Kaur v Minister of Immigration
[2018] NZHC 1049
•14 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1971
[2018] NZHC 1049
BETWEEN HARPREET KAUR
First Applicant
GURJANT SINGH
Second ApplicantAND
MINISTER OF IMMIGRATION
Respondent
Hearing: 11 May 2018 Appearances:
R P Singh and A M A M Ayoub for Applicants
M G A Madden and H T N Fong for Respondents
Judgment:
14 May 2018
JUDGMENT OF JAGOSE J
This judgment is delivered by me on 14 May 2018 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors:
Legal Associates, Auckland Crown Law, Wellington
Crown Law, Auckland
KAUR & ANOR v MINISTER OF IMMIGRATION [2018] NZHC 1049 [14 May 2018]
Introduction
[1] The plaintiffs, Harpreet Kaur and Gurjant Singh, seek judicial review of decisions of an immigration officer, refusing to consider their requests for visas under s 61 of the Immigration Act 2009 (the “Act”).
[2] Ms Kaur and Mr Singh are married to each other, and currently reside unlawfully in Auckland. After their temporary visas expired, each applied for visas under s 61. This provision affords the Minister, or those acting under delegation from the Minister, an absolute discretion to grant visas in special cases to people unlawfully residing in New Zealand.
[3] The focus of my review is the decision rejecting Ms Kaur’s s 61 application, which was advanced on the basis she is suitably qualified for work she has been offered as a nurseryperson. Mr Singh’s application, predicated solely on his marriage to Ms Kaur, turns on the outcome of her application.
[4] Ms Kaur and Mr Singh contend the decision rejecting her application was unreasonable for failing to consider her personal circumstances, following improper immigration procedure, and ignoring and being inconsistent with other work visa decisions; and additionally was unfair because Ms Kaur met the requirements of a work visa.
Background
[5] Ms Kaur and Mr Singh are Indian citizens. Ms Kaur came to New Zealand on 3 February 2015. She entered New Zealand on a student visa, granted on 10 January 2015, to study a diploma in business management. Mr Singh arrived on 4 April 2015 on a visitor’s visa, granted on 13 March 2015.
[6] On 15 March 2016, Ms Kaur transferred to an Open Job Search Visa, from which she was entitled to seek and undertake work for any employer. By that time, Ms Kaur had obtained a Level 3 certificate in Horticulture. The qualification enabled her to secure full-time employment on 29 March 2016 as a trainee nurseryperson in a glasshouse nursery in Bombay, South Auckland. Her duties included various tasks
such as watering plants, preparing potting for planting, and applying pesticides. At some point she also enrolled in and began working towards a Level 4 certificate, on completion of which her employer agreed to offer her work as a (non-trainee) nurseryperson.
[7] Relying on these employment prospects, Ms Kaur applied for an Essential Skills Work Visa on 17 February 2017. An immigration officer considered her application, and wrote to her on 25 March 2017 expressing concern she may not be suitably qualified for the employment offered. This letter helpfully describes the relevant test in the following terms:
Immigration instructions require [you to] to show you are suitably qualified by training and experience to do the work you have been offered (please see immigration instruction WK2.5.5 a i).
When assessing whether you are suitably qualified for the role we must consider whether you hold a relevant qualification which is comparable to the qualification described in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for your occupation or the relevant work experience that the ANZSCO indicates may substitute for the required qualification (WK1.5 c).
The employment you have been offered as Nurseryperson appears to match the occupation as it is described in ANZSCO 362411.
According to the ANZSCO, the occupation of Nurseryperson has a skill level corresponding with a Level 4 qualification.
According to the ANZSCO, at least three years of relevant experience may substitute for this formal qualification.
[8] Ms Kaur’s visa application was declined on 6 April 2017; Mr Singh’s application for a work visa, predicated on their partnership, was declined the same day. The immigration officer explained her decision in a letter dated 6 April 2017:
We acknowledge that you have Level 2 and Level 3 Certificate in Horticulture qualification. However, as per ANZSCO, the Nurseryperson occupation has a level of skill commensurate with an NZ Level 4 qualification. We also acknowledge that you have been working for this employer since 29 March 2016. However, this is less than three year relevant work experience as required by ANZSCO that may substitute for the formal qualification.
[9] After this rejection, Ms Kaur and Mr Singh no longer had any legal basis for remaining in New Zealand and so became liable for deportation. As a result, they could only fall back on the absolute discretion to grant visas under s 61.
[10] Three applications were made. Ms Kaur applied first on 26 April 2017, requesting lawful status in order to complete her Level 4 qualification in Horticulture so she would qualify for a work visa. Her application was declined on 31 May 2017, and no reasons were provided. Ms Kaur then made a second application, this time accompanied by a request from Mr Singh. The latter two applications, received by Immigration New Zealand on 12 July 2017, were declined on 8 August 2017. An immigration officer wrote to both Ms Kaur and Mr Singh, giving no reasons for her decision, but simply recording:
We have decided to refuse to consider your request. Section 61 of the Immigration Act 2009 provides that no reasons are necessary because the decision is at the absolute discretion of the decision maker.
Under the Immigration Act 2009, people whose visas have expired have no legal right to apply for another visa. Requests for the grant of a visa under section 61 do not have to be considered.
[11] Ms Kaur and Mr Singh sought judicial review of these 8 August 2017 decisions. They filed an application on 23 August 2017, erroneously seeking leave under s 249(3) of the Act, rather than simply filing a statement of claim and notice of proceeding under s 8 of the Judicial Review Procedure Act 2016. This error was eventually discovered, and Ms Kaur and Mr Singh sought an extension of time formally to bring this proceeding. Leave was granted by Justice Muir on 14 February 2018.1 His decision includes a brief discussion of the merits of the judicial review application, which he assessed as weak, noting the “prospects of success do not look encouraging” and the application “faces considerable challenges”.2
Judicial review
[12] I agree with the Minister of Immigration’s counsel, Michael Madden, the applicants’ grounds for judicial review of the 8 August 2017 decisions may be summarised as follows:
(a)the immigration officer failed to consider Ms Kaur’s personal circumstances or to give sufficient weight to those circumstances (namely, she was employed as a trainee nurseryperson while also
1 Kaur v Minister of Immigration [2018] NZHC 138.
2 At [31]-[32].
studying for, and only a few papers away from completing, her Level 4 qualification in Horticulture);
(b)the immigration officer failed to abide by relevant immigration instructions set out in the Immigration New Zealand Operational Manual (the “Manual”),3 specifically the reference to fairness and natural justice in the ‘guidance on good decision making’ section;
(c)the decisions were unfair, because Ms Kaur met all the requirements of a work visa for employment as a trainee nurseryperson, and all but one of the requirements for a fully-fledged nurseryperson, and she was studying to complete that final requirement (the Level 4 qualification) at the time; and
(d)the decisions were inconsistent with other Immigration New Zealand decisions granting work visas to trainee nurserypersons with equivalent or lesser qualifications than held by Ms Kaur.
On those grounds, Ms Kaur and Mr Singh seek declaratory and directionary relief, effectively requiring the Minister to grant them visas.
Legal framework
[13]Section 20 of the Act provides:
20 No right for person unlawfully in New Zealand to apply for visa
No person who is unlawfully in New Zealand may apply for a visa and, where any such person purports to apply for a visa, it is a matter for the absolute discretion of the Minister.
[14] Ms Kaur and Mr Singh have remained unlawfully in New Zealand since 6 April 2017. Under s 20, they therefore had no right to apply for a visa of any kind. While remaining unlawfully in New Zealand, their only hope was for the Minister to exercise his absolute discretion in their favour.
3 “Operational Manual” Immigration New Zealand < (last updated on 7 May 2018).
[15]Exercise of that ‘absolute discretion’ is governed by s 61:
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.
[16] Under s 380(1), with some presently irrelevant exceptions, the Minister may delegate to any immigration officer any of the powers conferred on the Minister by the Act. There is no dispute the s 61 power was validly delegated to the immigration officer who determined Ms Kaur’s and Mr Singh’s applications according to the requirements of that provision.
[17]The meaning of ‘absolute discretion’ is defined at s 11:
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.
(2)Subsection (1)(c)(ia) applies to any decision made in relation to a purported application, whether the decision was made before or after the commencement of that subsection.
[18]Also relevant is the Manual’s material content, which stipulates at A23.5.1:
a. There is no obligation to consider a request made under section 61. An immigration officer may refuse to consider the request given the information provided. Equally, however, they may consider a request and may ask for more information or evidence to be provided to do so.
b. Where an immigration officer refuses to consider a request they need not record reasons for doing so (other than the reason that section 11 of the Act applies).
[19] Of that last obligation, which is sourced in s 11(1)(c)(i), the Court of Appeal said in Zhang v Associate Minister of Immigration:4
[The immigration officer], pursuant to s 61 of the Act, was exercising an absolute discretion. Pursuant to s 11 of the Act, he was not obliged to give reasons for his decision. His only obligation when giving his decision was to note that s 11 applied.
Analysis
—a lower threshold for review than Wednesbury unreasonableness?
[20] Ms Kaur’s and Mr Singh’s counsel, Raj Singh and Ammar Ayoub, argue the immigration officer’s decisions were unreasonable, for failing to fairly consider all relevant facts and evidence, and decided inconsistently with previous applications. They acknowledge the classic articulation of Wednesbury unreasonableness,5 but observe judicial criticism of the approach, for example, in R (Daly) v Secretary of State for the Home Department.6
4 Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222 at [23].
5 Wednesbury unreasonableness refers to the well-known case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA), where the Court said a decision was reviewable on the ground no reasonable decision maker, properly apprised of the facts, could have made it.
6 R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26, [2001] 2 AC 532.
[21] The bulk of their submissions attempt to establish a reduced threshold for my review of s 61 decisions. Raj Singh amends Lord Steyn’s dicta to contend “in administrative law, context is everything”.7 In the immigration context, where human rights are so deeply implicated, he says a lower threshold than Wednesbury unreasonableness must be applied.8 He goes further, to describe Wednesbury as “unfortunately retrogressive”, acknowledged by the “gradual lowering of the threshold for deciding that a decision is unreasonable” in New Zealand law.9
[22] In fact, it is the submission that is ‘unfortunate’. Recent appellate authorities are unambiguous as to the ongoing relevance of Wednesbury unreasonableness for decisions under s 61. In both Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment,10 and Zhang,11 the Court of Appeal held a decision in exercise of an absolute discretion is reviewable only on the ground of Wednesbury unreasonableness. In Zhang, the Court of Appeal referred to the “untrammelled nature of the [s 61] discretion” as presenting the “chief difficulty” for anyone wanting the discretion exercised in their favour,12 and identified “bleak prospects for judicial review unless Wednesbury unreasonableness can be identified”.13
[23] Further, there is nothing in Ms Kaur’s or Mr Singh’s cases involving fundamental rights and values such as might engage a different standard. That such may arise in the immigration context is not to say every judicial review of any immigration matter must apply a different standard. Indeed, having articulated the foundation for claims to a different standard in Ye v Minister of Immigration, Glazebrook J held “normal administrative law grounds” sufficed.14
7 At [28]. Lord Steyn’s comment is “In law context is everything”, although a misreading of Wild J in Wolf v Minister of Immigration [2004] NZAR 414 (HC) at [47] could make it appear the quote is as counsel records it.
8 Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58 at
66. See also the academic commentary of Doug Tennent “Absolute discretion in immigration” [2012] NZLJ 144; and Michael Taggart “Proportionality, deference, Wednesbury” (2008) 3 NZ L Rev 423.
9 Relying on decisions such as Wolf v Minister of Immigration, above n 7; and Ye v Minister of Immigration [2009] 2 NZLR 596 at [303]-[306].
10 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 at [42]-[50].
11 Zhang v Associate Minister of Immigration, above n 4, at [14] and [23].
12 Zhang v Associate Minister of Immigration, above n 4, at [12].
13 At [14].
14 Ye v Minister of Immigration, above n 9, at [303]-[306].
[24] At the policy level, s 61 remains a functional backstop for the executive branch to consider, in its absolute discretion, policy factors emerging in the final analysis. Decisions under s 61 therefore fall at the far periphery of administrative action susceptible to my review.15 The legal position – established by appellate authority binding on me, as well as in other decisions of this Court – is well settled. Even the high point of a variable standard of review, in Wolf v Minister of Immigration, recognises the Wednesbury test is within that variable standard.16
—were the decisions Wednesbury unreasonable?
[25] In my view, none of Ms Kaur’s and Mr Singh’s grounds for my review have any merit:
(a)absence of consideration by a decision-maker acting in absolute discretion is not itself a ground for challenge.17 The immigration officer’s decision is not susceptible to my review for failing, if that is what happened, to take into account Ms Kaur’s personal circumstances;
(b)for the same reason, the decision is not reviewable on grounds it was “unfair” because Ms Kaur meets all, or all but one of, the relevant requirements of a work visa. She was not applying for a work visa, and the immigration officer was not required to take those considerations into account;
(c)so far as the Manual’s principles of fairness and natural justice are concerned, they are expressly applicable only to ordinary visa applications, and not to purported requests for exercise of the s 61 discretion, which are provided elsewhere in the Manual; and
(d)the immigration officer was not required to consider, let alone follow, previous immigration decisions. The fact s 61 may have been exercised in a particular situation does not prevent future decision makers
15 Singh v Chief Executive, Department of Labour (1997) 12 PRNZ 428 at 433.
16 Wolf v Minister of Immigration, above n 7, at [47]-[48].
17 Yu v Chief Executive of the Department of Labour HC Auckland CIV-2011-404-4300, 21 July 2011 at [18].
deciding differently in the same situation in later decisions.18 In any event, Raj Singh had not identified any prior immigration decision as constituting the preferred course.
[26] On the last, when I queried Raj Singh on his submission of inconsistent immigration decisions, he sought to hand up emails dated 15 March 2018, purportedly between his co-counsel, Ammar Ayoub, and a recipient with a nzhothouse.co.nz email address. NZ Hothouse Ltd was Ms Kaur’s former employer. Ms Kaur’s and Mr Singh’s affidavits in the proceeding was sworn on 20 March 2018. No affidavit produced the 15 March 2018 emails. Counsel for the Minister, Mr Madden, advised he had not seen the emails until the hearing and opposed their admission. No evidential foundation has been laid to establish the emails’ legitimacy. They are in any event irrelevant to consideration of an exercise of absolute discretion, and therefore inadmissible.19
[27] Most significantly, neither of the immigration officer’s impugned decisions can be characterised as even approaching Wednesbury unreasonableness. A reasonable immigration officer – properly apprised of Ms Kaur’s and Mr Singh’s material factual circumstances, as being marginally short on qualification for the sought visa, thereafter without a current visa, and thus unlawfully in New Zealand – could have refused nonetheless to grant them visas in his or her absolute discretion. I asked Mr Ayoub what in the immigration officer’s decisions was said to be Wednesbury unreasonable; he said, “perhaps nothing”.
—an administrative error?
[28] Curiously, the two s 61 decisions presently under review fail to meet the Manual’s (and statutory) obligation “to record … the reason that section 11 of the Act applies”. It is curious because, first, it is the immigration officer’s only obligation on receipt of a request made under s 61; second, the Court of Appeal expressly noted in Zhang (nearly a year before the present requests) that was the immigration officer’s only obligation; and third, the immigration officer’s refusal of Ms Kaur’s earlier s 61 request recorded the reason s 11 applied. Given the formulaic and close to identical
18 Devi v Minister of Immigration [2017] NZHC 728 at [27].
19 Evidence Act 2006, s 7.
wording of all three responses – the more recent being refusals to consider the s 61 requests – there is a near irresistible inference the Ministry’s relevant template omits the obligatory wording.
[29] Of the comparable failure in Zhang, at first instance, Whata J commented it revealed a lack of care, and amounted to an administrative error.20 The Court of Appeal agreed, and added “in the context of the exercise of an absolute discretion, and the limited role of judicial review arising as a result, the error is not material”.21 The Court of Appeal may not have been so sanguine if the error was not purely administrative but institutional (as I have noted is open to inference). But, viewed as only a further example of the same failure as occurred in Zhang, I too regard it immaterial.22
Result
[30]The judicial review application is declined.
Costs
[31] In my preliminary view, Ms Kaur and Ms Singh should jointly and severally be liable to pay 2B costs and disbursements to the Minister.
[32] If that is not accepted by the parties, and they cannot otherwise agree on costs, costs are reserved for determination on short memoranda of no more than five pages
– annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served on the other by:
(a)the Minister within ten working days of the date of this judgment;
(b)Ms Kaur and Mr Singh within five working days of service of the Minister’s memorandum; and
20 Zhang v Associate Minister of Immigration, above n 4, at [17].
21 At [27].
22 “Once is happenstance. Twice is coincidence. The third time it’s enemy action”: see Ian Fleming
Goldfinger (Thomas & Mercer, Las Vegas, 2012) at [ch 14].
(c)the Minister strictly in reply within five working days of service of Ms Kaur and Mr Singh’s memorandum.
—Jagose J
0
5
1