Edenz Colleges Limited v Chief Executive, Ministry of Business, Innovation and Employment

[2012] NZHC 3452

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2532 [2012] NZHC 3452

UNDER  Judicature Amendment Act 1972

IN THE MATTER OF     an application for judicial review

BETWEEN  EDENZ COLLEGES LIMITED Applicant

ANDCHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Hearing:         11 December 2012

Counsel:         R B Stewart QC and M C Harris for Applicant

I C Carter and I T McColl for Respondent

Judgment:      14 December 2012

JUDGMENT OF RONALD YOUNG J

Introduction

[1]     The applicant, Edenz Colleges Limited (Edenz), is a private training establishment (PTE) which provides tuition to around 500 students at its Auckland and Tauranga campuses.   Most of the students are from overseas and  therefore require   visas   to   come   to   New Zealand   to   study.      Late   on   Thursday,

22 November 2012,   Immigration   New Zealand   (INZ)   and   the   New Zealand Qualifications Authority (NZQA) told Edenz by formal notice that all applications for visas to study at Edenz would be immediately and indefinitely suspended.  This notice was sent to all 31 branches of Edenz around the world.  Shortly afterward a

letter was received by Edenz from INZ which gave reasons for the suspension.

EDENZ COLLEGES LIMITED V CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT HC WN CIV 2012-485-2532 [14 December 2012]

[2]      The respondent, the acting Deputy Chief Executive of the Immigration group of the Ministry of Business, Innovation and Employment, Mr Stuart, (of which INZ is  a  division)  made  a  decision  on  22 November 2012  to  issue  those  general instructions to immigration officers.

[3]      The letter to Edenz explained that the suspension was based on two grounds:

(a)      Edenz tuition fee amounts on student “offer of place” documents (provided by the students to INZ) were in some cases different from the amounts listed on fee receipts and tax invoices held by Edenz. This led to concerns of false or misleading information;

(b)despite  the  requirement  in  the  student  visa  that  students  attend full-time courses (minimum of 20 hours per week) some courses run by Edenz were for less than this period.

[4]      Mr Stuart said he was exercising his statutory power pursuant to s 26(4) of the Immigration Act 2009 (the Act).  Later it was said that he may also have been acting under paragraph U 5.1 of the Operations Manual.  That manual is certified as “Immigration Instructions” under s 22 of the Act.

[5]      The applicant says that the suspension decision was ultra vires and unlawful. There are two broad grounds for this claim:

(a)      Mr Stuart’s  instruction  to  suspend  visa  applications  by  anyone wishing to study at Edenz exceeded the scope of his power under s 26(4);

(b)the power to suspend the processing of study visa applications is conferred  by  the   Immigration   Instructions.     Those  instructions required  compliance  with  natural  justice  when  considering suspension.  There was no compliance with natural justice in this case and so Mr Stuart’s suspension decision was unlawful.

[6]      The applicant says that much of the evidence on which Mr Stuart based his decision on was wrong and there was  no opportunity given to the applicant  to comment on the basis of the suspension.  The applicant says Mr Stuart said that he did not give Edenz an opportunity to be heard because he thought there was unlikely to be a satisfactory reason for non-compliance.  This was not a lawful justification for failing to  give Edenz a chance to respond to the allegations on which INZ proposed to suspend the visas.

[7]      INZ’s argument (before the hearing of this case) was that the decision to suspend visa processing cannot be the subject of judicial review because of the operation of s 26(7) and s 186 of the Immigration Act 2009.

[8]      In  the  alternative  INZ  submitted  there  was  no  implied  natural  justice requirement to provide prior notice of INZ’s concerns to Edenz given the factual and legal context surrounding the decision.   Edenz is a third party education provider who cannot review visa decisions relating to offshore applicants for visas.  Finally, even if there was an error of law the Court should exercise its discretion against granting a remedy.

[9]      Given the urgency of this hearing and the need for an urgent decision, I advised counsel at the end of submissions that I was satisfied there was an error of law in INZ’s decision making and that I would grant the remedies sought by the applicant.  I have approved a form of order removing the suppression order.  I now give my reasons for doing so.

Background facts

[10]     Edenz offers NZQA registered courses in these areas: (a)       English language;

(b)      teaching English to speakers of other languages; and

(c)       business and film.

[11]     That part of the business that relates to instruction in the English language has been running for almost 25 years.  The Business school and Film Academy for over ten years.

[12]     Edenz is registered as a private training establishment under the Education Act 1989 and the NZQA have statutory responsibility with respect to Edenz and other private training establishments.  This includes periodic inspections and reviews of  their  operation.    More  recently  this  involved  an  assessment  process  called “external evaluation and review” (EER) undertaken by NZQA with respect to these training establishments.

[13]     Edenz has been subject to EER assessment by NZQA in both 2011 and 2012. The  NZQA considered  that  Edenz  was  “confident”  (a  pass  mark)  in  education performance but “not yet confident” in their self assessment capabilities.

[14]     In  August 2012  the  next  EER  report  was  published  (from  March 2012 inspections) which said that Edenz was “not yet confident” in both education performance and self assessment.  An assessment of Edenz’s business school was undertaken more recently in 2012 and a draft report apparently comments favourably on the work done.

[15]     It seems that representatives of NZQA and INZ and others became concerned about compliance with NZQA Standards and INZ visa conditions with respect to a number of PTEs.  Other issues relating to the exploitation of international students as cheaper workers were also the subject of enquiry.   As a result, an enquiry was undertaken of six PTEs including Edenz.  These included visits to PTEs by INZ and NZQA that were not preannounced.

[16]     INZ say that the site visits to the Auckland and Tauranga campuses of Edenz showed problems regarding students not studying full time contrary to their visa approvals.  Full time study includes at least 20 hours compulsory instruction.

[17]     During the visit to the Tauranga campus of Edenz, INZ inspectors considered that students enrolled for the New Zealand Diploma of Business were not meeting the 20 hour requirement.  This inadequacy was said to have been remedied later in

2012 by Edenz but INZ did not consider it had been resolved.   They concluded students were only required to attend for 18 hours per week.

[18]     At the site visit in Tauranga, INZ said they requested student attendance records from Edenz but none were sent.

[19]     Tuition fees noted on the “offer of a place” form (from Edenz to the student) were sent by the students to INZ.  The tuition fee amounts were sometimes different from the amounts listed on the fee receipts and tax invoices held by Edenz.  While other complaints were made about Edenz’s conduct by INZ they were not said to be grounds on which the suspension order was made.

[20]     On 22 November 2012 Mr Cooper, the CEO of the applicant, received a telephone call from INZ telling him that all visa applications for study at Edenz were suspended.  Half an hour later he received a letter signed by the heads of NZQA and the acting Deputy Chief Executive of Immigration.  That letter said that Edenz had failed to comply with the obligations under the Education Act and the Immigration Act.  In another letter attached to the suspension letter, INZ identified two grounds

for the suspension.1

[21]     Immediately after the suspension notice was given, Edenz wrote to INZ and NZQA pointing out that Edenz had not been given the opportunity to be heard as to the reasons for the suspension.  They said there were serious consequences for Edenz students and employees in the suspension notice and asked that it be lifted.

[22]     INZ then briefed members of the news media on their decision to suspend visa applications relating to Edenz and the other three PTEs.   At that stage the applicant  says  television  crews  arrived  at  the  Edenz  campus  putting  forward

allegations  that  Edenz  had  “links  to  employers”  who  were  exploiting  foreign

1 At [3].

students.  Edenz said they knew nothing about the serious and damaging allegations and simply could not respond.

[23]     Edenz say that for the first time on the evening of 4 December 2012 when they saw the INZ’s draft affidavits in this case they understood what had led to the suspension decision.

[24]     The applicant’s case is that much of the detailed material contained in the affidavits from INZ in these judicial review proceedings have never seen the light of day as far as they are concerned.  Further, Edenz says INZ’s complaints, which form the basis of the reason for the suspension orders, about full-time courses and invoice discrepancies are wrong.

Media publicity

[25]     Before I begin an analysis of the respective position of the parties, I wish to comment on INZ’s decision to talk to the media immediately after the suspension of visas with respect to what is called “labour scams involving international students”.

[26]     The day after the applicant was told of the suspension of visas, INZ and NZQA made statements to the media and gave interviews to the media regarding the suspensions.  Part of the enquiries by INZ at the time of the suspension of visas with respect to PTEs was related to what was said to be an alleged illegal labour scam involving international students.  In press statements and a report of the suspension of visas, the illegal labour scam and the alleged failures of Edenz to comply with INZ and NZQA requirements were linked.  The implication in the press reports that I have read, is that it was alleged Edenz was involved in this illegal labour scam.

[27]     INZ have said in this case through counsel that they had not intended such a link to be drawn.  Having read the press material provided by INZ and NZQA to the media it is hardly surprising that the media took the inference that INZ were alleging that Edenz had been involved in the illegal labour scam.

[28]     There is no evidence in this case provided by INZ or NZQA which in any way  links  Edenz  with  any  alleged  illegal  labour  scam  involving  international students.   Edenz deny any such link and as  I have noted there is currently no evidence to justify any such inference.

Discussion

Authority for Suspension

[29]     INZ’s case is that it made its suspension decision based on the authority of s 26(4) of the Immigration Act and U5.1(e) of the Immigration Instructions.  In its written submissions, in summary, INZ said that a decision made under s 26(4) was not able to be reviewed by the courts given the privative clauses in ss 26(7) and 186 of the Immigration Act.  Section 26, as relevant, and s 186 provide as follows:

26       How  claims  and  applications  for  visas  and  entry  permission processed

(4)      However, the chief executive may give general instructions to immigration officers and refugee and protection officers on the order and  manner  of  processing any application or claim,  or  specified classes of application or claim, and, if so, an immigration officer or a refugee and protection officer must process an application or claim in accordance with those instructions.

...

(7)       The question whether an application or claim is processed in an order and manner consistent with any general instructions is a matter for  the  discretion  of  the  immigration  officer  or  refugee  and protection officer concerned, and—

(a)      no appeal lies against his or her decision, whether to the

Minister, the Tribunal, a court, or otherwise; and

(b)      no  review  proceedings  may  be  brought  in  any  court  in respect of—

(i)       any general instructions; or

(ii)      the application of any general instructions; or

(iii)      any failure by the Minister or an immigration officer to process, or to continue to process, an application; or

(iv)      any  decision  by  the  Minister  or  an  immigration officer to process (including a decision to continue to process), or any decision not to process (including a   decision   not   to   continue   to   process),   an application.

186     Limited right of review in respect of temporary entry class visa decisions

(1)       No appeal lies against a decision of the Minister or an immigration officer on any matter in relation to a temporary entry class visa, whether to any court, the Tribunal, the Minister, or otherwise.

(2)       Subsection (1) applies except to the extent that section 185 provides a right of reconsideration for an onshore holder of a temporary visa in the circumstances set out in that section.

(3)       A person may bring review proceedings in a court in respect of a decision in relation to a temporary entry class visa except if the decision is in relation to the—

(a)       refusal or failure to grant a temporary entry class visa to a person outside New Zealand:

(b)       cancellation of a temporary entry class visa before the holder of the visa arrives in New Zealand.

[30]     The applicant’s case is that s 26(4) had no application to the suspension decision. A suspension decision is neither an “order” nor a “manner” of processing a visa application.   They say that the suspension order did not involve any form of processing a visa application.  They say, therefore, that s 26(4) cannot be authority for a direction suspending particular visa applications.

[31]     The other authority for the decision to suspend is pursuant to the Immigration Instructions,   in   particular   paragraph U5.1(e).      Immigration   Instructions   are authorised by virtue of s 22(1) of the Immigration Act:

22       Immigration instructions

(1)      The Minister may certify immigration instructions relating to—

(a)       residence class visas, temporary entry class visas, and transit visas:

(b)      entry permission:

(c)       conditions relating to resident visas, temporary entry class visas, and transit visas, including, without limitation, conditions relating to—

(i)       travel to New Zealand:

(ii)      the holder’s ability to work or study in New Zealand

or in the exclusive economic zone of New Zealand:

(d)      the periods for which each type of temporary entry class visa may be granted:

(e)      the types of temporary visas that may be granted, and the name and description of each type.

...

(5)      The kinds of matters that may constitute immigration instructions for the purposes of this Act are as follows:

(a)      any general or specific objectives of immigration policy:

(b)       any  rules  or  criteria  for  determining  the  eligibility  of  a person for the grant of a visa of any class or type, or for entry permission, being rules or criteria relating to the circumstances of that person:

(c)       any indicators, attributes, or other relevant information or matters that may or must be taken into account in assessing a person’s eligibility for a visa or entry permission:

(d)       any  statement  of,  or  rules  or  criteria  or  process  for determining, the number or categories or ranking of persons or classes of persons whose applications for visas of any class or type or entry permission may be granted at any particular time or over any particular period:

(e)       any rules or criteria for the lapsing of applications in respect of which no decision to grant a visa has been made:

(f)       any matters relevant to balancing individual eligibility for a visa or entry permission against the overall objectives or requirements of immigration instructions:

(g)       any requirements relating to documentation, consultation, or other evidence or information required to assess a person’s eligibility for a visa or entry permission:

(h)       any statement of the conditions or types of conditions that may be imposed upon a visa of any particular class or type, and the circumstances in which or classes of persons in relation to whom the conditions may be imposed:

(i)        the  nature  and  extent  of  the  discretion  that  immigration officers may exercise in making a decision on any visa.

U5.1    Status of education providers and programmes

(a)       All  education  providers  must  certify  in  their  offers  of  places  to foreign students (see U3.5) that the programme of study or training scheme offered complies with foreign student requirements for different kinds of education providers (see U5.5–U5.20).

...

(d)       Immigration  New Zealand  (INZ)  may  suspend  the  processing  of applications  for  student  visas for study at  an education  provider where at least one of the following applies:

(i)        the offered programme of study or training scheme does not comply with foreign student requirements as set out in U5.5 to U5.20;

(ii)      the education provider is not complying with its obligations under the Immigration Act, immigration regulations, or immigration instructions;

(iii)      INZ  has  been  informed  by  education  agencies  that  the education  provider  is  not  complying  with  its  obligations under the Education Act and education regulations.

(e)       Before a decision is made to suspend the processing of student visas, the following will be taken into account:

(i)       evidence of the non-compliance; and

(ii)      reasons for the non-compliance; and

(iii)     the duration, frequency, and severity of the non-compliance. (f)     INZ may resume the processing of student visas if it is satisfied that

the education provider is complying with its obligations ...

[33]     In written submissions for this Court counsel for INZ accepted that these Immigration Instructions were one of the bases on which INZ was authorised to suspend the granting of visas for study at the relevant institution.   However, the respondent submitted that INZ had complied with the obligations in U5.1(e) of the Instructions on the facts of this case.  They had provided adequate opportunity for Edenz to respond to the allegations against them.

[34]     However, during oral submissions and after obtaining further instructions from INZ, counsel accepted that the requirements of U5.1(e)(ii) were mandatory and there had been a failure to comply with them by INZ and that this was an error of law.

[35]     This appropriate concession considerably narrowed the case. This concession is, however, only meaningful in this case if in fact the Immigration Instructions are a basis for determining whether to suspend student visas in this case.  The first issue for me to resolve is, therefore, to identify the authority of a suitably appointed immigration officer to suspend student visas arising from inadequacies in the educational institute the student proposes to study at.  I consider that the authority for a suspension order in circumstances such as this are the Immigration Instructions U5.1 and not s 26(4) of the Act.

[36]     In summary I agree with the applicant that it strains the meaning of both “order” and “manner” of processing for s 26(4) to include a suspension decision. The  statutory  background  to  s 26(4)  illustrates  its  narrow  focus.    In  contrast Immigration Instructions are authorised by s 22 of the Immigration Act to set rules and criteria for the grant of visas and entry permission.   Further, Immigration Instruction U5.1(e) is specifically designed to deal with the suspension of student visas arising from concerns about the competence of the education provider in contrast to the more general focus in s 26(4).

[37]     The Immigration Instructions at paragraph U5.1(d) identify the circumstances under which it may be appropriate to suspend student visas arising from concern about the standard of the education provider.  The Instructions at paragraph U5.1(e) make it clear that before any such decision is made, the obligations of natural justice should be complied with.  The Instructions require (“will”) the decision maker take into account “evidence of non-compliance”, “reasons for non-compliance” and the “duration, frequency and severity of the non-compliance”.   These natural justice ideas are also consistent with compliance with s 27(1) of the New Zealand Bill of Rights Act 1990.   The Instructions, therefore, are perfectly matched with the circumstances of this case.

[38]     As to the meaning of the phrase “order and manner of processing” in s 26(4), this does not self evidently relate to the concept of suspension of a visa.  “Order” appears to relate to the timing of consideration of particular visa applications.  As to the phrase “manner of processing”, that is concerned with the way in which visa applications are processed.  A “manner” of processing appears to have nothing to do with   whether   a   particular   class   of   visa   applications   should   be   suspended. Suspending a particular category of visa is hardly a manner of processing a visa. The visa application in such a situation is not processed at all – it is suspended.  This view of the meaning of the phrase is reinforced by the context in which s 26 appears in the Act and the history of the section.

[39]     Section 26 appears immediately under a subheading in Part 2.  This subpart of the Act is for “processing claims and applications for visas and entry permission”. The applicant points out that s 26 is a successor to s 13BA of the Immigration Act 1987.    This  section  was,  in  turn,  inserted  into  the  1987 Act  by  the  2003

Immigration Amendment Act.

[40]     In particular the forerunner of s 26(4) was by its explanatory note said to amend the Immigration Act:

... to enable the Department of Labour’s New Zealand Immigration Service to globally prioritise the deciding of immigration applications.  This will be achieved by providing the Chief Executive with the ability to give general instructions as to the order and manner of deciding applications.   Global prioritisation will enable residence applicants with, for example, high contribution and settlement potential to be given early consideration.  This will  ensure  that  residence  approval  places  are  allocated  to  applicants accorded  a  priority  and  deliver  the  benefits  from  these  migrants  to New Zealand more quickly.  Outcomes for New Zealand from immigration will therefore improve.  By prioritising on a global basis, applications from those   most   likely  to   contribute   to   New Zealand  and   settle   well  in New Zealand will be decided first, rather than those who have lodged their application in a particular branch that may have more capacity or residence approval places available.

[41]     This note illustrates that s 26(4) was concerned with ensuring “the order and manner” of processing visa applications reflected New Zealand’s immigration policy.

Attractive immigrants were to have their applications considered first.  However, this reasoning seems to have no connection with the suspension of particular visas.

[42]     These factors all convince me that the power and authority to give notice to suspend  student  visa   applications,  as  here,   is  pursuant  to  the   Immigration Instructions, and that it is against these Instructions in the Operations Manual that the action of INZ must be tested in the review sense.  I am satisfied that s 26(4) of the Immigration Act did not provide Mr Stuart, the decision maker, with the statutory authority to suspend visa applications in this case, and that Mr Stuart’s purported reliance on this section was in error.

Error of law – U5.1(e)

[43]     During the hearing, after discussion, as I have noted,2  the Crown conceded that the requirement in U5.1(e)(ii) was a mandatory relevant consideration for a decision maker considering whether to suspend visas in these circumstances.

[44]     In  this  case  the  decision  maker,  Mr Stuart,  therefore,  failed  to  take  into account the “reasons for the non-compliance”.   He did not tell Edenz about his concerns nor give them an opportunity to respond to those concerns before he made his decision to suspend the student visas of those who propose to study at Edenz.

[45]     Further, Mr Stuart rather surprisingly said that he thought “there was unlikely to be a satisfactory reason” for the alleged non-compliance by Edenz with INZ and NZQA requirements.   I consider, in contrast with Mr Stuart’s view, that there is a reasonably arguable case that Edenz does have a satisfactory answer to all of the complaints made against them by INZ.

[46]     Mr Stuart said in his affidavit of 5 December 2012:3

I formed the view on the information available to me that there was unlikely to be a satisfactory reason for the identified aspects of non-compliance by Edenz having regard to the nature and scale of the non-compliance.  If there

2 At [34].

3 At [15].

was a satisfactory reason or reasons, then Edenz would be able to promptly provide an explanation following notification of a suspension and MBIE would then be in a position to consider lifting the suspension.  The means to remedy the non-compliance was and is in Edenz’s hands.  As soon as Edenz meets the relevant requirements, MBIE will consider lifting the suspension. In the meantime I considered that it was important to act swiftly in order to protect Edenz’s present and prospective future students and to as far as possible preserve the reputation of the foreign student education sector.

[47]     Mr Stuart’s approach, to assume that it was unlikely INZ could explain the apparent non-compliance was effectively the opposite of taking reasons for non- compliance into account in deciding whether to suspend.  The failure of Mr Stuart, therefore, to take into account reasons for the non-compliance was an error of law.

[48]     Although it is clear Mr Stuart made an error of law in his decision making by failing to provide the applicant with a chance to respond to the allegation, if it is clear that the applicant has no answer to the allegations of INZ then the failure to provide a chance to respond would be of no account.

[49]     Here, the applicant has provided evidence which shows it has a reasonably arguable case that the two grounds on which the suspension orders were made are factually wrong.

[50]     In addition, the applicant has responded to a number of other allegations by INZ but which were not part of the basis on which the visa suspension orders were made.  I do not consider in this judgment those additional complaints.

[51]     As to the grounds on which the visas were suspended, the applicant has provided a detailed explanation of the differences in the student  fee return and receipts which appear perfectly credible.

[52]     Further, as to the full time student course hours, the applicant has pointed out INZ’s  assessment  is  based  on  outdated  course  information  and  a misreading of timetables.  Again these explanations could very well be true.  They illustrate why Mr Stuart should have made enquiries of the applicant and that the error of law by Mr Stuart could reasonably have had significant consequences.   It is reasonably

possible that the reasons given by INZ to suspend the visas is based on incorrect factual assumptions.

[53]     The respondent accepts, therefore, that in making his decisions to suspend the visa,  Mr Stuart  did  not  take  into  account,  as  he  was  obliged  to,  reasons  for non-compliance. The respondent accepted, therefore, (correctly in my view) that this failure by Mr Stuart was an error of law.

Remedy?

[54]     I  have  concluded  that  the  authority for  the  suspension  of  the  visas  was Immigration  Instruction  U5.1  and  that  in  exercising  the  discretion  under  U5.1, Mr Stuart made an error of law.  However, the respondent submitted that despite that error of law I should exercise my discretion against any remedy for the applicant in the circumstances of this case.

[55]     The respondent accepts that ordinarily an error of law in decision making gives rise to a remedy.  Public officials who make an error of law in decision making can typically expect that the erroneous decision will be set aside and any future reconsideration be based on a correct assessment of the law and the facts.

[56]     The reasons given by the respondent in support of its submission that no remedy should be given in this case, are as follows:

(a)      The applicant is seeking relief that cannot be obtained by offshore visa applicants themselves.  The respondent’s observation as far as it goes is correct.  Limiting review rights by offshore visa applicants is designed no doubt in part to protect the integrity of the immigration system.   But the applicant here does not seek any orders requiring visas to be given to particular applicants.  Its relief is to simply seek orders stopping a prohibition on a student visa entry based on registration as a student at Edenz.

(b)The investigation is ongoing with respect to Edenz with the potential for further action relating to that company.  The fact that there may be an ongoing investigation against Edenz is irrelevant to the exercise of any discretion here.

(c)      Section 26(7)  provides  that  general  instructions  are  largely (if  not entirely) outside the scope of judicial review.   While general instructions may be outside the scope of judicial review, the decision to suspend here was a decision based on the Immigration Instructions and not on the general instructions.  Immigration Instructions are not subject to any statutory privative clause and actions taken pursuant to Immigration Instructions are generally reviewable.

(d)INZ acted in good faith in response to legitimate concerns about the applicant’s compliance with education and immigration law and that there is a strong public interest in maintaining the integrity of this country’s foreign student education sector.   I accept of course that there  is  a  strong  public  interest  in  maintaining  the  integrity  of New Zealand’s foreign student education sector.   However, concern about its integrity cannot justify a breach of a clear requirement in the Immigration Instructions to consider what the education provider says about the claims that they have breached the rules.  Importantly, the suspension notice had a potential for a catastrophic effect on Edenz’s business.   This is the time of recruitment by Edenz for the 2013 academic year.  Without students being able to register there will be no Edenz business.  This is a company which has operated in this area for 25 years with over 50 staff.  These are all factors which favour a remedy being given.

(e)      The removal of general instructions would not of itself lead to a grant of a visa in individual cases.  I accept the respondent’s observations are correct as far as they go.   Immigration officers are entitled in individual cases to exercise their own judgement in each case.  This,

however, does not count against making an order removing a general suspension of all of those who have registered for education at Edenz.

[57]     It is difficult to understand why there was a need for urgency from INZ’s perspective which required immediate suspension without notice to Edenz.  Part of the reasons for suspension were based on information received in early 2012 relating to the first semester courses of 2012 in Tauranga.  They formed the basis of at least one of the allegations by INZ that full time education was not being provided by Edenz.   INZ does not appear to have reacted to this information for over eight months.

[58]     Secondly, the 2012 academic year is drawing to a close.  Any INZ decision will not affect 2012 students.   As far as 2013 students are concerned, INZ could easily have allowed them to register for 2013 with Edenz, sought a response from Edenz as to the allegations which they believe would justify suspension and if suspension was then the preferred course, could have required the 2013 students registered with Edenz to register with another institute or cancel their visa.

[59]     Finally, the evidence filed by the applicant as I have noted shows that it is a reasonable possibility that the basis on which INZ suspended the visas is wrong. This strongly supports the proposition that this is a case where a remedy is appropriate.

[60]     Based on the evidence filed by the applicants, INZ should be required to consider  that  evidence  and  any  other  evidence  presented  to  them  before  they redecide whether suspension is justified.

[61]     I, therefore, reject the respondent’s arguments that I should refuse relief in this case.  The applicant in its amended statement of claim sought a declaration that the purported suspension order is invalid and an order setting aside the suspension order.

[62]     At the conclusion of the hearing I left counsel to agree on the exact form of the order but which would include the setting aside of the suspension notice itself.

Costs

[63]     If the applicant seeks costs, memoranda should be filed by 4 February 2013 with a further 14 days for the respondent’s reply.

Ronald Young J

Solicitors:

R B Stewart QC, Auckland, email:  [email protected]

M C Harris, Gilbert/Walker, Auckland, email:  [email protected]

I C Carter, Crown Law, Wellington, email:  [email protected]
I T McColl, Wellington