AD v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2020] NZHC 1010

AD v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2020]NZHC 1010 [15 May 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-522[2020] NZHC 1010UNDER the Immigration Act 2009IN THE MATTER of an application for judicial review of adecision of Immigration New ZealandBETWEEN ADApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 20 November 2019Appearances: J H Cottrell, A C Harris and M Miville Fogliani for ApplicantS P Connolly and E J Cameron for RespondentJudgment: 15 May 2020JUDGMENT OF CLARK J[1] This judgment determines two preliminary issues arising from AD'sapplication to judicially review two immigration decisions adverse to his interests:(a) whether leave should be given to AD to commence his proceeding outof time; and(b) whether a form of privative clause in the Immigration Act 2009 (theAct) precludes judicial review of a decision declining AD a temporarywork visa.Factual background[2] Ms Cottrell confirmed she took no issue with the chronology of eventsprovided by the respondent. It is convenient, therefore, to summarise the backgroundby reference to this uncontentious statement of facts.[3] AD is an Australian citizen. In April 2013 he travelled to New Zealand and,on arrival, was granted a residence class visa. On 24 December 2014 AD wasconvicted and sentenced in relation to charges under the Films, Videos andPublications Classification Act 1993. On 15 January 2015 Immigration New Zealand(INZ) placed an alert on AD's file, effectively signalling that s 16(1)(a)(iv) of the Actapplied. Section 16 prevents the grant of any visa or entry permission to any personwho the Minister believes is, or is likely to be, a threat or risk to the public interest.[4] On 1 November 2016 AD travelled to Australia. If the holder of a visa isoutside New Zealand and the visa conditions do not allow further travel toNew Zealand, the visa expires when the holder leaves New Zealand.1 Consequently,AD's residence visa expired on 1 November 2016.[5] On 5 December 2016 when AD attempted to return to New Zealand, he wasunable to board his flight from Australia. He was advised that he should make anapplication to bring himself within the exceptions to non-eligibility for visa or entrypermissions. Where s 16 of the Act creates an absolute bar to the grant of visa or entrypermissions in the circumstances set out at s 16(1)(a) and (b), s 16 is subject to s 17.Accordingly, on 17 May 2017 AD requested the grant of a special direction under s 17.[6] On 28 July 2017 INZ made two decisions. First, the alert put in place on15 January 2015 was inactivated. This meant AD did not, after all, have to bringhimself within the exceptions to the bar on his re-entry created by s 16. The seconddecision was that the visa waiver status normally applicable to Australians travellingto New Zealand was suspended in light of "character factors". The effect of the Actis that (broadly speaking) Australians travelling to New Zealand are persons to whoma visa waiver applies. "Visa waiver" means a waiver under s 69 of the Act of the1 By operation of s 63(2)(a) of the Immigration Act 2009.requirement to hold a visa permitting travel to New Zealand.2 The Act draws adistinction between people travelling to New Zealand and people enteringNew Zealand. Those to whom a visa waiver applies do not need a visa to board aflight and travel to New Zealand but they must still apply on arrival at the border forvisa entry.[7] The suspension of AD's visa waiver status meant he could not travel toNew Zealand and apply for visa entry on arrival. The idea behind suspending visawaiver status is to forewarn the person that he or she must apply for a visa to enterNew Zealand in advance of travel so that the application can be considered in advance.[8] In AD's case the decision to suspend his visa waiver status on 28 July 2017was a decision made by special direction under s 69(2)(d) of the Act.3 The July 2017decision is the first decision challenged by way of judicial review.[9] The next event was on 3 January 2018 when AD applied for a temporary workvisa in the partnership category.[10] On 23 January 2018, INZ advised AD he would not be eligible for a temporaryentry class visa unless granted a character waiver.[11] On 30 August 2019 AD commenced judicial review proceedings. Thegravamen of AD's complaint was the delay in processing AD's application for a workvisa.[12] On 26 September 2019 AD's application for a temporary entry class visa wasdeclined.4[13] A final event that needs to be mentioned is the outcome of an appeal to theImmigration and Protection Tribunal. AD appealed on humanitarian grounds againsthis liability for deportation in 2015. That liability arose from his convictions for2 Immigration Act 2009, s 4 definition of "visa waiver".3 In this judgment the decision on 28 July 2017 to suspend AD's visa waiver status is referred to asthe July 2017 decision.4 The decision on 26 September 2019 to decline AD's application for a temporary entry class visais referred to as the September 2019 decision or the visa refusal decision.possession and distribution of objectionable publications, and for possession ofcannabis. For reasons that are unnecessary to traverse, the Tribunal found there wereexceptional circumstances of a humanitarian nature. The Tribunal was satisfied itwould not be contrary to the public interest to allow AD to remain in New Zealand.That decision was issued on 31 August 2016 and, accordingly, AD was not removed.But, as mentioned above at [4], AD travelled to Australia in November 2016 and itwas that departure from New Zealand that triggered the subsequent events anddecisions now challenged.Application for judicial review and preliminary issues[14] In his amended statement of claim filed on 18 October 2019 AD challenges asunlawful INZ's decision to suspend his visa waiver status and requiring him to makean application for a visa. Section 247(1)(a) of the Act requires any review proceedingsin respect of a statutory power of decision under the Act to be filed no later than28 days after the date on which the person is notified of the decision, unless anexception to s 247 is made out.[15] Accordingly, the first preliminary issue is whether AD has shown that, byreason of special circumstances, he should be allowed further time in which tocommence his review proceedings.[16] The second preliminary issue is whether s 186(3)(a) of the Act applies.Section 186 limits appeals and rights of review. Specifically, a person may not bringjudicial review proceedings in respect of a decision relating to the refusal or failure togrant a temporary entry class visa.[17] I deal with each of the preliminary issues in turn.Leave to bring proceedings out of time[18] The first preliminary issue is whether AD should be allowed further time tocommence his proceeding challenging the July 2017 decision.Applicant's position[19] AD's broad position is that the July 2017 decision began a decision-makingprocess that culminated in the decline of his visa application in September 2019. Thus,his challenge to the 2019 decision via this proceeding is not out of time in terms ofs 247(1), of the Act.[20] Ms Cottrell submitted that in suspending AD's visa waiver status and"thereafter requiring him to apply for a visa in order for undetermined characterfactors" to be considered, INZ made a preliminary judgment as to AD's character inorder to guide INZ decision-makers to their desired outcome. Linked to thatoverarching position are Ms Cottrell's following further arguments:(a) In declining AD's application for a temporary entry visa, INZ made afinal determination that he did not meet good character requirementsand was ineligible for the grant of a visa and entry permission.(b) The July 2017 decision and September 2019 decision are a part of asingle decision-making process in relation to AD's character and it issuperficial to characterise the decision as a refusal or failure to grant atemporary entry class visa which is not reviewable under s 186 of theAct.The respondent's position[21] The respondent's position is that the July 2017 decision is a separate decisionfrom the September 2019 decision declining AD's visa application.[22] Even if the 2017 decision is part of a single decision-making processculminating in the 2019 refusal to grant a temporary entry visa, the 2019 decision isnot reviewable.[23] Addressing the merits of AD's case, Mr Connolly submitted this was not a"marginal case" where it was necessary for the Court to consider the merits but in anyevent the merits are weak.Discussion[24] Ms Cottrell raised in support of special circumstances the findings of theImmigration and Protection Tribunal following AD's appeal against deportation. ADhad appealed on humanitarian grounds against his liability for deportation. (Theliability arose from his convictions.) The Tribunal was required to determine whetheror not "exceptional circumstances of a humanitarian nature" would make it unjust orunduly harsh for AD to be deported from New Zealand.5 The special circumstancesof a humanitarian nature, which the Tribunal found to exist in that appeal, are differentin kind from the special circumstances which are to be found under s 247(1)(a) in orderthat further time should be allowed in which to commence review proceedings.[25] Ms Cottrell submitted that the fact AD "was ultimately refused a temporaryentry class visa was of no material significance to either the applicant or INZ".Ms Cottrell argues that the material determination was INZ's conclusion that AD didnot meet the good character requirements and was therefore ineligible for a visa orentry permission. These are strands of the overarching argument that the July 2017decision and September 2019 decision are part of a single decision-making process inrelation to AD's character.[26] I do not agree with that analysis. The waiver of a requirement for a visapermitting travel to New Zealand and the suspension in any individual case of a waiverare discrete decisions made under regulations and pursuant to s 69 of the Act. A waiverunder s 69 does not of itself entitle a person subject to the waiver to be granted entrypermission.6 INZ advised AD (via the 28 July 2017 letter to Ms Cottrell) that he maywish to make a resident visa application on partnership grounds to test his eligibilityfor residence in New Zealand and six months later, on 3 January 2018, AD applied fora temporary work visa. But the suspension of his waiver status and the process ofconsidering his subsequent application for a temporary work visa were two discretedecision-making processes.5 Section 206(1)(c) of the Immigration Act 2009.6 Immigration Act 2009, s 69(6).[27] That is illustrated in a way by the fact that the application for a visa entailedthe provision by AD of information completely irrelevant and unrelated to visa waiverstatus. For example, there was to be an assessment of character and medicalinformation was requested.[28] When the proceeding was filed on 30 August 2019 the challenge was to INZ'sfailure to make a decision on AD's application for a work visa partnership category.As at 30 August 2019 when the statement of claim was filed, AD's application had notbeen decided. INZ declined AD's visa application on 26 September 2019 followingwhich an amended application for judicial review was filed challenging both theJuly 2017 decision and September 2019 decision.[29] The point is that, although AD had every opportunity to do so, he did notchallenge the July 2017 decision when he commenced proceedings on 30 August2019. His first challenge to the July 2017 decision was when he filed an amendedstatement of claim on 15 November 2019.[30] Section 247 of the Act provides:247 Special provisions relating to judicial review(1) Any review proceedings in respect of a statutory power of decisionarising out of or under this Act must be commenced not later than28 days after the date on which the person concerned is notified of thedecision, unless—(a) the High Court decides that, by reason of specialcircumstances, further time should be allowed; or[31] Although it was decided in respect of the predecessor to s 247, Rajan vMinister of Immigration (Rajan) continues to be regarded as the leading authority onthe meaning of "special circumstances" in s 247(1) of the Act.7 The Court of Appealstated:87 Rajan v Minister of Immigration [2004] NZAR 617 (CA); and see C v Immigration and ProtectionTribunal [2015] NZHC 3253 at [22]; and Rupal v Immigration and Protection Tribunal [2018]NZHC 422 at [76].8 At [24] (emphasis added).The Immigration Act confers rights of appeal in respect of decisions relatingto residence, revocation of residence, removal and deportation. However,strict time limits are placed on such appeals. The s 146A [the predecessor tos 247] time limit for the filing of judicial review proceedings must beinterpreted in that context. This means that the discretion to extend time shouldnot be exercised too readily and very rarely if the delay is long. The Rajans'application was filed one month late and thus would require an extension ofone third of the time limit. In the context of the Immigration Act this cannotnecessarily be seen as a short delay.[32] The three-month time limit in s 146A of the Immigration Act 1987 wasrepealed in November 2010.9 The new Immigration Act 2009 replaced s 146A andintroduced a 28 day time limit in s 247(1) of the Act. The parliamentary intent is clear.Judicial review proceedings must be brought promptly, even more promptly than thethree-month period permitted under the predecessor to s 247(1).[33] In C v Immigration and Protection Tribunal, Brewer J distilled the applicablelegal principles from Rajan and cases since Rajan. In the context of s 247(1) of theAct "special circumstances" are to be interpreted in light of the Act's emphasis ontimeliness:10 Whether there are special circumstances justifying an extension of timemust be assessed in the context of the legislation involved. The ImmigrationAct confers rights of appeal in respect of decisions relating to residence,revocation of residence, removal and deportation. However, strict time limitsare placed on such appeals. The s 146A [the predecessor to s 247(1)] time limitfor the filing of judicial review proceedings must be interpreted in that context.[34] As Brewer J characterised it, Rajan provides a framework for deciding whether"special circumstances" exist by reference to the following three factors:11(a) the length of the delay;(b) the reason for the delay; and(c) (in marginal cases) a brief examination of the merits.The length of and reasons for the delay[35] Almost two years and four months elapsed between the July 2017 decision andAD's challenge to that decision via his amended statement of claim filed on9 Immigration Act 2009, s 404.10 C v Immigration and Protection Tribunal, above n 7, at [22].11 Rajan v Minister of Immigration, above n 7, at [24]–[30].15 November 2019. However, I am prepared to proceed on the basis the proceedingwas commenced on 30 August 2019 with the filing of the first statement of claim.Even that somewhat unrealistic approach involves a delay of over two years. I say"unrealistic" because the obvious legislative intention is to ensure challenges toparticular immigration decisions are brought within days of notification of theimpugned decision not months or years.12 AD's first iteration of his application forjudicial review challenged INZ's failure to make a decision on his visa application,not the July 2017 decision.[36] Mr Connolly cited Kesonsung v Minister of Immigration in which Allan Jstated "a long delay will ordinarily preclude the grant of leave in any circumstances".13Mr Connolly also relied on Zanzoul v The Removal Review Authority in whichDobson J cited Kesonsung v Minister of Immigration and added:14 this was coupled with the notion that where there has been a substantialperiod of delay relative to the three month period permitted for filing suchproceedings: virtually no circumstances will be sufficiently "special" towarrant the grant of leave.[37] In Bhasin v Immigration and Protection Tribunal, a delay of three months wasregarded as substantial and, coupled with a poor excuse, was not a marginal case.15[38] More recently, Palmer J summarised the effect of judicial decisions between2014 and 2018 relevant to the grant of extensions and suggesting an applicant's excusefor delay will be a primary consideration.16[39] On the basis of these authorities I have no doubt that the period of delay in thiscase is so great that leave should not be granted unless AD demonstrates truly specialcircumstances. In that regard AD has provided no reason for the delay in filingproceedings. AD had legal representation at the time the 2017 decision was notified12 The applicant does not claim that the 28 July 2017 decision was not notified to him on 28 July2017.13 Kesonsung v Minister of Immigration HC Auckland CIV-2006-404-1597, 22 September 2006at [35].14 Zanzoul v The Removal Review Authority HC Wellington CIV-2007-485-1333 and CIV-2008-485-854, 9 June 2009 at [26].15 Bhasin v Immigration and Protection Tribunal [2018] NZHC 644 at [31] and [32].16 Dennis v Chief Executive of the Ministry of Business, Innovation and Employment [2018]NZHC 2169 at [21].to him. Even had he raised ignorance of the time bar that is unlikely to have been asufficient excuse.17 In any event, neither AD nor his counsel has offered any reasonfor the delay.Merits of the applicant's case[40] Mr Connolly submitted there was little prospect of the substantive claimsucceeding as the July 2017 decision was one of "absolute discretion" under the Actmeaning, the only potential basis of review is Wednesbury unreasonableness.18[41] Section 11 of the Act provides the meaning of "absolute discretion" under theAct. If a provision of the Act provides "that a matter or decision is in the absolutediscretion of the decision maker" that means (relevantly) the matter or decision maynot be applied for and if a person does apply for the matter or decision there is noobligation on the decision-maker to consider the application or inquire into thecircumstances of the person or make any further inquiries.19 Section 378(8)specifically provides that "[t]he decision whether to grant a special direction is in theabsolute discretion of the Minister". The suspension of AD's waiver status waseffected by special direction under s 69(2). In Dean v Associate Minister ofImmigration the Court of Appeal stated:20This Court has said that "absolute discretion" effectively limits judicial reviewto Wednesbury unreasonableness. This necessarily follows from the absenceof specific statutory considerations or requirements to provide reasons tosupport the decision.[42] Immigration instructions provide that people with certain convictions(including convictions in the nature of AD's) will not normally be granted residenceor temporary entry class visas unless they are granted a character waiver. I accept thesubmission made on behalf of the respondent that applying the normal process to ADdoes not suggest such a standard of unreasonableness that the merits of his claimjustify the extraordinary extension of time he seeks.17 Bhasin v Immigration and Protection Tribunal, above n 15, at [29], citing the Court of Appeal inFernandes v Immigration and Protection Tribunal [2014] NZCA 52 at [8].18 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).19 Section 11(1).20 Dean v Associate Minister of Immigration [2019] NZCA 343 at [30].[43] Perhaps the most telling point against the merits is that, as Mr Connollysubmitted, had the July 2017 decision not been made, meaning AD retained his visawaiver status, he would still have been required to apply for a visa before enteringNew Zealand. The difference would have been that his application would have beenmade upon arrival at the border rather than prior to travel. Consideration of AD'seligibility for a visa, including whether a character waiver should be granted, wouldstill have occurred.Decision[44] AD has not demonstrated that, by reason of special circumstances, further timeshould be allowed to him in which to review the July 2017 decision.Does s 186 bar AD's review proceeding?[45] I turn to the applicant's alternative argument that s 186 does not bar him fromapplying to judicially review the September 2019 decision.[46] Section 186 provides:186 Limited right of review in respect of temporary entry class visadecisions(1) No appeal lies against a decision of the Minister or an immigrationofficer on any matter in relation to a temporary entry class visa,whether to any court, the Tribunal, the Minister, or otherwise.(2) Subsection (1) applies except to the extent that section 185 provides(3) A person may bring review proceedings in a court in respect of adecision in relation to a temporary entry class visa except if thedecision is in relation to the—(a) refusal or failure to grant a temporary entry class visa to aperson outside New Zealand:(b) cancellation of a temporary entry class visa before the holderof the visa arrives in New Zealand.[47] While acknowledging the effect of s 186(3)(a), Ms Cottrell submitted that ADis not barred from bringing review proceedings in respect of the September 2019decision because:(a) INZ made an error of law in suspending his visa waiver status andrequiring him "as a citizen of the commonwealth of Australia" to makean application for a visa. The correct statutory procedure in relation toAustralian citizens about whom there are character concerns, is to seeka special direction under s 17 of the Act.(b) The arbitrary use of the power under s 69(2)(d) is inconsistent with theprinciples of fairness and natural justice.(c) Citing Bulk Gas Users Group v Attorney-General, where it was allegedthat a decision-maker made an error of law, there is a presumptionagainst a privative clause being interpreted to exclude the supervisoryjurisdiction of the Court.21(d) The absence of statutory appeal rights as an alternative remedy fails todisplace the presumption against the exclusion of appeal rights in thisinstance.(e) The circumstances of AD's case can be distinguished from the casesrelied upon by the respondent in asserting s 186(3)(a) applies to bar himfrom bringing review proceedings.Respondent's position[48] In summary, Mr Connolly submitted AD is an Australian citizen living inAustralia. Part of his application for judicial review challenges the September 2019decision declining AD's application for a temporary work visa. AD identifies no errorof law in relation to the 2019 decision itself but rather, suggests the error was inrequiring him, as a citizen of Australia, to apply for a visa. By making that argument,the respondent submits AD is attempting to incorporate earlier decisions affecting AD(for example the suspension of the visa waiver) but no error is pleaded in relation tothe 2019 decision itself. Consequently, s 189(3) applies to ban the proceeding.21 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA).Discussion[49] In previous cases where the respondent has relied on s 186 as precluding aperson from applying for judicial review, the courts have described the provision aslacking ambiguity, and that s 186 does not "need to be read restrictively or liberallybut can be simply applied".22[50] The concern with legislation that restricts the availability of judicial review isthat it can interfere with the supervisory role of the courts to hold public officers toaccount in the discharge of their powers. Senior courts have been reluctant to readlegislation in a way that diminishes their "constitutional responsibility for upholdingvalues which constitute the rule of law".23 Therefore, privative clauses will becarefully scrutinised. As the exclusion of judicial review will be a product of theparticular statutory setting the privative clause is to be construed in its statutorycontext.[51] Section 186 appears in pt 7 of the Act dealing with appeals, reviews, and otherproceedings. The purpose of pt 7 (amongst other purposes) is "to providecomprehensively for the system of appeal and review in respect of decision-makingunder [the] Act".24 The Act provides for limited rights of reconsideration concerningtemporary entry class visas if the holder is onshore.25 Section 186 itself provideslimited rights of review in respect of temporary entry class visa decisions.[52] While no appeal lies against a decision on any matter relating to a temporaryentry class visa, there remains a right of reconsideration "for an onshore holder of atemporary visa in the circumstances set out in [s 185]".26 As well, a person may bringreview proceedings in respect of a decision in relation to a temporary entry class visaexcept if the person is "outside New Zealand".22 Liu v Minister of Immigration [2015] NZHC 2048 at [6]; and Kaur v Ministry of BusinessInnovation and Employment [2016] NZHC 2595 at [40].23 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR153 at [3]–[4].24 Immigration Act 2009, s 184.25 Section 185(1).26 Section 186(2).[53] Thus, the legislative policy evident in s 186(3) is not at odds with the right ofNew Zealand citizens to invoke the supervisory jurisdiction of the High Court. AsFogarty J observed when examining s 186(3) in Liu v Minister of Immigration, "it is arelevant factor here that the common law recognises the Crown's prerogative tocontrol its borders".27[54] More fundamentally, AD pleads at [47] of his amended statement of claim:In the event that the Court disagrees with the applicant's characterisation ofthe decision-making process under s 69(2)(d), it is the applicant's alternativesubmission that he is not precluded from commencing judicial reviewproceedings by reason of the fact that Immigration New Zealand made anerror of law in requiring the applicant, as a citizen of the Commonwealth ofAustralia, to apply for a visa. In doing so, it acted outside its jurisdiction. Assuch, the decision to decline his application for a temporary entry class visawas not legitimately made and falls outside the ambit of s 186.[55] No error of law is pleaded in relation to the 2019 decision itself. Nor, insuggesting (or requiring as AD puts it) that he apply for a visa in order to travel toNew Zealand, is any error of law apparent. Any person to whom a visa waiver nolonger applies must apply for a visa before travelling to New Zealand. A person whois not a New Zealand citizen may travel to New Zealand only if that person is theholder of a visa and the travel is consistent with the conditions of the visa or if thatperson is one to whom a visa waiver applies. The visa waiver did not apply to AD.Result[56] AD's application for further time to commence his proceeding challenging thedecision made on 28 July 2017 to suspend his visa waiver status, is dismissed.[57] In relation to the September 2019 decision, AD is prevented by s 186(3)(a)27 Liu v Minister of Immigration, above n 22, at [6]; Kaur v Ministry of Business, Innovation andEmployment, above n 22, at [41] per Hinton J; Ye v Minister of Immigration [2008] NZCA 291,[2009] 2 NZLR 596 at [116]–[117] and authorities cited therein; and Chief Executive ofDepartment of Labour v Yadegary [2008] NZCA 295, [2009] 2 NZLR 495 (CA) at [5].from bringing review proceedings to challenge the refusal to grant him a temporaryentry visa._____________________________Karen Clark JSolicitors:Cottrell Law Ltd, Wellington for ApplicantCrown Law Office, Wellington for Respondent