permit expired finally in September 2012 and she became liable for deportation.  Ms Devi sought ministerial intervention for the grant of a work visa and shortly afterwards appealed to the Immigration and Protection Tribunal (IPT) against her deportation liability. The Minister would not intervene while there was an active appeal in the IPT. Pending the outcome of that appeal Ms Devi requested a work visa under s 61 of the Immigration Act 2009, the successor to s 35A of the Immigration Act 1987, which

was  refused.     In  February  2014  the  IPT  dismissed  Ms  Devi’s  appeal.    She

3      In  September  2010  Ms  Devi  and  Mr  Singh  appealed  INZ’s  decision  to  refuse  Mr  Singh residence.  The Immigration and Protection Tribunal (IPT) allowed that appeal and referred the application back to the Department of Labour/INZ.  Mr Singh was eventually granted residence though Ms Devi was not included in his application.

subsequently applied unsuccessfully for leave to appeal and to judicially review the

IPT decision.

[11]     In March 2014 INZ refused Ms Devi’s request for a work visa under s 61 and in June 2014 she was formally advised to depart New Zealand.   In July 2014 she requested ministerial intervention for the grant of a work visa under s 61.   The delegated decision maker (Arron Baker) refused to intervene.

[12]     In May 2016 Ms Devi again requested ministerial intervention.  The request was dealt with by a delegated decision maker, Bruce Burrows.  The INZ resolutions team prepared a briefing paper dated 2 August 2016.  On the basis of the information contained in the briefing paper Mr Burrows declined to intervene.  The “Record of Decision” form contained a statement to the effect that Mr Burrows had “considered and weighed all the information available to [him]” and decided not to intervene because “[t]he circumstance(s) do not … outweigh the fact that immigration instructions are not, or have previously not, been met”.

Statutory framework

[13]     Section 61 permits the Minister or a delegated decision maker in the place of the Minister to grant a visa at any time to a person who is unlawfully in New Zealand and who is not subject to a deportation or removal order.   The decision whether to grant a visa is one to be made in the Minister’s or the delegated decision maker’s “absolute discretion”.  Section 61 provides:

(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; and

(c)  is not a person in respect of whom a removal order is in force.

(2) A decision to grant a visa under subsection (1) is in the Minister’s

absolute discretion.

[14]     Section 11 relevantly provides that:

(1) 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.

[15]     A decision made in the exercise of the absolute discretion under s 61 is reviewable only on the basis of unreasonableness in the Wednesbury sense.  In Zhang v Associate Minister of Immigration the Court of Appeal explained:4

Mr Burrows, pursuant to s 61 of the Act, was exercising an absolute discretion.  Pursuant to s 11 of the Act, he was not obliged to give reasons for his decision.  His only obligation when giving his decision was to note that s 11 applied.  Therefore, the availability of judicial review as a remedy is very limited.  Effectively, the Court is limited to examining whether, on the information available to Mr Burrows, his decision could be seen as unreasonable in the Wednesbury sense. …

The Act makes it clear that at the s 61 stage it is entirely up to the Executive (through the Minister) to decide whether or not to grant Mr Zhang a visa.  In the absence of any extraordinary circumstance going to Wednesbury unreasonableness, the courts cannot intervene.

[16]     For a decision to qualify as unreasonable in the Wednesbury sense, it must be so unreasonable that no reasonable decision maker could ever consider imposing it.5

Lord Diplock considered the standard “applies to a decision which is so outrageous

in its defence of logic or of accepted moral standards that no sensible person who

4      Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222 at [23] and

[31], confirming Zhang v Associate Minister of Immigration [2015] NZHC 1369.

5      Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA) at 230.

had applied his mind to the question to be decided could have arrived at it”.6   This stringent approach has been consistently applied in New Zealand.7

[17]     Palmer J recently reviewed the authorities on how “unreasonable” a public decision may be in Hu v Immigration and Protection Tribunal.8   He considered that the House of Lords’ reformulation in Edwards v Bairstow of the test for an error of law offered a better account of unreasonableness in judicial review than the wording used in Wednesbury.  Thus “[w]here a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable”.9

The briefing paper

[18]     Ms Devi’s request was initially dealt with by the INZ resolutions team, which acknowledged receipt and allocated it to Mr Burrows, as a delegated decision maker. He was provided with a briefing paper dated 2 August 2016 and copies of documents relating to Ms Devi’s previous requests.

[19]     The briefing paper included a review of Ms Devi’s medical history in New

Zealand and under the heading “Relevant issues” it recorded:

Ms   Devi   has   systemic   lupus   erythematosus   which   requires   lifelong treatment.   She has been declined resident and work visas as she did not meet health requirements.  The medical assessor estimated regular costs for her lupus treatment at $500 per annum in 2010.  They also noted that she had a high probability at the time of requiring health services in excess of

$25,000.  Her health was last assessed in 2012, prior to her hip replacement surgery.     Immigration  instructions  at  A4.15  note  that  an  applicant  is

considered to have an acceptable standard of health if they are unlikely to

impose significant costs or demands on New Zealand’s health system during their intended stay.  Support letters from her doctors state that her lupus is in remission; her health has seen a major improvement which they expect to be a long-term phenomenon.   The representations submit that her condition could not be managed in Fiji.  It is not known if she would now be found to have an acceptable standard of health.

6      Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410.

7      Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at

545; Singh v Associate Minister of Immigration [2016] NZHC 2888; Hu v Immigration and

Protection Tribunal [2017] NZHC 41.

8      Hu v Immigration and Protection Tribunal, above n 5.

9      At [29], citing Edwards v Bairstow [1956] AC 14 (HC).

Ms Devi incurred debts to the two District Health Boards of $192,000 in

2008.  The supplementary representations list her total outstanding debt as

$177,515.01 as at 28 February 2015.

Immigration instructions at A4.65 note that a medical waiver will not be granted for temporary visa applications to a New Zealand resident partner if they were eligible to be included in their partner’s earlier resident application but removed.   As Ms Devi was withdrawn from her husband’s residence application  she  does  not  qualify  for  a  medical  waiver  under  these instructions.

(emphasis added)

[20]     Ms Devi asserts that the briefing paper contained material that resulted in a breach of due process.  First, it identified issues of quantum in respect of probable medical costs (allegedly incorrectly) when quantum was not a relevant consideration with the result that the briefing paper was incorrect, biased or one-sided.  Secondly, the reference to lack of eligibility for a medical waiver was irrelevant because she was not seeking a medical waiver.  Thirdly, her health situation was not referred to a health assessor but, instead, left in the unacceptable position of it being unknown whether  she  would  not  be  found  to  have  an  acceptable  standard  of  health, particularly in light of the doctor’s letter she had provided.   Fourthly, the briefing paper failed to refer to submissions made in relation to Ms Devi’s husband’s circumstances and to relevant international obligations and, fifthly, referred to international obligations under the Convention on the Rights of the Child when Ms Devi and her husband do not have children.

[21]     Underlying these various criticisms was the assertion that the correctness of material  in  the  briefing  paper  could  affect  the  reasonableness  of  the  ultimate decision.   Ms Finau relied on Duffy J’s decision in Nair v Chief Executive of the Ministry of Business, Innovation and Employment  as authority that the decision

maker must have regard to relevant factors.10   However, that case related to judicial

review of a decision under s 177 of the Act which requires the immigration officer

making the decision to have regard to “any relevant international obligations”.11

10     Nair v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC

345.

11     In any event, the decision was reversed on appeal in Nair v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZCA 248, [2016] NZAR 836. The Court of Appeal held that while a decision maker is required to turn his or her mind to any relevant international obligations, no particular test need be applied and no particular weight attached (at [30]).

This issue does not arise under s 61 where there is no obligation to take any specific matter into account.

[22]     Section 11 explicitly precludes a decision maker having to enquire further into the circumstances of the person, or make further enquiries of information provided.   Mr Burrows was fully entitled to make the decision based on the information before him.  He did not have to make further enquiries as to Ms Devi’s medical situation, nor seek further information from a health assessor.  It is irrelevant whether the briefing paper before Mr Burrows referred to the normal policy, because there was no test Mr Burrows had to apply.

[23]     For completeness, however, I do not accept that Mr Burrows approached his decision on an incorrect factual basis.   I see no objection to the briefing paper referring  to  the  plaintiff’s  immigration  history  and  medical  history  (including previous  estimates  made  of  healthcare  costs)  and  the  immigration  instructions against which the plaintiff’s previous visa applications had been measured.   The opinions of Ms Devi’s doctor were recorded and the briefing paper was not one- sided.  Mr Burrows had before him the plaintiff’s letter alongside the briefing paper, which put before him many of the issues now raised by the plaintiff.  I do not regard anything in the paper as an error that could impugn the decision.

[24]     Nor do I accept that the example used of the Convention on the Rights of the

Child is indicative of any procedural defect.

Unreasonableness of decision

[25]     There is nothing to suggest that Mr Burrows’ decision was unreasonable in the Wednesbury sense.

[26]     Ms Devi has been denied visas on four previous occasions for health reasons. She has a chronic medical problem.  She has accrued debts of nearly $200,000 for medical treatment in New Zealand.   Her doctor’s view that Ms Devi’s medical condition “appears to be in remission with the aggressive treatment we have been offering her.  I expect this will be long-term phenomenon” clearly allows for some uncertainty as to the ultimate outcome.  Mr Burrows was entitled to form his own

view on the basis of all the information and a reasonable decision maker could clearly have refused to intervene.  I see no reason this would change even if Ms Devi was experiencing a period of relative health.   The decision to decline Ms Devi’s request cannot be described as so unreasonable that no reasonable decision maker could have made it.   Nor was it so untenable that proper application of the law requires a different answer.

[27]     Ms Finau also argued that the decision not to intervene was irrational given the  Minister  had  previously  intervened  to  waive  the  health  requirements  in Ms Devi’s favour.  The standard is not whether another decision maker would have come to the same decision.  The Court will not substitute their own decision for that of the decision maker; it must be demonstrated that the decision was so unreasonable that no reasonable decision maker in Mr Burrows’ position could have reached it. That is plainly not the case.   The fact that another decision maker has previously exercised  his  or her  discretion  to  waive  requirements  does  not  indicate that  all reasonable decision makers would necessarily do so.  Mr Burrows’ decision fell to be considered under his absolute discretion; he was not required to consider previous decisions, nor bound by previous decisions favourable to Ms Devi.   Regardless, when viewed in light of previous decisions there is no indication that his decision is inconsistent.  Ms Devi had consistently failed to meet immigration requirements. As a consequence she had been denied several visas.  That s 61 had once been exercised in her favour does not make Mr Burrows’ decision unreasonable.

[28]     Nor is there any basis on which to argue that Mr Burrows failed to consider Ms Devi’s human rights.   Ms Finau argued that Mr Burrows’ decision breached Ms Devi’s rights under the International Covenant on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights because it would separate Ms Devi and her husband.   Ms Devi has no other close family members in Fiji and would be left without any family support if forced to leave New Zealand.

[29]     A decision maker is not required by s 61 to make decisions with regard to international obligations.   To raise any issue on judicial review, these obligations must have been of sufficient relevance to Ms Devi’s case “that to overlook them

raises Wednesbury unreasonableness”.12   In any event, I find that Mr Burrows did not overlook the obligations.   Mr Burrows indicated by signing the internal Record of Decision form that he considered the application of any relevant international obligations, as the briefing paper directed him to do.  He read the plaintiff’s letter which specifically referenced the human rights instruments now raised.   It was a matter for his judgment how any of the factors which he considered were weighted in his decision.

Conclusion

[30]     Ms Devi’s application for judicial review and for relief under NZBORA is dismissed.

P Courtney J

12     Zhang v Associate Minister of Immigration, above n 4, at [34].