DEAN v ASSOCIATE MINISTER OF IMMIGRATION [2018] NZHC 2455

DEAN v ASSOCIATE MINISTER OF IMMIGRATION [2018] NZHC 2455 [18 September 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-408[2018] NZHC 2455UNDER THE Judicial Review Procedure Act 2016 andPart 30 of the High Court RulesAND section 61 of the Immigration Act 2009IN THE MATTER OF an application for judicial review underPart 1 of the Judicial Review Procedure Act2016BETWEEN FARISHA FARINA DEANApplicantAND ASSOCIATE MINISTER OFIMMIGRATIONRespondentHearing: 18 September 2018Counsel: M L Clark for ApplicantN T Butler and E F Tait for RespondentJudgment: 18 September 2018JUDGMENT OF CHURCHMAN JIntroduction[1] The applicant, Ms Dean, is a Fijian national. She arrived in New Zealand in2009 and was granted a visitor visa. She was later declined a work permit and herpresence in New Zealand became unlawful on 7 April 2010. In June 2011, she wasserved with a deportation liability notice and deportation order.[2] On 2 November 2017, Ms Dean sought the assistance of the Member ofParliament for Mangere, the Hon Aupito William Sio, for the Associate Minister ofImmigration to cancel her deportation order and issue her with a 12-month work visa.[3] The Associate Minister declined to intervene in Ms Dean's case (the decision),sending a letter to Mr Sio on 19 April 2018 advising him of the decision.[4] Ms Dean seeks judicial review of the decision on the grounds that:(a) the case note prepared for the Associate Minister by ImmigrationNew Zealand (INZ) was deficient, imbalanced and contained errorsleading to an irrational decision; and(b) the decision was unreasonable, including on the basis that the decisionis inconsistent with New Zealand's international obligations.[5] The Associate Minister opposes the application.Background[6] In April 2009, Ms Dean met Mr Hussein, a New Zealand permanent residentvisa holder. They began living together in a de facto relationship in July 2009.[7] In October 2009, Ms Dean applied for a partnership based work permit, whichwas declined on 5 March 2010 because there was no documentation provided to showthat Mr Hussein had legally separated or divorced from his wife. INZ reached theconclusion that there was no exclusive relationship between Ms Dean and Mr Hussein.Ms Dean was granted a short-term visitor's visa to allow her to leave New Zealandlawfully which expired on 5 April 2010. She did not leave New Zealand then and hasremained here unlawfully hereafter.[8] In the years that followed, Ms Dean lodged a number of requests for a specialdirection under s 15 of the Immigration Act 2009 (the Act) and the cancellation of herdeportation order and/or a visa under s 61 of the Act.1[9] In relation to her request of 11 August 2015, the Associate Minister declinedto intervene by letter dated 18 August 2015. In September 2015, Ms Dean applied forjudicial review of that decision. On 15 February 2016, a settlement agreement wasreached, following which an INZ immigration officer undertook an assessment unders 177 of the Act on whether or not to cancel Ms Dean's deportation order, refusing tocancel the order on 12 August 2016.[10] In September 2016, Ms Dean sought judicial review of that decision and wasgranted interim relief so that she would not be deported until the Court could hear anddetermine that application. A settlement agreement was again reached on 17 July2017, the judicial review proceedings were discontinued, and a different INZimmigration officer undertook a fresh assessment under s 177, deciding not to cancelthe deportation order on 11 October 2017.[11] Ms Dean sought judicial review of that decision on 6 November 2017, only towithdraw that application on 24 January 2018. The current proceedings were filed on30 May 2018.The request for intervention from the Associate Minister[12] On 2 November 2017, Ms Dean sought assistance from Mr Sio. Her requestincluded a letter providing background information and attaching:(a) a letter from INZ to Ms Dean declining her work visa, dated 5 March2010;(b) the deportation liability notice under s 154 and deportation order unders 175;1 On 6 August 2012, 3 January 2013, 27 March 2014, 7 April 2014, 24 September 2014 and11 August 2015.(c) correspondence regarding Mr Hussein's criminal history, dated11 August 2016;(d) a High Court decision providing interim relief dated 29 March 2017;(e) the INZ record of Personal Circumstances dated 17 August 2017;(f) the partnership interview transcript dated 28 September 2017;(g) the INZ decision not to cancel the deportation order dated 11 October2017;(h) various evidence provided by Ms Dean in support of her relationship;and(i) a Separation, Maintenance and Property Agreement (together, therequest).[13] On 13 February 2018, Mr Sio wrote to the Associate Minister on behalf ofMs Dean requesting the Associate Minister's intervention and attaching the request.[14] The request was forwarded onto the Immigrations Resolutions Team whichreviewed the request and prepared a case note dated 13 April 2018 (the case note).The case note described, among other matters:(a) the request in summary form (the request was also attached to the casenote);(b) the representation made by Ms Dean through Mr Sio;(c) Ms Dean's immigration history;(d) the relevant immigration instructions and legislation;(e) relevant issues; and(f) international obligations, with reference to the Minister's earlierbriefing (on 1 November 2017) on the role of international obligationsin decision-making on immigration related cases.[15] The case note set out possible options for the Minister including:(a) cancelling Ms Dean's deportation liability and granting a 12-monthopen work visa under s 61 of the Act, subject to the requirements ofinstructions WF2, including health and character for temporary entry;(b) cancelling Ms Dean's deportation liability and granting a 12-monthopen work visa under s 61 of the Act, subject to her meeting health andcharacter requirements for temporary entry and providing evidence thatMr Hussein supports the request;(c) declining to intervene, but cancelling the period of prohibition unders 182 of the Act; or(d) declining to intervene.[16] The case note recorded that if the Minister chose an option that granted a visasubject to certain requirements, and the processing branch determined that therequirements were not met, the case could be referred back to the Minister fordirections.[17] On 19 April 2018, the Associate Minister sent a signed letter to Mr Sio,advising that he was not prepared to intervene. It is this decision that is the subject ofthis proceeding.Relevant legislative provisions of the Immigration Act 2009[18] The Act provides that a person who is not a New Zealand citizen may only bein New Zealand if he or she holds a visa granted under the Act.2 Any person who is2 Immigration Act 2009, s 14(1)(b).unlawfully in New Zealand has an obligation to leave.3 Unlike someone who islawfully in New Zealand, such a person has no right to apply for a visa and, if he orshe purports to apply for a visa, it is a matter for the absolute discretion of theMinister.4[19] While an individual can challenge or appeal an adverse visa decision,5 onceunlawfully in New Zealand, if the person has either not exercised a right of appeal orthe appeal has been unsuccessful, deportation can proceed.6[20] Section 61 confers on the Associate Minister (or his or her delegate) adiscretion to grant a visa of any type to a person unlawfully present in New Zealandwho is not subject to a deportation order:61 Grant of visa in special case(1) The Minister may at any time, of the Minister's own volition, grant avisa of any type to a person who—(a) is unlawfully in New Zealand; and(b) is not a person in respect of whom a deportation order is inforce; and(c) is not a person in respect of whom a removal order is in force.(2) A decision to grant a visa under subsection (1) is in the Minister'sabsolute discretion.[21] As a person for whom a deportation order is in force would be ineligible forconsideration for grant of a visa by virtue of s 61(1)(b), such a person would thereforeneed to apply to have their liability for deportation cancelled or suspended under s 172.The relevant parts of s 172 provide as follows:172 Minister may cancel or suspend liability for deportation(1) The Minister may at any time, by written notice, cancel a person'sliability for deportation.3 Section 18.4 Section 20.5 Part 7 of the Act sets out the provisions relating to appeals, reviews and other proceedings.6 Section 154.(2A) The Minister may exercise his or her powers under this sectionwhether or not the person who is liable for deportation—(a) has given good reason under section 155(2), 156(2)(b), or157(2) why the person should not be deported; or(b) has purported to apply to the Minister for any other reason.(5) The decision to cancel or suspend a person's liability for deportationis in the absolute discretion of the Minister.(7) The cancellation or suspension of a person's liability for deportationdoes not prevent the person from becoming liable for deportation onother grounds.[22] The breadth of the Associate Minister's discretion under ss 61 and 172 is setout under s 11, which defines "absolute discretion" as follows:11 Meaning of absolute discretion of the decision maker(1) If a provision of this Act provides that a matter or decision is in theabsolute discretion of the decision maker concerned, it means that—(a) the matter or decision may not be applied for; and(b) if a person purports to apply for the matter or decision, thereis no obligation on the decision maker to—(i) consider the purported application; or(ii) inquire into the circumstances of the person or anyother person; or(iii) make any further inquiries in respect of anyinformation provided by, or in respect of, the personor any other person; and(c) whether the purported application is considered or not,—(i) the decision maker is not obliged to give reasons forany decision relating to the purported application,other than the reason that this section applies; and(ia) privacy principle 6 (which relates to access topersonal information and is set out in section 6 of thePrivacy Act 1993) does not apply to any reasons forany decision relating to the purported application; and(ii) section 27 of this Act and section 23 of the OfficialInformation Act 1982 do not apply in respect of thepurported application.(2) Subsection (1)(c)(ia) applies to any decision made in relation to apurported application, whether the decision was made before or afterthe commencement of that subsection.[23] The language of ss 11, 61 and 172 signals a clear intention that the scope forjudicial review of decisions made under ss 61 and 172 is extremely limited. It isimportant to remember that judicial review does not involve an assessment of themerits of the case. The Court's focus is on the lawfulness of the decision-makingprocess.Relevant case law[24] Although a decision in the exercise of an absolute discretion is reviewable, theCourt of Appeal in the case of Zhang v Associate Minister of Immigration recentlyconfirmed that, effectively, the only ground of review that is permitted isunreasonableness in a Wednesbury sense: "This definition of absolute discretion givesbleak prospects for judicial review unless Wednesbury unreasonableness can beidentified."7[25] The Court stated:[23] Mr Burrows, pursuant to s 61 of the Act, was exercising an absolutediscretion. Pursuant to s 11 of the Act, he was not obliged to give reasons forhis decision. His only obligation when giving his decision was to note thats 11 applied. Therefore, the availability of judicial review as a remedy is verylimited. Effectively, the Court is limited to examining whether, on theinformation available to Mr Burrows, his decision could be seen asunreasonable in the Wednesbury sense.[26] In Babulal v Chief Executive, Department of Labour, a case involving s 177which also confers an absolute discretion, the High Court commented that:8The wording of the section leads me to conclude that Parliament clearlyintended the scope for judicial review of decisions made under s 177 to beextremely limited. In keeping with its commitment to observe its international7 Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222 at [14].8 Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773,29 September 2011 at [29].obligations, however, Parliament did not word s 177 so as to completelyexclude judicial review of all decisions made under s 177.[27] In Singh v Associate Minister of Immigration, Muir J noted the very limitedsuccess of judicial review claims of the exercise of absolute discretion, and that thetest for Wednesbury is one which an applicant will find difficult to satisfy.9 He said:10As to the test for Wednesbury unreasonableness, this is well established andvariously described in terms of:(a) "a decision so unreasonable that no reasonable authority could everconsider imposing it";(b) a decision which is "irrational or such that no reasonable body ofpersons could have arrived at the decision"; and(c) a decision in respect of which "there could only be one answer" andthat contrary to the decision that was made.Issue 1: Was the case note deficient, imbalanced or erroneous?[28] Counsel for Ms Dean, Ms Clark, submits that the case note prepared for theAssociate Minister was deficient, imbalanced and contained errors leading to anirrational decision. She alleges errors in respect of the nature of Ms Dean andMr Hussein's relationship, Mr Hussein's eligibility to be a sponsor, and as to whetherINZ contributed to Ms Dean's unlawful status.[29] Ms Clark submits that in some circumstances, a decision can be set aside injudicial review proceedings if there is evidence it was based on a material mistake ormisconceptions of an established fact, relying on Smith v Attorney-General.11 In thatcase, Katz J stated:12Generally, factual matters are not the proper subject of judicial review. Courtsare reluctant to interfere with reasonably held factual views and genuine valuejudgement calls. However, in some circumstances a decision can be set asidein judicial review proceedings if it is based on a material mistake ormisconception of an established fact. The precise scope of the review groundis unclear, but the following test from the English Court of Appeal is oftencited:9 Singh v Associate Minister of Immigration [2017] NZHC 44 at [43] and [46].10 At [45] (citations omitted).11 Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331.12 At [55] (citations omitted).First, there must have been a mistake as to an existing fact, includinga mistake as to the availability of evidence on a particular matter.Secondly, the fact or evidence must have been "established", in thesense that it was uncontentious and objectively verifiable. Thirdly,the appellant (or his advisers) must not have been responsible forthe mistake. Fourthly, the mistake must have played a material (notnecessarily decisive) part in the tribunal's reasoning.[30] The content of case notes has been at issue in several previous immigrationjudicial review proceedings.13 In Singh v Associate Minister of Immigration, Mr Singhalleged that an Associate Minister's decision to decline to intervene under s 172 of theAct was based on a flawed case note. Muir J held that:14In circumstances where there is no obligation on the part of the Minister totake any specific matter into account it will be a rare occasion in which anapplicant will be able to establish irrationality based on error or omission in abriefing paper. In particular, the Court will need to be satisfied that on areasonable assessment of all the information available to the Minister he orshe could not be expected to make a rational decision. In that context, I wouldadopt the "something overwhelming" terminology from Wednesbury itself.[31] While an error in the case note was identified in Singh, in that it contained aninaccurate representation of a statement made to INZ by Mr Singh which potentiallyreflected on his character, the Court held that this error was not "so overwhelming asto lead to an irrational decision".15 In making this finding, Muir J had regard to thefact that the case note accurately summarised Mr Singh's substantive response to thispotential credibility issue, and that the relevant correspondence and interview noteswere also included. The Court found that "[c]umulatively these provide[d] balance tothe case note itself" and that the error was "unlikely in itself to have beendeterminative".16The genuine and stable relationship issue[32] The Minister of Immigration has issued immigration instructions pursuant tothe Act which must be considered and applied by an Immigration Officer whenconsidering an application for a visa under the Act. Under these instructions, a person13 Singh v Associate Minister of Immigration, above n 9, and Devi v Minister of Immigration [2017]NZHC 728.14 At [57] (citation omitted).15 At [81].16 At [82].can apply for a resident visa or work visa under partnership instructions if they areliving in a genuine and stable relationship with a New Zealand citizen or resident andare sponsored by the citizen or resident. The partner must be an eligible sponsor.[33] Instruction F2.5 provides:F2.5 How do partners of New Zealand citizens and residents qualifyfor a residence class visa?(a) To be granted a residence class visa under Partnership Categoryapplicants must provide sufficient evidence to satisfy an immigrationofficer that they have been living together for 12 months or more in apartnership that is genuine and stable with a New Zealand citizen orresident.(b) For the purpose of these instructions 'partnership' means:i. a legal marriage; orii. a civil union; oriii. a de facto relationshipand 'partner' means one of the parties to such a partnership indicatedin (i), (ii) and (iii) above.(c) In each case the onus of proving that the partnership on which theapplication is based is genuine and stable lies with the principalapplicant and their New Zealand partner.(d) An application under Partnership Category will be declined if:i. the application is not supported by an eligible New Zealandcitizen or resident partner; orii. an immigration officer is not satisfied that the partnership onwhich the application is based is genuine and stable; oriii. the applicant and New Zealand citizen or resident partnerhave not lived together for 12 months or more at the time theapplication is lodged; oriv. the application is based on marriage or a civil union to aNew Zealand citizen or resident and either that New Zealandcitizen or resident, or the principal applicant is alreadymarried to or in a civil union with another person; orv. both the principal applicant and the New Zealand citizen orresident partner cannot satisfy an immigration officer theycomply with the minimum requirements for recognition ofpartnerships ; orvi. the applicant(s) does not meet health and characterrequirements .[34] Instruction WF2 provides:WF2 Partners of New Zealand citizens or residence class visa holdersPartners of New Zealand citizens or residence class visa holders may begranted a work visa provided that:a) they are living together in a genuine and stable relationship ; andb) the New Zealand partner intends to be in New Zealand for the sameperiod of time applied for by the applicant; and(i) complies with the minimum requirements for recognition ofpartnerships ; and(ii) meets the character requirements for partners supporting'partnership-based temporary entry applications' set out atE7.45; and(iii) is an eligible partner under residence family categoryinstructions .[35] In the case note, under the heading "Relevant Issues", the Ministerial Teamadvised the Associate Minister that "if Ms Dean and Ms [sic] Hussein are able tosatisfy INZ that they are in a genuine and stable relationship, Ms Dean may have apathway to residence under the Partnership Category".[36] Ms Clark submits that when assessing whether or not to grant a visa under s 61,highly relevant considerations for the Associate Minister include an assessment ofwhether an applicant has lawful means of remaining in New Zealand and a pathwayto a temporary visa or residence. She submits that this advice is misleading as theAssociate Minister would have been left in some doubt as to the true status of therelationship, and recognition of their relationship as being genuine was importantbecause that is the key aspect of both partnership work and residence instructions.[37] Ms Dean and Mr Hussein were interviewed by Compliance Officers on twodifferent occasions, the last interviews taking place in August 2017 for Ms Dean andin September 2017 for Mr Hussein, with the officer, Mr Treadaway, telling Ms Deanthat he had no concerns that her relationship with Mr Hussein was genuine. Ms Clarktherefore submits that, having satisfied INZ that they are in a genuine relationship andmeeting the other requirements of instructions F2.5 and WF2, Ms Dean does have apathway to residence under the Partnership Category, rather than may as was advisedto the Associate Minister. Ms Clark submits this would have been a material factorfor consideration by the Associate Minister.[38] Ms Butler, counsel for the Associate Minister, submits that the statement is notmisleading as:(a) the Associate Minister had before him Ms Dean's letter dated2 November 2017 which refers to Mr Treadaway's comments as wellas Ms Dean's relationship information. From this information, theAssociate Minister could form his own view as to the genuineness ofthe relationship;(b) notwithstanding his comments, Mr Treadaway declined to exercise hisabsolute discretion under s 177 of the Act; and(c) the case note described the options available to the Minister, includingoptions that may require further assessment of the relationship ofMs Dean and Mr Hussein. That assessment of the relationship wouldbe made in accordance with relevant instructions, rather than relyingsolely on what Mr Treadaway had previously concluded (given thatMr Treadaway had decided not to exercise his discretion).[39] Ms Butler submits that the wording in the case note is, therefore, accurate:Ms Dean may have a pathway to residence under the Partnership Category, but furtherassessment is required.[40] I accept that the first part of this statement could have been potentiallymisleading. If read in isolation, it could have left the Associate Minister with theimpression that INZ were not yet satisfied that Ms Dean and Mr Hussein were in astable and genuine relationship which could have impacted on his decision to exercisehis discretion. However, the statement was not made in isolation. Attached to the casenote was Ms Dean's full request, including her letter which outlined Mr Treadaway'scomments, along with other relationship information. As to whether or not Ms Deanmay have a pathway to residence, this part of the statement was not misleading. Evenif INZ were satisfied Ms Dean and Mr Hussein were in a genuine and stablerelationship, Ms Dean's pathway to residence would not have been clear under thePartnership Category as INZ still needed to be satisfied that Mr Hussein was aneligible partner. Given that he has had a protection order made against him, it seemspossible that this could have presented an obstacle to him meeting characterrequirements as a sponsor. Accordingly, I do not find that this statement, when readin its entirety, was misleading.The eligible sponsor issue[41] In order to qualify for a work visa or residence visa under partnershipinstructions, an applicant must be sponsored by an eligible partner. A partner will onlyqualify as a sponsor if they meet the character requirements in instructions E7.45.[42] Instructions E7.45 provides:E7.45 Character requirements for partners supporting 'partnership-based temporary entry applications'a) The following people will not meet the character requirement forsupporting partners, unless granted a character waiver (see E7.45.10below), if they have been convicted of any offence involving domesticviolence or of a sexual nature whether in New Zealand or overseas:i. New Zealand citizen or resident class visa holder at any timesince turning 17; orii. work (WF3) or student (WF4) visa holders in the seven yearsprior to the date the partnership application is made.b) If the supporting partner does not meet the character requirement forpartners supporting 'partnership-based temporary entry applications',the application may be declined.[43] The paragraph of the case note relating to Mr Hussein's eligibility as a sponsoris as follows:The representations state that Mr Hussein was advised by a compliance officerin 2016 that he is not an eligible supporting partner as he has a history ofdomestic violence and was issued a protection order. Immigration instructionsE7.45 state that people will not meet the character requirement for supportingpartners, unless granted a character waiver, if they have been convicted of anyoffence involving domestic violence or of a sexual nature whether inNew Zealand or overseas. A police certificate provided with therepresentations (see annex 3) confirms that Mr Hussein does not have anyconvictions relating to domestic violence or of a sexual nature. From theinformation available, it appears that Mr Hussein may be an eligiblesupporting partner.[44] The advice provided in 2016 related to Mr Hussein having been subject to aprotection order issued by the Family Court.[45] Ms Clark submits that the use of the word "may" would have left some doubtin the Associate Minister's mind as to the eligibility of Mr Hussein as a sponsor. Shesubmits that this, when coupled with the doubt cast over the couple's genuinerelationship would have led to overall uncertainty as to Ms Dean's eligibility for apartnership work or residence visa.[46] Ms Butler submits that the statement is not misleading as:(a) the case note does not state that Mr Hussein has a criminal conviction.Instead, the case note sets out the requirements of E7.45, and thenexpressly states that "[a] police certificate provided with therepresentations confirms that Mr Hussein does not have anyconvictions relating to domestic violence or of a sexual nature"; and(b) any assessment as to whether or not he is an eligible sponsor would bemade at the time of an application.[47] It is unfortunate that the case note refers to the advice provided in 2016 as,again if read in isolation, this could arguably have given the Associate Minister theimpression that there were concerns as to Mr Hussein's character. However, the casenote goes on to state that the police certificate confirms that he does not have anyrelevant convictions. I conclude that the Associate Minister, reading this paragraph infull, would not have been misled and would have had a clear understanding that MrHussein could, in fact, be an eligible sponsor.The contribution to unlawful status issue[48] Ms Dean made submissions in support of her request that INZ have contributedto her unlawful status arising from the decline of her application for a work permit in2009 under partnership instructions in that:(a) the application was declined by INZ as there was no documentationprovided to show that Mr Hussein had legally separated or divorcedfrom his wife and therefore concluded that there was no exclusiverelationship and existence;(b) there was no requirement for a sponsor to be able to showdocumentation that they are separated or divorced from their previoushusband or wife; and(c) the Ministerial Team failed to make any finding or provide any adviceto the Associate Minister on whether Ms Dean's submissions werecorrect that INZ have contributed to her unlawful status.[49] Ms Clark submits that the case note omits to include an INZ finding onMs Dean's allegation that INZ contributed to her unlawful status by declining herapplication for a work permit in 2009 under partnership instructions. She submits thatif it had been confirmed for the Associate Minister that Ms Dean's unlawful statuscame about due to INZ's material errors then that may have shifted the AssociateMinister's perception over her unlawful status.[50] In response, Ms Butler submits that, to the extent that INZ did not address thesematters, there is no requirement for every detail to be specifically mentioned in thebriefing. She submits that it cannot be seriously argued that it was a mandatoryconsideration for INZ to form such a view in the case note to the Minister. TheAssociate Minister's decision under s 61 was made in his absolute discretion. Therewas no duty on the Associate Minister to even consider the request under s 61, letalone give weight to any particular fact as a mandatory relevant consideration.[51] Even if it could be argued that an "INZ finding" or an "INZ submission" wasa mandatory relevant consideration for the Associate Minister to consider (which isdenied), Ms Butler submits that, in any event, the case note addressed:(a) the previous decisions on Ms Dean's relationship status;(b) Ms Dean's assertions regarding her partnership status; and(c) Ms Dean's submissions on this topic were provided to the AssociateMinister in full as an annexure to the case note.[52] I conclude that, while it might have been advisable for the case note to directlyrefer to Ms Dean's concerns that INZ had contributed to her unlawful status bydeclining her initial application for a work visa as they determined there was noexclusive relationship between Ms Dean and Mr Hussein in the absence ofdocumentation to show that his marriage was at an end, they were not obliged to doso. Ms Dean did spell out her concerns in the request and this was before the AssociateMinister, so he would have been able to form his own views as to the role INZ playedin Ms Dean's unlawful status.Summary on Issue 1[53] Overall, for the reasons given above, I conclude that the case note placedbefore the Associate Minister was neither deficient, imbalanced nor erroneous.Issue 2: Was the decision unreasonable?[54] Ms Dean pleads that the decision was unreasonable, citing the followingparticulars:(1) Ms Dean and Mr Hussein have been living together in a genuine andstable relationship since 2009 and have completed a cultural-religiousmarriage;(2) Immigration (Compliance) Officer Damon Treadaway accepted thatthe relationship is genuine;(3) Mr Hussein is an eligible sponsor;(4) Ms Dean has a pathway to residence;(5) Ms Dean is no longer in communication with her family in Fiji andhas been disowned;(6) Expecting Mr Hussein to return to Fiji with Ms Dean would force himto be separated from his New Zealand citizen children;(7) Mr Hussein is unable to return to Fiji for financial reasons; and(8) The decision is inconsistent with New Zealand's internationalobligations, in particular articles 2, 13, 17 and 23 of the InternationalCovenant on Civil and Political Rights (ICCPR).[55] These matters can be grouped into two headings:(a) Ms Dean's personal circumstances; and(b) International obligations.[56] As outlined above, given that the decision involves the exercise of absolutediscretion, an extraordinary or overwhelming circumstance going to Wednesburyunreasonableness is required before judicial intervention is justified.[57] The question is, therefore, whether the decision not to intervene was sounreasonable that no decision-maker, acting reasonably, could have arrived at thatdecision.17 In other words, was the decision "outside the limits of reason", "sooutrageous in its defiance of logic or of accepted moral standards" or "so absurd that[the decision-maker] must have taken leave of his senses"? 18[58] The starting point is the absolute discretion nature of the decision, which doesnot require the decision-maker to take any particular matter into account, nor to placeparticular weight on any one factor or factors. As Muir J observed in Singh, there is"no particular test" which the Associate Minister is obliged to apply in exercising hisabsolute discretion.19 The Associate Minister clearly stated in his decision letter thathe "carefully considered the information provided". While Ms Clark criticised that asbeing part of a standard form letter, it is not something that the Court can go behind.17 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] a KB 223 (CA).18 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.19 Singh v Associate Minister of Immigration, above n 9, at [92].Ms Dean's personal circumstances[59] Ms Dean's personal circumstances were considered by the High Court in 2017in the context of an application for interim relief to prevent her deportation until herprevious application for judicial review had been heard.20 The personal circumstancesshe cited in that case are substantially the same as the present case, including her wishnot to be separated from Mr Hussein, his desire not to be separated from his (adult)children, and her lack of relationship with her Fijian family. There, Gordon J statedthat:[25] The consequences identified by Ms Dean above are less severe thanthose identified by the applicants in Singh (Kulbir) and Chief Executive of theMinistry of Business, Innovation and Employment v Nair, which in both casesincluded the forced emigration of New Zealand citizen children. In both cases,the Court of Appeal found that the consequences of deportation were not"particularly adverse" and did not meet the necessary threshold to justifyinterim relief. While Mr Hooker, who appeared on behalf of Ms Dean, didnot formally concede that the consequences for Ms Dean would be no greaterthan the usual statutory consequences of deportation, he acknowledged thathe might struggle to make a submission to the contrary.[26] Were the consequences of deportation limited to those describedabove, therefore, I would not be satisfied that the consequences of deportationwere sufficiently adverse to justify interim relief. (citation omitted)[60] Unfortunately, deportation will inevitably involve an element of harshness andemotional upset, often requiring separation from family and friends. In itself, that willnot be sufficient to found a claim that the decision not to intervene was unreasonablein the Wednesbury sense. I conclude that the consequences for Ms Dean of herdeportation are not such that the Associate Minister's decision not to intervene was"outside the limits of reason".International obligations[61] Ms Clark submits that the decision was inconsistent with New Zealand'sinternational obligations, in particular, the following articles of the ICCPR:(a) Article 17: the right not to be subjected to arbitrary or unlawfulinterference with the family; and20 Dean v Chief Executive of the Ministry of Business, Innovation and Employment [2017]NZHC 588.(b) Article 23: the family is the natural and fundamental group unit ofsociety and is entitled to protection by society and the State.[62] Ms Clark submits that Ms Dean and Mr Hussein had already been recognisedas being in a genuine relationship and this would have been a key factor whenconsidering New Zealand's international obligations.[63] The Court of Appeal has held that when considering international obligationsin the context of an absolute discretion decision under s 177 of the Act (where there isan express reference to international obligations), "no particular test need be appliedand the immigration officer 'need not attach particular weight to any giveninternational obligation'".21[64] In describing the decision of an immigration officer under s 177, the Court ofAppeal said:22The only inference available from Mr Shand's affirmation of performance ofhis obligations under s 177 is that, in accordance with New Zealand'sinternational obligations, he has treated Amanpreet's interests as a primaryconsideration. But, within his discretionary power, he has decided that thestatutory requirement to ensure the integrity of New Zealand's immigrationsystem — what may generally be termed "the national interest" — mustprevail. A Court cannot inquire further. In these circumstances, applying theWednesbury approach, it cannot be said "there could be only one answer",namely that the [Immigration Officer] should have cancelled the deportationorders. We are satisfied that the [Immigration Officer] reached a decision thatwas reasonably open to him on all the facts and having regard toNew Zealand's international obligations.[65] In Devi v Minister of Immigration, which concerned a decision that breachedMs Devi's rights under the ICCPR and the International Covenant on Economic,Social and Cultural Rights, the High Court noted:23[29] A decision maker is not required by s 61 to make decisions with regardto international obligations. To raise any issue on judicial review, theseobligations must have been of sufficient relevance to Ms Devi's case "that tooverlook them raises Wednesbury unreasonableness". In any event, I find thatMr Burrows did not overlook the obligations. Mr Burrows indicated by21 Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016]NZCA 248, [2016] NZAR 836 at [30] (citations omitted).22 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015]NZCA 592, [2016] NZAR 93 at [66] (citations omitted).23 Devi v Minister of Immigration, above n 12 (citation omitted).signing the internal Record of Decision form that he considered theapplication of any relevant international obligations, as the briefing paperdirected him to do. He read the plaintiff's letter which specifically referencedthe human rights instruments now raised. It was a matter for his judgmenthow any of the factors which he considered were weighted in his decision.[66] On the facts of this case, the Associate Minister had been briefed about theimpact of New Zealand's international obligations on his discretionary decisionmaking, including the ICCPR. The case note itself specifically refers to theseobligations, as does Ms Dean's request. In his decision, the Associate Minister statedthat he had carefully considered the representations. I conclude that the AssociateMinister made his decision fully understanding his obligations under international law.The fact that he, nevertheless, declined to intervene despite the impact his decisionwould have on Ms Dean and her partner, while no doubt impacting negatively on them,is not of itself an unusually difficult situation in terms of immigration and deportationcases. His decision, with respect to New Zealand's international obligations, couldnot be described as so absurd that he must have taken leave of his senses.Summary on Issue 2[67] Overall, for the reasons given above, I conclude that the Associate Minister'sdecision was not unreasonable in the Wednesbury sense.Lack of affidavit from the Associate Minister[68] While conceding that the Associate Minister had in front of him thesubmissions of Counsel for Ms Dean and supporting documents at the time he madehis decision, Ms Clark submits that, in the absence of any evidence from the AssociateMinister, it is not clear whether he reviewed that material, or if he only relied on thebriefing paper prepared by his team.[69] The lack of affidavit evidence from the Associate Minister has been consideredbefore. In Singh, Muir J said:24[51] I do not consider any adverse inference [can be] appropriately drawnagainst the Minister for failing to provide an affidavit. It would be unrealisticin the context of the caseload considered by Ministers or Associate Ministers24 Singh v Associate Minister of Immigration, above n 9.of Immigration for them to recall with particularity the reasons for theirdecision in any particular instance. Nor are they even obliged to identify suchreasons. The Court has before it a full record of the information available tothe Minister when he made his decision and on the basis of which therationality of that decision can be assessed.[70] Ms Butler submits that the present case is directly comparable as there isaffidavit information before the Court on the information which was before theAssociate Minister. A manager with the Immigration Resolutions Team deposes to,among other matters:(a) the information before the Associate Minister; and(b) the briefing which the Minister received at the time of his appointment,including the impact of New Zealand's international obligations ondiscretionary decision-making and in particular the ICCPR.[71] I accept Ms Butler's submissions that nothing turns on the lack of an affidavitfrom the Associate Minister. The Court has before it a record of the informationavailable to the Associate Minister when he made the decision and on the basis ofwhich the rationality of that decision can be assessed. He was aware of his obligations,was provided with the necessary information, and will have made a reasonabledecision not to exercise his discretion accordingly.Conclusion[72] Sections 66 and 172 provide an absolute discretion of last resort, imposingminimal formal requirements on the decision-maker. There was no material error oromission in the case note, and the Associate Minister's decision not to intervene wasnot unlawful in terms of being Wednesbury unreasonable. The high threshold requiredfor the Court's intervention is not met in this case.[73] None of the grounds advanced in support of the application has been made out.The application for judicial review is accordingly dismissed.Costs[74] I invite the parties to settle costs. If that is not achievable, I direct therespondent to file and serve submissions within 14 days of this decision, with theapplicant having 14 days from service to respond.Churchman JSolicitors:Vallant Hooker & Partners, Auckland for ApplicantCrown Law, Wellington for Respondent