Liu v Minister of Immigration

[2015] NZHC 2048

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2002 [2015] NZHC 2048

BETWEEN

YALAN LIU, YASHI LIU AND YAJIAO

LIU Plaintiffs

AND

MINISTER OF IMMIGRATION Defendant

Hearing:	27 August 2015
Counsel:	O Woodroffe and G Ussher for Plaintiffs C Paterson, O Klaassen and DN Soper for Defendant
Judgment:	27 August 2015

ORAL JUDGMENT OF FOGARTY J

Solicitors:           Woodroffe Law Partnership, Auckland

Meredith Connell, Auckland

Crown Law, Wellington

YALAN LIU & ORS v MINISTER OF IMMIGRATION [2015] NZHC 2048 [27 August 2015]

[1]      This is an application for judicial review.   It was commenced today on an urgent basis.  The three plaintiffs are sisters who are Chinese citizens and currently in Shanghai, seeking to catch a plane which leaves at 6.00 pm New Zealand time today, to fly to New Zealand to attend their father’s funeral and to support their mother’s (the widow’s) grieving.

[2]     The appropriate officers of the Ministry of Business, Innovation and Employment have declined the grant of temporary visas to come to New Zealand for the funeral. This process has been internally reviewed.

[3]      I have considered the papers urgently and focused on the review particularly. It would appear that one of the facts being taken into account by the Crown is that the  deceased  father  and  his  wife  immigrated  illegally  to  New  Zealand  by understating the number of children that they had.   There appeared to me to be a good argument that the fact that the parents had immigrated illegally does not fit into the policy objective of protecting New Zealand from international crime, terrorism and illegal entry.

[4]      It appeared to me that the reasoning was at least partly based on the conduct of the parents and not relying solely on the risk that these three sisters were using the opportunity of their father’s death to immigrate to New Zealand, attempting to be overstayers or would, at the time, find the temptation irresistible not to go home.  I therefore was minded to consider granting this extraordinary relief on the grounds of

Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1  irrationality.

I wanted to hear argument on it and I am grateful for the Crown providing three counsel at very very short notice.

[5]      The submission of the Crown is that this Court has no jurisdiction, relying on s 186 of the Immigration Act, which provides:

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

1 KB 223 (CA)

186Limited right of review in respect of temporary entry class visa decisions

(1)       No appeal lies against a decision of the Minister or an immigration officer on any matter in relation to a temporary entry class visa, whether to any court, the Tribunal, the Minister, or otherwise.

(2)       Subsection (1) applies except to the extent that section 185 provides a right of reconsideration for an onshore holder of a temporary visa in the circumstances set out in that section.

(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.

[6]      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 liberally, but can be read simply, and that it directly applies.

[7]      These applicants are persons from outside New Zealand.   They have been refused the grant of temporary class entry visas and therefore the opening words of subs (3)(a) applies so that the applicants do not fall into the class of persons who can bring review proceedings to a temporary class visa because they are persons making the application outside New Zealand.

[8]      For these reasons, this proceeding fails.

[9]      There is no application for costs.   In the circumstances, that is entirely appropriate.