Higgs v Minister of Immigration
[2022] NZHC 1333
•8 June 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001569
[2022] NZHC 1333
BETWEEN DAVID JOHN HIGGS
Applicant
AND
MINISTER OF IMMIGRATION
First Respondent
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENTSecond Respondent
CIV-2021-404-001510 CIV-2021-404-001472 BETWEEN
MICHAEL JOHN WITBROCK
ApplicantAND
MINISTER OF IMMIGRATION
First Respondent
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Second Respondent
Hearing: 8 December 2021; further submissions 22 December 2021 Appearances:
S Dalley and P Sundar for the Applicants (by VMR)
M Mortimer-Wang and S Perera for the Respondents (by VMR)
Judgment:
8 June 2022
JUDGMENT OF WALKER J
This judgment was delivered by me on 8 June 2022 at 12 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
DAVID JOHN HIGGS v MINISTER OF IMMIGRATION [2022] NZHC 1333 [8 June 2022]
Introduction [1]
The parties [10]
Context and statutory framework [19]
New Zealand’s border response to COVID-19 and impact on immigration rules
[38]
Regulation 9A – a solution? [43]
Certification of E13 [47]
Extension of reg 9A [54]
Procedural History [64]
The Grounds of Challenge [72]
Preliminary [76]
Is Y3.5.1(a)(ii) ultra vires? [79]
What role does Y 3.5.1(a)(ii) have in these challenges? [83]
The contentions [85]
Discussion [88]
Alleged failure to properly consider international and domestic human rights obligations in making the lapsing and suspension decisions? [94]
Contentions [94]
Discussion [105]
Lapsing decision [123]
Irrelevant considerations? [136]
Failure to consider discriminatory impact – s 19 Bill of Rights Act [142]
The contentions [142]
Is section 19 Bill of Rights Act engaged? [148]
Discussion [153]
Are the impugned decisions discriminatory? [169]
Result [199]
Costs [200]
Introduction
[1] The consequences of COVID-19 for governments and communities around the world extended well beyond health impacts. The New Zealand Government committed to an elimination response in recognition of the possibility that New Zealand’s health system could be overwhelmed. New systems, policies and rules were established at speed to achieve the stated objective. Closing New Zealand’s borders to most travellers on 19 March 2020 was an integral component of the elimination strategy. This closure was unprecedented and rapid. Border closures reverberated widely. Not only was entry permission closed to many holders of temporary entry class visas, but many people in New Zealand on temporary visas could not leave. For those who were still entitled to travel to New Zealand, the Government established a managed isolation and quarantine system.
[2] Unsurprisingly in the light of their impact, there have been many challenges to the measures adopted by Government. The three consolidated proceedings before this Court challenge decisions of the first respondent, the Minister of Immigration (the Minister), intended to deal with the consequences of the border closure. These decisions most directly impacted partners and families of New Zealand citizens and residents, and partners and families of temporary visa holders living in New Zealand.
[3] The first decision challenged is the Minister’s recommendation to Cabinet to extend the temporary suspension of the ability of most non-New Zealand citizens or New Zealand residents to apply for a temporary entry class visa. The extensions were to the duration of reg 9A of the Immigration (Visa, Entry Permission and Related Matters) Regulations 2010 (Regulations). There have been multiple extensions. Michael Witbrock, the plaintiff in two of these proceedings, formally challenges the renewal in June 2021, by which reg 9A was extended to 6 February 2022, and the renewal on 22 November 2021, by which it was extended to 5 August 2022.1
[4]I refer to these impugned decisions as the suspension decisions.
1 Mr Witbrock is the plaintiff in CIV-2021-404-1472 and CIV-2021-404-1510. Mr Higgs is the plaintiff in CIV-2021-404-1569. I refer to both as the “plaintiffs” rather than as the “applicants” to avoid confusion of nomenclature.
[5] The second decision challenged is the Minister’s certification of immigration instruction E13 which permits (but does not require) an immigration officer to lapse certain applications for temporary entry class visas received or unable to be processed during the period of border closure. Lapsing means the removal of an application from the cohort of active files to be processed and determined by Immigration New Zealand (INZ).
[6]I refer to this decision as the lapsing decision.
[7] At their heart, these challenges are about the scope of exceptions to reg 9A and E13, more particularly, the partnership exception. One of the temporary entry visa categories excepted from reg 9A is an application by any person who is applying for the visa on the basis that the person is a spouse, partner, or dependent child of a New Zealand citizen or a person who holds a residence class visa.2 Instruction E13 in a similar fashion excludes the ability to lapse applications which are based on a relationship (partner or dependent child/ren) with a New Zealand citizen, residence class visa holder or temporary visa holder.
[8] INZ construes these exceptions as limited to ‘partnership’ visas, by type, and relies on existing instructions relating to partnership applications. INZ draws a distinction between applications based on a relationship (either partnership or dependent child) – that is, an application for a type of visa that requires them to meet partnership instructions, and applications for a temporary entry class visa in their own right. Those who are in genuine and stable relationships but do not live together do not satisfy INZ’s criteria for partnership applications.
[9] This is a particularly acute problem for people from certain ethnic and religious backgrounds because their culture, society and/or religious beliefs do not allow partners to live together before marriage. It is similarly an obstacle for those living in countries which discriminate against same sex relationships and others in the LGBTQIA+ community. This is described in the plaintiffs’ evidence as a “Catch-22”; couples must live together to meet the partnership visa requirements yet require a visa to be able to live together in New Zealand for cultural, societal or religious reasons.
2 In addition, the holder of that residence class visa, must or may be granted entry permission under immigration instructions.
The parties
[10] Mr Witbrock is a New Zealand citizen who married his husband in New Zealand. His husband, Yunli Lu, is a Chinese national who has a General Visitor Visa (GVV) application lodged with INZ. The application was lodged in November 2019 for a GVV because of their inability to meet the living together requirement. Mr Witbrock deposes to his understanding that INZ has accepted that the couple are in a genuine and stable relationship but is unable to grant Mr Lu a visa as INZ has suspended ‘processing’ of GVVs to offshore applicants. It is now in the process of lapsing visas of this type.
[11] I will return to this issue of precisely what reg 9A and instruction E13 in fact achieve later in this judgment but simply record at this point that none of the challenged decisions themselves suspend the processing of visa applications.
[12] Mr Lu requested a humanitarian exception to the border closure in April 2020 so that he could join Mr Witbrock. INZ denied his application. As at the time of hearing, the couple had been separated since 8 January 2020 due to COVID-19 constraints.
[13] Mr Lu and Mr Witbrock have not lived together during their two-year marriage. Even when the Chinese border is open to non-citizens, they say they will not be able to live together in China due to China’s non-recognition of LGBTQIA+ relationships. Mr Witbrock states in his affidavit (made before the most recent extension):
To an extent, I can understand the suspension on processing of certain visas when COVID-19 first hit New Zealand, however the suspension has been extended to February 2022. This delay and the endless uncertainty is very difficult to understand and causes further stress and strain on me as a New Zealand citizen. As a New Zealand citizen, I am entitled to no arbitrary interference with my right to family unity. I continue to be separated from my husband for arbitrary reasons.
[14] He also deposes to the personal impact on the couple should the type of visa application made by Mr Lu be lapsed. He says that even if Mr Lu can make another visa application when New Zealand’s border opens, Mr Lu will have lost the place he held in the processing queue leading to greater uncertainty for an even longer period with ongoing deleterious impacts on both partners.
[15] David Higgs, the plaintiff in one of these proceedings has a partner with a GVV application lodged with INZ which, at the time of filing the proceeding, was about to be lapsed. In the exercise of INZ’s discretion this will not be lapsed pending this substantive determination.3 He has been separated from his partner for more than 18 months. He also describes the emotional impact of forced separation from his partner, and the sense of hopelessness consequent on any lapsing of the application.
[16] In some respects, the plaintiffs are advancing these claims in a representative capacity on behalf of the cohort of visa applicants and their partners affected by these measures. Katrina Armstrong-Myers, a licensed immigration advisor, has provided evidence. An advocate for families and partners separated by border closures, she says that in her day to day work she has come across hundreds of families separated by the decision to ‘suspend visa processing’ and hundreds who remain split because they cannot meet the living together requirements.
[17] Mr Witbrock challenges both the suspension decisions and the lapsing decision. Mr Higgs challenges only the lapsing decision. Given the substantially overlapping issues, I do not intend to distinguish between the three sets of proceedings save where necessary to do so.
[18] The second respondent is the Chief Executive of the Ministry of Business, Innovation and Employment (MBIE). INZ is a business unit within MBIE. No decision or action of INZ is directly challenged in these proceedings, as framed, but the relief which the plaintiffs seek extends to prevent INZ taking certain actions. The second respondent acknowledges that she is an appropriate party to the proceeding.
Context and statutory framework
[19] To put the plaintiffs’ challenges in context, I briefly describe the immigration framework.
[20] The purpose of the Immigration Act 2009 (the Act) is to “manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”.4 The control of New Zealand’s border lies with the Crown. The
3 Higgs v Minister of Immigration [2021] NZHC 2287 at [10].
4 Immigration Act 2009, s 3(1).
decision as to whether a non-citizen can enter and remain in New Zealand is the sole prerogative of the Executive.5
[21] Christine Hyndman, a Principal Policy Advisor with MBIE explains the various mechanisms for managing immigration in this way:
Policy decisions by government inform settings, and those are translated into rules in various forms: at the highest level in the Immigration Act 2009 as primary legislation endorsed by Parliament, and also through regulations and immigration instructions (the latter of which are statements of government policy which are given the force of law by the Act).
[22] Within the immigration environment, the statements of government policy contained in immigration instructions are certified by the Minister under s 22 of the Act. The Minister’s power to certify immigration instructions relates to a variety of matters. These instructions are rules and guidance for decisions by immigration officers. The rules and guidance, or criteria, for the grant of temporary entry class visas are set by these instructions. Relevantly, section 22 of the Act provides:
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.
…
(3)Applications for temporary entry class visas or transit visas that are made before any relevant immigration instructions take effect may be
5 Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [116]-[117].
determined in accordance with those immigration instructions when those instructions take effect.
(4)Subsection (3) does not apply to applications for temporary entry class visas subject to restricted temporary entry instructions.
(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 or of any other person (a third party) whose circumstances are relevant to the person’s
eligibility, including (without limitation) rules and criteria about how any status or approval may be obtained or lost by the third party:
(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.
…
(8)Immigration instructions certified by the Minister under subsection (1)——
(a)are statements of Government policy.
[23] INZ’s Operational Manual (the Manual) contains the instructions certified pursuant to s 22. As policy documents, these instructions are working documents but also legal instruments through s 22 of the Act. The usual approach to interpretation is applicable. That is, the legal principles of interpretation of text in light of purpose. Interpretation must be consistent with the purposes of that part of the Act under which the policy is made, consistent with usual principles of administrative law and consistent with the rights and freedoms in the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).6
[24] Anyone travelling to New Zealand who is not a New Zealand citizen requires the grant of a visa and the grant of entry permission. These are distinct and separate. Each is governed by its own criteria against which eligibility is determined.7 Entry permission generally refers to decisions made by immigration officials at the time of arrival at the New Zealand border. The grant of entry permission is not automatic merely because an individual holds a temporary entry class visa.
[25]There are three classes of visa:8
(a)Temporary entry class visas;
(b)Residence class visas; and
(c)Transit visas.
[26] A temporary entry class visa is a visa that provides for a temporary stay in New Zealand but no right to stay permanently. This distinguishes a temporary entry class visa from a residence class visa.9 A person granted a temporary entry class visa who is offshore, is entitled to travel to New Zealand and apply for entry permission. If
6 Chamberlain v Minister of Health [2018] NZCA 8, [2018] 2 NZLR 771 at [41]. The Court of Appeal in H v Minister of Immigration [2020] NZCA 562 compared the approach in Chamberlain and the approach in Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271. Though the opening words of the statement in Patel suggest a less strict approach to interpretation of government policy, the Court of Appeal said, read as a whole, it can be seen that there is in fact no real difference between the two approaches.
7 Afghan Nationals v Minister of Immigration [2021] NZHC 3154 at [62].
8 Immigration Act 2009, s 70.
9 Immigration Act 2009, ss 74 and 77.
entry permission is granted, they are then entitled to stay in New Zealand during the currency of the visa in accordance with the conditions of their visa.10
[27] Types of temporary entry class visas include visitor visas, work visas, and student visas. Within these types, there are also specialised or targeted categories.
[28] Relevant to the present context are immigration instructions E4.5.20 and E4.5.30 which contain policy statements relating to partnership visa applications. They read:
E4.5.20 Evidential requirements for partners
a.If a partner is included in an application, or is applying in their own right as the partner of a temporary entry class visa holder, a New Zealand citizen, or residence class visa holder, the following must be provided:
i.evidence of their relationship, and
ii.evidence that demonstrates they are living
together with that partner in a genuine and stable relationship (E4.5.35 sets out the types of
evidence that are required).
b.Where a person is applying for a temporary entry class visa on the basis of partnership, their partner must provide a completed Form for Partners Supporting
Partnership-based Temporary Entry Applications (INZ 1146).
c.Despite (a) above for the purposes of visitor visa
instructions, where an application includes a partner as a secondary applicant, a declaration from both parties may be accepted as evidence that they are living together in a genuine and stable partnership (see E4.5.35(b)).
…
E4.5.30 Definition of ‘living together’
For the purposes of these instructions:
a.the principal applicant and their partner are considered to be living together if they are sharing the same home as partners (as defined in E4.1.20).
b.Living together does not include:
10 Immigration Act 2009, s 77.
i.time spent in each other’s homes while still maintaining individual residences; or
ii.shared accommodation during holidays together; or
iii.flatmate arrangements; or
iv.any other living arrangements that are not reflective of the factors set out at E4.5.35(a).
[29] Ms Hyndman discusses the nature of immigration policy in her affidavit. She describes the need to balance a number of competing objectives, including the security and safety of New Zealand, individual rights, international obligations and the economic wellbeing of the country. She explains that the system is managed by setting rules of general application that apply to all persons and which reflect policy. Those rules are supplemented by appropriate individualised approaches to ensure as far as possible that there is a correct and fair result in individual cases. This includes by permitting principled, individual exceptions to the rules to avoid individual injustice.
[30] Ms Hyndman’s evidence discusses the requirements of the partnership visa and how it fits into New Zealand’s immigration policy. There are different pathways to obtain a visa, with different criteria for each. One such pathway is to apply based on an applicant’s partnership to a New Zealand citizen or resident. Generally, partners of New Zealanders would apply for a temporary entry class visitor visa (based on partnership) or a temporary entry class work visa (also based on partnership). The instructions relating to each set out particular criteria to meet but they also all include the need to meet partnership requirements.
[31] Partnership requirements are a creation of policy rather than the Act. The objective of this category of visas, and the supporting immigration instructions, is to strengthen families and communities while reinforcing Government’s overall objectives. The core requirements relating to partnership are that an immigration officer must be satisfied that the applicant is living together with their partner in a genuine and stable partnership.11 The living together requirement is further prescriptively defined in E4.5.30. In short, the principal applicant and their partner are considered to be living together if sharing the same home, as partners. It does not
11 Immigration New Zealand Operational Manual (26 May 2022) at [E4.5.25] and [E 4.5.30].
include time spent in each other’s homes while still maintaining individual residences or shared accommodation during holidays together, flatmate arrangements or any other living arrangements that are not reflective of the factors set out in E4.5.35(a).
[32] Ms Hyndman explains the policy imperative behind setting a threshold for recognising a relationship. New Zealand has set the requirements for recognition as including “living together” irrespective of whether the couple is married, in a civil union, or in a de facto relationship. She says that this criterium represents a balance between ensuring that persons in genuine partnerships can be granted partnership- based visas, and reducing the opportunities for misuse or fraud. From a policy perspective, fraud in the partnership space is a particular concern for INZ. There exists a market for such visas where people can and do enter into commercial arrangements with New Zealand citizens or residents falsely claiming to be in a partnership to obtain a visa. Criteria such as the “living together” requirement aims to reduce the incidence of fraudulent applications.
[33] Ms Hyndman acknowledges that one of the key tensions in setting partnership policy is that some of the criteria aimed at reducing the incidence of misuse risks being unresponsive to relationship diversity. This includes where, due to cultural or legal factors outside a couple’s control, they will struggle to meet all of the partnership requirements, including the living together requirement.
[34] She says that INZ recognises this and tries to reduce the impact of the partnership criteria on those persons who are assessed as being in genuine relationships but cannot meet all of the criteria by the following mechanisms:
(a)The culturally arranged marriage visitor visa (CAM). This is a special class of visitor visa. It is based on relationship which allows people who have married, or are intending to marry a New Zealand citizen or resident, to be granted a visitor visa provided the marriage follows an identified and recognised tradition where arrangements for the marriage are made by persons other than the parties to the marriage.
(b)Immigration officers have the ability under the Act to grant a visa of a type different to the one a person applied for.12
(c)Immigration officers also have the ability to grant a temporary entry class visa as an exception to Instructions. In short, waiving a requirement in instructions such as the living together requirement.13
[35] I pause to note that granting exceptions to instructions is not a preferred route for INZ. INZ’s policy since November 2019 for alternatives to partnership visas is represented by Internal Administration Circular (IAC) 19/10 which relevantly states:
Processing guidance for partnership-based applications
12. Where a person has applied for a partnership-based work or visitor visa under general requirements, but cannot demonstrate they meet one or more of those requirements, including living together, immigration officers should refrain from granting partnership-based visas as exceptions to instructions except in truly exceptional cases. The regular grant of visas as exceptions undermines the integrity of partnership instructions.
13. Instead, if a couple appear to be genuine and credible but cannot demonstrate they meet the living together requirements, immigration officers may consider granting a general visitor visa for the purpose of a family visit; this is provided for under section 45(2)(b) of the Immigration Act 2009 (the Act), as reflected in instructions at E3.1(b)(ii). Granting a visa under section 45(2) is not necessarily an exception to immigration instructions as applicants should be assessed against general visitor visa instructions (ie they are ‘bona fide applicants’, they meet general visitor visa requirements such as funds and onward travel) before a general visitor visa is granted. Applicants should only be granted visas (including general visitor visas) as exceptions to instructions when their personal circumstances are truly exceptional and when immigration instructions are not being met.
[36] IAC 19/10 also records INZ’s view that persons “do not need to apply for a partnership-based visa when they do not believe they meet relevant immigration instructions”. Instead, persons can choose to apply for a GVV. Ms Armstrong-Myers points out that IAC 19/10 effectively encouraged applicants who could not meet the living together requirement to apply for a GVV.
12 Section 45(2)(b).
13 Section 76(1).
[37] The plaintiffs understandably argue that IAC 19/10 effectively shuts the door to the prospect of the ‘exception route’ though it was a policy instruction made before the COVID era and its impacts were known. Ms Hyndman’s riposte is that the motivation for the approach recorded in IAC 19/10 is to encourage the use of alternative pathways where they exist rather than granting exceptions to partnership instructions and is necessarily informed by what other pathways exist. Even after border closure and the impact of reg 9A, certain other pathways still exist. This includes a new critical purpose visitor visa, or the CAM visa. There are also other pathways that turn on the exercise of absolute discretion.14 Materially, she deposes that INZ has not adopted a blanket approach of declining to issue border exceptions or partnership visas as exceptions to instructions. On the contrary, each request for an exception to instructions is considered on its merits.
New Zealand’s border response to COVID-19 and impact on immigration rules
[38] Jock Gilray, National Manager (Community) of Border and Visa Operations at INZ explains in his evidence the evolution of the relevant border controls in response to the COVID-19 pandemic.
[39] On 30 January 2020, the World Health Organisation declared COVID-19 a public health emergency of international concern. Immigration was one of the earliest sectors in New Zealand impacted by the pandemic.
[40] On 19 March 2020, shortly after the first case of COVID-19 was detected in New Zealand, the Government closed the border to most travellers. The Minister described the approach in a later Cabinet paper as:
“…a critical component of the Government’s COVID-19 elimination strategy…[which] seeks to protect jobs for New Zealanders, balance the needs of humanitarian and family reunification entrants with economic entrants (with high thresholds for both groups) and to allow people with unique skills and talents to enter to support time critical projects or to realise substantial economic benefits.”
[41] The result of the border closure was that only particular categories of people would be granted entry permission. The border closure was achieved by an
14 Section 61A.
amendment to instruction Y4.50, certified by the Minister. There have been various iterations of Y4.50. Between 30 July 2021 and 30 November 2021, Y4.50 provided:
Y4.50 People who must be refused entry permission: (COVID-19)
a.Entry permission must be refused to any person, except a person listed in Y3.30 (a), who is not otherwise dealt with under Y4.1 and who is:
i.the holder of a temporary entry class visa (except as provided for by Y3.30 (b))
ii.a person described under Schedule 2 of the Immigration (Visa, Entry Permission, and Related Matters)
Regulations 2010 (visa-waiver travellers)
iii.the holder of a residence class visa whose visa was granted offshore and who is arriving in New Zealand for the first time (except as provided for by Y3.30 (a)).
b.A person subject to (a) above may still be granted entry permission by an immigration officer as an exception to instructions (see Y4.45), for reasons including but not limited to:
i.Humanitarian reasons
ii.Critical health workers as confirmed by the Ministry of Health
iii.Other essential workers as defined by the New Zealand Government
iv.Citizens of Samoa and Tonga for essential travel to New Zealand
v.A person who holds a visitor, work or student visa and:
· is ordinarily resident in New Zealand; and
· is the partner or dependent child of a work or student visa holder who is in New Zealand.
vi.Marine crew arriving by the Maritime border.
[42] One of the operational impacts of border closure was that the ability of offshore persons to apply for temporary entry class visa holders continued despite the effective border closure. INZ was receiving approximately 2,000 such applications each month following the 19 March 2020 border closure. This led to four issues:
(a)INZ continued to receive application fees for those visa applications and applicants continued to pay third party immigration advisors to prepare and submit applications.
(b)INZ’s view was that s 43(1)(b) of the Act meant that INZ could not grant a temporary entry class visa to a person offshore where there was reason to believe the holder would be refused entry permission. A reason to believe that entry permission would not be granted covered virtually all temporary entry class visa holders.
(c)As Y4.50 did not limit the ability to apply for temporary entry class visas, such applications continued to come in yet were almost certainly going to be declined. This inconsistency of message was problematic.
(d)INZ was receiving applications it had to process, yet could not grant, which required significant operational resource at the same time as INZ was trying to address other impacts of COVID-19 on the immigration system.
Regulation 9A – a solution?
[43] To implement legislative change necessary to address these various COVID related pressures in the immigration framework, the Immigration (COVID-19 Response) Amendment Act 2020 (the Amendment Act) was enacted. The Amendment Act inserted s 401A into the Act. This empowering provision supplements the general regulation-making power in s 400 of the Act. Section 401A makes clear that the Minister has the power under s 400 of the Act to make regulations prohibiting persons offshore from applying for temporary visas where reasonably necessary to manage the effects or deal with the consequences of the three things stipulated. It reads:
401A Regulations relating to suspending ability to make applications for visas and expressions of interest
(1)Without limiting the generality of section 400, regulations made under that section may suspend the ability of all persons, or of any class of persons, who are outside New Zealand to—
(a)apply for a particular class or type of visa; or
(b)submit an expression of interest in obtaining an invitation to apply for a particular class or type of visa.
(2)Subsections (3) to (7) apply to regulations made for the purposes of subsection (1).
(3)The regulations may—
(a)provide for different periods of suspension for different
classes of people and different classes and types of visa; and
(b)without limiting the generality of the manner in which persons may be classified, classify persons by reference to all or any of the following:
(i)the country or place from which they are travelling or have travelled (whether it be their original or an
intermediate point of departure):
(ii)whether or not they hold, or are required to hold, any particular type of travel or immigration
documentation, by whomever issued:
(iii)any other type of visa that they hold or have applied for:
(iv)any other factor that is relevant to containing or
mitigating the outbreak of COVID-19 or its effects; and
(c)without limiting the generality of the manner in which classes or types of visa may be classified, classify classes or types of visa by reference to all or any of the following:
(i)in the case of a temporary visa, the name and description of the visa as provided in the immigration instructions:
(ii)whether an application for the visa is required by or under the regulations to be made online:
(iii)any specific information or evidence that is required by the regulations or the immigration instructions to be provided in order for an application for the visa to be made.
(4)The Minister must not recommend the making of the regulations unless satisfied that doing so is reasonably necessary to manage the effects, or deal with the consequences, of—
(a)the outbreak of COVID-19; or
(b)measures taken under this Act or any other enactment to
contain or mitigate the outbreak of COVID-19 or its effects; or
(c)any other measures (whether in New Zealand or elsewhere) to contain or mitigate the outbreak of COVID-19 or its effects.
(5)A suspension may be for a period not exceeding 3 months specified in the regulations.
(6)If the requirements of subsection (4) continue to be met, regulations may from time to time be made under section 400 that extend the period of a suspension already in force for a further period not exceeding 3 months.
(7)An extension referred to in subsection (6) may only be made before the end of the period to be extended.
(8)This section is repealed immediately after the expiry of the 12-month period that starts on the date on which the Immigration (COVID-19 Response) Amendment Act 2020 comes into force.
[44] Following enactment of s 401A, Ministry officials worked towards development of what was to become reg 9A. Cabinet considered a draft regulation in early July 2020. The Minister took reg 9A in its final form to Cabinet on 27 July 2020.
[45] The Immigration (Visa, Entry Permission, and Related Matters) Amendment (Covid-19 – Applications and Fees) Regulations 2020 (2020 Regulations) came into effect on 10 August 2020. It inserted reg 9A into the Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010. Regulation 9A as it stood at the hearing of these applications provided:
9A Suspension of ability to apply for certain visas
(1)The ability to apply for a temporary entry class visa is suspended for all persons who are outside New Zealand, except for any person who—
(a)is applying for the visa on the basis that the person is a spouse, partner, or dependent child of—
(i)a New Zealand citizen; or
(ii)a person who holds a residence class visa and who, as the holder of that visa, must or may be granted entry permission under immigration instructions; or
(aa) is in, and intends to travel from, the Cook Islands or Niue; or
(b)is a member of, or associated with, a scientific programme or expedition under the auspices of a Contracting Party to the Antarctic Treaty (within the meaning of the Antarctica Act 1960) or is a person to whom section 5 of the Antarctica Act 1960 applies; or
(c)is applying for a person who is, for the time being, accorded privileges and immunities under—
(i)the Vienna Convention on Diplomatic Relations in accordance with the Diplomatic Privileges and Immunities Act 1968; or
(ii)the Vienna Convention on Consular Relations in accordance with the Consular Privileges and Immunities Act 1971; or
(d)is applying for a person who is a member of the officially recognised accompanying family of a person described in paragraph (c); or
(e)is applying for a Recognised Seasonal Employer limited visa under immigration instructions; or
(f)may, by virtue of COVID-19 immigration instructions, apply for the visa if invited to do so and holds a current invitation to apply for the visa.
(1A) [Revoked]
(2)In this regulation, dependent child, in relation to a person, means a child who is totally or substantially reliant on the person or the person’s spouse or partner for financial support, regardless of whether the child lives with the person or the person’s spouse or partner (or both).
(3)The period of the suspension under this regulation starts on 10 August 2020 and ends at the close of 6 February 2022.
(4)This regulation is revoked at the close of 6 February 2022.15
[46] Mr Gilray explains that reg 9A was designed to address the problems arising from the closure of the border by Y4.50 by stopping the continued receipt of applications for temporary entry class visas. It carries over the same exceptions present in Y4.50. He states:
Permitting applications to be made for visas in circumstances where the border closure means the holder could not expect to get entry into New Zealand presents risk to New Zealand’s international reputation. INZ could be seen as encouraging persons to apply (and to pay INZ the relevant application fees) in circumstances where it knows there was no clear path to enter New Zealand.
Further, the effectiveness of reg 9A (and the border closure) depends on clear lines being drawn. This can be seen in reg 9A through the fact it refers only to classes of visa (temporary class visas, or visas based on relationships (i.e partnership and dependent children). The other exceptions are also ‘black and white’ categories such as diplomatic status or membership of Antarctic
15 The expiry date in sub-paragraphs (3) and (4) has changed following periodic renewal. On 5 February 2022, the expiry date of the regulation was automatically extended to 5 August 2022.
research programmes where persons’ inclusion or exclusion can be clearly framed. Framing the regulation in terms of application type is the only feasible option for clear administration. The alternative would be to frame suspensions or exceptions by reference to factual circumstances. That would mean that each application would need to be examined by an immigration officer in order to determine whether it could be accepted which would not be administratively workable.
Certification of E13
[47] Regulation 9A did not respond to the “on-hand” applications received but not processed before it came into effect. INZ’s view is that it is not legally able to grant visas after the border closure because there was a reason to believe the holder of a visa would be refused entry permission under instruction Y4.50. It relies on s 43(1)(b) which provides:
43 Effect of visa
(1)A visa (other than a transit visa) granted outside New Zealand indicates that—
…
(b)at the time the visa is granted, there is no reason to believe that the holder will be refused entry permission if the holder’s travel is consistent with the conditions of the visa relating to travel; and
[48] In February 2021, INZ estimated it had on hand approximately 39,000 entry visa applications that it could not grant. Consequently, INZ had to make a choice between retaining the applications it could not grant or finding a way to allow them to be lapsed. When an application is lapsed, INZ no longer has to do any further processing or make any decision with regard to the application. It is more efficient than processing each application individually.
[49] Mr Gilray deposes that lapsing has no prejudicial effect on any applications those applicants may make in the future. This is not an understanding shared by the plaintiffs. The plaintiffs are concerned that, once lapsed, a fresh application re-joins the queue of applications at the end, thus losing its place. Mr Gilray responds to this concern in this way:
[95] …it is not a pure first in, first out approach, although date is one aspect as are risk and value characteristics. A general approach is to filter out the low touch, low complexity work as a priority, noting this makes up the bulk of the
volumes and INZ has the ability to batch/bulk process this type of visitor visa general application. So lower complexity work is generally processed faster.
[96] For a general visitor visa where there is a relationship aspect identified, this would generally require a higher degree of scrutiny/effort. In addition, I note that applications that are not lapsed are likely to be treated as complex, owing to the need to seek updated information. Applicants are required to demonstrate that they meet the rules and criteria of a visa at the time of the decision. If and when the border restrictions are lifted, any applicant would need to demonstrate that their circumstances had not changed such that they continue to meet the rules and criteria of the visa for which they applied.
[97] How resources are allocated across the relevant office/network at the time, including through any general instruction of the Chief Executive under s 26 of the Act on the order and manner of processing, will ultimately decide how long the visa may take to process (and what that means from a queue perspective). The result is that while date of application is one metric and informs processing order, complexity also plays a significant part such that there is no identifiable “queue” for an applicant to lose a place in.
[50] Mr Gilray explains that lapsing was the preferred means in order to address the concern that the original purpose of the intended visit would no longer be valid and in almost all cases INZ would require updated evidence to process the application. There would then need to be individualised approaches to all of the applicants to resubmit updated evidence. Further, INZ continues to hold the application fees for those applications and was receiving enquiries and requests for refunds from applicants seeking to withdraw their applications due to the border closure. This was exacerbated by continued uncertainty about when the border might open. Once the border opened, the tens of thousands of applications would require a significant devotion of resource to process which would exceed INZ’s capacity. He identified the priority was to find a way to action refunds at the requisite scale in a manner that is fair and consistent and that a lapsing programme accompanied by a special direction (to deal with refund requests) enabled this to occur.
[51] Officials provided a briefing paper to the Minister on 22 February 2021, seeking his approval in principle to lapse, or return, and refund those applications falling within the relevant categories. The Minister agreed in principle the following day that on hand temporary visa applications from offshore applicants that cannot be considered under an exception category and cannot therefore be granted, may be lapsed and the associated fees refunded.
[52] The operational policy team within MBIE prepared a briefing paper dated 23 June 2021. On 24 June 2021, the Minister agreed to certify instruction E13 and to sign a special direction to implement the decision of 23 February 2021 to lapse, or return, certain applications and refund associated fees and levies.
[53] Various teams within INZ began actively lapsing applications and processing refunds for the applications from 6 July 2021. As at 10 November 2021, INZ estimated that approximately 40,460 applications will be lapsed under instruction E13. Of this number, 24,144 are visitor visa applications. INZ contends that it cannot identify which of these visitor visa applications fall within the cohort identified by the plaintiffs without a “page-turn” of every application.
Extension of reg 9A
[54] In September 2020, the Minister submitted a paper to Cabinet proposing to extend the suspension by a further three months to 8 February 2021. The supporting briefing paper explained that until the suspension came into effect, INZ was continuing to receive increasingly large numbers of ageing applications which it was unable to approve or decline. Continuing suspension would enable INZ to focus on the efficient processing of visas for those who had been granted exemptions or exceptions allowing them to travel to New Zealand.
[55] On 5 October 2020, Cabinet agreed to extend the suspension to 8 February 2021. Cabinet also noted that the Minister considered that suspension should be continued further and that this was and continued to be reasonably necessary to manage the effects, or deal with the consequences of, the outbreak of COVID-19.
[56] On 20 November 2020, the Minister agreed to propose to Cabinet that the suspension on the ability to apply for most offshore temporary entry class visas be extended for a further three months, to 7 May 2021. Again, briefing papers were prepared by Ministry officials. These largely replicated earlier briefing papers.
[57] In December 2020, the Minister submitted a paper to Cabinet seeking a further extension of three months to reg 9A.
[58] On 20 December 2020, the Cabinet Business Committee agreed to continue the suspension for a further three months to 7 May 2021. Before the expiry, the Office of the Minister submitted a paper asking Cabinet to agree to extend the suspension by a further three months to 6 August 2021. The briefing paper supporting that decision further explained that the legislative ability to make further extension was to be repealed on 16 May 2021 but that Cabinet had agreed to amend the Amendment Act to extend the repeal of this and other immigration COVID-19 powers.
[59] On 8 April 2021, the Cabinet Legislation Committee agreed to extend the suspension by a further three months to 6 August 2021.
[60] The Immigration (COVID-19 Response) Amendment Bill was introduced in April 2021. The resulting Immigration (COVID-19 Response) Amendment Act 2021 came into effect on 10 May 2021. It extended the repeal date of the government’s temporary powers relating to visas, inserted by the Amendment Act. The extension was by two years to 15 May 2023. It also extended the maximum duration of any regulation such as reg 9A from three to six months.
[61] On 6 May 2021, the Minister agreed to direct officials to issue drafting instructions to the Parliamentary Counsel Office to make amendments to the regulations to extend the suspension. This was the suspension due to expire on 6 August 2021. In June of the same year the Minister agreed to submit a paper to Cabinet seeking its approval to certain changes to the regulations, including extending for a further six months to February 2022 the suspension on the ability of persons offshore to apply for most temporary entry class visas.
[62] On 10 June 2021, the Cabinet Legislation Committee agreed to extend the suspension of applications to 5 February 2022. This was further extended on 21 November 2021 to expire in August 2022.
[63] In respect of each renewal of reg 9A, the associated briefing papers repeated the same concerns and objectives. The Minister acknowledges that each extension of regulation 9A had the objective of addressing the same circumstances and the motivation has remained consistent since reg 9A was promulgated.
Procedural History
[64] The three sets of proceedings were commenced on 21 July 2021 and consolidated. Mr Higgs sought interim relief. The application was heard by Jagose J who declined relief on 31 August 2021 on the basis that interim orders were not necessary to protect his position.
[65] On 22 November 2021 the judgment of Cooke J in Afghan Nationals v Minister of Immigration was released.16 On 25 November 2021, the plaintiffs sought leave to file amended statements of claim adding a new ground of challenge. The new ground challenges the vires of immigration instruction Y3.5.1(a)(ii) relying on the Afghan Nationals case. Some other minor amendments were also made.
[66] The respondents consented to the introduction of the new cause of action provided leave was reserved to file short supplementary evidence after the hearing, if required. The Court records its gratitude to counsel for the responsible position taken.
[67]I granted leave on that basis.
[68] An amended statement of claim was filed by Mr Witbrock on 2 December 2021. This was to capture a further renewal of reg 9A on 22 November 2021 by which the suspension for non-exempt temporary visas was extended to 5 August 2022. As it merely brought the Court up to date, no leave was required.
[69] After the hearing, the parties filed a joint memorandum dated 17 December 2021 to update the Court. The memorandum advised that the Minister certified further immigration instructions on 9 December 2021. The new instruction E7.1(c)-(e) clarifies the policy intent of the Act with respect to decision making for the grant of a visa or entry permission for temporary visa applications. The material addition to E7.1 is:
c.An immigration officer determining a temporary application from a person who is offshore must have no reason to believe that person would be refused entry permission, if the visa is granted.
d.In making the determination set out at (c) above, the immigration officer should take into account:
16 Afghan Nationals v Minister of Immigration [2021] NZHC 3154.
i.for applications subject to temporary entry instructions, the most recent version of the relevant Border Entry instructions.
ii.for applications subject to restricted temporary entry
instructions, the relevant Border Entry instructions in effect at the time the application was made.
e.An immigration officer making the determination set out at (c) above is not required to consider whether the applicant is likely to be granted entry permission as an exception to instructions.
[70] The plaintiffs consider the new immigration instructions are directly relevant to the ultra vires ground of review and the respondents’ opposition, though they do not replace any instruction traversed at the hearing. Neither party sought to make further submissions on the new instructions.
[71] Mr Mortimer-Wang filed a memorandum dated 22 December 2021confirming that the respondents did not seek to file further evidence. They were content to rely on the evidence and submissions already filed. They also filed amended statements of defence on the same date.
The Grounds of Challenge
[72]There are three pleaded grounds of challenge:
(a)Immigration instruction Y 3.5.1(a)(ii) is ultra vires and erroneously relied on to justify suspension of applications;
(b)Failure to consider obligations under international human rights conventions to which New Zealand is a party led to an error of law;
(c)Failure to consider the discriminatory impact as required by s 19 Bill of Rights Act 1990 led to an error of law.
[73] I pause to note that there is a disjunct between the plaintiffs’ submissions and the challenge to the effect of reg 9A. Both the pleadings and written submissions challenge the Minister’s suspension decisions as if they suspended the processing of non-exempt temporary visas as well as the ability to apply for offshore temporary class visas. This is not the case.
[74] Processing of visas is affected because INZ considered it could not grant visas received but not processed before reg 9A, due to the combined effect of Y4.50 and s 43(1)(b) of the Act. Rather, it paused those applications because it also appreciated that it could not decline them either. Importantly, reg 9A does not concern the processing of offshore visa applications received before 10 August 2020.17
[75] Equally importantly, the plaintiffs do not challenge Y4.50. Nor do their pleadings challenge INZ’s interpretation of s 43(1)(b). One must avoid conflating the two types of suspension – suspension of application and suspension of processing.18 The scope of the challenge to reg 9A is directed to the inability of offshore persons to apply for a temporary visa and not the impact of border closure on the processing of applications received before 10 August 2020. However, I also accept that INZ’s view of s 43 is part of the narrative relating particularly to the certification of E13.
Preliminary
[76] It is common ground that these judicial review challenges are not caught by the ouster provisions in ss 24(3)(b) or 186(3) of the Act. The reviews are not focused on decisions relating to particular individuals or individual applications. Both plaintiffs state that they are taking these challenges with the awareness that they are unable to challenge any individual lapsing decision or decision not to issue an individual visa.
[77] Similarly, it is common ground that s 392(2) of the Act is not engaged. Section 392(2) provides that nothing in the content or application of any immigration instructions made in accordance with s 22 may be the subject of a complaint under the Human Rights Act 1993 (the Human Rights Act). As the challenge relies on the Bill of Rights Act, it is not a complaint under the Human Rights Act.
[78] This explains why these proceedings are framed in a particular way. This in turn informs the issues the Court must determine. The challenges are centred on decisions by the Minister to certify the relevant instructions and the Minister’s
17 I understand that plaintiffs’ counsel confirmed in writing prior to the hearing that the challenge was limited to the suspension of the ability to apply. Refer memorandum on behalf of respondents dated 22 December 2021.
18 Mr Mortimer-Wang uses the shorthand phrase “the s 43(1)(b) suspension” to refer to suspension of processing.
recommendations to extend reg 9A which suspends the ability of most people to apply for temporary visas.19
Is Y3.5.1(a)(ii) ultra vires?
[79] It is logical to deal first with the contention that Y3.5.1(a)(ii) is ultra vires due to inconsistency with the Act.
[80] Immigration instruction Y3.5.1 appears in the Manual under the heading “Applying for entry permission”. Under a sub-heading “Considering an application for entry permission”, it relevantly provided that immigration officers must consider an application for entry permission in accordance with:
(i)the requirements of the Immigration Act 2009 and immigration regulations; and
(ii)the Border Entry instructions in force at the time the application is made or any general instructions given by the chief executive; and
(iii)any relevant special direction.
[81] This instruction was revised on 1 December 2021. Sub-paragraph (ii) was replaced with a new (ii) which reads “the relevant Border Entry instructions…”. A new sub-paragraph (b) was added which clarifies the relevant Border Entry instructions for different types of visas. It states that if the applicant holds a temporary entry class visa, the relevant Border Entry instructions are those in force at the time the application for entry permission is made.
[82] It was not suggested that anything in this revision (as opposed to the revisions to Y4.50) materially informs or changes the position.
What role does Y 3.5.1(a)(ii) have in these challenges?
[83] The plaintiffs contend that the justification advanced by the Minister for reg 9A arises from the inter-relationship between Y3.5.1, Y4.50 and s 43(1) of the Act so that if Y3.5.1 is ultra vires, the justification falls away. But they also argue the corollary - if it is not ultra vires for the reason that the discretion is not removed, then there is
19 Refer also Afghan Nationals at above n 16, which held that ouster clauses cannot “exclude a challenge that involves an allegation that the statute is not being properly applied” at [49].
still no justification for reg 9A. In short, because it cannot be said that reg 9A was reasonably necessary as the empowering provision requires. This explains why the plaintiffs introduced their late challenge to Y 3.5.1.
[84] When pressed at the hearing to articulate where this argument fits in orthodox judicial review terms and the pleaded case, Mr Dalley posited that it amounts to a combined error of fact and law which responds to the way in which the respondents have advanced their opposition. I have some difficulty with this submission. In my assessment, the argument is in reality an ultra vires challenge to reg 9A. That was not pleaded. Mr Mortimer-Wang made the point at the hearing that the evidence before the Court was premised on the pleaded case and the argument should not be permitted to stray any more widely.
The contentions
[85] The plaintiffs argue that Y3.5.1(a)(ii) is inconsistent with the Act. They say that effectively denies entry permission to all non-exempt temporary visa holders, fettering the discretion of immigration officers conferred by ss 22, 45, 46 and 109(7) of the primary legislation. Immigration instructions are subordinate, being merely statements of government policy. Thus, immigration instructions which are inconsistent with the statutorily derived discretion are ultra vires.
[86] They rely on Afghan Nationals in which Cooke J found that Y3.5.1(a)(ii) is ultra vires to the extent that it requires the applicable border entry instructions for residence class visa holders to be those in effect at the time the entry permission is sought, rather than those in force when the applicant applied for a residence visa.
[87] The respondents argue that Y3.5.1(a)(ii) does not limit the discretion afforded to immigration officers under the Act. Rather, its purpose and effect is merely to inform immigration officers which version of entry permission instructions they are to apply and the decision in Afghan Nationals case has no application to temporary entry visas.
Discussion
[88] The Act expressly provides that immigration officers have discretion in relation to decision making in a number of respects. Section 109 relevantly provides:
109 Decisions on entry permission in relation to temporary entry class visa holders
(1)The Minister or, subject to any special direction, an immigration officer may, in his or her discretion,—
(a)grant the holder of a temporary entry class visa entry permission on the basis of his or her visa; or
[190] Here the whole immigration framework is in play. The respondents point to other avenues for the affected class to come to New Zealand, including:
(a)Applying for a visa under partnership instructions seeking an exception to the living together requirement. There is evidence that 130 visas based on partnership as an exception to instructions have been granted over the course of the border closure (but no evidence as to the proportion of exceptions granted to applications seeking an exception).
(b)Applying for a critical purpose visitor visa, the main means of entry during border closure;
(c)Requesting a visa by special direction under s 61A of the Act.
[191] The plaintiffs criticise these avenues as not meaningful. Ms Armstrong-Myers, an immigration specialist and licensed immigration advisor states:
Mr Gilray … also states that immigration officers have the discretion to grant visas as exceptions to the instructions so that the full circumstances of the case are considered. Since the March 2020 lockdown, I have never had an exceptions to instructions granted, and definitely never on a visa application
65 Ministry of Health v Atkinson, above n 58, at [109].
for an offshore partner. To give the Court some context, I have been involved in various partnership cases in the last 18 months.
I also note that INZ in its Internal Administration Circular No: 19/01 at paragraph 12, annexed at C to my previous affidavit, clearly states that immigration officers are to refrain from granting partnership-based visas as an exception to instructions as this, in their opinion, undermines the integrity of partnership instructions.
…
Finally, Mr Gilray provides the option of applicants requesting a visa from the Minister of Immigration as a special direction. In fact, the Associate Minister of Immigration, who has been delegated the Minister’s power of issuing visas under s 61A of the Immigration Act 2009, has effectively put in place a blanket policy of not intervening in cases where the applicant is offshore during the pandemic and the border closure. Therefore, again, while Mr Gilray is correct in theory, he overlooks the practical aspects of the policies.
[192] While there is also the humanitarian border exception route, INZ interprets this as requiring exceptional circumstances. Ms Armstrong-Myers refers in her affidavit evidence to her experience of a very high decline rate.66
[193] Thus, whether the alternative pathways are meaningful is contested. That is not something that this Court is capable of determining on the untested evidence before it. The challenges in this proceeding are only to reg 9A (more accurately to the extensions to reg 9A) and E13, and not to INZ’s administration of the immigration system. Ms Hyndman’s evidence is that the purpose of IAC 19/10 is to encourage the use of alternative pathways rather than the exception route, which is necessarily informed by what other pathways exist. Any application under these alternative pathways must be assessed against the relevant criteria or discretion and the relevant rights under the Bill of Rights Act assessed, informed by context.
[194] On its face, it may appear arbitrary to distinguish the genuineness of a relationship based on the living together stipulation when other pathways have been narrowed, but that is a matter better examined in a challenge to the partnership instructions. Even if it leads to an unfair outcome in some individual cases, this does not translate to an immigration system which is incapable of being operated in a way that respects affirmed rights in the Bill of Rights Act.
66 See the discussion in Afghan Nationals, above n 7, at [83]–[108]
[195] I also accept the respondents’ argument that it is not possible to show discriminatory effect when reg 9A is not the principal barrier to any temporary entry class visa applicant coming to New Zealand but a collateral measure. Instruction Y4.50 is the instrument which closed the border, and the principal barrier. It is not challenged in this proceeding.
[196] In my assessment, the plaintiffs’ challenge to reg 9A also falters at the second of the Atkinson steps. I am not persuaded on the evidence before the Court that the immigration system is incapable of being operated in a way that respects the important rights underlying this challenge.
[197] In so far as a rights compliance enquiry into instruction E13 is concerned, I have reached the same conclusions for the same reasons. But there are also additional reasons why I find against the assertion of discriminatory effect. Instruction E13 does not of itself create a material disadvantage as it does not mandate an outcome. It does not require any immigration officer to lapse any visa application. The decision to lapse is one taken by an immigration officer. It is a separate decision. It is difficult to argue that E13 is incapable of being operated in a proportionate way. It does not decline a person’s application, nor affect their ability to apply again. Mr Gilray deposes that lapsing does not mean that an applicant loses their place in the queue.
[198] Consequently, I find that neither the suspension decisions nor the lapsing decisions are discriminatory on any of the prohibited grounds. It follows that the question of whether any discrimination is demonstrably justified under s 5 does not arise.
Result
[199] For the reasons set out I find no reviewable error in the suspension or lapsing decisions. Accordingly, I dismiss the plaintiffs’ claims.
Costs
[200] The parties did not address me on costs. If the parties are unable to agree costs, I direct as follows:
(a)Any memorandum seeking costs is to be filed and served within 10 working days of this judgment;
(b)Any memorandum in response is to be filed and served within a further 10 working days;
(c)Memoranda are not to exceed three pages.
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Walker J
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