DAVID JOHN HIGGS v MINISTER OF IMMIGRATION [2022] NZHC 1333

DAVID JOHN HIGGS v MINISTER OF IMMIGRATION [2022] NZHC 1333 [8 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-001569[2022] NZHC 1333BETWEEN DAVID JOHN HIGGSApplicantAND MINISTER OF IMMIGRATIONFirst RespondentCHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTSecond RespondentCIV-2021-404-001510CIV-2021-404-001472BETWEEN MICHAEL JOHN WITBROCKApplicantAND MINISTER OF IMMIGRATIONFirst RespondentCHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTSecond RespondentHearing: 8 December 2021; further submissions 22 December 2021Appearances: S Dalley and P Sundar for the Applicants (by VMR)M Mortimer-Wang and S Perera for the Respondents (by VMR)Judgment: 8 June 2022JUDGMENT OF WALKER JThis judgment was delivered by me on 8 June 2022 at 12 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction [1]The parties [10]Context and statutory framework [19]New Zealand's border response to COVID-19 and impact on immigration rules[38]Regulation 9A – a solution? [43]Certification of E13 [47]Extension of reg 9A [54]Procedural History [64]The Grounds of Challenge [72]Preliminary [76]Is Y3.5.1(a)(ii) ultra vires? [79]What role does Y 3.5.1(a)(ii) have in these challenges? [83]The contentions [85]Discussion [88]Alleged failure to properly consider international and domestic human rightsobligations in making the lapsing and suspension decisions? [94]Contentions [94]Discussion [105]Lapsing decision [123]Irrelevant considerations? [136]Failure to consider discriminatory impact – s 19 Bill of Rights Act [142]The contentions [142]Is section 19 Bill of Rights Act engaged? [148]Discussion [153]Are the impugned decisions discriminatory? [169]Result [199]Costs [200]Introduction[1] The consequences of COVID-19 for governments and communities around theworld extended well beyond health impacts. The New Zealand Governmentcommitted to an elimination response in recognition of the possibility that NewZealand's health system could be overwhelmed. New systems, policies and rules wereestablished at speed to achieve the stated objective. Closing New Zealand's bordersto most travellers on 19 March 2020 was an integral component of the eliminationstrategy. This closure was unprecedented and rapid. Border closures reverberatedwidely. Not only was entry permission closed to many holders of temporary entryclass visas, but many people in New Zealand on temporary visas could not leave. Forthose who were still entitled to travel to New Zealand, the Government established amanaged isolation and quarantine system.[2] Unsurprisingly in the light of their impact, there have been many challenges tothe measures adopted by Government. The three consolidated proceedings before thisCourt challenge decisions of the first respondent, the Minister of Immigration (theMinister), intended to deal with the consequences of the border closure. Thesedecisions most directly impacted partners and families of New Zealand citizens andresidents, and partners and families of temporary visa holders living in New Zealand.[3] The first decision challenged is the Minister's recommendation to Cabinet toextend the temporary suspension of the ability of most non-New Zealand citizens orNew Zealand residents to apply for a temporary entry class visa. The extensions wereto the duration of reg 9A of the Immigration (Visa, Entry Permission and RelatedMatters) Regulations 2010 (Regulations). There have been multiple extensions.Michael Witbrock, the plaintiff in two of these proceedings, formally challenges therenewal in June 2021, by which reg 9A was extended to 6 February 2022, and therenewal on 22 November 2021, by which it was extended to 5 August 2022.1[4] I refer to these impugned decisions as the suspension decisions.1 Mr Witbrock is the plaintiff in CIV-2021-404-1472 and CIV-2021-404-1510. Mr Higgs is theplaintiff in CIV-2021-404-1569. I refer to both as the "plaintiffs" rather than as the "applicants"to avoid confusion of nomenclature.[5] The second decision challenged is the Minister's certification of immigrationinstruction E13 which permits (but does not require) an immigration officer to lapsecertain applications for temporary entry class visas received or unable to be processedduring the period of border closure. Lapsing means the removal of an application fromthe cohort of active files to be processed and determined by Immigration New Zealand(INZ).[6] I refer to this decision as the lapsing decision.[7] At their heart, these challenges are about the scope of exceptions to reg 9A andE13, more particularly, the partnership exception. One of the temporary entry visacategories excepted from reg 9A is an application by any person who is applying forthe visa on the basis that the person is a spouse, partner, or dependent child of a NewZealand citizen or a person who holds a residence class visa.2 Instruction E13 in asimilar fashion excludes the ability to lapse applications which are based on arelationship (partner or dependent child/ren) with a New Zealand citizen, residenceclass visa holder or temporary visa holder.[8] INZ construes these exceptions as limited to 'partnership' visas, by type, andrelies on existing instructions relating to partnership applications. INZ draws adistinction between applications based on a relationship (either partnership ordependent child) – that is, an application for a type of visa that requires them to meetpartnership instructions, and applications for a temporary entry class visa in their ownright. Those who are in genuine and stable relationships but do not live together donot satisfy INZ's criteria for partnership applications.[9] This is a particularly acute problem for people from certain ethnic andreligious backgrounds because their culture, society and/or religious beliefs do notallow partners to live together before marriage. It is similarly an obstacle for thoseliving in countries which discriminate against same sex relationships and others in theLGBTQIA+ community. This is described in the plaintiffs' evidence as a "Catch-22";couples must live together to meet the partnership visa requirements yet require a visato be able to live together in New Zealand for cultural, societal or religious reasons.2 In addition, the holder of that residence class visa, must or may be granted entry permission underimmigration instructions.The parties[10] Mr Witbrock is a New Zealand citizen who married his husband in NewZealand. His husband, Yunli Lu, is a Chinese national who has a General Visitor Visa(GVV) application lodged with INZ. The application was lodged in November 2019for a GVV because of their inability to meet the living together requirement.Mr Witbrock deposes to his understanding that INZ has accepted that the couple arein a genuine and stable relationship but is unable to grant Mr Lu a visa as INZ hassuspended 'processing' of GVVs to offshore applicants. It is now in the process oflapsing visas of this type.[11] I will return to this issue of precisely what reg 9A and instruction E13 in factachieve later in this judgment but simply record at this point that none of thechallenged decisions themselves suspend the processing of visa applications.[12] Mr Lu requested a humanitarian exception to the border closure in April 2020so that he could join Mr Witbrock. INZ denied his application. As at the time ofhearing, the couple had been separated since 8 January 2020 due to COVID-19constraints.[13] Mr Lu and Mr Witbrock have not lived together during their two-yearmarriage. Even when the Chinese border is open to non-citizens, they say they willnot be able to live together in China due to China's non-recognition of LGBTQIA+relationships. Mr Witbrock states in his affidavit (made before the most recentextension):To an extent, I can understand the suspension on processing of certain visaswhen COVID-19 first hit New Zealand, however the suspension has beenextended to February 2022. This delay and the endless uncertainty is verydifficult to understand and causes further stress and strain on me as a NewZealand citizen. As a New Zealand citizen, I am entitled to no arbitraryinterference with my right to family unity. I continue to be separated from myhusband for arbitrary reasons.[14] He also deposes to the personal impact on the couple should the type of visaapplication made by Mr Lu be lapsed. He says that even if Mr Lu can make anothervisa application when New Zealand's border opens, Mr Lu will have lost the place heheld in the processing queue leading to greater uncertainty for an even longer periodwith ongoing deleterious impacts on both partners.[15] David Higgs, the plaintiff in one of these proceedings has a partner with a GVVapplication lodged with INZ which, at the time of filing the proceeding, was about tobe lapsed. In the exercise of INZ's discretion this will not be lapsed pending thissubstantive determination.3 He has been separated from his partner for more than 18months. He also describes the emotional impact of forced separation from his partner,and the sense of hopelessness consequent on any lapsing of the application.[16] In some respects, the plaintiffs are advancing these claims in a representativecapacity on behalf of the cohort of visa applicants and their partners affected by thesemeasures. Katrina Armstrong-Myers, a licensed immigration advisor, has providedevidence. An advocate for families and partners separated by border closures, she saysthat in her day to day work she has come across hundreds of families separated by thedecision to 'suspend visa processing' and hundreds who remain split because theycannot meet the living together requirements.[17] Mr Witbrock challenges both the suspension decisions and the lapsingdecision. Mr Higgs challenges only the lapsing decision. Given the substantiallyoverlapping issues, I do not intend to distinguish between the three sets of proceedingssave where necessary to do so.[18] The second respondent is the Chief Executive of the Ministry of Business,Innovation and Employment (MBIE). INZ is a business unit within MBIE. Nodecision or action of INZ is directly challenged in these proceedings, as framed, butthe relief which the plaintiffs seek extends to prevent INZ taking certain actions. Thesecond respondent acknowledges that she is an appropriate party to the proceeding.Context and statutory framework[19] To put the plaintiffs' challenges in context, I briefly describe the immigrationframework.[20] The purpose of the Immigration Act 2009 (the Act) is to "manage immigrationin a way that balances the national interest, as determined by the Crown, and the rightsof individuals".4 The control of New Zealand's border lies with the Crown. The3 Higgs v Minister of Immigration [2021] NZHC 2287 at [10].4 Immigration Act 2009, s 3(1).decision as to whether a non-citizen can enter and remain in New Zealand is the soleprerogative of the Executive.5[21] Christine Hyndman, a Principal Policy Advisor with MBIE explains thevarious mechanisms for managing immigration in this way:Policy decisions by government inform settings, and those are translated intorules in various forms: at the highest level in the Immigration Act 2009 asprimary legislation endorsed by Parliament, and also through regulations andimmigration instructions (the latter of which are statements of governmentpolicy which are given the force of law by the Act).[22] Within the immigration environment, the statements of government policycontained in immigration instructions are certified by the Minister under s 22 of theAct. The Minister's power to certify immigration instructions relates to a variety ofmatters. These instructions are rules and guidance for decisions by immigrationofficers. The rules and guidance, or criteria, for the grant of temporary entry classvisas are set by these instructions. Relevantly, section 22 of the Act provides:22 Immigration instructions(1) The Minister may certify immigration instructions relating to—(a) residence class visas, temporary entry class visas, and transitvisas:(b) entry permission:(c) conditions relating to resident visas, temporary entry classvisas, and transit visas, including, without limitation,conditions relating to—(i) travel to New Zealand:(ii) the holder's ability to work or study in New Zealandor in the exclusive economic zone of New Zealand:(d) the periods for which each type of temporary entry class visamay be granted:(e) the types of temporary visas that may be granted, and thename and description of each type.(3) Applications for temporary entry class visas or transit visas that aremade before any relevant immigration instructions take effect may be5 Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [116]-[117].determined in accordance with those immigration instructions whenthose instructions take effect.(4) Subsection (3) does not apply to applications for temporary entry classvisas subject to restricted temporary entry instructions.(5) The kinds of matters that may constitute immigration instructions forthe purposes of this Act are as follows:(a) any general or specific objectives of immigration policy:(b) any rules or criteria for determining the eligibility of a personfor the grant of a visa of any class or type, or for entrypermission, being rules or criteria relating to thecircumstances of that person or of any other person (a thirdparty) whose circumstances are relevant to the person'seligibility, including (without limitation) rules and criteriaabout how any status or approval may be obtained or lost bythe third party:(c) any indicators, attributes, or other relevant information ormatters that may or must be taken into account in assessing aperson's eligibility for a visa or entry permission:(d) any statement of, or rules or criteria or process fordetermining, the number or categories or ranking of personsor classes of persons whose applications for visas of any classor type or entry permission may be granted at any particulartime or over any particular period:(e) any rules or criteria for the lapsing of applications in respectof which no decision to grant a visa has been made:(f) any matters relevant to balancing individual eligibility for avisa or entry permission against the overall objectives orrequirements of immigration instructions:(g) any requirements relating to documentation, consultation, orother evidence or information required to assess a person'seligibility for a visa or entry permission:(h) any statement of the conditions or types of conditions thatmay be imposed upon a visa of any particular class or type,and the circumstances in which or classes of persons inrelation to whom the conditions may be imposed:(i) the nature and extent of the discretion thatimmigration officers may exercise in making adecision on any visa.(8) Immigration instructions certified by the Minister under subsection(1)——(a) are statements of Government policy.[23] INZ's Operational Manual (the Manual) contains the instructions certifiedpursuant to s 22. As policy documents, these instructions are working documents butalso legal instruments through s 22 of the Act. The usual approach to interpretation isapplicable. That is, the legal principles of interpretation of text in light of purpose.Interpretation must be consistent with the purposes of that part of the Act under whichthe policy is made, consistent with usual principles of administrative law andconsistent with the rights and freedoms in the New Zealand Bill of Rights Act 1990(the Bill of Rights Act).6[24] Anyone travelling to New Zealand who is not a New Zealand citizen requiresthe grant of a visa and the grant of entry permission. These are distinct and separate.Each is governed by its own criteria against which eligibility is determined.7 Entrypermission generally refers to decisions made by immigration officials at the time ofarrival at the New Zealand border. The grant of entry permission is not automaticmerely because an individual holds a temporary entry class visa.[25] There are three classes of visa:8(a) Temporary entry class visas;(b) Residence class visas; and(c) Transit visas.[26] A temporary entry class visa is a visa that provides for a temporary stay in NewZealand but no right to stay permanently. This distinguishes a temporary entry classvisa from a residence class visa.9 A person granted a temporary entry class visa whois offshore, is entitled to travel to New Zealand and apply for entry permission. If6 Chamberlain v Minister of Health [2018] NZCA 8, [2018] 2 NZLR 771 at [41]. The Court ofAppeal in H v Minister of Immigration [2020] NZCA 562 compared the approach in Chamberlainand the approach in Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA)at 271. Though the opening words of the statement in Patel suggest a less strict approach tointerpretation of government policy, the Court of Appeal said, read as a whole, it can be seen thatthere is in fact no real difference between the two approaches.7 Afghan Nationals v Minister of Immigration [2021] NZHC 3154 at [62].8 Immigration Act 2009, s 70.9 Immigration Act 2009, ss 74 and 77.entry permission is granted, they are then entitled to stay in New Zealand during thecurrency of the visa in accordance with the conditions of their visa.10[27] Types of temporary entry class visas include visitor visas, work visas, andstudent visas. Within these types, there are also specialised or targeted categories.[28] Relevant to the present context are immigration instructions E4.5.20 andE4.5.30 which contain policy statements relating to partnership visa applications.They read:E4.5.20 Evidential requirements for partnersa. If a partner is included in an application, or is applyingin their own right as the partner of a temporary entryclass visa holder, a New Zealand citizen, or residenceclass visa holder, the following must be provided:i. evidence of their relationship, andii. evidence that demonstrates they are livingtogether with that partner in a genuine and stablerelationship (E4.5.35 sets out the types ofevidence that are required).b. Where a person is applying for a temporary entry classvisa on the basis of partnership, their partner mustprovide a completed Form for Partners SupportingPartnership-based Temporary Entry Applications (INZ1146).c. Despite (a) above for the purposes of visitor visainstructions, where an application includes a partner as asecondary applicant, a declaration from both parties maybe accepted as evidence that they are living together in agenuine and stable partnership (see E4.5.35(b)).E4.5.30 Definition of 'living together'For the purposes of these instructions:a. the principal applicant and their partner are consideredto be living together if they are sharing the same homeas partners (as defined in E4.1.20).b. Living together does not include:10 Immigration Act 2009, s 77.i. time spent in each other's homes while stillmaintaining individual residences; orii. shared accommodation during holidays together;oriii. flatmate arrangements; oriv. any other living arrangements that are notreflective of the factors set out at E4.5.35(a).[29] Ms Hyndman discusses the nature of immigration policy in her affidavit. Shedescribes the need to balance a number of competing objectives, including the securityand safety of New Zealand, individual rights, international obligations and theeconomic wellbeing of the country. She explains that the system is managed by settingrules of general application that apply to all persons and which reflect policy. Thoserules are supplemented by appropriate individualised approaches to ensure as far aspossible that there is a correct and fair result in individual cases. This includes bypermitting principled, individual exceptions to the rules to avoid individual injustice.[30] Ms Hyndman's evidence discusses the requirements of the partnership visa andhow it fits into New Zealand's immigration policy. There are different pathways toobtain a visa, with different criteria for each. One such pathway is to apply based onan applicant's partnership to a New Zealand citizen or resident. Generally, partners ofNew Zealanders would apply for a temporary entry class visitor visa (based onpartnership) or a temporary entry class work visa (also based on partnership). Theinstructions relating to each set out particular criteria to meet but they also all includethe need to meet partnership requirements.[31] Partnership requirements are a creation of policy rather than the Act. Theobjective of this category of visas, and the supporting immigration instructions, is tostrengthen families and communities while reinforcing Government's overallobjectives. The core requirements relating to partnership are that an immigrationofficer must be satisfied that the applicant is living together with their partner in agenuine and stable partnership.11 The living together requirement is furtherprescriptively defined in E4.5.30. In short, the principal applicant and their partnerare considered to be living together if sharing the same home, as partners. It does not11 Immigration New Zealand Operational Manual (26 May 2022) at [E4.5.25] and [E 4.5.30].include time spent in each other's homes while still maintaining individual residencesor shared accommodation during holidays together, flatmate arrangements or anyother living arrangements that are not reflective of the factors set out in E4.5.35(a).[32] Ms Hyndman explains the policy imperative behind setting a threshold forrecognising a relationship. New Zealand has set the requirements for recognition asincluding "living together" irrespective of whether the couple is married, in a civilunion, or in a de facto relationship. She says that this criterium represents a balancebetween ensuring that persons in genuine partnerships can be granted partnership-based visas, and reducing the opportunities for misuse or fraud. From a policyperspective, fraud in the partnership space is a particular concern for INZ. There existsa market for such visas where people can and do enter into commercial arrangementswith New Zealand citizens or residents falsely claiming to be in a partnership to obtaina visa. Criteria such as the "living together" requirement aims to reduce the incidenceof fraudulent applications.[33] Ms Hyndman acknowledges that one of the key tensions in setting partnershippolicy is that some of the criteria aimed at reducing the incidence of misuse risks beingunresponsive to relationship diversity. This includes where, due to cultural or legalfactors outside a couple's control, they will struggle to meet all of the partnershiprequirements, including the living together requirement.[34] She says that INZ recognises this and tries to reduce the impact of thepartnership criteria on those persons who are assessed as being in genuinerelationships but cannot meet all of the criteria by the following mechanisms:(a) The culturally arranged marriage visitor visa (CAM). This is a specialclass of visitor visa. It is based on relationship which allows people whohave married, or are intending to marry a New Zealand citizen orresident, to be granted a visitor visa provided the marriage follows anidentified and recognised tradition where arrangements for themarriage are made by persons other than the parties to the marriage.(b) Immigration officers have the ability under the Act to grant a visa of atype different to the one a person applied for.12(c) Immigration officers also have the ability to grant a temporary entryclass visa as an exception to Instructions. In short, waiving arequirement in instructions such as the living together requirement.13[35] I pause to note that granting exceptions to instructions is not a preferred routefor INZ. INZ's policy since November 2019 for alternatives to partnership visas isrepresented by Internal Administration Circular (IAC) 19/10 which relevantly states:Processing guidance for partnership-based applications12. Where a person has applied for a partnership-based work orvisitor visa under general requirements, but cannot demonstrate theymeet one or more of those requirements, including living together,immigration officers should refrain from granting partnership-basedvisas as exceptions to instructions except in truly exceptional cases.The regular grant of visas as exceptions undermines the integrity ofpartnership instructions.13. Instead, if a couple appear to be genuine and credible but cannotdemonstrate they meet the living together requirements, immigrationofficers may consider granting a general visitor visa for the purpose ofa family visit; this is provided for under section 45(2)(b) of theImmigration Act 2009 (the Act), as reflected in instructions atE3.1(b)(ii). Granting a visa under section 45(2) is not necessarily anexception to immigration instructions as applicants should be assessedagainst general visitor visa instructions (ie they are 'bona fideapplicants', they meet general visitor visa requirements such as fundsand onward travel) before a general visitor visa is granted. Applicantsshould only be granted visas (including general visitor visas) asexceptions to instructions when their personal circumstances are trulyexceptional and when immigration instructions are not being met.[36] IAC 19/10 also records INZ's view that persons "do not need to apply for apartnership-based visa when they do not believe they meet relevant immigrationinstructions". Instead, persons can choose to apply for a GVV. Ms Armstrong-Myerspoints out that IAC 19/10 effectively encouraged applicants who could not meet theliving together requirement to apply for a GVV.12 Section 45(2)(b).13 Section 76(1).[37] The plaintiffs understandably argue that IAC 19/10 effectively shuts the doorto the prospect of the 'exception route' though it was a policy instruction made beforethe COVID era and its impacts were known. Ms Hyndman's riposte is that themotivation for the approach recorded in IAC 19/10 is to encourage the use ofalternative pathways where they exist rather than granting exceptions to partnershipinstructions and is necessarily informed by what other pathways exist. Even afterborder closure and the impact of reg 9A, certain other pathways still exist. Thisincludes a new critical purpose visitor visa, or the CAM visa. There are also otherpathways that turn on the exercise of absolute discretion.14 Materially, she deposes thatINZ has not adopted a blanket approach of declining to issue border exceptions orpartnership visas as exceptions to instructions. On the contrary, each request for anexception to instructions is considered on its merits.New Zealand's border response to COVID-19 and impact on immigration rules[38] Jock Gilray, National Manager (Community) of Border and Visa Operations atINZ explains in his evidence the evolution of the relevant border controls in responseto the COVID-19 pandemic.[39] On 30 January 2020, the World Health Organisation declared COVID-19 apublic health emergency of international concern. Immigration was one of the earliestsectors in New Zealand impacted by the pandemic.[40] On 19 March 2020, shortly after the first case of COVID-19 was detected inNew Zealand, the Government closed the border to most travellers. The Ministerdescribed the approach in a later Cabinet paper as:"a critical component of the Government's COVID-19 eliminationstrategy[which] seeks to protect jobs for New Zealanders, balance the needsof humanitarian and family reunification entrants with economic entrants(with high thresholds for both groups) and to allow people with unique skillsand talents to enter to support time critical projects or to realise substantialeconomic benefits."[41] The result of the border closure was that only particular categories of peoplewould be granted entry permission. The border closure was achieved by an14 Section 61A.amendment to instruction Y4.50, certified by the Minister. There have been variousiterations of Y4.50. Between 30 July 2021 and 30 November 2021, Y4.50 provided:Y4.50 People who must be refused entry permission:(COVID-19)a. Entry permission must be refused to any person, except a personlisted in Y3.30 (a), who is not otherwise dealt with under Y4.1and who is:i. the holder of a temporary entry class visa (except asprovided for by Y3.30 (b))ii. a person described under Schedule 2 of the Immigration(Visa, Entry Permission, and Related Matters)Regulations 2010 (visa-waiver travellers)iii. the holder of a residence class visa whose visa wasgranted offshore and who is arriving in New Zealand forthe first time (except as provided for by Y3.30 (a)).b. A person subject to (a) above may still be granted entrypermission by an immigration officer as an exception toinstructions (see Y4.45), for reasons including but not limitedto:i. Humanitarian reasonsii. Critical health workers as confirmed by the Ministry ofHealthiii. Other essential workers as defined by the New ZealandGovernmentiv. Citizens of Samoa and Tonga for essential travel to NewZealandv. A person who holds a visitor, work or student visa and:• is ordinarily resident in New Zealand; and• is the partner or dependent child of a work or studentvisa holder who is in New Zealand.vi. Marine crew arriving by the Maritime border.[42] One of the operational impacts of border closure was that the ability of offshorepersons to apply for temporary entry class visa holders continued despite the effectiveborder closure. INZ was receiving approximately 2,000 such applications each monthfollowing the 19 March 2020 border closure. This led to four issues:(a) INZ continued to receive application fees for those visa applicationsand applicants continued to pay third party immigration advisors toprepare and submit applications.(b) INZ's view was that s 43(1)(b) of the Act meant that INZ could notgrant a temporary entry class visa to a person offshore where there wasreason to believe the holder would be refused entry permission. Areason to believe that entry permission would not be granted coveredvirtually all temporary entry class visa holders.(c) As Y4.50 did not limit the ability to apply for temporary entry classvisas, such applications continued to come in yet were almost certainlygoing to be declined. This inconsistency of message was problematic.(d) INZ was receiving applications it had to process, yet could not grant,which required significant operational resource at the same time as INZwas trying to address other impacts of COVID-19 on the immigrationsystem.Regulation 9A – a solution?[43] To implement legislative change necessary to address these various COVIDrelated pressures in the immigration framework, the Immigration (COVID-19Response) Amendment Act 2020 (the Amendment Act) was enacted. The AmendmentAct inserted s 401A into the Act. This empowering provision supplements the generalregulation-making power in s 400 of the Act. Section 401A makes clear that theMinister has the power under s 400 of the Act to make regulations prohibiting personsoffshore from applying for temporary visas where reasonably necessary to manage theeffects or deal with the consequences of the three things stipulated. It reads:401A Regulations relating to suspending ability to makeapplications for visas and expressions of interest(1) Without limiting the generality of section 400, regulations made underthat section may suspend the ability of all persons, or of any class ofpersons, who are outside New Zealand to—(a) apply for a particular class or type of visa; or(b) submit an expression of interest in obtaining an invitation toapply for a particular class or type of visa.(2) Subsections (3) to (7) apply to regulations made for the purposes ofsubsection (1).(3) The regulations may—(a) provide for different periods of suspension for differentclasses of people and different classes and types of visa; and(b) without limiting the generality of the manner in which personsmay be classified, classify persons by reference to all or anyof the following:(i) the country or place from which they are travelling orhave travelled (whether it be their original or anintermediate point of departure):(ii) whether or not they hold, or are required to hold, anyparticular type of travel or immigrationdocumentation, by whomever issued:(iii) any other type of visa that they hold or have appliedfor:(iv) any other factor that is relevant to containing ormitigating the outbreak of COVID-19 or its effects;and(c) without limiting the generality of the manner in which classesor types of visa may be classified, classify classes or types ofvisa by reference to all or any of the following:(i) in the case of a temporary visa, the name anddescription of the visa as provided in the immigrationinstructions:(ii) whether an application for the visa is required by orunder the regulations to be made online:(iii) any specific information or evidence that is requiredby the regulations or the immigration instructions tobe provided in order for an application for the visa tobe made.(4) The Minister must not recommend the making of the regulationsunless satisfied that doing so is reasonably necessary to manage theeffects, or deal with the consequences, of—(a) the outbreak of COVID-19; or(b) measures taken under this Act or any other enactment tocontain or mitigate the outbreak of COVID-19 or its effects;or(c) any other measures (whether in New Zealand or elsewhere)to contain or mitigate the outbreak of COVID-19 or its effects.(5) A suspension may be for a period not exceeding 3 months specified inthe regulations.(6) If the requirements of subsection (4) continue to be met, regulationsmay from time to time be made under section 400 that extend theperiod of a suspension already in force for a further period notexceeding 3 months.(7) An extension referred to in subsection (6) may only be made beforethe end of the period to be extended.(8) This section is repealed immediately after the expiry of the 12-monthperiod that starts on the date on which the Immigration (COVID-19Response) Amendment Act 2020 comes into force.[44] Following enactment of s 401A, Ministry officials worked towardsdevelopment of what was to become reg 9A. Cabinet considered a draft regulation inearly July 2020. The Minister took reg 9A in its final form to Cabinet on 27 July 2020.[45] The Immigration (Visa, Entry Permission, and Related Matters) Amendment(Covid-19 – Applications and Fees) Regulations 2020 (2020 Regulations) came intoeffect on 10 August 2020. It inserted reg 9A into the Immigration (Visa, EntryPermission, and Related Matters) Regulations 2010. Regulation 9A as it stood at thehearing of these applications provided:9A Suspension of ability to apply for certain visas(1) The ability to apply for a temporary entry class visa is suspended forall persons who are outside New Zealand, except for any personwho—(a) is applying for the visa on the basis that the person is a spouse,partner, or dependent child of—(i) a New Zealand citizen; or(ii) a person who holds a residence class visa and who, asthe holder of that visa, must or may be granted entrypermission under immigration instructions; or(aa) is in, and intends to travel from, the Cook Islands or Niue; or(b) is a member of, or associated with, a scientific programme orexpedition under the auspices of a Contracting Party to theAntarctic Treaty (within the meaning of the Antarctica Act1960) or is a person to whom section 5 of the Antarctica Act1960 applies; or(c) is applying for a person who is, for the time being, accordedprivileges and immunities under—(i) the Vienna Convention on Diplomatic Relations inaccordance with the Diplomatic Privileges andImmunities Act 1968; or(ii) the Vienna Convention on Consular Relations inaccordance with the Consular Privileges andImmunities Act 1971; or(d) is applying for a person who is a member of the officiallyrecognised accompanying family of a person described inparagraph (c); or(e) is applying for a Recognised Seasonal Employer limited visaunder immigration instructions; or(f) may, by virtue of COVID-19 immigration instructions, applyfor the visa if invited to do so and holds a current invitation toapply for the visa.(1A) [Revoked](2) In this regulation, dependent child, in relation to a person, means achild who is totally or substantially reliant on the person or theperson's spouse or partner for financial support, regardless of whetherthe child lives with the person or the person's spouse or partner (orboth).(3) The period of the suspension under this regulation starts on 10 August2020 and ends at the close of 6 February 2022.(4) This regulation is revoked at the close of 6 February 2022.15[46] Mr Gilray explains that reg 9A was designed to address the problems arisingfrom the closure of the border by Y4.50 by stopping the continued receipt ofapplications for temporary entry class visas. It carries over the same exceptionspresent in Y4.50. He states:Permitting applications to be made for visas in circumstances where the borderclosure means the holder could not expect to get entry into New Zealandpresents risk to New Zealand's international reputation. INZ could be seen asencouraging persons to apply (and to pay INZ the relevant application fees) incircumstances where it knows there was no clear path to enter New Zealand.Further, the effectiveness of reg 9A (and the border closure) depends on clearlines being drawn. This can be seen in reg 9A through the fact it refers onlyto classes of visa (temporary class visas, or visas based on relationships (i.epartnership and dependent children). The other exceptions are also 'black andwhite' categories such as diplomatic status or membership of Antarctic15 The expiry date in sub-paragraphs (3) and (4) has changed following periodic renewal. On 5February 2022, the expiry date of the regulation was automatically extended to 5 August 2022.research programmes where persons' inclusion or exclusion can be clearlyframed. Framing the regulation in terms of application type is the onlyfeasible option for clear administration. The alternative would be to framesuspensions or exceptions by reference to factual circumstances. That wouldmean that each application would need to be examined by an immigrationofficer in order to determine whether it could be accepted which would not beadministratively workable.Certification of E13[47] Regulation 9A did not respond to the "on-hand" applications received but notprocessed before it came into effect. INZ's view is that it is not legally able to grantvisas after the border closure because there was a reason to believe the holder of a visawould be refused entry permission under instruction Y4.50. It relies on s 43(1)(b)which provides:43 Effect of visa(1) A visa (other than a transit visa) granted outside New Zealandindicates that—(b) at the time the visa is granted, there is no reason to believethat the holder will be refused entry permission if the holder'stravel is consistent with the conditions of the visa relating totravel; and[48] In February 2021, INZ estimated it had on hand approximately 39,000 entryvisa applications that it could not grant. Consequently, INZ had to make a choicebetween retaining the applications it could not grant or finding a way to allow them tobe lapsed. When an application is lapsed, INZ no longer has to do any furtherprocessing or make any decision with regard to the application. It is more efficientthan processing each application individually.[49] Mr Gilray deposes that lapsing has no prejudicial effect on any applicationsthose applicants may make in the future. This is not an understanding shared by theplaintiffs. The plaintiffs are concerned that, once lapsed, a fresh application re-joinsthe queue of applications at the end, thus losing its place. Mr Gilray responds to thisconcern in this way:[95] it is not a pure first in, first out approach, although date is one aspectas are risk and value characteristics. A general approach is to filter out the lowtouch, low complexity work as a priority, noting this makes up the bulk of thevolumes and INZ has the ability to batch/bulk process this type of visitor visageneral application. So lower complexity work is generally processed faster.[96] For a general visitor visa where there is a relationship aspectidentified, this would generally require a higher degree of scrutiny/effort. Inaddition, I note that applications that are not lapsed are likely to be treated ascomplex, owing to the need to seek updated information. Applicants arerequired to demonstrate that they meet the rules and criteria of a visa at thetime of the decision. If and when the border restrictions are lifted, anyapplicant would need to demonstrate that their circumstances had not changedsuch that they continue to meet the rules and criteria of the visa for which theyapplied.[97] How resources are allocated across the relevant office/network at thetime, including through any general instruction of the Chief Executive unders 26 of the Act on the order and manner of processing, will ultimately decidehow long the visa may take to process (and what that means from a queueperspective). The result is that while date of application is one metric andinforms processing order, complexity also plays a significant part such thatthere is no identifiable "queue" for an applicant to lose a place in.[50] Mr Gilray explains that lapsing was the preferred means in order to address theconcern that the original purpose of the intended visit would no longer be valid and inalmost all cases INZ would require updated evidence to process the application. Therewould then need to be individualised approaches to all of the applicants to resubmitupdated evidence. Further, INZ continues to hold the application fees for thoseapplications and was receiving enquiries and requests for refunds from applicantsseeking to withdraw their applications due to the border closure. This was exacerbatedby continued uncertainty about when the border might open. Once the border opened,the tens of thousands of applications would require a significant devotion of resourceto process which would exceed INZ's capacity. He identified the priority was to finda way to action refunds at the requisite scale in a manner that is fair and consistent andthat a lapsing programme accompanied by a special direction (to deal with refundrequests) enabled this to occur.[51] Officials provided a briefing paper to the Minister on 22 February 2021,seeking his approval in principle to lapse, or return, and refund those applicationsfalling within the relevant categories. The Minister agreed in principle the followingday that on hand temporary visa applications from offshore applicants that cannot beconsidered under an exception category and cannot therefore be granted, may belapsed and the associated fees refunded.[52] The operational policy team within MBIE prepared a briefing paper dated 23June 2021. On 24 June 2021, the Minister agreed to certify instruction E13 and tosign a special direction to implement the decision of 23 February 2021 to lapse, orreturn, certain applications and refund associated fees and levies.[53] Various teams within INZ began actively lapsing applications and processingrefunds for the applications from 6 July 2021. As at 10 November 2021, INZ estimatedthat approximately 40,460 applications will be lapsed under instruction E13. Of thisnumber, 24,144 are visitor visa applications. INZ contends that it cannot identifywhich of these visitor visa applications fall within the cohort identified by the plaintiffswithout a "page-turn" of every application.Extension of reg 9A[54] In September 2020, the Minister submitted a paper to Cabinet proposing toextend the suspension by a further three months to 8 February 2021. The supportingbriefing paper explained that until the suspension came into effect, INZ was continuingto receive increasingly large numbers of ageing applications which it was unable toapprove or decline. Continuing suspension would enable INZ to focus on the efficientprocessing of visas for those who had been granted exemptions or exceptions allowingthem to travel to New Zealand.[55] On 5 October 2020, Cabinet agreed to extend the suspension to 8 February2021. Cabinet also noted that the Minister considered that suspension should becontinued further and that this was and continued to be reasonably necessary tomanage the effects, or deal with the consequences of, the outbreak of COVID-19.[56] On 20 November 2020, the Minister agreed to propose to Cabinet that thesuspension on the ability to apply for most offshore temporary entry class visas beextended for a further three months, to 7 May 2021. Again, briefing papers wereprepared by Ministry officials. These largely replicated earlier briefing papers.[57] In December 2020, the Minister submitted a paper to Cabinet seeking a furtherextension of three months to reg 9A.[58] On 20 December 2020, the Cabinet Business Committee agreed to continuethe suspension for a further three months to 7 May 2021. Before the expiry, the Officeof the Minister submitted a paper asking Cabinet to agree to extend the suspension bya further three months to 6 August 2021. The briefing paper supporting that decisionfurther explained that the legislative ability to make further extension was to berepealed on 16 May 2021 but that Cabinet had agreed to amend the Amendment Actto extend the repeal of this and other immigration COVID-19 powers.[59] On 8 April 2021, the Cabinet Legislation Committee agreed to extend thesuspension by a further three months to 6 August 2021.[60] The Immigration (COVID-19 Response) Amendment Bill was introduced inApril 2021. The resulting Immigration (COVID-19 Response) Amendment Act 2021came into effect on 10 May 2021. It extended the repeal date of the government'stemporary powers relating to visas, inserted by the Amendment Act. The extensionwas by two years to 15 May 2023. It also extended the maximum duration of anyregulation such as reg 9A from three to six months.[61] On 6 May 2021, the Minister agreed to direct officials to issue draftinginstructions to the Parliamentary Counsel Office to make amendments to theregulations to extend the suspension. This was the suspension due to expire on6 August 2021. In June of the same year the Minister agreed to submit a paper toCabinet seeking its approval to certain changes to the regulations, including extendingfor a further six months to February 2022 the suspension on the ability of personsoffshore to apply for most temporary entry class visas.[62] On 10 June 2021, the Cabinet Legislation Committee agreed to extend thesuspension of applications to 5 February 2022. This was further extended on21 November 2021 to expire in August 2022.[63] In respect of each renewal of reg 9A, the associated briefing papers repeatedthe same concerns and objectives. The Minister acknowledges that each extension ofregulation 9A had the objective of addressing the same circumstances and themotivation has remained consistent since reg 9A was promulgated.Procedural History[64] The three sets of proceedings were commenced on 21 July 2021 andconsolidated. Mr Higgs sought interim relief. The application was heard by Jagose Jwho declined relief on 31 August 2021 on the basis that interim orders were notnecessary to protect his position.[65] On 22 November 2021 the judgment of Cooke J in Afghan Nationals v Ministerof Immigration was released.16 On 25 November 2021, the plaintiffs sought leave tofile amended statements of claim adding a new ground of challenge. The new groundchallenges the vires of immigration instruction Y3.5.1(a)(ii) relying on the AfghanNationals case. Some other minor amendments were also made.[66] The respondents consented to the introduction of the new cause of actionprovided leave was reserved to file short supplementary evidence after the hearing, ifrequired. The Court records its gratitude to counsel for the responsible position taken.[67] I granted leave on that basis.[68] An amended statement of claim was filed by Mr Witbrock on 2 December2021. This was to capture a further renewal of reg 9A on 22 November 2021 by whichthe suspension for non-exempt temporary visas was extended to 5 August 2022. As itmerely brought the Court up to date, no leave was required.[69] After the hearing, the parties filed a joint memorandum dated 17 December2021 to update the Court. The memorandum advised that the Minister certified furtherimmigration instructions on 9 December 2021. The new instruction E7.1(c)-(e)clarifies the policy intent of the Act with respect to decision making for the grant of avisa or entry permission for temporary visa applications. The material addition to E7.1is:c. An immigration officer determining a temporary application from aperson who is offshore must have no reason to believe that personwould be refused entry permission, if the visa is granted.d. In making the determination set out at (c) above, the immigrationofficer should take into account:16 Afghan Nationals v Minister of Immigration [2021] NZHC 3154.i. for applications subject to temporary entry instructions, themost recent version of the relevant Border Entry instructions.ii. for applications subject to restricted temporary entryinstructions, the relevant Border Entry instructions in effect atthe time the application was made.e. An immigration officer making the determination set out at (c) aboveis not required to consider whether the applicant is likely to be grantedentry permission as an exception to instructions.[70] The plaintiffs consider the new immigration instructions are directly relevantto the ultra vires ground of review and the respondents' opposition, though they do notreplace any instruction traversed at the hearing. Neither party sought to make furthersubmissions on the new instructions.[71] Mr Mortimer-Wang filed a memorandum dated 22 December 2021confirmingthat the respondents did not seek to file further evidence. They were content to rely onthe evidence and submissions already filed. They also filed amended statements ofdefence on the same date.The Grounds of Challenge[72] There are three pleaded grounds of challenge:(a) Immigration instruction Y 3.5.1(a)(ii) is ultra vires and erroneouslyrelied on to justify suspension of applications;(b) Failure to consider obligations under international human rightsconventions to which New Zealand is a party led to an error of law;(c) Failure to consider the discriminatory impact as required by s 19 Billof Rights Act 1990 led to an error of law.[73] I pause to note that there is a disjunct between the plaintiffs' submissions andthe challenge to the effect of reg 9A. Both the pleadings and written submissionschallenge the Minister's suspension decisions as if they suspended the processing ofnon-exempt temporary visas as well as the ability to apply for offshore temporary classvisas. This is not the case.[74] Processing of visas is affected because INZ considered it could not grant visasreceived but not processed before reg 9A, due to the combined effect of Y4.50 ands 43(1)(b) of the Act. Rather, it paused those applications because it also appreciatedthat it could not decline them either. Importantly, reg 9A does not concern theprocessing of offshore visa applications received before 10 August 2020.17[75] Equally importantly, the plaintiffs do not challenge Y4.50. Nor do theirpleadings challenge INZ's interpretation of s 43(1)(b). One must avoid conflating thetwo types of suspension – suspension of application and suspension of processing.18The scope of the challenge to reg 9A is directed to the inability of offshore persons toapply for a temporary visa and not the impact of border closure on the processing ofapplications received before 10 August 2020. However, I also accept that INZ's viewof s 43 is part of the narrative relating particularly to the certification of E13.Preliminary[76] It is common ground that these judicial review challenges are not caught bythe ouster provisions in ss 24(3)(b) or 186(3) of the Act. The reviews are not focusedon decisions relating to particular individuals or individual applications. Bothplaintiffs state that they are taking these challenges with the awareness that they areunable to challenge any individual lapsing decision or decision not to issue anindividual visa.[77] Similarly, it is common ground that s 392(2) of the Act is not engaged. Section392(2) provides that nothing in the content or application of any immigrationinstructions made in accordance with s 22 may be the subject of a complaint under theHuman Rights Act 1993 (the Human Rights Act). As the challenge relies on the Billof Rights Act, it is not a complaint under the Human Rights Act.[78] This explains why these proceedings are framed in a particular way. This inturn informs the issues the Court must determine. The challenges are centred ondecisions by the Minister to certify the relevant instructions and the Minister's17 I understand that plaintiffs' counsel confirmed in writing prior to the hearing that the challengewas limited to the suspension of the ability to apply. Refer memorandum on behalf of respondentsdated 22 December 2021.18 Mr Mortimer-Wang uses the shorthand phrase "the s 43(1)(b) suspension" to refer to suspensionof processing.recommendations to extend reg 9A which suspends the ability of most people to applyfor temporary visas.19Is Y3.5.1(a)(ii) ultra vires?[79] It is logical to deal first with the contention that Y3.5.1(a)(ii) is ultra vires dueto inconsistency with the Act.[80] Immigration instruction Y3.5.1 appears in the Manual under the heading"Applying for entry permission". Under a sub-heading "Considering an applicationfor entry permission", it relevantly provided that immigration officers must consideran application for entry permission in accordance with:(i) the requirements of the Immigration Act 2009 andimmigration regulations; and(ii) the Border Entry instructions in force at the time theapplication is made or any general instructions given by thechief executive; and(iii) any relevant special direction.[81] This instruction was revised on 1 December 2021. Sub-paragraph (ii) wasreplaced with a new (ii) which reads "the relevant Border Entry instructions". Anew sub-paragraph (b) was added which clarifies the relevant Border Entryinstructions for different types of visas. It states that if the applicant holds a temporaryentry class visa, the relevant Border Entry instructions are those in force at the timethe application for entry permission is made.[82] It was not suggested that anything in this revision (as opposed to the revisionsto Y4.50) materially informs or changes the position.What role does Y 3.5.1(a)(ii) have in these challenges?[83] The plaintiffs contend that the justification advanced by the Minister for reg 9Aarises from the inter-relationship between Y3.5.1, Y4.50 and s 43(1) of the Act so thatif Y3.5.1 is ultra vires, the justification falls away. But they also argue the corollary -if it is not ultra vires for the reason that the discretion is not removed, then there is19 Refer also Afghan Nationals at above n 16, which held that ouster clauses cannot "exclude achallenge that involves an allegation that the statute is not being properly applied" at [49].still no justification for reg 9A. In short, because it cannot be said that reg 9A wasreasonably necessary as the empowering provision requires. This explains why theplaintiffs introduced their late challenge to Y 3.5.1.[84] When pressed at the hearing to articulate where this argument fits in orthodoxjudicial review terms and the pleaded case, Mr Dalley posited that it amounts to acombined error of fact and law which responds to the way in which the respondentshave advanced their opposition. I have some difficulty with this submission. In myassessment, the argument is in reality an ultra vires challenge to reg 9A. That was notpleaded. Mr Mortimer-Wang made the point at the hearing that the evidence beforethe Court was premised on the pleaded case and the argument should not be permittedto stray any more widely.The contentions[85] The plaintiffs argue that Y3.5.1(a)(ii) is inconsistent with the Act. They saythat effectively denies entry permission to all non-exempt temporary visa holders,fettering the discretion of immigration officers conferred by ss 22, 45, 46 and 109(7)of the primary legislation. Immigration instructions are subordinate, being merelystatements of government policy. Thus, immigration instructions which areinconsistent with the statutorily derived discretion are ultra vires.[86] They rely on Afghan Nationals in which Cooke J found that Y3.5.1(a)(ii) isultra vires to the extent that it requires the applicable border entry instructions forresidence class visa holders to be those in effect at the time the entry permission issought, rather than those in force when the applicant applied for a residence visa.[87] The respondents argue that Y3.5.1(a)(ii) does not limit the discretion affordedto immigration officers under the Act. Rather, its purpose and effect is merely toinform immigration officers which version of entry permission instructions they are toapply and the decision in Afghan Nationals case has no application to temporary entryvisas.Discussion[88] The Act expressly provides that immigration officers have discretion in relationto decision making in a number of respects. Section 109 relevantly provides:109 Decisions on entry permission in relation to temporary entryclass visa holders(1) The Minister or, subject to any special direction, an immigrationofficer may, in his or her discretion,—(a) grant the holder of a temporary entry class visa entrypermission on the basis of his or her visa; or(b) in accordance with section 82, cancel the visa of the holder ofa temporary entry class visa, grant a limited visa in its place,and grant the person entry permission on the basis of thelimited visa; or(c) refuse the holder of a temporary entry class visa entrypermission.(2) The Minister or an immigration officer may, in his or her discretion,grant the holder of a temporary entry class visa entry permission onthe basis of his or her visa but impose further conditions, or vary orcancel any conditions that would otherwise apply to the visa.(4) A decision under subsection (1) that relates to a temporary entry classvisa of a type subject to restricted temporary entry instructions mustbe made in terms of the temporary entry instructions applicable at thetime the person applied for the visa.(7) Nothing in this section prevents—(a) the Minister or an immigration officer, in his or her discretion,from granting entry permission to the holder of a temporaryentry class visa (other than a holder of a temporary entry classvisa of a type subject to restricted temporary entryinstructions) as an exception to temporary entry instructions:(b) the Minister, in his or her absolute discretion, from grantingentry permission to the holder of a temporary entry class visaof a type subject to restricted temporary entry instructions, asan exception to the restricted temporary entry instructions.[89] I do not agree that ss 22, 45 and 46 support the plaintiffs' argument. Section22 is a general section which empowers the certification of immigration instructions.[90] Section 45 only relates to the grant of visas and does not bear on the questionof entry permission. It provides that the grant of visa is generally a matter of discretionunless any provision in the Act expressly provides otherwise. Section 46 affirms thatthe grant of a visa does not guarantee entry permission other than for a permanentresident visa or a resident visa granted in New Zealand.[91] In my assessment, all that Y3.5.1(a)(ii) does is point to which border entryinstructions must be considered when considering any application for entrypermission. This reflects the potential that, in any individual case, immigrationinstructions may have changed between the application for visa and application forentry permission. It does not fetter the exercise of discretion on the part of animmigration officer. This is underscored by the requirement in Y3.5.1(a)(i) to considerentry permission in accordance with the requirements of the Act. This calls up, albeitmore obliquely than might be desirable, an immigration officer's ability to grant entrypermission as an exception to instructions.20[92] Cooke J in Afghan Nationals held that Y3.5.1(a)(ii) was ultra vires to the extentthat it requires the border entry instructions for residence class visa holders to be thosein effect at the time the entry permission is sought.21 This was expressly contrary tos 108(6) of the Act. That section provides that decisions about entry permission forresidence class visa holders must be made, and any discretion exercised, in terms ofthe residence instructions applicable at the time the person applied for the visa ratherthan the entry permission. But, there is no equivalent of s 108(6) for temporary entryclass visas. 22[93] Accordingly, I reject the argument that Y3.5.1(a)(ii) is ultra vires. As to theconsequences of that finding, I accept the point that the ultimate submission strayedoutside the scope of the pleadings too widely. However, in any event, I consider thatan immigration officer's discretion to grant entry permission as an exception toinstructions does not lead to a conclusion that reg 9A was not "reasonably necessary".20 Since 1 December 2021, Y 4.50(b) reinforced that position by expressly referring to the possibilitythat a person may still be granted entry permission by an immigration officer, or by the Ministerof Immigration, as an exception to instructions under s 108(9) or s 109(7) of the Immigration Act.21 At [141].22 Section 109(4) requires that applications for entry permission under restricted temporary entryinstructions must be assessed in terms of instructions applicable at the time the person applied.The restricted temporary entry instructions do not relate to general visitor visas.Nor do I accept that the discretion means there is no reason to believe that the applicantfor a visa will be refused entry permission at the border. To the contrary, thesubmission overlooks the practical imperative of an orderly control of the borderduring the pandemic.Alleged failure to properly consider international and domestic human rightsobligations in making the lapsing and suspension decisions?Contentions[94] The empowering provision for reg 9A requires that the Minister be satisfiedthat the regulation is reasonably necessary for one of the stipulated reasons.23Alongside that mandatory requirement or condition, the plaintiffs contend that theMinister was required to consider New Zealand's international and domestic humanrights obligations when making the suspension decisions. They refer to the statementin the Minister's affidavit that:I am aware of New Zealand's international obligations as they relate to themaking of immigration decisions, and that there are international obligationsrelating to family life and ensuring the best interests of children.[95] The plaintiffs argue that this statement goes no further than the statement inZhang v Minister of Immigration.24 In that case, Gwyn J determined that mereawareness is an insufficient basis on which it could be confidently inferred that theMinister did in fact consider, in a genuine and discrete way, the significance of theInternational Covenant on Civil and Political Rights (ICCPR)25 or United NationsConvention on the Rights of the Child (UNCROC)26 in decision making.[96] Mr Dalley's oral submissions on this aspect shifted ground somewhat. Hereframed the challenge as one falling within the twin orthodoxy in judicial review –the taking into account of irrelevant matters and its companion, failure to take relevantmatters into account. He submitted that it should be inferred from the evidence thatthe Minister did not accept that international obligations required him to exclude from23 Section 401A(4).24 Zhang v Minister of Immigration [2020] NZHC 568.25 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16December 1966, entered into force 23 March 1976).26 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989,entered into force 2 September 1990).suspension all visas relating to partners and dependent children rather than only thosewho satisfied the living together requirement. Further, that there was no considerationof international obligations owed to families of migrants.27 On the contrary, the Courtcan infer that the Minister considered he owed no obligations to this cohort. He pointsto the respondents' submission that international obligations do not impose anysubstantive obligation on a state to permit all couples to live in the country of theirchoice.[97] The plaintiffs rely in particular on article 10(1) of the International Covenanton Economic Social and Cultural Rights (ICESCR)28, article 17 of the ICCPR andarticle 3(1) of UNCROC. Article 10 (1) provides:The widest possible protection and assistance should be accorded tothe family, which is the natural and fundamental group unit of society,particularly for its establishment and while it is responsible for thecare and education of dependent children. Marriage must be enteredinto with the free consent of the intending spouses.[98] Article 17 of the ICCPR provides:1. No one shall be subjected to arbitrary or unlawful interference withhis privacy, family, home or correspondence, nor to unlawful attackson his honour and reputation.2. Everyone has the right to the protection of the law against suchinterference or attacks.[99] Article 3(1) of the UNCROC provides:In all actions concerning children, whether undertaken by public orprivate social welfare institutions, courts of law, administrativeauthorities or legislative bodies, the best interests of the child shall bea primary consideration.[100] They also refer to other articles which are not specifically pleaded as relevantconsiderations but provide wider context.[101] The continued separation of partners and families of both New Zealand citizensand residents and those on temporary visas whose partners and children have made27 This point relates to the fact that partners of temporary visa holders in New Zealand were caughtby reg 9A.28 International Covenant on Economic, Social and Cultural Rights (open for signature 16 December1966, entered into force 3 January 1976).visa applications to join them in New Zealand is said to engage these articles. Theplaintiffs contend that had the Minister properly considered those matters, he may havecome to a different decision.[102] The Minister accepts that when Parliament confers a law-making power suchas by the empowering provision in this case, it will ordinarily expect the decisionmaker to take into account obligations arising from international conventions at ageneral level and to the extent that they are relevant. Mr Mortimer-Wang submits thisdoes not extend to any obligation to exercise that power consistently with internationalobligations because they are not enforceable at domestic law unless specificallyincorporated into a statute.[103] Mr Mortimer-Wang emphasised in his contextual framing that reg 9A is ageneral level rule rather than one directed at an individual factual situation. Hesubmitted that specific international obligations are more easily and effectivelyconsidered in the context of individual cases than at the abstract higher level. It is inthat case-specific consideration of rights that those rights "bite". Nonetheless, heaccepted, as he must, that the position of family members, informed by internationalobligations, is a relevant consideration given the sufficiently foreseeable separation offamily members.[104] In the same vein, he sought to distinguish Zhang as representative of one of thetwo different contexts (individual versus general level decision making). Hesubmitted that a decision maker is not required to contemplate every individual factualcircumstance affected by a general rule where there are appropriate safety valves inthe system to consider the individual case downstream.Discussion[105] It is necessary first to drill further into the impugned decisions, dealing firstwith reg 9A.[106] There are three in built protections in s 401A. First, regulations may only bemade for a limited period although may be 'refreshed' (initially for a three-monthperiod and, since 11 May 2022, for a six-month period)29. Secondly, s 401A itself istime-limited. Following the most recent amendment, s 401A is automatically repealedat the close of 15 May 2023. Thirdly, the Minister must not recommend the makingof regulations unless satisfied that doing so is reasonably necessary to manage theeffects, or deal with the consequences of:30(a) the outbreak of COVID-19;(b) measures taken under the Act or any other enactment to contain ormitigate the outbreak of COVID-19 or its effects; or(c) any other measures (whether in New Zealand or elsewhere) to containor mitigate the outbreak of COVID-19 or its effects.[107] While the plaintiffs criticise the Minister for rolling over reg 9A withoutrecognising changes of context arising from vaccine development, increased MIQcapacity and the passage of time, they have not pleaded that the suspension decisionsare ultra vires the empowering provision.31[108] Regulation 9A suspends the ability for all persons outside New Zealand toapply for a temporary entry class visa unless that person falls within one of theexcepted categories. The material exception for present purposes is those personsapplying for a visa on the basis that the person is a spouse, partner, or dependent childof a New Zealand citizen or a person who holds a residence class visa who must ormay be granted entry permission under immigration instructions.[109] The meaning of "on the basis" is not apparent from the face of the regulation.Commonly it means the reason for doing something. Although not argued before thisCourt, one available interpretation of the exception as drafted is that applications forany type of visa, applied for by reason that the applicant is a spouse, partner, ordependent child, falls within the exception. INZ construes it more narrowly to meanan application for a visa under 'Partnership Instructions', consistent with the29 Refer s 15(1) Immigration (COVID-19 Response) Amendment Act 2021 (2021 No 14).30 Section 401A(4).31 This is the argument which relies on the ultra vires of Y3.5.1.immigration scheme in place. As explained above, this is a particular application withits own characteristics which requires meeting the partnership requirements.32[110] The associated briefing papers relating to suspension of offshore temporaryvisa applications recorded that the proposed reg 9A complied with, among otherthings, the Human Rights Act, Bill of Rights Act and relevant international standardsand obligations. They did not identify any particular standards and obligations morespecifically. Nor did those papers distinguish between impacts on different interestedcohorts. However, I accept Mr Mortimer-Wang's submission that considering theinterests of families and children in setting a general level rule does not require agranular assessment of all potential permutations in which those interests maymanifest.33[111] In H v Minister of Immigration34 the Court of Appeal did not require directevidence that a specific obligation of the Convention relating to the Status of Refugeeshad been considered by the Minister. Instead, it inferred from the evidence that theMinister considered the interests of refugees when certifying an immigrationinstruction. I accept that it is not realistic to expect that every such obligation will becited. What matters is whether the substance of the obligation is considered rather thana tick-box exercise.[112] It cannot be seriously contended that the decisions at issue had the potential tocut across the best interests of families, and particularly children. The Ministerdeposed that he did take into account the interests of families and children whendeciding to enact reg 9A. He states:[23] I am aware of New Zealand's international obligations as they relateto the making of immigration decisions, and that there are internationalobligations relating to family life and ensuring the best interests of children.[24] A significant pressure in every COVID-related border measure thegovernment has taken has been the effect that the border closure (or otherborder related measures) has on family connections, including spouses,partners and children. There have been difficult calls to make in a range of32 Immigration instruction V3.15, E4.5 or immigration Instruction WF.33 The Minister also deposed that as Bill of Rights compliance is a question of law, other thanconfirming that he acted consistently with any obligations under the Bill of Rights Act, he did notgive evidence on that aspect.34 H v Minister of Immigration [2020] NZCA 562 at para 54 – para 64.areas about who will be permitted to come to New Zealand, and a range offactors including public health advice and resourcing has informed those.[25] When people's lives are affected by these decisions in such concreteways, I have felt keenly the responsibility of setting border measures (togetherwith my Cabinet colleagues). They are always taken with the knowledge thatthere are real world consequences for people affected, and that our decisionshave to be taken in a way that tries our best to meet as many competingobligations as we can (including ensuring to the extent we can ensure familiesand children can be together), while keeping New Zealanders safe, and theimmigration system functioning well while under extreme pressure from theeffects of COVID-19 and the measures we have taken. Those factors – andothers – sometimes pull in different directions. It is an unfortunate reality thatduring the COVID-19 pandemic, not every person who would ordinarily beable to come to New Zealand will be able to do so.[26] The decisions I made in respect of reg 9A and instruction E13 fall intothese categories. The need to try to reduce the impact on families to the extentpossible was something I was mindful of while making these decisions. Forexample:26.1 First, although the criteria in reg 9A and instruction E13 largely mapto the border closure criteria established in instruction Y4.50, all ofthem contain certain exceptions for visas based on partnership ordependent children of New Zealand citizens and permanent residents.This was reflective of my (and my Cabinet colleagues) considerationof family interests at the time.26.2 Second, the issue of how the partnership-based exceptions weredrawn across the suite of border settings was the subject of lobbyingto me in my role as Minister of Immigration. After they were initiallyput in place, I received a letter from the Immigration Industry SteeringGroup raising the issue of whether settings might be changed to permitgeneral visitor visas to be granted to persons unable to meetpartnership requirements.[113] The letter to which the Minister refers in his affidavit requested that INZ beauthorised to grant GVVs on the basis of a relationship with a New Zealander thatdoes not meet partnership requirements and for those visa holders to be exempt fromcurrent border restrictions. This is on the basis that the purpose behind granting borderexemptions on partnership and dependent child visas is to ensure family unity.Extending the exemption to this group fits the stated purpose.[114] The Minister does not state when he became aware of this letter. It is dated 8March 2021, before the June 2021 decision. I am prepared to infer that he wascognisant of the effect of the removal of the ability to apply for GVVs on persons inrelationships before the June 2021 decision although he only responded to the letteron 14 July 2021, after his decision to extend the period of reg 9A. There is nothing onthe record to suggest that the Minister was cognisant of this removal before March2021.[115] The Minister's response to that letter is instructive. He stated:The Government must balance the demand of those offshore who intend toenter New Zealand with our limited capacity to isolate and quarantine newarrivals.INZ is currently taking a pragmatic approach to the requirement to be livingtogether in a genuine and stable relationship – a partnership will be consideredto have met the definition if the partners have previously lived together.Prior to the border closure, INZ was able to grant Visitor Visa General visasin some cases where an applicant was unable to demonstrate one or more ofthe partnership requirements, including living together. However, INZ is notcurrently processing these visas as they are not considered 'a visa based onthe relationship with that partner' as required under the current borderexception criteria for partners of New Zealand citizens and residents.[116] I accept that each decision to extend the effect of reg 9A required the Ministerto readdress the issues rather than exercise pro-forma decision making. Each time theMinister made his decision his officials prepared briefing papers and a paper wasprepared for Cabinet. That material was largely the same for each decision period. Itcan be inferred that the Minister did not consider that the context had changed in thatperiod. On each occasion, the briefing papers referred to the need to continue tomanage the flow of incoming visas so that INZ could focus on efficient processing ofvisas; this would complement the border restrictions and communicate to peopleoffshore that they were unable to travel to New Zealand.[117] The respondents acknowledge that each extension of reg 9A had the objectiveof addressing the same circumstances and the motivation remained consistent sincereg 9A was promulgated. The plaintiffs argue that the relative 'reasonableness' of thesuspension decisions has diminished over time given the increasing availability ofwidespread pre-departure testing, vaccinations, shorter MIQ stays and the length ofseparation of families.[118] The fact that reg 9A itself specifically retains an ability for persons to apply fortemporary entry class visas based on relationships while temporarily suspending thatability for nearly everyone else confirms that the Minister had regard to familyconsiderations when making reg 9A. Addressing the position of families, partners andchildren underscores the importance of family, partner and children considerations.Thus, there is direct evidence that the interests of families and children were taken intoaccount in the decision-making process.[119] The facts of Zhang are not on all fours. It involved review of a decision unders 190(5) of the Act that there were no special circumstances justifying an exception toimmigration instructions. The case-specific context of Zhang supported a more intenseand different review.[120] The international convention rights relating to family life are cruciallyimportant considerations but they have not been incorporated as a matter ofsubstantive domestic law.35 This means that the plaintiffs are not able to directlyenforce the international conventions and no substantive limits on decisions arise fromthese international conventions. It is though well established that there is apresumption of statutory interpretation that "so far as its wording allows legislationshould be read in a way which is consistent with New Zealand's internationalobligations"36. I am inclined to consider the presumption of consistency where humanrights are implicated is particularly strong.37[121] I conclude however that the challenge based on failure to take into accountthese relevant considerations is in reality a criticism of the weight that the Ministergave to this consideration in his decision making. In other words, the attack is one ofsubstance based on a facially arbitrary distinction.38 How conflicting considerationsare weighed is for the decision maker and not the Court unless unreasonablenessconsiderations can be successfully invoked.39 This means that where the line was35 Contrast s 129 of the Act which provides that a person must be recognised as a refugee inaccordance with this Act if he or she is a refugee within the meaning of the Refugee Conventionand s 131 which directly incorporates the rights to be free from arbitrary deprivation of life, orcruel treatment in the ICCPR.36 New Zealand Air Line Pilots' Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at289; Zurich Australian Insurance Ltd t/a Zurich New Zealand v Cognition Education Ltd [2014]NZSC 188 [2015] 1 NZLR 383 at [40]. There is no inconsistency in the adoption of these twomodels – Hanna Wilberg Administrative Law [2010] NZ L Rev 178 at 190.37 Refer Claudia Geiringer "Tavita and all that: Confronting the confusion surroundingunincorporated treaties and administrative law" (2004) 21 NZULR 57 at 102-103.38 No challenge based on reasonableness was advanced.39 Huang v Minister of Immigration [2009] 2 NZLR 700 (CA) at [67]; AI (Somalia) v Immigrationand Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [49].drawn between cohorts affected by the suspension and those excluded from thesuspension is a type of merits review not available to this Court in these proceedings.[122] Accordingly, I reject the challenge to reg 9A on the ground of failure to takeinto account relevant considerations. It is unnecessary to address the submissionsrelating to justification for derogation from international obligations advanced by theplaintiffs.Lapsing decision[123] I turn to the challenge to the lapsing decision on the same grounds.[124] The Minister's certification of E13 was intended to deal with the thousands ofvisa applications which had been received before New Zealand's border closed andbetween the closure and the making of reg 9A.[125] INZ took the view that it could not grant a temporary entry class visa in relianceon s 43(1)(b) of the Act. I set this provision out again for convenience:43 Effect of visa(1) A visa (other than a transit visa) granted outside New Zealandindicates that—(a) the holder of the visa has permission to—(i) travel to New Zealand in accordance with theconditions of the visa (if any); and(ii) apply for entry permission; and(b) at the time the visa is granted, there is no reason to believethat the holder will be refused entry permission if the holder'stravel is consistent with the conditions of the visa relating totravel; and(c) if the holder is granted entry permission, the holder haspermission to stay in New Zealand in accordance with theconditions of the visa (if any).[126] Consequently, from INZ's point of view, those applications were effectivelystalled. Mr Gilray's evidence is that keeping these applications "on the books",awaiting the opening of the border was not feasible. First, there was uncertainty aboutwhen the border would open. Secondly, the supporting evidence for the applicationwould likely become stale. Thirdly, INZ was facing fee refund requests fromsignificant numbers of these applicants. These issues were exacerbated by the passageof time.[127] As there was no existing mechanism to scale up the refund process andindividual processing was unrealistic, INZ developed a system to permit lapsing forall temporary entry class visas and allow refunds. According to Mr Gilray, lapsingwould mean:[91]that INZ removes the application from its cohort of active files to beprocessed and determined. When an application is lapsed, INZ no longer hasto do any further processing or make any decision with regard to theapplication. Lapsing can be undertaken with considerably more efficiencythan processing each application individually.[92] Lapsing discontinues the application of the relevant person. INZ recordsthe application as lapsed within its Application Management System (AMS),and takes no further action in relation to the application. The applicants arerefunded the application visa fee and levies (where applicable).[93] Lapsing has no prejudicial effect on any applications those applicantsmay make in the future.[128] The Minister, presented with a proposal to lapse, or return and refund thoseapplications which INZ considered could not be granted agreed to certify E13 on 24June 2021. The power to do so derived from ss 24 and 22 of the Act. Section 24(1)provides that the Minister may certify Instructions that provide "rules or criteria forthe lapsing of applications in respect of which no decision to grant a visa has beenmade, or is likely to be made". Section 24(2) provides that rules and criteria set unders 24 may, among other things, differ for different classes or categories of applications.There is no mandatory requirement to be satisfied, unlike s 401A of the Act.[129] Instruction E13 does not of itself lapse any application. It instead provides thatcertain temporary visa applications may be lapsed. It carries through the exemptionfor types of temporary visa applications including "an application based on arelationship (partner or dependent child) to a New Zealand citizen or residence classvisa holder. Unlike reg 9A, the exemption in E13 includes an application based on arelationship with a temporary visa holder.[130] The grounds of challenge mirror the consideration grounds in respect ofreg 9A. For that reason, I approach the analysis in the same way whilst recognisingthat the Minister's decision to certify was supported by different briefing papers, noneof which expressly referred to New Zealand's international obligations.[131] The first briefing paper dated 22 February 2021 stated that temporary visaapplications not made under an exception category and not exempt from the borderclosure submitted after 10 August 2020 are "legally unable to be made, and so mustbe returned along with the application fees". It sought the agreement of the Ministerthat those applications be lapsed and application fees be refunded but that INZcontinue to process offshore temporary visa applications "based on a relationship to aNew Zealander or temporary visa holder". 40[132] The briefing paper referred to an alternative approach of holding theseapplications in abeyance pending greater certainty around the re-opening of the border.It recommended against this course as "for most of these applications, the originalpurpose of visit will no longer be valid and in almost all cases additional evidencewould need to be requested."[133] Mr Dalley submitted that the effect of E13 has the curious result in thatapplicants who made partnership-based visa applications but which an immigrationofficer has processed and determined that a grant of a GVV would be appropriate, willnot have their applications lapsed. However, those who made a GVV applicationbased on their partnership with or dependence on a New Zealand citizen, residenceclass visa holder, or temporary class visa holder will have their applications lapsed. Inshort, the distinction is made not on substantive grounds but by reference to the type,class or form of application made.[134] The respondents' argument that consideration was given to internationalobligations is slightly weaker than that for the suspension decisions. Yet, it is stillevident from the face of E13 that the Minister considered the question of families andchildren consistently with the international obligations cited by the plaintiffs. Afterall, it carries through the exception for visa applications based on relationships andeven extends the exception to partners of temporary visa holders.40 Although New Zealand residents were not mentioned in the recommendations, it is clear that itwas intended to reference them also in the exception category.[135] I consider that the real target of the plaintiffs' attack should not be E13 but theimmigration instructions relating to definition of a genuine partnership, combined withINZ's interpretation of applications "based on a relationship". This is not how thechallenge was framed and I say no more about it.Irrelevant considerations?[136] As previously stated, the ground of irrelevant considerations is anotherorthodox ground of challenge in judicial review. In this case, it has not beenspecifically pleaded this way although it was addressed in oral submissions. Itherefore deal with it briefly only.[137] Mr Dalley's submission, as clarified during the hearing, was that the Ministerchose a blunt tool in reg 9A and instruction E13 by prioritising what Mr Dalley termed"administrative ease" over the mandatory considerations sourced from New Zealand'sinternational obligations. By "administrative ease", he was referring to the evidenceas to why it was not workable to solve the administrative problem wrought by theborder closure in any more nuanced way.[138] That evidence was that it was not, and would not be, feasible to separate outthe cohort of persons the plaintiffs raise concern about from the approximately 40,000temporary entry class visa applications.41 While it is possible to identify from thatnumber the applications for visitor visas as the INZ system records the type of visaapplied for, that left just over 24,000 applications in November 2021 which werepotentially subject to lapsing. INZ's system does not record the level of informationto identify which of those applications were made because the applicant is in a genuinerelationship with a New Zealand citizen or resident. He says that would require a"page-turn" of each of the 24,000 applications. That, in turn, that would require theapplication of an extremely high level of resources which INZ does not have under thecurrent pressures. To do that would undermine the entire rationale for the lapsingsolution in the first place.[139] To the extent that Mr Dalley suggests by his submission that allocation ofresource is not a relevant consideration in immigration decision making, I disagree.41 There was no application to cross examine the respondents' deponents.As s 3 of the Act states, the purpose of the Act is to manage immigration is a way thatbalances the national interest, as determined by the Crown, and the rights ofindividuals. What Mr Dalley describes as administrative ease is part and parcel ofallocation of finite resources, a matter which sits squarely within the national interestat a policy level.[140] To the extent that Mr Dalley's submission is that the Minister prioritisedadministrative ease over international obligations in error, the submission faces thesame obstacle identified above in that it transcends into a substantive or merits review.[141] It follows that the considerations challenge to the suspension decisions and thelapsing decision fails. I find no reviewable error in the Minister's certification of E13.Failure to consider discriminatory impact – s 19 Bill of Rights ActThe contentions[142] This challenge is pleaded as follows:(a) The decision(s) of the Minister are discriminatory on the basis of ethnicorigins, religious belief, sex and sexual orientation;(b) Discrimination on those grounds is prohibited by s 19 of the Bill ofRights Act;(c) The Minister would have come to a different decision if he had properlyconsidered the Bill of Rights Act as required.[143] This is not explicitly framed in terms of an alleged breach of the Bill of RightsAct but is tantamount to such.[144] The alleged discrimination lies in the inability of many overseas partners tosatisfy INZ's requirement that they demonstrate that they are living together with theNew Zealand partner in a genuine and stable relationship.42 Inability to meet thatrequirement means that, as interpreted by INZ, the carve-outs in reg 9A and instruction42 Immigration New Zealand Operational Manual (26 May 2022) at [E4.5.20], [4.5.30] and [4.5.35].E13 are not available to that cohort, though they are in genuine and stablerelationships.43[145] The Minister denies that his decision(s) are discriminatory as pleaded or thathe failed to consider his obligations under the Bill of Rights Act. He denies that s 19is engaged at all.[146] I distil the issues as whether:(a) section 19 is engaged;(b) regulation 9A and instruction E13 have a differential effect on the basisof a prohibited ground;(c) regulation 9A and instruction E13 have a discriminatory impact; and(d) if so, any discrimination is demonstrably justified under s 5.[147] Each raises a host of sub-issues.Is section 19 Bill of Rights Act engaged?[148] The Minister is a member of the executive branch.44 There is no doubt that theBill of Rights Act applies to the Minister's recommendation to make reg 9A (and eachextension of reg 9A) and to his certification of E13. But, a question arises as to whoseaffirmed rights the Minister is required to consider?[149] The plaintiffs' focus is on those overseas partners of New Zealand citizens andresident visa holders who do not meet partnership policy requirements of livingtogether.45 The respondents argue that this focus on the overseas partner of the NewZealand citizen –the person prevented from applying for a temporary entry visa – is ajurisdictional obstacle.4643 Relevantly, the challenge is not to how INZ is implementing either reg 9A or instruction E13.44 New Zealand Bill of Rights Act 1990, s 3(a).45 This includes dependent children included in those applications.46 Although the would-be visa applicant is not a plaintiff in these proceedings.[150] Mr Mortimer-Wang submitted that persons who are not New Zealanders andwho are outside New Zealand's jurisdiction cannot normally claim the benefits of therights affirmed by the Bill of Rights Act. He referred to its long title which providesthat it is an Act:(a) to affirm, protect, and promote human rights and fundamentalfreedoms in New Zealand; and(b) to affirm New Zealand's commitment to the International Covenanton Civil and Political Rights (1996).(Emphasis added)[151] Secondly, he relied on the statutory presumption against extraterritoriallegislation47 and the scheme of the Act. He suggested that control of New Zealand'sborder is inherently a territorial matter; the Act does not purport to claim prescriptivejurisdiction over offshore individuals who seek entry but only sets laws and rules aboutwho may enter its territory. The third limb of his submission was that it is impracticaland risks sovereign interference to expect domestic decision makers to take intoaccount and comply with the Bill of Rights Act in respect of impacts on foreignnationals.[152] Ms Sundar, who dealt with this part of the case on behalf of the plaintiffs,submitted in reliance on Afghan Nationals that INZ assumed jurisdiction when itaccepted a GVV application for processing. This is particularly so for thoseapplications made in reliance on INZ's recommendation to make a GVV applicationif the living together requirement could not be met. She contended that this does notinvolve considering the impact on a foreign national beyond that person's interactionwith INZ. It is limited to applying New Zealand law when processing that application.This submission does not address would-be applicants who are prevented by reg 9Afrom making an application and might be thought to conflate the two different typesof suspension.4847 Refer Ludgater Holdings Ltd v Gerling Australia Insurance Co Pty Ltd [2010] NZSC 49, [2010]3 NZLR 713 at [22] citing Poynter v Commerce Commission [2010] NZSC 48, [2010] 3 NZLR300 at [36]–[45].48 Refer paragraph [75].Discussion[153] Issues of extraterritorial reach of the Bill of Rights Act have not yet beenresolved by the courts. A number of cases suggest that New Zealand officials cannotavoid the application of the Bill of Rights Act simply by conducting inconsistent actsoverseas and there may be extra-territorial operation of the Bill of Rights.49 Thosecases involved extra-territorial acts in the conventional sense. That is, acts undertakenoutside New Zealand. They do not consider potential discriminatory impacts onforeign nationals arising from actions and decisions taken by officials in New Zealand.While their context is not on all fours, they illustrate an expansive approach to theavowed purpose of protecting and promoting fundamental rights. To that extent, theyinform the question of whose affirmed rights are to be taken into consideration.[154] Cooke J confronted a similar issue in Afghan Nationals.50 The applicants forjudicial review were two Afghan nationals who were in the process of potentiallyobtaining New Zealand residency and coming to New Zealand to join family membersalready settled here.51 The COVID-19 outbreak and effective closure of the borderintervened. They were not granted permission to enter New Zealand notwithstandingthe humanitarian crisis that then engulfed Afghanistan.[155] Of the extra-territoriality submission, the Judge said:52I accept the Bill of Rights can have some application here. It applies becauseNew Zealand has chosen to apply the [Immigration] Act to the applicants, andaddress their circumstances under New Zealand law. New Zealand law mustbe interpreted and applied in accordance with the interpretative mandates setout in ss4, 5 and 6 of the Bill of Rights. The proper interpretation of the Actcannot vary based on the physical location of the person to whom [it] is beingapplied. There is accordingly an assumption of personal jurisdiction over theapplicants, and those exercising powers must do so in a manner that isconsistent with the Act, as interpreted in accordance with the Bill of Rights.That means, for example, that the rights of natural justice referred to in s 27are engaged.But the application of the Bill of Rights only arises to the extent that suchjurisdiction has been assumed. I am not convinced that other rights in the Billof Rights are materially engaged by the assumption of personal jurisdiction.The applicants rely on the right not to be deprived of life under s 8 of the Bill49 Young v Attorney-General [2018] NZCA 307, [2018] 3 NZLR 827 at [40]; and Smith v R [2020]NZCA 499, [2021] 3 NZLR 324 at [92].50 Above n 7.51 The jurisdictional question was perhaps more acute since the plaintiffs were outside thejurisdiction. Contrast here where the plaintiffs are in New Zealand.52 At [39]–[40].of Rights. I agree that there appears to be a threat to the lives of the people inthe position of the applicants. I am less convinced that s 8 is engaged by thedecision making under the Act in relation to the grant of permission to cometo New Zealand. There might be an analogy with immigration decisionswhich involve deportation to countries that had the death penalty. But theimmigration decisions here still do not seem to me to engage the right to bedeprived of life except on such grounds as are established by law and areconsistent with the principle of fundamental justice.[156] This case suggests there are at least two instances where the Bill of RightsAct has direct application in the immigration context notwithstanding some extra-territorial dimension. First, when interpreting the legislation in a "rights-consistent"manner. Secondly, when processing and determining visa applications under the Act,although not all affirmed rights in the Bill of Rights would be engaged then. Eachaffirmed right in the Bill of Rights Act requires separate consideration under thisapproach.53[157] I agree with the first point as to the interpretive mandates in the Bill of RightsAct. I am not persuaded that the issues before this Court involve extra-territorial reach.It is the Minister's decision making in respect of New Zealand's border which ischallenged. The proper question is not whether the Bill of Rights Act appliesextraterritorially but whether public officials in New Zealand must considerconsistency with the Bill of Rights Act when acting in a way affecting the lives andrights of individuals overseas.[158] I accept that reg 9A tells people overseas that New Zealand does not intend todeal with them for a limited time. This might be said to point away from assumptionof personal jurisdiction even if receipt of an application for a visa were enough toassume personal jurisdiction over that person. But, the gist of this challenge is lessabout the suspension of applications for GVVs and more about where the line is drawnas to exceptions for partnership based visa applications.[159] I consider that there are more cogent reasons for than against the propositionthat the discrimination provisions of the Bill of Rights Act are a mandatory53 This is consistent with R v Matthews (1994) 11 CRNZ 564 (HC) where the issue of extraterritorialapplication of s 23(1) of the Bill of Rights Act (right to a lawyer upon arrest or detention under anenactment) was determined by reference to the limiting effect of the term "enactment" which couldonly be referring to New Zealand and not foreign enactments.consideration in decisions of the type in this case and that this includes consideringthe rights of the overseas partner. I set out my reasons.[160] First, the deleterious impact on the overseas partner is a mirror image of theimpact on the New Zealand-based partner rather than an additional, separate ordifferent one. There is already a significant connecting factor to New Zealand. It isnot artificial to recognise this symmetry merely because the New Zealand-basedpartner is not the direct subject of reg 9A and is not the visa applicant. That is anoverly technical distinction which does not reflect the real and human impact ofdecision making on a New Zealand citizen or resident in New Zealand.[161] Second, the rights in the Bill of Rights Act generally apply to "everyone" or"every person" but bite only when a person has or intends some interaction with theGovernment.54 This counters the argument that the scope of an obligation to take intoaccount the impact on foreign nationals would potentially be endless.[162] Thirdly, there is no risk of interference with the domestic affairs of anothersovereign nation since no other nation has or can have any role in the regulation ofNew Zealand's border. Neither does it risk regulating the conduct of any personoverseas. Thus there is no mischief in international law terms.[163] Fourthly, if there is no reason in principle why the Bill of Rights Act shouldnot be interpreted to apply to acts that would otherwise fall within the ambit of s 3 byreason only that they occur offshore, there is no reason in principle why the Bill ofRights Act should not apply in respect of acts affecting overseas parties seekingpermission to enter New Zealand. I reject the argument that allowing New Zealand-based partners to found claims based on their own rights when the decisions at issuetarget overseas persons is to allow extraterritorial application of the Bill of Rights bythe back door.[164] Fifthly, there are also those applications accepted and processed by INZ beforereg 9A was made. Mr Witbrock's partner's application is but one of such applications.In those instances, there is a stronger case for the assumption of personal jurisdiction.54 See Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press,Melbourne, 2003) at 114.Even if the assumption of personal jurisdiction limits Bill of Rights Act considerationsto the process focused natural justice obligation, observance of natural justice does notcondone discrimination.[165] It is also telling that the suspension decisions record:[42] While the Immigration Act 2009 recognises that immigration mattersinherently involve different treatment on the basis of personal characteristics,immigration policy development seeks to ensure that any changes arenecessary and proportionate. The Ministry of Business, Innovation andEmployment considers that the proposals in this paper are consistent with theNew Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.[166] And:[45] The Amendment Regulations comply with each of the following:45.2 The rights and freedoms contained in the New Zealand Bill ofRights Act 1990 and the Human Rights Act 1993.[167] The record relating to certifying E13 does not expressly refer to the Bill ofRights Act or Human Rights Act however the Minister deposed that in making boththe suspension and lapsing decisions, he "acted consistently with any obligationsunder the Bill of Rights Act".[168] For these reasons, the respondents' threshold objection as to the jurisdiction ofthe Bill of Rights Act fails.Are the impugned decisions discriminatory?[169] The plaintiffs first need to establish that the decisions were discriminatory interms of s 19 of the Bill of Rights Act which reads:19 Freedom from discrimination(1) Everyone has the right to freedom from discrimination on the groundsof discrimination in the Human Rights Act 1993.[170] The Human Rights Act sets out the prohibited grounds of discrimination at s21.55 The plaintiffs rely on s 21(1), paras (a), (c), (g), (l) and (m) which read:21 Prohibited grounds of discrimination(1) For the purposes of this Act, the prohibited grounds of discriminationare—(a) sex, which includes pregnancy and childbirth:(c) religious belief:(g) ethnic or national origins, which includes nationality orcitizenship:(l) family status, which means—(i) having the responsibility for part-time care or full-time care of children or other dependants; or(ii) having no responsibility for the care of children orother dependants; or(iii) being married to, or being in a civil union or de factorelationship with, a particular person; or(iv) being a relative of a particular person:(m) sexual orientation, which means a heterosexual, homosexual,lesbian, or bisexual orientation.[171] The sections in the two different Acts work together to define and protect from,discrimination.56 Section 65 of the Human Rights Act extends the proscription oncertain discriminatory actions to indirect discrimination.[172] Direct discrimination is where the law uses the prohibited ground as a basis fordifferentiating between two groups. Indirect discrimination is where a facially neutrallaw has differential effects based on a prohibited ground.57 In this case, it is common55 The long title to the Human Rights Act 1993 states that one of the purposes of the Act is theprovision of better protection of human rights in New Zealand "in general accordance with theUnited Nations Covenants or Conventions on Human Rights".56 Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643 at [111].57 New Zealand Health Professionals Alliance Inc v Attorney-General [2021] NZHC 2510, (2021)12 HRNZ 693 at [160].ground that the alleged discrimination is not direct but indirect. It is the combinationof reg 9A and instructions E4.5.20 and E4.5.30 that means not everyone who may bein a genuine partnership can rely on the carve-out in reg 9A.[173] The parties agree that the approach to analysing discrimination for Bill ofRights Act purposes is set out by the Court of Appeal in Ministry of Health vAtkinson.58 The Court there stated:[55] It is agreed that the first step in the analysis under s 19 is to ask whetherthere is differential treatment or effects as between persons or groups inanalogous or comparable situations on the basis of a prohibited ground ofdiscrimination. The second step is directed to whether that treatment has adiscriminatory impact.[174] And later:[109] [We] consider that differential treatment on a prohibited ground of aperson or group in comparable circumstances will be discriminatory if, whenviewed in context, it imposes a material disadvantage on a person or groupdifferentiated against.(emphasis added)[175] Identifying the appropriate comparator groups to examine whether there isdifferential treatment between those groups is not necessarily straightforward. It isalso critical to the inquiry which follows. The focus must be on analogous orcomparable situations. The plaintiffs identify the relevant comparator groups as thosepartners and dependent children whose visa applications could be suspended andlapsed and those whose could not.[176] In respect of the suspension decisions, their first cohort "includes" thoseoverseas partners (and dependent children) of New Zealand citizens or residence classvisa holders whom INZ determined did not meet the partnership policy requirementsof living together along with the overseas partners and dependent children of alltemporary visa holders. The second cohort "includes" the overseas partners (anddependent children) of New Zealand citizens or residence class visa holders whoapplied for a partnership based visa and met the partnership policy requirements asdetermined by INZ, including the living together requirement.5958 Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456.59 The second group also included the overseas partners and dependent children granted a criticalpurpose visa.[177] In respect of the lapsing decision, the plaintiffs' first cohort "includes" thoseoverseas partners (and dependent children) who made a GVV application based ontheir partnership with or dependence on a New Zealand citizen, residence class visaholder, or temporary class visa holder or applicant. The second cohort "includes" theoverseas partners (and dependent children) of a New Zealand citizen or resident whomade a partnership-based visa application.[178] The respondents broadly agree that these are the appropriate comparatorgroups provided they are framed in a way recognising that it is the New Zealand-basedpartner whose s 19 rights are engaged.60 Thus, they propose the following comparatorgroups:61(a) New Zealand citizens or residents who are in a genuine relationshipwith an offshore applicant for a visa and who are living together —being persons whose partner would ordinarily expect to meetpartnership instructions; and(b) New Zealand citizens or residents who are in a genuine relationshipwith an offshore applicant for a visa but who are not living together —being persons whose partner would ordinarily not expect to meetpartnership instructions.[179] This slight re-framing has the attraction of simplicity while getting to the cruxof the complaint.[180] The respondents accept that both the suspension and lapsing decisions have adifferential effect on these two groups which is indirectly discriminatory. But theyargue that the indirect discrimination is not based on one of the prohibited grounds.Rather the differentiator is whether or not the partners have lived together andtherefore meet the requirements of a partnership-based visa. I agree that both reg 9Aand E13 are "facially neutral".62 The discrimination is between those who meet the60 This is consistent with the respondents' argument that the Bill of Rights Act has no extra-territorialapplication.61 The respondents do not separately address the partners of temporary visa holders. This isunsurprising as no submissions were directed to this group.62 A description referred to in New Zealand Health Professionals Alliance Inc v Attorney-General,above n 57.partnership requirements and those who do not. This is not a prohibited ground ofdiscrimination.[181] The respondents also emphasise that these challenges before the Court are of ageneral rather than specific nature. No individually specific set of facts are pleadednor any decision made in respect of an individual case as relates to reg 9A. Similarly,the challenge to E13 is a general rather than specific challenge. As these are systemicrights challenges, the respondents say that the Court's inquiry is limited to whether theimmigration scheme as a whole was capable of being operated consistently with theBill of Rights Act.63[182] The plaintiffs disagree and point to the specificity of the description of theexceptions to reg 9A. I do not accept that this is the relevant distinction but ratheraccept the respondents' characterisation of the challenge. It is the immigrationframework which must be considered holistically rather than single aspects inisolation. If this were not the case, then the challenge under the Bill of Rights Actwould face the insurmountable obstacle that there is nothing in reg 9A or instructionE13 which differentiates between the identified comparator groups in isolation fromthe partnership requirements in E4.5.20 and E4.5.30.[183] To succeed, the plaintiffs need to show that the impugned decisionsdisproportionately affect the identified subgroups of persons in a manner amountingto indirect discrimination. Only then can there be a material disadvantage which arisesfrom a prohibited ground of discrimination.64 They contend that the sub-groups whoare disproportionately affected are those who for reasons of ethnic origins, religiousbelief, or societal prejudice in other countries cannot meet the living togetherrequirement.[184] All persons had exactly the same ability to apply for a visa based on partnershipor relationships after the enactment of reg 9A as they did immediately before it. Priorto reg 9A, there was a meaningful pathway through a GVV application for entry for63 Criminal Bar Association of New Zealand Inc v Attorney-General [2012] NZHC 1572 at [83],upheld on appeal Criminal Bar Association of New Zealand Inc v Attorney-General [2013] NZCA176, [2013] NZAR 1409 at [166]-[169]; New Zealand Health Professionals Alliance Inc vAttorney-General, above n 57,at [153]; and R (Bibi) v Secretary of State for the Home Department(Liberty intervening) [2015] UKSC 68, [2015] 1 WLR 5055.64 As set out in Ngaronoa v Attorney-General, above n 56, at [148].persons who could not meet the partnership requirements. That meant that the systemas a whole was capable of being operated in a non-discriminatory way. The questionis whether reg 9A changed the framework for this cohort so that it led to adiscriminatory impact on a prohibited ground. In other words, the plaintiffs mustsatisfy the Court that reg 9A disproportionately affects the sub-groups within aprotected class.[185] There will be people in genuine relationships who are affected by reg 9A forreasons other than religion, ethnic origin, sex or sexual orientation. There will bepeople without the financial means to travel to be with their spouse overseas or peoplewho met and conducted relationships over the internet. There will also be many whoare in same-sex relationships who can live together in another country and so are notdisadvantaged by reg 9A (and one's location is not a prohibited ground ofdiscrimination).[186] The difficulty is that there is no cogent evidence on which to draw any safeconclusions about whether the impact is or is not disproportionate. The plaintiffssought data from INZ under the Official Information Act 1982. On 22 November2021, they made an Official Information Act request. That request asked for thenumber of GVV applications on hand with INZ that are based on an overseasrelationship with a New Zealand citizen, resident or temporary class visa holder. Theresponse was that INZ does not hold this information in a form that is able to be easilyaccessed or compiled. (It goes without saying that an even more granular assessmentidentifying the reason why the living together requirement is unable to be met is notavailable.)[187] This is consistent with Mr Gilray's statement that: identifying a cohort of applications for general visitor visas is possible. AsI set out above, in November 2021 the number of visitor visas potentiallysubject to lapsing under instruction E13 is a little over 24,000 applications.As a reminder, these are applications for visitor visas that are not under"partnership" instructions (that is, general visitors visas are not relationship-based visas as discussed above at paragraph 36). However, it is not possibleto easily identify within those 24,000 applications which applicants werewanting to come to New Zealand for, say, a two-week tour of the country, andwhich were wanting to come to New Zealand on the basis that they were in agenuine relationship with a New Zealand citizen or resident and wish to spendtime living together. INZ's system that logs receipt of applications does notrecord this level of information: they are all registered as general visitor visaapplications.Second, identifying the cohort within the applications would require a page-turn of each of the 24,000 applications. That would require an extremely highlevel of resource to carry out, which INZ does not have under currentpressures. It would undermine the entire rationale of why the lapsing solutionwas developed in the first place.[188] Consequently, there is no evidential basis on which to find a materialdisadvantage on the basis of a prohibited ground of discrimination. The plaintiffs'challenge under this head falters at the first limb of the Atkinson test.[189] Out of caution, I go on to discuss the second step in the Atkinson analysis —the alleged discriminatory impact. This requires an assessment of whether, whenviewed in context, the differential treatment imposes a material disadvantage on theperson or group differentiated against.65[190] Here the whole immigration framework is in play. The respondents point toother avenues for the affected class to come to New Zealand, including:(a) Applying for a visa under partnership instructions seeking an exceptionto the living together requirement. There is evidence that 130 visasbased on partnership as an exception to instructions have been grantedover the course of the border closure (but no evidence as to theproportion of exceptions granted to applications seeking an exception).(b) Applying for a critical purpose visitor visa, the main means of entryduring border closure;(c) Requesting a visa by special direction under s 61A of the Act.[191] The plaintiffs criticise these avenues as not meaningful. Ms Armstrong-Myers,an immigration specialist and licensed immigration advisor states:Mr Gilray also states that immigration officers have the discretion to grantvisas as exceptions to the instructions so that the full circumstances of the caseare considered. Since the March 2020 lockdown, I have never had anexceptions to instructions granted, and definitely never on a visa application65 Ministry of Health v Atkinson, above n 58, at [109].for an offshore partner. To give the Court some context, I have been involvedin various partnership cases in the last 18 months.I also note that INZ in its Internal Administration Circular No: 19/01 atparagraph 12, annexed at C to my previous affidavit, clearly states thatimmigration officers are to refrain from granting partnership-based visas as anexception to instructions as this, in their opinion, undermines the integrity ofpartnership instructions.Finally, Mr Gilray provides the option of applicants requesting a visa from theMinister of Immigration as a special direction. In fact, the Associate Ministerof Immigration, who has been delegated the Minister's power of issuing visasunder s 61A of the Immigration Act 2009, has effectively put in place a blanketpolicy of not intervening in cases where the applicant is offshore during thepandemic and the border closure. Therefore, again, while Mr Gilray is correctin theory, he overlooks the practical aspects of the policies.[192] While there is also the humanitarian border exception route, INZ interprets thisas requiring exceptional circumstances. Ms Armstrong-Myers refers in her affidavitevidence to her experience of a very high decline rate.66[193] Thus, whether the alternative pathways are meaningful is contested. That isnot something that this Court is capable of determining on the untested evidence beforeit. The challenges in this proceeding are only to reg 9A (more accurately to theextensions to reg 9A) and E13, and not to INZ's administration of the immigrationsystem. Ms Hyndman's evidence is that the purpose of IAC 19/10 is to encourage theuse of alternative pathways rather than the exception route, which is necessarilyinformed by what other pathways exist. Any application under these alternativepathways must be assessed against the relevant criteria or discretion and the relevantrights under the Bill of Rights Act assessed, informed by context.[194] On its face, it may appear arbitrary to distinguish the genuineness of arelationship based on the living together stipulation when other pathways have beennarrowed, but that is a matter better examined in a challenge to the partnershipinstructions. Even if it leads to an unfair outcome in some individual cases, this doesnot translate to an immigration system which is incapable of being operated in a waythat respects affirmed rights in the Bill of Rights Act.66 See the discussion in Afghan Nationals, above n 7, at [83]–[108][195] I also accept the respondents' argument that it is not possible to showdiscriminatory effect when reg 9A is not the principal barrier to any temporary entryclass visa applicant coming to New Zealand but a collateral measure. InstructionY4.50 is the instrument which closed the border, and the principal barrier. It is notchallenged in this proceeding.[196] In my assessment, the plaintiffs' challenge to reg 9A also falters at the secondof the Atkinson steps. I am not persuaded on the evidence before the Court that theimmigration system is incapable of being operated in a way that respects the importantrights underlying this challenge.[197] In so far as a rights compliance enquiry into instruction E13 is concerned, Ihave reached the same conclusions for the same reasons. But there are also additionalreasons why I find against the assertion of discriminatory effect. Instruction E13 doesnot of itself create a material disadvantage as it does not mandate an outcome. It doesnot require any immigration officer to lapse any visa application. The decision to lapseis one taken by an immigration officer. It is a separate decision. It is difficult to arguethat E13 is incapable of being operated in a proportionate way. It does not decline aperson's application, nor affect their ability to apply again. Mr Gilray deposes thatlapsing does not mean that an applicant loses their place in the queue.[198] Consequently, I find that neither the suspension decisions nor the lapsingdecisions are discriminatory on any of the prohibited grounds. It follows that thequestion of whether any discrimination is demonstrably justified under s 5 does notarise.Result[199] For the reasons set out I find no reviewable error in the suspension or lapsingdecisions. Accordingly, I dismiss the plaintiffs' claims.Costs[200] The parties did not address me on costs. If the parties are unable to agree costs,I direct as follows:(a) Any memorandum seeking costs is to be filed and served within 10working days of this judgment;(b) Any memorandum in response is to be filed and served within a further10 working days;(c) Memoranda are not to exceed three pages.............................................................Walker J