Zhang v Minister of Immigration
[2020] NZHC 568
•19 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2019-404-000699
[2020] NZHC 568
UNDER The Judicial Review Procedure Act 2016 BETWEEN
YAN ZHANG
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 06 September 2019 Appearances:
S R G Judd for the Applicant
S M Earl & E A M Mok for the Respondent
Judgment:
19 March 2020
JUDGMENT OF GWYN J
This judgment was delivered by me on 19 March 2020 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
J Tam, Edison Tam Lawyers, Auckland S R G Judd, Barrister, Auckland
Meredith Connell, Auckland
ZHANG v MINISTER OF IMMIGRATION [2020] NZHC 568 [19 March 2020]
Introduction
[1] The applicant, Ms Yan Zhang, applied for New Zealand residence under the Family (Partnership) category of the immigration instructions (the Instructions) promulgated pursuant to the Immigration Act 2009 (the Act). Immigration New Zealand declined the application. Ms Zhang appealed to the Immigration and Protection Tribunal (the Tribunal). The Tribunal confirmed the decision of Immigration New Zealand as correct in terms of the Instructions but considered Ms Zhang had special circumstances that warranted consideration by the Minister of Immigration as an exception to the Instructions.1 The Tribunal requested that the Minister make a decision pursuant to s 190(5) of the Act.
[2] The decision under s 190(5) was made by the Associate Minister of Immigration, the Hon Kristopher Faafoi, on delegated authority from the respondent Minister. On 18 March 2019 the Associate Minister declined to grant the resident visa as an exception (the Decision).
[3]Ms Zhang now seeks judicial review of the Decision.
Facts
[4] Ms Zhang, a citizen of the People’s Republic of China, met Kexiao Chen, a New Zealand citizen, in February 2015. A relationship developed where Mr Chen would fly back and forth to China to visit Ms Zhang. The pair married in China in May 2016. Shortly thereafter Ms Zhang discovered she was pregnant and in August 2016 came to New Zealand on a visitor visa. The couple’s son was born in April 2017 and is a New Zealand citizen.
[5] On 22 March 2018 the applicant applied for New Zealand residence under the Family (Partnership) category of the Instructions.
[6] In a letter dated 16 August 2018 Immigration New Zealand declined the applicant’s residence application because Mr Chen was found to be an ineligible
1 ZD (Partnership) [2019] NZIPT 205223, 8 March 2019.
sponsor. Mr Chen was ineligible because a person may act as a partner only twice in their lifetime and he had previously acted as a partner in two successful partnership residence applications. His ineligibility was the only reason for the refusal of the application.
[7] The two instances in which Mr Chen had acted as partner are as follows: in 2002 he relocated to New Zealand from China with his then wife and their daughter. In 2004 he and his wife were granted residence visas under the general skills category. He acted as a secondary applicant in a successful residence class visa application; although the application was not made under the partnership category the Instructions deemed him to have acted as a partner. In 2008 he and his wife separated and he formed a relationship with a new partner.
[8] In 2009 Mr Chen acted as a supporting partner for his new partner’s application under the partnership category. Her residence visa was approved on 7 September 2010. The relationship subsequently broke down and the pair separated.
[9] On the basis of these two previous instances of Mr Chen acting as a supporting partner Immigration New Zealand declined Ms Zhang’s application.
Tribunal decision
[10] Ms Zhang appealed the decision of Immigration New Zealand to the Tribunal pursuant to s 187(4) of the Act. This provision sets out that there will be grounds for an appeal where the decision was not correct in terms of the Instructions or where special circumstances of the appellant are such that consideration of an exception to the Instructions should be recommended by the Tribunal.
[11] On 8 March 2019 the Tribunal issued its determination (Tribunal Decision). It held that the decision of Immigration New Zealand had been correct as it was made in accordance with the Instructions, there being no dispute that Mr Chen had acted as a supporting partner on two previous occasions and was therefore ineligible to act as sponsor of Ms Zhang’s application.2 However, while confirming that the decision was
2 At [27].
correct in terms of the Instructions, the Tribunal considered there were special circumstances of the appellant that warranted consideration by the Minister of Immigration as an exception to the Instructions and requested the Minister consider the grant of a resident visa, with or without conditions, pursuant to s 190(5) of the Act.3
[12] The Tribunal noted that special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”.4 The Tribunal identified the following salient factors in relation to the appellant:
(a)Ms Zhang has been married to her husband, Mr Chen, since 2016 and he is a New Zealand citizen who has been living in New Zealand since 2002.5 Their relationship is genuine and stable.6
(b)Ms Zhang and Mr Chen have a son who was born in New Zealand and is a New Zealand citizen.7 Ms Zhang was then pregnant with their second child.8
(c)The couple’s son has only ever lived in New Zealand and has never visited China.9 The best interests of the children are a primary consideration and it is in their best interests that Ms Zhang remains living in New Zealand permanently where she is able to provide the necessary care and maintain their safe and loving family unit, with both parents.10
(d)Mr Chen has an adult daughter who is a New Zealand citizen and has lived in New Zealand since 2004.11 Mr Chen’s daughter has her own young daughter who is also a New Zealand citizen.
3 At [57]–[58].
4 At [30]; quoting Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24].
5 At [32].
6 At [36].
7 At [33].
8 She has since given birth to a baby girl who is also a New Zealand citizen.
9 At [48].
10 At [46], [51] and [55].
11 At [34].
(e)Mr Chen’s previous relationships broke down for legitimate reasons and were not used as devices for migration.12
(f)China does not recognise dual citizenship and therefore Mr Chen is no longer a Chinese citizen and would be treated as a foreign citizen if he returned.13
(g)Mr Chen and the two children, who do not have Chinese citizenship, will have no automatic long-term permanent status in China.14 They will be able to enter as temporary visitors. As visitors, they will not have access to health care, education or other services in the public system. Obtaining these services through the private system is costly and outside the family’s means. Ms Zhang and Mr Chen do not have employment in China. Even if they were able to obtain employment the costs of private schooling would place significant strain on their resources.15
(h)Mr Chen is well-settled in New Zealand and holds a stable, senior position in a company in New Zealand.16 He currently supports the family unit.17
(i)While Mr Chen may be able to reintegrate into life in China, as he was previously a Chinese national and speaks the language, this may require him to renounce his New Zealand citizenship and leave the country and home where he has been settled for the last 17 years and where his children are citizens.18
(j)Ms Zhang meets the health and character requirements for residence.19
12 At [36].
13 At [38].
14 At [40].
15 At [49].
16 At [39].
17 At [50].
18 At [41].
19 At [44].
(k)Ms Zhang has a clear updated Police certificate.20
[13] Cumulatively, these factors led to the conclusion that Ms Zhang had special circumstances arising from the best interests of her children, her genuine and stable relationship with Mr Chen, her lack of other viable pathways to obtain residence in New Zealand and the difficulty in relocating the family to China.21
[14] As a result, the Minister of Immigration was requested to make one of two decisions pursuant to s 190(5) of the Act: grant a residence visa with or without conditions, as an exception to the Instructions; or, decline to do so.
The Decision
[15] On 18 March 2019 the Associate Minister of Immigration, on behalf of the Minister, declined to grant Ms Zhang a resident visa.22 Reasons were not required and were not given.23
[16] In a sworn affidavit dated 2 July 2019 Mr Faafoi outlines the usual process that he adopted when making a decision pursuant to s 190(5), which he says he followed when making the Decision:
(a)he would be provided with the Tribunal decision;
(b)he would consider the Tribunal’s decision with particular focus on the factual background and the Tribunal’s assessment of special circumstances;
(c)he was aware that he could ask for further information from the Immigration New Zealand file, however it was usually unnecessary to do so as the relevant circumstances were typically set out in detail in
20 At [45].
21 At [56].
22 In a letter annexed to the affidavit and dated 13 November 2017 the Minister of Immigration delegated certain classes of decisions to the Associate Minister, including those under s190(5). This confirmed that the Associate Minister had the authority to make the Decision. His authority to make the Decision is not disputed by either party.
23 Immigration Act 2009, s 190(6).
the Tribunal’s decision and he could make his decision based on the factual background described, together with the special circumstances described;
(d)after considering the matter he would make a decision and sign the Tribunal decision in the space provided to indicate whether the exception had been granted or not; and
(e)the decision would then be returned to the Tribunal.
[17] Mr Faafoi noted that he was aware he could grant a resident visa subject to conditions and of New Zealand’s international obligations as they relate to the making of immigration decisions.
[18] Mr Faafoi confirmed that he made the decision in the appellant’s case and that he remembered making it. He also confirmed that he did not review any material beyond the Tribunal Decision.
The grounds for review
[19]The applicant seeks judicial review on three separate but interrelated grounds:
(a)In making the Decision the Associate Minister failed to properly consider one or more of the following mandatory considerations:
(i)the special circumstances identified by the Tribunal;
(ii)the purposes of the Act;
(iii)international conventions relating to the protection of the family including arts 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR); and
(iv)whether a visa should be granted on conditions.
(b)The consequences of the Decision are harsh, oppressive and unjust and are the very reason and purpose for the special circumstances exception in s 190(5) sufficient to show error in the Decision.
(c)No reasonable decision maker in the position of the respondent, having read the Tribunal’s determination and being aware of the statutory purpose of the Act and the relevant obligations under international law, could have declined to grant a residence visa in the circumstances.
[20] Should any of the above grounds be made out the applicant seeks an order setting aside the Decision and referring it back to the respondent to reconsider the Tribunal’s recommendation.
The Law
Immigration Act 2009
[21]The purpose of the Act is set out in s 3(1):
The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.
[22] Section 22 of the Act provides for the Minister to certify “immigration instructions” relating to a range of immigration matters, including residence class visas. Subsection (5) specifies “the kinds of matters that may constitute immigration instructions”, including “any general or specific objectives of immigration policy”.24
The Immigration Instructions
[23] Immigration instructions are statements of government policy, rather than regulations or legislation.25 The Court of Appeal referred to immigration instructions in the following terms:26
24 Immigration Act 2006, s 22(5)(a).
25 Singh v Chief Executive of Ministry of Business, Innovation and Employment [2013] NZHC 3273 at [20].
26 Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.
A policy document, such as the one in issue, is not to be construed with the strictness which might be regarded as appropriate to the interpretation of a statute or statutory instrument. It is a working document providing guidance to immigration officials and to persons interested in immigrating to New Zealand or sponsoring the immigration of a person to this country. It must be construed sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed, that is, as part of a comprehensive and coherent scheme governing immigration into this country.
[24] Residence instructions are applicable to applications for residence class visas. They are binding on the Minister and on immigration officials as per the Act:
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.
[25] The Instructions set out the relevant criteria for assessment. Regarding the objectives of the Family and Partnership categories they state:
The objectives of the Family Categories are to:
a.strengthen families and communities, while reinforcing the Government's overall objectives in immigration instructions; and
b.contribute to New Zealand's economic transformation and social development.
…
[the] Partnership Category contributes to the overall objective of the Family Categories (see F1) by allowing the partners of New Zealand citizens and residence class visa holders to apply for a residence class visa in order to live with their partner in New Zealand.
[26] The key requirements to qualify for a partnership visa are set out at F2.5. Applicants are required to “provide sufficient evidence to satisfy an immigration
officer that they have been living together for 12 months or more in a partnership that is genuine and stable with a New Zealand citizen or resident.” A legal marriage is a recognised partnership. The onus of proving the relationship is genuine and stable lies with the applicant and their partner.
[27]The listed grounds for declining an application are if:
ithe application is not supported by an eligible New Zealand citizen or resident partner;27 or
iian immigration officer is not satisfied that the partnership on which the application is based is genuine and stable; or
iiithe applicant and New Zealand citizen or resident partner have not lived together for 12 months or more at the time the application is lodged; or
ivthe application is based on marriage or a civil union to a New Zealand citizen or resident and either that New Zealand citizen or resident, or the principal applicant is already married to or in a civil union with another person; or
vboth the principal applicant and the New Zealand citizen or resident partner cannot satisfy an immigration officer they comply with the minimum requirements for recognition of partnerships (see F2.15); or
vithe applicant(s) does not meet health and character requirements (see A4 and A5).
[28] The Instructions define a partnership at F.2.10.1 as being genuine and stable if an immigration officer is satisfied that it:
ais genuine, because it has been entered into with the intention of being maintained on a long-term and exclusive basis; and
bis stable, because it is likely to endure.
[29] The Instructions which were in force at the time state an application should include as much information and documentation as necessary to demonstrate that the applicant’s partner is a New Zealand citizen or resident and eligible to support (and actually in support of) their application, that New Zealand is the supporting partner’s primary place of established residence and that the partnership is genuine and stable. A range of factors bearing on the latter assessment include but are not limited to:
27 This is the ground on which Ms Zhang’s application failed.
i.the duration of the parties’ relationship;
ii.the existence, nature and extent of the parties’ common residence;
iii.the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
iv.the common ownership, use, and acquisition of property by the parties;
v.the degree of commitment of the parties to a shared life;
vi.children of the partnership, including the common care and support of such children by the parties;
vii.the performance of common household duties by the partners; and
viii.the reputation and public aspects of the relationship.
[30] The Instructions provide a list of possible types of evidence, noting that each case will be decided on the basis of all the provided evidence, without any one item’s presence or absence being determinative.
[31] Relevantly, at F.2.10.10 the Instructions state that for an individual to be eligible to support a residence class visa application under the Partnership category they must not have acted as a partner in more than one previous successful residence class visa application. This includes if they previously:
isupported a successful Partnership Category application for a residence class visa; or
iiwere the principal applicant in a successful Partnership Category application for a residence class visa; or
iiiwere the principal applicant in a successful application for a residence class visa that included a secondary applicant partner, excluding residence class visa applications made under RV After the grant of a resident visa; or
ivwere a secondary applicant partner in a successful application for a residence class visa, excluding residence class visa applications made under RV After the grant of a resident visa.
[32] The other requirements (such as character requirements) were not at issue in this case.
The Minister’s role
[33] The Minister’s powers and duties, following a recommendation from the Tribunal under s 188(1)(f), are prescribed in s 190(5) and (6):
190 Procedure where appeal successful or Tribunal makes recommendation
…
(5)Where the Tribunal makes a recommendation under section 188(1) (f), the Minister—
(a)must consider whether a residence class visa should be granted to the appellant as an exception to residence instructions; and
(b)may, if he or she grants a resident visa, impose conditions on the visa in accordance with section 50.
(6)The Minister is not obliged to give reasons in relation to any decision made as a result of any consideration under subsection (5), and neither section 27 of this Act nor section 23 of the Official Information Act 1982 applies in respect of any such decision.
What is the nature and breadth of the Minister’s discretion?
[34] There are only three cases that have considered the scope of judicial review in relation to decisions made under s 190(5), namely CF v Attorney-General,28 Goundan v Immigration and Protection Tribunal29 and Matua v Minister of Immigration.30
CF v Attorney-General
[35] In CF an Iranian man who was previously employed in his home country by an organisation with a history of gross human rights abuses was denied a residence class visa on the basis that he did not reach the character requirements contained in the Instructions.31 The Tribunal confirmed that the decision to reject his application was correct but recommended that the Minister consider granting a residence visa by way of exception to the Instructions.32 The Minister declined to do so and provided
28 CF v Attorney-General [2016] NZHC 3159, [2017] NZAR 152.
29 Goundan v Immigration and Protection Tribunal [2018] NZHC 1756.
30 Matua v Minister of Immigration [2018] NZHC 2078.
31 CF v Attorney-General, above n 28, at [3].
32 At [5].
no reasons for the decision.33 CF sought judicial review of the decision, on grounds including that the Associate Minister failed to take into account mandatory relevant considerations (including the best interests of his children), considered irrelevant factors, breached natural justice and made a decision that was unreasonable in the Wednesbury sense.34
[36] The claim failed on all grounds and review was declined. Moore J considered authorities to the effect that a lack of reasons, where reasons are not statutorily required, will not necessarily indicate a lack of consideration of particular factors in an s 190(5) context.35 In light of the extensive consideration of the interests of the child in the Tribunal’s decision, which the Associate Minister had “considered in some detail”, Moore J inferred that the Associate Minister had not failed to take into account any relevant considerations.36 His Honour also rejected the argument that the Associate Minister had taken into account irrelevant considerations, on the facts as well as the legal basis that nothing in s 190 limits the matters a Minister can take into account when considering a Tribunal recommendation under s 190(5).37 The unreasonableness argument was also rejected.38
Goundan v Immigration and Protection Tribunal
[37] Ms Goundan, a citizen of Fiji, had been refused a residence class visa under the skilled migrant category, but the Tribunal recommended that the Minister consider granting a visa as an exception to the Instructions due to special circumstances.39 The Associate Minister declined and provided no reasons.40 Ms Goundan sought review of the decision on the basis that the Associate Minister had failed to consider a mandatory relevant consideration, namely her Immigration New Zealand file, which had been pointed to in the Tribunal decision.41
33 At [6].
34 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 233–234. CF also sought to challenge the validity and effect of the Instructions themselves.
35 CF v Attorney-General, above n 28, at [92]–[94]; quoting Ning v Minister of Immigration [2016] NZHC 697 at [46].
36 At [101].
37 At [105]–[108].
38 At [120].
39 Goundan v Immigration and Protection Tribunal, above n 29, at [4].
40 At [5].
41 At [7].
[38] Justice van Bohemen found that the file was not a mandatory consideration and that considering the Tribunal decision was sufficient, as it had traversed all the relevant details of the file.42 In coming to this decision van Bohemen J noted that the broad terms in which the Minister’s power is cast, coupled with the fact that the Minister is not required to give reasons, made it clear that the Minister’s discretion is broad.43 Given the high policy content of decisions made under s 190(5) the Court should be cautious about interfering absent an error of law or unreasonableness in the Wednesbury sense.44
Matua v Minister of Immigration
[39] Mrs Matua, a citizen of Samoa, had applied for a residence visa for herself and her daughter.45 Mrs Matua’s residence application had included her daughter as, due to intellectual disabilities, her daughter was dependent on her. The application was declined because Mrs Matua’s daughter did not meet the acceptable standards of health prescribed in the Instructions.46 On appeal to the Tribunal a recommendation was made that the Minister consider whether to grant a residence visa as an exception the Instructions.47 The application was declined and no reasons were given. Mrs Matua sought judicial review.
[40] After hearing the matter Woodhouse J identified two broad grounds for review requiring consideration, namely, whether the Minister failed to consider granting a visa subject to conditions or whether the consequences of the decision were so unduly harsh as to indicate an error of law.48
[41] Justice Woodhouse distinguished the discretion conferred on the Minister by s 190(5) from an absolute discretion under the Act.49 This was because of the statutory provisions enabling applicants to apply for an exception to be recommended and because the Minister has a duty under s 190(5) to consider whether to grant the visa
42 At [27].
43 At [18].
44 At [19] and [21].
45 Matua v Minister of Immigration, above n 30, at [1].
46 At [2].
47 At [3].
48 At [43].
49 At [56].
as an exception.50 The discretion not to give reasons under s 190(6) does not inform the scope of the discretion under s 190(5).
[42] Justice Woodhouse then diverged from the general statements made in CF and Goundan that emphasised the broad nature of the discretion and the high policy content of the decision as a general proposition relevant to every applicable case arising under s 190(5).51 His Honour considered that when it comes to the Minister’s decision under s 190(5):52
Every case will have the policy content contained in the residence instructions, that policy will have already been applied, and this will have resulted in refusal of the application for the resident visa. The matter has got to the Minister because the applicant cannot meet government policy, and this will have been confirmed by the Tribunal. The Minister, acting under s 190(5), is not required to make any determination of government policy in that regard.
[43] Justice Woodhouse took s 190(5) to represent recognition by Parliament that the Instructions are a “blunt instrument” whose rigid application will occasionally require an exception to accommodate special circumstances.53 This is not to say that s 190(5) decisions will never involve questions of policy (his Honour considered CF involved a policy evaluation regarding New Zealand’s international reputation),54 but that the breadth of the discretion granted to the Minister will depend on the particular circumstances of each case.55 Where a case’s special circumstances do not give rise to new policy considerations the national interest (as determined by the Crown) will be fully reflected in the original decision, and the Minister’s focus under s 190(5) must be on the rights of individuals.56 Some circumstances will be insufficiently severe to warrant an exception, whereas others “plainly [will be] circumstances of a nature for which the power was granted and which require an exception to be made.”57
[44] Turning to the grounds for review, Woodhouse J considered the possibility of the residence visa being granted subject to conditions to be a mandatory relevant
50 At [56].
51 At [58].
52 At [58].
53 At [59].
54 At [60]–[61].
55 At [52].
56 At [65].
57 At [66].
consideration, distinct from whether a visa should be granted generally.58 Also mandatory was consideration of the relevant international obligations.59 With no evidence from which it could be inferred that the Associate Minister had considered the possibility of granting a visa subject to conditions the decision was set aside.60 Regarding international obligations, his Honour took the provisions of the relevant articles as supporting the conclusion that the consequences of the decision indicated error, but was not persuaded that it could be inferred that the Associate Minister had simply ignored all international obligations, noting that the Associate Minister expressly mentioned that, in considering a referral under s 190(5), he was “aware of New Zealand’s international obligations as they relate to immigration decision- making”.61
[45] Notably, Woodhouse J also held that it was possible, in the context of s 190(5), to determine error from the consequences of a decision:62
… [If] the consequence of the decision, assessed in light of the evidence known to be available to the decision maker, is harsh, oppressive, or unjust, to an extent that the circumstances must come within the purpose for which the power in s 190(5) was clearly provided, and the decision maker has chosen not to explain why such a decision was made, the decision should be set aside. The consequences of the decision may also indicate one or more of the following, which may also require that the decision be set aside: (1) a failure to have regard to all of the material evidence that was required to be considered; (2) a failure to understand from that evidence that refusal to grant a visa would have the particular consequences; and (3) the full range of consequences was recognised, but the Minister considered he or she was bound to apply the policy reflected in the instructions.
[46] His Honour considered the consequences of the decision were sufficient to conclude an error had been made. Fourteen factors pointed to the case being in the category for which the power to grant an exception was provided, in that the policy contained in the Instructions would produce unduly harsh, oppressive or unjust consequences.63 A fifteenth factor was that requiring Mrs Matua choose to either leave her family to care for her dependent daughter in Samoa or abandon that daughter was a choice that “no humane and just society would ever expect a mother and wife to have
58 At [79](d).
59 At [81] and [82].
60 At [111].
61 At [137].
62 At [95].
63 At [116].
to make”.64 No external policy justification had been identified by the respondent, and the policy underlying the Instructions could not suffice to warrant denying the exception.65
Intensity of review
[47] In submissions the parties traversed at length the appropriate approach to judicial review of a decision made pursuant to s 190(5). In short, counsel for the respondent contends that judicial review is limited to the grounds of Wednesbury unreasonableness and illegality (or error of law).66
[48] Regarding illegality, Ms Earl for the respondent says that where reasons are not required, as under s 190(5), it is difficult to infer that an error has been made and accordingly broad discretion should be given to the decision maker. Ms Earl relies on CF and Goundan, both of which emphasised the broad discretion of the Minister. She distinguishes the approach adopted in those cases from that in Matua and asks this court to find that Matua was wrongly decided. Mr Judd, counsel for Ms Zhang, responds that there is no need to distinguish the legal approaches but rather the facts of the cases, as the current case is much closer to Matua than the others, and in Matua Woodhouse J found the facts warranted closer scrutiny.
[49] The discussion of the Minister’s discretion in the three previous s 190(5) cases focuses largely on three factors which may limit the extent of the Court’s review of the Minister’s decision under s 190(5). Those are the policy content of the Minister’s decision; the statutory framing of the discretion (including the lack of a requirement that the Minister give reasons); and whether it is an “absolute” or an “ordinary” discretion.
64 At [120].
65 At [121].
66 See Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93, in which the Court of Appeal rejects a “correctness” standard at [41].
“Policy” decision
[50] In Goundan van Bohemen J stressed the “high policy content” to decisions under the Act, including under s 190(5): in making a decision under s 190(5) the Minister is making a decision that is not subject to established government policy.67 However, as discussed above, in Matua Woodhouse J cautioned against automatically assuming that decisions have high policy content.68 His Honour considered that where special circumstances in an individual case do not give rise to new policy issues, the national interest (as determined by the Crown) will be fully reflected in the original decision, and the Minister’s focus should be on individuals’ rights.69
[51] I agree with Woodhouse J’s approach. There is a distinction between determinations with significant policy content, or which have policy implications beyond the borders of the particular circumstances, and those which are focused on the individualised circumstances of the particular case without (or with very limited) policy ramifications.70 I do not consider that a decision can be characterised as a “policy decision” purely by reference to the fact that it involves a ministerial responsibility – there must be something more.71
“Absolute” or “ordinary” discretion
[52] In Matua Woodhouse J noted the distinction between two types of discretion conferred by the Act on the Minister and on immigration officers: an “absolute discretion” and a discretion which is not otherwise defined, but which he termed an “ordinary” discretion. 72 The meaning of absolute discretion is defined at s 11. Under the s 11 definition, the exercise of the powers affected cannot be applied for and there
67 Goundan v Immigration and Protection Tribunal, above n 29, at [19].
68 Matua v Minister of Immigration, above n 30, at [58].
69 At [65].
70 I am influenced in this comment by Chris Finn “The Justiciability of Administrative Decisions: A Redundant Concept?” (2002) 30 FL Rev 239 at 240; and Fiona Wheeler “Judicial Review of Prerogative Power in Australia: Issues and Prospects” (1992) 14 Syd LR 432 at 451.
71 See Finn, above n 70, at 249. In Matua v Minister of Immigration, above n 30, Woodhouse J surveyed examples of decisions giving rise to new policy considerations – such as whether an overseas qualification not recognised in New Zealand should nevertheless be accepted; whether a shortage of people with a relevant expertise should be met by granting an exception to a health criterion; and the appropriate response to the risk a particular individual posed to New Zealand’s international reputation at [60]–[62]; drawing on examples in Doug Tennent, Katy Armstrong and Peter Moses Immigration and Refugee Law (3rd ed, LexisNexis, Wellington, 2017) at [10.10.7].
72 Matua v Minister of Immigration, above n 30, at [53]–[56].
is no obligation to consider their exercise; there is also no duty to make any inquiries and no duty to give reasons where the powers are exercised. Some sections expand on the s 11 definition – such as s 177, which provides an absolute discretion as to the decision to cancel a deportation order served on a person unlawfully in New Zealand but sets certain parameters on when the decision maker must consider making a decision and requiring them to have regard to (and record details relevant to) relevant international obligations.
[53] Section 190(5) plainly does not give the Minister an absolute discretion. Where the Tribunal makes a recommendation the Minister “must” consider whether to grant the visa as an exception. Implicitly, the Minister must consider the circumstances of the applicant and balance New Zealand’s “national interest” and the rights of the individuals concerned, and may on the facts be required to consider New Zealand’s international obligations.73
[54] Many of the authorities relied on by the respondent to the effect that the Court’s ability to review a ministerial decision is necessarily very limited involved absolute discretions.74 While absolute discretion provisions allow much less room for judicial scrutiny, even there, judicial review is not ousted. Review must always be available to ensure that a power has been exercised in accordance with law, in good faith and for its proper purpose.75 As Hanna Wilberg notes in her useful discussion of absolute discretion provisions in New Zealand legislation:76
The intended effect of an ‘absolute discretion’ provision is likely to include discouraging judicial challenges. …
At one extreme, the phrase might represent an attempt at complete ouster of judicial review. However, this possible meaning has been rejected both by the courts and during the legislative process. Judicial review applies to ‘absolute
73 At [81]–[82]; and Immigration Act 2000, s 3(1).
74 See Ning v Minister of Immigration, above n 35; Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222; Singh v Chief Executive, Ministry of Business Innovation and Employment, above n 66; Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37, [2014] 2 NZLR 662; and Yure v Bentley HC Auckland M 1530-PL01, 8 November 2001.
75 Hanna Wilberg “Interrogating Absolute Discretion’: Are NZ’s Parliament and Courts Compromising the Rule of Law?” (2017) 45(3) FL Rev 451 at 551; citing Ning v Minister of Immigration, above n 35, at [24]; and Cao v Ministry of Business, Innovation and Employment [2014] NZHC 1551, [2014] NZCAR 871 at [36]. See also McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [31].
76 At 549.
discretion’ at least to some extent, at least in the context of the more significant powers where the point has been considered. Still, there is much appellate authority – all of it concerning the Immigration Act provisions – for considering review to be severely limited.
[55] Given s 190(5) is plainly not an absolute discretion I do not need to discuss these issues further. Conclusions about the scope of judicial review based on the authorities on absolute discretion cases are not applicable to s 190(5).
Absence of reasons
[56]Section 190(6) provides:
The Minister is not obliged to give reasons in relation to any decision made as a result of any consideration under s 190(5), and neither section 27 of this Act77 nor section 23 of the Official Information Act 198278 applies in respect of any such decision.
[57] The respondent relies on this provision in support of a submission that, in many respects, the Minister’s discretion under s 190(5) is similar to an absolute discretion. But the discretion not to give reasons is not an essential part of an absolute discretion. As Wilberg notes, some provisions expressly pair an ‘absolute discretion’ with a duty to give reasons.79 The inclusion of a provision such as s 190(6) does not magically turn an ordinary discretion into an absolute discretion.80
[58] As Woodhouse J noted in Matua, the fact that the Minister is not obliged to give reasons means that there is not a reviewable error merely because the Minister chooses not to give reasons.81 The lack of a record of the Minister’s reasoning process will generally mean there is no direct evidence of which matters were and were not taken into account.82 Nor can the quality of the reasoning process be subjected to direct scrutiny. But the decision can be assessed for reviewable error having regard to the statutory context and the evidence, which will include evidence established to have
77 Headed “Reason for decisions must be given if visa or entry permission refused to certain persons”.
78 Headed “Right of access by person to reasons for decisions affecting that person”.
79 At 550. One example is s 24 of the Social Workers Registration Act 2003.
80 Matua v Minister of Immigration, above n 30, at [57].
81 At [67]–[68].
82 At [67]; see also CF v Attorney-General, above n 28, at [93]–[94]; and Ning v Minister of Immigration, above n 35, at [46].
been put before the Minister, and any matters the Minister was bound to consider.83 In certain cases the Court may be required to infer reasons in the absence of given reasons, and those inferences may be adverse, suggesting the decision was flawed.84
[59]In Ning v Minister of Immigration Thomas J said:85
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.
[60] This is not a case where the Court lacks access to the full range of information upon which the Associate Minister’s decision is based. Mr Faafoi’s affidavit makes it plain that he looked only at the Tribunal’s decision, as provided to him under the cover letter, that he did not seek further information and that he followed his usual decision- making process as set out above at [16]. He also noted that, when considering Tribunal requests that he consider making an exception to residence instructions, he “was aware of New Zealand’s international obligations as they relate to the making of international decisions.”
Analysis
[61] I will begin by assessing the mandatory considerations ground of review, before addressing the second and third grounds (that the consequences of the decision indicate error and unreasonableness) together.
Failure to consider mandatory considerations
[62] Ms Earl, for the respondent, submits that there is no evidence that the Tribunal Decision, the purpose of the Act or the relevant international conventions were overlooked by the Associate Minister. The Associate Minister’s sworn affidavit
83 Matua v Minister of Immigration, above n 30, at [67]; and Nair v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 345, at [37]–[38]. I note that Nair was overturned on appeal, but not on the point which is relevant here.
84 Nair v Chief Executive of the Ministry of Business, Innovation and Employment at [38]–[40].
85 Ning v Minister of Immigration, above n 35, at [46].
specifically states that he considered the Tribunal’s decision and that he was aware of New Zealand’s international obligations. In addition, although not referring to the international obligations by name, the Tribunal Decision addressed them in substance, so it can be inferred that the Associate Minster had regard to them. Regarding whether he considered the imposition of conditions on a residence class visa Mr Faafoi’s affidavit notes he was aware of that ability and counsel submits that it is unclear what purpose imposing conditions could serve in the circumstances of the present case.
[63] The Act does not expressly specify the considerations that the Minister must take into account when making a decision under s 190(5). However, a statute may impliedly identify considerations which are mandatory for a Minister to take into account when exercising a discretion.86 In my view the following were mandatory considerations for the Associate Minister in this case:
(a)the Tribunal Decision, including its assessment of the appellant’s special circumstances;
(b)section 3(1) of the Act;
(c)the provisions of international instruments bearing on the rights of the individuals affected by the decision, in this case the applicant, her husband and their two children; and
(d)whether a residence class visa should be granted subject to conditions.
Appellant’s special circumstances
[64] The Associate Minister says in his affidavit that he “considered the factual background outlined in the Tribunal’s decision, and the Tribunal’s description of the special circumstances specific to the applicant (and her family).” There is nothing to challenge this account.
86 Auckland City Council v Minister of Transport [1990] 1 NZLR 264 (CA) at 293.
Section 3
[65] Section 3 of the Act relevantly states that “the purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.” As I understand it, the applicant’s argument is that the national interest (as embodied in the Instructions) was fully reflected in the original decision and the Associate Minister was therefore required to focus on the rights of individuals.87 I consider that ground too is addressed by the Associate Minister’s express statement that he considered the specific circumstances of the applicant and her family as they were set out in the Tribunal’s decision.
New Zealand’s international obligations
[66] I accept there was a mandatory obligation on the respondent to consider New Zealand’s international obligations, specifically (as in Matua) arts 17 and 23 of the ICCPR, but also art 3 of the United Nations Convention on the Rights of the Child (UNCROC).
[67] Article 17 of the ICCPR provides for legal protection against arbitrary or unlawful interference with individuals’ privacy, family, home or correspondence, as well as unlawful attacks on their honour and reputation. Article 23 states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State” and sets out rights protecting marriages as well as providing for consent and equality in marriages. Article 3 of the UNCROC states that the best interests of the child shall be a primary consideration in all actions concerning children undertaken by public institutions, including public welfare institutions, courts of law, administrative authorities and legislative bodies. It relevantly requires that states “undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”
87 As the Court found in Matua v Minister of Immigration, above n 30.
[68] The Associate Minister says he considered the Tribunal Decision. He also deposes that in considering requests for him to grant an exception to residence instructions he was “aware of New Zealand’s international obligations as they relate to the making of immigration decisions.” The Tribunal Decision does not refer specifically to any of New Zealand’s international obligations, although it does canvas the difficulties Ms Zhang and her husband and children would face in being able to live together as a family in China were a visa not granted88 and makes extensive reference to the best interests of her son and (then) unborn child.89
[69] Can the Court reasonably conclude from the Associate Minister’s statement as to his usual practice that he was “aware” of New Zealand’s international obligations and from the factual references in the Tribunal Decision that he did have adequate regard to the relevant international obligations?
[70] I bear in mind Thomas J’s observation in Ning that the absence of reasons alone does not lead to the inference that the decision has been made without requisite consideration.90 However I also heed Duffy J’s view in Nair (which was overturned on appeal, but on a different basis) that where reasons are not given “unless it can be inferred from the information available to the Court that [the decision maker] paid proper regard to [the relevant] obligations, the Court cannot be satisfied on the balance of probabilities that he did so. Merely listing those obligations in his decision will not suffice.”91 Consideration of mandatory considerations must be genuine, and not tokenistic or superficial.92
[71] Without simply assessing the outcome the Associate Minister reached in terms of whether it was “correct” or not (and recognising that the Associate Minister was entitled to weigh the balancing of competing factors himself), I note, as in Matua, that the consequences of the decision he reached cut against the best interests of the family
88 ZD (Partnerhsip), above n 1, at [38]–[42].
89 At [46]–[51] and [55]–[56].
90 Ning v Minister of Immigration, above n 35, at [46].
91 Nair v Chief Executive of the Ministry of Business, Innovation and Employment, above n 83, at [42].
92 At [46]; and Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 (CA) at [90]; and O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at [30]–[35].
unit and the child, which are the subject of the relevant international obligations.93 In that context, had the Associate Minister wanted to dispel any doubts that he did genuinely consider those obligations he could have set out that his usual practice included considering them directly, or indicated how he usually reasoned regarding New Zealand’s international obligations in the context of s 190(5) decisions. On the affidavit as written, all the Court can be sure of is that he was aware of New Zealand’s international obligations as they relate to the making of immigration decisions in a general sense. In the particular context of Ms Zhang’s case, I do not consider this a sufficient basis on which I can confidently infer that he did in fact consider, in a genuine and discrete way, the significance of the ICCPR or the UNCROC arts in making the decision to decline her a visa. Nor was the Minister assisted by the Tribunal Decision – while it did discuss the best interests of the children, in my view those interests should have been assessed in the specific context of the relevant international obligations.
[72] I consider this points to a material error, such that the decision should be reconsidered by the Minister.
Grant of visa on conditions
[73] In Matua Woodhouse J took the view that s 190(5) requires the Minister to consider three options: granting a visa as an exception; granting a visa as an exception but with conditions; or declining to grant a visa.94 In that case the Associate Minister’s description of his process under s 190(5) did not include any reference, explicit or implicit, to considering whether to grant a visa as an exception but subject to conditions.95 Similarly, there was nothing in the Tribunal decision which might have directed the Associate Minister’s attention to conditions.96 Whether any particular condition or conditions might suffice to address particular concerns was a question for the decision maker – the Court’s focus was merely on whether that consideration had been undertaken.97
93 Matua v Minister of Immigration, above n 30, at [137].
94 At [85].
95 At [106].
96 At [107].
97 At [110].
[74] The evidence in this case was somewhat different. The Associate Minister specifically noted that he followed the usual decision-making practice of his office in cases such as this. In describing that process he deposed “I was aware that …. I was able to impose conditions on the visa or grant a visa without imposing conditions.” The submissions also note that the backing sheet attached to the Tribunal Decision, on which the Associate Minister actually recorded his decision, gave him two options: “grant with/without conditions a resident visa to YAN ZHANG as an exception to instructions” or “decline to grant a resident visa as an exception to instructions”.
[75] The question for this Court is whether it can be inferred from that statement that the Associate Minister actually turned his mind to consider whether it was appropriate to apply any conditions in this case.
[76] While the Associate Minister did not specifically state that he had regard to the ability to impose conditions (only that he was aware of them), in the context as a whole I am unable to infer that he did not give genuine consideration to whether a residence visa might be granted to Ms Zhang subject to conditions. He was aware of his ability, and the document on which he recorded his decision explicitly mentioned it.
Second and third grounds of review – approach
[77] Ms Zhang’s second ground of review is that the consequences of the Decision are harsh, oppressive and unjust and are the very reason and purpose for the ability to grant an exception in s 190(5). Her third ground is essentially that the Decision was unreasonable.
[78] Ms Earl for the respondent argues the two grounds overlap – with the second ground simply being an attempt to conduct an unreasonableness review using a harsher “correctness” standard.98 The respondent submits that the proper approach to unreasonableness is the traditional Wednesbury standard.99 To the extent the second ground suggests there has been an error of law, the respondent says that it is difficult
98 See Tamil X v Refugee Status Appeals Authority [2009] NZCA 488, [2010] 2 NZLR 73; and the “rigorous” approach taken in Matua v Minister of Immigration, above n 30, at [93]–[94].
99 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 66, at [41].
to see how any reviewable error can be inferred in the absence of reasons. The respondent characterises the applicant’s position as essentially arguing that there was only one viable outcome from the proper application of the discretion, which Ms Earl says is inconsistent with the discretion that the respondent is given under the Act.
[79]Ms Earl makes the same point in the context of Wednesbury unreasonableness
– that the standard is high and there was more than one outcome reasonably available to the Associate Minister. Ms Zhang’s familial circumstances were not so compelling that the only reasonable option was to grant her residence, and therefore the decision was not unreasonable.
[80] The respondent points to a number of cases as supporting the notion that there is a standard approach to the review of all immigration discretions, regardless of whether the discretion in question is absolute or ordinary.100 This approach acknowledges that immigration decisions are typically in the realm of the executive and that the Court ought to defer to the Minister unless the decision has been unreasonable or there has been a clear error of law. It draws on the broad powers given to the Minister, the high policy content of the decisions, the repeated refusal of the courts to infringe on the sphere of the executive and the differences in legislative context that render the more intrusive review undertaken in the United Kingdom inappropriate.101 In this manner there is a general review approach that is to be taken to all immigration cases. That approach is consistent with the remarks of Moore J in CF and with the overall approach adopted by van Bohemen J in Goundan.
[81] I have already set out that I am not influenced by the authorities cited discussing absolute discretion provisions in assessing the scope of review for the ordinary discretion under s 190(5). Similarly, I have already addressed the Court’s approach to the lack of a requirement that the Associate Minister provide reasons for his decision.
100 See Singh v Chief Executive, Ministry of Business, Innovation and Employment, above n 66; Puli'uvea v Removal Review Authority 14 FRNZ 322 (CA); and Huang v Minister of Immigration [2008] NZCA 377; [2009] 2 NZLR 700.
101 See Singh, above n 66, at [64].
[82] In Wolf v Minister of Immigration Wild J set out a short history of unreasonableness review, before commenting:102
Whether a reviewing Court considers a decision reasonable and therefore lawful, or unreasonable and therefore unlawful and invalid, depends on the nature of the decision: upon who made it; by what process; what the decision involves (ie its subject matter and the level of policy content in it) and the importance of the decision to those affected by it, in terms of its potential impact upon, or consequences for, them.
[83] In Matua Woodhouse J was satisfied that the context of the case required a “rigorous appraisal” of the Associate Minister’s decision.103 Relevant context included:104
the nature and extent of the Minister’s powers under s 190(5); the purpose of the power under s 190(5); those matters assessed in relation to the facts of this case as put before the Associate Minister in the Tribunal’s decision; because the Associate Minister chose not to provide reasons, the absence of any evidence that the decision required the Associate Minister to weigh new matters of policy; and the effect of the decision on individuals, being both applicants, and other individuals in their immediate family.
[84] That approach is consistent with the Court of Appeal’s recent comments in Kim v Minister of Justice (which dealt with an extradition decision) that the implication of human rights concerns warrants a more rigorous standard of review.105 The Court endorsed remarks by the High Court that where fundamental human rights are at stake a “heightened scrutiny” standard is appropriate, which does not amount to merits review but will require the Court to:106
...ensure the decision has been reached on sufficient evidence and has been fully justified, while recognising that Parliament has entrusted the Minister (not the courts) to undertake adequate enquiries and to exercise her judgment on whether surrender should be ordered.
102 Wolf v Minister of Immigration [2004] NZAR 427 (HC) at [47]. At [65] his Honour held that the fact that the decision’s consequences would involve breaking up a New Zealand family unit, coupled with New Zealand’s obligations under relevant international treaties, obliged the Court to scrutinise the decision of the Deportation Review Tribunal carefully and closely.
103 Matua v Minister of Immigration, above n 30, at [94].
104 At [93] (footnotes omitted).
105 Kim v Minister of Justice [2019] NZCA 209, [2019] 3 NZLR 173 at [45]–[47]. I note that the Court did not appear to regard the issue of heightened scrutiny review as controversial. This has led to some academic debate about the extent to which heightened scrutiny review is available and how it will be applied. See Hanna Wilberg “Administrative Law” (2019) 4 NZ L Rev 487 at 497.
106 Kim v Minister of Justice [2016] NZHC 1490, [2016] 3 NZLR 425 at [7].
[85] The human rights ramifications of this case are less severe than those in Kim (which involved a risk that the subject of the decision might face torture or be subjected to an unfair trial if surrendered for extradition), but the impact the decision will have on Ms Zhang’s family and children in particular raises rights concerns. I note that this cuts somewhat against the Court of Appeal’s statement in WK v Refugee and Protection Officer that Wednesbury remains the governing test in that Court of unreasonableness in an immigration context.107 In a footnote the Court listed Wolf amongst a list of “conflicting” High Court authorities suggesting greater intensity of review.108 The Supreme Court has also granted leave to the Minister to appeal the decision in v Kim.109
[86] In any event, the submission that a Wednesbury standard is appropriate raises the question of what that entails. In Wednesbury Lord Greene defined unlawful unreasonableness as arising where a decision maker has taken the correct matters into account and followed correct procedure, but nonetheless “come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”110 Justice Palmer in Hu v Immigration and Protection Tribunal noted this language is somewhat circular, in defining unreasonableness by reference to itself.111 His Honour pointed to the Supreme Court’s account of when a finding of fact becomes an error of law in Bryson v Three Foot Six Ltd as preferable to the tautologous language in Wednesbury:112
An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law [because] proper application of the law requires a different answer.
[87] The Supreme Court in that case drew on the words of Viscount Simonds for the UK Court of Appeal in Edwards v Bairstow, that “a view of the facts which could not reasonably be entertained” can constitute an error of law.113 In applying that
107 WK v Refugee and Protection Officer [2018] NZCA 258, [2019] 2 NZLR 223 at [51].
108 At n 23.
109 Minster of Justice v Kim [2019] NZSC 100.
110 Associated Provincial Picture Houses Limited v Wednesbury Corporation, above n 34, at 233– 234.
111 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [22]–[27].
112 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26]; cited in Hu v Immigration and Protection Tribunal, above n 111, at [28]; and citing Edwards v Bairstow [1956] AC 14 (HL).
113 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, [1955] 3 All ER 48 at 29.
approach to an exercise of discretion Palmer J did not intend that it be an all- encompassing definition of unreasonableness, rather that it provide operational content to assist in the determination of unreasonableness.114 Such a reading reconciles the two “novel” approaches to error of law that Ms Earl argues Woodhouse J adopted in Matua, by framing them as a means of assessing reasonableness – not lowering the standard, but providing a means of understanding it.
[88] Framed in that way it seems to me that the applicant’s second and third grounds of review cover the same question: was the Associate Minister’s decision in this case so unsupportable or untenable that proper application of the law requires a different answer?
[89]The Tribunal concluded:115
Considered cumulatively, the Tribunal finds that the appellant has special circumstances, arising from the best interests of her New Zealand-citizen son and unborn child, her genuine and stable partnership with her New Zealand- citizen husband, the lack of other viable pathways for her to obtain residence, and her husband and son’s difficulty in relocating to China. These warrant consideration by the Minister of Immigration of an exception to the instructions.
[90] I have set out above the many factors identified by the Tribunal as cumulatively amounting to “special circumstances”.116 I have also had regard to the objectives of the Family categories of the Instructions and the exacting criteria which applicants must satisfy. The applicant met all of the substantive criteria. The sole reason her application did not meet the requirements in the Instructions was Mr Chen’s deemed ineligibility to sponsor her application.117
[91] These factors indicate that this is clearly the kind of case for which the power to grant an exception was provided. In my view, the reasons for Mr Chen’s ineligibility and therefore Ms Zhang’s application being unsuccessful were technical, rather than substantive in nature.118 The effect of the policy contained in the residence
114 Hu v Immigration and Protection Tribunal, above n 111, at [30].
115 ZD (Partnership), above n 1, at [56].
116 At [12] of this judgment.
117 Which I have referred to earlier at [7]–[8].
118 In particular I note that the Tribunal was satisfied that all three of Mr Chen’s relevant relationships were genuine rather than being devices for immigration.
instructions will produce consequences for the applicant and her family which are harsh, oppressive and unjust.
[92] The Associate Minister’s affidavit confirms that he made his decision on the basis of the Tribunal Decision; he did not need or seek additional material. As I have earlier found, the policy considerations reflected in the Instructions were “exhausted” in the Tribunal Decision. I infer from the Associate Minister’s affidavit that he did not have regard to other policy considerations in reaching his decision. Nor is this a case where other policy issues, such as the potential for the granting of a residence visa to have implications for costs or demands on New Zealand’s health system, are at play.119 The decision to grant an exception bore significance only for Ms Zhang and her family
– not for the wider immigration system.
[93] As such, I consider the decision was unreasonable, and that its unreasonableness was a material error warranting reconsideration.
Result
[94] I conclude that there were material errors by the Associate Minister in declining to grant a residence visa to the applicant as an exception to the residence instructions, in that:
(a)the Associate Minister failed to have adequate regard to the mandatory relevant considerations of New Zealand’s international obligations; and
(b)the Associate Minister’s decision was unreasonable in that it was not supported by any evidence, is inconsistent with or contradictory of the evidence and the only reasonable conclusion contradicts the determination.
[95] Those errors require that the decision be set aside. I make the following orders in respect of the decision:
119 See Goundan v Immigration and Protection Tribunal, above n 29, at [19]; and Matua v Minister of Immigration, above n 30, at [58].
(a)The decision is set aside.
(b)The decision is referred back to the Minister for reconsideration of the recommendation of the Tribunal in its decision of 8 March 2019.
(c)The Minister’s reconsideration should take account of the conclusions of law in this judgment.
(d)Counsel for the respondent gave an undertaking at the hearing that no enforcement action would be taken against Ms Zhang pending my judgment and, should it be ordered, the Associate Minister’s reconsideration. My expectation is that no action will be taken until after the Associate Minister’s decision is made.
Costs
[96] The applicant is entitled to costs to be assessed on a 2B basis, together with reasonable disbursements. Any issue in relation to quantification of costs or as to reasonableness of disbursements is to be determined, in the first instance, by the Registrar.
Suppression
[97] Pursuant to cl 19 of sch 2 of the Immigration Act 2009, the Tribunal ordered that, until further order, the research copy of its decision be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant and her family.120
[98] This was not brought to my attention or discussed at the hearing. I do not consider there is any serious possibility that the safety of the applicant or any other person would be endangered by the disclosure of the information to warrant suppression. In case I am mistaken, I will direct that this judgment be released to the parties, who will then have two working days to file memoranda as to suppression or
120 ZD (Partnership), above n 1, at [59].
anonymisation, should they wish to do so. Following that point I will revisit the issue and either allow for the full publication of this judgment or amend it accordingly.
Gwyn J
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