Goundan v Immigration and Protection Tribunal

[2018] NZHC 1756

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-302

[2018] NZHC 1756

BETWEEN

NIRMALA DEVI GOUNDAN

Plaintiff

AND

THE IMMIGRATION AND PROTECTION TRIBUNAL

First Defendant

AND

The Minister of Immigration Second Defendant

Hearing:	22 June 2018
Appearances:	R S Pidgeon for Plaintiff S Earl for the Defendants
Judgment:	17 July 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 17 July 2018 at 3.00 pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:

Patel Nand Legal, Auckland Meredith Connell, Auckland

GOUNDAN v THE IMMIGRATION AND PROTECTION TRIBUNAL [2018] NZHC 1756 [17 July 2018]

[1]    Nirmala Goundan has applied to review the decision of the Associate Minister of Immigration not to grant Mrs Goundan, her husband, and three of their four sons residence class visas as an exception to the residence instructions made under the Immigration Act 2009. The principal issue raised by the application is whether the Associate Minister was required to consider the New Zealand Immigration Service (INZ) file on Mrs Goundan’s application when making his decision.

Relevant background

[2]    Mrs Goundan is a 48-year old citizen of Fiji. Mrs Goundan, her husband and four sons have been living in New Zealand for 10 years. In July 2016, Mrs Goundan applied for a residence class visa under the Skilled Migrant category. Mrs Goundan’s husband and three of the four sons were included in the application.

[3]    In July 2017, INZ declined  Mrs Goundan’s  application.  INZ  considered Mrs Goundan did not meet the requirements under the Skilled Migrant category because her role as a rehabilitation programme worker did not substantially match the Australian and New Zealand Standard Classification of Occupations (ANZCO) description and core tasks for a Residential Care Officer. Mrs Goundan appealed that decision to the Immigration and Protection Tribunal under s 187(4) of the Immigration Act.

[4]    In a decision dated 14 December 2017,1 the Tribunal declined Mrs Goundan’s appeal  because  it  found  that  INZ  had  considered  all  relevant   evidence  of   Mrs Goundan’s employment and had fairly and correctly found that Mrs Goundan’s employment did not substantially match the ANZCO description and core tasks for a Residential Care Officer. However, in accordance with s 188(1)(f) of the Immigration Act, the Tribunal considered Mrs Goundan’s application raised special circumstances such as to warrant consideration by the Minister of Immigration as an exception to the residence instructions made under the Act.

[5]    On 18 January 2018, the Associate Minister of Immigration, in accordance with s 190(5) of the Immigration Act and exercising delegated power on behalf of the

1      Goundan [2017] NZIPT 204305.

Minister, declined to grant residence class visas to Mrs Goundan and the other family members on her application. Under s 190(6) of the Immigration Act, the Associate Minister was not required to give reasons for his decision and did not do so.

[6]    On 23 January 2018, Mrs Goundan brought proceedings to review the Associate Minister’s decision on the grounds the decision was invalid.

Alleged invalidity of decision

[7]    The central contention in the statement of claim and in the submissions by Mrs Goundan’s counsel, Mr Pidgeon, is that the INZ file on Mrs Goundan, which the Associate Minister did not read, was a relevant mandatory consideration that the Associate Minister should have taken into account when making his decision.

[8]    Mr Pidgeon, counsel for Mrs Goundan, said that it is not enough for the Associate Minister to base his decision on the Tribunal’s decision and that the Associate Minister must consider the full submissions, explanations and evidence provided to the Tribunal. These are the matters on the INZ file. Mr Pidgeon said the Associate Minister’s failure to have regard to the file, and in particular the submissions in support of Mrs Goundan’s appeal that were on the file, was a breach of natural justice, a breach of New Zealand’s international obligations, and unreasonable. He said this was particularly so when the Tribunal’s decision signalled to the Associate Minister there was supporting material on the file to which he could have had regard and when the Associate Minister was proposing not to follow the Tribunal’s recommendation.

Admissibility of evidence

[9]    In the course of the hearing, I ruled inadmissible an affidavit in support of Mrs Goundan’s application sworn by Matthew Robson, who was a Cabinet Minister between 1999 and 2002. Mr Robson swore the affidavit as an expert in Ministerial decision-making and gave his opinion on the matters to which the Associate Minister should have had regard when making his decision.

[10]   I did not consider any particular expertise was required in understanding the considerations to which a Minister should have regard when exercising statutory powers of decision generally or under the Immigration Act in particular. Moreover, Mr Robson’s four years of experience as a Minister ended some 16 years ago and he had very different portfolio responsibilities – Corrections, Courts, Disarmament and Arms Control and, in an associate capacity, Foreign Affairs. Having regard to s 25 of the Evidence Act 2006, I did not consider I would be likely to obtain substantial help from Mr Robson’s opinion in understanding the evidence in the proceeding or in ascertaining any key fact of consequence to my decision.

Material considered by the Associate Minister

[11]   There is no dispute that the Associate Minister did not look at the INZ file when he made his decision and that the Associate Minister made his decision on the basis of the Tribunal’s decision. In an affidavit sworn on 30 May 2018, the Associate Minister said:

(a)While  he  did  not  remember  making  the  specific  decision  on   Mrs Goundan’s application, he would have followed his usual decision- making process when the Tribunal recommends that special circumstances of an appellant warrant consideration as to whether a residence class visa should be issued as an exception to instructions;

(b)His usual practice is to consider the Tribunal’s decision on the application in question, in particular the Tribunal’s assessment of special circumstances, but he does not usually ask to see further information from the applicant’s INZ file, which is held separately but is available on request. This is because the relevant circumstances are generally set out in detail in the Tribunal’s decision and he can make his decision based on the Tribunal’s description of the appellant’s circumstances.

[12]   The Tribunal’s decision ran to 85 paragraphs. The first 44 paragraphs set out the nature of and background to Mrs Goundan’s appeal and considered whether INZ had correctly decided Mrs Goundan’s application for residency. One of these

paragraphs, [23], listed in 24 sub-paragraphs the submissions and extensive supporting material filed with the Tribunal in support of Mrs Goundan’s application.

[13]   The next 36 paragraphs ([45]-[80]) considered whether there were special circumstances that warranted consideration by the Minister under s 188(1)(f) of the Immigration Act. In those paragraphs, the Tribunal considered the personal circumstances of Mrs Goundan and her family, including their health, education and work experience, the length of time they had been in New Zealand, why they wanted to stay in New Zealand, and their concerns at the difficulties they could encounter if required to return to Fiji. Paragraph [71] stated:

Extensive letters of support from family, friends, employers and others in the community have been provided on appeal, who describe the family as honest, hard-working and community-minded. …

[14]The Tribunal’s conclusion at paragraph [88] was:

Considering the appellant, her husband and sons’ circumstances individually and cumulatively, the Tribunal finds that their circumstances are special such as to warrant a recommendation that the Minister of Immigration consider making an exception to residence instructions in this case.

The nature of the Associate Minister’s decision

[15]   Section 190(5)(a) of the Immigration Act provides that where the Tribunal makes a recommendation under s 188(1)(f), the Minister (or Associate Minister) of Immigration must consider whether a residence class visa should be granted to an appellant as an exception to residence instructions. It is implicit that the Minister must not only consider but must decide whether to grant a residence class visa in such circumstances. In doing so, the Minister is exercising a discretion under a statutory power of decision.

[16]   It is axiomatic that, when exercising a statutory power of decision, a decision- maker must have regard to relevant considerations. The Court of Appeal has said:

(a)It is only when a statute expressly or impliedly identifies considerations required to be taken into account that an exercise of statutory discretion may be set aside for failure to have regard to relevant considerations;2

(b)It is not enough that a consideration is one that may properly be taken into account or even that it is one that many people, including the Court, would have taken into account if they had to make the decision;3

(c)A statute may impliedly identify considerations which are mandatory for a Minister to take into account in exercising a discretion;4

(d)Where the considerations are not specified or are not exhaustive, the considerations required to be taken into account must be ascertained from the subject matter as well as the scope and objects of the statute.5

[17]   The Immigration Act does not expressly specify the considerations that the Minister must take into account when making a decision under s 190(5). Taken together, s 190(5) and s 188(1)(f) simply provide that the Minister may, as an exception to the residence instructions, grant a residence class visa to a person whose appeal the Tribunal has declined but whom the Tribunal has recommended for consideration because of the person’s special circumstances.

[18]   The broad terms in which the Minister’s power is cast, coupled with the fact the Minister is not required to give reasons for his or her decision, make it clear the Minister has a broad discretion when making a decision under s 190(5). That conclusion is reinforced by two further considerations:

(a)The purpose of the Act as set out in s 3(1) is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals; and

2      CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 183; Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1 (CA) at 33.

3      CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 183.

4      Auckland City Council v Minister of Transport [1990] 1 NZLR 264 (CA) at 293.

5      Keam v Minister of Works and Development [1982] 1 NZLR 319 (CA) at 327; Secretary for Justice v Simes [2012] NZCA 459, NZAR 1044 at [50].

(b)The Minister’s decision is an exception to the residence instructions which, in accordance with s 22, are certified by the Minister of Immigration and are statements of government policy.

[19]   These considerations make it clear there is a high policy content to decisions made under the Act and that in decisions under s 190(5), the Minister has a discretion to make decisions that are an exception to national policy as determined by the government. This last factor is itself a matter of considerable significance because the Minister is authorised to make a decision that is not subject to established government policy.

[20]   In addition, as found by Moore J in CF v Attorney-General (No 2),6 nothing in s 190 limits the matters the Minister may take into account when considering the Tribunal’s recommendation, and the Act’s purpose does not suggest there should be any implied limitations.

[21]   While the discretion exercised under s 190(5) is not an “absolute discretion” as that term is described in s 11 of the Immigration Act and was considered by the Court of Appeal in Zhang v Associate Minister of Immigration,7 the high policy content of the decision, the wide scope of the matters the Minister may take into account, and the fact the Minister is not required to give reasons all suggest the Court should be cautious in interfering in such decisions absent an error of law or unreasonableness in the Wednesbury sense.

Is the Minister required to consider the INZ file?

[22]   As already noted, ss 180(1)(f) and 190(5) do not expressly require the Minister to take into account any particular information or documentation. It is inherent in the sections, however, that the Minister must have regard to the recommendation of the Tribunal and the reasons for that recommendation, particularly with regard to the special circumstances of the appellant as found by the Tribunal. These are matters set out in the Tribunal’s decision.

6      CF v Attorney-General (No 2) [2016] NZHC 3159, [2017] NZAR 152 at [108].

7      Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222.

[23]   The Tribunal is a statutory body with the functions set out in s 217 of the Immigration Act. One of those functions is to decide appeals against decisions to decline to grant residence class visas. Section 218 provides that the Tribunal is a specialist body with the role of deciding appeals by making findings of fact, applying the relevant law, and making determinations. In accordance with s 237 and clause 17(3) of Schedule 2 of the Act, decisions of the Tribunal must be in writing and must include reasons for the decision and for any minority view.

[24]   Given this legislative framework, the Minister can reasonably expect that any decision of the Tribunal will include appropriate findings of fact drawing on the Tribunal’s specialist expertise and will contain reasons for all findings of fact and law relevant to its decision.

[25]   In making a decision under s 190(5), the Minister is not acting in an appellate role. The decision is whether to grant residency as an exception to the instructions. That does not require the Minister to consider whether the Tribunal’s recommendation is right or wrong. And, as noted in CF v Attorney-General (No 2), the Minister is not limited to the matters canvassed by the Tribunal when making a decision.8 It follows that there should be no expectation that the Minister should review the primary evidence on which the Tribunal relied when making its recommendation.

[26]   Mr Pidgeon suggested that a Minister should review the INZ file because it is not reasonable to expect a busy Tribunal to include all relevant material in its decision. I do not accept that submission. In reality, a Minister or Associate Minister is likely to have many responsibilities within and beyond the Immigration portfolio and could not be expected, as a matter of course, to review a file that the specialist Tribunal has considered and on which it has made a reasoned decision and recommendation.

[27]   For all these reasons, there is no basis for concluding that the Minister or Associate Minister must take into account the INZ file when making decisions under s 190(5). The file is something that a Minister could consider, and perhaps should consider if there is something in the Tribunal’s decision that suggests a review of the file would be appropriate. However, there is nothing in the legislation or in the nature

8      CF v Attorney-General (No 2) [2016] NZHC 3159, [2017] NZAR 152 at [108].

and circumstances of the Minister’s decision that persuade me that the INZ file is impliedly a consideration that is required to be taken into account as a matter of course.

Particular circumstances of Mrs Goundan’s appeal

[28]   The above conclusions deal with Mr Pidgeon’s primary contention that the INZ file is a relevant mandatory consideration in any decision under s 190(5). They have even more force in the context of Mrs Goundan’s appeal.

[29]   Mr Pidgeon submitted repeatedly that the Associate Minister should have had regard to the file because of the strong signal in paragraph [23] of the Tribunal’s decision of the existence of supporting material on the file and that the Associate Minister might have been swayed to make a different decision if he had seen the totality and detail of the material on the file in support of Mrs Goundan’s appeal.

[30]   However, Mr Pidgeon also acknowledged that there was nothing in the material on the file that was not recorded, albeit in synthesised summary form, in the Tribunal’s decision. As Ms Earl, counsel for the Minister, observed, the Tribunal’s decision accurately and comprehensively summarised the matters relevant to the special circumstances of Mrs Goundan and her family, including the evidence and submissions filed on appeal. In terms of substance, therefore, there was nothing on the file that was not before the Associate Minister when he made his decision.

[31]   This reality disposes of any contention that the file itself, as distinct from what was on the file, was a relevant consideration to which the Minister should have had regard in the circumstances of this case. It also disposes of Mr Pidgeon’s submission that a failure to consider the file was unreasonable in the sense of being so insupportable or untenable that the proper application of the law required a different answer.9

[32]   The same holds for the contention there has been a breach of natural justice. If, in terms of substance, there was nothing in the Tribunal’s decision that was not on the file, failure to consider the file cannot be a breach of natural justice. Mr Pidgeon’s

9      See Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [29].

submission that natural justice requires that an appellant should have had an opportunity to respond to the Minister or Associate Minister before he or she makes his final decision would impose an unreasonable burden on the Ministers who cannot be expected to engage with individual appellants, especially when the decision may be based on wider policy considerations that may not be pertinent to a particular appellant.

[33]   Furthermore, there is no obligation under international law that requires a Minister to consider the INZ file rather than relying on the material in the Tribunal’s decision. Article 17 of the International Covenant on Civil and Political Rights is not engaged in the circumstances of this case. There is no arbitrary interference in Mrs Goundan’s privacy or family in the Associate Minister making a decision based on the information contained in the Tribunal’s decision. Nor is there any infringement of the requirements of Article 23 of the same Covenant dealing with the protection of the family. The arguments based on breaches of the Covenant have little merit.

[34]   Lastly, Mr Pidgeon’s submission that the Associate Minister should have considered the file because he was proposing not to follow the Tribunal’s recommendation fails to appreciate that the Tribunal does not make a recommendation to the Minister on what decision he or she should take. In accordance with s 188(1)(f), the Tribunal’s recommendation is simply that there are special circumstances that warrant consideration by the Minister. How the Minister decides the matter is left entirely to the Minister. It would not be consistent with the wide discretion left to the Minister when making a decision to imply a requirement that there should be any differentiation in the material considered by the Associate Minister depending on whether he or she is proposing to grant or not to grant a residence class visa as an exception to instructions.

Conclusion

[35]    For all the above reasons, there was no requirement for the Associate Minister to consider the  INZ file when deciding whether to grant residence class visas to   Mrs Goundan and her family.

[36]The application for review is dismissed.

Costs

[37]    The Minister is entitled to costs on a 2B basis. If the parties are not able to agree costs, counsel for the Minister is to file a memorandum by 14 August 2018; any reply on behalf of Mrs Goundan should be filed by 4 September 2018. Memoranda should not exceed four pages.

G J van Bohemen J