Nair v Chief Executive of the Ministry of Business, Innovation and Employment
[2016] NZHC 345
•3 March 2016
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2016-404-0154
[2016] NZHC 345
UNDER THE Judicature Amendment Act 1972 & Part 30 of the High Court Rules AND
Immigration Act 2009
AND THE
New Zealand Bill of Rights Act 1990
IN THE MATTER
an application for judicial review under Part 1 of the Judicature Amendment Act 1972 and a claim for breach of the Bill of Rights
BETWEEN
MILAN SANKUNNY NAIR
Plaintiff
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Defendant
Hearing: 22 February 2016
Further evidence from plaintiff 25 February 2016 Additional memorandum from defendant 1 March 2016
Counsel:
R Sathiyanathan for Plaintiff
M J Hodge and K H Lawson-Bradshaw for Defendant
Judgment:
3 March 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 3 March 2016 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
McClymont and Associates, Auckland Meredith Connell, Auckland
NAIR v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 345 [3 March 2016]
[1] The plaintiff, Milan Nair, applies for interim relief to restrain the respondent from implementing Mr Nair’s deportation from New Zealand until such time as this Court hears and determines Mr Nair’s judicial review of the decision not to cancel the deportation order.1
[2] The application is opposed by the respondent, who is the chief executive of the government department responsible for administering the Immigration Act 2009 (the Act). The Act provides the legislative authority for the deportation order.
Facts
[3] Mr Nair is a citizen of India. He entered New Zealand on 11 November 2009 and was granted a student visa to 1 May 2011. He applied for a further student visa on 21 April 2011 which was granted on 7 June 2011 and expired on 30 October 2011. Mr Nair remained in New Zealand after the expiry of his second student visa. He accordingly became unlawfully present in New Zealand on 1 November 2011 and has remained so.
[4] Since he has been in New Zealand Mr Nair has entered into a de facto relationship with a New Zealand born citizen, whom he first met in 2014. They have a biological child M who was born eight weeks premature in September 2015. Mr Nair’s partner is the mother of another child L who was born in October 2014. As the de facto partner of L’s mother, Mr Nair is the step-father of L.2 Each child has health problems of which more will be said later.
[5] Mr Nair took no steps to regularise his illegal status in New Zealand until 14 January 2016 when he requested a visa under s 61 of the Act.3 He has provided the following summary of events in his affidavit:
6.On or around 10 January 2016, my partner and I managed to save up enough money to lodge a s61 request with Immigration New Zealand. We could not afford a lawyer and so we lodged the application by
1 Mr Nair initially sought an interim injunction. However, the respondent had approached the application as if it had been made under s 8 of the Judicature Amendment Act 1972 and at the hearing Mr Nair’s counsel acknowledged that s 8 provided the more appropriate procedure.
2 See s 29B of the Interpretation Act 1999.
3 Section 61 authorises the Minister of Immigration to grant a visa of any type to a person who satisfies the requirements of s 61, which at the time Mr Nair did.
ourselves and gave Immigration New Zealand all the documents about our children, our relationship and our medical issues.
7.I did not get any response from Immigration New Zealand and I kept calling the Immigration Contact Centre for an update. I was told that it was with a case officer.
8.On 27 January 2016, Immigration officers came to my house and took me away from my family. I was also served with a deportation order.
[6] Once Mr Nair had been served with a deportation order he became ineligible for consideration under s 61 because he was then a person who was subject to a deportation order.4 Accordingly, on 28 January 2016 an officer of Immigration New Zealand (INZ), a business unit within the respondent’s department, refused to consider Mr Nair’s request under s 61.
[7] Mr Nair was not entitled to appeal against the deportation order because he had been unlawfully in New Zealand for more than 42 days.5 However, s 177(2) of the Act states that:
… 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.
[8]There is no right of appeal from the decision of the immigration officer.
[9] Following service of the deportation order on Mr Nair he was taken into Police custody and while he was in Police custody James Casson, an officer of INZ conducted a record of personal circumstances interview with Mr Nair. That same day another officer of the respondent interviewed Mr Nair’s de-facto partner.
[10] On 3 February 2016 Mr Casson considered the information available to him as well as the applicable international obligations and decided under s 177 of the Act not to cancel the deportation order made in relation to Mr Nair, which meant that his deportation should proceed. Mr Casson listed the international obligations and the
4 See Immigration Act 2009, s 61(1)(b).
5 Immigration Act, s 154(2).
material that he considered. He elected not to give reasons for his decision as under s 177(4)(a) he is not obliged to give reasons.
[11] Mr Casson’s decision not to cancel the deportation order is the subject of Mr Nair’s judicial review proceeding. Mr Nair understandably wants to remain in New Zealand until his judicial review is determined; hence this application for interim relief. The respondent wants to deport Mr Nair pending the outcome of the judicial review on the basis that Mr Nair is someone who is illegally in New Zealand, and that his judicial review can proceed even if Mr Nair is not present in this country.
Approach to interim relief under s 8
[12]Section 8(1) of the Judicature Amendment Act 1972 provides as follows.
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…
[13] The threshold for granting interim relief under s 8 in relation to an immigration matter was set out by the Court of Appeal in Parmanadan v Minister of Immigration:6
It is common ground that the appellant cannot obtain relief from this Court unless he can establish that he has at least a respectable chance of success in relation to his challenge to his proposed removal. He must also show that the making of an interim order is appropriately necessary to preserve his current status, an issue which must be addressed in the context of the scheme and purpose of the legislation.
[14] The Court of Appeal held that in order to show interim relief was necessary to preserve an applicant’s current status an applicant would need to show the existence of any adverse consequences arising from deportation. These would need to be:7
… established by evidence and assessed in the context of both a legislative scheme under which the overstayer is necessarily illegally in New Zealand and is under a legal duty to leave … and also a legislative policy under which those who break the rules are not to be advantaged over those who comply.
6 Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424 at [10] (footnotes omitted).
7 At [11].
Will Mr Nair suffer adverse consequences if he is deported before his judicial review is heard and determined?
[15] I propose to deal first with the question of whether it is necessary to preserve Mr Nair’s current status, which is that of someone who is unlawfully in New Zealand.
[16] The respondent submitted that the decision in Parmanadan v Minister of Immigration was directly on point.8 Like the present case, the application for interim relief in Parmanadan arose in relation to the decision of an immigration officer not to cancel a deportation order in respect of the applicant, who had overstayed his visa. The legislation in force at that time was the Immigration Act 1987 and s 58 of that Act concerned the cancellation of a removal order. The crucial provisions of that section were as follows.
58 Cancellation of removal order
(1) An immigration officer who has been designated by the chief executive for the purpose of making removal orders under section 54 may, at any time while the person named in the removal order is still in New Zealand, cancel a removal order that has been served by endorsing a copy of the order accordingly, and personally serving that copy on the person named in the order.
…
(4)In the case of a person who has already been removed from or has left New Zealand, an immigration officer of the type referred to in subsection (1) may cancel a removal order by sending the person named in it a notice to that effect in the prescribed form.
(5)Nothing in this section gives a person a right to apply to an immigration officer for the cancellation of a removal order. However, an immigration officer must consider cancelling the removal 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.
…
[17] Subsection (5) is substantively replicated in s 177 of the current Act. Subsections (1) and (4) are not.
8 Parmanadan v Minister of Immigration, above n 6.
[18] In Parmanadan the Court of Appeal recognised that the scheme and purpose of the Immigration Act 1987 required officers making decisions on cancellation of deportation orders either to decide not to cancel the order, in which case the overstayer was deported (if he or she did not first leave voluntarily), or to grant him or her permission to remain in New Zealand. Quoting from its earlier decision in Huang v Minister of Immigration9 the Court of Appeal in Parmanadan stated:10
As this Court put it in Huang:
[45] The discretions under ss 54 and 58(5) can only sensibly be exercised in the context of the scheme of the Act as a whole – a scheme which contemplates that those in New Zealand illegally must either leave or obtain a permit. Immigration officers cannot exercise discretionary authority so as to leave an overstayer in legal limbo (ie in New Zealand unlawfully but not required to leave). The end result of the process should be that the overstayer either leaves New Zealand (compulsorily if necessary) or has his or her immigration status regularised, perhaps under ss 35A or 130.
[19] The concerns that were recognised in Huang influenced the Court of Appeal in Parmanadan in a way that led the Court to conclude that denial of interim relief would not have adverse consequences for a person judicially reviewing a decision not to cancel a deportation order:11
[9] This is an important aspect of the present case. In previous cases where interim relief has been sought, the assumption has usually been that unless the status quo (ie the overstayer’s continuing presence in New Zealand) is maintained, the overstayer’s right to challenge removal will (or may) be irretrievably damaged on the basis that the overstayer, even if successful in the review proceedings, may not be permitted to return to New Zealand. In contrast, s 58(4) contemplates that a removal order may be cancelled despite an overstayer having left New Zealand. And once it is appreciated that the corollary of an ultimately successful challenge by the appellant to his removal will be a grant of permission to reside in New Zealand, the need for an interim order in cases such as the present might be thought to fall away, at least in large measure.
[10] To be more specific, the corollary of an ultimately successful challenge by the appellant to his removal will be a grant of permission to reside in New Zealand. In other words, the end point of the whole process (which may include reconsideration of his case by an immigration officer) will be either the appellant’s removal, or him being permitted to stay in New Zealand. Armed with such permission, the appellant, even if removed in the meantime, will be able to return to New Zealand. So allowing him to be
9 Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700.
10 At [8].
11 At [9] (emphasis added).
removed would not compromise his legal rights should his challenge to removal be ultimately successful.
[20] I agree with the Court of Appeal that the outcome of a successful application for cancellation of a deportation order should be that the person is permitted to reside in New Zealand. However, I find it difficult to see how I can draw such a conclusion in relation to the Act which is currently in force. There is no equivalent to s 58(4) of the Immigration Act 1987 in the current Act and I cannot identify any section in the current Act that would allow an overstayer who has already left or been deported from New Zealand to re-enter the country as of right.12 Section 14 of the Act provides that a person who is not a New Zealand citizen must hold a visa in order to travel to and be in New Zealand. Mr Nair would not possess a visa and there is no provision that I can see which would require INZ to grant him one. From what I see of the Act’s provisions, once Mr Nair is outside New Zealand for him to return he would need to show that he came within one of the categories of persons who ordinarily would be given permission to enter New Zealand.13 If Mr Nair could not establish himself within one of those categories, he would not get permission to return to New Zealand.
[21]This situation concerns me for three reasons.
[22] First, deporting Mr Nair at this stage of the proceeding may undermine any subsequent reconsideration of the decision regarding cancellation of the deportation order. If Mr Nair is deported now and if he is ultimately successful in his judicial review application, the most he is likely to achieve is that the refusal to cancel the deportation order will be set aside.14 At that stage there would need to be a fresh consideration of the refusal to cancel a deportation order that had already in fact been
12 Sections 35A and 130 of the Immigration Act 1987 were referred to in Huang as possible mechanisms for regularising the status of an overstayer who was in New Zealand. These sections are substantially reproduced in ss 61 and 378 of the current Act. However, those sections do not appear to have applied to an overstayer who has already left New Zealand.
13 I cannot see provision for a visa permitting someone to enter and to remain in New Zealand as a special case. If Mr Nair is deported to India at this stage and if his deportation order is subsequently cancelled, the only benefit which seems to accrue to him is that he may not be automatically prohibited from entering New Zealand (with a visa) in the future: see s 179 of the Act.
14 This judicial review is not like those rare cases where the impugning of an administrative decision may result in the Court making a declaration of entitlement to the discretionary benefit the plaintiff seeks as occurred in Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR
341. I cannot see a Court declaring that Mr Nair is entitled to a visa permitting him to remain in New Zealand.
implemented, in which case the INZ officer could hardly ignore the change of circumstances that necessarily would have arisen. Factors that may favour cancellation of the order while Mr Nair remains in New Zealand may no longer realistically be engaged once he, either alone or together with his family, is in India.
[23] Secondly and more importantly, deporting Mr Nair at this stage of the proceeding may affect Mr Nair’s future entitlement to reside in New Zealand. If on a re-consideration of Mr Nair’s request for the deportation order to be cancelled the INZ officer decides in his favour, there is no automatic entitlement for Mr Nair to return to New Zealand. Thus, if Mr Nair is deported at this stage of the proceeding, cancellation of the deportation order will not give rise to any right to live in New Zealand, because Mr Nair will not be able to re-enter the country. Mr Nair’s future will effectively have been determined by the initial decision not to cancel the deportation order, even though that decision was subsequently overturned. On the other hand if Mr Nair remains in New Zealand, and if his judicial review is successful, and if on re-consideration the deportation order is set aside, he will be entitled to remain in New Zealand for the time being, with a view towards regularising his status in some way.
[24] Thirdly, the Nair family are of modest means. Mr Nair does not work and his partner is on a benefit. If he is deported and is then successful in his judicial review proceeding he may not be able to afford return travel to New Zealand.
[25] The respondent argues that if Mr Nair had complied with his visa requirements he would necessarily have had to leave New Zealand which would entail travel costs for him. That may be so and I acknowledge that the cost of travel to New Zealand following a successful judicial review can probably be equated to the cost of travel from New Zealand if Mr Nair had fulfilled his visa requirements.
[26] As the respondent would have it, one set of travel costs would cancel out the other and in that sense Mr Nair would not suffer adverse consequences if, following his deportation from New Zealand, he subsequently had to pay to return to this country. Further, the respondent relies on the well settled principle that those who contravene the Acts’ requirements should not be advantaged over those who do not. However, in
my view that is to look at the matter in the wrong way. The fact is that Mr Nair is presently in New Zealand and he has commenced a judicial review against Mr Casson’s refusal to cancel the deportation order. The Act allows him to judicially review this decision, which in turn leaves open the possibility the review will succeed with the prospect that Mr Nair will be permitted to remain in New Zealand. Thus, to this limited extent, Parliament has allowed for someone who is unlawfully in New Zealand to be advantaged, by being able to remain here in a way that those who have not overstayed their visas do not enjoy. I consider therefore that if Mr Nair’s deportation may place him at risk of being prevented from enjoying the benefits of a successful judicial review. This is an adverse consequence that supports the grant of interim relief.
[27] If Mr Nair remains in New Zealand and his judicial review is successful, he will be able to enjoy the benefit of that success.15 But if he is in India and his judicial review is successful he will not be able to enjoy the successful outcome unless he returns to New Zealand, which will depend on whether he can afford the cost of travel to New Zealand. If he cannot afford such cost, which is what the evidence suggests, his success in the judicial review proceeding will be no more than a Pyrrhic victory for him. This, in my view, is an adverse consequence for Mr Nair.
[28] It is clear to me, therefore, that the consequences of deporting Mr Nair now are so adverse to his interests that they meet the threshold for an order preserving his current status. It follows that Mr Nair has met one arm of the legal test for granting him interim relief.
Is there a respectable case for judicial review?
[29]I now turn to consider if Mr Nair has a respectable case for judicial review.
[30]The grounds on which Mr Nair sought the interim order were as follows.
i.The Respondent’s decision to deport Mr Nair is unreasonable.
15 On reconsideration the same outcome may be reached in which case the victory will be short lived, but if the reconsideration leads to a decision to allow Mr Nair to remain in New Zealand the Minister can give him a visa under s 61 of the Act and he will be able to remain in New Zealand with his family.
ii.The Respondent did not exercise its discretion in a fair and just manner.
iii.The Respondent failed to properly take into account the relevant international obligations that were applicable to Mr Nair, his citizen wife and his citizen children.
iv.Mr Nair and his family would suffer undue harm if he is deported from New Zealand on 11 February 2016.
v.Mr Nair has a reasonable chance of success in the judicial review proceedings.
vi.Mr Nair is not a flight risk.
[31] I acknowledge that there is “extremely limited” scope for judicial review of Mr Casson’s decision.16 Such limitation was well described and affirmed in Singh v Chief Executive Ministry of Business, Innovation and Employment.17 Nonetheless, as was recognised by the Court of Appeal in Chief Executive of the Ministry of Business, Innovation and Employment v Liu, “the courts may at least review an immigration officer’s decisions for compliance with” the limited requirements of s 177 of the Act.18
[32] Section 177(1) gives an immigration officer an absolute discretion to decide whether to cancel a deportation order or not. The term “absolute discretion” is defined in the Act to mean that:19
(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,--
16 See Babul v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29 September 2011 at [29].
17 See discussion in Singh v Chief Executive of the Ministry of Business, Innovation and Employment
[2014] NZCA 220, [2014] 3 NZLR 23 at [42]—[50].
18 Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37, [2014] 2 NZLR 662 at [28].
19 Immigration Act, s 11(1).
(i)the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and
(ia) privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and
(ii)section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application.
[33] However, the absolute discretion in s 177(1) is tempered by the requirements of subss (2) and (3). Subsection (2) requires an immigration officer to consider cancelling a deportation order under some circumstances; while subs (3) states that when considering whether to cancel a deportation order, an immigration officer “must have regard to any relevant international obligations.”
[34] Furthermore, while an immigration officer is entitled to “make a decision as he or she thinks fit”,20 this does not mean that he or she has authority to act arbitrarily or capriciously. The immigration officer’s decision must not be unreasonable, in the Wednesbury sense of that term.21
Does the absence of reasons prevent a court from judicially reviewing the decision?
[35] As was recognised by the Court of Appeal in Singh the absence of reasons for the refusal to cancel a deportation order poses an obstacle for a court charged with judicially reviewing this decision, particularly when the court must reach a view on whether the limited requirements of s 177 have been taken into account or not.22
[50] As this Court observed in the passage in Liu set out in [43] above, a reviewing court can check the IO’s compliance with the requirements of s 177, particularly s 177(5).23 Beyond that, the fact that the IO is not obliged to give reasons for his or her decision represents an obvious obstacle to the court
20 Immigration Act, s 177(3)(a).
21 Singh v Chief Executive of the Ministry of Business, Immigration and Employment, above n17, at [64].
22 Singh v Chief Executive of the Ministry of Business, Immigration and Employment, above n 17, at [50].
23 Section 177(5) provides that, “to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record… a description of the international obligations; and… the facts about the person’s personal circumstances.”
reviewing whether the best interests of an affected child have genuinely been taken into account by the IO.
[36]This led the Court of Appeal in Singh to conclude that:24
[66] The only inference available from Mr Shand’s affirmation of performance of his obligations under s 177 is that, in accordance with New Zealand’s international obligations, he has treated Amanpreet’s interests as a primary consideration. But, within his discretionary power, he has decided that the statutory requirement to ensure the integrity of New Zealand’s immigration system – what may generally be termed “the national interest” – must prevail. A Court cannot inquire further. In these circumstances, applying the Wednesbury approach, it cannot be “there could be only one answer”, namely that the IO should have cancelled the deportation orders. We are satisfied that the IO reached a decision that was reasonably open to him on all the facts and having regard to New Zealand’s international obligations.
[37] The respondent sought to persuade me that the present case was met with the same obstacles as were present in Singh. However, I do not accept that the absence of reasons will always represent “an obvious obstacle” to the court on judicial review.
[38] Courts have long been faced with decisions of the Executive that are given without reasons. When there is no legal obligation to give reasons it does not necessarily follow that the court is, therefore, precluded from making an assessment of the decision in terms of how it accords with the requirements of administrative law. There have been occasions where courts have drawn adverse inferences from unreasoned decisions. In the seminal case of Padfield v Minister of Agriculture, Fisheries & Food Lord Reid stated:25
I do not agree that a decision cannot be questioned if no reasons are given. If it is the Minister’s duty not to act so as to frustrate the policy and objects of the Act, and if it were to appear from all the circumstances of the case that that has been the effect of the Minister’s refusal, then it appears to me that the court must be entitled to act.
[39] The same was said by this country’s Court of Appeal in Fiordland Venison Ltd v Minister of Agriculture where in the absence of a decision for which reasons had been given or an affidavit from the Minister setting out the reasons for his decision the
24 At [66].
25 Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997 at 1032G-1033A.
court was left to infer from the evidence available to it what those reasons might have been:26
In the absence of a statement by the Minister of the reasons for his decision the first step is to assess the information which it is known was before him when he made the decision.
[40] Both in Padfield and in Fiordland Venison the absence of reasons did not deter the court from finding that the subject decision was flawed and so susceptible to the granting of relief.
Did Mr Casson have regard to the relevant international obligations?
[41] As noted above, s 177(3) of the Act means that Mr Casson was required to have regard to any relevant international obligations when he considered whether or not to cancel the deportation order against Mr Nair. Mr Casson included a list of relevant international obligations in his final published decision, including a number of obligation that related to the importance of the family unit as well as the health and well being of children.27 Such obligations would be engaged if Mr Nair were deported from New Zealand because his removal from this country would mean that either the children grew up in New Zealand without their father’s presence, or if the entire family accompanied Mr Nair to India the children would then be dependent upon whatever health care was available to them in India.
[42] Under s 177(3) Mr Casson is not obliged to give effect to the applicable international obligations, but he must have regard to them.28 Given the absence of published reasons for Mr Casson’s decision, my view is that unless it can be inferred from the information available to the Court that Mr Casson paid proper regard to those obligations, the Court cannot be satisfied on the balance of probabilities that he did so. Merely listing those obligations in his decision will not suffice.
26 Fiordland Venison Ltd v Minister of Agriculture [1978] 2 NZLR 341 at 354.
27 International Covenant on Civil and Political Rights, arts 17, 23 and 24; International Covenant on Economic, Social and Cultural Rights, arts 10, 11 and 12; United Nations Convention on the Rights of the Child, arts 3, 4, 16, 18, 24 and 27.
28 Nair v Chief Executive of the Department of Labour [2013] NZHC 358 at [31].
[43] The Court of Appeal in Singh held that the words “have regard to” in s 177(3) were significant.29
Because those words had been considered in many earlier cases, it can confidently be said Parliament selected them deliberately.
[44] There are a number of cases which have defined or discussed the meaning of “have regard to”. In New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries, McMullin J held that in order to “have regard to” a consideration, the decision-maker would “require an open and receptive mind.”30 In New Zealand Co-operative Dairy Co Ltd v Commerce Commission, Wylie J stated that to “have regard to” meant that the factors for consideration must be given:31
genuine attention and thought and such weight as the [decision maker] considers appropriate.
[45] The Privy Council in Nilamdeen Mohamed Ishak v Ibrahim Lebbe Mohamed Thowfeek held that the words “have regard to certain matters” meant:32
They must take them into account and consider them and give due weight to them, but they have an ultimate discretion and are not bound to select a person or persons whom they consider unsuitable.
[46] Regarding mandatory considerations generally, I concur with the judgment of Glazebrook J in Ye v Minister of Immigration that “a decision maker must give genuine, and not merely token or superficial regard, to mandatory considerations.”33
[47] A relevant case in the context of deportation is O’Brien v Immigration and Protection Tribunal.34 In that case, Simon France J considered whether the Tribunal
29 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 17, at [17].
30 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 566.
31 New Zealand Co-operative Dairy Co Ltd v Commerce Commission [1992] 1 NZLR 601 (HC) at 612. Whilst the weight to be given to each factor is a matter for the decision-maker to determine, if the weight the decision-maker gives to the considerations is too inadequate and unbalanced it can mean that the decision is manifestly unreasonable: see Ministry of Aboriginal Affairs v Peko- Wallsend Ltd (1986) 66 ALR 299 as discussed in Issac v Minister of Consumer Affairs [1990] 2 NZLR 606 at 635.
32 Nilamdeen Mohamed Ishak v Ibrahim Lebbe Mohamed Thowfeek [1968] 1 WLR 1718 at 1725.
33 Ye v Minister of Immigration [2009] 2 NZLR 596 (CA) at [90].
34 O’Brien v Immigration and Protection Tribunal [2012] NZAR 1033.
had sufficiently considered the best interests of the applicant’s child in making an order for deportation:35
[32] The case law makes it plain that the best interests of the child are a primary consideration, but are neither paramount nor the primary consideration. But they are to be given important and genuine assessment. I consider the first step in doing that is to carefully analyse and identify what those interests are, and what if any might be the consequences of their disappointment.
[48] In this case, I consider that in order to “have regard to the relevant international obligations”, particularly those concerning the children’s health and wellbeing, Mr Casson was required to identify the relevant facts about the availability of healthcare in Gujarat, where the children might be forced to live. I refer particularly to the decision of the Court of Appeal in New Zealand Fishing Industry Association v Minister of Agriculture and Fisheries, where Cooke P held:36
I accept that the relevant consideration which the [decision maker] was bound to take into account included such facts obviously material to the mandatory statutory considerations as were or ought to have been known to himself or the Ministry. That is to say, the duty to consider statutory criteria extends to facts so plainly relevant to those criteria that Parliament would have intended them to be taken into account and a reasonable [decision maker] would not fail to do so.
[49] I consider that the availability of adequate healthcare in Gujarat is a fact which is so plainly relevant to New Zealand’s international obligations in respect of Mr Nair’s children that Parliament must have intended them to be taken into account.37
[50] It might be argued for the respondent that s 177(3) precludes any obligation on an immigration officer to seek further information of this sort. That subsection states:38
(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—
35 At [32] (emphasis added).
36 New Zealand Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 552.
37 This availability could extend to whether the children as New Zealand citizens would have an entitlement to any healthcare in India that was available to Indian citizens or persons legally resident in India, as well as the impact of the children’s New Zealand citizenship if through M’s connection with Mr Nair and L’s connection with his Indian born father they sought to obtain Indian citizenship in order to have better access to the Gujarat health system.
38 (Emphasis added.)
(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)…
(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.
[51] As per my added emphasis above, I consider that subs (3)(b)(ii) operates separately from the statutory requirement for an immigration officer to “have regard to any relevant international obligations”. In other words, subs (3)(b)(ii) releases the immigration officer from any obligation to make additional inquiries beyond those which are necessary to satisfy the statutory requirement. Any other interpretation of that subsection leads to the bizarre conclusion that an immigration officer could somehow “have regard to” an international obligation that a child has the right to the enjoyment of the highest attainable standard of health without knowing anything about the health system in India. However in any case, Mr Casson clearly requested the information and since he subsequently attached that information to his decision, I am confident that Mr Casson considered the information to be relevant.
[52] The information that was provided regarding the availability of appropriate medical care in Gujarat was manifestly inadequate. It did not specifically address the health care that would be available to the children. Instead it comprised print-outs from various web sites which give a general overview of the Indian health care system. In relation to M’s digestive problems the availability in India of the formula Pepti Junior was disclosed by chat room websites called “Baby Whisper” and “Sour Poo”. Whilst the discussions on those sites revealed persons in India taking about using the formula how it was obtained, whether it was something that would be readily available to M was completely unknown.
[53] I do not consider that it is possible to “have regard to any relevant international obligations” when the basis for making the assessment about the extent of any breach of those obligations is so fundamentally flawed. On that basis, I would hold that Mr
Casson did not have adequate regard for New Zealand’s international obligations in respect of Mr Nair’s children and therefore that his decision was invalid.
[54] The findings that I have reached are made in the context of the legal test for interim relief where all I need to be satisfied of is that there is a respectable case for Mr Nair to argue in this judicial review.
Was the decision not to cancel the deportation order unreasonable?
[55] One of the grounds for Mr Nair’s application was that Mr Casson’s decision not to cancel his deportation order was unreasonable. Although the scope for judicial review of an immigration officer’s decision under s 177 has been substantially narrowed in recent times, the Court of Appeal in Singh affirmed that a Wednesbury- type assessment is still available to the courts on judicial review.39
[56] In the original Wednesbury decision, Lord Greene MR interpreted unreasonableness in a broad sense:40
Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [[1926] Ch 66, 90, 91] gave the example of the red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.(emphasis added)
[57] The comprehensive interpretation of unreasonableness, to which Lord Greene MR referred, includes a failure to take account of relevant considerations. So in this sense the failure of Mr Casson that I have already identified would bring his decision within the scope of Wednesbury unreasonableness as well. But that is simply to look
39 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 17, at
[46] and [64].
40 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 229.
at the same decision making error from a different perspective, which adds nothing to the findings I have already made on the failure to take account of relevant consideration ground of review.
[58]As noted above, the Court of Appeal in Singh held:41
[66] The only inference available from [the immigration officer’s] affirmation of performance of his obligations under s 177 is that, in accordance with New Zealand’s international obligations, he has treated [the child’s] interests as a primary consideration. But, within his discretionary power, he has decided that the statutory requirement to ensure the integrity of New Zealand’s immigration system – what may generally be termed “the national interest – must prevail. A Court cannot inquire further. In these circumstances, applying the Wednesbury approach, it cannot be said “there could be only one answer”, namely that the [immigration officer] should have cancelled the deportation orders. [emphasis added]
[59] This finding was made in a case where the immigration officer concerned was found to have paid proper regard to the matters that he was bound to consider and to have properly discharged the other requirements for his decision-making, so that the only remaining question was whether his refusal to cancel the deportation order was one which in the circumstances it could be said no reasonable officer would refuse to do. This understandably would be a high onus for a plaintiff in judicial review to discharge. The present case is different. Here Mr Casson’s failure to have proper regard to all the relevant factors means that the decision has not progressed to the stage where its reasonableness can properly be assessed. The absence of adequate information regarding the health care system available to Mr Nair’s children in Gujarat means that as matters stand there is nothing from which the Court could infer as to whether a properly informed immigration officer, who had otherwise discharged the requirements for his decision-making, could have only come to a decision to cancel the deportation order.
Result
[60] I direct pursuant to s 8 of the Judicature Amendment Act that Mr Nair is not to be deported from New Zealand until the substantial hearing of his judicial review proceeding in this Court is determined.
41 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 17, at [66].
[61] The substantial hearing needs to proceed expeditiously. To progress matters it is to be listed in the judicial review list at 9am on Thursday 10 March 2016 for timetabling orders that will enable the proceeding to be heard at the earliest opportunity.
[62]The parties have leave to file memoranda as to costs.