Ning v Minister of Immigration
[2016] NZHC 697
•15 April 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-2173 [2016] NZHC 697
UNDER the Judicature Amendment Act 1972 BETWEEN
FEIFEI NING Applicant
AND
MINISTER OF IMMIGRATION Respondent
Hearing: 23 March 2016 Appearances:
O Woodroffe and J Ussher for the Applicant
B Charmley and N Fong for the RespondentJudgment:
15 April 2016
JUDGMENT OF THOMAS J
This judgment was delivered by me on 15 April 2016 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Woodroffe Lawyers, Auckland. Crown Law, Wellington.
FEIFEI NING v MINISTER OF IMMIGRATION [2016] NZHC 697 [15 April 2016]
Introduction
[1] The applicant, Ms Feifei Ning, seeks judicial review of the decision of the respondent, the Minister of Immigration or his delegate, under s 378 of the Immigration Act 2009 (the Act).
[2] Ms Ning had requested that the Minister make a special direction that she receive a residence visa to allow her to stay in New Zealand with her son, a New Zealand citizen. Following some correspondence with delegates of the Minister, she was informed on 24 August 2015 that the Minister had declined to intervene in her case.
[3] Ms Ning now seeks to review that decision. She claims it was unreasonable, took into account irrelevant considerations and failed to take into account relevant considerations, including relevant international treaties and conventions such as the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Convention on the Rights of the Child (UNCROC), and is invalid or a nullity.
Factual background
[4] Ms Ning was born in China, and married a New Zealand citizen on
31 January 2013. She joined him in New Zealand and was granted temporary visas to stay in New Zealand. She subsequently lodged an application for residency in New Zealand under the family partnership instructions. She gave birth to a son, the child of her husband, on 26 November 2013.
[5] On 30 December 2013, the couple separated, and Ms Ning’s husband withdrew his support for her residency application. This meant that she could no longer meet the requirements for a residence visa and on 14 February 2014, she withdrew her application for residency.
[6] In January 2014, Ms Ning’s husband filed an application in the Family Court for non-removal of their child from New Zealand. The Family Court granted that order.
[7] In April 2014, Ms Ning applied for parenting orders in the Family Court. On
15 July 2014, the Family Court made an interim parenting order granting day-to-day care of the child to Ms Ning, and providing interim contact to the father. A final order to that effect (until the child turns 16) was made on 4 November 2014. The application was primarily resolved by way of joint memoranda as to the custody arrangements which were adopted by the Court.
[8] In the interim, on 4 February 2014, Ms Ning applied for, and was issued, a 12 month visitor visa as an exception to the relevant Immigration New Zealand instructions. On 27 November, Ms Ning lodged an application for a work visa. A further 12 month work visa was issued on 8 December 2014, also as an exception to the relevant instructions.
[9] In February 2015, Ms Ning applied to the Associate Minister of Immigration for a residence visa pursuant to s 378 of the Act, on the grounds of exceptional circumstances.
[10] Subsequently, on 13 May 2015, the designated decision-maker on behalf of the Associate Minister, Mr Steve Cantlon, contacted Ms Ning to ask whether she had applied to discharge the order preventing her son’s removal from New Zealand, and, if not, why not. Ms Ning’s lawyers responded, stating that it was considered to be in the child’s interests to remain in New Zealand, with his mother accompanying him.
[11] As Mr Cantlon went on leave, the request was considered by another immigration official and designated decision-maker, Mr Arron Baker. By letter of
19 August 2015, Mr Baker declined to exercise his discretion to intervene. He gave no reasons for his decision, consistent with s 11 of the Act. The letter was issued under the name of Mr Cantlon. By his affidavit, Mr Baker stated that he signed under Mr Cantlon’s name in order “merely to avoid unnecessary delay in having the letter changed and reprinted, in order to expedite a timely response to the request.”
[12] Subsequent to the decision, Ms Ning has been issued a two year work visa as an exception to the immigration instructions, valid until 26 January 2018. She therefore remains legally in the country until then.
Legal context for decision and appropriate standard for review
[13] The Crown says that, although the request was purportedly made under s 378 of the Act, that provision does not contain the power to give special directions regarding residence visas. Instead, the decision was considered under s 72 which allows the Minister or delegate to grant residence visas as an exception to the residence instructions.
[14] Section 378 of the Act provides:
378 Special directions
(1) The Minister may give to the chief executive or any other immigration officer, either in writing or orally, a special direction, in relation to any matter for which such a direction is contemplated by any provision of this Act or of regulations made under this Act, in respect of—
(a) any person, visa, or document; or
(b) any 2 or more persons, visas, or documents where by reason of any specific event, occurrence, or unusual circumstances there is a common link between those persons, visas, or documents.
(2) The Minister may give in writing a special direction—
(a) waiving the requirement to hold a visa permitting travel to New Zealand in relation to any class of persons, in accordance with section 69(2)(a):
(b) suspending, under section 69(2)(b), a visa waiver made in accordance with section 69(1):
(c) classifying persons to whom a transit visa waiver applies, in accordance with section 86(4)(a):
(d) suspending, under section 86(4)(b), a transit visa waiver made in accordance with section 86(2)(a).
(3) A special direction comes into force on the day on which it is made, or any later date specified in the direction.
(4) Where a special direction is given orally, the chief executive or immigration officer must as soon as possible make a written record of the content and date of the direction.
(5) A special direction may be subject to such conditions as the Minister thinks fit.
(6) A special direction may revoke or amend any previous special direction.
(7) Nothing in this section limits or affects the powers of the Minister to give all such instructions to the chief executive as the Minister thinks fit in the ordinary course of the administration of the immigration portfolio and of this Act.
(8) The decision whether to grant a special direction is in the absolute discretion of the Minister.
(9) A special direction is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act, unless this Act otherwise provides.
[15] Section 378 of the Act gives the Minister the right to issue special directions to the chief executive or any other immigration officer in relation to any matter for which such a direction is contemplated by the Act, which may relate to any person, visa or document. The Minister’s discretion as to the type of special direction he or she can give is very broad. The decision whether to grant a special direction is in the absolute discretion of the Minister.
[16] Section 72 of the Act provides:
72 Decisions on applications for residence class visa
(1) Where the Minister or an immigration officer makes any decision in relation to an application for a residence class visa, that decision must be made in terms of the residence instructions applicable at the time the application was made and any discretion exercised must be in terms of those instructions.
(2) No application for a residence class visa that is received by an immigration officer may be referred to the Minister for decision at first instance, unless the Minister gives a special direction to that effect.
(3) Nothing in this section prevents the Minister, in his or her absolute discretion, from making any decision to grant a residence class visa as an exception to residence instructions in any particular case.
[17] Section 72(3) gives the Minister, in his or her absolute discretion, the ability to make any decision to grant a residence class visa as an exception to residence instructions in any particular case.
[18] Whether the request should be addressed under s 72 or 378 is not a significant one for the purpose of this application, as the same standard of absolute
discretion applies to the Minister’s decision in both cases. However, it is apparent that the relevant section in this case is s 72(3).
[19] Section 11 defines absolute discretion in the context of the Act. It provides:
(1) 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
…
[20] In Cao v Ministry of Business, Innovation and Employment, Fogarty J
discussed absolute discretion as follows:1
[37] As I have already observed, absolute discretion is defined in s 11. But it falls short of enabling the decision maker to be irrational. The common law requires all persons exercising government power to exercise the powers in good faith and for their proper purpose. As I have already referred to, Ms Longdill [for the Ministry] agrees that there is no privative clause. There is no such thing as an unreviewable exercise of government power.
[21] In that case, Fogarty J held that s 11 did not preclude the Court from ordering the production of reasons where there was evidence that, due to internal policy, such
reasons existed:2
1 Cao v Ministry of Business, Innovation and Employment [2014] NZHC 1551, [2014] NZAR
871.
2 At [39].
Consideration of the reasons by the High Court does not thereby undermine the statutory scheme but simply performs the essential function of examining the decision to ensure that all statutory powers are exercised in good faith, for their proper purpose.
[22] Andrews J, when summarising the position on obtaining reviews of decisions
made under the exercise of the Minister of Immigration’s absolute discretion, said:3
[19] In Yure v Bentley, in the context of s 130 of the 1987 Act (the predecessor to s 378 of the Act) Chambers J said:
“It is clear from the scheme of the Act that the power conferred on the Minister is primarily intended for those situations where all else has failed from a prospective immigrant's point of view. The Minister retains a residual power to do something for someone notwithstanding the fact that the recipient has not managed to persuade any immigration officer or immigration tribunal of his or her case. It is, with respect, thoroughly sensible for parliament to have vested such a residual power in the Minister.”
[20] Chambers J went on to note that because the power given to the Minister is exceptional, Parliament has strictly limited their scope for judicial review. His Honour referred to a number of other High Court decisions where it was held:
(a) Parliament had clearly indicated in this area that “issues relating to immigration are fundamentally for the executive arm of government”, and that unless there was clear and cogent evidence that the ministerial exercise had been unlawful, the court lacked jurisdiction to intervene.
(b) A person seeking a special declaration under the predecessor to s
378 has very limited rights. The Minister's discretion is “very much a discretionary policy decision coming usually at the very end, or even outside, of any legal process, and to a large extent outside judicial review.
(c) The Minister's power is “virtually unreviewable” and in the light of “the high policy content of immigration decisions” the courts will not intervene “in the absence of clear and cogent evidence that the exercise [of the power] has been unlawful.”
[21] Similar comments have been made more recently, in the judgments of Stevens J in Kesonsung v Minister of Immigration, Venning J in Prasad v Minister of Immigration, and Woolford J in Pesamino v Minister of Immigration. It is clear, as Mr Nguy accepted on behalf of Mr Nguyen, that an applicant for judicial review of a Minister's decision in respect of a request for a special direction faces a very difficult task. As Stevens J observed in Kesonsung, the Court should be reluctant to intervene in a decision with such high policy content unless compelling grounds exist for
3 Nguyen v Minister of Immigration [2014] NZHC 2524 (footnotes omitted).
doing so, or there is clear and cogent evidence establishing the decision to be unlawful.
[23] The comments of Andrews J were made in the context of the absolute discretion in relation to special directions under s 378 of the Act, building on case law from the Immigration Act 1985. The recent cases to which she referred show that the same approach has been adopted and applied to the exercise of absolute discretion in other sections of the Act, notably s 172 which also provides for a
decision in the absolute discretion of the Minister.4
[24] Therefore, while a decision might involve absolute discretion and no requirement to provide reasons, it remains reviewable. As noted in Immigration and Refugee Law, absolute discretion does not amount to absolute power, and the provisions do not constitute privative clauses.5 The Court will still turn its mind to whether, if an official has elected to consider an application, he or she has done so according to the law and that any statutory power has been exercised in good faith and for its proper purpose.6
[25] A line of primarily High Court cases has held that where cases touch on human rights, a greater intensity of review may be required.7 Academics such as Doug Tennent have argued that, although there have been clear indications from the Courts that decisions of absolute discretion should be reviewed on a Wednesbury basis, where fundamental rights are involved or the decision impacts significantly on not just the person being deported but also his or her family, a greater intensity of review than the Wednesbury standard could be necessary.8 The author maintains that, where no reasons are given and it appears appropriate weighting has not been
given to relevant factors, the decision-maker may be more vulnerable to review.9
4 Section 172(5).
5 Doug Tennent Immigration and Refugee Law (2nd edition, LexisNexis, Wellington, 2014) at
121.
6 Kaur v Ministry of Business, Innovation and Employment [2015] NZHC 2741 at [32], citing Cao v Ministry of Business, Innovation and Employment, above n 1.
7 Wolf v Minister of Immigration [2004] NZAR 414 (HC); A v Chief Executive of the Department of Labour HC Auckland CIV-2004-404-6314, 19 October 2005 at [30]; MPR v Refugee Status
Appeals Authority [2012] NZHC 567 at [14]; and T v Immigration and Protection Tribunal [2012] NZHC 1871 at [22] and X v Refugee Status Appeals Authority (No 2) [2009] NZCA 587, per Baragwanath J.
8 Doug Tennent “Absolute discretion in immigration” [2012] NZLJ 144.
9 At 148.
However, in the 2015 Court of Appeal case Singh v Chief Executive, Ministry of Business, Innovation and Employment, the Court referred to the comments in support of that view by Baragwanath J in X v Refugee Status Appeals Authority and said:10
… his remarks are not part of the ratio decidendi of Tamil X. They are obiter observations, not supported by the other two members of that Court. Nor, to the best of our knowledge, and, we assume, counsel's, have they received subsequent endorsement.
[26] In the Singh decision, in the context of s 177 which also grants decision- makers an absolute discretion,11 the Court of Appeal approved statements of the High Court that, although immigration officers were required to have regard to any relevant international obligations, they were not obliged to give effect to those obligations in some particular way, or at all;12 and that the scope for judicial review was extremely limited to determining whether the immigration officer who made the decision took into account the international obligations relevant to the particular case.13
[27] The Court of Appeal held that, by expressly not obliging an immigration officer to give reasons for any decision, Parliament narrowed the scope of judicial review to a Wednesbury type assessment. 14
[28] It appears that there has been only one case under the Act in which judicial review of this absolute discretion was successful. In Ewebiyi v Parr, Fogarty J found that there had been an error of law in a deportation order under s 177 because the immigration officer had not taken a record of the international obligations and personal circumstance of the applicant which complied with the obligations set out
in s 177(5).15 In this case, however, s 72 applies and there is no requirement to keep
any type of record.
10 Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 at [41].
11 Singh v Chief Executive, Ministry of Business, Innovation and Employment, above n 10.
12 Citing Nair v Chief Executive of the Department of Labour [2013] NZHC 358.
13 Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29
September 2011 at [36].
14 Singh v Chief Executive, above n 10, at [64].
15 Ewebiyi v Parr HC Christchurch CIV-2011-409-2010, 7 December 2011.
[29] Although the decisions referred to related to different sections of the Act, they show the approach to judicial review in cases where there is an absolute discretion. No case has specifically examined the absolute discretion of the Minister in the context of s 72(3). However, nothing in the section suggests a different approach to reviewing the absolute discretion of the Minister would apply from that supported by the recent Court of Appeal statements. The scope of judicial review is limited to a Wednesbury assessment.
Nullity
[30] Ms Ning claims that the decision is invalid because, although Mr Cantlon was the person who initially responded to Ms Ning’s requests, the final decision refusing to intervene was in fact made by Mr Baker. Mr Baker’s letter was sent out Mr Cantlon’s name, and there was no indication that the decision-maker was a different person. Mr Baker did not “sign” the letter, he “PPed” it. This misconception was rectified only when Mr Baker provided an affidavit in support of this application. Mrs Woodroffe, counsel for Ms Ning, says that in circumstances where the decision-maker has an absolute discretion and no obligation to give reasons, it is particularly important that a decision-maker exercises his or her powers judiciously and with great care. Mrs Woodroffe says the decision, which she describes as deliberately misleading the applicant as to the person exercising the power, should not be considered valid and should be ruled a nullity.
[31] Mrs Woodroffe also submits that, given the “cavalier” approach of Mr Baker toward identifying the correct decision-maker, the Court cannot have confidence that he properly discharged his duties to Ms Ning.
[32] Ms Charmley, for the respondent, submits there is no substance to the assertions of a deliberate misrepresentation. Although the name Steve Cantlon was printed at the bottom of the letter, it was signed by Mr Baker. Ms Charmley submits this is a technical irregularity which does not go to the substance of the decision and is not of nullifying quality. Furthermore, that this does not demonstrate any lack of care in Mr Baker’s approach to the decision, pointing to his affidavit which sets out the factors and process he used to assess the application.
Analysis
[33] Decisions are typically overturned on the grounds of nullity where there is some procedural error which means the decision was not legitimately made, or was ultra vires in some manner.16 In this case, there has been no such error. Mr Cantlon and Mr Baker were both authorised to make decisions on behalf of the Associate Minister and Minister. There is no challenge to their authority as such.
[34] Rather, it is said that the decision should be considered a nullity because the identity of the decision-maker was kept from Ms Ning, as the request was purportedly heard and decided by Mr Cantlon when in fact it was Mr Baker. While there might be circumstances in which the identity of the decision-maker is central to the decision, or affects the making of the decision in some way, in this case it does not appear to have affected the decision at all. Mr Cantlon and Mr Baker were both acting in representative capacities for the Minister. There was no obligation for a certain person to hear and decide the case. It was not a decision which required a personal interview with Ms Ning, where the provision of information in a personal interview setting to an interviewer might mean that a subsequent decision by a decision-maker without the benefit of the interview was not fully informed. No prejudice has arisen through the identity of the decision-maker not being fully disclosed.
[35] Mrs Woodroffe submits the fact that no reasons have to be given means decision-makers should be held to a high standard, and the deliberate choice to misrepresent the identity of the decision-maker shows a lack of care and cavalier attitude which warrants invalidating the decision. In my assessment, it is not an error of such significance as to demonstrate a lack of care in the decision. Mr Barron’s affidavit outlines his relatively detailed and thorough approach to making decisions.
[36] There is no basis on which the decision could be considered a nullity. Although the decision-maker should properly be identified, the circumstances in this
case do not render the decision itself invalid.
16 G D S Taylor Judicial Review in New Zealand (3rd edition, LexisNexis, Wellington, 2014) at
422 – 431.
Irrelevant considerations
[37] Mrs Woodroffe submits that Mr Cantlon’s question as to whether Ms Ning had applied to discharge the non-removal order, and taking her failure to do so into account, was an irrelevant consideration. This is a reference to the question in the letter which Mr Cantlon sent Ms Ning following her request to the Minister.
[38] The Crown submits that there is nothing in the Act which prohibited the decision-maker taking into account any factor, and that inquiring into whether Ms Ning had applied to discharge the non-removal order was within his power. The inquiry is not irrelevant to the decision, and should not, therefore, be challenged.
Analysis
[39] Determining what is an irrelevant consideration requires looking at the statute to determine what, either expressly or impliedly, the decision maker is not permitted to consider in making a decision.17 This involves considering the text and purpose of the statutory provision in question.18 There are no express limits set out in s 72 and the power is expressed as being an absolute discretion. Neither does s 11 provide
any limits on the factors which can be taken into account. Section 11 in fact provides that the decision maker is not obliged, in determining the purported application, to inquire into the circumstances of the person or any other person or make any further inquiries in respect of any information provided by, or in respect
of, the person or any other person.19
[40] Given that broad discretion, the question then is whether there are any implied limits on the power. The purpose of the Act, and the context in which the power must be read, is “to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.”20 The policy
surrounding immigration decisions and the deliberate limitations placed on the scope
17 Wahrlich v Bate [1990] 3 NZLR 97, (1989) 5 CRNZ 346 (HC).
18 Buller Electricity Ltd v Attorney-General [1995] 3 NZLR 344 (HC), cited with approval in Shi v
Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZHC 1217.
19 Immigration Act, s 11(b).
20 Immigration Act, s 3.
of judicial review through concepts like absolute discretion, means that it is difficult to read in any implied limitations on the discretion of the Minister under s 72.
[41] I can see no basis on which to find that an irrelevant consideration was taken into account by the decision-maker. There was nothing which confined the considerations of the Minister or his delegate. Questions over the ongoing status of the parenting and non-removal orders were both at the heart of the application for residency. Seeking further information about them was not illegitimate.
Relevant considerations
[42] Mrs Woodroffe submits that relevant considerations were not taken into account, including the best interests of the child and the parenting order, and the requirements of the United Nations Convention on the Rights of the Child (UNCROC) and the International Covenant on Civil and Political Rights (ICCPR). She says that, although Mr Baker says he considered them, the outcome shows that he either did not or did not give them a correct weighting.
[43] Mrs Woodroffe says that, although there was no obligation to provide Ms Ning reasons for the decision, an inference should be drawn where the decision- maker chooses not to disclose its reasons that proper and cogent consideration was not given by the decision-maker. The Crown refutes that proposition, noting it has
been explicitly rejected by the High Court previously.21
[44] The Crown submits that it is clear that the materials which were considered by the decision-maker referred to the best interests of the child, the relevant parenting orders and relevant provisions of treaties such as UNCROC and the ICCPR. All were considered in coming to the decision. Any direct breaches or inconsistencies with those international treaties were not relevant, as they are not applicable New Zealand law but simply relevant considerations.
[45] Mrs Woodroffe then refers to the second affidavit filed by Mr Baker which provided a further document which he said he had considered when making the
21 Pesamino v Minister of Immigration [2012] NZHC 4.
decision. Mrs Woodroffe points out that, in his original affidavit, Mr Baker said he specifically remembered making this decision and listed documents he had taken into account when making the decision. In Mrs Woodroffe’s submission, that Mr Baker apparently overlooked or failed to recall an important briefing memorandum is completely at odds with his claim that he specifically remembers making the decision in question. It follows, in her submission, that the respondent’s assertion that Mr Baker took into account all relevant considerations cannot be believed, as it is misleading and factually wrong.
Analysis
[46] In the absence of reasons, it is difficult to determine what has been considered and what has not. However, this does not lead to the inference that the decision has been made without requisite consideration. That would undermine the clear statutory policy of allowing decisions to be made and issued without reasons. If there were no reasons, and the information provided as to what was before the decision maker showed there was no reference to, for example, international obligations, an inference that the decision was made without requisite consideration could be sustained.
[47] In Pesamino v Minister of Immigration, Woolford J said:22
The Minister did not give reasons for his decision. He had no obligation to do so. But it is clear that the interests of the children had been prominently placed before him and the only reasonable inference available is that the Minister did take the interests of the children into account, and yet came to the decision that he did.
[48] The same inference can be drawn here. In this case, the information provided by the respondent, particularly as to the materials which underpinned Mr Baker’s decision-making process, specifically refers to the issues raised by the applicant. The fact he was obliged to take into account, as an important consideration, the best interests of the child, was specifically mentioned in the case note prepared by Immigration New Zealand. Similarly the case note, and 3Mr Canton’s inquiries as to the position in the Family Court, shows he considered the parenting order. That
information was all provided to Mr Baker.
22 Pesamino v Minister of Immigration, above n 21, at [23].
[49] I accept that the tone of the enquiry as to whether Ms Ning had applied to have the removal order discharged suggests it was in the decision-maker’s mind that Ms Ning could return to China with her son. I also accept that, other than the general comment in the application that Ms Ning considered it to be in her child’s best interests for them both to remain in New Zealand with the child’s father, there was no evidence before the decision-maker as to how the child would fare in China. There was no evidence as to his status in China, given that he is a New Zealand citizen. However, s 11 of the Act specially provides that there is no obligation on the decision-maker to enquire into the circumstances involved in the application in any way, which must mean the onus is on an applicant to put forward all the material the applicant contends is relevant. There was no obligation on the decision-maker to enquire into the ramifications of Ms Ning returning to China with her son.
[50] I accept that the role of the family is recognised in Articles 17 and 23 of the ICCPR, and Articles 3 and 9 of the UNCROC in particular, and those are relevant considerations in this case. Again, however, the relevant information was before the decision-maker and the only reasonable inference available is that he took those matters into account yet came to the decision he did.
[51] The challenge to the weighting given to the various considerations is, as correctly identified by the Crown, not a question for this Court on judicial review. The Court is concerned only with whether all relevant considerations were taken into account. On the information provided, they were.
[52] I agree that the situation pertaining to Mr Baker’s two affidavits is less than ideal. When giving an affidavit for the purposes of a judicial review proceeding, a high degree of care is required. While I accept that the document annexed to Mr Baker’s second affidavit is a briefing paper addressed to him rather than Mr Cantlon, the fact remains that it contained neither information in addition to that contained in the material listed in his first affidavit, nor any correction or amendment of the earlier information.
Reasonableness
[53] In relation to the reasonableness of the decision, Mrs Woodroffe submits that the decision-maker was required to treat the best interests of the child as a primary consideration and to weigh them against the other factors in making a decision.23
She says it was unreasonable of the decision-maker not to defer to the specialist knowledge of the Family Court as to what was in the best interests of the child. This was particularly the case, in Mrs Woodroffe’s submission, given that there were no evident countervailing factors which would outweigh the interests of the child.
[54] Although there is the possibility of Ms Ning gaining ongoing temporary visas to remain in New Zealand, Mrs Woodroffe submits it is unreasonable to rely on such an approach as it will not give any degree of stability to Ms Ning or the child. Furthermore, she says the decision was unreasonable because there is nothing to suggest Ms Ning poses any risk to New Zealand, she would have received residency but for her separation from her husband, and the potential effect of Ms Ning being removed from New Zealand would be devastating.
[55] Mrs Woodroffe also submits that the starting point should be that there must be compelling reasons, or new information or evidence to justify a conclusion that the best interests of the child were different from the assessment of the Family Court. Nothing suggests that such a conclusion was reasonable, she says.
[56] Ms Charmley submits that the limited scope of review is reflected in the fact there is no statutory obligation to give reasons for the decision, which limits any inquiry into the decision’s merits, and in the fact that immigration decisions are highly policy based and fundamentally executive in nature. Furthermore, the high Wednesbury standard of review is appropriate as the context of the decision does not require a proportionality standard, since it does not ultimately determine whether Ms Ning can remain with her son since she may well be issued continuing temporary
visas as exceptions to instructions.
23 Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 (CA).
[57] Therefore, in Ms Charmley’s submission, the decision cannot be seen as unreasonable on a Wednesbury standard. Unlike the Family Court, the best interests of the child are not paramount, and there is no basis for the parenting order being determinative of immigration decisions. The child’s best interest is just one important factor, amongst others. The Courts have previously specifically rejected the view that the interests of the child and the Care of Children Act are automatically determinative of decisions in an Immigration Act context. Obtaining a parenting order, particularly via consent, should not be a means of bypassing assessments under the Act.
Analysis
[58] As outlined above, there is a high bar to challenging the reasonableness or otherwise of the Minister’s decision. The respondent’s submission that the decision cannot be challenged unless the decision was so unreasonable that no decision- maker, acting reasonably, could have arrived at that decision, with the decision “outside the limits of reason”, is a fair assessment of the Wednesbury standard.
[59] In this case, the primary basis on which it is submitted that the decision- maker was unreasonable is the weighting given to the best interests of the child. It is said that it would be unreasonable for the designated decision-maker not to place significant weight on the determination of the Family Court with regards to the best interests of the child, and to require Ms Ning’s separation from her child.
[60] Mrs Woodroffe says she is not seeking that the Family Court decision should somehow pre-empt that made under the Act. In her submission, it is the context of all circumstances which was relevant. Given that the interests of the child are a primary consideration and given the absence of any countervailing circumstances, including the applicant lawfully being in New Zealand, it must mean, Mrs Woodroffe says, the decision was unreasonable in the Wednesbury sense.
[61] The other matters raised by Ms Ning are issues which, she says, make it unreasonable for the decision-maker to have come to the end decision reached. These are, that the decision means that Ms Ning’s ability to remain in New Zealand with her son is now precarious, as ongoing temporary visas are discretionary, and she
now has no long-term stability or means of planning for her future. The potential future effect of refusing visas would be devastating to her and her child.
[62] That the designated decision-maker did not defer to the Family Court’s view as to the best interests of the child is not unreasonable. In fact, it would be an abdication of his independent assessment function if the Family Court’s parenting orders, based on the perceived best interests of the child in isolation from other concerns, could have an immutable importance in the very distinct immigration context. Parenting orders under the Care of Children Act 2004 centre on the best
interests of the child in a way which immigration decisions do not.24 The fact that
these considerations were not seen as the dominant interest, trumping all others, does not show that the decision was unreasonable.
[63] It is well established that the best interests of the child do not take priority over all other considerations. The Supreme Court in Ye v Minister of Immigration confirmed the Court of Appeal’s decision that the best interests of the child must be “a primary consideration” (rather than the primary consideration) in accordance with art 3(1) of UNCROC, when making decisions on humanitarian appeals under the Act. The Court also said:25
It is appropriate, in the light of New Zealand’s obligations under art 3(1), to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes. The words “a primary consideration” in art 3(1) do not denote how this consideration ranks against any other relevant consideration such as the public interest. The child’s interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test.
(emphasis added)
[64] Ye is the leading decision in this area. In the context of decisions to deport under s 177 of the Act, the Court of Appeal has recently reaffirmed the sentiment in
Ye that, in an immigration setting, other considerations such as the public interest
24 Care of Children Act 2004, s 4(1)(a); see by contrast Huang v Minister of Immigration [2007] NZAR 163 (HC) at [72], for example.
25 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [25].
may be no less important than the child’s interests.26 Furthermore, the Court held that, as an officer deciding whether to deport an individual under s 177 is not required to apply any particular test, it must follow that he or she need not attach particular weight to any given international obligation.27
[65] Therefore, the weight given to considering the best interests of the child is generally within an immigration officer’s – and therefore a designated decision maker of the Minister’s – discretion.
[66] In his first affidavit, Mr Baker said that he “took into account” the information contained in the documents listed by him (supplemented by the document annexed to his affidavit of 17 March 2016). He also described his decision making practice in the following terms:
When making decisions on these requests, my practice is to consider all the information provided in the request for intervention, the full history of the case, the case note prepared by INZ (which sets out the relevant issues of the case), the relevant Government Immigration instructions, legislation, regulations, and international obligations, the nature of the request for intervention and, if applicable, the best interests of the child.
I have been briefed on the role of international obligation in making Immigration – related decisions, including attending legal briefings on topics such as the United Nations Convention on the Rights of Child. As is my usual practice, I take these obligations into account when making any such decisions.
[67] In this case all the material provided by the applicant was before the decision maker, and he was not obliged to make any further enquiries.
[68] Ms Woodroffe submits that it was pure speculation for the Crown to say there were any countervailing factors against granting Ms Ning residency, and that the matters referred to in the affidavit did not list any factors relevant to Ms Ning. This, however, is when policy considerations come into play.
[69] Bearing in mind the high standard of review, although a reasonable decision- maker might have come to a different decision weighing all the factors, the argument
26 Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37, [2014] 2 NZLR 662 at [15], citing Ye v Minister of Immigration, above n 25, at [24] – [25].
27 At [28].
for Ms Ning being granted a residency visa is not so compelling that the refusal to grant her one is necessarily unreasonable. The decision, to be reviewable on grounds of Wednesbury unreasonableness, must be at a level at which no reasonable person could come to it. Although Ms Ning’s position is compelling, her case does not meet that standard.
[70] The only inference available from Mr Baker’s affidavit evidence is that he treated the child’s best interest as a primary consideration but, in his discretion, decided the national interest must prevail. As the Court of Appeal observed in the Singh decision:28
A Court cannot not inquire further. In the circumstances, applying the
Wednesbury approach it cannot be said “there could be only one answer”.
[71] Given the high policy context of the decision and in the absence of clear and cogent evidence demonstrating the decision was unlawful, the Court cannot intervene.
Name suppression
[72] Ms Ning also says that the identities of her child, herself and her husband should be anonymised, consistent with the principles underlying the Care of Children Act 2004 and ss 11B to 11D of the Family Courts Act 1980. This is opposed by the respondent, who says that the test for civil name suppression has not been made out.
Analysis
[73] The test for civil name suppression has typically required exceptional circumstances to warrant suppression. Although the Court of Appeal judgment Jay v Jay doubted the stringency of this test, more recent judgments have still required a
compelling reason to justify name suppression in civil cases.29 That any exceptions
28 Singh v Chief Executive, above n 10, at [66].
29 Musuku v Commissioner of Inland Revenue [2015] NZHC 1584, (2015) 27 NZTC 22-015 and Y
v Attorney-General [2015] NZHC 844; Fisk v Name Suppressed [2015] NZHC 827 at [12].
to the principle of open justice are only warranted if necessary in the interests of justice has recently been confirmed by McIntosh v Fisk in the Court of Appeal.30
[74] There are no compelling reasons which justify name suppression for Ms Ning in this case. She has engaged in a public review of the decision of the Minister, to which the principles of open justice apply. There are many other immigration cases relating to the status of children in relation to their parents, in which the children are named.31
[75] Although the child’s name would be suppressed in the Family Court, determining the current application will not require any personal details about the nature of the dispute to be revealed. A very different context applies to decisions under the Act as opposed to those in the Family Court. Furthermore, I note that the child has the surname of his father, which has not been referred to in this decision.
[76] I see no justification for departing from the principle of open justice in this case.
Result
[77] For the reasons given, the application is dismissed.
[78] Costs are reserved. Any application by the respondent is to be filed and served within 21 days of this decision, with any reply 14 days thereafter.
Thomas J
30 McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189.
31 See, for example, Singh v Minister of Immigration [2011] NZCA 532.
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