Kartseva v Associate Minister of Immigration

[2018] NZHC 1115

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-1345

[2018] NZHC 1115

UNDER

the Judicial Review Procedure 2016

IN THE MATTER

of an application for Judicial Review

BETWEEN

NADEZDA KARTSEVA

Applicant

AND

ASSOCIATE MINISTER OF IMMIGRATION

First Respondent

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT

Second Respondent

Hearing:

9 November 2017

Appearances:

P C Finau for Applicant

J D Simpson for Respondents

Judgment:

18 May 2018

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 18 May 2018 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:Meredith Connell, Crown Solicitor, Auckland Richard Zhao Lawyers Limited, Auckland

KARTSEVA v ASSOCIATE MINISTER OF IMMIGRATION [2018] NZHC 1115 [18 May 2018]

Introduction

[1]        On 28 February 2017, the applicant asked the Minister of Immigration (“Minister”) to grant her a student visa. The applicant made her request under s 61 Immigration Act 2009 (“request”  and “Act”).  The Minister declined the request on 6 June 2017 (“decision”). The applicant seeks judicial review of the decision.

[2]        The decision was made by one of the Minister’s “Delegated Decision Makers”, Mr Arron Baker. Mr Baker has sworn an affidavit in the proceeding. He is an Assistant General Manager of Immigration New Zealand (“INZ”), which is part of the Ministry of Business, Innovation & Employment. Mr Baker’s delegated powers included power to make the decision.

[3]        The only issue for the Court on an application for review of a refusal under    s 61 of the Act is whether the decision is or was “unreasonable” in the Wednesbury sense.1

[4]        The applicant contends that the decision was unreasonable in the required sense as it was made in breach of natural justice; that Mr Baker was biased, failed to take into account a relevant consideration and erred in fact; that Mr Baker’s discretion was “fettered”; and/or his decision was ultra vires.2

[5]        The respondents’ case is that the critical issue is whether the decision itself was unreasonable in the required sense, and that it was not. The respondents also submit that none of the grounds of review that the applicant has pleaded are made out on the evidence, even if they were open to the applicant in a case such as the present.

Background

[6]        The following appears from the information before me, and before Mr Baker at the time he made the decision.

1      Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

2 Statement of Claim dated 30 June 2017 at [12]. At trial, counsel for the applicant advised that an allegation that Mr Baker lacked authority to make the decision was abandoned.

[7]        The applicant is a Russian citizen. She has been in New Zealand since early January 2009, various visas having been issued to her thereafter.

[8]        In March 2014, the applicant applied for residency as a “skilled migrant” based on an offer to work for Mank Limited, trading as “D’Lite Fresh”, a café (“Mank” and “D’Lite”).

INZ enquiries of 18 June 2014

[9]        Enquiries by INZ on 18 June 2014 in connection with the application for residency led INZ to believe that the applicant had supplied false or misleading information. From the information before me, it is apparent that all of the applicant’s problems with INZ since have stemmed from that belief. There is no objection to her eligibility on any other ground. Given the significance of that application, out of an abundance of caution, I asked the parties to provide me with a copy of the document, as it was not in the evidence. The application itself comprises a 51-page form and various other documents, one of which is an undated Employment Agreement between Mank and the applicant. This agreement states that the company operates from premises in Chancery Street, Auckland (“Chancery premises”). Also, the covering letter of the applicant’s then immigration adviser, dated 20 February 2014, stated that Mank was at the Chancery premises.

[10]      The gist of the enquiries the INZ verification officer made on 18 June 2014, or at least her notes of them, is as follows.3

[11]      The “Menu Mania” website recorded that D’Lite had closed. As a result, the officer visited the address apparently advised to INZ as D’Lite’s premises, being the Chancery premises. The officer found the “premises were empty and there was a for lease sign on the window”.

[12]      Shortly after that the officer spoke to the applicant, enquired where she was working and the applicant advised the Chancery premises. The officer reported to the applicant on her visit to the premises. The notes record that the applicant was adamant that she had been inside the premises at the time, advised that D’Lite would soon open

3      See Annexure A of the affidavit of N Kartseva affirmed 19 September 2017.

at new premises in an arcade in Central Auckland and that she would be at the new premises within the hour. The officer arranged a time to meet the applicant.

[13]      The officer then returned to the Chancery premises, again found the premises empty and apparently was advised by staff in a neighbouring shop that the premises had been vacant “for about six months”. The real estate agent with the listing is also recorded as having advised that the premises had been vacated nine months prior, that is in about September 2013. If these statements were accurate, then the business had not been operating from the premises when the applicant lodged her application for residency.

[14]      The officer then went to the arcade as arranged. The applicant was not present, the officer found no evidence that D’Lite was to open there, and the general manager of the arcade is said to have advised that she had no knowledge of D’Lite.

[15]      It appears that thereafter a letter informing the applicant of receipt of “Potentially Prejudicial Information” (“PPI”) was sent to the applicant. The applicant subsequently withdrew her application for residency giving the explanation that her immigration adviser was at fault in some respects.

[16]      As it has turned out, since June 2014 the applicant has supplied information to INZ addressing some matters covered by the verification officer’s enquiries. This information was before Mr Baker. Whatever third parties may have told the verification officer, the applicant denies that D’Lite had ceased trading at the Chancery premises at the time she lodged her application for residency and maintains that she was at the Chancery premises on 18 June 2014. There is evidence that D’Lite had a lease of the Chancery premises for two years until July 2014 and thereafter relocated to Ellerslie. In addition, the applicant’s daughter (who owned Mank and the D’Lite business) affirmed in November 2015 that she considered taking premises in the arcade but ultimately did not do so.

[17]      That said, as counsel for the respondents submits, the applicant has not explained why she advised the officer that the business was relocating to the arcade and why she did not inform INZ that D’Lite had ceased trading at the Chancery premises as she was required to do.

Subsequent applications

[18]      On 13 August 2014, the applicant applied for a student visa. A further PPI letter was sent on 29 August 2014, advising of INZ’s concern that the applicant may have made a false and misleading statement and withheld material information from INZ in her application for residency. The letter also advised the applicant that she might not meet the “character” requirements for a student visa, unless granted a “character waiver” under what was referred to as Immigration Instruction A5.45.

[19]      A5.45(b) provides that an applicant who has “made any statement or provided any information … that was false, misleading … or withheld material information” will not usually be granted a temporary entry class visa, unless granted a character waiver.

[20]      It is not apparent whether the applicant responded to the 29 August 2014 PPI letter but, in any event, INZ granted the student visa on 16 February 2015, this expiring on 15 May 2015.

[21]      On 28 September 2015, INZ declined to issue a further student visa on the ground that the applicant did not meet “character requirements under A5.45(b)”, stating that it had been determined the applicant had provided false and misleading information. INZ advised that it had declined a “character waiver”, therefore declined to grant the visa sought and said that,  as  a  consequence,  the  applicant  was  in New Zealand unlawfully and liable for deportation.

[22]      On 27 November 2015, the Immigration and Protection Tribunal (“Tribunal”) determined that there were no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh to deport the applicant. On 8 February 2017, Duffy J declined the applicant leave to commence judicial review proceedings of the Tribunal’s decision.4

4      Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 97.

[23]      On 11 May 2016, the applicant requested the grant of a student visa under s 61 of the Act, being the same provision relied upon in this instance. This request was declined on 30 May 2016.

Request

[24]The applicant then made the request in issue in this case, on these grounds:

(a)family circumstances. The applicant’s family are in New Zealand and she has no family in Russia;

(b)the applicant’s “current circumstance”, that is the issues arising as to the truthfulness of the information provided, could be attributed at least in part to negligence on the part of a previous immigration adviser;

(c)the applicant was bona fide;

(d)the applicant did not pose a threat to national security; and

(e)New Zealand would benefit if the applicant were granted a student visa.

Briefing paper

[25]      On receipt of the request, and in accordance with its usual practice, INZ prepared a briefing paper. This attached the request and its annexures; the PPI letter of 29 August 2014; the notes of the officer who granted the application referred to in

[20] above; INZ’s letter of 28 August 2015, the “character waiver assessment form” dated 20 August 2015 and related “internal customer interaction records” (being the verification officer’s notes); INZ’s 30 May 2016 letter referred to in [23] above; and immigration instructions.

[26]              The six-page briefing paper included sections on the representations made by the applicant in support of her request; on her immigration history and character; on her education and family and it referred to relevant instructions. The paper concluded with a section on “Relevant Issues” which referred to immigration instruction A5.45(b) (quoted above), an affidavit from the applicant’s daughter (referred to in [16]

above), the fact that the applicant had no family or property in Russia and might have difficulty in re-establishing herself there; and the various courses of study that the applicant had completed and that she now wished to take up. The paper concluded with two possible options, one being to grant the student visa and the other being to decline to intervene.

[27]              Mr Baker’s evidence is that he took into account all information provided to him (although that did not include the immigration instructions which were not given to him) and decided not to intervene.

[28]              Mr Baker notified the applicant of his decision by letter dated 6 June 2017. He did not give reasons for his decision, advising (correctly) that he was not required to do so.

[29]              By request under the Official Information Act 1982, the applicant obtained INZ’s internal “record of decision” form in which Mr Baker listed these reasons for his decision:

(a)character concerns;

(b)no apparent path to further visas under immigration instructions;

(c)breach of obligations under the Act, and the circumstances did not in his view outweigh the obligation to depart New Zealand; and

(d)the circumstances did not in his view outweigh the fact that immigration instructions are not, or have previously not been, met.

[30]              Counsel for the respondents advised that Mr Baker’s reference to there being “no apparent path to further visas under immigration instructions” reflected immigration instruction A5.45(b) and the fact that the applicant’s character would always fall to be addressed on any future application, at least for a visa subject to that instruction.

Relevant statutory provisions

[31]              Section 61 of the Act permits the Minister to grant a visa of any type to a person who is unlawfully in New Zealand provided that person is not subject to a deportation or removal order. Section 61 provides:

61       Grant of visa in special case

(1)The Minister may at any time, of the Minister’s own volition, grant a visa of any type to a person who—

(a)is unlawfully in New Zealand; and

(b)is not a person in respect of whom a deportation order is in force; and

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

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

[32]“Absolute discretion” is defined in s 11 of the Act, which provides:

11       Meaning of absolute discretion of the decision maker

(1)If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that—

(a)the matter or decision may not be applied for; and

(b)if a person purports to apply for the matter or decision, there is no obligation on the decision maker to—

(i)consider the purported application; or

(ii)inquire into the circumstances of the person or any other person; or

(iii)make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and

(c)whether the purported application is considered or not,—

(i)the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and

(ia) privacy principle 6 (which  relates  to  access  to  personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and

(ii)section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application.

[33]              This definition limits the grounds of judicial review of a decision made under s 61. In Zhang v Associate Minister of Immigration, the Court of Appeal said:5

[14] This definition of absolute discretion gives bleak prospects for judicial review unless Wednesbury unreasonableness can be identified.

...

[38]     Second, having regard to the overall structure of the Act, we regard   s 61 as reserving to the Executive the traditional power residing in the Executive to make decisions about who may be permitted to stay in New Zealand. There could be many situations where the interests of the State mean that a particular person should be permitted to remain in New Zealand notwithstanding that, absent their particular circumstances, they would be deported. There might, for example, be a national security interest. There might be a personal factor such as an extreme health condition or political factors pertaining to the person’s home country that make deportation obviously wrong. In any event, s 61 preserves to the Executive the absolute discretion to intervene in the deportation process. It precludes formal application, and the legitimate expectations associated with that act.

[34]              In Associated Provincial Picture Houses Ltd v Wednesbury Corporation, the Court said:6

It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.

[35]              Accordingly, a decision is unreasonable in the Wednesbury sense if it is “so unreasonable that no reasonable authority could ever have come to it”.7

[36]In Wellington City Council v Woolworths New Zealand Ltd, Richardson P said:8

5      Zhang v Associate Minister of Immigration [2016] NZCA 361; [2016] NZAR 1222 at [14] and [38].

6      Associated Provincial Picture Houses Ltd v Wednesbury Corporation, above n 1, at 230.

7      At 230.

8      Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.

Even though the decision maker has seemingly considered all relevant factors and closed its mind to the irrelevant, if the outcome of the exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, the only proper inference is that the power itself has been misused.

To prove a case of that kind requires “something overwhelming” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1949] 1 KB 223, 230 per Lord Greene MR).

[37]              In Singh (Kulbir) v Chief Executive Ministry of Business, Innovation and Employment the Court of Appeal said of s 177, which also confers “absolute discretion”:9

The only inference available from Mr Shand’s affirmation of performance of his obligations under s 177 is that, in accordance with New Zealand’s international obligations, he has treated Amanpreet’s interests as a primary consideration. But, within his discretionary power, he has decided that the statutory requirement to ensure the integrity of New Zealand’s immigration system – what may generally be termed “the national interest” – must prevail. A Court cannot inquire further. In these circumstances, applying the Wednesbury approach, it cannot be said “there could only be one answer”, namely that the [immigration officer] should have cancelled the deportation orders. We are satisfied that the [immigration officer] reached a decision that was  reasonably  open  to  him  on  all  the  facts  and  having  regard  to  New Zealand’s international obligations.

Was the decision unreasonable in the Wednesbury sense?

[38]              This is not a case in which there are obvious grounds for thinking that the decision may have been unreasonable. Mr Baker had the request with all its attachments and a briefing paper that is fair, balanced and comprehensive. The decision he made was open to him and, in making that decision, he was entitled to take into account the doubts that existed as to whether that applicant had been honest with INZ throughout. Nor is there any suggestion that any relevant information was omitted or misrepresented.

[39]              I turn now to address the specific grounds on which counsel for the applicant relies, despite the fact that some of them could not possibly impugn the decision.

9      Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592; [2016] NZAR 93 at [66].

Breach of natural justice

[40]              Contrary to the view I take, the applicant contends that the briefing paper was deficient with the consequence that the decision was made in breach of natural justice and thus unreasonable. Counsel submits that the paper “wrongly superseded or interfered with” the request and/or was unbalanced and/or lacked analysis or recommendation and that it ultimately prejudiced the decision making process. Counsel submits that the briefing paper does not present the request faithfully, that in fact the paper was unnecessary as Mr Baker could just as easily have read the application itself, that the author of the paper dwelt unduly on “the negatives” and insufficiently on the “positives”, and that the applicant had no opportunity to comment on the paper.

[41]              None of these criticisms are valid. The briefing paper is a factual account and counsel for the applicant did not refer me to any specific statement or omission which could be said to have unfairly prejudiced the applicant. The lack of recommendation is not a matter for criticism. It was for Mr Baker to reach a decision, not the author of the paper.

Bias/failure to take into account a relevant consideration

[42]              Counsel for the applicant took bias and the failure to take into account a relevant consideration together. Counsel submits that marks that Mr Baker made on the side of the paper revealed that he had focused “almost exclusively on the cons” of granting the applicant’s request and not on the “pros”.

[43]              There is no merit in this submission. Mr Baker’s evidence is that he took all information into account. Regardless of when precisely D’Lite ceased trading at the Chancery premises, INZ was not told that it had ceased trading from that address and the discrepancies referred to in [16] above had not been explained. It would be reasonable for a decision maker to consider those went to the applicant’s character and that such were relevant to the decision.

Error of fact

[44]              The applicant contends that Mr Baker erred in considering that she had “no apparent path to further visas”. Counsel submits that in fact the applicant could have obtained a post-study work visa and/or an essential skills work visa. Counsel for the respondents submits that although the immigration instructions for those visas were not amongst the material before Mr Baker, his evidence is that his usual practice is to consider all options available for a request, and that he followed his usual practice in this case.

[45]              In any event, counsel for the respondents submits that there is no error in fact as the applicant would always need to meet character requirements stipulated by immigration instruction A5.45. Lastly, counsel for the respondents submits that any error on this score would not render the decision unreasonable. Whatever the finer points of the various classes of visa, I accept this latter submission. More than this would be required to impugn the decision in a case such as the present.

Fettered discretion

[46]              The applicant submits that the inclusion of two options only in the briefing paper – grant or decline the request – fettered Mr Baker’s discretion.

[47]              Given the discussion in the previous paragraph, it is not apparent that any other options were available or that they were not considered, if they existed. Again, this is not a matter which would impugn the reasonableness of the decision itself.

Ultra vires

[48]              The applicant does not challenge Mr Baker’s authority to decide the request but contends that there is no evidence that he was asked to do so. There is evidence, as Mr Baker says in his affidavit that the request was allocated to him. I reject this submission accordingly.

Conclusion

[49]              For the reasons given, I am not persuaded that the decision to decline the applicant’s request of 28 February 2017 was unreasonable and I dismiss her application for judicial review.

[50]              I award costs on a 2B basis, together with reasonable disbursements. Memoranda may be filed in the absence of agreement as to quantum.

Peters J