Ullah v Chief Executive Officer of the Ministry of Business, Innovation and Employment

[2019] NZHC 332

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1950

[2019] NZHC 332

UNDER

the Judicature Amendment Act 1972 and the Immigration Act 2009

IN THE MATTER

of an application for judicial review of a decision of the Ministry of Business, Innovation and Employment

BETWEEN

SHAKHAWAT ULLAH

Applicant

AND

CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Hearing:

4 March 2019

Appearances:

T Mukusha for the Applicant

R A Kirkness and T Witten-Sage for the Respondent

Judgment:

4 March 2019

JUDGMENT OF PALMER J

Counsel & Solicitors:

Avondale Law, Auckland

R A Kirkness, Barrister, Wellington Crown Law, Wellington

ULLAH v CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2019] NZHC 332 [4 March 2019]

What happened?

[1]                 In June 2015, Mr Shakhawat Ullah entered New Zealand on a student visa from Bangladesh. In July 2016 he was granted a post-study open work visa valid until 25 July 2017. He made multiple attempts to extend his stay in New Zealand:

(a)On 2 June 2017, he applied for an employer-assisted post-study work visa. An immigration officer raised concerns on 28 June about whether the job offer was genuine and the job was relevant to his qualifications.

(b)On 4 July 2017 Mr Ullah sought to withdraw his application for the employer-assisted visa. He requested a temporary visitor’s visa which was rejected on 5 July 2017.

(c)On 6 July 2017 he claimed he was in a serious relationship with a New Zealand citizen. He requested a temporary visitor’s visa to enable him to gather evidence to support that. He got married on 14 July 2017.

(d)On 18 July 2017, he was granted an interim visa pending a decision on an application for an employer-assisted work visa, or for six months, whichever was the earliest.

(e)On 4 August 2017, Immigration New Zealand (INZ) declined to change Mr Ullah’s application for an employer-assisted work visa to a temporary visitor’s visa because he had not declared his relationship in his original application. On 9 August 2017, INZ confirmed its decision not to change his work visa application to a visitor’s visa. On 10 August, Mr Ullah withdrew his application for a work visa, his interim visa expired and he was unlawfully in New Zealand.

(f)On 13 September 2017, Mr Ullah applied for a work visa based on partnership. Because he was unlawfully in New Zealand it was dealt with as a request for a grant of a visa in a special case. It was declined on 4 October 2017.

(g)On 27 November 2017, Mr Ullah applied for refugee status and was interviewed on 10 January 2018. On 9 February 2018, the interview report identified a number of concerns including about Mr Ullah’s credibility. On 5 March 2018, INZ sought Mr Ullah’s comments and informed him a person who is declined refugee and protection status may not apply for any further type of visa. He withdrew the application on 9 March. He subsequently appears to have acknowledged the application was based on false and misleading information.1

(h)On 22 March 2018, Mr Ullah applied for a partnership-based work visa on the basis he was living in a genuine and stable partnership with a New Zealand citizen. That is the application at issue here.

[2]                 INZ held an initial telephone interview with Mr Ullah on 30 May 2018. On 11 July 2018, Mr Ullah and his wife were interviewed by two immigration officers. On 13 July 2018 he was invited to comment on concerns about whether he was living in a genuine and stable partnership and about his character. He responded to some of those concerns. On 16 August 2018, INZ declined Mr Ullah’s application on the grounds it was not satisfied, for specified reasons, that he and his wife met the definitions of “credibility”, “living together”, “genuine partnership” and “stable relationship”. Mr Ullah challenges that decision by way of judicial review.

Relevant law

[3]                 Section 45 of the Immigration Act 2009 (the Act) provides no person is entitled to a visa as of right and an immigration officer may grant or refuse to grant a visa in his or her discretion. Section 26 provides the manner of processing a visa application is a matter of discretion unless immigration instructions require otherwise. Immigration instructions are certified under s 22, including in relation to partnership- based work visa applications. INZ’s Operational Manual reflects the need for fairness and natural justice in its decision-making.

1      Transcript of Witness briefing, 11 July 2018, Common Bundle at 269-270.

Submissions

[4]                 This is a judicial review, not an appeal. Mr Ullah is not challenging the ultimate decision. His challenge is based on one of the immigration officers at the 11 July interview initially being said to be an observer, but then asking some questions. Mr Mukusha, on his behalf, submits the applicant was vulnerable and was not prepared to be asked questions by both officers and, out of fairness, he should have been told that before it happened. He submits, “in the interest of justice” this “high handed crude approach” cannot stand. He submits, cumulatively, the process breached Mr Ullah’s legitimate expectation the interview was to be conducted in a professional manner, breached natural justice, was unreasonable, grossly unfair and should be set aside. There are additional pleadings about other grounds of challenge which are not being pursued. Mr Mukusha also submits some of the questioning techniques were unreasonable in using leading questions and giving advice.

[5]Mr Kirkness, for the Crown, submits none of these claims withstands scrutiny.

Decision

[6]                 Mr Kirkness is correct. INZ’s function involved interviewing Mr Ullah and his wife. Two officers were involved in doing that. One was doing it for the first time so the second was introduced as an observer. The second did ask questions, when he considered they needed to be asked. If he had not done so, he may have failed in his duties as an immigration officer.

[7]                 There was no basis for a legitimate expectation the second immigration officer would not ask questions. There is nothing unfair or unreasonable about him asking questions or asking them in the way he did. There is no error of law or evidence of failure to consider relevant considerations or of fettering of discretion. Immigration officers are bound by the rules of natural justice which were not breached here. They do not include the obligation that is placed on counsel in a court case not to ask leading questions in examination-in-chief or re-examination. They do not include an obligation not to provide information and asking questions.

[8]                 I decline the application for judicial review and award costs to the Crown on a 2B basis.

Palmer J