ZT v Chief Executive of the Ministry of Business Innovation and Employment
[2019] NZHC 2513
•3 October 2019
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-000723
[2019] NZHC 2513
IN THE MATTER OF Sections 245, 247, 249 and 249A of the
Immigration Act 2009
BETWEEN
ZT
Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND
EMPLOYMENT
First RespondentTHE IMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent
Hearing: 23 September 2019 Counsel:
I C Carter for the Applicant
S P Jerebine and S P R Conway for the First Respondent No Appearance of, or for the Second Respondent
(Attendance previously excused)Judgment:
3 October 2019
JUDGMENT OF EDWARDS J
This judgment was delivered by me on 3 October 2019 at 3.00 pm.
Registrar/Deputy Registrar
ZT v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2019] NZHC 2513 [3 October 2019]
[1] ZT applies for leave to appeal and to judicially review the decision of the Immigration and Protection Tribunal (Tribunal) upholding a decision of an officer of Immigration New Zealand (INZ) declining ZT a residency visa.
[2] The application was made under the Family (Partnership) category. Such an application requires the support of an “eligible’ partner. ZT’s partner was not an eligible partner because he has convictions for offences of a sexual nature from between 2007 and 2010, and he was not granted a character waiver.
[3]ZT seeks leave to appeal on three grounds, namely:
(a)The Tribunal misapplied the relevant residency instruction in that it failed to make the required assessments in light of their purpose.
(b)The Tribunal failed to give adequate reasons for its decision.
(c)The Tribunal’s ultimate conclusion is so insupportable and untenable that the proper application of the law requires a different answer (characterised by ZT’s counsel as a challenge on Edwards v Bairstow grounds).
[4] Leave to judicially review the decision is sought on the ground that it is seriously arguable that the Tribunal’s decision was “unreasonable” (in the Wednesbury1 sense), and that this ground of review cannot be pursued on appeal.
The application
[5] ZT is nearly 54 years of age, and her husband is nearly 75 years of age. ZT met her husband in 2012 when she was in New Zealand on a visitor’s visa. She returned to China in October 2012 and came back to New Zealand in August 2013. The couple were married in October 2013. It is accepted by all parties that ZT and her husband are in a stable and genuine relationship.
1 Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223.
[6] ZT became unlawfully in New Zealand in June 2014. She lodged a humanitarian appeal against deportation which the Tribunal declined on the basis there were no exceptional humanitarian circumstances that would make it unduly harsh for her to be deported. As a result, ZT and her husband relocated to China in April 2015.
[7] On 2 November 2015, ZT lodged her first application for residence under the Family (Partnership) category. The immigration instructions at that time prevented any person who had been convicted of a sexual offence in New Zealand in the previous seven years as meeting the required character requirements to be able to sponsor the application unless granted a character waiver.
[8] ZT’s husband has been convicted of two offences of an indecent act on a young person under 16.2 The offending took place between 2007 and 2009 when ZT’s husband was in charge of a pony school. Both incidents involved the same victim who was attending that pony school. The first offence involved touching the victim’s breasts under her clothing, and the second involved rubbing the victim on her stomach under her clothing.
[9] In sentencing ZT’s husband, the Judge said that although the sentencing was serious from the victim and her family’s point of view, it was not the most serious offending of its type. ZT’s husband was sentenced to six months’ community detention, 300 hours’ community work, and one year’s supervision for the offending.
[10] On 8 August 2016, INZ declined to grant ZT a residence class visa solely on the basis that she did not have an eligible supporting partner. ZT then appealed that decision to the Tribunal on 19 September 2016. The Tribunal upheld INZ’s decision but indicated that ZT would be able to apply for residence again after 12 August 2017, when the seven-year restriction would no longer apply.
[11] ZT lodged her second application for residency on 9 November 2017. By this time the seven-year restriction in the applicable rule had been removed, and ZT’s application was supported by her husband. However, ZT was told that due to his convictions her husband might not meet the eligibility criteria unless granted a
2 Crimes Act 1961, s 134(3).
character waiver. An application for a character waiver was subsequently declined, and INZ declined ZT’s second application for residence on the basis that she did not have an eligible supporting partner.
[12] ZT subsequently appealed INZ’s decision to the Tribunal. She appealed on the basis that the relevant decision was not correct in terms of the “residence instructions” applicable at the time, or special circumstances existed such that a consideration of an exception to those residence instructions should be recommended.
[13] As discussed further below, the Tribunal dismissed the appeal on the first of those grounds but found that there were special circumstances warranting consideration of an exception. ZT’s application was subsequently referred to the Minister of Immigration, who declined to grant an exception. ZT has commenced judicial review proceedings of that decision. Those proceedings are stayed pending the outcome of this leave application.
[14] It is apparent that ZT’s husband struggled with the social isolation of living in China, and he also had a number of health issues. After four years in China, he returned to New Zealand in March 2019. His health issues include neck arthritis, atrial fibrillation and squamous cell carcinoma. He is also suffering from depression for which he is receiving treatment. As a consequence of ZT’s application for residency being declined, ZT is unable to join her husband in New Zealand and they are currently living apart.
The legislative framework
[15] Sections 71 to 75 of the Immigration Act 2009 govern applications for residence class visas. A decision on an application for a residence class visa must be made in terms of the residence instructions applicable at the time the application was made, and any discretion must be exercised in terms of those instructions.3
[16] The relevant residence instructions are found in the Family Category section of INZ’s Operation Manual. The objectives of the Family Category are to “strengthen
3 Immigration Act 2009, s 72(1).
families and communities, while reinforcing the Government’s overall objectives in immigration instructions” and to “contribute to New Zealand’s economic transformation and social development”.4
[17] ZT’s application was made under the Partnership Category. F2.1 sets out the objective of that category as contributing to the overall objective of the Family Categories “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”.5
[18] F2.5 sets out the requirements that partners of New Zealand citizens and residents must meet to qualify for a residence class visa. F2.5d(i) provides that an application under the Partnership Category will be declined if “the application is not supported by an eligible New Zealand citizen or resident partner”. In order to be “eligible”, the New Zealand partner must meet the character requirement set out in R 5.95.6 The instruction that was in force at the time the second application was made was as follows:
R 5.95 Character requirement for partners supporting Partnership Category applications
a.Any supporting partner who has been convicted either within New Zealand or any other country of:
i.any offence involving domestic violence; or
ii.any offence of a sexual nature
will not meet the character requirement for partners supporting Partnership Category applications, unless granted a character waiver (see R 5.95.5 below).
b.If the supporting partner does not meet the character requirement for partners supporting partnership application, the application may be declined.
[19] A prior version of this instruction provided that a supporting partner who had been convicted “in the seven years prior to the date the application was made” would
4 Residence Instructions, F1.
5 Residence Instructions, F2.1.
6 R F2.10.10(a)(iv), definition of “eligible to support a residence class visa application under the Partnership Category”.
not meet the character requirements. That instruction was in force when ZT made her first residence visa application in 2015 and the convictions of ZT’s husband fell within the seven-year period.
[20] In assessing an application, R 5.95.5(a) provides that immigration officers must not automatically decline partnership applications on the basis that the supporting partner does not meet the character requirement. R 5.95.5(b) sets out the considerations relevant to the assessment of the application as follows:
b.Officers must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the character requirement. The circumstances include but are not limited to the following factors as appropriate:
i.if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine); and/or
ii.whether there is more than one offence; and/or
iii.how long ago the relevant event occurred
The Tribunal’s decision
[21] As noted above, the Tribunal considered both the correctness of the decision and whether there were any special circumstances warranting consideration of an exception to the residence instructions. The application for leave only applies to the Tribunal’s finding that INZ’s decision was correct in terms of the residence instructions.
[22] The Tribunal’s analysis regarding correctness was encapsulated in the following six paragraphs:
[32] Immigration New Zealand was correct not to automatically decline the appellant’s application on the basis that her supporting partner did not meet the character requirement because of his previous conviction for offences of a sexual nature.
[33] The Tribunal is satisfied that Immigration New Zealand undertook a fair process in its assessment of the character waiver, including by providing an opportunity for information and evidence to be provided and consideration of relevant evidence provided at the time. It took into account the three considerations expressly set out at R 5.95.b, but did not limit its enquiry to a consideration of those factors.
[34] At the time of the waiver, the evidence produced to Immigration New Zealand was a sufficient basis for it to conclude that the husband “was regularly receiving medical treatment in China” which, as submitted by the representative was “adequately” “controlling” the medical conditions he was suffering from at the time. Further, medical evidence had not been provided establishing the husband’s mental health difficulties.
[35] The Tribunal observes that while Immigration New Zealand referred to the change to the immigration instructions (from a seven-year bar to supporting the application, to a permanent bar), it simply recorded that the changes had been made, but it did not give full consideration to the impact of those changes on the couple and their relationship. In addition, Immigration New Zealand referred to the appellant’s previous appeals, which were declined by the Tribunal, as “other considerations / neutral factors”. The inclusion of references to declined appeals, without any assessment of the substance of the decisions, including the fact that a pathway for residence was still available for the appellant at the time of each decision, results in them appearing to be negative factors.
[36] Notwithstanding these concerns, the Tribunal is satisfied that Immigration New Zealand’s consideration of relevant factors was sufficient to meet the requirements of fairness and natural justice and the conclusion reached was based on available evidence.
Conclusion on correctness of decision
[37] Procedurally, Immigration New Zealand’s assessment of the husband’s character issue and character waiver were undertaken correctly. Its decision in relation to the husband’s character waiver was arrived at fairly, was an outcome open to it on the facts, and was therefore correct.
[23] The Tribunal’s analysis of the special circumstances was more in-depth but because that part of the judgment is not subject to appeal it is unnecessary to refer to the Tribunal’s findings in that respect.
Should leave to appeal be granted?
[24] The application for leave is made under s 245 of the Immigration Act. The legal principles are not in dispute and it is unnecessary to set them out in any detail here. For present purposes it is enough to note that the section allows for an appeal on a question of law that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
[25] As to the first of the three alleged errors of law (set out at [2] above), Mr Carter, on behalf of ZT, submits that the INZ and the Tribunal failed to assess the R 5.95.5 requirements in light of their purpose. That, in his submission, resulted in an error in
the assessment of the offending as serious, improper reliance on the Tribunal’s previous decisions, and an undue emphasis on the risk of re-offending.
[26] There is no dispute that immigration rules are to be construed in light of their purpose. This is consistent with the approach mandated in s 5(1) of the Interpretation Act 1999 and Court of Appeal authority to the effect that Government immigration policy must be construed sensibly according to its purpose and wider context.7
[27] Mr Carter submits that the purpose of the character requirements may be found in R 4.1. That instruction appears in sub-part 4 of the Residence Instructions dealing with sponsorship for residence class visas. That instruction provides as follows:
R 4.1 Objective
A New Zealand sponsor is a requirement in some residence categories in order to:
a.improve settlement outcomes for the applicant; and
b.ensure that the applicant has a means of support in New Zealand; and
c.protect the Crown from the potential cost of the applicant seeking government assistance.
[28] The Chief Executive accepts that these objectives are relevant to the assessment of the factors in R 5.95.5. It is not appropriate for me to express a view on whether these are the relevant objectives underpinning the instructions or whether there may be others. For the purposes of this leave application, I accept that it is seriously arguable that they are, and assessment of each of the three limbs of R 5.95.5 must be considered in light of these objectives. That is, the assessment of the surrounding circumstances, and in particular the seriousness of the offence, the number of offences, and how long ago the relevant event occurred, must be undertaken through a R 4.1 lens.
[29] I also accept that the failure to carry out the assessment through a purposive lens might result in irrelevant factors being taken into account in assessing the R 5.95.5
7 Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271; Roger Haines Laws of New Zealand Immigration (online ed) at 4.27.
requirements and result in a decision that is erroneous at law. The question in this case is whether it is seriously arguable that the Tribunal erred in this respect.
[30] The Tribunal did not engage in any in-depth review of the R 5.95.5 factors itself. As Ms Jerebine put it, there was a “carving out” of the consideration of the prior Tribunal decisions, but otherwise a reliance on all the other factors addressed by INZ in its decision. It is relevant then to look at the INZ decision.
[31] The INZ decision records the assessment of circumstances under positive and negative headings. As the Tribunal noted, the three requirements set out in R 45.95.5(b) were taken into account as were other surrounding circumstances. But I accept that it is seriously arguable that INZ failed to undertake this assessment in light of potential settlement outcomes for ZT, whether she had means of support, and the protection of the Crown from the potential cost of seeking government assistance.
[32] That arises from the INZ’s characterisation of the seriousness of the offending. INZ noted that the offending was at the lower end of the scale, but that the offence was serious given the impact on the victim. It was also noted that the conviction was of a serious violent crime in accordance with the Crimes Act 1961. Those conclusions are indisputable when considering the nature of the offence and the impact on the victim. They may be relevant when the character of the applicant is at issue. But here it is not the character of the applicant that is in issue, but the character of her supporting partner. Arguably, a purpose-driven assessment of the seriousness of the offending should be undertaken from a different standpoint, and may result in a different characterisation of the seriousness of the offending.
[33] I express no view on the merits of these appeal grounds or whether there may be other examples where, arguably, the INZ (and accordingly the Tribunal) took into account irrelevant factors as a result of a failure to undertake the assessment in light of purpose. In terms of this leave application, I accept that it is seriously arguable that the assessment undertaken was not in accordance with the underlying purpose of the instruction and the objectives in R 4.1.
[34] The correct approach to assessing the R 5.95.5 factors is a matter that has wider application than just this case and may affect other applications under the Family (Partnership) category where character waivers are in issue. It is a matter of general and public importance. This ground for leave is accordingly made out. Leave to appeal is granted on the question set out at the end of this judgment.
[35] The other two grounds proffered in support of leave may be disposed of relatively briefly. The Tribunal’s reasons on the correctness of the decision (as opposed to special circumstances) were very briefly stated. But it was nevertheless clear that the Tribunal had considered all the material before it, and, other than references to past decisions, agreed with the INZ’s assessment. I do not consider the absence of detailed reasons in this case raises questions of general or public importance or gives rise to any other reason for leave to be granted.
[36] Similarly, the threshold for establishing the type of error alleged in the third ground for leave (as formulated in Edwards v Bairstow) is very high.8 I am not persuaded that it is seriously arguable that the Tribunal’s ultimate conclusion was so clearly insupportable or untenable that the proper application of the law requires a different answer. There was an evidential basis to support the assessments made by INZ (and upheld by the Tribunal), with the only potential error, as I have identified, being that the assessments were not made in light of the underlying purpose of the rule. The application for leave to appeal in relation to these two grounds is accordingly declined.
Should leave to judicially review be granted?
[37] The application for leave to review a decision is made under s 249 of the Immigration Act. Under s 249(6) a Court determining an application for leave must have regard to:
8 Edwards v Bairstow [1956] AC 14 (HL). See also Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
(a)whether review proceedings would involve issues that could not be dealt with in an appeal against the final determination of the Tribunal; and
(b)if (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
[38] Mr Carter, on behalf of ZT, concedes that all but one of the grounds put forward in support of the application for judicial review may be argued on appeal. However, he says that a challenge to the decision based on Wednesbury unreasonableness is a challenge that can only be made in an application for judicial review and is something different in kind to the Edwards v Bairstow ground put forward in support of the leave to appeal application.9
[39] It is not necessary for me to consider the arguments concerning whether Wednesbury unreasonableness remains an available ground for judicial review, or whether it is really so different to the Edwards v Bairstow challenge that it involves an issue that could not be dealt with in any appeal. Nor is it necessary to consider the Chief Executive’s argument that because ZT is outside New Zealand, she is precluded by s 187(8) from bringing review proceedings.
[40] That is because, even if all those hurdles could be overcome, I am not satisfied that this is a case that comes anywhere close to the very high standard required to entertain a claim of Wednesbury unreasonableness. As previously noted, there was a foundation for the conclusions reached by the INZ and endorsed by the Tribunal. It cannot be seriously argued that the decision of the Tribunal was so unreasonable as to constitute an error of law.
[41]The application for leave to judicially review is accordingly declined.
9 See Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223; and Edwards v Bairstow [1956] AC 14 (HL).
Result
[42]The application for leave to appeal is allowed on the following question:
Did the Tribunal err in law by failing to assess the surrounding circumstances in R 5.95.5 in light of the underlying purpose of that assessment?
[43]The application for leave to judicially review is dismissed.
Edwards J
Counsel: I C Carter, Wellington
S P Jerebine, Auckland
Solicitors: Crown Law, Wellington
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