CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v EM [2019] NZHC 1966

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v EM [2019]NZHC 1966 [13 August 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-404-2651CIV-2017-404-2652[2019] NZHC 1966UNDER THE Immigration Act 2009, ss 245 and 249IN THE MATTER OF an application for leave to appeal and tobring judicial reviewBETWEEN CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTApplicantAND EMRespondentIMMIGRATION AND PROTECTIONTRIBUNALSecond RespondentHearing: 6 May 2019Appearances: N Fong for ApplicantD Calvert, J Petris, J Cottrell, A Harris for First RespondentW L Aldred counsel assisting the CourtJudgment: 13 August 2019JUDGMENT OF COOKE JTable of ContentsBackground facts [4]First Issue: Was the Tribunal's jurisdiction excluded by 187(2)(d)(i)? [8]Second issue: Exclusion under s 15(1)(f) [21]Analysis [25]Conclusion on meaning [35]Application to the present case [38]Additional jurisdiction issue [46]Conclusion [52][1] The Chief Executive of the Ministry of Business, Innovation and Employment(the Chief Executive) seeks to challenge a decision of the Immigration and ProtectionTribunal (the Tribunal) which allowed an appeal in relation to a decision affecting EM,the first respondent.1 EM had been declined a residence class visa, and the Tribunalallowed the appeal and ordered reconsideration.[2] The challenge is on two principal grounds: that the Tribunal had no jurisdictionto consider EM's appeal as a consequence of s 187(2)(d)(i) of the Immigration Act2009 (the Act); and that the Tribunal misinterpreted s 15(1)(f) of the Act which theChief Executive says prevented the granting of the residence class visa contemplatedhere. This Court has granted the Chief Executive leave to appeal the decision of theTribunal under s 245 of the Act to the extent it had jurisdiction, and leave to bringjudicial review proceedings under ss 245 and 249 of the Act to contend the Tribunalhad no such jurisdiction.2[3] On 18 December 2018 the first respondent was granted a residence visa(partnership-based) by way of a special direction under s 17(1)(a) of the Act. Thischallenge is accordingly no longer of direct significance to him. Counsel who actedon his behalf, including before the Tribunal, have nevertheless appeared and madeargument in relation to the issues that arise. In addition, Ms Aldred was appointed ascounsel assisting the Court to ensure that all arguments were fully addressed. Thiswas appropriate as the matters raised by the Chief Executive in this challenge involveimportant points of principle which may affect other cases. I accept that the case isnot to be regarded as moot in those circumstances.3Background facts[4] EM is an Irish citizen, and an architect by profession. Before moving toNew Zealand he had been living in Australia. He was on a temporary visa whichexpired on 7 September 2009 but he overstayed on that visa by just over two months.1 EM (Skilled migrant) [2017] NZIPT 204065.2 Chief Executive of Ministry of Business, Innovation and Employment v EM [2018] NZHC 2437.3 See Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [32]–[33].When he and his partner left Australia on 18 December 2009 they did so voluntarily.There was an automatic three year suspension on his ability to re-enter Australia onthat kind of visa as a consequence of him overstaying pursuant to Schedules 2 and 4of the Migration Regulations 1994. Those Regulations set out Public Interest Criteria(PIC) and Special Return Criteria (SRC) controlling immigration decisions. Thesuspension did not prevent him re-entering Australia on other visas to which the PICand SRC exclusion did not apply.[5] On 6 April 2016 EM submitted an expression of interest to be considered for aresidence class visa in New Zealand. In the character section of the relevant form hewas asked whether he had ever been "excluded or removed or deported" from anycountry, or "refused entry into any country" and he answered "no" to both questions.He nevertheless provided further information related to these answers in the followingterms: I have answered 'NO' to this question but would like to include thefollowing: At the end of my time in Australia, I overstayed on my visa by justover 2 months. The details of which were as follows: I was trying desperatelyto find a job that could sponsor me as an Architect so I could stay on and workin the country for longer but I was unable to do so. I was granted a temporaryvisa on 6 July 2009-7 Sept 2009 to find a job and apply for a work permit toenable me to work again but was unable to find one in time because of theshort length of time I had left on the then current visa and the fact that I wasnot able to start work immediately due to restriction on my visa, not to mentionthis was the height of the financial crisis and companies were very reluctantto hire new staff until they saw how the recession was going to affect them.I was given another 30 days to book flights and organise my departure.Unfortunately, the condition on the temporary I had been granted did notentitle me to work and I had no way of raising the funds for the flight. Myfamily at home are on low income and couldn't help me financially. I didexplain this to immigration but there was nothing further they could do to help.In the end my partner at the time paid for my departing flights on 18 December2009 and I paid her back at a later date.The result of me overstaying was a 3 year ban from Australia which ismandatory with any overstay and has long since expired. I have since beengranted a temporary holiday visa for Australia and I am now even eligible toapply for skilled migration visa and resident's visa for Australia. So in answerto the question, because I left of my own free will and explained the situationupon departure, I do not believe I was ever refused entry, excluded, removedor deported. I just got caught out financially and left myself no option and wasgiven the minimum punishment. I'm not sure if I needed to answer this at thispoint but again want to be 100% honest.[6] EM's expression of interest was selected by Immigration New Zealand and hewas invited to apply for residence. He made an application under the skilled migrantcategory. At this stage in a subsequent form he changed one of his answers to thequestions concerning removal, deportation or exclusion to "yes". After exchangesbetween Immigration New Zealand and EM's immigration advisor, by letter dated23 March 2017 his application for residence under the skilled migration category wasdeclined. There is some debate as to the basis upon which that decision was made,but two matters are referred to in the letter:(a) Section 15(1) of the Act providing that no entry permission could begranted to any person who has at any time "been removed, excluded,or been deported from another country"; and(b) The provision of false or misleading information, or the withholding ofrelevant and potentially prejudicial information in relation to exclusion.[7] EM appealed the decision to the Tribunal. By decision dated 20 September2017 the Tribunal allowed the appeal and directed Immigration New Zealand toreconsider its decision. Two key conclusions reached by the Tribunal are nowchallenged by the Chief Executive, namely:(a) That s 187(2)(d)(i) did not apply to exclude the jurisdiction of theTribunal as, contrary to Immigration New Zealand's decision, theinformation provided by EM had in fact been correct; and(b) That EM had not been excluded from Australia within the meaning ofs 15(1)(f) of the Act.First Issue: Was the Tribunal's jurisdiction excluded by 187(2)(d)(i)?[8] EM had a right of appeal under s 187(4) of the Act which relevantly provides:(4) The grounds for an appeal under this section are that—(a) the relevant decision was not correct in terms of the residenceinstructions applicable at the time the relevant application forthe visa was made; or(b) the special circumstances of the appellant are such thatconsideration of an exception to those residence instructionsshould be recommended.[9] But there are limitations on this jurisdiction. In particular s 187(2)(d) provides:187 Rights of appeal in relation to decisions concerning residence classvisas(2) However, no appeal lies under this Act in respect of—(d) a refusal of the Minister or an immigration officer to grant aresidence class visa to a person who has been invited to applyfor a visa, if a ground for the refusal is that the Minister orofficer determines that the person,—(i) whether personally or through an agent, in expressing hisor her interest in obtaining an invitation to apply for a visa,submitted false or misleading information or withheldrelevant information that was potentially prejudicial to theperson; or[10] The information said to be false or misleading within s 187(2)(d)(i) are EM'sanswers on the expression of interest form responding "no" to the question whetherhe had been excluded from any country. The letter from Immigration New Zealandexpressed the following conclusion:From our assessment, we are satisfied that you fall within the provisions ofthe Immigration Act 2009, section 15(1) whereby"no visa or entry permission may be granted, and no visa waiver mayapply, to any person-(f) who has, at any time, been removed, excluded, or deportedfrom another country."Therefore, you are ineligible for a residence class visa unless you are granteda special direction under section 17 of the Immigration Act 2009.In addition, we are also unable to approve this residence application as youfall within the provisions of instruction SM3.5, for having provided false andmisleading information as part of an EOI (SM3.5.a.i), and withheld relevant,potentially prejudicial information from an EOI (SM3.5.a.ii).For the above reasons, your residence application has been declined.[11] On the face of it this suggests that "a ground" for the refusal was that EM had"submitted false or misleading information" as contemplated by s 187(2)(d)(i). Butthat is not what the Tribunal found in its decision. It first considered whether EM wasan excluded person, and it reached the conclusion that he was not. This led theTribunal to reach the following decision:[93] The Tribunal finds that the appellant is not an excluded person asdefined by section 15 of the Act. The Tribunal therefore has jurisdiction inrelation to section 187(2)(b).[94] Given that the appellant was not excluded, it follows that his answerto question 84 in his EOI was correct, and he did not provide false ormisleading information in, or withhold prejudicial information from, his EOI.Immigration New Zealand therefore erred when it relied on SM3.5 to declinethe application. The Tribunal finds it has jurisdiction in relation to section187(2)(d).[12] The submissions for the Chief Executive are that this approach inappropriatelyavoids the limitation on jurisdiction set out in s 187(2)(d)(i). In effect the Tribunal hasfirst assessed whether the information provided by the applicant was false, and havingconcluded that it was not false, concluded that it had jurisdiction accordingly. By thattechnique the limitation on jurisdiction was illegitimately circumvented.[13] In seeking to support the Tribunal's decision, counsel for the first respondentargued that a decision that information was false or misleading needed to be madefairly. Counsel referred to a paper provided by the Tribunal putting matters in thefollowing way:413. Finally, the instructions create a discretionary power to decline, not anobligation to decline. As with any discretionary power, INZ must exercise itreasonably and fairly. On rare occasions, the Tribunal has found that INZ'sexercise of its discretion has been so unreasonable that it was contrary to theintended purpose of the instructions. It is incumbent on INZ to addressconcerns it has over the information provided in an EOI at the earliestopportunity in the assessment process so it can decline applications which failat the first hurdle.[14] An approach of this kind appears to have been adopted by the Tribunal in othercases in which the Tribunal has concluded that the conclusion being challenged wasunfair.54 Jeanne Donald Jurisdiction Matters: IPT Residence Appeals (2018).5 See, for example, Re BC (Skilled Migrant) [2017] NZIPT 204066).[15] I accept the submissions of counsel for the Chief Executive, which wereeffectively supported by counsel assisting the Court, that this approach is circular andillegitimate. The purpose of s 187(2)(d)(i) is to prevent the Tribunal conducting aninquiry into a finding made to refuse an application on this ground. A Tribunal cannotopen an inquiry on appeal in order to determine whether the conclusion is fairlyreached, and thereby bestow jurisdiction upon itself to engage in that very inquiry. Iaccordingly accept that the Tribunal's reasoning was wrong in law.[16] It is nevertheless necessary to determine whether the decision is, in fact, adecision which has "a ground for the refusal" that the applicant has provided "false ormisleading information or withheld relevant information that was potentiallyprejudicial to the person". Some scrutiny of the decision by the Tribunal is necessaryto determine whether s 187(2)(d)(i) is engaged. It is also the substance, rather thanthe way the decision is worded, that will determine whether s 187(2)(d)(i) applies.The fact that a decision purports to be based on the false/misleading informationground does not necessarily mean that this was in fact a ground for the decision — thelabels the decision-maker has used are not conclusive. But if it is a substantive groundfor the decision the Tribunal cannot scrutinise the decision further, even if it hasconcerns that the conclusions might be wrong.[17] Here there is no dispute about the facts. EM did answer the question "no" inthe form when asked whether he had been excluded from any other country. But healso provided comprehensive information to be read alongside this answer whichexplained the full circumstances. Indeed it is difficult to imagine how EM could havebeen more forthcoming. It is not suggested that read together this information was inany way false or misleading, and neither was that the conclusion of the decision-maker.The substantive reason why the application was declined was that ImmigrationNew Zealand had concluded, based on this very information, that he had, in fact, beenexcluded from Australia. Thus the true ground for the refusal was s 15(1)(f) of theAct. As a matter of substance there was no further or additional ground based on EMproviding false or misleading information.[18] The decision of the immigration official did purport to say that there was anadditional ground for declining based on EM providing false or misleadinginformation. But that was artificial. Just as it is wrong for the Tribunal to artificiallybestow upon itself jurisdiction by circular reasoning, it is equally wrong for a decision-maker to purport to exclude the jurisdiction of the Tribunal by similar techniques. Asa matter of substance there was only one ground of refusal. The expression of anadditional ground of refusal was illegitimate, just as the technique adopted by theTribunal to avoid it was.[19] Before leaving this topic, I wish to emphasise that the Court's rejection of theTribunal's technique for avoiding the limits on its jurisdiction should not be taken asa rejection of the Tribunal's view that a finding that an applicant has submitted falseor misleading information needs to be made fairly. I agree with that view. In addition,information is not false or misleading simply because an applicant has ticked thewrong box when it is apparent from the application overall that this was a mistake.Real care is needed when making such findings, particularly given the absence of anyappeal right as a consequence. But only the High Court would have jurisdiction toaddress such matters and quash such a decision for procedural unfairness, or mistakeof law.[20] Nevertheless, here I conclude the Tribunal had jurisdiction, but for differentreasons from those adopted by the Tribunal. For that reason I do not accept the ChiefExecutive's argument.Second issue: Exclusion under s 15(1)(f)[21] Section 15 of the Act provides (emphasis added):15 Certain convicted or deported persons not eligible for visa orentry permission to enter or be in New Zealand(1) No visa or entry permission may be granted, and no visa waiver mayapply, to any person—(a) who, at any time (whether before or after the commencementof this section), has been convicted of an offence for which theperson has been sentenced to imprisonment for a term of 5 yearsor more, or for an indeterminate period capable of running for5 years or more; or(b) who, at any time in the preceding 10 years (whether before orafter the commencement of this section), has been convicted ofan offence for which the person has been sentenced toimprisonment for a term of 12 months or more, or for anindeterminate period capable of running for 12 months or more;or(c) who is subject to a period of prohibition on entry to NewZealand under section 179 or 180; or(d) who at any time (whether before or after the commencement ofthis section) has been removed or deported from New Zealandunder any enactment; or(e) who is excluded from New Zealand under any enactment; or(f) who has, at any time, been removed, excluded, or deportedfrom another country.(3) Subsection (1)(d) does not apply to a person who—(a) has been deported from New Zealand under section 158 of theShipping and Seamen Act 1952; or(b) was subject to a removal order under section 54 of the formerAct, if the removal order has expired or been cancelled; or(c) was deported under this Act but is not, or is no longer, subjectto a period of prohibition on entry under section 179 or 180; or(d) has been deported from New Zealand under section 20 of theImmigration Act 1964 on the grounds of being convicted of anoffence against section 14(5) or 15(5) of that Act.[22] In its decision the Tribunal concluded that the subsection did not apply becausethe nature of the limitation imposed upon EM did not amount to exclusion within themeaning of s 15(1)(f). The Tribunal held:[81] the appellant's exclusion period from Australia was far from acomplete prohibition on entry. It is true that during that three-year exclusionperiod, the appellant was unable to apply for visas that required specific PICor SRC criteria. This precluded him from applying for most temporary visas(absent demonstrating compelling circumstances to have the exclusionwaived). However, he was not prevented from applying for a number ofpermanent visas, as these did not require those specific criteria. For example,while the appellant was precluded from applying for a working holiday visa,he was able to apply for a residence visa on the basis of partnership.[82] In contrast, information on the Australian Department of Immigrationand Border Protection's website (www.border.gov.au/about/corporate/information/factsheets/79character) indicates that Australian lawallows for permanent and complete exclusion:A person who is removed from Australia after their visa is cancelled oncharacter grounds will be permanently excluded from being granted anothervisa to re-enter Australia.[89] Given the partial nature of the exclusion period to which the appellantwas subject; the fact that the Australian government's position was that theappellant had not been "formally excluded" from Australia; and the overallfocus of section 15 on excluding individuals from New Zealand who havecommitted serious offences or immigration transgressions, the Tribunal is notsatisfied that, in the particular circumstances of this case, the appellant had"been excluded" in the context of section 15(1)(f) of the Act.[23] The Chief Executive argues that this approach is wrong, and that prohibitionon re-entry, even partial prohibitions, amount to exclusion. The Chief Executive'scriticism of the approach adopted by the Tribunal has three interrelated aspects,namely:(a) that the Tribunal's approach involved an elaborate case by caseassessment, rather than the application of a clear and definitive conceptevident from s 15;(b) that it will ultimately involve giving effect to foreign law rather thanNew Zealand law; and(c) that it is inconsistent with the text, context and purpose of the relevantprovision.[24] In responding to those submissions both the first respondent and counselassisting argued that s 15 itself contemplated that there were different types ofimmigration restriction that applied in New Zealand and other countries, and thenature of the restriction imposed under Australian law on EM here did not qualify asexclusion within the meaning of s 15(1)(f).Analysis[25] The Chief Executive argues that to be "excluded" has a limited and clearmeaning in New Zealand law that does not require a case by case assessment of thelaws and practices of foreign countries. The written submissions for the ChiefExecutive put this point in the following way:32. the Tribunal's approach entails an overly nuanced analysis, whichrequires an immigration officer to make case-by-case judgementsbased on factors not apparent from s 15 of the Act, including theduration of the exclusion period and the seriousness of transgressiongiving rise to the exclusion period. Whether or not a person is"excluded" under s 15(1)(f) should be susceptible to a clear answer.[26] The text on enactment must always be interpreted in light of its purpose.6 TheCourt's ultimate function is to make the statute work as Parliament must haveintended.7 The place of s 15 in the overall scheme of the Act is accordingly important.[27] Section 15(1)(f) refers to a person who has been excluded from anothercountry. Section 15(1)(e) refers to a person excluded from New Zealand. It is apparentthat the two subsections are referring to essentially the same concept, and identifyingthe nature of exclusion from New Zealand will inform what is meant by beingexcluded from a foreign country. A consideration of exclusion from New Zealanddemonstrates, however, that it does not have a meaning that leads to a clear answer inall cases as the Chief Executive contends. Some of the features of s 15 are significantin this context:(a) There is no definition of "excluded". The only defined term is"excluded person" (in s 4), and it refers back to a person to whom ss 15and 16 apply. It is accordingly circular. Neither is there precisemachinery within the Act that identifies when someone will become anexcluded person under New Zealand law for immigration purposes.(b) Section s 15(1)(e) also speaks of someone excluded from New Zealand"under any enactment", and accordingly can encompass otherlegislative provisions that operate to so exclude a person. Suchprovisions were not identified in a complete way by the ChiefExecutive in argument, although reference was made to personsexcluded under a number of United Nations sanctions regulations. Buteven in New Zealand law, identifying when someone is excluded is notobvious.6 Interpretation Act 1999, s 5(1); and Commerce Commission v Fonterra Co-operative Group Ltd[2007] NZSC 36, [2007] 3 NZLR 767.7 Northern Milk Ltd v Northland Milk Vendors Association Inc [1988] 1 NZLR 537 (CA).(c) It is also apparent from s 15 that determining whether a person is"excluded" may involve some subtlety. It contemplates somethingdifferent than being deported or removed as s 15 refers to these threeideas as separate concepts. It would also appear that the legislationcontemplates that there is a difference between "a period of prohibitionon entry" and being "excluded" as those two concepts are referred to asseparate matters in s 15(1)(c) and (e).(d) The concepts of removal, deportation and exclusion referred to in s 15do not have mutually exclusive meanings. They appear closelyinterrelated, so that the meaning of each term is coloured by the others.Each is contemplating an adverse measure resulting in the person beingunable to be in the relevant country.(e) The other grounds of disqualification referred to in s 15 also involvesignificant transgressions only. That is particularly evident from theconvictions referred to in ss 15(1)(a) and (b). So a person is only anexcluded person if the significant transgressions are committed. Thisalso provides context, and colour for the meaning to be given to theconcept of being "excluded" from another country under s 15(1)(f).[28] The Chief Executive argued, however, that the relevant provisions did identifya test providing clear answers notwithstanding a circular nature of the definition of"excluded person". The argument was put in the following way in writtensubmissions:35. While the word "excluded" is not defined, s 4 of the Act defines an"excluded person" as "a person to whom section 15 or 16 applies". Asthe respective headings of ss 15 and 16 state, these sections areconcerned with persons who are "not eligible for visa or entrypermission" to enter or be in New Zealand. Both sections begin withthe words, "no visa or entry permission may be granted ...". Theyspecify who may not be granted a visa or entry permission,notwithstanding they may otherwise meet the relevant requirements.Provisions of this kind can also be found in immigration legislations ofother jurisdictions. Further, both sections are subject to s 17, whichvests an "absolute discretion" in a decision-maker, including theMinister of Immigration, to grant a visa or entry permission to personswho fall within ss 15 and 16.[29] The reference at the end of this paragraph to the Minister's discretion to allowentry under s 17 illustrates the difficulty with the Chief Executive's argument as itcontemplates that entry might still be permitted. As Mr Fong submitted, in ordinaryusage being "excluded" from a place means that you cannot go there. It has anabsolute connotation. That seems to me to provide an appropriate meaning of the wordin s 15(1)(f). In the context of decisions affecting immigration rights, therefore, thestatute appears to be contemplating a situation where the immigration measures of aforeign country prevent entry into that country. The key point, however, is that themeasures must prohibit, rather than simply restrict entry.[30] In many, perhaps most cases, the position may well be straightforward becausethe transgression involved is serious and the restriction on re-entry likely to becomplete. But that was not so in EM's case. He had committed a transgression underAustralian law, and his rights of re-entry were adversely affected as a consequence.But given they arose from only a short period of overstaying at the conclusion of hisvisa period, and that he left Australia voluntarily, his chances of re-entering may havebeen reasonably good. That is reflected by the Minister's decision to give a specialdirection which resulted in EM obtaining a residence visa in New Zealand,notwithstanding the transgression. A decision in Australia may well have been similar.A consideration of the detailed facts and circumstances seems unavoidable in thecircumstances of EM's case.[31] Whilst it appears clear that s 15(1)(f) is contemplating a decision under foreignlaw, or the operation of foreign laws that curtail rights of entry otherwise available,such curtailment may involve matters of degree, ranging from a limitation orrestriction upon the rights of entry on one end of a spectrum right through to completeprohibition. The concept contemplated by s 15(1)(f) seems to me to be at theprohibition end of the spectrum, when re-entry is not allowed. As with removal anddeportation, it contemplates the situation when you are not allowed in the country.There will be cases where it is obvious a person has been excluded without the needfor elaborate analysis, but in other cases the answer will not be so obvious, and adeeper analysis is needed.[32] In the present case, for example, two material questions arose. First if a personis only prevented from entering a country for a period of time is the person excludedwithin the meaning of s 15(1)(f)? Secondly, if the prohibition is not absolute, andentry is permitted in certain circumstances (but is more limited than usual) is theperson excluded within the meaning of the section? It seems to me that the answer tothose questions will depend on the particular circumstances involved in the restrictionarising in the foreign country. In such circumstances it seems to me unavoidable thatthe analysis will require an understanding of the foreign country's regime, and therestriction that has arisen. Only then can it be determined whether a person had been"excluded" within the meaning of s 15(1)(f). I accept that this potentially involvescomplexity in the application of that provision in such cases. But that seems to me tobe inherent in the requirements of the section.[33] Mr Fong referred to broader materials, including international materials,indicating that overstaying was a serious transgression with serious consequences. Hecontended that this provided strong contextual support for the submission that anyconsequential limitation of re-entry, including partial or incomplete prohibitions, werewithin what Parliament contemplated by "excluded". But even under New Zealandlaw overstaying by itself does not result in a person being "excluded" fromNew Zealand. Only more serious transgressions are set out in ss 15 and 16 leading tothose persons being defined as an "excluded person". That is also the situation inAustralia. For other countries regimes a case by case assessment will be required toevaluate whether the consequences of a transgression has led to a prohibition on re-entering the country, which is the standard that should be applied.[34] I do not accept the Chief Executive's related argument that the Tribunal'sapproach involves the application of foreign law rather than New Zealand law. It isevident that the meaning of s 15(1)(f) is a question of New Zealand law. Whether themeasure of a foreign country meets the requirements of the New Zealand law is aquestion of fact. For that reason I do not accept the Chief Executive's criticism thatthe approach of the Tribunal is based on what excluded might mean under Australianlaw, rather than New Zealand law. The inquiry s 15(1)(f) contemplates requires ananalysis on the meaning and effect of the laws of the foreign country, and theimplications of decisions made under them. Considering those matters is a necessaryelement of the application of New Zealand law. Analysing what has happened to EMas a matter of fact under Australian law, and discretionary decision-making under thatlaw, was accordingly necessary.Conclusion on meaning[35] The real issue in this case is not ultimately the correct meaning of being"excluded from another country" under s 15(1)(f). It is the difficult application ofthat meaning in borderline cases where rights of re-entry are restricted, but noteliminated.[36] I do not accept the Chief Executive's contention that the Tribunalmisinterpreted s 15(1)(f). To be excluded from another country contemplates aprohibition on re-entry into that country. If a person has committed some transgressionthat adversely affects their rights to re-enter a foreign country but it does not removethose rights, they will not have been excluded. In many cases the position will beclear. But in some it may become necessary to make a detailed assessment on whetherthe curtailment amounts to exclusion. Whilst that may amount to a difficult anddetailed factual assessment in such cases, that seems to me to be unavoidable.[37] It also needs to be remembered that the relevant immigration transgression inthe foreign country will be relevant to the assessment of the individual on the meritsunder the immigration instructions. It may well be that in such cases that is the moreappropriate place for the transgression to be taken into account.Application to the present case[38] The difference between the obvious case, and the more difficult case, isillustrated by the provisions of the laws of Australia that applied to EM.[39] Under Australian law there is a clear category of person that is expressly treatedas an excluded person under Australian law. Under s 503 of the Migration Act 1958,certain persons are excluded from Australia. They include people who have beendeported for having committed criminal offences, or have been refused entry for afailure of the character test provided for by the legislation. This appears to be squarelythe type of persons that s 15(1)(f) is contemplating — those who have committedserious transgressions of a kind that would lead to someone being deported, and/or nototherwise allowed to re-enter Australia.[40] EM was not in that category. He had committed none of the transgressionsidentified in s 503 that would lead to him being classified as excluded from Australiaby that provision. But he nevertheless engaged in a period of overstaying whilst inAustralia on a visa, and by doing so he adversely affected his ability to re-enter in thefuture. But it only adversely affected that ability, rather than eliminating it.[41] There were two limitations or qualifications attached to the decisions madeunder Australian law in terms of EM's ability to re-enter Australia under therequirements set out in the schedules to the Migration Regulations 1994. First underPIC 4014 the restriction applied for only a three year period. Secondly that restrictiondid not prevent EM applying for types of visas not covered by PIC 4014, or obtaininga visa under PIC 4014 if the relevant Minister was satisfied of certain specialcircumstances. The position was summarised in the following terms in Ms Aldred'ssubmissions as counsel assisting the Court:17. as a matter of fact, the first respondent cannot be held to have been"excluded from" Australia in terms of s 15(1)(f) on its naturalmeaning. Rather, by virtue of his overstaying, his ability to obtainspecial categories of visa for Australia was curtailed, meaning that hisoptions for re-entry were, for the subsequent three years, limited to:17.1 Applying for other kinds of visa (including a residence class visa)that did not require satisfaction of PIC 4014; or17.2 Establishing the existence of compelling or compassionatecircumstances justifying re-entry within the three year period.[42] In my view, the fact that the restriction was only for a temporary period of timedoes not, by itself, mean that EM was not excluded. It will be relevant to the overallassessment. But if there was a total prohibition on him re-entering Australia for thatperiod of time, it seems to me that he would have been excluded from Australia.[43] It also seems to me that if EM had tried, and failed, to obtain re-entry intoAustralia under the remaining avenues available to him because of the matter that hadled to the restriction on his rights of entry, he would also have been excluded in theway contemplated by s 15(1)(f). That is not the case in the circumstances of this case,however.[44] I also accept that, if the reality was that he would not have been able to obtainre-entry into Australia under the rights of entry avenues remaining available to him,he would properly have been regarded as an excluded person. Put another way, if therestriction that had been placed on him made it apparent he would not be able to re-enter Australia for three years, then it seems to me that s 15(1)(f) would have applied.But if there remained a real prospect that he could re-enter within the three yearsnotwithstanding the transgression that led to the limitation on his rights, then it seemsto me that s 15(1)(f) did not arise. I do not understand the Chief Executive to contendthat EM's case was in the category of effective exclusion in this way.[45] All this means that in the present case the Tribunal correctly interpreteds 15(1)(f), and it reached the correct conclusion on the facts of EM's case. Iaccordingly dismiss the Chief Executive's challenges on this ground.Additional jurisdiction issue[46] During the course of argument, Mr Fong for the Chief Executive identified afurther issue concerning the jurisdiction of the Tribunal. It was not one that had beenaddressed in the pleadings, or the written submissions of counsel. Given that I did notinvite counsel for the first respondent or counsel assisting to address it orally, I do notthink it is appropriate for the Court to issue a formal decision on the point given theway it emerged. But it is appropriate to record the submission, to provide somepreliminary comment.[47] Mr Fong pointed out that the Tribunal's jurisdiction under s 187(4) is limitedto the application of the residence instructions, or to the existence of specialcircumstances where an exception to those instructions should be recommended.Mr Fong argued that the question whether someone is excluded from another countryunder s 15(1)(f) does not involve the interpretation or application of any of theresidence instructions themselves. It is a preceding point of interpretation of the Act.He accordingly submitted that the Tribunal had no jurisdiction to address the point. Itcould only be addressed by the Court on an application for judicial review.[48] Having considered the terms of the residence instructions that applied duringthe events of this case, I can see that Mr Fong's point that the correct meaning ofs 15(1)(f) is not part of them appears to be correct. There is reference in theintroductory paragraphs in the instructions to persons excluded by a foreign country(RA6), but the instructions say these paragraphs were not part of the instructionsthemselves (introductory words – RA). Importantly the instructions have since beenchanged.[49] But Mr Fong's point only goes so far. The Tribunal does not have a judicialreview function. Neither the Tribunal, or the Chief Executive has jurisdiction toconclusively interpret the meaning of the Act. That is the function of the Court. Butin exercising the powers given by the Act, it is necessary for both the Chief Executiveand the Tribunal to apply the Act as they understand it. The Tribunal has the functionof considering an appeal on the basis set out in s 187(4). Whilst that does not includea jurisdiction to correct the Chief Executive's errors of law in the interpretation of theAct, it may nevertheless be necessary for the Tribunal to form its own view of themeaning of the Act in order for it to exercise its appeal jurisdiction. Its view may bedifferent from the view taken by the Chief Executive. For example, in the presentcase, the Tribunal formed the view that the residence instructions did apply to EM ashe was not an excluded person disqualified for consideration. That being its view, theTribunal could have considered his case under the instructions on the merits. If theChief Executive wanted to challenge the Tribunal's approach in this respect, it couldthen do so by way of judicial review (as it has done in the present case).[50] That does not appear to be what actually occurred in the present case. Ratherthe Tribunal has reached the conclusion that the Chief Executive has misinterpreteds 15(1)(f) and made orders requiring the Chief Executive to reconsider his decision.The Tribunal may have thought it had little alternative in the absence of any decisionby the immigration officers on the merits. But by doing so it appears to have exerciseda judicial review function, rather than the appeal jurisdiction under s 187(4), whichmay not have been technically correct.[51] These points illustrate the difficulties with these kinds of jurisdiction argument,however, and further illustrate why a formal decision should not to be made on thispoint. Given it was not squarely raised in the case, I do not make any decision on thisbasis. The point also does not have much practical significance given the present casehas come before the Court by way of judicial review in any event.Conclusion[52] Accordingly, for the reasons identified above I have reached the followingconclusions:(a) That the Tribunal did have jurisdiction to consider EM's appealnotwithstanding s 187(2)(d)(i) of the Act.(b) That the Tribunal correctly interpreted s 15(1)(f) of the Act, andreached the correct conclusion on the application of the provision onthe facts of EM's case.[53] The Chief Executive's appeal, and judicial review challenges are accordinglydismissed.[54] The Chief Executive did not seek costs if it were successful. EM sought costsif successful. EM participated in the case notwithstanding having obtained residenceon other grounds because of his counsel's knowledge of the case and so that they couldprovide assistance. In the circumstances it seems to me to be appropriate to awardEM costs on a 2B basis, but with an allowance for only one counsel.Cooke JSolicitors:Crown Law, Wellington for Appellant and Second RespondentCotterell Law, Wellington for First Respondent