Kaur v Ministry of Business, Innovation and Employment
[2012] NZHC 3563
•20 December 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-007338 [2012] NZHC 3563
UNDER the Judicature Amendment Act 1972 and the New Zealand Bill of Rights Act 1990
IN THE MATTER OF an Application for Judicial Review/Bill of
Rights Claim
BETWEEN NARINDER KAUR First Plaintiff
ANDJASWANT SINGH Second Plaintiff
ANDMANJIT SINGH Third Plaintiff
ANDPALVINDER SINGH Fourth Plaintiff
ANDVARDEEP SINGH MATHARU Fifth Plaintiff
ANDYADVINDER SINGH Sixth Plaintiff
ANDTHE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant
Hearing: 17 December 2012
Counsel: F C Deliu for the Plaintiffs
N M H Whittington and I S Auld for the Defendants
Judgment: 20 December 2012
JUDGMENT OF DUFFY J
KAUR and ORS v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT HC AK CIV-2012-
404-007338 [20 December 2012]
This judgment was delivered by Justice Duffy on 20 December 2012 at 12.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: F C Deliu P O Box 68559 Auckland 1145 for the Plaintiffs
Solicitors: Meredith Connell P O Box 2213 Shortland Street Auckland 1140 (DX CP24063) for the Defendant
[1] The plaintiffs seek interim relief in the form of an order from this Court declaring that:
The defendant ought not to take any further action that is or would be consequential on the exercise of the statutory power including, but not limited to, that the plaintiffs’ licence to travel to, and work in, New Zealand which the defendant has (invalidly) purported to revoke or suspend in the exercise of the defendant’s investigative power, continue and be deemed in force such that the jurisdiction the plaintiffs may travel to New Zealand and apply for permission to enter.
[2] The application is opposed.
[3] It is to be noted that this is an interlocutory application dealt with under urgency. Any views expressed that may be relevant to the substantive issues are to be regarded as tentative only.
[4] The application and the substantive proceedings related to it have been brought on urgently. Consequently, some aspects of the application are untidy. The defendant is named as the Government department that is responsible for administering the Immigration Act 2009 (the Act). Proceedings should be commenced against the Crown, in which case the defendant is the Attorney-General, the Minister responsible for the Government department that administers the Act, or the officer responsible for making the decision under review. Here, the material statutory power is vested in the Chief Executive of the Ministry of Business, Innovation and Employment. Secondly, the statement of claim does not plead grounds for review that were addressed in argument in the hearing and which appear to be tenable.
[5] Counsel who appeared for the defendant took no issue with the description of the defendant in the proceeding. However, this is something that should be tidied up before the substantive proceeding is heard.
[6] The plaintiffs are of Indian origin. They hold work visas which are classified under the Act as temporary entry visas. Although they had been working in New Zealand under those visas and contend that they remain so employed, they returned to their country of origin. Whilst there, their presence prompted officials
within the New Delhi office of the defendant to commence inquiries into the genuineness of their employment in New Zealand.
[7] Victor Wells, the manager of risk and assurance for the department at its New Delhi branch, has been involved with the ongoing investigation into the plaintiffs’ employment and immigration status. His evidence was that during 2012, the New Delhi branch of the department became aware that a number of horticultural workers holding WD1 graduate work visas (WD1 visas) had moved back to India in order to move back in with their partners. It is not clear to me from Mr Wells’ affidavit whether he has established this as a fact, or whether it is simply a matter of allegation that is still being investigated.
[8] Mr Wells went on to depose that one reason for his concern was that a number of the visa holders’ partners had recently had applications for partnership visas declined, for not meeting the “living together” requirement of immigration instructions. He said that in most cases, the work visa holders were coming toward the end of their two year work visa and did not have an option to extend their visa, given that their horticultural employment did not appear to be “skilled” in terms of the department’s instructions. He surmised that these work visa holders had the intention to get married, then for their partner to move to New Zealand and enrol in a course of study. The supporting partner would then be eligible to apply for a work visa based on the relationship. He also said that in some cases, the work visa holders were living back in India for substantial periods of time. Despite, in all cases, the employer in New Zealand writing to the department to confirm that the employment was genuine and that leave had been granted, the department still had concerns for two reasons:
(a) Given the amount of time taken by the visa holders on leave from their employment, the department was concerned that their employment was not genuine; and
(b)The department had concerns regarding each visa holder’s ability to abide by the terms and conditions of his work visa and the objectives of the WD1 visa instructions.
[9] Mr Wells deposed that a WD1 visa was predicated on an individual working in New Zealand and gaining experience in a field related to their course of study. This could not be achieved, he said, by the individual returning to India to live.
[10] Mr Wells said that these concerns led the department to undertake investigations into a number of work visa holders who had returned to India for extended periods to ensure that their employment was genuine, and that they were abiding by the terms and objectives of their visa.
[11] In explaining why alerts were placed on the visa holders’ profiles on the department’s electronic management system (AMS), Mr Wells said that the majority of individuals investigated had been out of New Zealand for over six months (emphasis added) and do not appear to have any intention of returning to New Zealand. As he saw it, it was likely that their visas would be cancelled. He said that for those who have the intention of returning, the department was required to investigate their employment to determine whether it is genuine. The plaintiffs were a sample of the latter group, which comprised approximately 18 individuals. Mr Wells described the investigation as involving interviewing “some of these individuals” and seeking information from employers regarding whether the leave is sanctioned and what the leave entitlement of the individual is. He said information regarding tax records and bank account information would be sought.
[12] As part of this enquiry, the New Delhi based officials entered an alert in the department’s electronic system for processing entry into New Zealand, which is known as Advance Passenger Processing (APP). Tracey Amberger, a senior risk profiling analyst who works for the department in the New Zealand office, described how the APP system worked.
[13] Ms Amberger described the APP system as being a computerised system that allows electronic screening of passengers intending to travel to New Zealand through an interface between “AMS” and a number of other databases and an airline’s computer system. It is the approved system referred to in s 96(2)(b) of the Act.
[14] Passengers who intend to fly to New Zealand are initially screened before they board their flight. Those identified as presenting an immigration risk or threat, or where character concerns mean they are unable to meet entry requirements can either be stopped from boarding their flight or flagged for further investigation upon arrival in New Zealand.
[15] Ms Amberger deposed that when passengers check in from overseas, the APP system electronically checks to see whether there are any alerts on the AMS system and confirms their entitlement to travel to, or through New Zealand. Passenger information, entered into airlines’ systems as they report for check-in overseas, is screened against a number of databases. The APP system gives the airline a boarding directive, either permitting the passenger to board, or directing the department be contacted in respect of that passenger. A contact directive occurs where, for example, there is a client alert in the system, or where the passenger requires a visa to travel to New Zealand but does not hold one, or where the passport presented is recorded as being lost or stolen.
[16] When an alert is raised in AMS that states “stop from boarding at check-in”, the APP system will automatically provide a “deny board” response and a “contact NZIS” directive to the airline. The airline will then have to contact the department and determine if the official contacted will provide a “Government override” in order to allow the passenger to travel. That contact is directed to INZ Immigration Borders Operations, a section staffed 24 hours a day by immigration officers in an immigration control area of Auckland Airport. A decision is then made by the particular immigration officer (acting under the delegated authority of the Chief Executive), pursuant to s 97 of the Act, whether to allow the individual to board the aircraft. If a decision is made not to permit the person to board the aircraft, the person is notified by the department indirectly or via the airline.
[17] Ms Amberger deposes that although in the majority of cases where an alert has been placed on AMS recommending that the individual not be permitted to board an aircraft, the immigration officer is likely to accept this recommendation and decide not to permit the passenger to board, this is not always the case. She notes that in exceptional circumstances, the immigration officer concerned may decide,
despite the recommendation contained in the alert, that the individual should be allowed to board the aircraft. In the majority of cases, the immigration officer will attempt to speak to the individual concerned, in order to assess whether the alert is still appropriate. Ms Amberger deposes that the decision under s 97 of the Act whether or not to allow a person to board an aircraft for the purpose of travelling to New Zealand is made at the time they attempt to board the aircraft, and is triggered by the airline’s computer system providing information to the department through the APP system.
[18] Mr Wells also provided general information on the nature of alerts placed on the AMS. He said that if an immigration officer receives information about an individual that raises concerns about their immigration status, the immigration officer is able to request that an alert be placed on the person’s profile in the AMS. Alerts can be requested by immigration officers both in New Zealand and off-shore. He said the circumstances that can lead to an alert being raised include such things as an individual on a student visa no longer being enrolled in a qualifying course of study, or an individual on a work visa no longer being employed. He said there were a range of alerts that can be raised, including a recommendation to prevent an individual from boarding a craft to travel to New Zealand, or a recommendation to stop an individual at the border for further questioning. Requests for alerts are apparently provided on a daily basis to the department’s immigration border operations for review and either acceptance or rejection. If a request for an alert is accepted, the alert is loaded into the AMS system.
[19] Mr Wells noted that an alert does not affect any particular person’s immigration status. It is designed to be an effective way to enable immigration officers who may come into contact with a person to know quickly whether information is sought from that person, whether they have come unlawfully into New Zealand, or whether they should be requested to do something or be prevented from doing something.
[20] Mr Wells has given information setting out the details of each plaintiff ’s visa, the date they left New Zealand, the date an alert was placed on their profile in AMS and the reason for the alert being placed on the profile.
[21] Ms Kaur was issued a work visa on 15 May 2012, valid until 15 May 2014, to work as orchard manager for Greenfingers Horticultural Services Ltd (Greenfingers), Te Puke. She left New Zealand on 14 September 2012. An AMS alert was placed on her profile on 6 November 2012. On 7 November 2012, she presented at the airport to leave for New Zealand, and was refused permission to board the plane, pursuant to a decision under s 97. The reason for the alert was given as concerns regarding the genuineness of her employment.
[22] Jaswant Singh was issued a work visa on 13 April 2012, which was valid until 13 April 2014, to work as orchard supervisor for Greenfingers. He also left New Zealand on 14 September 2012. An AMS alert was placed on his profile on
2 November 2012. He too was stopped from boarding a plane to New Zealand on
7 November 2012, and the reason for the alert in his case was given as concerns regarding his intention to return, and the relevance between qualification and employment.
[23] Crown counsel accepted that in the case of Ms Kaur and Mr Singh, they were not given notice of the date the AMS alert was placed on their profile; so their plans to travel to New Zealand on 7 November 2012 could not be related to them knowing of the alert.
[24] Manjit Singh was issued a work visa on 11 September 2012, valid until
11 September 2014, to work as supervisor for Aujla Contractors Ltd (Aujla) in Gisborne. He left New Zealand on 22 September 2012. An AMS was placed on his profile on 4 October 2012. No s 97 decision has been made in his case. An official from the department’s New Delhi office emailed him on 9 October 2012 advising him not to attempt to travel. The reason for the alert being placed was given as concerns about the genuineness of his employment.
[25] Palvinder Singh was issued a work visa on 25 June 2012, which was valid until 19 June 2014, to work as assistant manager for Aujla in Papamoa. He left New Zealand on 19 September 2012. An AMS alert was placed on his profile on
4 October 2012. On 29 October 2012, when he sought to board a plane to
New Zealand, he was refused permission to board, pursuant to s 97. The reasons for
the alert being placed was given as concerns regarding the genuineness of his employment.
[26] Vardeep Matharu was issued a work visa on 19 July 2012, valid until 19 July
2014, to work as assistant manager for Aujla in Coromandel Peninsula and Papamoa. He left New Zealand on 6 October 2012. An AMS alert was placed on his profile on
22 October 2012. No s 97 decision has been made in his case as, on 23 October
2010, an official from the department’s New Delhi office emailed him advising him not to attempt to travel. The reasons given for the entry on the AMS system was given as concerns regarding the genuineness of his employment.
[27] Yadvinder Singh was issued a work visa on 13 June 2012, valid until 13 June
2014, to work as assistant manager for Santokh Sandhu Ltd in Waihi. He left New Zealand on 11 September 2012. On 6 November 2012, an alert was placed on his AMS profile. On 19 November 2012, he attempted to board a plane to New Zealand and was refused permission to do so, pursuant to s 97. The reason for the alert being placed was given as concerns regarding abandonment of employment.
[28] Atul Kapoor was issued a work visa on 13 August 2012 until 13 August 2014, to be assistant store manager for Nikhil Himalaya Holdings Ltd (trading as Super Liquor, Pt Chevalier in Auckland). He left New Zealand on 18 September
2012. An alert was placed on his AMS profile on 7 November 2012. On
20 November 2012, when he went to board a plane for New Zealand, he was denied permission to do so, pursuant to s 97. The reason for the alert was given as concerns regarding the abandonment of his employment.
[29] Sunil Chandra was issued a work visa on 13 May 2011, valid until 13 May
2013, to be chef at Indian Aroma restaurant. He left New Zealand on 24 August
2012. On 9 November 2012, an alert was placed on his AMS profile. When he attempted to board a plane to New Zealand on 16 November 2012, he was denied permission to do so, pursuant to s 97. The reasons for the alert are given as concerns regarding abandonment of his employment.
[30] Mr Wells said that each of the plaintiffs was in a different position and the decision to prevent each of them from travelling to New Zealand had been made for different reasons:
(a) In relation to the first and second plaintiffs, Narinder Kaur and Jaswant Singh, Mr Wells said the department was specifically concerned about their initial intention to enter New Zealand as tourists, declarations made in their original visa application and how they came to be working in New Zealand. He said their employer was also currently being investigated. Apparently concerns are held about the relevance between the qualifications and employment of these persons. Each has been interviewed recently.
(b)On the other hand, the plaintiffs’ evidence is that Ms Kaur has been working for her New Zealand employer, Greenfingers, since on or about 16 October 2008. Her most recent work visa was approved on or about 15 May 2012, with an expiry date of 15 May 2014. Given the time over which she has held a work visa, it is hard to understand the concerns Mr Wells has expressed regarding how she initially came to acquire such a visa. Clearly, such concerns have never been a problem before, although it would always have been a matter of record as to how she initially obtained her work visa.
(c) Regarding Mr Jaswant Singh, he has been working for Greenfingers since on or about 22 May 2009. His most recent work visa was approved on or about 13 April 2012, with an expiry date of 13 April
2014. Again, it is difficult to see how any initial intention he may have expressed to enter New Zealand as a tourist and the declaration made in his original visa application could have an impact now on him being granted a work visa.
(d)In relation to the third, fourth and fifth plaintiffs, Manjit Singh, Palvinder Singh and Vardeep Matharu, the department is concerned that a large number of employees from the same business have been
provided extended leave at the same time. The department is aware of other employees of this employer, Aujla, who are also currently on extended leave in India, one of them having returned to live with his wife.
(e) On the other hand, there was no evidence that officials from the department in New Zealand have contacted Aujla. There is evidence from the plaintiffs that the horticultural industry in the Bay of Plenty has a quiet season in September and October which is a time when employers usually encourage their foreign workers to take annual holidays. The managing director of Aujla has written to the department advising it of the seasonal nature of the kiwifruit business. Officials from the department have not made direct contact with Aujla.
(f) In relation to the sixth plaintiff, Yadvinder Singh, the department is concerned about the length of time he has spent outside of New Zealand and has questions about the genuineness of his employment. Mr Yadvinder Singh’s employer has written to the department advising that staff are encouraged to take holidays during mid-September to mid-November because they are not so busy at that time of the year. Also, the employer states that Mr Yadvinder Singh was granted extra leave because he had his wedding anniversary, his daughter’s birthday and Diwali during the period he has been absent from New Zealand. Officials from the department have made no direct contact with Mr Yadvinder Singh’s employer.
(g)In relation to Atul Kapoor, the department has concerns that he has been absent from New Zealand for a number of months and that he may have abandoned his employment. On the other hand, the plaintiffs’ evidence is that Mr Kapoor left his employment in early September on four weeks’ leave to visit India to find a suitable partner to get married. Whilst in India, his grandfather died and he was compelled to extend his stay. His employer says that approval
beforehand was sought and granted and Mr Kapoor was allowed to stay a further four weeks without pay. The extended period of eight weeks, therefore, that Mr Kapoor was out of New Zealand is explained as being due to his particular circumstances and approved by his employer.
(h)In relation to Sunil Chandra, the department is concerned that he has been absent from New Zealand for approximately 10 months while holding a work visa since 2009. The department is also concerned about the length of time Mr Chandra has been out of New Zealand on his present trip to India. The length and frequency of Mr Chandra’s absences from New Zealand are said to raise serious questions about the genuineness of his employment.
(i)The plaintiffs’ evidence is that Mr Sunil Chandra first started working with his present employer, Indian Aroma, in May 2008. His most recent work visa was granted on 20 July 2011, with an expiry date of
13 May 2013. He is someone who has an extant resident visa application, based on his employment with Indian Aroma. That application has recently been put on hold as a result of Mr Chandra being prevented from returning to New Zealand. Correspondence that his solicitor has had with New Zealand officials of the department shows that they were unaware of the investigation into Mr Chandra and that they were in the process of processing his application for residence, including seeking an opportunity to interview him, before he was prevented from returning to New Zealand.
[31] Mr Wells has noted that the plaintiffs complain of delay in the investigation into their circumstances. This is because the investigation remains ongoing. Mr Wells says there are 18 people whose visas are currently being investigated, and the plaintiffs are six of them. He said that the Delhi branch of the department was recently closed for Diwali, a time during which many staff take further annual leave. This has led to some delay in progressing the investigation. Mr Wells anticipates that the investigation should be able to be completed by the end of January 2013.
[32] A transcript of an interview Mr Wells had with Mr Palvinder Singh shows that he was questioned about the number of persons from Aujla who are currently in India. His response was that a lot of the staff from Aujla are in India in September, October and March as the workload is light then, winter pruning is less, and he said that, in one month, the work was due to start again. The inquiry was being conducted from India. There was no evidence to show that officials of the department in New Zealand had investigated Aujla to see whether there was less work during the period Mr Palvinder Singh and others were absent in India, and whether the light workload at Aujla coincided with the light workload of other kiwifruit orchards in the area. Mr Harjinder Singh, the managing director of Aujla, sent a letter to the department describing its work as a kiwifruit business and stating that there are times during the year when work is light and it is at that time that the foreign workers are given holiday leave. These months are said to be the middle of September to October and the middle of February to the middle of March. These downtimes are described as coinciding with the seasonal nature of the kiwifruit industry.
[33] Alistair McClymont is the plaintiffs’ instructing solicitor. He has sworn two affidavits in support of the application for interim relief. This is irregular but given the urgent nature of the application, I will overlook the irregularity. However, the nature of the information contained in the affidavit will either need to be adduced in evidence through an independent witness, or Mr McClymont will have to cease being the plaintiffs’ solicitor.
[34] His affidavit of 6 December 2012 shows that he has spoken to the employers of the six plaintiffs. Those employers confirm that they have not been contacted by any official of the department regarding the respective plaintiffs’ absence from work. Regarding Mr Atul Kapoor and Mr Sunil Chandra, who are applicants for interim relief, but not cited as plaintiffs, neither employer of this person has been contacted by the department regarding absence from work. In addition, Mr McClymont deposes that whilst he has been in contact with the officials of the department regarding representation of the plaintiffs, no one from the department has contacted him.
Applicants’ submissions
[35] The applicants seek interim orders declaring that their licence to travel to and work in New Zealand, which the defendant has purported to invalidly suspend in the exercise of its powers, continue to be deemed in force.
[36] The applicants submit that there is an arguable case that:
(a) The Chief Executive’s decision was ultra vires and made through an error of law;
(b) Section 97 is not available to the Chief Executive;
(c) The Chief Executive failed to properly apply s 157 of the Act;
(d) The Chief Executive failed to consider the rights of the visa holders; (e) There was a breach of natural justice; and
(f) That the decision was pre-determined.
[37] The applicants submit that the order is necessary to preserve the status quo because if they do not come back, they will not be able to abide by the conditions of their working visas.
Respondent’s submissions
[38] The defendant submits that the plaintiffs do not have a respectable chance of success in the substantive proceeding because decisions to prevent boarding under s 97 are not reviewable. The defendant says that the investigatory process challenged consists of immigration officers receiving and considering information to make a decision to flag a particular person's electronic records by way of an alert. Those decisions are not an exercise of a statutory power of decision, especially as none of the visas have been cancelled or suspended.
[39] The defendant also points to specific reasons why some of the plaintiffs should not succeed. Three of the plaintiffs were out of time under s 247 of the Act. Two of the plaintiffs did not attempt to travel, so no decision under s 97 was made in relation to them.
[40] Finally, the defendant submits that even if the plaintiffs have a respectable chance of success, it is not necessary to grant interim relief because the evidence does not achieve the required standard of "necessity". First, relief would be futile as entry permission is not a statutory entitlement anyway. Secondly, there is no evidence the plaintiffs would lose their jobs and, even so, the defendant says it is justified in considering the genuineness of the jobs.
Approach to application
[41] Section 8 of the Judicature Amendment Act 1972 provides for the granting of interim relief in judicial review proceedings:
8 Interim orders
(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:
…
(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.
…
(3) Any order under subsection (1) or subsection (2) of this section may be made subject to such terms and conditions as the Court thinks fit, and may be expressed to continue in force until the application for review is finally determined or until such other date, or the happening of such other event, as the Court may specify.
[42] The Supreme Court in Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 has affirmed that the leading case on the application of s 8 remains Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA). In that case, Cooke J said at 430:
... the Court must be satisfied that the order sought is necessary to preserve the position of the applicant for interim relief – which must mean reasonably necessary. If that condition is satisfied ... the Court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief.
[43] Cases since Carlton & United have generally followed what was said in that case. The test was formulated in New Zealand Maori Council v Attorney-General HC Wellington C40/96, 29 March 1996 by McGechan J at 3 in the following terms:
The Court must first be of opinion it is ‘necessary’ to make the orders sought for the purpose of ‘preserving the position’ of the applicant pending substantive hearing. Once so satisfied the decision becomes a discretionary one. In the exercise of discretion strength of case may be weighed along with all the circumstances. The ultimate exercise will look broadly to the overall interests of justice.
[44] The Courts have also emphasised that the assessment of the strengths of the case does not require definite success but should be seriously arguable: Petromont Holdings Ltd v Director-General of Agriculture and Fisheries HC Auckland M986/93, 23 July 1993 at 5. The approach to this threshold test may depend on the area of law involved. In an immigration case, Hammond J in Esekielu v Attorney- General (1993) 6 PRNZ 309 (HC) said at 313 that an applicant for relief does not need to show a strong possibility of success, as long as the applicant can that there is “a real contest between the parties, and that the applicant has a reasonable chance of succeeding in that contest”.
Is it necessary to preserve the position of the applicant?
[45] A “necessity” to preserve the present position of the applicant is a threshold that must be met for an order to be granted. According to Woodhouse v Auckland City Council (1984) 1 PRNZ 6 at 8, “the clear purpose of s 8 is to give a right of protection on an interim basis to an applicant who may otherwise be unfairly
prejudiced by reason of the delay in obtaining a final hearing”. The Court in O’Malley v Jones HC Christchurch CP64/02, 8 November 2002 at [22] has held that preserving a position may include the restoring a licence held prior to the revocation or suspension decision that is challenged on judicial review, even though proceedings were only filed afterwards.
Discretion to grant relief
[46] Once it is determined that the order would be necessary, the Court has a discretion as to whether the order should actually be granted. As noted in Carlton & United and New Zealand Maori Council above, factors that might be considered include:
(a) The apparent strength of the claim;
(b) The public and private repercussions of granting relief; and
(c) The overall interests of justice.
Is the interim relief necessary to preserve the position of the applicants?
[47] The status quo before the Chief Executive’s decision was made was that each applicant had been working in New Zealand with a valid work visa, and had travelled to their country of origin on leave. As the applicants note, to be able to continue fulfilling the conditions of their visas, they must be able to come back to work in New Zealand; otherwise, if they do not comply, this would give the Minister a fresh reason to revoke the work visas.
[48] The applicants have currently been denied both the opportunity to return to New Zealand and to apply for entry permission. Without being able to do either of these things, their chance of complying with their work visas, should their visas be validated after the investigation, is open to question. Thus, this threshold is met.
Should the discretion be exercised?
[49] This involves considering the apparent strength of the applicants’ case.
[50] Section 43 of the Act provides that if someone has a visa, they have the right to travel to New Zealand in accordance with the conditions of the visa. Whether they would then be granted entry permission is a separate issue:
43 Effect of visa
(1) A visa (other than a transit visa) granted outside New
Zealand indicates that—
(a) the holder of the visa has permission to—
(i) travel to New Zealand in accordance with the conditions of the visa (if any); and
(ii) apply for entry permission; and
(b) at the time the visa is granted, there is no reason to believe that the holder will be refused entry permission if the holder's travel is consistent with the conditions of the visa relating to travel; and
(c) if the holder is granted entry permission, the holder has permission to stay in New Zealand in accordance with the conditions of the visa (if any).
(2) A visa granted in an immigration control area indicates that the holder of the visa,—
(a) if granted entry permission, has permission to stay in New Zealand in accordance with the conditions of the visa (if any); and
(b) has permission to travel to New Zealand subsequently and apply for entry permission in accordance with the conditions of the visa (if any).
(3) A visa granted onshore indicates that the holder of the visa—
(a) has permission to stay in New Zealand in accordance with the conditions of the visa (if any); and
(b) has permission to travel to New Zealand subsequently and apply for entry permission in accordance with the conditions of the visa (if any).
[51] Until the visas have been revoked, they are still valid.
[52] The refusal to permit the applicants to board aircraft to return to New Zealand was a purported exercise of the powers to refuse entry under s 97 of the Act. This states:
97Chief executive may make decision about person boarding craft for purpose of travelling to New Zealand
(1) The chief executive may decide that a person in relation to whom information has been received under section 96(2)—
(a) may board a craft for the purpose of travelling to
New Zealand; or
(b) may not board a craft for the purpose of travelling to
New Zealand; or
(c) may board a craft for the purpose of travelling to New Zealand only if he or she complies with conditions specified by the chief executive.
(2) The chief executive—
(a) must notify a person to whom section 96 applies of a decision made under subsection (1); and
(b) may do so in any form he or she thinks appropriate, including, but not limited to, by means of an approved system, which may contain code that represents the outcome of the decision; and
(c) may do so in any manner he or she thinks appropriate, including, but not limited to, by means of an automated electronic notification.
(3) The chief executive—
(a) may make a decision under subsection (1) whether or not the person to whom the decision relates—
(i) holds a visa to travel to New Zealand; or
(ii) has been granted entry permission; or
(iii) is a person to whom a visa waiver applies;
but
(b) may not make a decision under subsection (1)(b) or
(c) if the person to whom the decision relates is—
(i) a New Zealand citizen who, before boarding the craft, holds and produces a New Zealand passport; or
(ii) a New Zealand citizen who, before boarding the craft, holds and produces a foreign passport containing an endorsement of a type described in section 384; or
(iii) a New Zealand citizen who, before boarding the craft, produces a returning resident's visa (within the meaning of section 2(1) of the former Act) endorsed in a current passport; or
(iv) a permanent resident; or
(v) a resident visa holder, unless the person has not previously travelled to New Zealand as the holder of that visa and the visa was granted outside New Zealand.
(4) A person in relation to whom a decision is made under subsection (1)—
(a) may not appeal the decision to any court, the
Tribunal, the Minister, or otherwise:
(b) may bring review proceedings in relation to the decision only on the grounds that he or she is a person in relation to whom that decision should not have been made because he or she is a person to whom subsection (3)(b) applies.
(5) The chief executive is not obliged to give reasons for a decision made under subsection (1) other than that subsection (1) applies, and section 23 of the Official Information Act 1982 does not apply in respect of the decision.
(6) To avoid doubt, nothing in section 305 applies to the chief executive when he or she is notifying a carrier, or a person in charge, of a commercial craft to whom section 96 applies of a decision made under subsection (1).
[53] According to s 97(1), this section only applies to “a person in relation to
whom information has been received under section 96(2)”. Section 96(2) states:
(2) The carrier or the person must, before the craft departs from another country to travel to New Zealand,—
(a) obtain from every person who intends to board the craft for the purpose of travelling to New Zealand
the information prescribed for the purposes of this subsection:
(b) provide to the chief executive, by means of an approved system, the information prescribed for the purposes of this subsection.
[54] The applicants fall into two groups: those for whom permission to board an aircraft travelling to New Zealand was refused; and those who have not attempted to board such an aircraft because they received advice from the department’s officials in New Delhi telling them not to make any attempts to travel to New Zealand. I shall deal with the latter group first.
[55] Manjit Singh and Vardeep Matharu were sent email communications informing them they should not attempt to travel to New Zealand. The defendant accepted that the pre-requisite conditions under s 96(2) for making an order pursuant to s 97 were not established.
[56] These communications are seriously concerning. The officials who sent them had no authority to issue such communications.
[57] The defendant attempted to argue that the communications were in the nature of administrative advice and intended to assist Mr Manjit Singh and Mr Matharu to avoid making unnecessary travel plans. I do not read the communications in this way. Examples of the communication that were in evidence state as follows:
We are currently conducting investigation on this matter and in the interim an alert has been placed on your profile such that you will be denied boarding if you attempt to return to New Zealand. Please do not make any attempts to travel to New Zealand until you hear from us.
[58] The evidence of Ms Amberger acknowledging that on occasion an alert placed on the AMS may be disregarded and the affected passenger may still be permitted to travel to New Zealand is enough to lead me to conclude that the communications have denied the affected persons the opportunity to present their case for being permitted to travel to New Zealand to the immigration officer responsible for making the s 97 decision.
[59] These persons currently hold valid visas. But for any decision made against them under s 97, they are legally permitted and able to travel to New Zealand. Whilst the New Delhi office of the department may have concerns regarding the genuineness of their employment in New Zealand, no basis for this view has been provided. It may be that in the case of Mr Manjit Singh and Mr Matharu there is nothing to support those concerns, other than suspicion. For example, there is evidence that the New Delhi officials of the department are concerned that a number of persons holding work visas permitting them to work for Aujla are currently in India and this has led the officials to suspect that there is no genuine reason for them to be employed by Aujla in New Zealand. But there is no evidence of inquiries the department has made directly of Aujla to see whether or not they are actively using foreign workers at the relevant time, or whether the period from September to November constituted a down period in the horticultural industry which caused Aujla not to need their foreign workers for that time. If it is the latter, it is not surprising that foreign Indian nationals holding work visas had returned to their home country for the down period. That does not imply that they would not be genuinely needed for work at other times of the year. The investigation into the group of 18 persons has been going on since November 2012. Nothing is known of the effect on their New Zealand employment if they are unable to return to New Zealand in the near future.
[60] The period of time between when Mr Manjit Singh left New Zealand and was notified he should not attempt to return to New Zealand is 18 days, which includes travel time to India. This is nothing like the six months’ absence from New Zealand that Mr Wells has said applies to the majority of persons under investigation. There is no evidence as to when Mr Singh might have returned to New Zealand but for the communication telling him not to do so. There is no evidence that Mr Manjit Singh has a WD1 work visa, which is the group of visa holders that first created suspicion. His employment is as a horticultural worker, which is not consistent with Mr Wells’ description of a WD1 work visa.
[61] Mr Manjit Singh has held a work visa enabling him to work for Aujla since
December 2010. His present visa expires in 2014. His absence from New Zealand
might very well coincide with the nature of seasonable employment in this country of horticultural workers.
[62] Mr Matharu has worked for Aujla since October 2010. He left New Zealand on 6 October 2012 and was advised on 23 October 2012 not to attempt to return to New Zealand. Like Mr Manjit Singh, there is no evidence he holds a suspect WD1 visa. Like Mr Manjit Singh, he works in the horticulture industry. Consequently, until more is known from his New Zealand employer and other New Zealand employers in that industry, it is not possible to say whether his absence from New Zealand in October indicates he was not genuinely employed or indicates a downtime in the industry in which he is employed.
[63] It is possible that Messrs Manjit Singh and Matharu might have collated sufficient information to persuade an immigration officer that he or she should disregard the alert that the New Delhi officials have placed on the AMS and so permit them to return to New Zealand. The evidence of Mr Wells suggests that the New Delhi officials have taken a global view of the suspected 18 persons and in doing so they may have overlooked characteristics of a particular individual’s case that distinguish him or her from the others.
[64] I consider that the tone and content of the communications not to travel to New Zealand are more than advice. They are acts expressing directives that the officials in New Delhi had no power to do. In substance, they are similar to the statements of the Minister in Hastings v The New Zealand Lottery Grants Board HC Auckland M1339/91, 23 September 1991. In that decision, Thomas J refused to strike out a judicial review claim against the Minister of Internal Affairs on the ground of unlawful ministerial interference with the decision of the New Zealand Lottery Grants Board. Thomas J found that it was not the Minister’s views that were in issue but his actions in expressing them. Thomas J found that such acts were either within the Minister’s powers or not. Thomas J found that it was because the Minister arguably had no power to formulate policy or give policy directions that any attempt on his part to do so would be unlawful (at 9):
... if the Minister purports to issue a policy direction to the Committee when the statute does not authorise him to do so, he would be acting ultra vires.
He would be exercising or purporting to exercise a statutory power or statutory power of decision which the statute does not confer on him. It is not just the wrongful or excessive exercise of a specific statutory power which is reviewable in administrative law. The exercise or purported exercise of a statutory power which does not exist is equally reviewable. If it were otherwise the doctrine of ultra vires would be irreparably diminished.
[65] The defendant could not point me to a source of power for the act of sending the communications against travelling and accepted that there was none.
[66] The statement of claim refers to the communications not to enter New Zealand that were made in respect of Mr Manjit Singh and Mr Matharu (at paragraphs 6 and 8). It pleads, inter alia, that the communications are ultra vires. Given the defendant’s acknowledgement that there is no power to support the making of these communications, I consider that these plaintiffs have established there is a contest in which they have a respectable chance of success.
[67] But for the defendant’s acknowledgement, I would have considered granting interim relief restraining the officials from making further such communications, as it is in the public interest for officials to act within the confines of their powers. However, the unlawful communications have already issued. There is no purpose in a restraint order. As the defendant is a Government department, I expect that once a question of possible ultra vires conduct is brought to its attention, it would refrain from continuing in such conduct until the issue is substantively determined. Unless this conduct persists, I see no reason to make an order restraining future action.
[68] Furthermore, the communications cannot have any effect on these plaintiffs attempting to travel to New Zealand if they so wish. They remain free to make this attempt. Ms Amberger says that before a s 97 decision is made, the immigration officer may talk with the prospective passenger. So if Messrs Manjit Singh and Matharu can prepare a persuasive case that distinguishes them from the other persons under investigation, they still may be able to achieve entry into New Zealand.
[69] The remaining plaintiffs (and two applicants not actually included as plaintiffs) are all persons who have attempted to travel to New Zealand and have been denied the ability to do so pursuant to s 97 of the Act. Three of them received
the unlawful directions not to attempt to travel to New Zealand, but it seems they attempted to do so nonetheless.
[70] The defendant contends that in bringing these proceedings, the first, second and fourth plaintiffs are out of time. Section 247 of the Act requires proceedings to be commenced within a certain timeframe. However, in the present case, there is nothing to stop these plaintiffs from attempting to travel to New Zealand again, in which case the limitation time would commence again. This is something the Court might consider as a special circumstance under s 247 if the claims have substantive merit. Thus, being time-barred is not fatal to their prospect of success in the substantive proceeding, if the claims they make otherwise have merit.
[71] The defendant argues that the ouster clause in s 97(4) precludes the Court from judicially reviewing the current s 97 decisions. On first reading, that appears so. However, it is well established that Courts with a supervisory jurisdiction will not lightly accept the ouster of their jurisdiction. The general approach is that a Court will be slow to conclude that its jurisdiction has been excluded: see Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA). Where there has been fraud, corruption, bad faith or misconduct in the exercise of a statutory power, the Court is likely to view what has occurred as being ultra vires conduct that falls outside the scope of the statutory power to which the ouster clause applies. This is because as was recognised in Bulk Gas at 135, what has occurred is not a true exercise of the statutory power but is instead an act that lacks jurisdiction in the sense recognised in Anisminic Ltd v Foreign Compensation Commission [1969] 2
AC 147. The same reasoning may be applied to decisions that are flawed for other administrative law reasons. For example, a decision to refuse to allow someone to board an aircraft bound for New Zealand that is shown to be capricious and arbitrary will meet the requirements of administrative law unreasonableness/irrationality. A decision that is irrational in this way cannot in law be understood to be a decision that is made under s 97 and, therefore, it will be capable of review by this Court. This is not to say that the impugned decisions in this case were made in circumstances involving corruption, bad faith, fraud, misconduct, or irrationality. But it goes to show that the ouster clause is not as final as the defendant contends.
[72] On the evidence before me, I am not satisfied that it is appropriate to grant interim relief that requires the plaintiffs to be permitted to travel to New Zealand.
[73] The evidence that the plaintiffs presently rely on is insufficient to establish that the exercise of the power in s 97 is so flawed in administrative law terms that it is not a true exercise of that power and, therefore, that they have a reasonable chance of persuading the Court to disregard the ouster clause and to review what has occurred.
[74] Another factor that causes me to conclude that interim relief should not be granted is that a fixture for the substantive hearing is available on 30 January 2013. By then, more informative evidence should be before the Court and it will be in a better position to reach a view on whether there has been a proper exercise of the s 97 power or something that falls outside that description.
[75] I accept that as matters stand, there is little by way of evidence to show that there is a basis for the concerns of the officials in New Delhi when it comes to these plaintiffs and the two applicants. On the other hand, the paucity of evidence may be due to the hurried circumstances in which the defendant’s case has been prepared. However, there may come a time where the paucity of evidence to support suspicions, together with undue delay in completing the investigation leads the Court to infer that there has been an abuse of power that is open to judicial review, for the reasons I have already outlined.
[76] I am concerned that the evidence the plaintiffs/applicants have provided sets out some reasonable explanation for their being in India on leave from their New Zealand employment, and yet this has not been accepted by the department. I am also concerned that there was no evidence from the defendant to show that inquiries had been made in New Zealand of the plaintiffs/applicants’ employers in order to ascertain whether the plaintiffs/applicants’ absence from New Zealand coincides with a temporary down period in their employment. As persons who have obtained work visas and, therefore, whose applications once passed the scrutiny of the department’s officials, the plaintiffs are entitled to expect the officials to establish that their suspicions have a genuine basis. I realise that under s 97(5) there is no
requirement for the official, who makes a s 97 decision refusing permission to board an aircraft, to give reasons for the decision. Nonetheless, an absence of reasons, against a background of evidence from the plaintiffs/applicants showing reasonable cause for them to be temporarily absent from their employment in New Zealand can help to found an inference that the refusal to allow them to return to New Zealand is irrational or otherwise flawed for administrative law reasons and does not constitute a true exercise of the power in s 97.
[77] Moreover, whilst I accept that s 97(5) permits no reasons to be given for making a s 97 decision, there is no similar provision regarding the decision to place an alert on the AMS regarding a passenger. The consequences of such an alert are serious as they can prevent a holder of a temporary visa entitling entry into New Zealand from being able to travel to New Zealand in reliance on that visa. Temporary visas can include work visas, which can run for two years. There are many forms of employment that may permit someone to travel on leave to their home country. As matters stand, such persons who do so for genuine reasons are theoretically at risk of having an alert placed against their AMS profile and so finding themselves prevented from returning part way through the working span of their visa. To say that such persons have no judicial redress leaves them vulnerable to abuse of statutory power. They may have left possessions and money in this country; they may have entered into legal commitments, such as leases for their accommodation, on the strength of being able to work here for the duration of the visa, and then find themselves prevented from returning as a result of arbitrary official conduct. This all goes to establish a basis for recognising an ability to judicially review the placing of security alerts on the AMS system.
[78] The plaintiffs indicated during the course of the hearing that their claims may be expanded to cover this issue. But as matters stand, they have not addressed the issue with sufficient particularity to permit the Court to take it into account.
[79] There is nothing preventing the plaintiffs from making further attempts to leave India for New Zealand. The s 97 decisions that have been made are not final decisions that stand in the way of further attempts to board. The longer the officials take in New Delhi to complete their investigations regarding these plaintiffs, the
stronger the possibility may be that an immigration officer in New Zealand will look beyond the security alert and determine that there is not enough to warrant refusing permission to travel to New Zealand on the work visa despite the AMS alert. Each plaintiff/applicant is entitled to expect that on presenting him or herself at an airport in India that the officials of the department will act in the manner set out by Ms Amberger in her affidavit. This means each plaintiff/applicant should have the opportunity to talk with a New Zealand based immigration officer to explain why a return to New Zealand is necessary and why the alert should be disregarded. Enquiries available to the department in New Zealand should ensure that an official finding him or herself asked to disregard the security alert is properly informed of the material facts.
[80] For the reasons outlined herein, I am satisfied that, at present, there is no basis for granting the interim relief as sought.
Duffy J
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