Nair v Chief Executive of the Department of Labour
[2013] NZHC 358
•28 February 2013
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV-2012-441-364 [2013] NZHC 358
UNDER the Judicature Amendment Act 1972 and the Immigration Act 2009
IN THE MATTER OF an application for review
BETWEEN VINA NAIR Applicant
ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent
Hearing: 8 October 2012
Counsel: P Ross for the Applicant
S McKenzie for the Respondent
Judgment: 28 February 2013
JUDGMENT OF WOODOHOUSE J
This judgment was delivered by me on 28 February 2013 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Counsel:
Mr P Ross, Barrister, Napier
Ms S McKenzie, Crown Law, WellingtonInstructing Solicitors:
Ms Z Tope, Tope Law Ltd, Solicitors, Napier
NAIR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC NAP CIV-2012-441-364 [28
February 2013]
[1] Mrs Nair has brought an application for judicial review of a decision of an immigration officer under s 177 of the Immigration Act 2009 (the Act) declining to cancel orders for the deportation of Mrs Nair and her two children. Mrs Nair contends that the decision should be set aside on three grounds: pre-determination by the respondent; a failure to take into account relevant considerations; and unreasonableness.
Conclusion in summary
[2] It is contended that pre-determination is to be inferred from the nature of the decision. No such inference is justified.
[3] On the second ground, the evidence positively establishes that the considerations required to be taken into account were taken into account.
[4] Unreasonableness must be assessed within the statutory framework. Under s 177 of the Act an immigration officer has an absolute discretion when deciding whether to cancel a deportation order. The immigration officer is not obliged to give reasons for any decision. The scope for judicial review is limited. Mrs Nair has not established what she needs to establish: that the decision is so unreasonable that no reasonable immigration officer could have come to it.
Section 177
[5] Section 177 provides:
177 Deportation order may be cancelled
(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.
(2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.
(3) If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—
(a) may make a decision as he or she thinks fit; and
(b) in doing so, is not under any obligation, whether by implication or otherwise,—
(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or
(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.
(4) Whether or not an immigration officer considers cancelling a deportation order,—
(a) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and
(b) section 23 of the Official Information Act 1982 does not apply in respect of the decision.
(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—
(a) a description of the international obligations; and
(b) the facts about the person's personal circumstances.
[6] Section 177 refers to an “absolute discretion”. This is defined in s 11 as follows:
11 Meaning of absolute discretion of the decision maker
If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that—
(a) the matter or decision may not be applied for; and
(b) if a person purports to apply for the matter or decision, there is no obligation on the decision maker to—
(i) consider the purported application; or
(ii) inquire into the circumstances of the person or any other person; or
(iii) make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and
(c) whether the purported application is considered or not,—
(i) the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and
(ii) section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application.
Factual background
[7] Mrs Nair is a Fijian citizen. In October 2007, in Fiji, she applied for a visitor’s permit to New Zealand for the purpose of visiting family members in New Zealand. This was granted. She arrived in New Zealand in January 2008 and was granted a visitor’s permit for three months. She was later granted a work permit, expiring on 22 January 2010.
[8] Mrs Nair is married to Mr Jeteen Singh, also a Fijian citizen. They have two sons, Jasnil born in December 2001 and Jasneet born in June 2005. Both were born in Fiji. Mr Singh and the sons had remained in Fiji when Mrs Nair came to New Zealand. Shortly after Mrs Nair was granted the work permit, and followed by a work visa, applications were made in Fiji for a work visa for Mr Singh and student visas for the sons. These were granted. They arrived in New Zealand in September
2008 and were granted temporary work and student permits also expiring on 22
January 2010.
[9] Before and after 22 January 2010, the expiry date of all the permits, applications were made for various permits under the Immigration Act 1987 (which was in force for a period) and then under the Act. None was granted. As a result, from 22 January 2010 Mrs Nair, Mr Singh and their sons were unlawfully in New Zealand. No issue is raised by Mrs Nair in respect of any of the processes relating to the earlier applications, which continued through to October 2011 when Mrs Nair’s counsel sought the intervention of the Associate Minister of Immigration.
[10] On 14 November 2011 deportation orders were served on Mrs Nair, Mr Singh and their sons. Mr Singh chose to return to Fiji at his own expense and he left New Zealand two days later.
[11] In March 2012 Mrs Nair’s request for ministerial intervention was declined. She made a new application, under s 61 of the Act. This enables the Minister to grant a visa of any type to a person who is unlawfully in New Zealand provided that person is not subject to a deportation order. Because Mrs Nair and her sons were subject to the deportation orders this application could not proceed. However, on 3
May 2012 an immigration officer, Ms Kay Mitchell, interviewed Mrs Nair to obtain information about Mrs Nair’s personal circumstances pursuant to s 177 of the Act.
[12] Ms Mitchell has been an immigration officer since 1986. She was present when the deportation orders were served on Mrs Nair, Mr Singh and the two children. She said that it is standard operational practice to undertake a review of a person’s personal circumstances when that person is in New Zealand unlawfully and subject to a deportation order. She said this is done to consider whether the deportation order should be cancelled under s 177 of the Act.
[13] Mrs Nair’s lawyer was with her at the interview. The interview took three and a half hours. Ms Mitchell recorded the information provided by Mrs Nair in a document which is headed “Record of Personal Circumstances”. This records the answers to a wide range of questions. It is 36 pages in length. The document records the facts about Mrs Nair’s personal circumstances as referred to in s 177(2) and required by s 177(5)(b).
[14] Ms Mitchell said:
Following the interview I considered which international obligations were relevant to my decision. I have undertaken this type of assessment on numerous occasions, including in many situations where there have been a family and children to consider. I consider that I have a good knowledge and understanding of the various international obligations that are commonly relevant to immigration matters. I wrote down a list of the international obligations that I considered were relevant to the personal circumstances that Ms Nair had raised during the interview. I considered the following articles were relevant: The United Nations Convention on the Rights of the Child, Articles 3, 7, 12, 16, 24, 27 and 28; The International Covenant on Civil and
Political Rights, Articles 17, 23, 24; and The International Covenant on
Economic, Social and Cultural Rights, Articles 10, 11 and 12.
Ms Mitchell listed these articles at the end of the record of the interview.
[15] Ms Mitchell said that she had recorded all the facts that Mrs Nair had raised. She noted in the interview document her conclusion that those personal circumstances did engage New Zealand’s international obligations. She said that before reaching a decision she assessed the information against New Zealand’s international obligations under the articles of the conventions she had listed and that, having done so, she concluded that the deportation order should not be cancelled. She said that she made that decision the day after the interview. She was required to refer the matter to her manager for review; this was done and the manager confirmed Ms Mitchell’s decision.
[16] In response to the allegation of pre-determination Ms Mitchell said:
I am aware that Mrs Nair alleges that in reviewing her personal circumstances I did not approach the exercise with an open mind – that I had already decided that she should be deported. This is absolutely untrue. Prior to undertaking the interview I had formed no view on whether I should exercise my discretion to cancel the deportation order relating to Mrs Nair. I spent a significant period of time interviewing Mrs Nair and asking her about matters that might suggest that this was an appropriate case in which to cancel the deportation order. The decision I reached was made on the basis of my knowledge of the personal circumstances of Mrs Nair, her husband and children and the information she had provided during my interview with her.
Discussion
Pre-determination
[17] Mr Ross, for Mrs Nair, submitted that this contention could only be made out if pre-determination could be inferred. It was submitted that pre-determination could be inferred simply on the basis that, having regard to the information available to Ms Mitchell and her manager, the decision should have been in Mrs Nair’s favour.
[18] Cases are likely to be infrequent when the evidence in a case is such that pre- determination can be inferred solely from the particular decision when assessed against the information available to the decision maker. This is not such a case.
[19] Two circumstances established by the evidence in this case are sufficient to dispose of any inference of pre-determination. The first is the fact that there was an interview. Section 177(2) expressly provides that a person does not have a right to apply for cancellation of a deportation order. Notwithstanding this the interview appears, from the available evidence, to have been the initiative of Ms Mitchell in accordance with the standard practice to undertake a review. The second circumstance concerns the interview itself. It was lengthy. Mrs Nair was present with her lawyer. Extensive information about Mrs Nair’s personal circumstances was obtained.
[20] Two other matters may be added to this. The first is Ms Mitchell’s unchallenged evidence that she approached the matter with an open mind. The second is that, in considerable measure, the foundation for this pre-determination argument is the same as the foundation for the argument that the decision was unreasonable. As earlier recorded I am satisfied that it has not been established that the decision was unreasonable.
Failure to take account of relevant consideration
[21] Section 177(3) provides that, in the circumstances that arose in this case, the immigration officer had to have regard to relevant international obligations. The central argument for Mrs Nair was that the result in this case indicates that Ms Mitchell did not have regard to relevant international obligations.
[22] To an extent this ground for judicial review, as with the pre-determination ground, overlaps with the unreasonableness argument. Otherwise, as a stand-alone ground, the argument must fail on the evidence. This is not simply a case of an applicant failing to establish that a relevant matter was not taken into account. In this case it is positively established that Ms Mitchell took into account the matters that she was required to take into account.
[23] Mr Ross did argue that there was not only a failure to take international obligations into account, but also a failure to take into account the principles of the Care of Children Act 2004, and in particular ss 4 and 5 of that Act. Section 177 makes clear that the only legal principles the immigration officer was required to have regard to were those in “any relevant international obligations”. In Ye v Minister of Immigration the Supreme Court confirmed that the Care of Children Act
is not relevant to immigration matters.[1]
[1] Ye v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104 at [24].
An unreasonable decision
[24] Section 177 by its terms places considerable restrictions on the normal scope of judicial review. The limited scope for review clearly indicated by the text of the section is reinforced by other provisions in the Act and by consideration of the legislative history of what is now contained in s 177. The statutory scheme and the other matters just referred to have been discussed in earlier decisions of this Court and the Court of Appeal.[2] It is unnecessary to repeat what is said in those judgments. This legislative framework is in considerable measure determinative of the contention that the decision was unreasonable.
[2] Parmanadan v Minister of Immigration [2010] NZCA 136; [2010] NZAR 424 and Babulal v Chief
Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29 September 2011.
[25] Mr Ross’s submissions on this ground were founded on information given to Ms Mitchell by Mrs Nair in the interview and related, primarily, to circumstances for the children if Mrs Nair and the children have to return to Fiji. The circumstances
given emphasis were, in summary:
In New Zealand the children, who are attending school in New Zealand, are educated in English. In Fiji they may not be able to attend school, but if they
can they will be educated in Fijian or Hindi.
Healthcare in Fiji is inferior to that in New Zealand.
Mrs Nair and Mr Singh may be unemployed in Fiji. If employment can be
found the rate of pay would be “vastly inferior to the scales payable in New
Zealand”. This was to be contrasted with the fact that Mrs Nair and Mr
Singh had had employment in New Zealand.
The domestic security of their home in Fiji was said to be inferior to that of
their home in New Zealand.
There was evidence of flooding which had caused major damage to their
home in Fiji with consequential problems, including health problems.
Unlike New Zealand, in Fiji corporal punishment is permitted and used at
schools.
[26] The argument flowing from this was founded on the Care of Children Act. It was submitted that the evidence showed that it would not be in the best interests of the children and it would be contrary to their welfare to return to Fiji. It was further submitted, on this foundation, that it followed that the decision was “simply unreasonable”. Mr Ross said:
Deporting children to such poor circumstances where their prospects for the future are at risk cannot possibly accord with [the Convention on the Rights of the Child or the Care of Children Act]. It is submitted that no reasonable immigration officer could have regarded the deportation as being in the best interests of the children.
[27] Mr Ross did refer to some other matters of fact, but matters of fact bearing on the welfare and interests of the children were at the heart of the submission.
[28] Although reference was made to articles in the United Nations Convention on the Rights of the Child, the primary submission was based on the Care of Children Act. For reasons already noted, these submissions cannot support the contention that the decision was so unreasonable that it should be set aside; the Care of Children Act does not apply.
[29] There are articles in the Convention on the Rights of the Child which, to an extent, mirror principles in the Care of Children Act. For example, article 3 provides that, in all actions concerning children, by administrative authorities or other entities, “the best interests of the child shall be a primary consideration”. Provisions of this
nature do not assist the applicant in making out the primary contention that the decision was unreasonable.
[30] In the first place, it is open to question whether the Convention was required to be taken into account in this case. The children are not New Zealand citizens. When the deportation orders were served, and down to the present time, the children, like Mrs Nair, have not been lawfully in New Zealand. New Zealand has made and maintains a reservation to the Convention in relation to children unlawfully in New Zealand. This point was noted by the Supreme Court in Ye v Minister of
Immigration.[3]
[3] Ye v Minister of Immigration, above n 1, at [24]-[25].
[31] Assuming the Convention on the Rights of the Child was a relevant international obligation to be taken into account in this case, I am not persuaded that the decision has been shown to be unreasonable to the extent that would have to be demonstrated to grant relief. The decision would have to be shown to be so
unreasonable that no reasonable immigration officer could have come to it.[4] The
[4] Puli’uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA) at 334. See also Huang v Minister of Immigration [2008] NZCA 377; [2009] 2 NZLR 700 (CA) at [67]. No greater scrutiny of the decision is justified in judicial review proceedings. See Babulal v Chief Executive, Department of Labour, above n 2.
immigration officer was not required to give reasons for her decision. She was entitled to reach her decision in her “absolute discretion” as defined in s 11. Because the immigration officer did consider cancelling a deportation order, she was required by s 177(3) of the Act to have regard to any relevant international obligations, but she was not obliged, as the submission for Mrs Nair suggests, to give effect to international obligations in some particular way, or at all. Sub-section (3)(a) empowered her to make any decision she thought fit provided she had had regard to any relevant international obligations. Pursuant to sub-s (3)(b)(i) she was not under any obligation to apply any particular test. Importantly, she was not obliged to apply the test set out in s 207, which is concerned with humanitarian grounds for overturning a deportation order. To a considerable extent the submissions for Mrs Nair raise matters of a humanitarian nature rather than matters relating to relevant international obligations of New Zealand. Given the legislative context, the matters
referred to by Mr Ross do not demonstrate unreasonableness.
[32] Beyond this range of difficulties faced by the applicant there is evidence sufficient to indicate that the decision, within the major constraints of s 177, was in fact not unreasonable. There are facts which could be put in the balance against those emphasised by Mr Ross were it necessary to do so. I will note these, but it is important to emphasise the point already made; the scope of the discretion of the immigration officer under s 177 is very wide and the immigration officer does not have to provide any reason for her decision. This must in turn be put into the context of the Act as a whole. It is legislation intended to reflect immigration policy
determined by the Executive and implemented by the Legislature.[5]
[5] See Huang v Minister of Immigration [2007] NZAR 163 (HC) at [49].
[33] Facts which could readily have been put into the balance by the immigration officer against those advanced by Mr Ross, include the following:
Neither of the parents of the children has a lawful ability to be in New
Zealand.
The children’s father, Mr Singh, voluntarily returned to Fiji.
Mrs Nair said during the interview that her relationship with Mr Singh remained intact and that he was a good father to the children when they were
together.
If the deportation order is not cancelled both children will be with both of their parents, together, in Fiji. Mr Singh, on the other hand, cannot return to
New Zealand for five years from the date of his deportation.
The children are not New Zealand citizens. Like their parents they are Fijian
citizens.
The children do have a degree of connection with the language and culture of
Fiji.
[34] These matters indicate, as a final reason, why the applicant has not made out the contention that the decision was plainly unreasonable to the extent that no reasonable immigration officer could have come to the decision.
Result
[35] The application is dismissed.
[36] I assume there will not be an application for costs by the respondent. However, if I am wrong in that assumption a memorandum in support of the application should be filed and served within three weeks. Any response on behalf
of the applicant is to be filed and served within a further three weeks.
Woodhouse J
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