Zhang v Associate Minister of Immigration
[2016] NZCA 361
•28 July 2016 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA386/2015 [2016] NZCA 361 |
| BETWEEN | DEPING ZHANG |
| AND | THE ASSOCIATE MINISTER OF IMMIGRATION THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT |
| Hearing: | 12 April 2016 |
Court: | Kós, Clifford and Brewer JJ |
Counsel: | F C Deliu and E C Nerida for Appellant |
Judgment: | 28 July 2016 at 3.00 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant is to pay the respondents’ costs for a standard appeal on a band A basis plus usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
Mr Zhang is a Chinese national. He has been in New Zealand unlawfully since 20 July 2001. In 2014, he asked the Minister of Immigration to grant him a visa to allow him to remain here on the ground that his is a special case. In brief, he is of good character, is married to someone who has the right to reside in New Zealand, and they have a young child who is also entitled to reside in New Zealand.
The official holding the Minister’s delegated power in this regard, Mr Burrows, refused Mr Zhang’s request. Mr Zhang sought judicial review of Mr Burrows’s refusal. Justice Whata upheld Mr Burrows. Mr Zhang now appeals Whata J’s decision.[1]
Context
[1]Zhang v The Associate Minister of Immigration [2015] NZHC 1369.
Mr Zhang is not a citizen of New Zealand. As such his right to enter and reside in New Zealand is controlled by the Immigration Act 2009 (the Act). The stated purpose of the Act is to “manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”.[2] Its scheme is quite simple: for non-citizens, entry to New Zealand, and being in New Zealand, is lawful if permission is given by the responsible officials through the grant of a visa and by entry permission granted at the border.[3]
[2]Immigration Act 2009, s 3(1).
[3]Section 14.
If a person has lawful permission to enter and be in New Zealand for a specified period of time but does not leave within that time then they are unlawfully in New Zealand. If a non-citizen is unlawfully in New Zealand, they have an obligation to leave and they are liable to be deported.
There is a layer of protection for people claiming to be refugees or protected persons. Mr Zhang claimed to be a refugee in 1996, went exhaustively through the mechanisms in place to decide claims for refugee status and was finally denied that status in 2001. Mr Zhang’s temporary permit to be in New Zealand expired on 20 July 2001. He has been in New Zealand unlawfully since then. On 10 April 2014, he wrote to the Minister of Immigration seeking intervention under s 61 of the Act. The subsequent events led to his appeal to this Court.
A person who is liable to be deported from New Zealand because they have overstayed their visa has limited ability to forestall deportation. In particular:[4]
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.
[4]Section 20.
Since Mr Zhang was granted a temporary visa while his claim to be a refugee was considered, he is subject to s 150 of the Act. This provides that he may not:[5]
(a) apply for a further visa of any class or type while in New Zealand; or
(b) while in New Zealand, request a special direction or make a request for the grant of a visa under section 61; or
…
[5]Section 150(2)(a) and (b).
Once a person who is liable to be deported because they are unlawfully in New Zealand is served with a deportation order, then their last chance of being permitted to stay here lies with an immigration officer:
177 Deportation order may be cancelled
(1)An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.
(2)Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand’s international obligations.
(3)If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—
(a) may make a decision as he or she thinks fit; and
(b) in doing so, is not under any obligation, whether by implication or otherwise,—
(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or
(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.
(4)Whether or not an immigration officer considers cancelling a deportation order,—
(a) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and
(ab) 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
(b) section 23 of the Official Information Act 1982 does not apply in respect of the decision.
(5)However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—
(a) a description of the international obligations; and
(b) the facts about the person’s personal circumstances.
Section 177, as is apparent from its wording, provides little scope for challenging an immigration officer’s decision not to cancel a deportation order. A recent decision of this Court makes this clear.[6]
[6]Singh v Chief Executive, Ministry of Business Innovation and Employment [2015] NZCA 592, [2016] NZAR 93.
In Singh, this Court, on appeal from a refusal by the High Court to judicially review the immigration officer’s decision, held, relevantly, that s 177 has severely circumscribed the scope for judicial review, effectively limiting it to a Wednesbury unreasonableness inquiry:[7]
[46] We agree with those observations. Section 177 has severely circumscribed the scope for judicial review, effectively limiting it to a Wednesbury unreasonableness inquiry. This is consistent with this Court’s approach in Puli'uvea v Removal Review Authority and Huang v Minister of Immigration. In Puli'uvea the Court said:
The question which we have to address is whether there is any reviewable error of law in the decisions that have been taken or one of the decisions is so unreasonable that no reasonable immigration officer could have come to it.
(Footnotes omitted)
The case on appeal
[7]Wednesbury unreasonableness refers to the well known case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA), where the Court said that a decision was reviewable on the ground that it is so unreasonable that no reasonable decision maker, properly apprised of the facts, could have made it.
Mr Zhang’s case is that he has not yet got as far as s 177. Therefore, Singh does not apply to him. He is in a different position. He has asked for a visa as a special case and so he has more rights on judicial review than he would if a decision had been made against him under s 177 and he sought to judicially review that decision. Essentially, he argues that once his request for a visa was accepted for examination, then the usual administrative law protections apply without restriction.
As we will come to, the chief difficulty for Mr Zhang is the untrammelled nature of the discretion which he sought to have exercised in his favour. His purported application to the Minister was made under s 61 of the Act[8] which gives the Minister the power to grant a visa of any type to a person who, like Mr Zhang, is unlawfully in New Zealand and who is not subject to a deportation order or a removal order. However, s 61(2) provides that a decision to grant a visa “is in the Minister’s absolute discretion”:
(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.
[8]As noted at [7] above, s 150(2)(b) of the Act provides specifically that Mr Zhang may not make a request for the grant of a visa under s 61. But, the Minister, because of the absolute discretion, can decide to consider a request anyway, and did so.
Section 11 of the Act provides:
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.
This definition of absolute discretion gives bleak prospects for judicial review unless Wednesbury unreasonableness can be identified.
The arguments on appeal
Mr Deliu’s chief point on appeal is that Whata J erred in holding that Mr Burrows’s failure to record reasons for his decision was not a material error for the purposes of judicial review.
Justice Whata considered the arguments advanced by Mr Deliu:
(a)That the failure to record reasons was in breach of an internal administrative circular:
34Immigration officers considering s 61 requests should briefly record their reasons for decisions on the file.
…
36Unlike an ordinary application, the reasons for the decision need not be recorded in communication with the client. That, however, is a matter for the officer concerned. If the officer exercises his or her discretion to not give reasons to the requestor, he or she must however expressly record that s 11 of the Act applies.
(b)That the failure to refer to s 11 of the Act was a breach of both the section and paragraph 36 of the circular.
Justice Whata commented that these failures reveal a lack of care and amount to an administrative error. He was not satisfied that the errors amount to reviewable unreasonableness or material breach of statutory duty for the following reasons:
(a)Mr Burrows had before him the briefing paper on Mr Zhang’s case provided to him by Immigration officials. He had regard to it and it “contained ample information upon which to make a reasoned decision”.[9]
(b)The decision to decline to intervene reached by Mr Burrows was well within the range of decisions available to him having regard to the information supplied to him.[10]
(c)The decision was not unreasonable in any administrative law sense. There is no Wednesbury unreasonableness. Mr Burrows’s administrative error was not causative of his decision and does not bear on its reasonableness per se.[11]
(d)Mr Burrows was exercising an absolute discretion. As such, decisions must be demonstrably wrong or flawed to attract judicial intervention:[12]
The absence of reasons is cause for pause, but on close scrutiny Mr Zhang has fallen short of demonstrating that the decision is flawed or unreasonable.
[9]Zhang v The Associate Minister of Immigration, above n 1, at [54].
[10]At [55].
[11]At [56].
[12]At [57].
Mr Deliu submitted to us that without recorded reasons Mr Zhang is stymied. He cannot assess whether or not Mr Burrows, the official whose decision is so important to him, made an error. In Mr Deliu’s submission, this is a substantial violation of a public official’s lawful duty and breaches Mr Zhang’s right to natural justice under s 27(1) of the New Zealand Bill of Rights Act 1990.
Mr Deliu referred us to the Public Records Act 2005. Section 17(1) of that Act provides:
Every public office and local authority must create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice, including the records of any matter that is contracted out to an independent contractor.
In Mr Deliu’s submission, the circular quoted above sets out Immigration New Zealand’s “normal, prudent business practice” in relation to s 61 of the Act.
Finally, Mr Deliu referred us to s 6 of the New Zealand Bill of Rights Act, which provides that if an enactment can be given a meaning that is consistent with the rights and freedoms contained in that Act then such meaning is to be preferred to any other meaning. Mr Deliu’s submission is that the duty in s 17(1) of the Public Records Act and the duty imposed by the circular are consistent with the right to natural justice under s 27(1) of the New Zealand Bill of Rights Act.
Analysis
Our analysis starts and ends with our construction of the relevant provisions of the Act.
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.
Mr Deliu placed reliance on the judgment of Fogarty J in Cao v Ministry of Business, Innovation and Employment.[13] In Cao, Fogarty J allowed an application for discovery of the reasons recorded by an immigration officer for refusal to grant a visa under s 61. Two of the critical passages of the judgment read as follows:
[38] The Australian and United Kingdom authorities are consistent with my understanding of the function of judicial review and the responsibilities of it. There is a very real distinction between the ability of private individuals to require information on immigration files and the ability of the High Court, seized with an application for judicial review, to know what the reasons for the decision are, particularly when the Court has evidence that there will be reasons, because of an internal circular requiring those to be written down.
[39] The Court will examine those reasons taking into account the “absolute discretion” conferred on the decisionmaker by the statute. 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. There will be an order for discovery of those reasons. There will be leave to apply for further discovery, after examination of those reasons.
[13]Cao v Ministry of Business, Innovation and Employment [2014] NZHC 1551, [2014] NZAR 871.
We do not find that Cao assists Mr Zhang’s case. First, while we agree with Fogarty J that the High Court can require the discovery of reasons recorded pursuant to internal administrative practice, we agree also that it is for the limited purpose the Judge identifies: to enable the Court to exercise its jurisdiction properly. In the context of an absolute discretion, that means considering the existence of Wednesbury unreasonableness. It does not follow that the absence of recorded reasons amounts to reviewable error.
We make it clear that we do not consider that Cao is authority for the proposition that any applicant for judicial review of a s 61 decision is entitled to discovery of recorded reasons. That would undermine the statutory scheme that reasons do not have to be given and cannot be obtained under the Official Information Act. In our view, discovery should not be ordered unless the applicant can point to a real risk that Wednesbury unreasonableness is present.
We agree with Whata J that Mr Burrows’s failure to record his reasons (an obligation to record reasons is not the same as an obligation to give reasons) and state his reliance on s 11 was an administrative error. We are not at all sure that the Public Records Act applies as Mr Deliu submitted, but that does not matter. The fact is that reasons were not recorded. However, in the context of the exercise of an absolute discretion, and the limited role of judicial review arising as a result, the error is not material.
In our view, Mr Burrows’s administrative error in this instance is not conduct that breaches the rights of natural justice affirmed in the New Zealand Bill of Rights Act. What constitutes natural justice depends upon context.[14] The context here is an absolute discretion and a statutory right not to give reasons, save for the statutory reference.
[14]Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [72]–[73].
The briefing paper, to which Mr Burrows had specific regard, summarises and highlights the important factual matters advanced on behalf of Mr Zhang. Mr Burrows was referred to the position of the family and of the child. He knew he had to take into account relevant international obligations.
We agree also with Whata J that there is no hint of Wednesbury unreasonableness in the decision reached by Mr Burrows on the information before him.
The decision reached by Mr Burrows is unexceptional. Mr Zhang is a long-term overstayer who has married and fathered a child. He is of good character. Of course, the consequences to him, to his wife and to his child of his being deported will be hard. But no harder than for any family group in these circumstances. There is no factor identified which would engage humanitarian concerns such as those relevant to an application for refugee status (and Mr Zhang has been denied that status). 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.
It follows from this analysis that we will dismiss the appeal. However, Mr Deliu did raise other points which we will touch upon.
The first is that the failure of the briefing paper provided to Mr Burrows to mention any international obligation other than, “for example”, the rights of the child leads to an inference that other rights were not considered. Drawing on case law, Mr Deliu submits there is an appearance of “window dressing” or “lip service”.[15]
[15]Mr Deliu cited and relied upon Huang v Minister of Immigration HC Auckland CIV-2008-404-4139, 6 November 2008; and Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).
We do not agree. First, as Whata J noted, the briefing paper was clear on the effects of deportation on the family as opposed to the child. Second, although Mr Deliu submits that no fewer than six international obligations were overlooked, there is no available argument that the obligations were of such relevance to Mr Zhang’s case that to overlook them raises Wednesbury unreasonableness.
The briefing paper told Mr Burrows that he “may” consider New Zealand’s international obligations. Mr Deliu submitted that this is an error of law because “may” should have been “must”. There is nothing in this point. The issue is not one of semantics. The issue is whether any international obligations were engaged and neglected. We do not find that any were.
Mr Deliu’s next point is that Whata J should not have taken into account the existence of s 177 of the Act as providing a subsequent opportunity for Mr Zhang to have all of his personal circumstances weighed in the light of New Zealand’s international obligations in the consideration of a discretion to cancel a deportation order. We do not agree.
First, we do not accept Mr Deliu’s submission that because the Minister agreed to consider Mr Zhang’s case under the absolute discretion conferred by s 61 of the Act that this imposes upon the Minister substantive administrative law obligations that are greater than those imposed by s 177 of the Act. Both sections confer absolute discretions. Section 177 is more prescriptive and in part more constraining because it requires the immigration officer to record a description of the international obligations to which they have regard and the facts about the person’s personal circumstances. Section 61 has no equivalent provision.[16]
[16]This Court in Singh, above n 6, at [55] distinguished Cao, above n 13, because Cao deals with s 61 which is “in very different terms from s 177”. The Court amplified: “It does not contain any equivalent limitations on scrutiny of a Minister’s decision to those in s 177(3) to (5). Nor does it need to be interpreted in the light of the legislative history of s 177 we have outlined in [18]–[21] above”. That is, of course, correct. Our consideration is of s 61, its place in the Act, and the effect of the bare absolute discretion conferred.
Second, having regard to the overall structure of the Act, we regard s 61 as reserving to the Executive the traditional power residing in the Executive to make decisions about who may be permitted to stay in New Zealand. There could be many situations where the interests of the State mean that a particular person should be permitted to remain in New Zealand notwithstanding that, absent their particular circumstances, they would be deported. There might, for example, be a national security interest. There might be a personal factor such as an extreme health condition or political factors pertaining to the person’s home country that make deportation obviously wrong. In any event, s 61 preserves to the Executive the absolute discretion to intervene in the deportation process. It precludes formal application, and the legitimate expectations associated with that act.
Mr Deliu submitted that Whata J failed to take into account the relevant consideration that Mr Zhang might have to return to China alone. That would have effects on him and on his family. Again, the absolute discretion conferred by the Act on the Minister and the absence of factors which, raising an apprehension of Wednesbury unreasonableness, would empower the Court to grant judicial review lead us to reject this submission.
Result
The appeal is dismissed.
The appellant is to pay the respondents’ costs for a standard appeal on a Band A basis plus usual disbursements.
Solicitors:
Richard Zhao, Auckland for Appellant
Crown Law Office, Wellington for Respondents
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