Higgs v Minister of Immigration

[2021] NZHC 2287

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1569

[2021] NZHC 2287

UNDER

Parts 4 and 7 of the High Court Rules 2016

IN THE MATTER

of a decision under the Immigration Act 2009

BETWEEN

DAVID JOHN HIGGS

Applicant

AND

MINISTER OF IMMIGRATION

First respondent

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT

Second respondent

Hearing:

31 August 2021

Appearances:

S J Dalley and P P Sundar for the applicant

M J Mortimer-Wang and S M Perera for the respondents

Judgment:

1 September 2021

REASONS FOR JUDGMENT OF JAGOSE J

This reasons for judgment was delivered by me on 1 September 2021 at 4.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Solicitors:

D & S Law, Auckland Crown Law, Wellington

HIGGS v MINISTER OF IMMIGRATION [2021] NZHC 2287 [1 September 2021]

[1]                  At the urgent remote hearing on 31 August 2021 of Mr Higgs’ application for interim orders, I dismissed the application as being unnecessary to protect his position, with reasons to follow. These are those reasons.

[2]                  On grounds of failure to consider applicable international conventions and as discriminatory, Mr Higgs substantively seeks a declaration of the unlawfulness of, and an order to quash, a purported decision by the Minister of Immigration to lapse or return, and to refund, general visitor visa applications made by applicants outside New Zealand who are partners of people in New Zealand. Those applicants include Mr Higgs’ partner. In support of such claim he here seeks interim orders preventing such lapse or return, and refund.

Background

[3]                  The Minister’s impugned decision is embodied in his immigration instruction E13 with effect from 26 June 2021, titled “Lapsing a temporary visa application from an offshore applicant impacted by the effects of COVID 19 related border restrictions”:1

a.    A temporary visa application in respect of which no decision to grant a visa has been made on 30 June 2021 may be lapsed where:

i.the application was submitted before 10 August 2020; and

ii.the application is not listed in (b) below; and

iii.the applicant is either:

·     outside New Zealand, or

·     a person who has subsequently been granted a visa on the basis of having a critical purpose for travelling to New Zealand under H5.25.15(c)(ii), or on the basis of being a partner or dependent child of such a person.

b.    The following temporary visa applications will be excluded from (a) above (and therefore not be lapsed):

i.an application made from a COVID-19 quarantine free travel zone (as defined in regulation 9A of the Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010) where the applicant has notified INZ in writing before 30 June 2021 that they are still in a COVID-19 quarantine free travel zone, and want their application to be processed;

1      Immigration Act 2009, s 22.

ii.an application based on a relationship (partner or dependent child/ren) to a New Zealand citizen, residence class visa holder or temporary visa holder;

iii.a work visa application under any of the following categories:

·     Post-study work instructions (WD)

·     Work to Residence instructions (WR)

·     Entrepreneur Work Visa Category (BB)

·     Global Impact Visa Categories (BG2)

iv.an application for a work visa to arrange the transfer to, and investment of funds in, New Zealand under BJ7.40;

v.an application based on a relationship (partner or dependent child/ren) to a principal applicant with a temporary visa application that is listed under (b) i to (b) iv above.

[4]                  Consistently with the New Zealand Government’s response to the COVID-19 pandemic, New Zealand’s border generally has been closed since March 2020 to all but New Zealand citizens and residents. Exemptions include non-New Zealand family of such citizens and residents, entering New Zealand on a visa based on that relationship.

[5]                  In circumstances, non-New Zealand family might seek a more generic temporary entry class visa — for example, a general visitor’s visa — their application for which nonetheless being based on that relationship. Notwithstanding the border’s closure, such applications could be made until regulations were made with effect from 10 August 2020 suspending the ability of most people outside New Zealand so to apply.2 Despite that suspension, applications continued to be made.

[6]                  But, while the border remains closed, such visas could not be granted. Because currency of the information on which a visa may be granted is fundamental (and thus applications may lapse on terms),3 Immigration New Zealand ceased processing such visa applications. When the applications may come to be determined itself is indeterminate, as dependent on reversal of the border closure or at least reactivation of people’s ability to make application.

2      Immigration (COVID-19 Response) Amendment Act 2020, s 16, inserting new sections 401A and 401B into the principal Act; Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010, reg 9A.

3      Immigration Act, s 24.

[7]                  The consequence is Immigration New Zealand now has some 45,000 undetermined temporary entry visa applications, together with their associated fees. Many applicants sought the fee be refunded. Immigration New Zealand typically considers requests for refunds on a case-by-case basis. Immigration instruction E13 was intended to enable these applications’ more collective treatment.

[8]                  Allowing the respondents’ substantiated response to Mr Higgs’ challenge enabled more clear focus on the matter at issue, Mr Higgs would argue at trial immigration instruction E13(b)ii is not a term of art, but to be construed as including any application based on such a relationship as a necessary corollary of the international conventions and  freedom  from  discrimination  conferred  by  the  New Zealand Bill of Rights Act 1990.

[9]                  The respondents assert E13(b)ii “maps” to immigration instruction Y3.30(a)ii,4 which permits grant of entry permission to, among others:

The partner, legal guardian or any dependent children of a New Zealand citizen or a New Zealand residence class visa holder listed at Y3.10(a) who:

·     are travelling with that New Zealand citizen or residence class visa holder; or

·     are ordinarily resident in New Zealand; or

·     have a visa based on their relationship to the New Zealand citizen or residence class visa holder.

[10]              The substantive issue thus is if E13(b)ii is to be construed as meaning “application [for any visa] based on a relationship”. It is accepted for present purposes Mr Higgs’ partner’s application may be such an application — that is, an application based on a relationship, rather than an application for a visa based on a relationship. In the exercise of its discretion, Immigration New Zealand will not lapse or return (or, presumably, refund) Mr Higgs’ partner’s application pending substantive determination of this proceeding.

4      For Mr Higgs, in reply, Stewart Dalley disputed E.13(b)(ii)’s coincidence with Y3.30(a)ii, pointing to the former’s inclusion of “temporary visa holder”. But that may interpretationally be necessary to capture the whole of the temporary visa applicants the subject of E.13(b)(ii).

Applicable law

[11]              Under s 15 of the Judicial Review Procedure Act 2016, I may make interim orders “if, in [my] opinion, it is necessary to do so to preserve the position of the applicant”. ‘Necessary’ means “reasonably necessary”.5 I then have wide discretion to consider all the circumstances of the case in deciding if to grant interim relief, from consideration of the applicant’s case for trial, the strength of that case, and the balance of convenience and overall interests of justice in “all the repercussions, public or private, of granting interim relief”.6

[12]              Also contextually important are s 24(3)(b)(i) of the Immigration Act, which provides:

[N]o review proceedings may be brought in any court in respect of—

(i) the lapsing of an application for a visa under rules or criteria set under this section; or …

and s 186(3)(a), which provides:

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 …

Discussion

[13]              Mr Higgs is driven by those last provisions to address E13(b)(ii) generally, rather than in their application to his partner. For Mr Higgs, Stewart Dalley argues the absence of interim orders means applications may be lapsed or returned and refunded before the substantive proceeding is determined, leaving nothing to quash if he is successful. In oral submission, Mr Dalley asserted Mr Higgs brings the proceeding in a representative capacity.

[14]              But Mr Higgs has no position to preserve in that generality, whether or not in a representative capacity (which is not supported by the pleading).7 By “position” is

5      Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.

6      At 430, approved in Easton v Wellington City Council [2010] NZSC 10 at [4]–[5]. See also

Minister of Fisheries v Antons Trawling Co Ltd [2007] NZSC 101 at [3].

7      High Court Rules 2016, r 5.35.

meant a currently existing ‘right’ in law or fact, as may be derived from the meaning of ‘statutory power’ open to challenge by judicial review.8 It is not to be confused with a mere interest in the outcome of the subject proceeding. Not until the decision is made in Mr Higgs’ favour does it confer on him a position for prospective preservation.9

[15]              Without any position presently to preserve, no interim order is available to Mr Higgs. I therefore do not go on to consider the circumstances of the case, to decide if to grant interim relief.

Result

[16]Mr Higgs’ application was dismissed.

—Jagose J

8      Minister of Immigration v Kang [1993] NZAR 456 (CA), citing Nair v Minister of Immigration [1982] 2 NZLR 571; Walsh v Pharmaceutical Management Agency HC Wellington CIV-2007- 485-1386. 28 August 2007 at [22]; Internet Group Ltd v Attorney-General HC Wellington CP119/00, 4 July 2000 at [9].

9      Keung v GBR Investments Ltd [2010] NZCA 396 at [11].