M v Minister of Immigration
[2012] NZCA 489
•25 October 2012
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NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA587/2011 [2012] NZCA 489
BETWEEN M (CA587/2011) Appellant
ANDMINISTER OF IMMIGRATION Respondent
Hearing: 15 October 2012
Court: Randerson, French and Venning JJ Counsel: Appellant in person
M G Coleman and I T McColl for Respondent
Judgment: 25 October 2012 at 9.30 a.m.
JUDGMENT OF THE COURT
A The appeal is dismissed.
B There is no order for costs.
REASONS OF THE COURT
(Given by Randerson J)
Table of Contents
Para No Introduction [1] Is there a right to family life in New Zealand such as to entitle M to
visits by his wife and child?
M’s submission [10] The High Court’s view [14]
M (CA587/2011) V MINISTER OF IMMIGRATION COA CA587/2011 [25 October 2012]
Our conclusion on the right to family life [20] Was there a breach of s 9 of the Bill of Rights Act? The law [22] Our conclusion on s 9 [37] Was there a breach of the right to freedom from discrimination
under s 19 of the Bill of Rights Act?
[42] M’s claim [42] The High Court decision [43] M’s argument [46] Our conclusion on s 19 [47] Was it appropriate for the High Court to strike out M’s proceeding? [51] The time bars [52] Discussion on the time bar issue [58] Abuse of process [61] Result [62]
Introduction
[1] The appellant M is a Romanian national who arrived in New Zealand on
12 November 2008 claiming refugee status. His application as such failed, as did his appeal to the Refugee Status Appeals Authority.1 M applied unsuccessfully for judicial review of the Authority’s decision and his further appeal to this Court was also dismissed.2
[2] M’s wife and child are currently residing in Australia where they too are embroiled in proceedings seeking residency in that country. M has been attempting to gain permission to visit his family in Australia without success. We were told that the Immigration Service in New Zealand has been willing to grant permission to him for that purpose, but the Australian authorities have not agreed to allow him to enter that country.
[3] M has also attempted unsuccessfully to have his wife and child visit him in New Zealand. On 1 February 2009, before the Refugee Status Branch had reached a conclusion on his refugee application, M’s wife and child were denied permission by the Immigration Service to board an aircraft in Hong Kong bound for New Zealand. Later, M’s wife sought a tourist visa to visit New Zealand but we were told she did
not produce a passport and the application lapsed. We were informed there is no
1 Refugee Appeal No 76339 [2010] NZAR 386 (RSAA).
2 M v Refugee Status Appeals Authority [2012] NZCA 83.
Immigration Service policy permitting the grant of temporary visas or other right of entry into New Zealand for the family of applicants for refugee status. It is not in dispute that immigration officials have told M that the family reunification policy does not apply to refugee claimants and that his family would not be permitted to come to New Zealand.
[4] On 16 March 2011, M sought judicial review in the High Court in relation to the denial of permission for his wife and child to enter New Zealand. That proceeding was struck out by Peters J on 10 May 2011 on grounds we later discuss.3
M then filed a further proceeding in the High Court on 17 May 2011 seeking declaratory and other relief in relation to the same subject matter. The respondent, the Minister of Immigration, was named as the defendant in each of these proceedings.
[5] M’s pleading of 17 May 2011 focused on the refusal by the Immigration Service to permit his wife and family to board the aircraft in Hong Kong and on advice he had received that permission would not be granted for his family to visit him in New Zealand. His pleading is not particularly clear but, in essence, he maintains:
(a) He has a right at common law to family life and is entitled to have his family visit him;
(b)The refusal to grant permission for such visits amounts to a breach of his right to family life and also constitutes cruel, degrading or disproportionately severe treatment contrary to s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).
[6] Although not pleaded, the High Court also considered an alternative claim M advanced in argument. This was that in refusing permission for his family to visit him, the Immigration Service breached s 19 of the Bill of Rights Act by unlawfully
discriminating against him on the grounds of ethnic or national origin.
3 M v Minister of Immigration HC Auckland CIV-2011-404-1517, 10 May 2011.
[7] The Minister’s application to strike out M’s second High Court proceeding was granted by Courtney J in a judgment delivered on 5 September 2011.4 The Judge found:
(a) On the current state of the law in New Zealand, there is no right at common law to family life for the purpose contended for by M;
(b)The refusal by the Immigration Service to permit M’s wife and child to board the aircraft in Hong Kong and/or to enter New Zealand was not capable of reaching the high threshold for cruel, degrading or disproportionately severe treatment in breach of s 9 of the Bill of Rights Act;
(c) The refusal to permit M’s wife and child to enter New Zealand did not amount to unlawful discrimination in terms of s 19 of the Bill of Rights Act;
(d)Except to the extent that M sought damages for breach of rights at common law or under the Bill of Rights Act, the proceeding was out of time and was an abuse of process; and
(e) Since none of M’s claims were tenable, the proceeding as a whole
should be struck out.
[8] M now appeals against the decision of Courtney J. The issues for determination are whether the Judge was in error in concluding that:
(a) There was no right to family life such as to entitle M to visits by his wife and child;
(b)The denial of permission for M’s wife and child to board the aircraft in Hong Kong and/or permission for them to visit him in New Zealand could not amount to a breach of s 9 of the Bill of Rights Act;
(c) The refusal of permission for M’s wife and child to visit him in
New Zealand could not amount to a breach of the right to freedom from discrimination under s 19 of the Bill of Rights Act; and
4 M v Minister of Immigration[2011] NZAR 710 (HC).
(d) It was appropriate to strike out M’s proceeding.
[9] M is currently awaiting a determination by the Immigration and Protection Tribunal of his appeal against a decision of the Refugee Status Branch declining his application for recognition as a protected person under ss 130 and 131 of the Immigration Act 2009 (the 2009 Act). His current temporary visa is due to expire on
16 November 2012.
Is there a right to family life in New Zealand such as to entitle M to visits by his wife and child?
M’s submission
[10] It is common ground that the Bill of Rights Act does not provide for any specific right to family life. However, M argued in the High Court and before us that there was a common law right to family life recognised in relevant international human rights instruments. M pointed to s 28 of the Bill of Rights Act in terms of which an existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in the Bill of Rights Act. Ms Coleman accepted on behalf of the Minister that, if there were any existing common law right to family life, it would not be precluded by s 28. However, she submitted that New Zealand domestic law did not recognise any such right.
[11] M relied on article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) in terms of which “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence…”. A similar provision exists under article 12 of the Universal Declaration of Human Rights.5
[12] M also referred to the Convention on the Rights of the Child. In terms of article 16(1) of that Convention, a child shall not be subjected to arbitrary or
unlawful interference with his or her privacy, family, or correspondence. He
5 Although not mentioned in argument, article 10 of the International Covenant on Economic, Social and Cultural Rights provides that the widest possible protection and assistance should be accorded to the family.
submitted that the common law of New Zealand should recognise his right to family life or, at least, that such a right should not be arbitrarily interfered with by state actors. He emphasised that he was not contending for an open-ended right for his family to stay in New Zealand. Rather, all he was seeking was the opportunity to have “direct and personal contact” with his family. As we understand it, M was seeking to have his family visit him in New Zealand from time to time.
[13] M contended too, that the High Court Judge ought to have analysed whether family life was a right or a value. In that respect, he relied upon the method of analysis espoused by Thomas J in his minority judgment in Brooker v Police.6
The High Court’s view
[14] In concluding that, on the current state of the law in New Zealand, there was no common law right to family life, the Judge relied on two decisions of this Court: Chief Executive of the Department of Labour v Taito7 and RL v Chief Executive of
the Ministry of Social Development.8
[15] In Taito the respondents had entered New Zealand from American Samoa on visitor’s permits. When those permits expired, they were obliged to leave New Zealand. They contended that they ought to be permitted to remain in New Zealand to care for their elderly and severely disabled mother who was a New Zealand citizen. The issue before the Removal Review Authority was whether there were exceptional humanitarian circumstances that would make it unjust or unduly harsh for the appellants to be required to leave New Zealand in terms of s 47 of the Immigration Act 1987. The Authority acknowledged there was a need to give
very active consideration to family relationships9 but concluded that the appellants
had not met the threshold test.
[16] On appeal to the High Court, Baragwanath J allowed the appeal on the ground that the Authority had failed to give adequate consideration to the mother’s
6 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [209]–[230].
7 Chief Executive of the Department of Labour v Taito [2006] NZAR 420 (CA).
8 RL v Chief Executive of the Ministry of Social Development [2009] NZCA 596.
9 Citing Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).
situation and, in particular, her rights under s 9 of the Bill of Rights Act. Baragwanath J also found that the immigration authorities and the Court were required to take into account the international instruments relied upon by M in the present case and that these rights gave rise to a “minimum degree of protection required by the law in a democratic society”. Effectively, that meant that unless the immigration authorities could be satisfied that family members who were New Zealand residents could look after the mother adequately, then the principal appellant, Mr Taito, could not be removed from New Zealand.
[17] This Court found on further appeal that the right to family life in the form identified by the High Court had never been recognised in New Zealand or in overseas jurisdictions. In a careful analysis, the Court distinguished two decisions in the United Kingdom,10 finding that neither supported the right recognised in the High Court. The Court concluded:11
If the courts were to recognise the postulated right, it would have profound implications for immigration law generally. If a vulnerable New Zealand citizen is entitled to family care if available, then it is hard to see why a non- resident family member willing to provide the necessary care should not be able to demand entry. There surely could not be one rule for those unlawfully here attempting to avoid removal and another for those seeking to come. It is after all the vulnerable New Zealand citizen’s rights which necessitate the caregiving relative’s presence in New Zealand. It would be quite wrong for the illegal overstayer to be able to steal a march on the willing foreign caregiver who is going through the appropriate immigration procedure before entering New Zealand in order to provide the necessary family care. The suggested right would therefore potentially drive a coach and four through Government immigration policy, and in particular through the family reunification policy, the criteria of which Baragwanath J accepted Mr Taito and his family did not meet …
[18] The Taito Court also found that although the return of the appellants to Samoa would cause distress, sadness and difficulties for them as well as for their mother, it did not “begin to attain the high threshold” to trigger the protection under s 9 of the Bill of Rights Act. Reliance was placed on the earlier decision of this
Court in Puli’uvea v Removal Review Authority12, which we discuss below.
10 R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 (CA); and Advic v United Kingdom (1995) 20 EHRR CD 125.
11 At [35].
12 Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA).
[19] In the present case, Courtney J also relied on the subsequent decision of this Court in RL in which, in the context of the Children, Young Persons & Their Families Act 1989, this Court affirmed the conclusion in Taito that New Zealand domestic law does not recognise a right to family life as a stand-alone right. Courtney J cited the following passage from this Court’s judgment:13
We now turn to consider the other two rights allegedly breached. First, the so-called right to family life. It is clear that New Zealand domestic law does not recognise “a right to family life” as a stand alone right: see Chief Executive of the Department of Labour v Taito [2006] NZAR 420 (CA). But the importance of family life is, of course, reflected not only in the Act but also in a host of other family law statutes. The Family Court is currently grappling with what is in the best interests of the L children. If the Family Court ultimately makes a substantive decision with which Mr and Mrs L are dissatisfied, they can appeal that decision to the High Court. A so-called right to family life is not a ground of judicial review of the three decisions …
Our conclusion on the right to family life
[20] We agree with the High Court that, in the light of the decisions of this Court, the domestic law of New Zealand does not recognise a right to family life in the sense contended for by M. No doubt family life is regarded by many as an important value in a general sense. The international human rights instruments support the value of the family and the protection of it from arbitrary interference. We accept too that the value of family life may be recognised in particular statutory settings. In the immigration context it may be recognised, for example, in the family reunification policy as a desirable goal. And it may be regarded as a relevant
consideration in some immigration applications.14
[21] However, M has not pointed to any provision in the immigration legislation or policy to support his contention that, as an applicant for refugee status or for recognition as a protected person under the Immigration Act 2009, he has a right to visits by his family while any such applications are pending. As Ms Coleman accepted, the position may be different if he achieves such status and becomes a permanent resident in this country, but that is not the case at present. He has only a
temporary visitor’s visa and no entitlement to permanent residence.
13 At [43].
14 See generally the discussion in JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 495–499.
Was there a breach of s 9 of the Bill of Rights Act?
The law
[22] Section 9 of the Bill of Rights Act provides that:
Everyone has the right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment.
[23] In dealing with this issue, the Judge considered the decision of this Court in Puli’uvea15 and the more recent decision of the Supreme Court in Taunoa v Attorney- General.16 We mention Puli’uvea first as it occurred in the immigration context. Mr and Mrs Puli’uvea and their son were Tongan citizens who came to New Zealand on visitor’s permits. Orders for their removal from New Zealand were served when
their permits expired. While they were in New Zealand, Mr and Mrs Puli’uvea had three further children who became New Zealand citizens by virtue of their birth here. Mr Puli’uvea was removed from New Zealand, but Mrs Puli’uvea challenged the removal order made against her. During that process, another child was born to her. The issue was whether, in terms of s 63B(1) of the Immigration Act 1987, it would be unjust or unduly harsh to remove Mrs Puli’uvea from New Zealand because of exceptional circumstances of a humanitarian nature and whether, in the circumstances, it would not be contrary to the public interest to allow her to remain in New Zealand.
[24] The Removal Review Authority found against Mrs Puli’uvea. Her subsequent application to the High Court for interim relief and judicial review proceedings was also declined. Amongst other grounds discussed by this Court on appeal was a submission that the removal of Mr and Mrs Puli’uvea from New Zealand would impact on the family (including the children in particular) in a way that breached their rights under s 9 of the Bill of Rights Act.
[25] In dismissing the appeal, this Court said:17
15 Puli’uvea, above n 12.
16 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
17 Puli’uvea, above n 12, at 18.
We do not doubt that the carrying out of the order would cause considerable distress, sadness and difficulties for the family. But the action of removing Mrs Puli’uvea cannot be said to begin to attain to the high threshold required by the prohibition in the Bill of Rights Act on disproportionately severe treatment. The cases here and elsewhere expand on such constitutional guarantees by using expressions such as “treatment that is so excessive as to outrage standards of decency”, e.g. R v P (1993) 10 CRNZ 250, 255, referring to decisions of the Supreme Court of Canada and the United States Supreme Court.
[26] The meaning and effect of s 9 was extensively discussed by the Supreme Court in Taunoa in the context of prisoners who had been subjected to treatment that had been found to breach s 9. The high threshold required to establish a breach of s 9 was confirmed although some of the members of the Court expressed themselves in different language.18 Blanchard J held:19
Section 9 is concerned with conduct on the part of the State and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances ...
All forms of conduct proscribed by s 9 are of great seriousness. Without attempting exhaustive definitions, they can be understood in the New Zealand context in the following way. The worst is torture, which involves the deliberate infliction of severe physical or mental suffering for a particular purpose, such as obtaining information. Treatment or punishment that lacks such an ulterior purpose can be characterised as cruel if the suffering that results is severe or is deliberately inflicted. In the s 9 context, treatment or punishment is degrading if it gravely humiliates and debases the person subjected to it, whether or not that is its purpose.
[27] Dealing with the expression “disproportionately severe” in s 9, Blanchard J observed that the expression had no counterpart in the international human rights instruments. He concluded that those words must have been included to fulfil much the same role as “inhuman” treatment or punishment plays in article 7 of the ICCPR and to perform the same function as the term “gross disproportionality” in s 12 of the
Canadian Charter. Blanchard J concluded20 that “disproportionately severe” was
intended to capture treatment or punishment which is grossly disproportionate to the circumstances. In the New Zealand context, conduct of that character could be fairly called “inhuman” in the sense given to that term in the jurisprudence under article 7
of the ICCPR.
18 As discussed earlier by this Court in Vaihu v Attorney-General (2007) 8 HRNZ 403 at [35] and
[36].
19 At [170] and [171] (footnotes omitted).
20 At [176].
[28] Tipping J preferred to define disproportionately severe conduct as conduct which is “so severe as to shock the national conscience”. This emphasised that the standard was “well beyond punishment or treatment which was simply excessive, even if manifestly so”.21 For Tipping J, a s 9 breach would:22
… usually involve intention to harm, or at least consciously reckless indifference to the causing of harm, on the part of the State actors. It will also usually involve significant physical or mental suffering. If these ingredients are missing, the case for a s 9 breach will not usually be established but a breach cannot, as the European Court has said, be ruled out.
[29] Tipping J considered that the expressions cruel, degrading or disproportionately severe were “broadly on the same general level as seriousness, albeit they have rather different emphases”.23 He agreed with this Court’s finding in Puli’uvea that a high threshold applied to s 9 but had difficulty with this Court’s adoption from the Canadian jurisprudence of the concept of conduct being so excessive as to outrage standards of decency.24
[30] McGrath J agreed that s 9 required a high threshold to be met25 and Henry J
agreed with Tipping J’s analysis on the standard required.26
[31] The Chief Justice observed that the underlying principle in relation to s 9 and the equivalent international human rights instruments was “the right to be treated as human”.27 Describing the differences between torture on the one hand and cruel, degrading or disproportionately severe treatment or punishment on the other, she said:28
The structure of s 9 draws a clear distinction between the prohibition on subjecting anyone “to torture”, on the one hand, “or to cruel, degrading, or disproportionately severe treatment or punishment”, on the other. The same structure is seen in art 7 (with the inclusion of “inhuman” instead of “disproportionately severe”). Torture entails the deliberate infliction of severe suffering, often for a purpose such as obtaining information. The scope of the prohibition on “cruel, degrading or disproportionately severe treatment or punishment” and its equivalents is not as restricted. The Human
21 At [289].
22 At [295].
23 At [280].
24 At [288].
25 At [339].
26 At [383].
27 At [74]
28 At [81] (footnotes omitted).
Rights Committee has pointed out that the Covenant does not contain any definition of these concepts:
... nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.
[32] The Chief Justice considered that the expressions cruel, degrading and disproportionately severe may be better seen as a “compendious expression of a norm”. Such a norm might be seen as proscribing any treatment that is incompatible with humanity.29 However, in considering what might amount to cruel, degrading or disproportionately severe treatment, the Chief Justice favoured measurement by contemporary standards of decency and considered that the standard adopted by the
Supreme Court of Canada in relation to the Canadian Charter was appropriate, ie “whether the punishment prescribed is so excessive as to outrage standards of decency”.30
[33] The Chief Justice did not consider that a breach of s 9 required proof of demonstrated harm to the person subjected to the relevant treatment. She saw the terms cruel, degrading or disproportionately severe as attaching to the treatment. Whether it merited that description was to be objectively assessed.31
[34] In the present case, M pleaded:
14.1 The defendant/defendant’s delegates refused plaintiff’s wife and
child to travel to and enter New Zealand.
14.2There were/are no reasonable alternatives for the plaintiff to meet and live as a family with his wife and child anywhere else apart New Zealand. The plaintiff and his family do not have a right to enter any other country other than Romania and European Union. Romania is the country they fear persecution in terms of Refugee Convention
1951 and in European Union it is very high risk the plaintiff or his wife/child to be return to Romania.
14.3 Australia, which was the only reasonable alternative for the plaintiff
to meet his family, refused plaintiff’s entry.
[35] His pleading continued:
29 At [82].
30 Adopting at [92] R v Smith [1987] 1 SCR 1045; and Miller v R [1977] 2 SCR 680.
31 At [94].
30.The plaintiff submits that is reasonable for the Court to conclude objectively that plaintiff suffering was severe as long as he was separated for over 2 years from his wife and child and he could not have a family life. It is also submitted that in such situation even the strongest man can be affected.
31.The fact that plaintiff was deprived by his right to family and family life it is submitted that in a maturated [sic] society like New Zealand this treatment must be seen as inhuman. It is a treatment that falls well below any acceptable standard.
32.Plaintiff psychological harm was cause [sic] and inflicted by the defendant by not allowing the plaintiff to have a family life. This is as result of defendant not considering the plaintiff and his family circumstances that they can not live a family life anywhere else apart from New Zealand.
…
38.For plaintiff, the depravation [sic] of his fundamental rights to family and family life for a prolonged period caused severe and irreparable harm. This infliction of serious harm by the defendant is of a great seriousness and amount to cruel or inhuman treatment prohibited by s 9 Bill of Rights Act 1990 and related provisions of international law.
[36] After reviewing the authorities, Courtney J concluded:32
Accepting M’s characterisation of his situation at face value, it certainly appears that he and his wife face a difficult, perhaps heart-wrenching situation. But they clearly made a decision to proceed to different countries in their respective efforts to obtain refugee status. The defendant’s conduct has not been the cause of separation; it does no more than maintain the status quo. Looked at against the threshold for s 9 described in Taunoa and Puli’uvea the defendant’s decisions do not even approach “disproportionately severe” treatment.
Our conclusion on s 9
[37] We do not accept M’s submission on this point. Treating the facts pleaded as being true, we agree with Courtney J that those facts could not reach the high standard required to establish a breach of s 9 of the Bill of Rights Act. M did not rely on “torture” but submitted the conduct of the Immigration Service was cruel, degrading or disproportionately severe. Despite differences of expression by some of the members of the Supreme Court in Taunoa, it is clear that a high threshold is
required before it can be said there has been a breach of s 9. That is so whether the
32 At [23].
conduct must be characterised as “so excessive as to outrage standards of decency”, “grossly disproportionate to the circumstances”, or “so severe as to shock the national conscience”.
[38] Focussing first on the conduct complained of as well as its nature and purpose, the Immigration Service has done no more than refuse entry of M’s family to New Zealand while he seeks to establish refugee status or categorisation as a protected person. No doubt the Immigration Service has acted deliberately but not for the purpose of punishing or ill-treating M. Rather, the Service has acted for the purpose of exercising the right possessed by any nation to control who may enter its borders. Given that M has no right to permanent residence in this country and is only entitled to remain here until his applications are completed and he has exhausted any appeal processes, the refusal to allow his family to visit him could not amount to a breach of the right protected by s 9.
[39] Secondly, though the existence of harm arising from the treatment may not be an essential determinant in all cases, the kind of harm pleaded may be relevant in considering whether, objectively approached, a breach has occurred. As the Judge recognised, the situation M faces is no doubt causing him a considerable degree of personal distress. It must also be accepted for present purposes that M has suffered some form of unspecified psychological harm as pleaded, although the absence of any particulars makes this difficult to assess at this stage. However, the focus remains on the treatment or conduct of the State actor. The existence of a serious psychological condition could not, by itself and without reference to the nature and purpose of the impugned treatment, result in a finding of a breach of s 9.
[40] Thirdly, it must be demonstrated that there is a link between the impugned conduct or treatment and the claimant’s circumstances. In that respect, the Judge observed that M and his wife each decided to proceed to different countries to seek refugee status. That is not accepted by M but it could not be disputed that Mr and Mrs M’s decision to leave Romania with no right of permanent residence in New Zealand was not the responsibility of the Immigration Service. Mr and Mrs M’s own decision must, at the least, have been a significant factor in the predicament in which they now find themselves. Relative responsibility is difficult
to assess in any final way at strike-out stage, but the uncontroverted facts do not assist M on this cause of action. One can have obvious sympathy for M and his family, but the impugned conduct of the Immigration Service cannot be said to reach the high standard required to amount to a breach of s 9.
[41] Finally, we agree with Ms Coleman that if the claimants in Puli’uvea and Taito could not remain in New Zealand on the basis of the strong family grounds relied upon in those cases, then M could not expect to succeed in his bid to have his family visit him here. Crucially, both cases involved the rights of persons who were New Zealand citizens and therefore irremovable from this country. Mr and Mrs Puli’uvea were not permitted to stay here even though their children were born here. The Taito family could not stay despite the vulnerable state of their mother who was a New Zealand citizen and who had no realistic prospect of relocating to American Samoa to be with her son and family. In contrast, M has no right of permanent residence here at present.
Was there a breach of the right to freedom from discrimination under s 19 of the Bill of Rights Act?
M’s claim
[42] In the High Court, M sought to amend his statement of claim to allege a breach of s 19 of the Bill of Rights Act. The proposed claim was directed towards the refusal to allow his family members entry to New Zealand under the family reunification policy. He alleged that in correspondence dated 2 February 2009 and at a meeting on 14 March 2011, he was advised by the Immigration Service that no policy existed to allow family members of asylum seekers to come to New Zealand. He submitted there was, however, a discretion conferred under s 79 of the 2009 Act to grant temporary visas to persons outside New Zealand. He maintained that the refusal to exercise that discretion in favour of his wife and child amounted to discrimination under s 21(1)(g) of the Human Rights Act 1993, namely on the grounds of “ethnic or national origins”.
The High Court decision
[43] As to what constitutes discrimination, the High Court relied on the observations of Tipping J in this Court’s decision in Quilter v Attorney-General33 and Asher J’s comments in Ministry of Health v Atkinson.34 These two cases are both authority for the undisputed proposition that the essence of discrimination lies in difference of treatment to persons in comparable circumstances. This proposition
has since been endorsed by this Court on appeal in Ministry of Health v Atkinson.35
[44] Courtney J held that the correct approach was to look at the way other immigrants with the same status as M had been treated. She found that the current immigration policy was that asylum seekers, regardless of their country of origin, could not take advantage of the family reunification scheme. She recorded a submission made on behalf of the Minister that the policy excluding asylum seekers from taking the benefit of the family reunification scheme was consistent with the scheme and purpose of the Immigration Act 2009. In particular, if the family members of asylum seekers were permitted entry under the reunification scheme before the status of the asylum seeker had been settled, there would inevitably be a significant risk of greater numbers of claimants, the possibility of a greater number of unmeritorious claimants and increased costs of removal proceedings. As well, that would give an unfair advantage over genuine refugees (and their families) who were prepared to wait their turn in the queue.
[45] The Judge found there was no basis to conclude that M would be treated differently if he were not Romanian. His nationality was not the barrier for family reunification. Rather, the barrier was his immigration status. The distinction was one permitted by law and there were justifiable policy reasons for that distinction.
M’s argument
[46] M argued on appeal that the Judge had chosen the wrong comparator. He submitted that the correct comparator group was New Zealand nationals. He
33 Quilter v Attorney-General (1997) 16 FRNZ 298 (CA) at 348.
34 Ministry of Health v Atkinson (2010) 9 HRNZ 47 (HC)at [78] and [80].
35 Ministry of Health v Atkinson [2012] NZCA 184 at [60]–[64].
accepted that asylum seekers shared the same characteristics irrespective of their nationality but he maintained that they shared important and relevant characteristics with New Zealand nationals. In particular, he submitted that asylum seekers were irremovable from New Zealand and had a right under New Zealand law to have a family life. He submitted that the difference in treatment was based on his nationality because he was not a New Zealand national.
Our conclusion on s 19
[47] We are unable to accept M’s submission on this point. We are satisfied the Judge adopted the correct approach which was to compare how the Immigration Service treated M’s case with other asylum seekers in his circumstances. There is nothing to suggest that M has been treated any differently in that respect from other asylum seekers or that he has been discriminated against on the grounds of his ethnic or national origins.
[48] We accept Ms Coleman’s submission that M’s reliance on the decision of the House of Lords in A v Secretary of State for the Home Department36 is misplaced. In that case, the Court was considering the case of nine appellants detained under an Order permitting the detention of non-nationals if the Home Secretary believed that their presence in the United Kingdom was a risk to national security as suspected terrorists. The House of Lords quashed the relevant Order on the ground of unlawful
discrimination since it applied only to non-nationals suspected of international terrorism but not to United Kingdom nationals considered to present the same threat.
[49] We agree with Ms Coleman’s submission that this case can be readily distinguished. Lord Bingham regarded it as “obvious that in an immigration context some differentiation must almost inevitably be made between nationals and non- nationals since the former have a right of abode and the latter do not”.37 Similarly,
Lord Hope said that if immigration control were the issue, the argument that the
36 A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.
37 At [56].
State was entitled to treat the two groups differently “would appear to be unanswerable”.38
[50] Here, the crucial difference between M and New Zealand nationals is that he has no right of residence other than under a temporary visa. In the immigration context, the Minister was entitled to treat M (as an asylum seeker) differently from New Zealand nationals with a right of permanent residence. In doing so, M was treated no differently from other asylum seekers and was not discriminated against on the grounds of his ethnic or national origins.
Was it appropriate for the High Court to strike out M’s proceeding?
[51] The Minister argued in the High Court that M’s claim should be struck out on the basis that it did not disclose any tenable cause of action. The Minister also submitted that a strike-out was appropriate because the proceeding was not brought within the relevant statutory time limits. Finally, the Minister submitted that M’s claim should be struck out as an abuse of process since it addressed the same or similar subject matter to his claim that had been struck out shortly before by Peters J.
The time bars
[52] Addressing the time limit issue, Ms Coleman submitted that the decision to deny permission to board the aircraft in Hong Kong was made under s 97(1) of the
2009 Act (which applied by virtue of s 419 of the 2009 Act and s 125AB of the
Immigration Act 1987).
[53] Section 97 of the 2009 Act confers a discretion on the Chief Executive of the Immigration Service to refuse permission for a person to board an aircraft for the purpose of travelling to New Zealand, subject to certain limitations in subs (2) and (3) that have no application in the present case. A decision to refuse permission to
board the aircraft may be made even though the person holds a visa to travel to
38 At [138].
New Zealand or has been granted entry permission or is a person to whom a visa waiver applies.39
[54] We were told that, in the present case, the Immigration Service denied permission for M’s wife and child to board the aircraft on the grounds that they were not travelling to New Zealand for bona fide tourist purposes.
[55] The Chief Executive is not obliged to give reasons for a decision made under s 97(1)40 and a person in relation to whom a decision is made under s 97(1) may not appeal the decision to any court, the Immigration and Protection Tribunal, the Minister, or otherwise.41 Moreover, “review proceedings” may only be brought by a person to whom s 97(3)(b) applies.42 Neither M nor his family fall within that subsection. “Review proceedings” are defined as meaning:43
... proceedings—
(a) by way of an application for review under the Judicature
Amendment Act 1972; or
(b) by way of an application for certiorari, mandamus, or prohibition; or
(c) by way of an application for a declaratory judgment
[56] A further difficulty encountered by M arises from s 247 of the 2009 Act. That section provides that any review proceedings in respect of a statutory power of decision under the Act must be commenced no later than 28 days after the date on which the person concerned is notified of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed. No extension of time was granted and the Minister relied on this section to bar any attempt to review the decision to refuse permission for M’s wife and child to board the aircraft or the refusal to facilitate the issue of a temporary visa.
[57] The Judge found that M had no right of appeal against the refusal of
permission for M’s wife and child to board the flight to New Zealand by virtue of
39 Immigration Act 2009, s 97(3)(a).
40 Immigration Act, s 97(5).
41 Immigration Act, s 97(4)(a).
42 Immigration Act, s 97(4)(b).
43 Immigration Act, s 4.
s 97(4) of the 2009 Act and that any right of the review of that decision had long since expired by virtue of s 247(1) of the 2009 Act. She also found that s 247(1) barred any application by M to review the refusal to allow M’s wife and child to enter New Zealand under the family reunification scheme since this amounted to a challenge to the Minister’s exercise of discretion under s 79 of the 2009 Act.
Discussion on the time bar issue
[58] M’s statement of claim sought an award of damages or compensation for breach of his rights and, more generally, sought “effective judicial remedies for the alleged violation of his rights” protected by s 9 of the Bill of Rights Act and international human rights instruments. He also signalled that he would seek declaratory relief under the Declaratory Judgments Act 1908.
[59] M’s ground of appeal against this aspect of the High Court’s decision was essentially that he was seeking only declaratory relief and was not challenging any statutory power of decision under the 2009 Act. We are unable to accept those grounds. First, M’s pleading plainly challenges the decisions made by or on behalf of the Minister under the 2009 Act or its predecessor, both in relation to the boarding of the aircraft and the subsequent refusal to permit M’s wife and child to enter New Zealand. The alleged breaches of his rights cannot exist in vacuo but only in the context of the Minister’s decisions made under the legislation. Even if it were possible to somehow seek declaratory relief otherwise in the context of the Minister’s decisions, any such relief clearly falls within the definition of review proceedings for the purposes of s 247(1) of the 2009 Act. As such, M’s claims were all out of time.
[60] M emphasised that he was not presently seeking permission for his wife and family to enter New Zealand under the family reunification policy but was merely seeking a temporary visa to enable them to visit. However, we are not persuaded that this would make any difference since we are satisfied that none of his causes of action could succeed in any event.
Abuse of process
[61] It is not strictly necessary for us to deal with the abuse of process ground. We simply record the Judge’s finding that she was satisfied that all of the claims made by M (except the claims for damages) repeated claims made in his earlier statement of claim which was struck out by Peters J. Those claims were struck out first because the decisions were not capable of review and, secondly, because the application was out of time for any such challenge. The finding that the claim for damages was new did not avail M since his causes of action were found to be untenable in any event.
Result
[62] None of the grounds of appeal advanced by M are made out.
[63] The appeal is dismissed but, in the circumstances, there will be no order for costs.
Solicitors:
Crown Law Office, Wellington for Respondent
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