Kaur v Ministry of Business, Innovation and Employment
[2015] NZHC 2741
•6 November 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-751 [2015] NZHC 2741
UNDER the Judicature Amendment Act 1972 and
the Immigration Act 2009
IN THE MATTER
of an application for judicial review
BETWEEN
GIYAN KAUR Applicant
AND
THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent
THE ASSOCIATE MINISTER OF IMMIGRATION
Second Respondent
Hearing: 27 and 28 October and 6 November 2015 Appearances:
F C Deliu for the Applicant
D J Collins and M P Hardy for the RespondentsJudgment:
6 November 2015
ORALJUDGMENT OF MUIR J (Strike out application)
Counsel:
F C Deliu, Barrister, Auckland
R Zhao, Barrister, Auckland
Solicitors:
D J Collins, Meredith Connell, Auckland
M P Hardy, Meredith Connell, Auckland
KAUR v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2015] NZHC 2741 [6
November 2015]
Introduction
[1] The respondents apply for orders striking out the applicant’s statement of claim in which she seeks judicial review of a decision made by Mr C Hubscher (who, in relevant correspondence, is identified as a “Delegated Decision Maker”) declining to intervene in the applicant’s case. Among other relief sought in the statement of claim, the applicant seeks orders declaring Mr Hubscher’s decision unlawful and directing a reconsideration of the decision by the appropriate official.
[2] The respondents allege:
(a) The applicant is barred from bringing her review proceedings on account of ss 186(3) and 187(8) of the Immigration Act 2009 (“the Act”), which contain privative clauses ostensibly precluding review by persons, such as the applicant, who were “outside New Zealand” at the time of their application.
(b)In the alternative, if there is any limited scope for judicial review of the relevant decision within the statutory context, the statement of claim discloses no reasonably arguable causes of action. In particular, the respondents allege that:
(i)the Associate Minister did not require a delegation from the Minister of Immigration to exercise powers under the Act as he is an original repository of such powers in terms of s 7 of the Constitution Act 1986;
(ii)neither the Minister nor the respondents were legally obliged to consider the applicant’s request under s 378 of the Act;
(iii)Mr Hubscher was lawfully delegated the power to issue a temporary entry class visa or residence class visa which was in substance what was sought by the applicant;
(iv)there is no pleaded basis in the amended statement of claim that the decision-maker unduly confined his discretion and, in any event, he had an absolute discretion;
(v)there is no basis for the allegation of a legitimate expectation that the Minister would personally make a decision under s 378 and, in any event, such an expectation would conflict with the legislative scheme; and
(vi)the alleged breaches of natural justice in the New Zealand Bill of Rights Act 1990 (NZBORA) are not tenable in light of the absolute discretion conferred by s 378 and the definition of “absolute discretion” in s 11 of the Act. In any event, the respondents say that such allegations under NZBORA are not
supported on the pleaded facts.
Background
[3] Mrs Kaur is an elderly Indian woman now in her 80s who has, at all relevant times, resided outside New Zealand. She seeks to be reunited with parts of her family in this country which would necessitate her being granted either a residence or temporary entry class visa.
[4] She was a secondary applicant in applications for residence class visas made by her late husband in 1998, 2000 and 2010.
[5] The 1998 application included a declaration that the applicant and his wife had three living children and three deceased children for whom death certificates were provided. The application was declined in 2000 due to a lack of adequate evidence of the daughters’ deaths.
[6] In December 2000 Mr Kaur again applied for a residence class visa, including the applicant in the application. That application was made under the humanitarian category. Mr Kaur declared that he and the applicant had five living children, a son and two daughters in New Zealand, a son in Italy and a daughter in
India. The residency application was declined in November 2001 due to a lack of sufficient evidence of humanitarian grounds.
[7] In November 2010, Mr Kaur applied for a further residence visa under the Family (Parent) category. Again, he included Mrs Kaur as a secondary applicant. In that application he declared that he and the applicant had five living children.
[8] In the course of processing that application, Immigration New Zealand (INZ) raised character issues based on Mr Kaur’s failure to declare the fact that previous visa applications had been declined and alleged erroneous information about the death of three of his daughters.
[9] In February 2012, acting through an Auckland-based immigration agent, Mr Kaur addressed this potentially prejudicial information.
[10] In March 2012, Mr Kaur died. In the same month the applicant applied to
INZ in Auckland for a visitor’s visa. This was declined in July 2012.
[11] Following Mr Kaur’s death, the first respondent accepted the applicant’s request to become the primary applicant on the 2010 residence class visa application. That application was declined in February 2013 on character grounds. Mrs Kaur appealed to the Immigration and Protection Tribunal (the Tribunal). That appeal was dismissed in May 2014.
[12] In November 2014, Mrs Kaur engaged new advisers who on 27 November requested a special direction pursuant to s 378 of the Act that she be granted a residence or temporary entry class visa to reunite her with her family in New Zealand. Although the terms of that application were not before the Court, my description of it derives from paragraph 21 of the applicant’s statement of claim.
[13] On 5 December 2014, the second respondent wrote to the applicant acknowledging receipt of her request for Ministerial intervention. Again, that correspondence was not before the Court.
[14] On 6 March 2015, Mr Hubscher wrote to the applicant in terms which paragraph 23 of the statement of claim records as follows:
... the Associate Minister has asked that I make a decision on your request.
I have carefully considered your representations. I advise I am not prepared to intervene in this case.
Yours Sincerely, C Hubscher
Chris Hubscher, Delegated Decision-maker
Neither was that correspondence before the Court.
[15] The applicant’s statement of claim was filed shortly thereafter and amended on 29 May 2015.
[16] At this stage the respondents have not pleaded to that claim.
Jurisdiction to strike out
[17]
sum
The marised
(a)
parties are agreed that the relevant principles are appropriately as follows:
Pleaded facts, whether or not admitted, are assumed to be true. This
does not extend to pleaded allegations which are entirely speculative and without foundation. (b)
The causes of action or defence must be clearly untenable.
(c)
The jurisdiction to strike out is to be exercised sparingly, and only in
clear cases. This reflects the Court’s reluctance to terminate a claim
or defence short of trial. (d)
The jurisdiction is not excluded by the need to decide difficult
questions of law, requiring extensive argument.
(e) The Court should be particularly slow to strike out a claim in a developing area of the law, particularly so where a duty of care is alleged in a new situation.
[18] These criteria likewise apply to applications to strike out judicial review proceedings.1
The relevant statutory framework
[19] The relevant provisions of the Act are ss 11, 72, 76, 186(3), 187(8), 378 and
380. These are included in a schedule to this judgment.
The respondents’ case in detail
[20] The respondents say, adopting the allegation in paragraph 21 of the statement of claim, that what was applied for was a special direction pursuant to s 378 of the Act that Mrs Kaur be granted a residence or temporary entry class visa.
[21] They say that special directions are not a general mechanism for issuing visas to applicants and that they are contemplated only in certain express circumstances, being those identified in ss 17, 45, 50, 51, 53, 69, 72, 86, 94, 95, 101, 103 and 109 of the Act, and in various identified Immigration (Visa, Entry Permission and Related Matters) Regulations 2010 which were referred to me. They say that none of these sections or regulations contemplate the special direction purportedly sought by the applicant.
[22] In making that submission the respondents rely on the decision of Whata J in
Zhang v Associate Minister of Immigration & Anor, in which His Honour held:2
It is not necessary to resolve the separate question about whether the power to make a special direction under s 378 can be delegated to the Associate Minister or Mr Burrows. But I see nothing in this complaint, in any event. The s 61 procedure does not expressly “contemplate a special direction” as required by s 378(1). This is to be compared to ss 17, 45, 50, 51, 53, 69, 72,
86, 94, 95, 101, 103 and 108 where a special direction is expressly contemplated. Furthermore, s 378 does not impose on the Minister any duty
1 McGechan on Procedure (online looseleaf ed, Westlaw) at [HR 15.1.02(2)] citing Southern
Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA).
2 Zhang v Associate Minister of Immigration & Anor [2015] NZHC 1369 at [30].
to exercise a particular power in any particular way. Assuming s 61 is subject to the special direction process it was available to the Minister to simply direct Mr Burrows to make the s 61 decision which is in effect what occurred. The claim based on s 378 is therefore misconceived.
[23] The respondents further submit that s 378(8) of the Act provides that the decision to grant a special direction is in “the absolute discretion” of the Minister and that, as such, it is “virtually unreviewable”, citing Chambers J in Yure v Bentley.3
[24] In that case His Honour said of s 130 of the 1987 Act (the legislative predecessor of s 378 in the current Act) that:4
It is clear from the scheme of the Act that the power conferred on the Minister is primarily intended for those situations where all else has failed from a prospective immigrant’s point of view. The Minister retains a residual power to do something for someone notwithstanding the fact that the recipient has not managed to persuade any immigration officer or immigration tribunal of his or her case. It is, with respect, thoroughly sensible for Parliament to have vested such a residual power in the Minister.
[25] In relation to the principles that apply to Ministerial discretion in the context of the Act, Chambers J said that:
(a) The powers are “residual powers” and that any decisions based on them are “very much discretionary policy decisions coming usually at the end of, or even outside, any legal process and to a large extent outside judicial review”;
(b)Issues relating to immigration are “fundamentally for the executive arm of government” and contain “a high policy content”; and
(c) A person seeking intervention by the Minister has very limited rights.
[26] In Prasad v Minister of Immigration,5 Venning J confirmed that these principles continued to apply under the current Act.
3 Yure v Bentley HC Auckland M1530-PLO1, 8 November 2001 at [18] and [20].
4 At [10].
5 Prasad v Minister of Immigration HC Auckland CIV-2011-404-3958, 4 July 2011 at [27].
[27] The respondents say that the applicant must also overcome ss 186(3) and
187(8) which exclude judicial review in respect of any decisions in relation to the refusal or failure to grant either a residence class or a temporary entry class visa to a person outside New Zealand.
[28] Privative clauses within the Act have been discussed in three relatively recent cases. In Phan v Minister of Immigration, which concerned a now repealed clause in s 10(3)(b), Brewer J found that the words were “sufficiently clear to rebut the presumption that Parliament did not intend to exclude review for error of law”.6 His Honour said that the availability of appeal rights displaced the usual presumption against the privative clause ousting the review jurisdiction. He also found that the Act’s appeal structure was consistent with NZBORA.
[29] Section 187(8) was considered in Ibrahim v Associate Minister of Immigration.7 In that case the applicant sought judicial review of the Associate Minister’s decision not to grant him a residence visa. The respondent sought security for costs. In deciding to grant security, McKenzie J indicated that s 187(8) was likely to apply as a bar to bringing the review proceeding. The Court of Appeal concluded that McKenzie J’s preliminary assessment of the merits was “clearly right”.8 Delivering the decision of the Court, Arnold J found that “given the clear wording of 187(8), the absolute discretion conferred on the Minister by 378 of the Immigration Act and the effect of decisions such as Phan, the prospect of success was slight”. He went on to note that:9
… s 187(8) does not deprive applicants for residency of any ability to challenge the refusal of their application. There is a right of appeal against the decision of an Immigration officer to decline the application which Mr Ibrahim has exercised unsuccessfully. His appeal to the discretion of the Minister was, in effect, a last resort.
[30] Section 186(3) was considered by Fogarty J in Liu v Minister of
Immigration.10 In that case His Honour determined that the section barred the
6 Phan v Minister of Immigration [2010] NZAR 607 at [40].
7 Ibrahim v Associate Minister of Immigration HC Wellington CIV-2011-485-1142,
18 October 2011.
8 Ibrahim v Associate Minister of Immigration [2012] NZCA 229 at [17].
9 At [17].
10 Liu v Minister of Immigration [2015] NZHC 2048.
applicants from bringing their claim in judicial review. He stated:11
I examined s 186(3)(a) as a privative clause to see whether or not there was any ambiguity that could be read to the advantage of the plaintiffs. I decided that there was not. I also thought that, in terms of the general common law hostility to statutory clauses limiting judicial review, it is a relevant factor here that the common law recognises the Crown’s prerogative to control its borders. In the end, I am satisfied that s 186 does not have to be read restrictively or deliberately but can be read simply and that it directly applies.
[31] The respondents’ position is therefore that although there is a general presumption that Parliament did not intend to exclude review for error of law, it may do so by sufficiently clear legislative wording and that legislative purpose and context will often determine the applicability of a privative clause. They submit that where, as here, Parliament has provided for statutory appeal rights, the Courts are more likely to apply a privative clause in its terms. They say that while some decisions have discussed a distinction between “jurisdictional errors” and “errors within jurisdiction” or errors that render decisions “nullities” or not, these distinctions were expressly not adopted by the Supreme Court in Tannadyce
Investments Ltd v Commissioner of Inland Revenue.12
A preliminary comment
[32] In assessing the submission recorded in [31] it is, in my view, important to bear in mind that, as Whata J said in Zhang13 and Fogarty J observed in Cao v Minister of Business Innovation and Employment,14 if an official elects to consider an application, he or she must do so according to the law, and that, even in cases where “absolute discretions” are invoked, the Court will be jealous to ensure that statutory powers are exercised in good faith and for their proper purpose.
Furthermore, where it is suggested that a decision-maker acted ultra vires in the sense that he/she never had the power to make the decision they did, or that in doing
so they acted in breach of a legitimate expectation, then it appears to me at least
11 At [6].
12 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2
NZLR 153.
13 Zhang v Associate Minister of Immigration & Anor, above n 2, at [57].
14 Cao v Minister of Business Innovation and Employment [2014] NZHC 1551 at [18], [22], [36]
and [38].
reasonably arguable that what is attacked is a priori the final decision and not therefore within the literal terms of the privative clauses I have referred to.
Discussion
[33] Mr Hubscher purported to make a decision in respect of the application made to him under s 378. The correspondence quoted in the statement of claim says that he had been asked to make “a decision on your request” by the Associate Minister and that he is “not prepared to intervene”.
[34] On its face, the decision was no more nor less than one pursuant to a s 378 request. That request was made prior to the decision of Whata J in Zhang which, in its terms, precludes the special direction procedure in respect either of an application under s 72 for a residence’s class visa, or under s 76 in respect of a temporary entry class visa.
[35] Mr Deliu referred me to numerous cases including the similarly named Zhang v Minister of Immigration and Simpson15 (Venning J) and Ibrahim,16 in which, he said, the Minister had exercised his absolute discretion under s 378 (or its predecessor) other than in cases where the specific sections cited by Whata J apply.
[36] He says that the jurisdictional point now taken by the respondents is one only recognised since that decision, and that in this case (decided by Mr Hubscher before Whata J’s decision was released) Mr Hubscher simply purported to decline the s 378 request and did not take the jurisdictional point.
[37] If that is the case, then the difficulty from the respondents’ perspective is that there had never been a delegation to Mr Hubscher of a general power to make special directions pursuant to s 378. The delegation in his favour did give the power to make special directions in certain identified circumstances, as, for example, under s 17(1)(a), s 396(9), s 412(2), s 51(3) and reg 34(1)(a). But he had no general power
to make such directions.
15 Zhang v Minister of Immigration and Simpson HC Auckland CIV-2010-404-5278,
13 August 2010.
16 Ibrahim v Associate Minister of Immigration, above n 7.
[38] Mr Deliu argues that, if therefore Mr Hubscher purported to make a decision declining the request under s 378 he did so without authority and, whether the words “nullity” are appropriately invoked or not, the case is, at least reasonably arguably, one where the privative clauses would not apply. Nor, he says, is the s 378(8) reference to a decision made in Mr Hubscher’s absolute discretion sufficient to save it because it was never a decision he had the authority to make.
[39] The respondents’ repost to that argument does appear to me to involve what
Mr Deliu described as something of a “cake and eat it” approach.
[40] They start by assuming that they are entitled to all the protections associated with the exercise of an absolute discretion and identified in s 11. They rely in that respect on s 378(8). But faced with the argument that Mr Hubscher never had a generalised delegated authority to issue special directions, they say that he was not in fact acting under s 378 because the jurisdiction under that section of the Act was never appropriately invoked for the reasons identified by Whata J in Zhang. What they say Mr Hubscher was in reality doing was exercising the absolute discretion which had been delegated to him under s 72 to make a decision in relation to a residence class visa application and the further “standard” discretion invested in him as an immigration officer under s 76 to make such a decision in relation to a temporary entry class visa.
[41] They say further that insofar as the application was processed under s 72 it was dismissed in Mr Hubscher’s absolute and essentially unreviewable discretion.
[42] Insofar as it was processed as an application under s 76, the position ultimately advanced by the respondents in argument was that no decision had effectively been made in relation to the application because Mrs Kaur had not submitted, with her s 378 request, the necessary documents (prescribed in reg 10) to support such an application. The respondents further argued, that although Mr Hubscher had been delegated the power conferred by reg 34(1)(a) to waive (by special direction), the requirements in reg 10(2)(e) for particular documents to be tendered, he had not exercised that power.
[43] But Mrs Kaur was never told of any of this. She was simply advised, in respect of her s 378 application, that Mr Hubscher had declined to “intervene”. That word tends to suggest to me that Mr Hubscher was exercising a s 378 discretion. If he was in fact declining a residence class visa under s 72(3) or a temporary entry class visa under s 76(1) words to that effect might have been expected. I accept, however, that the proposition cannot be elevated beyond that.
[44] Significantly none of the alleged process, whereby an apparently non- compliant s 378 request was in fact dealt with pursuant to the discretions (in one case
‘absolute’ but in the other not) in ss 72 and 76, was the subject of any evidence before the Court. There was no affidavit from Mr Hubscher and the Court was simply invited to rely on counsel’s summary of how the application was dealt with, all premised on the proposition that the respondents had “magnanimously” chosen not to dismiss the s 378 request outright but rather to process it as an application under ss 72 and 76.
[45] However, all of that assumes in my mind a prescience on Mr Hubscher’s part about a matter not heard by Whata J until six weeks after Mr Hubscher had communicated his decision to Mrs Kaur and where His Honour’s decision was not in fact delivered until 17 June 2015. And as Mr Deliu pointed out, prior to the Court’s decision, many matters outside the strict legislative confines recognised by Whata J appear to have been routinely processed without the jurisdictional point now taken, irrespective of what particular section the respondents say was actually relied on for the relevant decision.
[46] Certainly, I do not consider myself able to accept without evidence that the process followed by Mr Hubscher involved sequentially:
(1) a decision to deal with the requests under ss 72 and 76; (2) exercise of the absolute discretion under s 72(3);
(3)identification of the absence of non-complying documentation for the purposes of the s 76 application;
(4)exercise of his absolute discretion not to waive those requirements by special direction; and
(5) a conclusion therefore that no s 76 decision was necessary.
[47] It could well be that what Mr Hubscher in fact did, consistent with the terms of the application and arguably the response, was simply exercise a purported power to give or decline a special direction under s 378 which had never been delegated to him.
[48] This is a case where discovery of Mr Hubscher’s notes may be useful in identification of the actual process followed by him and whether it was in fact one he was authorised to undertake. It may also, without prejudging any such application, be a case where cross-examination is ultimately necessary.
[49] In my view, it would not be appropriate to consider application of the privative clauses in the factual vacuum that currently applies – a vacuum compounded by the fact that the respondents have yet to plead. There may be cases where the position is sufficiently clear for a review application to be struck out on the basis of a privative clause alone (although it is interesting to note that no such case was cited to me in argument17), but this is not such a case. There are in my view too many unknowns in terms of how precisely the application/request was dealt with and, if Mr Hubscher did purport to act without proper delegated authority, I do
not regard as “clearly untenable” the proposition that judicial review may be available despite the provisions of ss 186(2) and (187)(8).
[50] In that respect the circumstances of this case seem to me very different from those which the majority in the Supreme Court in Tannadyce Investments Ltd v Commissioner of Inland Revenue said precluded judicial review.18 There the relevant statutory provision was s 109 of the Tax Administration Act 1994 (TAA)
which is in terms:
17 In Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 220, [2014] 3 NZLR 23, the Court of Appeal dismissed an appeal from the judgment of Gilbert J striking out a review application. But the strike-out followed inevitably from determination of a preliminary issue about whether there had been exercise of a statutory power.
18 Tannadyce Investments Ltd v Commissioner of Inland Revenue, above n 11, at [56].
109 Disputable decisions deemed correct except in proceedings –
Except in objection proceedings under Part 8 or a challenge under
Part 8A,
(a) no disputable decision may be disputed in a court or in any proceedings on any ground whatsoever; and
(b) every disputable decision and, where relevant, all of its particulars are deemed to be, and are to be taken as being, correct in all respects.
[51] In respect of that section the majority held:19
We have already referred to the Court’s strong inclination to read sections like s 109 in a way that preserves the availability of judicial review to deal, at least, with matters of vitiation which render the decision involved no decision in law at all. But that is not the right way to approach s 109 in its particular statutory context. By insisting that the statutory disputes and challenge processes be followed, as s 109 does, Parliament has not deprived taxpayers of the ability to have all their concerns about tax assessments determined by the High Court. The legislative policy evident in s 109 is not at odds with the right of citizens to have matters of legality determined by the High Court. There is therefore no reason to read down, on the premise of presumed parliamentary purpose, the clear and unequivocal words of s 109 and, in particular, its use of the words “on any ground whatsoever”.
[52] Commenting on the minority decision of Elias CJ and McGrath J, the majority further held:20
In our view the words “no disputable decision may be disputed in a court or in any proceedings on any ground whatsoever [except in … a challenge under Part 8A]” should not be construed so as to create an exception where the circumstances are “exceptional” or where there are “proper grounds” for judicial review, as McGrath J suggests at [35].
[53] By contrast, the approach of the respondents in this case would preclude the ability of the applicant to have any recourse to the High Court at all, even if Mr Hubscher had purported to act exclusively under s 378 when the power to give special directions had never in a general sense been delegated to him. Nor do ss 186 and 187 contain the unequivocal words of s 109 of the TAA. Although as the
Supreme Court observed,21 an appropriately drafted privative clause may, within an
appropriate legislative framework, be sufficient even to preclude a challenge on the
19 At [67].
20 At [70].
21 At [63].
basis of legal nullity, there is a strong inclination to preserve access to the courts where matters of vitiation are alleged. And at a minimum, in my view, the Court should, in a case such as this, be properly possessed of the facts before dismissing an applicant’s claims.
[54] That conclusion is sufficient to dispose of the application.
[55] However, Mr Deliu also advances a “legitimate expectation claim” based on what he says was the position until Whata J’s decision in Zhang, namely that the Minister or his delegate routinely considered visa applications, as a “port of last call”, under s 378. He says that Mrs Kaur had a legitimate expectation that her
request would be determined by the Minister,22 (or someone to whom his powers had
been specifically delegated23), and not simply by an immigration officer, however junior, exercising powers under s 76.24 Mr Deliu acknowledges amendments to Mrs Kaur’s pleading would be required. He says, in my view with some justification, that the necessity for such an amended pleading derives from the way in which the
respondents have approached the argument and, in particular, their submission that the discretions exercised by Mr Hubscher were in fact exercised pursuant to ss 72 and 76 (if indeed he made a s 76 decision at all). Mr Deliu seeks a period of two weeks in which to formulate the necessary amendment.
[56] There seem to me to be significant difficulties with such a cause of action. The doctrine of legitimate expectation cannot apply in conflict with the relevant legislative scheme. Assuming Whata J is correct in Zhang (Mr Deliu advises the decision is currently under appeal) then there can, by virtue of s 378’s requirement
that a special direction be in relation to “any matter for which such a direction is
22 Or Associate Minister standing in the Minister’s shoes by virtue of s 7 of the Constitution Act as stated by Neazor J in Rizki v Birch HC Wellington CP25/93, 2 March 1993 and confirmed in the obiter of Whata J in Zhang v Associate Minister of Immigration & Anor, above n 2, at footnote
2.
23 I agree with Whata J’s obiter in Zhang v Associate Minister of Immigration & Anor, above n 2, that there appears to be no express fetter on the power of the Minister to delegate this decision- making power to a subordinate decision-maker.
24 In the present case the respondents’ position is that a reg 10 compliant application should simply
be considered by whichever immigration officer in its Delhi branch is allocated the file. The applicant’s concern is that a junior immigration officer would simply follow the previous decision of Immigration New Zealand and the Immigration and Protection Tribunal and not bring to the matter the independence and authority of the Minister/Associate Minister or his specific delegatee.
contemplated by any provision of this Act”, be no legitimate expectation that applications for residence on temporary entry class visas under ss 72 and 76 would be subject to s 378’s jurisdiction.
[57] I do not, however, need to address that issue further at this stage.
[58] Nor do I need to address the applicant’s further argument that Mr Hubscher’s
decision breached s 27 of the NZBORA.
Result
[59] I decline the respondents’ application to strike out the applicant’s statement of claim.
[60] I award costs to the applicant on a 2B basis.25 In the unlikely event that counsel cannot agree quantum memoranda may be filed.
[61] I make the following timetable orders:
(a) The applicant is to file and serve any amended statement of claim by
20 November 2015.
(b) The respondents’ statement of defence is to be filed and served by 4
December 2015.
(c) The applicant’s reply is to be filed and served by 9 December 2015.
(d) Any interlocutory applications are to be filed and served by 11
December 2015.
(e) I direct that the matter be listed in the first judicial review list after 11
December 2015 with a view, hopefully, to consent orders relating to
25 At the conclusion of judgment Mr Deliu asked me to revisit this award and order costs on a 3C basis. I declined to do so having regard to the nature of the proceedings and the fact that, on my review of similar cases, 2B awards were routine.
trial disposition. Clearly, given the applicant’s age, there is a
premium on the swift disposition or settlement of these proceedings.
Muir J
SCHEDULE
Immigration Act 2009
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.
72 Decisions on applications for residence class visa
(1)Where the Minister or an immigration officer makes any decision in relation to an application for a residence class visa, that decision must be made in terms of the residence instructions applicable at the time the application was made and any discretion exercised must be in terms of those instructions.
(2)No application for a residence class visa that is received by an immigration officer may be referred to the Minister for decision at first instance, unless the Minister gives a special direction to that effect.
(3)Nothing in this section prevents the Minister, in his or her absolute discretion, from making any decision to grant a residence class visa as an exception to residence instructions in any particular case.
76 Decisions on applications for temporary entry class visa
(1)The Minister or an immigration officer may, in the Minister’s or officer’s discretion, grant a temporary entry class visa as an exception to temporary entry class instructions in any particular case.
(2)Subsection (1) does not apply to an application for a temporary entry class visa of a type subject to restricted temporary entry instructions.
(3)However, nothing in subsection (2) prevents the Minister in his or her absolute discretion from making a decision to grant a visa as an exception to restricted temporary entry instructions in any particular case.
186 Limited right of review in respect of temporary entry class visa decisions
…
(3) 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:
(b)cancellation of a temporary entry class visa before the holder of the visa arrives in New Zealand.
187Rights of appeal in relation to decisions concerning residence class visas
…
(8)A person may bring review proceedings in a court in respect of a decision in relation to a residence class visa except if the decision is in relation to—
(a) the refusal or failure to grant a residence class visa to a person outside New Zealand; or
(b)the cancellation of a resident visa granted outside New Zealand before the holder of the visa first arrives in New Zealand as the holder of the visa.
378 Special directions
(1)The Minister may give to the chief executive or any other immigration officer, either in writing or orally, a special direction, in relation to any matter for which such a direction is contemplated by any provision of this Act or of regulations made under this Act, in respect of—
(a) any person, visa, or document; or
(b)any 2 or more persons, visas, or documents where by reason of any specific event, occurrence, or unusual circumstances there is a common link between those persons, visas, or documents.
(2) The Minister may give in writing a special direction—
(a) waiving the requirement to hold a visa permitting travel to New Zealand in relation to any class of persons, in accordance with section 69(2)(a):
(b)suspending, under section 69(2)(b), a visa waiver made in accordance with section 69(1):
(c) classifying persons to whom a transit visa waiver applies, in accordance with section 86(4)(a):
(d)suspending, under section 86(4)(b), a transit visa waiver made in accordance with section 86(2)(a).
(3)A special direction comes into force on the day on which it is made, or any later date specified in the direction.
(4)Where a special direction is given orally, the chief executive or immigration officer must as soon as possible make a written record of the content and date of the direction.
(5) A special direction may be subject to such conditions as the
Minister thinks fit.
(6)A special direction may revoke or amend any previous special direction.
(7)Nothing in this section limits or affects the powers of the Minister to give all such instructions to the chief executive as the Minister thinks fit in the ordinary course of the administration of the immigration portfolio and of this Act.
(8)The decision whether to grant a special direction is in the absolute discretion of the Minister.
(9)A special direction is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act
2012 and does not have to be presented to the House of Representatives under section 41 of that Act, unless this Act otherwise provides.
380 Delegation of Minister's powers
(1)The Minister may, in writing, delegate to any immigration officer 1 or more of the powers conferred on the Minister by this Act, except—
(a) this power of delegation; and
(b)the power to certify immigration instructions under section 22; and
(c) the powers referred to in section 33(1) and (2) (which relate to the use of classified information); and
(d) the power to make a special direction under section
69(2)(a) or (b) (which relates to waiving the requirement for classes of persons to hold a visa permitting travel to New Zealand); and
(e) the power to make a special direction under section
86(4) in relation to transit visas; and
(f) the power to certify under section 163(1) that a person constitutes a threat or risk to security; and
(g)the power to make a decision of a kind referred to in section 139 or 199 in relation to a protected person who has committed certain crimes or been guilty of certain acts.
(2)The immigration officer to whom a delegation may be made may be an officer referred to by name or the officer who for the time being holds a specified position.
(3)Every delegation is revocable at will, and no delegation prevents the exercise of any power by the Minister.
(4)A delegation may be made subject to such restrictions and conditions as the Minister thinks fit, and may be made either generally or in relation to any particular case.
(5)A delegation no longer applies to a person when the person leaves the Department or service or employment in respect of which the delegation was made.
(6)Until revoked, a delegation continues in force according to its tenor, even if the Minister who made it has ceased to hold office, and continues to have effect as if made by the successor in office of that Minister.
(7)The fact that any immigration officer exercises any power of the Minister, other than a power referred to in subsection (1), is, in the absence of proof to the contrary, sufficient evidence that the officer has been authorised to do so by a delegation under this section.
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