Saw v Minister for Immigration - [2024] NZHC 834

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-200

[2024] NZHC 834

BETWEEN
STANLEY SAW

First Applicant

AND

HLA AYE

Second Applicant

AND

SU DALI THAN

Third Applicant

AND

WIN TUN

Fourth Applicant

AND

SWAM MYAING

Fifth Applicant

AND

MINISTER FOR IMMIGRATION

First Respondent

AND

CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT

Second Respondent

Hearing: 16 April 2024

Appearances:

S M Lowery and J Suyker for the Applicants

A L Martin, E G R Dowse and F J Richards for the Respondents

Judgment:

17 April 2024

JUDGMENT OF PALMER J

(Reasons)

Solicitors:
Russell Legal, Auckland Crown Law, Wellington

SAW v MINISTER FOR IMMIGRATION [2024] NZHC 834 [17 April 2024]

What happened?

Myanmar

[1] On 18 and 19 April 2024, New Zealand is hosting the ASEAN (Association of Southeast Asian Nations) New Zealand Dialogue. The Dialogue is an annual consultative meeting of New Zealand and ASEAN senior officials. ASEAN expects all member states to be invited to participate in such events and activities. To deny representation could jeopardise the conduct of the meeting, impact members’ willingness to participate, and detrimentally impact New Zealand’s standing with ASEAN. So New Zealand has invited Myanmar to nominate representatives to attend.

[2] This would be the first time a Myanmar official has been hosted in New Zealand since the February 2021 coup d’etat by the military junta in Myanmar. The evidence before me indicates the junta is responsible for well documented, widespread and systematic human rights violations and crimes against humanity. Immediately after the coup, New Zealand announced a package of restrictions limiting future diplomatic engagement with the junta. That included targeted travel bans on individuals who were involved in, or associated with, the coup and/or have direct responsibility for human rights violations in Myanmar. New Zealand has since issued a number of statements expressing concern about the situation in Myanmar. On each anniversary of the coup, New Zealand has imposed further travel bans on current and former members of the Myanmar State Administrative Council.

[3] There is understandable concern about the situation in Myanmar amongst the Myanmar community in New Zealand. Mr Stanley Saw, the first applicant, came to New Zealand from Myanmar in 1977. His evidence is that the possibility a representative of the junta will come to New Zealand has caused an outcry amongst the Myanmar communities in New Zealand. There have been protests. The concern is that admitting representatives of the junta would legitimise the junta.

The applications for judicial review and interim orders

[4] On Monday 15 April 2024, Mr Saw, and the other four applicants who are all refugees from Myanmar, filed an application for judicial review. They sought to

review what they understood to be a government immigration decision, or imminent decision, to grant visa(s) to representative(s) of the Myanmar junta to enter New Zealand to attend the Dialogue meeting. They challenged the decision on the grounds it is unlawful, fails to consider relevant considerations, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 834
Decision Date: 17 April 2024

CaseChat Overview and Summary

The applicants in Saw v Minister for Immigration are five refugees from Myanmar, who sought judicial review of an alleged immigration decision to grant a visa to a representative of the Myanmar military junta. They also sought interim orders preventing the Minister from granting a visa to any representative of the Myanmar Government until the substantive application was determined. The respondents are the Minister for Immigration and the Chief Executive of the Ministry of Business, Innovation and Employment. The applicants challenged the decision on the grounds it was unlawful, failed to consider relevant considerations, and was unreasonable. The applicants argued the decision would legitimise the Myanmar junta, which has committed widespread human rights violations. The Court had to decide whether it was necessary to grant interim orders to preserve the applicants' position. The Court considered the strength of the underlying claim, the private and public repercussions of granting interim relief, and whether the applicants' position could be preserved without granting interim orders. The Court concluded that there was no evidence to support the existence of any problem with the accreditation of the Myanmar diplomat. The Court could not proceed on the basis that the applicants should be restored to a position they would have been in but for the alleged unlawfulness regarding accreditation, when there was no evidence to support that alleged unlawfulness. Accordingly, the Court declined to grant the interim orders. The applicants did not know the legal and factual basis for the decision until the Crown explained it immediately before the hearing. The Court was inclined to let costs lie where they fell for the application for interim orders. The applicants were given 15 working days to file a memorandum of counsel about whether they propose to pursue the substantive application for judicial review, amending the statement of claim if necessary.

Orders