Singh v Associate Minister of Immigration
[2018] NZHC 44
•1 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1374 [2018] NZHC 44
BETWEEN JATINDER SINGH
Applicant
AND
THE ASSOCIATE MINISTER OF IMMIGRATION
Respondent
Hearing: 8 and 13 December 2017 Appearances:
R J Hooker for the Applicant
S M Earl for the RespondentJudgment:
1 February 2018
JUDGMENT OF MUIR J
This judgment was delivered by me on Thursday 1 February 2018 at 3.30 pm
Pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:…………………………
Solicitors/Counsel:
R J Hooker, Vallant Hooker, Auckland
S M Earl, Meredith Connell, Auckland
SINGH v THE ASSOCIATE MINISTER OF IMMIGRATION [2018] NZHC 44 [1 February 2018]
Introduction
[1] The applicant (Mr Singh) seeks judicial review of a decision of the then Associate Minister of Immigration, the Hon Scott Simpson (the Minister), declining a request that he be granted a work visa based on his relationship with a New Zealand citizen, Ms Muilolo Iefata.
[2] At the commencement of the hearing Mr Hooker, for Mr Singh, sought an adjournment on the basis of an intended amendment to his client’s statement of claim. I adjourned the proceeding to 2 pm to allow preparation of a draft amended pleading. I granted leave in terms of the draft and established that the respondent was content for the matter to proceed on the amended pleading. I determined that because the amendment raised no additional issues of fact and could be addressed by way of legal submission no further adjournment beyond 2 pm was necessary.
[3] Because the argument was unable to be completed on 8 December 2017 the matter resumed, part-heard, on 13 December.
[4] In terms of the amended pleading Mr Singh alleges:
(a) the Minister’s decision was unreasonable in a Wednesbury sense,1
having been based on a briefing paper which inter alia;
(i)failed to take into account New Zealand’s international obligations under the International Covenant on Civil and Political Rights (ICCPR);2 and
(ii)was premised on the assumption that the applicant and his partner had provided false and misleading information to
Immigration New Zealand (INZ) when that was not the case;
1 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).
2 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16
December 1966, entered into force 23 March 1976).
(b)the Minister failed to take into account relevant factors in that declining to intervene constituted an unlawful interference with family life and a breach of the ICCPR; and
(c) illegality based on the fact that the briefing paper provided to the Minister posited as one of two options available to him the grant of a work visa under s 61 of the Immigration Act 2009 (the Act) when that could not lawfully occur without prior cancellation of an existing deportation order. Mr Singh’s claim is that the paper should have identified as the Minister’s options either a special direction pursuant to s 378 of the Act to cancel the deportation order under s 177 or alternatively non-intervention and, if the former, that the Minister would then be obliged to have regard to the ICCPR, which it is alleged he did not.
Background
[5] Mr Singh is an Indian national. On 30 April 2013 he was granted a student visa to study a Diploma in Business Management which was valid until 30 June 2014. He arrived in New Zealand on 21 May 2013. Subsequently, he was granted two further student visas for a National Diploma in Business, the second of which was valid until
30 September 2015.
[6] On 24 September 2015 he was granted a 12-month graduate job search work visa.
[7] On 15 August 2016 he applied for a work visa under partnership instructions on the basis of his relationship with Ms Iefata.
[8] On 2 September 2016 a “Potentially Prejudicial Information” (PPI) letter was issued stating that INZ was not satisfied that the couple were living together in a genuine and stable relationship. In response Mr Singh provided a letter from Ms Iefata along with various supporting documents and photos.
[9] On 25 September 2016 Mr Singh’s graduate job search visa expired and he was issued with an interim visa pending the outcome of his work visa application. This interim visa was due to expire on 25 March 2017.
[10] On 21 November 2016 Mr Singh and Ms Iefata were interviewed by INZ, as a result of which INZ issued a second PPI letter identifying a number of additional concerns.
[11] On 29 November 2016 Mr Singh sent a response to INZ stating that he wished to withdraw his application, but on 5 December an advisor acting for him reversed that position and sought an extension to 16 December to respond to the second PPI letter. An extension was granted to 12 December. No substantive reply was received by that date and on 14 December Mr Singh’s application for a work visa was declined on the basis that INZ was not satisfied that he had met the partnership requirements.
[12] On 15 December 2016 Mr Singh provided a letter addressing some of the issues raised in the second PPI. He stated that he thought he had deleted his prior Facebook account after coming to New Zealand and that he had opened a new account after commencing his relationship with Ms Iefata. In respect of Ms Iefata’s second letter of support it had, he said, been “written with friends” who “helped her in typing the letter” and that she “was aware of what was written in the letter and had eventually signed it”.
[13] However, since Mr Singh’s application for a work visa had already been declined he became unlawfully present in New Zealand as at 16 December 2016.
[14] On 26 January 2017 he appealed his deportation liability to the Immigration and Protection Tribunal (IPT). On 2 February 2017 he made a request for a work visa, which was refused on 14 February. On 28 February he made a similar request supported with a lengthy letter by his then solicitor Ms Zhou. In its terms this letter sought a “Special Direction pursuant to section 378 of the Immigration Act 2009” to “issue our client a work visa”. However, since by that stage Mr Singh was unlawfully in the country and could not, by virtue of s 20 of the Act, apply for a work visa, no
such special direction could be given. The application was therefore treated as one under s 61 of the Act for the ministerial grant of a visa.
[15] Ms Zhou’s correspondence included a number of supporting documents directed to the genuineness and stability of the relationship, emphasised New Zealand’s obligations under the ICCPR and drew the Minister’s attention to several English and European authorities relating to the importance of a right to family life.
[16] On 2 March 2017 Mr Singh was advised that the Minister would not consider the application until resolution of the appeal before the IPT.
[17] On 23 March 2017 the IPT declined Mr Singh’s appeal.3 It concluded that it was possible the couple were living together in a genuine relationship, however in view of its short duration and the limited evidence that had been produced it was not in a position to assess its stability. It noted, however, that being in a genuine or even a genuine and stable relationship was not in itself an exceptional circumstance of a humanitarian nature so as to justify the granting of the appeal. Accordingly, the appeal was dismissed.
[18] On 30 March 2017 Mr Singh’s solicitors requested the Minister to proceed with determination of the application filed on 28 February.
[19] On 10 April 2017 Mr Singh and Ms Iefata were married and on 13 April confirmation of that was provided to the Minister.
[20] On 10 May 2017 the applicant was sent a deportation order by post which was deemed to have been served on 17 May.
[21] On 6 June 2017 the Associate Minister responded to the request of 28 February
2017 in terms advising that he was not prepared to intervene. His letter recorded that:
As section 11 of the Immigration Act 2009 applies, I am not obliged to give reasons for my decision.
What was before the Minister?
[22] The request before the Minister was that of Ms Zhou dated 28 February 2017 to:
… give Immigration New Zealand a Special Direction pursuant to section 378 of the Immigration Act 2009 (“the Act”) to: issue our client a Work Visa under the Partnership Category of Immigration Instructions to enable him to remain in New Zealand with his partner, Ms Muliolo Ellerton Iefata, a New Zealand citizen.
(Emphasis added)
[23] However, at the time that request was made Mr Singh was already unlawfully in the country. He had been since 16 December 2016, following the decision to decline his work visa application on 14 December. As a result, s 20 of the Act applied in terms:
20 No right for person unlawfully in New Zealand to apply for visa
No person who is unlawfully in New Zealand may apply for a visa and where any such person purports to apply for a visa, it is a matter for the absolute discretion of the Minister.
[24] That absolute discretion is contained in s 61 which provides:
61 Grant of visa in special case
(1) The Minister may at any time, of the Minister’s own volition, grant a visa of any type to a person who —
(a) is unlawfully in New Zealand; and
(b) is not a person in respect of whom a deportation order is in force; and
(c) is not a person in respect of whom a removal order is in force. (2) A decision to grant a visa under subsection (1) is in the Minister’s
absolute discretion.
[25] I accept Ms Earl’s submission that the scheme of the Act does not contemplate the granting of a special direction to issue a work visa in respect of a person unlawfully in the country; rather, any such request is a matter for exercise of the s 61 absolute discretion. That is the basis on which the Minister considered the request of 28
February 2017, adopting, correctly in my view, a substance over form approach.
[26] An added complication in this case was that by the time the Minister came to consider the request (his consideration having been deferred until after the IPT decision), a deportation order was in force in respect of Mr Singh. Section 61(1)(b) therefore prevented the Minister from exercising his absolute discretion to grant a visa.
[27] It is for that apparent reason that the briefing paper submitted to the Minister posited as the first of two alternatives available to him:
A) Cancel Mr Singh’s deportation liability. Set aside concerns regarding his provision of false and misleading information to INZ during the course of his application for a partnership-based work visa in 2016. Grant Mr Singh a six month open work visa under s 61, subject to him meeting health requirements for temporary entry, and otherwise meeting character requirements and Ms Iefata supporting the request.4
[28] Ms Earl submits and I accept that a deportation order is premised on a deportation liability which arises either because a person has been issued with a deportation liability notice under s 170(1) or is otherwise liable for deportation on the grounds that they are unlawfully in the country (s 170(2)).
[29] The ability of the Minister to cancel a deportation liability arises under s 172, which provides in subsection (1) that:
The Minister may at any time, by written notice, cancel a person’s liability for deportation.
[30] Pursuant to subsection (2A) that power may be exercised whether or not the person who is liable for deportation has “purported to apply to the Minister for any other reason”, so it was appropriate in this case for the Minister to consider such a cancellation in the context of a parallel request to issue a work visa.
[31] Ms Earl submits that once a deportation liability has been cancelled by the Minister any deportation order which may, in the interim, have been served under s 175 “loses all efficacy” and must be considered as a matter of law cancelled. Because a deportation order is necessarily premised on a deportation liability I incline to that view irrespective of whether an immigration officer effects the administrative step of formally cancelling the deportation order under s 177 of the Act. So, says Ms
Earl, the Minister was at liberty to cancel Mr Singh’s deportation liability and “in the same breath” grant him a work visa.
[32] By contrast Mr Hooker submits that what is required is a s 378 special ministerial direction to an immigration officer to cancel the deportation order under s 177 and only then could a work visa be granted under s 61. And since s 177(3) requires an immigration officer who is considering cancelling a deportation order to have regard to relevant international obligations, he says that the Minister must do likewise in considering whether to give a special direction.
[33] The difficulty with this submission is, however, that special directions can only be issued under s 378 where such direction is “contemplated” by a provision of the Act.5 As noted by Hinton J in Kaur v Ministry of Business Innovation and Employment, sections where special directions are contemplated include ss 17, 45, 50,
51, 53, 69, 72, 86, 94, 95, 101, 103 and 108.6 Section 177 does not contemplate a
special direction cancelling a deportation order. The Minister’s powers are those under s 172 to cancel the liability for deportation. And s 172 does not in its terms contain an equivalent requirement to have regard to “relevant international obligations”.
[34] To some extent these issues are, in my view, a distraction from the key inquiries in this case. Of the two options presented to the Minister, he adopted Option B and declined to intervene. Irrespective of whether he could grant a work visa upon cancellation of Mr Singh’s deportation liability and without prior cancellation of the order, that was what was put to him as Option A. There was no suggestion in the way the option was described that it raised any attendant difficulty under s 61(1)(b) such as might have influenced the Minister to adopt Option B. Option A was advanced as a simple two-stage process involving cancellation of the liability and grant of a work visa (the latter necessitating a setting aside of the “concerns” identified). Despite that, the Minister adopted Option B. In my view the principal focus must be on the
rationality of that decision.
5 See s 378(1).
6 Kaur v Ministry of Business Innovation and Employment [2016] NZHC 2595 at [23].
The scope of review
[35] As already noted, the Associate Minister’s power to grant a visa under s 61 was one in his “absolute discretion”. The same “absolute discretion” applies in relation to several other powers within the Act, as for example an immigration officer’s power to cancel a deportation order under s 177 and the Minister’s power under s 72 to grant a residence class visa as an exception to residence instructions in any particular case.
[36] The term “absolute discretion” is defined in s 11 in the following terms:
11 Meaning of absolute discretion of the decision maker
(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
(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.
(2) Subsection (1)(c)(ia) applies to any decision made in relation to a purported application, whether the decision was made before or after the commencement of that subsection.
[37] At least one academic has argued for a greater intensity of review where fundamental human rights are involved or the decision impacts not just the applicant but also his or her family,7 and Baragwanath J gave some support for that view in Tamil X v Refugee Status Appeals Authority.8 However, the Court of Appeal in Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment subsequently observed that:9
… 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.
[38] In the recent decision in Zhang v Associate Minister of Immigration, the Court of Appeal in turn confirmed that although a decision in the exercise of an absolute discretion remains reviewable, effectively the only ground for review that is permitted is unreasonableness in a Wednesbury sense.10 The Court stated:
[23] Mr Burrows, pursuant to s 61 of the Act, was exercising an absolute discretion. Pursuant to s 11 of the Act, he was not obliged to give reasons for his decision. His only obligation when giving his decision was to note that s 11 applied. Therefore, the availability of judicial review as a remedy is very limited. Effectively, the Court is limited to examining whether, on the information available to Mr Burrows, his decision could be seen as unreasonable in the Wednesbury sense.
…
[31] … The Act makes it clear that at the s 61 stage it is entirely up to the Executive (through the Minister) to decide whether or not to grant Mr Zhang a visa. In the absence of any extraordinary circumstance going to Wednesbury unreasonableness, the courts cannot intervene.
[39] This approach reflects the fact that the power given to the Minister is exceptional and is consistent with the observations of Chambers J in Yure v Bentley
that “issues relating to immigration are fundamentally for the executive arm of
7 Doug Tennent “Absolute discretion in immigration” [2012] NZLJ 144.
8 Tamil X v Refugee Status Appeals Authority [2009] NZCA 488, [2010] 2 NZLR 73 at [271] and
[275].
9 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA
592, [2016] NZAR 93 at [41].
10 Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222 at [14] and [23]. Whether regarded as part of a Wednesbury inquiry or conceptually independent, the Court is also entitled to consider whether the decision maker has acted according to law and that the statutory discretion has been exercised in good faith and for a proper purpose. See Ning v Minister of Immigration [2016] NZHC 697 at [24].
Government” and that unless there was clear and cogent evidence that the ministerial exercise had been unlawful, the Court lacked jurisdiction to intervene.11
[40] Summarising a number of High Court decisions, Chambers J observed that a person seeking a special declaration under the predecessor to s 378 has very limited rights and that the Minister’s decision was “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.12 He concluded that 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”.13
[41] These comments apply with equal force to the absolute discretion under s 61 and I adopt them as applicable.
[42] One of the most recent applications of these principles in the High Court occurs in Singh v Associate Minister of Immigration.14 There, Courtney J reviewed the law relating to judicial review of the exercise of the Minister’s absolute discretion, noted the observation in Zhang that the definition of such discretion “gives bleak prospects for judicial review unless Wednesbury unreasonableness can be identified”15 and concluded:16
I therefore do not accept Mr Deliu’s argument that the grounds other than [manifest unreasonableness] are available as grounds for judicial review of the defendant’s decision under s 61.
[43] Consistent with this restrictive approach, Thomas J noted in Ning v Minister of Immigration17 that there appears to have been only one case under the Act in which judicial review of the absolute discretion has been successful, namely Ewebiyi v Parr18
where Fogarty J found that there had been an error of law in a deportation order under
11 Yure v Bentley HC Auckland M1530-PL01, 8 November 2001 at [16], citing Singh v Minister of
Immigration HC Auckland M1321/95, 18 July 1996 at 7–8.
12 At [17].
13 At [18].
14 Singh v Associate Minister of Immigration [2016] NZHC 2888.
15 Zhang v Associate Minister of Immigration, above n 10, at [14].
16 At [12].
17 Ning v Minister of Immigration, above n 10, at [28].
18 Ewebiyi v Parr HC Christchurch CIV-2001-409-2010, 7 December 2011.
s 177 because the Immigration Officer had not taken a record of the international obligations and personal circumstances of the applicant in compliance with the obligation set out in s 177(5).
[44] I note that in this case, as in Ning, there was no requirement on the Minister to keep any type of record. In addition the Minister was not required to give reasons; nor did he do so in the present case.
[45] As to the test for Wednesbury unreasonableness, this is well established and variously described in terms of:
(a) “a decision so unreasonable that no reasonable authority could ever consider imposing it”;19
(b)a decision which is “irrational or such that no reasonable body of persons could have arrived at the decision”;20 and
(c) a decision in respect of which “there could only be one answer” and that contrary to the decision that was made.21
[46] By any measure the test is one which it is difficult for an applicant to satisfy.22
Was the Minister’s decision unreasonable in a Wednesbury sense?
Preliminary issue
[47] No affidavit has been provided by the Minister in these proceedings. The applicant submits that it is “usual for the decision maker to make an affidavit as to
what material was before him” and that in the absence of such an affidavit an adverse
19 Singh v Associate Minister of Immigration, above n 14, at [8].
20 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.
21 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 9, at
[66].
22 In Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [29], Palmer J considered that the House of Lords’ reformulation in Edwards v Bairstow [1956] AC 14 (HL) of the test for an error of law offered a better approach to unreasonableness than the wording used in Wednesbury: “[w]here a decision is so unsupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable” (at [29]). I do not consider these observations materially alter the approach to be adopted in this case.
inference can be drawn, namely that the Minister did not adequately turn his mind to provisions of the ICCPR and in particular articles 17 and 23.
[48] Mr Hooker relies on the Court of Appeal’s decision in Fiordland Venison Ltd v Minister of Agriculture and Fisheries where the decision itself did not give reasons and neither did the Minister provide an affidavit, and in which the Court said it was left to infer from the evidence available to it what the relevant reasons might have been.23 The Court stated:24
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.
[49] Ms Cantlon, a manager with the Immigration Resolutions Team and a veteran of 30 years with MBIE and its predecessor, has deposed to the information which was before the Minister. She also deposes to the briefing which the Minister received at the time of his appointment, including the impact of New Zealand’s international obligations in discretionary decision making and in particular the ICCPR. She confirms that the Minister was advised about the most common rights under the ICCPR including article 23 (the family is the natural and fundamental group unit of society and is entitled to protection by society and the state).
[50] Annexed to her affidavit is a copy of all the material made available to the Minister, commencing with the Ministry’s briefing paper and including the detailed letter dated 28 February 2017 from Ms Zhou, correspondence from Mr Singh in relation to the Ministry’s identification of potentially prejudicial information, relevant interview notes and the IPT’s decision.
[51] I do not consider any adverse inference appropriately drawn against the Minister for failing to provide an affidavit. It would be unrealistic in the context of the caseload considered by Ministers or Associate Ministers of Immigration for them to recall with particularity the reasons for their decision in any particular instance. Nor
are they even obliged to identify such reasons. The Court has before it a full record of
23 Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 345 and 354.
24 At 354.
the information available to the Minister when he made his decision and on the basis of which the rationality of that decision can be assessed.
To what extent are alleged errors or omissions in the briefing paper relevant?
[52] The foregoing leads logically to a subsidiary issue – to what extent might a decision be considered irrational, when, on the basis of the material supplied to the Minister it could not properly be so described but where the material is itself alleged to be deficient or imbalanced?
[53] Ms Earl does not contend for an assessment of irrationality divorced from the content of the briefing paper. She acknowledges that if there was an error or omission in the paper such that the Minister was, as a result, “led to an irrational decision” then the decision itself might be impugned. She says, however, that such an assessment would have to take into account not only the contents of the paper but all the other material available to the Minister, as for example in this case the extensive submissions of the applicant’s counsel.
[54] Similar issues were addressed by Courtney J in the recent decision of Devi v Minister of Immigration.25 At [20] of the judgment her Honour recorded the applicant’s submission that the briefing paper contained (or omitted) material that resulted in it being “incorrect, biased or one-sided”.
[55] Significantly in the context of that case, a criticism was made that the briefing paper failed adequately to refer “to relevant international obligations” and referred to the Convention on the Rights of the Child when Ms Devi and her husband did not have children.26 In this respect her Honour said:
[21] Underlying these various criticisms was the assertion that the correctness of material in the briefing paper could affect the reasonableness of the ultimate decision. Ms Finau relied on Duffy J’s decision in Nair v Chief Executive of the Ministry of Business, Innovation and Employment as authority that the decision maker must have regard to relevant factors. However, that case related to judicial review of a decision under s 177 of the Act which requires the immigration officer making the decision to have regard
25 Devi v Minister of Immigration [2017] NZHC 728.
26 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
to “any relevant international obligations”. This issue does not arise under s 61 where there is no obligation to take any specific matter into account.
(Footnotes omitted)
[56] For completeness, however, Courtney J went on to say that she regarded as unobjectionable the matters traversed in the briefing paper and that because the opinions of Ms Devi’s doctor were also recorded, it was not one-sided. In comments which apply equally to this case she concluded:27
Mr Burrows had before him the plaintiff’s letter alongside the briefing paper, which put before him many of the issues now raised by the plaintiff. I do not regard anything in the paper as an error that could impugn the decision.
[57] I will address Mr Singh’s specific criticisms of the briefing paper in the next section of this judgment. For now, however, I record my acceptance of Ms Earl’s submission. In circumstances where there is no obligation on the part of the Minister to take any specific matter into account it will be a rare occasion in which an applicant will be able to establish irrationality based on error or omission in a briefing paper. In particular, the Court will need to be satisfied that on a reasonable assessment of all the information available to the Minister he or she could not be expected to make a rational decision. In that context I would adopt the “something overwhelming” terminology from Wednesbury itself.28
The applicant’s criticisms of the briefing paper
[58] Mr Singh takes issue with the briefing paper in a number of respects.
[59] First, he is critical of the section in the paper under the heading “International
Obligations” which is in terms:
In making this decision, you must consider New Zealand’s international obligations, for example those relating to the best interests of any child. You have been briefed regarding the role of international obligations in decision making on immigration related cases.
27 At [23].
28 Associated Provincial Picture Houses Ltd v Wednesbury Corp, above n 1, at 230 per Lord Greene
MR.
[60] Mr Hooker says that specific reference should have been made to the ICCPR and in particular articles 17 and 23. He also says that by referring to international obligations relating to the best interests of a child,29 the paper implies that the only convention which is applicable is the Convention on the Rights of the Child when that was plainly not the case because:
(a) the applicant and Ms Iefata did not have children; and
(b) the ICCPR itself applied.
[61] As indicated, similar arguments were raised in Devi v Minister of Immigration
in respect of which Courtney J held:30
[24] Nor do I accept that the example used of the Convention on the Rights of the Child is indicative of any procedural defects.
…
[29] A decision maker is not required by s 61 to make decisions with regard to international obligations. To raise any issue on judicial review, these obligations must have been of sufficient relevance to Ms Devi’s case “that to overlook them raises Wednesbury unreasonableness”. In any event, I find that Mr Burrows did not overlook the obligations…. It was a matter for his judgment how any of the factors which he considered were weighted in his decision.
(Footnotes omitted)
[62] I accept that New Zealand’s treaty obligations were of sufficient relevance to Mr Singh’s case that to overlook them entirely may raise the prospect of Wednesbury unreasonableness. However, I do not consider there to be any proper basis to suggest that this is what occurred.
[63] At the outset I note that the briefing paper referred at some length to the applicant’s submissions in relation to the ICCPR. In particular it stated:
Ms Sherry [who assumed the case from Ms Zhou] asserts that it is a basic human right for Mr Singh and Ms Iefata to be involved in a relationship. She cites New Zealand’s international obligations to uphold the International
29 The paper footnotes Article 3(1) on the Convention of the Rights of the Child which provides that “in all actions concerning children… the best interests of the child should be a primary consideration”.
30 Devi v Minister of Immigration, above n 25, at [29].
Covenant on Civil and Political Rights (ICCPR), acknowledged by the New Zealand Bill of Rights Act in 1990, particularly as concerns the right of the family to protection by society and the state. Ms Sherry refers to a number of cases from the European Court of Human Rights and the House of Lords, in which the right to uninterrupted family life has been upheld.
Ms Sherry states that Mr Singh and Ms Iefata’s circumstances clearly deserve to be considered in light of the above, as they are a committed couple, who wish to endeavour to spend the rest of their lives together …
[64] Ms Zhou’s correspondence was also included with the materials provided to the Minister. It discussed in detail the ICCPR obligations and relevant authorities in respect of the Covenant’s construction. I am left in no doubt that the importance of the ICCPR in the context of Mr Singh’s request was appropriately recognised in the briefing paper. Moreover, as Ms Cantlon records, the Minister was fully briefed on these obligations when he assumed office, with particular reference to article 23.
[65] Viewed in this context and particularly given that the briefing paper reminded the Minister of New Zealand’s international obligations, this Court can infer that the Minister did not embark upon his decision without reference in his mind to the ICCPR. Significantly the Minister’s letter states that he had “carefully considered [the applicant’s] representations”. This must be taken to have included the extensive submissions on application of the ICCPR.
[66] The case is in this respect similar to Pesamino v Minister of Immigration, where the Court noted both the reference to international obligations in the briefing paper and the applicant’s submissions in concluding that the Minister took into account the interests of the child and family in a decision made under s 172 of the Act.31
[67] I also accept Ms Earl’s submission that since the basis of the request was the stated relationship with a New Zealand citizen the only reasonable inference available is that the Minister took into account considerations relating to family life but declined to intervene.
[68] Next Mr Hooker submitted that the briefing paper was in error by stating:
31 Pesamino v Minister of Immigration [2012] NZHC 4 at [21]–[23].
No response to the PPI letter was received, and on 14 December 2016 Mr
Singh’s application was declined.
[69] I have already briefly referred to the background. To recapitulate:
(i)On 23 November 2016 INZ issued its second PPI letter, the contents of which I will discuss in further detail later in this judgment.
(ii)Mr Singh’s initial response to that letter was to say that he wished to withdraw his application. However, shortly afterwards his immigration advisor emailed INZ reversing that position and seeking an extension to 16 December for submissions in the IPP letter.
(iii)On 7 December 2017 an extension was granted to 12 December in terms:
No further extensions will be considered past this. Please provide the final response by this date.
[70] Mr Hooker initially contended that a further extension was sought and not referenced in the briefing paper, with the result the Minister was left with the impression Mr Singh had simply chosen not to respond to the PPI letter. However, on review of the relevant email log he acknowledged that submission to be in error to the extent no second extension had been sought.
[71] In any event, Mr Singh did respond to the PPI letter on 15 December in correspondence which was included in the materials provided to the Minister and the content of which was elsewhere summarised in the briefing paper. Accordingly, there is, in my view, nothing in the point.
[72] Thirdly, Mr Hooker says that the paper dealt with issues of character in a way which was imbalanced and misleading. Some further background is necessary in this context.
[73] The second PPI letter addressed a number of concerns in relation to the credibility of Mr Singh and Ms Iefata’s relationship. It noted that they appeared to have limited social interaction with people outside Ms Iefata’s family and that in face-
to-face interviews Mr Singh was unable to name any of Ms Iefata’s friends other than one she worked with. It also noted that neither Mr Singh or Ms Iefata were able to provide substantial information regarding each other’s beliefs, likes, dislikes or future plans.
[74] It then identified two specific respects in which INZ had concerns about character. Relevantly the letter said:
During the interview both you and your supporting partner were asked to confirm who wrote the letter submitted in response to our letter of concern dated 02 September 2016, which is dated 05 September 2016 and has been signed by your supporting partner.
Your supporting partner confirms only having written the letter submitted with your application – dated 11 August 2016. When questioned about the content of the letter dated 05 September 2016, which she has signed, she states that she does not believe she wrote this letter. When asked who wrote the letter,
she states that she does not know who wrote this letter. She states that she did not send any other information after the application was submitted, she only
remembers signing a lot of letters.
When you were asked about who wrote the letter dated 05 September 2016 which has been signed by your supporting partner, you stated that your partner wrote the letter.
In addition to this, during the course of the interview you were requested to show your Facebook account for us to verify information provided with your application. You showed us your Facebook account with the name – JT Singh. Your supporting partner showed us the same Facebook account. We note that this account demonstrates limited information, limited friends and limited activity.
You were asked if you have any other Facebook accounts or whether you regularly use the social media site. You state that you do not use Facebook regularly.
We have however come across a Facebook account with the name – Jatinder Randhey. The profile picture of this account appears to be of you. The information available on this account appears to match your information and the relationship status for this account is ‘Single’. We further note that this account demonstrates more information, more friends and frequent activity. As such, it appears that this is your regular Facebook account.
Based on the information noted above, it appears that you have provided false or misleading information or withheld material information to Immigration New Zealand in the course of applying for your visa. Therefore, it appears that you fall under immigration instructions A5.45(b).
As the issues detailed above may affect the outcome of your application, we are bringing them to your attention out of fairness to you.
[75] In Mr Singh’s response of 15 December 2016 (incorrectly dated 2015), he stated that Ms Iefata had written the relevant letter “with her friends who helped her in typing the letter” and that “she was aware of what was written in the letter and had eventually signed it”. I note that is not consistent with Ms Iefata’s interview notes in which she says she simply signed a number of letters that were put in front of her seemingly without particular reference to them or adoption of their contents.
[76] In relation to the second Facebook account, Mr Singh said that he believed he had deleted the account after coming to New Zealand. He said:
I was not sure how it was but I definitely was not using the old account. After my relationship started with Ella, we both created a new account so we could socially share our lives and show to our friends and family that we are a couple.
[77] The briefing paper accurately summarises this response and, as indicated, the material provided to the Minister included a copy of Mr Singh’s letter.
[78] Mr Hooker is critical of the fact that Ms Iefata’s second letter (5 September
2016) was not itself included in the materials provided to the Minister. He says therefore the Minister was not in a position to decide for himself whether it was material who had written the letter because there was nothing in it that constituted false or misleading information. That, however, misses the point. INZ’s concerns were not about the content of the letter but that it was a letter purported to have been written by Ms Iefata in circumstances where she neither recalled writing it nor reading and adopting it before signing it. The provision of the letter itself would not have ameliorated INZ’s concerns. Mr Singh’s application was in part being supported by correspondence whose signatory initially said that “she had no idea who could have written the letter”, but who was later said to have written it with friends and to have been aware of what was in it. That was an unsatisfactory position and in my view a matter fairly raised in the briefing paper.
[79] Mr Hooker is also critical of the fact that the briefing paper records “Mr Singh stated that he only had one Facebook account” when the interview notes do not support that.
[80] There is more substance in this point. Although both the second PPI letter and the briefing paper assume production by Mr Singh of his most recent Facebook account and a specific inquiry about whether he had any other Facebook accounts, there is no record of such inquiry in the interview notes. Rather he was asked to “show me your Facebook account and/or your partner’s Facebook account on your phone” at which point he showed his latest account. Then subsequently in the interview he said he did not use Facebook “a lot”. So Mr Singh’s error was more one of omission than commission in that, when asked to show the interviewer his account, he made no reference to the other Facebook listing – with his failure to do so being, in my view, explicable if he no longer regarded it as current.
[81] I do not therefore regard the briefing paper as accurate in this particular respect and insofar as it raises a matter potentially reflecting on Mr Singh’s character it goes too far. However, in its context the error is not one in my view so overwhelming as to lead to an irrational decision.
[82] For a start the briefing paper does not purport to suggest that an adverse credibility finding has already been made. Indeed it points out that the application never reached the stage where a character waiver had to be considered. To similar effect, Option A identified issues relating to the provision of false and misleading information as “concerns” only, which it was open to the Minister to “set aside”. Moreover the paper accurately summarises Mr Singh’s substantive response in respect of the Facebook issue, includes his and Ms Zhou’s correspondence in this respect and also includes his interview notes. Cumulatively these provide balance to the briefing paper itself. The error is, in my view, unlikely in itself to have been determinative.
[83] Next the applicant alleges that the briefing paper did not adequately describe the findings of the IPT in relation to the applicant’s relationship. The key finding of the IPT was in this respect that:32
… it is possible that the couple are living together in a genuine relationship. However, in view of the short duration of the relationship and the limited evidence produced, the Tribunal is not in a position to assess whether the relationship is stable.
[84] The relevant reference in the briefing paper is on page 5 in terms:
Mr Singh’s appeal to the IPT against his liability for deportation was declined in March 2017. In its decision (see tag G) the Tribunal determined that while on the basis of evidence provided, it was possible that Mr Singh and Ms Iefata were living together in a genuine relationship, this did not of itself constitute an exceptional humanitarian circumstance.
[85] Significantly the summary does not draw attention to the arguably adverse finding by the Tribunal that it was “not in a position to assess whether the relationship is stable” and to that extent the summary was more benign than it could have been.
[86] In addition the paper went on to reference counsel’s submission that the relationship was publicly acknowledged and supported by family and friends as evidenced by the letters enclosed with the representations. Those letters from friends, church members and family were included in the documents provided to the Minister, as were a variety of utility bills, joint bank statements, credit card statements, medical donation and shopping receipts for the couple.
[87] I am unable to identify any respect in which the description of the IPT decision could have led the Minister into a manifestly unreasonable assessment.
Other grounds on which Wednesbury unreasonableness is alleged
[88] Mr Singh argues that having regard to the ICCPR requirement that the family be protected, any decision other than to intervene was irrational and that if the Minister had any residual concerns about the genuineness or stability of Mr Singh’s relationship with Ms Iefata the only rational response was to refer the matter back to an immigration officer to make further inquiries in that respect.
[89] In my view there are two fundamental problems with this submission. First, as Courtney J noted in Devi,33 s 11 explicitly precludes a decision maker having to inquire further into the circumstances of the person, or make further inquiries in respect of the information provided. The Minister was entitled to make his decision based on the information before him.
[90] Secondly, although New Zealand’s international obligations were appropriately drawn to the Minister’s attention, the Minister was not, unlike the position in respect of an immigration officer acting under s 177, obliged to have regard to such obligations,34 still less to give effect to them in some particular way or at all.35
The circumstances would have needed to be such that “to overlook [the obligations] raises Wednesbury unreasonableness”.36 Again this is a reflection of the Court’s reluctance to intervene in respect of what is an executive decision involving an exceptional power.
[91] In the present case there is no basis for suggesting that the Minister “overlooked” these obligations. They were conspicuously brought to his attention in the briefing paper. Nor could it be said that in the context of the obligations his decision was irrational having regard to:
(i)the relatively short duration of the relationship (18 months living together);
(ii)the identified concerns arising out of Ms Iefata’s second letter of support and Mr Singh’s undisclosed Facebook account (whatever the circumstances of such non-disclosure);
(iii)answers by both Mr Singh and Ms Iefata to INZ questions which in the words of the briefing paper appeared to suggest “limited knowledge of each other’s interests and personal details, and indicated vague and undetailed future plans”; and
(iv)actual inconsistencies in interview responses about domestic matters, which although not specifically referred to in the briefing papers were
apparent from interview notes provided to the Minister and were
34 See Devi, above n 25 at [29].
35 Not even an immigration officer acting under s 177 is obliged to give effect to such obligations; see Ning v Minister of Immigration, above n 10, at [26], citing the Court of Appeal in Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 9, at [45].
36 Zhang v Associate Minister of Immigration, above n 10, at [34].
referred to in INZ’s letter declining the work visa application (itself also provided).
[92] Even if satisfied that the couple were in a genuine relationship (as the IPT acknowledged was possibly the case), it was not in my view irrational for the Minister to regard the relationship’s stability as insufficiently established to warrant his intervention having regard to the matters in [91](i) and (iii) above. Nor having regard to the young ages of Mr Singh and Ms Iefata and the fact that they were both in good health and did not have children were there exceptional humanitarian issues in play. The IPT had already held as much. And even if the Minister did consider the relationship genuine and stable there was no particular test which in his absolute discretion he was obliged to apply. Indeed he was neither bound to apply the instructions in the Immigration New Zealand Operational Manual,37 nor the “exceptional circumstances of a humanitarian nature” test by which the Tribunal was governed.38
Alternative ground of review – failure to take into account relevant factors
[93] Mr Singh alleges that the Minister failed to take into account a relevant factor, namely that to decline the request would amount to “an unlawful interference with the family and be a breach of the ICCPR”.
[94] This rehearses previous arguments. As indicated, a decision made under s 61 was not required to give effect to international obligations in some particular way or at all. Such obligations could not be overlooked if to do so “raised Wednesbury unreasonableness” but there is no proper basis to suggest that in this case they were.
Result
[95] I decline the application for judicial review of the Associate Minister’s decision.
37 Immigration New Zealand Operational Manual, E4.5.5 and WF2(a) identify the “genuine”, “stable” and “living together” requirement for partnerships.
38 Immigration Act, s 207.
[96] I award costs on a 2B basis. In the absence of agreement as to quantum,
memoranda may be filed.
Muir J
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