CF v THE ATTORNEY-GENERAL SUED ON BEHALF OF THE MINISTER OF IMMIGRATION [2016] NZHC 3159

CF v THE ATTORNEY-GENERAL SUED ON BEHALF OF THE MINISTER OF IMMIGRATION [2016] NZHC 3159 [20 December 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-000420[2016] NZHC 3159BETWEEN CFApplicantAND THE ATTORNEY-GENERAL SUED ONBEHALF OF THE MINISTER OFIMMIGRATIONRespondentHearing: 20 September 2016Appearances: Rodney Hooker for the ApplicantNicole Bailey and Nixon Fong for the RespondentJudgment: 20 December 2016JUDGMENT OF MOORE JThis judgment was delivered by me on 20 December 2016 at 1:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Contents Paragraph NumberIntroduction .............................................................................................................. [1]BackgroundCF's time in Iran .................................................................................................... [9]Matters in New Zealand ....................................................................................... [13]The IPT's decision ................................................................................................ [28]The Associate Minister's decision ........................................................................ [36]The case before this Court ..................................................................................... [38]The challenge to the validity and effect of Instructions A5.30 and A5.30.1 ......... [40]The challenge to the Associate Minister's decision-making process ................... [42]The challenge to the Associate Minister's decision.............................................. [45]The law on refugees and residence ....................................................................... [47]The challenge to the validity and effect of Instructions A5.30 and A5.30.1 ...... [61]The "res judicata" issue ...................................................................................... [62]Does the application of A5.30 and A5.30.1 deny CF his rights as a refugee under the CRSR rendering these instructions invalid? ........................................ [76]The challenge to the Associate Minister's decision-making process.................. [86]Failure to take into account relevant considerations ........................................... [88]Taking into account irrelevant considerations ................................................... [102]Breach of natural justice .....................................................................................[110]The challenge to the Associate Minister's decision ........................................... [117]Result ..................................................................................................................... [121]Introduction[1] This is an application for judicial review.[2] CF is an Iranian man. For some years in his home country he was employed by an organisation which he accepts has a long history of gross human rights abuses, including arbitrary detention, torture, and executions.[3] He came to New Zealand in 1997. After a series of long and detailed immigration proceedings, his second claim for refugee and/or protected person status was eventually granted in 2011. His subsequent application for a residence classvisa was, however, rejected by Immigration New Zealand ("INZ") on the basis thathe did not meet the character requirements contained in the Instructions portion ofthe Immigration New Zealand Operational Manual ("the Instructions") due to his tiesto the aforementioned organisation.[4] These Instructions are an expression of Government immigration policy which immigration officers, amongst others, are required to refer to in reachingdecisions under the Immigration Act 2009 ("the Act"). I shall have more to sayabout the Instructions at a later stage.[5] CF then appealed to the Immigration and Protection Tribunal ("the IPT")which confirmed the decision to reject his application for a residence class visa was correct according to the applicable Instructions. However, the IPT also recommended there were special circumstances warranting consideration by the Minister of Immigration ("the Minister") as an exception to the Instructions.[6] In recognition of the IPT's recommendation, the Associate Minister of Immigration considered CF's eligibility as an exception but ultimately declined togrant the residence class visa.[7] CF now seeks judicial review of both the Instructions and the decision of the Associate Minister.[8] This case raises real and complex questions engaging various aspects of immigration law. It required detailed and careful argument, and I record my gratitude to both counsel for their clear and helpful submissions.BackgroundCF's time in Iran[9] CF is in his 40s. He was born in Iran, where his immediate and extended family remain.[10] In 1991, CF was scheduled to begin his compulsory military service. A friend suggested to him that he could avoid this difficult and potentially dangerous placement and still satisfy his service obligations if he secured a position within theIranian State Prison Organisation ("SPO") instead. He did so, and ended upundertaking his compulsory two year engagement within the SPO.[11] At roughly the same time CF's father died. CF's family struggled financiallyand it fell to him to provide support. His case has always been that in these circumstances it made little sense for him to leave a secure and relatively well paidjob even though the scale of the SPO's abuses had already become apparent to him.[12] CF continued to work for the SPO until 1996. Throughout he claims to have been deeply disturbed by the human rights abuses that were routinely occurring. By his own account, he attained a relatively senior position, having had access to theSPO's confidential prisoner statistics and procedures. He admitted witnessing "many executions and tortures." It is important to note that there is no evidence, norhas there ever been, that CF himself participated in these abuses. CF has consistently and strenuously denied ever having done so.Matters in New Zealand[13] CF first arrived in New Zealand in 1997. He claimed refugee status at the border.[14] It was at this point that he gave his first account of the circumstances inwhich he left Iran. He claimed that his disgust at the SPO's continuing atrocities hadgrown to such an extent that he felt he could not continue his employment. However, his family pressured him to remain because they were reliant on his income. In an attempt to convince them otherwise he said he obtained an illicit video from within the organisation showing abuses being committed. On his account it seems this evidence led his family to capitulate and he found work elsewhere. Several months later, however, he claimed his home was raided by the Iranian authorities and the video found in his possession. As a result, he was tried and convicted of political offences by the Revolutionary Court and sentenced to 10years' imprisonment. However, he claimed he bribed a prison guard, escaped andeventually left Iran by sea.[15] CF was granted refugee status by the Refugee Status Branch on 22 December 1998. Soon after, he was granted a full residence permit.1[16] Over the following years CF built a life in New Zealand. However, by his own admission, he returned to Iran at least six times using his Iranian passport. Plainly his willingness to return to Iran and his ability to do so without apparent consequence contradicted his earlier claim to refugee status.[17] On 30 June 2005, CF's refugee status was cancelled on the basis that it hadbeen procured by fraud.[18] He appealed to the Refugee Status Appeals Authority. He maintained that his earlier account was correct but claimed he had never asserted he had been formally convicted and sentenced. This confusion, he said, arose from issues involved in the interpretation of his interviews with INZ officials. On 15 March 2007 the Refugee Status Appeals Authority dismissed CF's appeal. It found he was not a crediblewitness. It was satisfied he was never tried or convicted before the Revolutionary Court; that he had never fled Iran in the manner he described; and neither was he a person of adverse interest to the Iranian authorities.1 The predecessor to the current residence class visa.[19] On 13 February 2008, CF's residence permit was revoked by the Minister.[20] He appealed this decision to the Deportation Review Tribunal which dismissed his appeal on 11 March 2010.[21] It appears that around this time CF entered into a relationship with a woman who is a New Zealand citizen. The two later married. CF became a step-father tohis wife's young daughter who now regards him as her own father. CF and his wifehave since had two children of their own. There has been no suggestion their relationship is anything other than genuine and caring. CF is plainly a much loved and cherished father and husband with strong ties and a commitment to New Zealand.[22] On 12 September 2011, CF filed a second claim for refugee or protected person status. The basis for his claim changed. He alleged he was at risk of serious harm if he returned to Iran because his younger sister, who had been a long time opponent of the current regime, had been arrested while attending anti-government protests earlier in 2011. During her incarceration, he alleged she had been questioned about her brother, and his shared anti-government sentiment.[23] While his claim was being processed CF was granted a work visa. This is aform of temporary visa under s 70 of the Act. CF's visa was valid for a period of six months.[24] CF's claim for refugee or protected person status was eventually rejected.[25] Undeterred, he filed an appeal with the IPT. On 2 May 2013, the IPT granted him refugee status for a second time on the basis he was entitled to the benefit of the doubt as to the credibility of his account. The IPT considered he did have a well- founded fear of being persecuted based on his political opinion. Pursuant to s 137(1), the IPT granted him refugee status but found it was unnecessary to recognise him as a protected person (on either of the grounds set out in ss 130 and 131) because refugee status in itself necessarily meant that he cannot be deported from New Zealand.[26] Following this success CF applied for another residence class visa on 18 July 2013. His application took some time to process and he was required to fill out additional documentation and meet with the immigration officer in charge of his application to clarify aspects of his association with the SPO. This application was eventually declined on 1 April 2015. This was because CF was considered by theimmigration officer to pose a risk to New Zealand's international reputation becauseof his previous employment with the SPO under Instruction A5.30(a)-(b).[27] CF appealed this decision to the IPT.The IPT's decision[28] In a decision released on 5 November 2015, the IPT confirmed the decision of INZ.[29] In determining the correctness of that decision, the IPT recorded that under Instruction S3.20 individuals like CF who were applying for a residence class visa through the refugee and protection category could only be granted such a visa if they were able to satisfy immigration officers that, among other things, they met the character requirements set out in Instruction A5.[30] One specific requirement assumed importance in CF's case.Instruction A5.30(a) provides that an applicant will not normally be granted aresidence class where they would pose a risk to New Zealand's internationalreputation unless the limited exception set out in Instruction A5.30.1 applied. UnderInstruction A5.30(b) they would be considered to pose such a risk where, as in CF'scase, they had an association with a government, regime, group or agency that has advocated or committed war crimes, crimes against humanity and/or other gross human rights abuses. The IPT noted that the focus of this enquiry was not whetherCF did in fact pose a risk to New Zealand's international reputation. Once it wasestablished he had an association with the SPO, Instruction A5.30(b) deemed that he posed such a risk.[31] Thus, once CF was caught by Instruction A5.30(b), the IPT noted he couldonly be granted a visa if his association with the SPO was "minimal or remote".Given he had worked for the SPO for a further three years after his compulsory military service had ended and had occupied trusted roles over that time, his association was neither minimal nor remote.[32] In these circumstances, the IPT determined there was no residual discretion available to grant CF a residence class visa. In fact it noted that Instruction A5.30.1 specifically stated that in relation to an application where Instruction A5.30 isengaged "the surrounding circumstances of the application, including any familyconnections the applicant might have to New Zealand must be disregarded."[33] While the IPT considered that the correct decision had been reached by INZ in applying the relevant Instructions, it noted it had the power under s 188(1)(f) of the Act to nevertheless recommend there were special circumstances which warranted consideration by the Minister as an exception to the Instructions. The IPTchose to exercise this power in CF's case by reason of his health, character,immigration history and family situation.[34] Pursuant to s 190(5) the IPT requested that the Minister make one of two decisions:(a) grant a residence class visa to CF as an exception to the Instructions; or(b) decline to grant CF a residence class visa as an exception to the Instructions.[35] The IPT also noted that under s 190(6), the Minister was not obliged to give reasons for his decision.The Associate Minister's decision[36] The Associate Minister of Immigration, Craig Foss MP,2 considered CF'sapplication in accordance with the recommendation made by the IPT. He has sworn an affidavit for the purposes of this proceeding. It is sufficient for present purposes2 Exercising a valid delegated power on behalf of the Minister.to record that the Associate Minister did not remember CF's particular applicationbut confirmed he would have followed his usual decision-making process which was to consider the written IPT decision and evaluate, in particular, any discussion on special circumstances. The private secretary to the Associate Minister (at the time the decision was made), Ms Diana Loughnan, has also sworn an affidavit confirming that the Associate Minister did not ask for any further information for the purposes of making the decision.[37] On 19 January 2016, the Associate Minister declined to grant a residence class visa to CF.The case before this Court[38] CF seeks to judicially review both the Instructions and the decision of the Associate Minister. Mr Hooker, for CF, advances three causes of action each of which particularises, in some detail, the alleged inadequacies of the policy and theMinister's decision-making process. I consider that CF's case is best addressed under three broad headings:(a) The challenge to validity and effect of Instructions A5.30 and A5.30.1;(b) the challenge to the Minister's decision-making processes; and(c) the Minister's decision.[39] I shall summarise CF's arguments under each.The challenge to the validity and effect of Instructions A5.30 and A5.30.1[40] Mr Hooker submits that having been recognised as a refugee under the Act, CF had necessarily met the character requirements set out in s 137. Having already met these more onerous requirements in the course of seeking a residence class visa it was improper for CF to be subjected to, and to fail, a repeat character assessment under Instruction A5.30. This result offended the doctrine of res judicata andconstituted a collateral attack on the earlier decision of the IPT to grant CF refugee status.[41] Mr Hooker also submits that recognition as a refugee under the UnitedNationas' Convention relating to the Status of Refugees ("CRSR") passed in Genevaon 28 July 1951 entitled CF to a number of rights including employment, public housing, social security and naturalisation pursuant to the articles of that convention. Through the application of Instructions A5.30 and A5.30.1, the respondent denied CF these rights which are accessible only to holders of a residence class visa.The challenge to the Associate Minister's decision-making process[42] Mr Hooker submits the Associate Minister failed to consider the best interestsof CF's children in accordance with the United Nations' Convention on the Rights ofthe Child ("CRC"), article 23 of the International Covenant on Civil and Political Rights ("ICCPR") and the IPT's earlier decision granting CF refugee status for asecond time.[43] He also submits that the Associate Minister took into account an irrelevant consideration, that being his own view presented by his counsel before the IPT there were no special circumstances relating to CF which warranted his consideration.[44] Finally, it is further submitted that the Associate Minister acted in breach of natural justice by failing to provide CF with the opportunity to make submissions prior to determining for himself whether CF should be granted a residence class visa.The challenge to the Associate Minister's decision[45] On this point Mr Hooker submits that no reasonable or rational Ministerwould decide not to follow the IPT's recommendation3 and to grant CF a residence class visa. Even by a Wednesbury standard this decision was unreasonable. Mr Hooker suggests the decision was made irrationally or on the basis of bias and prejudice.3 For reasons which are made clear later on, this characterisation of the IPT's recommendation isinaccurate.[46] I shall address each of these propositions in the same order as advanced byMr Hooker. However, before doing so, I consider it helpful to place CF's claim in itsproper statutory context.The law on refugees and residence[47] New Zealand is a signatory to the CRSR. The purpose of this agreement was to settle a single set of criteria for determining who would be recognised as refugees and to set out the obligations of contracting States in terms of housing and protecting the individuals so recognised. A number of these require States to confer rights on individuals with refugee status including, as both parties have recognised, the right to wage-earning employment (art 17), self-employment (art 18), housing (art 21), public education (art 22), public relief (art 23), social security (art 24) and naturalisation (art 34).[48] To the extent that New Zealand's obligations under the CRSR are expressedin our domestic law this is achieved through the provisions of the Act.[49] The CRSR is not expressly incorporated in its entirety. Only three articles are referred to directly. Under s 129(1) of the Act, a person must be recognised as a refugee if he or she is a refugee within the meaning of art 1. Similarly, s 164 provides that a person who is recognised as a refugee or a protected person cannot be deported unless art 32 and 33 of the CRSR allow for the deportation of that person. These obligations are related to recognition and refoulment. No other articles directly apply.[50] The rest of the UCRSR is incorporated only in an oblique sense. Section 127(2) states that in carrying out his or her functions a refugee protection officer must act:Context for decision making(a) in accordance with this Act; and(b) to the extent that a matter relating to a refugee or a person claiming recognition as a refugee is not dealt with in this Act, in a way that isconsistent with New Zealand's obligations under the RefugeeConvention.[51] The IPT has a near identical obligation under s 193 in carrying out itsfunction "in relation to the recognition of a person as a refugee,". The text of theCRSR is reproduced in full in Schedule 1.[52] The articles of the CRSR (arts 1, 32 and 33 aside) are therefore relevant considerations in the application of government policy. They are not absolute or determinative. They certainly do not carry the force of statute law.[53] An application for refugee status is made under s 133. Provided a claim is accepted for consideration, the refugee and protection officer must determine the matters contained in s 137. In basic terms they must determine, in the following sequence, whether to recognise the claimant as a refugee (s 129), whether to recognise the claimant as a protected person because they are at risk of torture if deported (s 130), and whether to recognise the claimant as a protected person because they are in danger of arbitrary deprivation of life or cruel treatment if deported (s 131).[54] Once refugee status has been conferred, it does not follow that the individual will automatically receive a residence class visa. Section 45(1) states in particularlyclear terms: "no person is entitled to a visa as of right." Even in an internationalcontext it has long been recognised that the CRSR does not compel States to grant refugees permanent domicile rights. It merely serves to guarantee their short term protection and encourage long term naturalisation.4 This was likely a practical demand made by States in consideration of signing up to the CRSR. While they were willing to provide protection from persecution and an opportunity to obtain residence status, States also demanded the right to determine who should be allowed to permanently remain in their country as a matter of domestic policy.5[55] A person with refugee status is effectively in the same position as an applicant in any other category (ie business investor, family reunification) in terms of4 See James C Hathaway The Rights of Refugees under International Law (Cambridge University Press, 2005) at 730.5 See Manuel Angel Castillo and James C Hathaway "Temporary Protection" in James C Hathaway (ed) Reconceiving International Refugee Law (Kluwer Law International, The Hague, 1997) at 2.obtaining a residence class visa. They are subject to the Act and the relevant government immigration policy.[56] All applications for a residence class visa are determined by an immigration officer on the basis of s 72, which relevantly provides:"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."(emphasis added)[57] As I noted in my introductory comments, these Instructions make up a portion of the Immigration New Zealand Operational Manual. They cover everything from border entry to residence. Section 22 allows the Minister to certify immigration instructions relating to residence class visas and specifically states that any rules or criteria relating to eligibility may include matters relating to character, among other things. Section 25 requires that these Instructions be published periodically and I note that the Instructions which applied at the time of CF's secondclaim for a residence class visa are no longer in force.[58] The Instructions are statements of government policy. They are not regulations and neither are they laws prescribed by statute. However, the direction that a decision in respect of a residence class visa "must be made in terms of theresidence instructions applicable" is a clear indication that the legislature intendedthese Instructions would operate to dictate outcomes.[59] The Court of Appeal has provided the following guidance on the interpretation of these Instructions:6"A policy document, such as the one in issue, is not to be construed with thestrictness which might be regarded as appropriate to the interpretation of a6 Patel v Chief Executive of Department of Immigration [1997] NZAR 264 (CA) at 271.statute or statutory instrument. It is a working document providing guidanceto immigration officials and to persons interested in immigrating to NewZealand or sponsoring the immigration of a person to this country. It mustbe construed sensibly according to the purpose of the policy and the naturalmeaning of the language in the context in which it is employed, that is, aspart of a comprehensive and coherent scheme governing immigration intothis country. See Alexander v Immigration Appeal Tribunal [1982] 2 All ER766, per Lord Roskill at 770; see also R v Immigration Tribunal ex parteShaikh [1981] 3 All ER 29, per Bingham J at 35."[60] Although I will examine the individual Instructions in more detail later, I note that all applications for residence class visas through the refugee category were required to meet the following basic criteria:"S3.20 Requirements for grant of a permanent resident visaa. To be granted a permanent resident visa, principal applicants must satisfy immigration officers that:i. refugee or protection status has been recognised; andii. they have established their identity and that of any partner and/or dependent child(ren); andiii. the relationship between the principal applicant and any partner and/or dependent child(ren) included meets residence criteria (see R2.1.15 and R3); andiv. they meet the health and character requirements in A4 and A5, or are waived from these requirements by an appropriately delegated immigration officer, who has applied the instructions set out at A4.60 and A5.25.1, has waived them (see also C5.15.5); andv. they are not able to be deported from New Zealand because of the limitation on deportation arising from section 164 of the Immigration Act 2009 (see alsoC5.15.5)."The challenge to the validity and effect of Instructions A5.30 and A5.30.1[61] It is against this statutory context that I turn to consider the first of CF'sgrounds of review. This contains two arguments.The "res judicata" issue[62] Mr Hooker's first submission is that the character requirements set out inInstructions A5.30 and A5.30.1, which formed the basis of CF's rejection for aresidence class visa, are not applicable where a person is seeking residence from the refugee and protection category.[63] He argues that this is because refugees like CF have already been subjected to a near identical character test in attaining this status. He points to s 136 of the Act which requires that for the purposes of determining a claim for refugee status, a refugee status officer must determine the matters set out in s 137. This section provides:"137 Matters to be determined by refugee and protection officer(1) For each claim accepted for consideration, a refugee and protection officer must determine, in the following order:(a) whether to recognise the claimant as a refugee on the ground set out in section 129; and(b) whether to recognise the claimant as a protected person on the ground set out in section 130; and(c) whether to recognise the claimant as a protected person on the ground set out in section 131.(2) For each claim accepted for consideration, a refugee and protection officer must also determine, as part of the process in respect of a determination under subsection 1(b) or (c), whether there are serious reasons for considering that the claimant has—(a) committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or(b) committed a serious non-political crime outside New Zealand before entering New Zealand; or(c) been guilty of acts contrary to the purposes and principles of the United Nations."(emphasis added)[64] Mr Hooker submits that in its decision of 2 May 2013, the IPT made the determinations required by s 137(1), including (b) and (c). It determined CF should be granted refugee status and thus it was not necessary to grant him protected person status on the grounds contained in either s 130 or 131. As such he submits it mustnecessarily have had regard to the character requirements set out in subsection (2). However, no such concerns were noted in its decision.[65] When it came to determining his application for a residence class visa, CF'sapplication foundered on Instructions A5.30 and A5.30.1.[66] Instruction A5.30, at the time, provided that:"A5.30 Applicants normally ineligible for a residence class visaa. Applicants will not normally be granted a residence class visa, unless in accordance with A5.30.1 below, where an applicant would pose a risk to New Zealand's internationalreputation.b. In particular (but not exclusively), applicants are consideredto pose a risk to New Zealand's international reputation ifthey have or have had an association with, membership of, or involvement with, any government, regime, group or agency that has advocated, or committed war crimes, crimes against humanity and/or other gross human rights abuses.c. A5.30(b) does not mean that an applicant cannot beconsidered to pose a risk to New Zealand's internationalreputation for any other reason.d. Applications to which this provision applies must bedetermined in accordance with A5.30.1 below."[67] Instruction A5.30.1 then set out the options available to an immigration officer where character concerns of this sort were engaged:"A5.30.1 Applicants normally ineligible for a residence class visaa. An immigration officer may decline residence class visa applications under A5.30 on character grounds. In determining whether to decline an application under A5.30 the surrounding circumstances of the application, including any family connections the applicant might have to New Zealand, are to be disregarded for the purposes of the decision.b. Where A5.30(b) applies, an immigration officer may consider the nature and extent of the applicant's associationwith, membership of, or involvement with, the government, regime, group or agency. If the immigration officer is satisfied beyond doubt that the nature and extent of the association, membership or involvement was minimal or remote then the officer may grant a residence class visa tothe applicant provided all other Instruction requirements are met.c. An immigration officer must make a decision in compliance with fairness and natural justice requirements (see A1).d. An immigration officer must record the reasons for their decision on this aspect of the character requirements.e. Any decision to determine the application in accordance with A5.30 must be made by an immigration officer with Schedule 1-3 delegations."[68] In considering CF's appeal against the refusal to grant him a residence classvisa, the IPT confirmed that Instruction A5.30(a) applied in his case. He was employed by the SPO for a significant period. Thus, pursuant to Instruction A5.30(b), he posed a risk to New Zealand's international reputation. Furthermore, given the length of CF's employment with the SPO the IPT was satisfied hisassociation was neither minimal nor remote.[69] The IPT, which is plainly an adjudicative tribunal, had already considered the issue of CF's character and his past ties. In the circumstances, Mr Hooker submitsthat the principles of res judicata applied and that this issue could not be considered again under the auspices of Instructions A5.30 and A5.30.1. He says that doing so amounted to a collateral attack on the earlier IPT decision. Mr Hooker submits this is particularly inappropriate because s 137(2) presents an arguably more onerous test than Instructions A5.30 and A5.30.1. It was simply illogical for CF to clear the first step but fail at the second.[70] This identical issue was considered by Simon France J in AB v Chief Executive of the Department of Labour albeit in relation to the predecessor Instruction to A5.30 (the then A5.26).7 I agree entirely with his Honour's reasoningand I am grateful to Ms Bailey for drawing this case to my attention.7 AB v Chief Executive of the Department of Labour [2011] 3 NZLR 60 (HC).[71] The short answer to Mr Hooker's submission is that the two enquiries are notthe same. By way of analysis it is useful to compare the relevant phrasing:"137 Matters to be determined by refugee and protection officer(2) For each claim accepted for consideration, a refugee and protection officer must also determine, as part of the process in respect of a determination under subsection 1(b) or (c), whether there are serious reasons for considering that the claimant has—(a) committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or(b) committed a serious non-political crime outside New Zealand before entering New Zealand; or(c) been guilty of acts contrary to the purposes and principles of the United Nations.A5.30 Applicants normally ineligible for a residence class visaa. Applicants will not normally be granted a residence class visa, unless in accordance with A5.30.1 below, where an applicant wouldpose a risk to New Zealand's international reputation.b. In particular (but not exclusively), applicants are considered to posea risk to New Zealand's international reputation if they have or have had an association with, membership of, or involvement with, any government, regime, group or agency that has advocated, or committed war crimes, crimes against humanity and/or other gross human rights abuses."[72] Section 138 requires a consideration of the acts the individual applicant has personally undertaken, be they crimes against peace, war crimes etc. InstructionA5.30, by contrast, looks to the individual's associations and whether these would be damaging to New Zealand's international reputation. This is necessarily a much broader and more subjective inquiry.[73] Simon France J also made comments to this effect, although instead of referring to s 137(2), he referred to art 1 of the CRSR on which that section was based.8 On this point he said:"Whilst the foregoing is sufficient to answer the ground of appeal, I note that I do not accept the appellant's underlying premise which is that the inquiries under Article 1F of the Convention, and A5.26 of the Governments Residence Policy, are essentially the same. The refugee inquiry involves a mandatory rejection of any claimant who is personally connected to a crime against humanity. It is very much a person specific inquiry into the actions of the claimant. The focus of A5.26 is broader. The Government, as is its right, has chosen to give itself control over the grant of residence to anyone connected with a regime that has advocated or committed war crimes or crimes against humanity. The focus is much more on the link rather than the specific actions of the applicant. The limitations on this otherwise broad net are where the association with the prohibited organisation is minimal or remote (as recognised by the policy exemption in A5.26.1(b), or, in some cases, the Minister's discretion to make an exception to policy."[74] Contrary to Mr Hooker's submission it is the Instructions that are moreonerous in function. They can lead to the exclusion of an applicant based solely on their ties, rather than what they have done personally. The interplay and relationship between these tests is perfectly logical when considered in context. Section 137(2) is designed to exclude only those who might pose a direct security threat thus givingeffect to New Zealand's international obligations to temporarily protect those at serious risk. Instructions A5.30 and A5.30.1 engage a higher standard for those seeking to reside here permanently.[75] I consider that no issues of res judicata or collateral attack arise here. I thusreject Mr Hooker's submissions on this point.Does the application of A5.30 and A5.30.1 deny CF his rights as a refugee under the CRSR rendering these instructions invalid?[76] Mr Hooker's second argument on this ground is that as a refugee under the CRSR, CF is entitled to a number of rights including employment (arts 17 & 18), public housing (art 21), social security (art 24) and naturalisation (art 34) pursuant to the articles of the CRSR. Through the application of Instructions A5.30 and A5.30.1, Mr Hooker claims that CF has been denied these rights which are only accessible to8 AB v Chief Executive of the Department of Labour, above n 7, at [10].holders of a residence class visa. Failing to give effect to these rights is, in Mr Hooker's submission, a contravention of the relevant articles of the CRSR whichare incorporated into domestic law through the provisions of the Act.[77] This argument is based on the restrictions CF faces as the holder of a temporary visa. Mr Hooker submits that he cannot seek permanent employment, cannot obtain adequate housing and cannot access education. Likewise, Mr Hooker submits that naturalisation, in the form of citizenship, is only available to those who hold residence class visas. By denying him such a visa, INZ and the Associate Minister effectively closed off any opportunity for CF attaining citizenship in the future.[78] This argument can also be answered in short order.[79] In her submissions Ms Bailey examined each of the CRSR conferred rights CF is alleged to have been denied and assessed the degree to which someone with his current immigration status is able to exercise or access these rights. It is plainfrom this examination that Mr Hooker's complaints are not as grave in practice as hesubmits.[80] I accept Ms Bailey's primary submission that taking Mr Hooker's argumentto its logical conclusion necessarily means the only way to give effect to the CRSR conferred rights would be to grant a residence class visa to every person on whom refugee status is conferred.[81] This cannot be correct. It would contradict the way in which the CRSR is intended to operate. I summarised this at [46]. The purpose of the CRSR is not to confer unqualified rights (of housing, education, social security etc) on refugees which States are then required to observe without qualification; effectively granting these individuals automatic rights to permanent residence. Its purpose is to require signatories to provide temporary protection to refugees in keeping with their basic needs and to make them eligible for permanent residence on the same basis as any other foreign national applying on different grounds. This is consistent with theworking of s 45(1) of the Act, namely that "no one is entitled to a visa as of right"[82] I agree with Ms Bailey's submission that by making them eligible forpermanent residence New Zealand, like other States, gives effect to its obligations under the CRSR.9[83] Instructions A5.30 and A5.30.1 are simply mechanisms via which eligible foreign nationals must pass in order to be granted residence class visas.[84] But even if there was an infringement, though I reiterate that I do not consider there has been, the CRSR articles which Mr Hooker refers to do not havethe status of law. Only three of the Convention's articles are expressly incorporatedinto domestic law (through ss 129 and 164 of the Act which deal with recognition and refoulment). None of these articles confers the rights Mr Hooker claims have been infringed through the denial of a residence class visa to CF. The remainder ofthe CRSR's articles are only incorporated indirectly. They are mandatory relevant considerations for refugee protection and immigration officers in the exercise of certain duties and for the IPT. As Ms Bailey puts it, this is the force they carry; nomore and no less. The listed persons must take New Zealand's obligations pursuantto these articles into account in applying the Instructions where an exercise of discretion is called for.10 They are not, however, bound to give effect to them in an absolute manner such that the Instructions themselves can be invalidated.[85] Thus this argument must also fail.The challenge to the Associate Minister's decision-making process[86] Mr Hooker has identified what he says are three fundamental flaws in theAssociate Minister's decision making process. These are:(a) failure to take into account relevant considerations;9 The objectives of Instructions S3.1-3.4, which provide that all those holding refugee status may apply for a residence class visa, support this interpretation. Section 8 of the Citizenship Act 1977 allows for refugees, among others, to attain citizenship by grant provided they are eligible under the processes of the Act which include the Instructions by incorporation.10 For completeness sake, I record that I also accept Ms Bailey's argument that once it wasdetermined that CF had been associated with a prohibited body pursuant to Instruction A5.30(b)and that the "minimal or remote" exception did not apply, neither an immigration officer nor the IPT had any discretion to grant him a residence class visa. He could only be granted a residence class visa by the Minister as an exception to the Instructions.(b) taking into account irrelevant considerations; and(c) breach of natural justice.[87] I shall deal with each in turn.Failure to take into account relevant considerations[88] Mr Hooker submits that the Associate Minister failed to consider the bestinterests of CF's children in accordance with the CRC, article 23 of the ICCPR andthe IPT's earlier decision granting CF refugee status for a second time.[89] He submits that all of these issues were mandatory relevant considerations and there is no evidence the Associate Minister took them into account in reachinghis decision under s 190(5) following the IPT's recommendation. In support,Mr Hooker points to the Associate Minister's affidavit which states that he followedhis normal decision-making process of looking at the IPT's decision (in this case declining CF a residence class visa) and it seems, no other documentation. Ms Loughnan in her affidavit confirmed the Associate Minister did not request any further information[90] In considering this submission it is instructive to examine the task the Associate Minister was engaged in. Section 190 relevantly provides:"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 section23 of the Official Information Act 1982 applies in respect ofany such decision."[91] Ms Bailey submits that, in this particular context where reasons are not required to be provided, the authorities establish that the Minister is taken to have considered all matters addressed in the decision of IPT.[92] She relies on two particular authorities. In Pesamino v Minister of Immigration, the plaintiff also alleged that the Minister did not take into account the interests of the children in exercising his discretion under s 387 of the Act not tointervene in the plaintiff's deportation. Woolford J rejected this claim on the grounds that:11"There is no evidential foundation that the Minister did not take into accountthe interests of the children. The plaintiff's assertion that he did not do so issurprising as it was the only basis on which the plaintiff sought to remain in New Zealand. This is noted several times in the briefing paper provided tothe MinisterThe Minister did not give reasons for his decision. He had no obligation to do so. But it is clear that the interests of the children had been prominently placed before him and the only reasonable inference available is that the Minister did take the interests of the children into account, and yet came to the decision that he did."[93] Similarly, in Ning v Minister of Immigration, Thomas J commented:12"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."[94] Although these comments were made in relation to the exercise of theMinister's (absolute) discretion under different provisions, the observations remainrelevant.11 Pesamino v Minister of Immigration [2012] NZHC 4 at [20] and [23].12 Ning v Minister of Immigration [2016] NZHC 697.[95] The interests of CF's children were discussed in some detail at [72] to [77] ofthe IPT's decision refusing to grant CF a residence class visa. The relevant section in the IPT's decision is titled "Best interests of the appellant's New Zealand-citizenchildren". The IPT expressly noted that these interests could not override CF'sfailure to meet the character requirements set out in Instructions A5.30 and A5.30.1.[96] Article 23 of the ICCPR simply provides that:"1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."[97] Although differently phrased, this is effectively what the IPT addressed at [72] to [77] of its decision.[98] The Associate Minister stated he considered the IPT's decision in somedetail. In my view an inference may safely be drawn the Associate Minister did take into account these relevant considerations.[99] I also note that the decision of the IPT granting CF refugee status for asecond time was summarised at [58] to [68] of the IPT's later decision refusing to grant him a residence class visa. Again, I consider it can be inferred that the Associate Minister considered this. On this point I agree with and adopt the comments of Woolford and Thomas JJ on the correct approach to claims of this sort.[100] Even if the Associate Minister did not, I accept Ms Bailey's submission thatnothing has been advanced as to why this was a mandatory relevant consideration. A decision to grant (or not grant) a residence class permit is made on entirely different grounds and it is difficult to see how the IPT's earlier decision in respect of refugeestatus could have affected this. In refusing to grant CF a residence class visa the IPT did not question whether his claim to refugee status was credible. This status was simply assumed to have been validly conferred.[101] It follows I do not accept the Associate Minister failed to take into account any relevant considerations.Taking into account irrelevant considerations[102] Mr Hooker submits that the Associate Minister took into account an irrelevant consideration in that he failed to put aside his own view, submitted by counsel on his behalf before the IPT. This submission was that there was no basis upon which to make a recommendation under s 188(1)(f) that special circumstances existed in CF's case warranting his consideration as an exception to the Instructions.Mr Hooker says there is no evidence the Associate Minister put his own view to one side in reaching his final decision.[103] Ms Bailey accepts that such a submission was made to the IPT by theAssociate Minister's counsel.[104] Mr Hooker says that if a submission of this sort is made on behalf of the Minister and/or the Associate Minister or INZ itself, and the IPT elects to make a recommendation under s 188(1)(f) in spite of this submission, the logical inference is that the decision maker is required to take the recommendation into account. A failure to do so demonstrates that the Associate Minister was not objective and that he failed to approach the making of the decision with a fresh mind.[105] This submission can be answered in a number of ways. First, and perhaps most importantly, there is no evidence that the Associate Minister approached his task under s 190(5) in anything other than an objective and impartial manner. He was not required to give reasons and he did not do so.[106] The fact that he made a decision consistent with the earlier submission made on his behalf before the IPT reveals very little. Mr Hooker's submission appears tomisconstrue the nature of the recommendation the IPT is permitted to make under s 188(1)(f). It is a recommendation that the special circumstances of the applicant are such as to warrant consideration by the Minister as an exception to the technical application of the Instructions which would require the application's simpledismissal. It does not go so far as to recommend that a residence class should in fact be granted.[107] And even if it did, a recommendation made by the IPT pursuant to s 188(1)(f)is just that; a recommendation. Section 190(5) clearly contemplates that it is for theMinister to reach his or her own decision. It is perfectly open to the Minister to ruleagainst the applicant as occurred in this case.[108] Finally, nothing in s 190 limits the matters that the Minister or Associate Minister may take into account when considering the IPT's recommendation. The Act's purpose does not suggest that there should be any implied limitations.[109] This argument too must fail.Breach of natural justice[110] Mr Hooker's final submission is that the Associate Minister breached the principles of natural justice by failing to provide CF with an opportunity to make submissions as to why he should be granted a residence class visa as an exception to the Instructions.[111] Mr Hooker argues it is particularly important that natural justice obligations be met in this context. The Act imposes strict timelines for challenging decisions of the IPT. A dissatisfied applicant has 20 working days from the date of the decision to bring an application to the High Court seeking leave to appeal and/or leave to bring judicial review proceedings. There is no ability to seek leave out of time.[112] In circumstances where the IPT has made a recommendation under s 188(1)(f) an applicant is justified to wait for the Minister's decision rather thanseek leave to challenge the IPT's decision in the High Court, a course which couldbe regarded as premature. In such circumstances, time within which to bring a leave application is limited.[113] For this reason Mr Hooker argues that it is incumbent on the Minister to inform the applicant if he or she is unlikely to grant the application. This is becausethere may be legal or factual matters in the IPT's decision which the applicantwishes to challenge or provide further evidence in respect of.[114] This submission is unconvincing. In Khalon v Attorney General, Fisher J explained that:13"there is no rule of natural justice of general application that a decisionmaker must disclose that which he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he makes a final decision...There is a single underlying principle which I believe emerges from both thedecisions and the policy which underlies them: a party should normally begiven the opportunity to respond to an allegation which, with adequatenotice, might be effectively refuted. The converse will generally be true ifthe risk of an adverse finding was always foreseeable, particularly if thechallenge to the finding relates to the way in which the tribunal hadexercised a value judgment rather than the completeness of the materialwhich had been placed before the tribunal. The key elements are surprise andpotential prejudice. If an adverse finding is foreseeable there is no surprise.Even where there is surprise, there could be no prejudice unless better noticemight have allowed the affected party to do something about it. Thoseprinciples seem applicable whether the hearing is adversarial orinquisitorial."[115] I agree with Ms Bailey when she submits there was neither surprise norprejudice in this instance. Having received the IPT's recommendation, unders 190(5) the Minister was required to either grant the residence class visa as an exception to the Instructions, or to decline to do so. This is a binary process in that one of two outcomes is inevitable. It follows the prospect of an adverse determination should not have come as a surprise to CF.[116] Likewise, I do not see any potential prejudice. The Associate Minister'sdecision came at the end of a long process. CF was afforded his rights to natural justice throughout in that he had the opportunity to state his case before the relevant immigration officer and repeat it before the IPT. He used that opportunity and was ably represented at every step in the process. I do not consider that any more was required in the circumstances.The challenge to the Associate Minister's decision[117] As a final ground, Mr Hooker submits that the Associate Minister's decisionwas unreasonable even by a Wednesbury standard. He argues that no reasonable or rational Minister would have decided not to grant CF a residence class visa as an13 Khalon v Attorney-General [1996] 1 NZLR 458 (HC) at 464-466.exception to the Instructions. Mr Hooker suggests the decision was made irrationally or on the basis of bias and prejudice.[118] In determining this point, I reiterate that all the IPT did, and all it could have done under s 188(1)(f), was to recommend that the special circumstances of CF were such as to warrant consideration by the Minister as an exception to the Instructions. It was simply a referral to the Minister. It was neither a recommendation or formaladvice that, in the IPT's opinion, the residence class permit should be granted. This was a simple recognition of the fact that the decision "involved policy considerationsmost appropriately considered by the Minister of Immigration."[119] On any assessment of merits of CF's case, it simply cannot be said that therewas only one available answer which a reasonable decision-maker could reach. There were complex and difficult questions of policy engaged.[120] In my view by some margin the very high Wednesbury threshold is not met.Result[121] All grounds advanced by CF fail. His application for judicial review is dismissed.[122] CF is legally aided. As such he is not subject to an adverse costs order.Moore JSolicitors:Vallant Hooker & Partners, AucklandCrown Law, Wellington