ARGOS FROYANES LIMITED v CHIEF EXECUTIVE OF IMMIGRATION NEW ZEALAND [2020] NZHC 3109

ARGOS FROYANES LIMITED v CHIEF EXECUTIVE OF IMMIGRATION NEW ZEALAND [2020] NZHC3109 [24 November 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-574[2020] NZHC 3109UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review ofdecisions made by Immigration NewZealandBETWEEN ARGOS FROYANES LIMITEDApplicantAND CHIEF EXECUTIVE OF IMMIGRATIONNEW ZEALANDRespondentHearing: 20 November 2020Appearances: S W B Foote QC and B M Russell for ApplicantS P Jerebine and H T N Fong for RespondentJudgment: 24 November 2020JUDGMENT OF OSBORNE J[Reasons]This judgment was delivered by me on 24 November 2020at 4.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The plaintiff, Argos Froyanes Ltd (AFL), operates two vessels which aredocked at the Port of Lyttelton. The vessels are used for toothfish fishing. TheAntarctic season is to commence on 1 December 2020.[2] AFL had sought from INZ an invitation for identified overseas workers toapply for critical purpose visas for the balance of personnel to crew the two vessels.The workers would have landed at Christchurch Airport and been transferred (pursuantto permission granted by the health authorities) directly to the Port, in order to enablethe two vessels to then depart. Following consideration and reconsideration (13October 2020, 3 November 2020 and 17 November 2020), INZ declined to invite theworkers to apply for visas.[3] In this proceeding AFL seeks judicial review of INZ's decisions by which INZdeclined to issue an invitation to identified overseas workers to apply for criticalpurpose visas. AFL by its statement of claim seeks declarations as to AFL'sentitlement to have visas issued. At the same time as filing its substantive proceeding,AFL filed an interlocutory application asking that the relief be ordered now on aninterlocutory basis.[4] On 20 November 2020, I urgently heard the interlocutory application anddismissed it.1[5] These are my reasons for that decision.Does s 186 Immigration Act 2009 bar AFL's review proceeding?[6] The visas which AFL was pursuing for its workers, namely critical purposevisas, are, in terms of the Immigration Act 2009 (the Act), temporary entry class visas.The respondent, the Chief Executive of INZ, invokes s 186(3)(a) of the Act as a bar toAFL's bringing this review proceeding.[7] Section 186 provides:1 Argos Froyanes Ltd v Chief Executive of Immigration NZ [2020] NZHC 3089.186 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 aright of reconsideration for an onshore holder of a temporary visa inthe circumstances set out in that section.(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.Chief Executive's position[8] For the Chief Executive, Ms Jerebine referred to a line of authority relatingspecifically to s 186(3) of the Act. She referred to three decisions of this Court inparticular, being Liu v Minister of Immigration, Kaur v Ministry of Business,Innovation and Employment (Kaur (2016)) and AD v Chief Executive of the Ministryof Business, Innovation and Employment.2[9] In Liu, Fogarty J had been minded to consider granting relief by way of judicialreview on the grounds of Associated Provincial Picture Houses v WednesburyCorporation irrationality.3 Having received submissions in relation to s 186(3)(a) ofthe Act, his Honour concluded that the plaintiffs in that case were precluded frombringing review proceedings because they were persons from outside New Zealand.His Honour explained:[6] I examined s 186(3)(a) as a privative clause to see whether or not therewas any ambiguity that could be read to the advantage of the plaintiffs. Idecided that there was not. I also thought that, in terms of the general commonlaw hostility to statutory clauses limiting judicial review, it is a relevant factorhere that the common law recognises the Crown's prerogative to control its2 Liu v Minister of Immigration [2015] NZHC 2048; Kaur v Ministry of Business, Innovation andEmployment [2016] NZHC 2595 [Kaur (2016)]; and AD v Chief Executive of the Ministry ofBusiness, Innovation and Employment [2020] NZHC 1010.3 At [4], citing Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223(CA).borders. In the end, I am satisfied that s 186 does not have to be readrestrictively or liberally, but can be read simply, and that it directly applies.[10] In Kaur (2016), Hinton J took the same view of s 186(3) (and the relatedsection 187(8), which applies in relation to residence class visas). Her Honourrecorded:[38] While on the face of it, ss 186(3) and 187(8) are the end of the matter,nothing is ever quite what it seems. There is a general presumption thatParliament does not intend to exclude judicial review for error of law. In thiscase, there is an error of law, in terms of the failure to give reasons in respectof the temporary entry class visa refusal.[39] Despite the presumption, Parliament may exclude review for error oflaw, with sufficiently clear legislative wording. Legislative purpose andcontext are relevant and, in particular, where Parliament has provided forstatutory appeal rights, courts are more likely to apply a privative clause on itsterms.[40] Turning to consider these points, in this case, the wording of theclauses is clear. There is no ambiguity that may be read to Ms Kaur'sadvantage. On the face of it, ss 186(3) and 187(8) exclude judicial review forpersons outside New Zealand. There is nothing in these provisions, or thelegislation, that suggests they need to be read restrictively or liberally, ratherthan simply applied.[41] Second, ss 186(3) and 187(8) relate to the Crown's prerogative tocontrol its borders, which is fundamentally a matter for the executive. As such,the provisions ought not to be read down by the courts, but instead applied ontheir terms. (footnotes omitted)[11] In AD, the applicant was an Australian citizen who had been refused atemporary entry class visa. Clark J dismissed AD's application for further time tocommence the proceeding. Her Honour went on to consider the alternative issue as towhether AD was in any event barred from bringing review proceedings by reason of s186(3) of the Act. Clark J summarised in five points the submissions made on behalfof the applicant in support of the proposition that s 186(3) did not bar AD frombringing the proceeding. The five points are recorded as:4(a) INZ made an error of law in suspending his visa waiver status andrequiring him "as a citizen of the commonwealth of Australia" tomake an application for a visa. The correct statutory procedure inrelation to Australian citizens about whom there are characterconcerns, is to seek a special direction under s 17 of the Act.4 At [47].(b) The arbitrary use of the power under s 69(2)(d) is inconsistent withthe principles of fairness and natural justice.(c) Citing Bulk Gas Users Group v Attorney-General, where it wasalleged that a decision-maker made an error of law, there is apresumption against a privative clause being interpreted to excludethe supervisory jurisdiction of the Court.5(d) The absence of statutory appeal rights as an alternative remedy failsto displace the presumption against the exclusion of appeal rights inthis instance.(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 barhim from bringing review proceedings.[12] Her Honour then turned to discuss the reach of s 186(3), concluding that thelaw as stated in both Liu and Kaur (2016) applied to AD. The relevant portion of thejudgment reads:Discussion[49] In previous cases where the respondent has relied on s 186 asprecluding a person from applying for judicial review, the courts havedescribed the provision as lacking ambiguity, and that s 186 does not "need tobe read restrictively or liberally but can be simply applied".6[50] The concern with legislation that restricts the availability of judicialreview is that it can interfere with the supervisory role of the courts to holdpublic officers to account in the discharge of their powers. Senior courts havebeen reluctant to read legislation in a way that diminishes their "constitutionalresponsibility for upholding values which constitute the rule of law".7Therefore, privative clauses will be carefully scrutinised. As the exclusion ofjudicial review will be a product of the particular statutory setting the privativeclause is to be construed in its statutory context.[51] Section 186 appears in pt 7 of the Act dealing with appeals, reviews,and other proceedings. The purpose of pt 7 (amongst other purposes) is "toprovide comprehensively for the system of appeal and review in respect ofdecision-making under [the] Act".8 The Act provides for limited rights ofreconsideration concerning temporary entry class visas if the holder isonshore.9 Section 186 itself provides limited rights of review in respect oftemporary entry class visa decisions.[52] While no appeal lies against a decision on any matter relating to atemporary entry class visa, there remains a right of reconsideration "for an5 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA).6 Liu, above n 2, at [6]; and Kaur (2016), above n 2, at [40].7 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR153 at [3]–[4].8 Immigration Act 2009, s 184.9 Section 185(1).onshore holder of a temporary visa in the circumstances set out in [s 185]".10As well, a person may bring review proceedings in respect of a decision inrelation to a temporary entry class visa except if the person is "outside NewZealand".[53] Thus, the legislative policy evident in s 186(3) is not at odds with theright of New Zealand citizens to invoke the supervisory jurisdiction of theHigh Court. As Fogarty J observed when examining s 186(3) in Liu v Ministerof Immigration, "it is a relevant factor here that the common law recognisesthe Crown's prerogative to control its borders".11AFL's position[13] For AFL, Mr Foote QC submitted that the line of authority relied upon by theChief Executive should not be followed. He submitted that the decisions of INZ inthe present case fall to be categorised as "capricious and arbitrary" such as to meet therequirements of unreasonableness or irrationality under administrative law. Hesubmitted that where a decision-maker has acted unreasonably in that sense, then theCourt should properly treat the situation as one in which no decision has been made.[14] For this approach, Mr Foote referred to the 2012 decision of this Court in Kaurv Ministry of Business, Innovation and Employment (Kaur (2012)).12 In Kaur (2012),the impugned decision had been made under the advance passenger processingprovisions in pt 4 of the Act, ss 96–97 (and following).[15] The plaintiffs filed proceedings for judicial review and sought, by way ofinterim relief, declarations as to their entitlement to travel to New Zealand.[16] The Ministry invoked the privative or ouster clause in s 97(4) of the Act.1310 Section 186(2).11 Liu, above n 2, at [6]; Kaur (2016), above 2, 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 ChiefExecutive of Department of Labour v Yadegary [2008] NZCA 295, [2009] 2 NZLR 495 at [5].12 Kaur v Ministry of Business, Innovation and Employment [2012] NZHC 3563 [Kaur (2012)].13 Section 97(4) provides:(4) A person in relation to whom a decision is made under subsection (1) —(a) may not appeal the decision to any court, the Tribunal, the Minister, or otherwise:(b) may bring review proceedings in relation to the decision only on the grounds that he or she isa person in relation to whom that decision should not have been made because he or she is aperson to whom subsection (3)(b) applies.[17] Duffy J was ultimately not satisfied that it was appropriate to grant interimrelief that would require the plaintiffs to be permitted to travel to New Zealand.14 Buther Honour first considered a submission for the Ministry that the plaintiffs wereprecluded from bringing review proceedings in relation to the s 97 decisions. HerHonour expressed the conclusion that the ouster clause (s 97(4)) "is not as final as thedefendant contends", basing this conclusion upon the Court's reluctance to accept theouster of its supervisory jurisdiction and upon the concept that decisions that areirrational in the administrative law sense cannot properly be understood to be"decisions" caught by ouster provisions such as s 97.15 Duffy J's discussion of theissue reflects an adoption of nullity-based reasoning, sometimes described as a theoryof absolute invalidity, flowing from the House of Lord's 1969 decision in Anisminic vForeign Compensation Commission.16 Her Honour's full discussion reads:[71] The defendant argues that the ouster clause in s 97(4) precludes theCourt from judicially reviewing the current s 97 decisions. On first reading,that appears so. However, it is well established that Courts with a supervisoryjurisdiction will not lightly accept the ouster of their jurisdiction. The generalapproach is that a Court will be slow to conclude that its jurisdiction has beenexcluded: see Bulk Gas Users Group v Attorney-General [1983] NZLR 129(CA). Where there has been fraud, corruption, bad faith or misconduct in theexercise of a statutory power, the Court is likely to view what has occurred asbeing ultra vires conduct that falls outside the scope of the statutory power towhich the ouster clause applies. This is because as was recognised in Bulk Gasat 135, what has occurred is not a true exercise of the statutory power but isinstead an act that lacks jurisdiction in the sense recognised in Anisminic Ltdv Foreign Compensation Commission [1969] 2 AC 147. The same reasoningmay be applied to decisions that are flawed for other administrative lawreasons. For example, a decision to refuse to allow someone to board anaircraft bound for New Zealand that is shown to be capricious and arbitrarywill meet the requirements of administrative law unreasonableness/irrationality. A decision that is irrational in this way cannot in law beunderstood to be a decision that is made under s 97 and, therefore, it will becapable of review by this Court. This is not to say that the impugned decisionsin this case were made in circumstances involving corruption, bad faith, fraud,misconduct, or irrationality. But it goes to show that the ouster clause is not asfinal as the defendant contends.14 At [72].15 At [71].16 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL).Discussion[18] I find the scope of the privative clause contained in s 186(3) of the Act to havebeen coherently settled by this Court's decisions in Liu, Kaur (2016) and AD.17[19] In relation to Kaur (2012), I note first that the observations as to the reach ofthe s 97(4) ouster clause are obiter and less than definitive.[20] Also, I do not find Kaur (2012), dealing as it does with the ouster clause in s97(4) of the Act, to be of assistance in relation to the application of s 186(3) of the Act.If the twin limbs on which the Court's restricted view in 2012 of s 97(4) were valid atthat time (and I refrain from expressing any view on that) — restrictive interpretationof privative clauses and irrational decisions not being "decisions" — I am notpersuaded that those two limbs are any longer so.[21] In its recent judgment in Ortmann v United States of America, the SupremeCourt discussed much-quoted observations of Lord Pearce made in Anisminic.18 TheCourt observed: "The passage in Anisminic quoted above rests on a theory of absoluteinvalidity. That approach has been eschewed in New Zealand."19[22] The Court then observed in a footnote to that passage:20The exceptions have been some High Court cases relating to the interpretationof ouster clauses: see Kaur v Ministry of Business, Innovation andEmployment [2012] NZHC 3563 at [71]; and Malhi v Auckland Co-OperativeTaxi Society Ltd [2014] NZHC 2814, [2015] 2 NZLR 552 at [36]–[39]. Thepresent case does not concern an ouster clause and we make no comment onthe appropriateness of the approach taken in those cases in the ouster clausecontext. See also Josh Pemberton "The Judicial Approach to PrivativeProvisions in New Zealand" [2015] NZ L Rev 617.[23] The Supreme Court's reference to Anisminic was made in relation to an ousterclause and with a focus on the nullity-based reasoning and theory of absolute invalidityfor which Anisminic has been the most cited source of support. The Supreme Court'sacknowledgement that the Anisminic approach has been eschewed in New Zealand17 Liu, above n 2; Kaur (2016), above 2; and AD, above n 2.18 Ortmann v United States of America [2020] NZSC 120.19 At [535].20 At n 609.tacitly recognises the contrary lines of New Zealand authority — such as Liu, Kaur(2016) and AD — as now exist.21 Similarly, the Court's invitation to the reader toconsider Josh Pemberton's article on privative provisions suggests at the least that itcontains an informed assessment. What that article recognises (in parallel with theSupreme Court's own "eschewed" reference) is that the New Zealand courts can beseen as having moved away from reliance on the concept of jurisdiction and nullity-based reasoning.Conclusion[24] The "decision" referred to in s 186(3) of the Act encompasses (as establishedin Liu, Kaur (2016) and AD) a decision which is legally or procedurally flawed evento the extent that (under the Anisminic approach) it may once have been termed a"nullity". That includes where the decision might be found to have been madecapriciously or irrationally in the administrative law sense.[25] Accordingly, AFL's proceeding is barred by s 186(3) of the Act.[26] As the substantive proceeding itself is barred, so too is any interlocutoryapplication based upon it.The substance of AFL's complaints[27] By reason of s 186(3) of the Act, it becomes unnecessary that I make adetermination as to whether AFL has established to any particular standard anygrounds of invalidity.[28] Having heard detailed submissions, I will limit myself to the followingobservations.[29] What AFL sought through this interlocutory application was, albeit necessarilyaddressed in terms of declaratory relief, relief in the nature of a requirement that visasbe issued. While Mr Foote addressed the Court in terms of the conventional approach21 The Court found at [535] that the reference to "determination" includes a determination which islegally or procedurally flawed.to interlocutory relief — a reasonably arguable case — I doubt that such would havebeen the appropriate standard to apply where what is sought is in substance in thenature of mandatory relief. Mr Foote acknowledged the threshold requirement unders 15 Judicial Review Procedure Act 2016 whereby interim orders must be necessaryto "preserve the position of the applicant". By reference to Greer v Department ofCorrections, Mr Foote nevertheless submitted that the Court must avoid an overlyformalistic approach to the threshold question, recognising that in appropriate casesinterim relief may encompass orders placing an applicant in the position it would havebeen but for the alleged illegality.22 Generally, however, the cases referred to trulyinvolved a preservation of something which had previously been enjoyed or available.In Greer, the applicant's access to computers which he had previously had wasrestored for the interim. In Whiskey Jacks Rotorua Ltd v Minister of Internal Affairs,the relief enabled the applicant to continue to operate gaming machines at a venuepending determination of the substantive proceeding.23[30] The present case is substantially different. It does not involve the preservation(or restoration for the interim) of something previously enjoyed. It involves the one-off grant of fresh visas which would be utilised before any substantive hearing, thesubstantive proceeding itself thereby being rendered otiose.[31] The other decision significantly relied upon by Mr Foote, Christiansen vDirector-General of Health, might be viewed as representing a high watermark inrelation to interim relief in an administrative law context.24 Walker J considered itappropriate in the most unusual circumstances of that case to view it as falling withinthe category identified by Francis Cooke J in Greer, namely relief which places theapplicant in the position they would have been in but for the alleged illegality.25 HerHonour concluded that the fact that interim relief would effectively or practicallydetermine the proceeding did not present "an insurmountable hurdle".2622 Greer v Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [21]–[22].23 Whiskey Jacks Rotorua Ltd v Minister of Internal Affairs HC Wellington CIV-2003-485-1901, 11September 2003.24 Christiansen v Director-General of Health [2020] NZHC 887, [2020] 2 NZLR 556.25 At [58].26 At [62].[32] On the other hand, as noted by Ms Jerebine in her submissions, there was aconcession on the part of the relevant Ministry in Christiansen that one of the groundsof review was made out.27 Walker J found, in addition to that concession, that therewas a strong case that at least one other ground of review was also made out.28[33] Here, had I been required to determine the interim application on the basis thats 186(3) of the Act did not preclude review, I would not have found AFL's case to beso clearly strong as the applicant's case was found to be in Christiansen. Given thefinding I have already reached, I refrain from the detailed consideration of this casewhich may now be for a substantive hearing. I also observe that this is a case wherethe application for interim relief was heard within 24 hours of the proceeding beingfiled and upon the basis of the brief affidavit able to be filed within that period for theChief Executive by one of the three decision-makers. The fully-informed assessmentof the strength of the applicant's case is likely to be possible only at the point bothparties have had an opportunity to file comprehensive evidence.Osborne JSolicitors:Bankside Chambers, AucklandLane Neave, ChristchurchCrown Law, Auckland27 At [11].28 At [49]–[51].