FARISHA FARINA DEAN v ASSOCIATE MINISTER OF IMMIGRATION [2019] NZSC 119 [4 November 2019]

FARISHA FARINA DEAN v ASSOCIATE MINISTER OF IMMIGRATION [2019] NZSC 119[4 November 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 82/2019[2019] NZSC 119BETWEEN FARISHA FARINA DEANApplicantAND ASSOCIATE MINISTER OFIMMIGRATIONRespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: R J Hooker for ApplicantN T Butler for RespondentJudgment: 4 November 2019JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay costs of $2,500 to the respondent.____________________________________________________________________REASONS[1] The applicant seeks leave to appeal against a decision of the Court of Appealdismissing her appeal to that Court.1 The High Court had earlier dismissed herapplication for judicial review of the decision of the respondent refusing to cancel herliability to deportation from New Zealand under s 172 of the Immigration Act 2009and to grant her a visa under s 61 of that Act.21 Dean v Associate Minister of Immigration [2019] NZCA 343 (Stevens, Duffy and Dobson JJ)[CA judgment].2 Dean v Associate Minister of Immigration [2018] NZHC 2455 (Churchman J) [HC judgment].[2] The respondent's decision was a decision in the respondent's "absolutediscretion", as that term is defined in s 11 of the Immigration Act.3 Section 11provides, among other things, that such a decision may not be applied for, if anapplication is made there is no obligation to consider it and, whether the application isconsidered or not, there is no obligation on the decision-maker to give reasons.[3] Both the High Court and the Court of Appeal reviewed the briefing materialthat had been provided to the respondent for the purposes of his consideration of thematter. Both concluded the decision of the respondent not to intervene was notunreasonable.4[4] The applicant argues that her intended appeal would raise two issues of publicimportance. The first relates to intensity of review. The applicant wishes to argue thatthe court should apply a "heightened scrutiny of whether the decision is reasonable inthe "Wednesbury" sense" when reviewing a decision under ss 61 or 172 of theImmigration Act.5 The second is a subset of the first. The applicant wishes to arguethat when undertaking a review of such a decision the court must first determine thescope and purpose of the provision under which the decision was made and whetherthe outcome had no intelligible justification or reflected a characterisation of anunderlying error.[5] We accept that the intensity of review to be applied in a judicial reviewchallenge to a decision to which s 11 of the Immigration Act applies may be an issueworthy of consideration by this Court. Having said that, there would appear to besome obstacles in the path of an argument for "heightened scrutiny" of a decision ofthis kind. Further, we do not see the present case as a suitable vehicle for aconsideration of the issue.6 The unusual facts of this case and its chequered history oflitigation as set out and analysed in the Court of Appeal's decision do not provide anauspicious context for the consideration of the issue. Nor do we consider there is arisk of a miscarriage of justice arising if we do not give leave to appeal.3 Immigration Act 2009, ss 61(2) and 172(5).4 HC judgment, above n 2, at [67]; and CA judgment, above n 1, at [60].5 Citing Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).6 This Court expressed a similar view in Singh v Chief Executive of the Ministry of Business,Innovation and Employment [2016] NZSC 39 at [4].[6] The application for leave to appeal is dismissed. The applicant must pay costsof $2,500 to the respondent.Solicitors:Vallant Hooker & Partners, Auckland for ApplicantCrown Law Office, Wellington for Respondent