DEAN v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 588

DEAN v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 588 [29 March 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-2235[2017] NZHC 588UNDER the Judicature Amendment Act 1972 andPart 30 of the High Court Rules andImmigration Act 2009IN THE MATTER OF an application for judicial review underPart 1 of the Judicature Amendment Act1972 and an application for interim reliefunder section 8 of the JudicatureAmendment Act 1972BETWEEN FARISHA FARINA DEANApplicantAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentHearing: 21 March 2017Appearances: R J Hooker for the ApplicantB Charmley for the RespondentJudgment: 29 March 2017JUDGMENT OF GORDON JThis judgment was delivered by meon 29 March 2017 at 4.00 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Vallant Hooker & Partners, AucklandCrown Law, WellingtonIntroduction[1] Ms Dean is a Fijian citizen who has been living in New Zealand since January 2009. She has been subject to a deportation liability notice and deportation order since June 2011. On 12 August 2016 an Immigration (Compliance) Officerissued a decision refusing to cancel the deportation order ("decision"). Ms Dean hasapplied to judicially review the decision. She seeks interim relief under s 8 of the Judicature Amendment Act 1972 to restrain the respondent from deporting her to Fiji until her application for judicial review has been heard.Background[2] Ms Dean arrived in New Zealand in January 2009 on a visitor's visa. In April2009, while living in New Zealand, she met Mr Hussein. Mr Hussein is a New Zealand resident and holds a Fijian passport. They commenced living together in a de facto relationship in July 2009, an arrangement that continues to the present day. They do not have any children together, although Mr Hussein has two adult children from a previous relationship.[3] Shortly after her arrival in New Zealand, Ms Dean's visa was extended to 10October 2009. In early 2010, Ms Dean applied for a partnership work permit, whichwas declined on 5 March 2010. She was granted a further visitor's visa to permit herto leave New Zealand lawfully. That visa expired on 5 April 2010. On 21 June 2011, Ms Dean was served with a deportation liability notice and deportation order.[4] Since that time, Ms Dean has made a number of attempts to legitimise her presence in the country. On 6 August 2012 and 3 January 2013, she lodged requests for a visa under s 61 of the Immigration Act 2009 ("Act"), which were refused on thebasis that Ms Dean was subject to a deportation order. On 27 March 2014, solicitors acting on behalf of Ms Dean wrote to the Associate Minister of Immigration seeking a special direction pursuant to s 15 of the Act. They further requested that theAssociate Minister grant a short term visitor's visa to Ms Dean, to allow her anopportunity to obtain a further visa under the family (partnership) category. The solicitors were apparently advised that it was first necessary to make an application for a visa under s 61 of the Act and Ms Dean accordingly lodged her third suchrequest on 7 April 2014. Immigration New Zealand however refused to accept therequest and on 24 September 2014, Ms Dean's solicitors again wrote to the Associate Minister of Immigration seeking a special direction. The Associate Minister declined to intervene in the case.[5] On 11 August 2015, solicitors acting for Ms Dean lodged another request with the Associate Minister of Immigration, again seeking a special direction for the cancellation of her deportation order. By letter dated 18 August 2015, the Associate Minister again declined to intervene. Ms Dean sought judicial review of that decision. However, the review application was never heard. Instead on 15 February 2016, Ms Dean entered into a settlement agreement with the Minister of Immigration. The relevant terms of the agreement were as follows:Terms of settlement and release4. The applicant has discontinued the proceeding and agrees not to bring any subsequent proceeding in any New Zealand Court against the respondent or any employee or former employee of the respondent or any other person arising from or in connection with the matters which are or have been the subject of the proceeding.5. The applicant further undertakes:5.1 to make a contribution towards the respondent's costs of $5,000 to be paid in instalments of $400 each fortnight for the total amountof $5,000 to be paid in full by 12 August 2016; and5.2 by 12 March 2016—5.2.1 to be interviewed by an immigration (compliance) officer; and5.2.2 to provide any additional information to the officer which she considers supports her case under s 177(2) of theImmigration Act 2009 ("Act").6. The respondent undertakes that it will not execute a deportation order under s 178 of the Act until such time as the immigration officer has made a decision under s 177(3) of the Act subsequent to receipt of information under clause 5.2 above, provided the applicant has complied with the timeframe stated in clause 5.2 above.[6] Following the settlement agreement, Immigration New Zealand undertook an assessment under s 177 of the Act to determine whether to cancel the deportation order in respect of Ms Dean. Accordingly, on 11 March 2016 Ms Dean provided anumber of relevant documents to the Immigration Officer in support of her case. On3 August 2016, she attended the respondent's compliance and investigations office inAuckland for an interview. Mr Hussein attended a separate interview on 10 August 2016.[7] On 12 August 2016 the Immigration Officer issued a decision refusing to cancel the deportation order in respect of Ms Dean. The Immigration Officer declined to give reasons for the decision and directed Ms Dean to leave New Zealand within 14 days.[8] Following receipt of the decision, Ms Dean requested a full copy of her file from Immigration New Zealand. She received that information on 7 September 2016. In her view, the file discloses that the Immigration Officer considered Mr Hussein was not an eligible sponsor for a partnership-based temporary entry application because he had previously been convicted of family violence offences. That belief is based upon an email sent by the New Zealand police and received by the Immigration Officer on 11 August 2016, which stated that Mr Hussein was a family violence offender and had been issued with a final protection order on 24 May 2010.1 The Immigration Officer had also printed a copy of instruction E7.45 of the Immigration New Zealand manual, which provides that:E7.45 Character requirements for partners supporting 'partnership-based temporary entry applications'a. Any person who has been convicted in the seven years prior to the date the application is made of:i. any offence involving domestic violence; iii. will not meet the character requirement for supportingpartners in respect of a 'partnership-based temporary entryapplication', unless granted a character waiver (see E7.45.10below).b. If the supporting partner does not meet the character requirement forpartners supporting 'partnership-based temporary entry application',the application may be declined.1 The protection order did not relate to Ms Dean.[9] The Immigration Officer had highlighted instruction E7.45.a.i and had also highlighted a separate passage at E7.45.10.a, which states that:Immigration officers must not automatically decline 'partnership-basedtemporary entry applications' on the basis that the supporting partner doesnot meet the supporting partner character requirement.[10] Although there is a protection order against him, Mr Hussein's convictionrecord shows that he has never been convicted of any offences involving domestic violence.2 On that basis, Ms Dean says that he meets the character requirementsnecessary to support a 'partnership-based temporary entry application'. Ms Dean says that the highlighted passages in the instructions demonstrate that the Immigration Officer mistakenly believed that Mr Hussein would be barred from acting as a sponsor and that this formed the basis of his decision to refuse her application under s 177 of the Act.[11] Ms Dean subsequently filed an application seeking judicial review of theImmigration Officer's decision not to cancel the deportation order on the groundsthat:(a) The Immigration Officer made his decision on the basis that Mr Hussein had previous convictions for domestic violence offences. In doing so, the Immigration Officer failed to take into account relevant factors and/or took into account irrelevant factors and/or misdirected himself on the law and/or is otherwise open to review.(b) The decision was inconsistent with New Zealand's internationalobligations.(c) The decision was unreasonable.[12] The application for review is opposed by the respondent. The Immigration Officer has provided an affidavit in support of the opposition. His evidence is that he highlighted the relevant sections of instruction E7.45 in order to note information2 A copy of Mr Hussein's conviction record was sent to the Immigration Officer in the policeemail of 11 August 2016.that an overseas immigration officer might wish to consider or inquire about in the event of any future visa application by Ms Dean following her deportation. He says that the highlighted passages were not material to his decision and did not form part of the assessment or reasons for his decision not to cancel the deportation order in respect of Ms Dean.Application for interim relief[13] Ms Dean seeks interim relief pending the hearing of her substantive review application. Specifically, she seeks an order that the respondent be restrained from deporting her until the outcome of that application has been determined. This application is opposed by the respondent.[14] The hearing of Ms Dean's application for interim relief was initially set downfor 2 February 2017. Belatedly, on 1 February 2017, Mr Hussein filed an affidavit containing further evidence. The hearing was adjourned to give the respondent time to respond.[15] In his affidavit, Mr Hussein deposes that on 18 August 2016 he telephoned the Immigration Officer. He says that in the course of the telephone call the Immigration Officer stated that Mr Hussein was not an eligible sponsor and that was the reason for the deportation order not being cancelled. The affidavit annexes telephone records indicating that there was a telephone call on 18 August of around 19 minutes duration.[16] The Immigration Officer has since filed an affidavit in reply. He agrees he received a telephone call from Mr Hussein on that day and says he remembers it well as Mr Hussein was distraught about the decision not to cancel Ms Dean's deportationorder. He denies that he told Mr Hussein that he was not an eligible sponsor and he says he did not tell Mr Hussein that was the reason for his decision refusing to cancel the deportation order. He confirms the evidence in his first affidavit that MrHussein's eligibility as a sponsor was not material to his decision and did not formpart of the assessment or reasons for his decision not to cancel Ms Dean'sdeportation order.The law relating to interim relief[17] Section 8 of the Judicature Amendment Act relevantly provides as follows:8 Interim orders(1) (2) Where the Crown is the respondent (or one of the respondents) to theapplication for review the Court may, by interim order,—(a) Declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:(b) (3) [18] Where an applicant for judicial review is subject to a deportation order, he or she may seek interim relief under s 8 to prevent the deportation order from being enforced until the court has determined the application for review.[19] In Singh (Kulbir) v An Immigration Officer, the Court of Appeal held that when considering an application under s 8, the court should apply the established two-stage test:3The Court asks first whether the adverse consequences of deportation before the judicial review application is determined are such that it is necessary topreserve the appellants' position in the interim and, secondly, whether thereis a respectable case for judicial review.[20] In order to demonstrate that an interim order would be necessary to preservethe appellant's current status, the Court held that the individual would be required todemonstrate the existence of "particular adverse consequences of a proposed removal":4[T]he likelihood of such adverse consequences should be established by evidence and assessed in the context of both a legislative scheme under which the overstayer is necessarily illegally in New Zealand and is under alegal duty to leave and also a legislative policy under which those whobreak the rules are not to be advantaged over those who comply.3 Singh (Kulbir) v An Immigration Officer [2016] NZCA 435, [2016] NZAR 1419 at [32].4 At [34], citing Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 42 at [11] (footnotes omitted).[21] The Court affirmed that the usual statutory consequences of deportation do not generally meet the threshold for interim relief.5 Something more is required.Adverse consequences of removal[22] Ms Dean has expressed strong antipathy to returning to Fiji, stating that she"would rather be dead". She says that moving to Fiji would cause her to sufferserious emotional harm. Ms Dean does not wish to be separated from Mr Hussein and there is apparently some doubt as to whether Mr Hussein could move to Fiji to be with her. If he were to move to Fiji, Ms Dean says, he would be separated from his (adult) New Zealand citizen children. Ms Dean no longer has any relationship with her Fijian family, who have apparently disowned her, and she says that she fears for her safety on her return. She would apparently have no means to support herself financially. Ms Dean argues that deportation under these circumstances wouldbreach New Zealand's international obligations and would be contrary to publicinterest.[23] Ms Charmley appeared on behalf of the respondent. She submitted that the consequences of deportation listed by Ms Dean are not supported by evidence, but that in any case they do not meet the threshold to grant interim relief. In particular, she acknowledged that Ms Dean may suffer emotional distress, but submitted that deportation inevitably involves an element of harshness and emotional upheaval,6including "the severing of relationships, not only with family members but also withother persons that the [applicant] may have formed over many years."7 Similarly, the fact that Ms Dean may have limited access to financial support and/or opportunities is not unusual.8[24] Ms Charmley submitted that deportation would not prejudice Ms Dean'sapplication for review. Furthermore, she argued, a grant of interim relief in this5 At [35].6 See remarks made by Katz J in Minister of Immigration v Jooste [2014] NZHC 2882; [2015] 2 NZLR 765 (HC) at [47], albeit in a different statutory context.7 Prasad v Deportation Review Tribunal HC Auckland CIV-2007-404-8059, 19 February 2008 at [50].8 See Prasad v Deportation Review Tribunal, above n 7, at [50]; Ronberg v Chief Executive of Department of Labour [1995] NZAR 509 (HC) at 529.situation would unfairly advantage Ms Dean, since it would undermine the statutory obligation upon any visitor to New Zealand to leave upon the expiration of a visa.[25] The consequences identified by Ms Dean above are less severe than those identified by the applicants in Singh (Kulbir) and Chief Executive of the Ministry of Business, Innovation and Employment v Nair,9 which in both cases included the forced emigration of New Zealand citizen children. In both cases, the Court ofAppeal found that the consequences of deportation were not "particularly adverse"and did not meet the necessary threshold to justify interim relief. While Mr Hooker, who appeared on behalf of Ms Dean, did not formally concede that the consequences for Ms Dean would be no greater than the usual statutory consequences of deportation, he acknowledged that he might struggle to make a submission to the contrary.[26] Were the consequences of deportation limited to those described above, therefore, I would not be satisfied that the consequences of deportation were sufficiently adverse to justify interim relief.[27] In this case, however, there is one further consideration, which is the effect of the undertaking given by the Minister of Immigration. The Minister undertook thatMs Dean would be permitted to remain in New Zealand "until such time as the immigration officer has made a decision under s 177(3) of the Act".[28] Mr Hooker submitted that the Minister's undertaking remains in force andprevents the respondent from acting on the deportation order until such time as the High Court determines that a valid decision under s 177 was made. Ms Charmley did not accept that interpretation of the undertaking. Instead, she submitted that the decision under s 177(3) had been made; that there was no term in the agreement which required the decision to be a valid one; that the purpose of the agreement was to enable Ms Dean to embark upon a correct statutory process under s 177; and that to hold the Minister to his undertaking until the Court had determined that the9 Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA 248, [2016] NZAR 836.decision was valid would put Ms Dean in a better position compared to any other person whose application under s 177 had been declined.[29] In my view, the respondent's submissions on this point are misconceived. A decision which is flawed in procedure or substance has not been made in accordance with s 177(3). If Ms Dean is successful in her application for judicial review, therefore, it follows that no decision has been made under the Act, with the resultthat the Minister's undertaking remains in force.[30] The consequence of this analysis is as follows. If Ms Dean is deported now, but is subsequently successful in her application for judicial review such that theImmigration Officer's decision is quashed, then she will have lost the benefit of theMinister's undertaking to her. She will have been deported, even though no validdecision has been made under s 177(3). Ms Dean may be permitted to return to New Zealand at a later stage. However, that will not be sufficient to meet the terms of the undertaking. The terms of the undertaking do not provide that she may be deported and later returned to New Zealand. They provide that she will not be deported at all, until such time as a valid decision has been made in accordance with s 177(3) of the Act.[31] Ms Charmley submitted that this Court should make an order pursuant to the Declaratory Judgments Act 1908 regarding the correct construction of the settlement agreement. In my view, that step is neither necessary nor appropriate in order to determine the question of interim relief. Further, I have some doubt as to whether there is jurisdiction to make such an order. In each of the cases referred to me by Ms Charmley, the applicant had filed an application seeking some form of declaratory relief.10 No such application has been filed in the present case.[32] The terms of the settlement agreement are also relevant to the policy considerations which underpinned the approach taken by the Court of Appeal inSingh (Kulbir).11 Although Ms Dean is an overstayer and is present in New Zealand illegally, the Minister of Immigration has agreed that she may remain in the country10 Watson & Son Ltd v Daniell [2013] NZHC 2807; Te Runanga-A-Iwi O Ngati Kahu v Carrington Farms Ltd HC Whangarei CIV-2010-488-348, 13 September 2010.11 Singh (Kulbir) v An Immigration Officer, above n 3, at [34].until such time as a valid decision has been made pursuant to s 177(3) of the Act. Accordingly, the "duty to leave" which is incumbent upon most overstayers isqualified in her case. I agree that this outcome places her in a better position compared to other overstayers whose applications under s 177 have been declined. However, the fact is that those others do not have the benefit of an undertaking from the Minister.[33] I am therefore satisfied that the adverse consequences of deportation before the judicial review application is determined are such that it is necessary to preserveMs Dean's position in the interim. The adverse consequence in this case is that Ms Dean will be deprived of her right, pursuant to a settlement agreement concluded with the Minister of Immigration, to remain in New Zealand until a valid decision under s 177(3) of the Act has been made.[34] Of course, that does not mean that every overstayer who may have an undertaking from the Minister of Immigration will be automatically entitled to interim relief. The overstayer will still be required to demonstrate that he or she has a respectable case for judicial review.Respectable case for judicial review[35] As noted above, Ms Dean has advanced three grounds in support of herapplication for judicial review. The submissions filed on Ms Dean's behalf inrelation to interim relief identify additional, as yet unpleaded, grounds for relief. I propose to briefly address each of those grounds in order to determine whether Ms Dean has a respectable chance of success on judicial review.Mistake of fact[36] The first ground of review is described under a number of different headings but essentially equates to the contention that the Immigration Officer made hisdecision on the basis of a mistaken belief about Mr Hussein's criminal history. MsDean relies on the evidence of Mr Hussein in his 1 February 2017 affidavit that the Immigration Officer told him that the reason the deportation order was not cancelled was because Mr Hussein was not an eligible sponsor.[37] Ms Dean rejects the Immigration Officer's explanation that he printed off andhighlighted the relevant instructions for the benefit of a future immigration application. Ms Dean argues that the more reasonable explanation is that theImmigration Officer requested Mr Hussein's conviction history and reviewed theinstructions regarding character requirements as part of the decision-making process.[38] There is a relevant factual dispute regarding the content of the phone call between the Immigration Officer and Mr Hussein, and more broadly, about theImmigration Officer's perception of Mr Hussein's criminal history. It is not necessary for me to determine that dispute in an application for interim relief. It is sufficient to note that, in my view, the Court cannot at this stage discount thepossibility that Mr Hussein's account of events is correct.[39] If the Court were to accept Mr Hussein's evidence regarding the content ofhis phone call with the Immigration Officer, then it would follow that the Immigration Officer made an error of fact in determining that Mr Hussein was ineligible to be a sponsor. The only possible basis for that conclusion would be that the Immigration Officer wrongly believed Mr Hussein had been convicted of an offence involving domestic violence. That belief is plainly incorrect on the face of the evidence. If that were the case then, in my view, it would be reasonably arguable that the Immigration Officer made a determination that was unsupported by the evidence available to him, amounting to an error of law.12Breach of natural justice[40] This ground is not pleaded in the amended statement of claim.[41] Mr Hooker made the submission that, once the Immigration Officer became aware of the protection order against Mr Hussein, considerations of natural justice and fairness required him to put that fact to Ms Dean and give her a reasonable opportunity to respond. He relied on instruction E7.45.10 which states:12 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26]; Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [52].E7.45 Actiona. Immigration officers must not automatically decline 'partnership-based temporary entry applications' on the basis that the supportingpartner does not meet the supporting partner character requirement.b. Officers must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the supporting partner character requirement. The circumstances include but are not limited to the following factors as appropriate:i. if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine); and/orii. whether there is more than one offence; and/oriii. how long ago the offending occurred.c. Officers must make a decision only after they have considered all relevant factors, including (if applicable):i. any advice from the National Office of INZ; andii. compliance with fairness and natural justice requirements (see A1).d. Officers must record:i. their consideration of the surrounding circumstances (see paragraph (b) above);ii. the reasons for their decision to waive or decline to waive the partner character requirement.e. Any decision to waive the character requirement for supporting partners must be made by either:i. a seconded immigration officer; orii. an officer with Schedule 1-3 delegations.[42] Mr Hooker submitted that the instruction is reflected in the section of the Record of Personal Circumstances Form completed by the Immigration Officer when Ms Dean attended for an interview on 3 August 2016. That part of the form reads as follows:Put any relevant potentially prejudicial information about the person'srelationship to them for comment. (Examples include protection orders, child custody orders or family violence issue). Describe below thedocument(s)/information you have put to them and attach it to this RPC). Then note down any comments the person makes.Description of documents(s)/information shown to the person):Person's comments:[43] Ms Charmley submitted that because instruction E7.45(a)(i) was not materialto the Immigration Officer's decision, there was no need for him to put anypotentially prejudicial information about the relationship between Ms Dean and Mr Hussein to her for comment.[44] The principle of natural justice is fundamental in public law and is enshrined in s 27 of the New Zealand Bill of Rights Act 1990. The application of the principle in the immigration context can be complex, particularly where a decision-maker isgranted an "absolute discretion" as in s 177 of the Act. In Chen v Minister of Immigration, the Court of Appeal held:13What must be determined in each case is whether, having regard to all the circumstances such as the nature of the permit sought, what is known of the past history of the application and the consequences of its grant or refusal, the applicant for the permit had a fair opportunity to be heard in support of the application and in reply to other matters taken into account by the immigration officer in the course of considering the application. This fairopportunity to be heard should not be described as "a very limited right to be heard" if the limitation would result in a denial of fair treatment. Nor should the right be looked upon as a minimal right as that might tend to limit the flexible obligation to observe fair procedures. Fairness must be observed in the exercise of discretionary powers. Fairness does give rise to a right to be heard, the only limitation to the extent of that right being what is reasonable in the particular circumstances having regard to the purposes which the Immigration Act seeks to advance and its provisions for safe-guarding the rights and interests of persons seeking to enter, return to or remain in New Zealand.[45] Notwithstanding an immigration officer's absolute discretion under s 177, Iconsider it is strongly arguable that fairness requires an immigration officer to inform an applicant of new information which comes to light in the course of theofficer's investigation and which may be prejudicial to the applicant's case, if only toallow the applicant an opportunity to controvert or correct any material mistake of fact.14 This seems particularly important in circumstances where the immigration13 Chen v Minister of Immigration [1992] NZAR 261 at 9–10.14 See Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 143 and 145.officer is not required to give reasons for the officer's decision and therefore whereany mistake of fact may be impossible to identify once the decision has been finalised.[46] For completeness, I do not accept the respondent's submission that, since the Immigration Officer deposes that instruction E7.45(a)(i) was not material to hisdecision, he was not required to disclose the information regarding Mr Hussein'scriminal record (or lack thereof) to Ms Dean. The Immigration Officer made a conscious decision to seek this information from the police. Having obtained it, he was obliged to put the information to Ms Dean to permit her an opportunity to respond.[47] Ms Charmley submitted that such an obligation would be inconsistent with the term of s 177(3)(b)(ii), which provides that an immigration officer is "not under any obligation to inquire into the circumstances of, or to make any further inquiryin respect of the information provided by or in respect of, the person who is the subject of the deportation order or any person". I do not accept this submission. The ordinary meaning of the word "inquire" is "to search into, seek information or knowledge concerning, investigate, examine".15 In my view, putting potentially adverse information to a person for comment does not fall within this definition.Further, the respondent's interpretation would be inconsistent with the right tonatural justice set out in s 27(1) of the New Zealand Bill of Rights Act.[48] It would be open to Ms Dean to further amend her amended statement of claim to include breach of natural justice as a separate ground of review. In my view she would have a respectable case for judicial review on that basis.Breach of legitimate expectation[49] This ground is not pleaded in the statement of claim. Nor is it stated as a ground in the application for interim orders. Nevertheless Ms Dean submits that therespondent has breached the following "legitimate expectations" said to arise fromthe settlement agreement:15 Oxford English Dictionary (online ed, Oxford University Press, March 2017).(a) Deportation would not occur if, as a result of the investigation by the immigration officer, it was accepted that there existed a genuine relationship between Ms Dean and Mr Hussein, and if he was an eligible sponsor; and(b) The Minister's immigration instructions would be correctly followed.[50] The law in relation to legitimate expectation is set out in the Court of Appeal decision Comptroller of Customs v Terminals (NZ) Ltd:16[125] Where legitimate expectation is raised, the inquiry generally has three steps. The first is to establish the nature of the commitment made by the public authority whether by a promise or settled practice or policy. This is a question of fact to be determined by reference to all the surrounding circumstances. A promise or practice that is ambiguous in nature is unlikely to be treated as giving rise to a legitimate expectation in administrative law terms.[126] The second is to determine whether the plaintiff's reliance on thepromise or practice in question is legitimate. This involves an inquiry as to whether any such reliance was reasonable in the context in which it was given.[127] The third, and often most difficult part of the inquiry, is to decide what remedy, if any, should be provided if a legitimate expectation is established.[51] Mr Hooker relied on the letter to the Associate Minister in which Ms Dean'ssolicitor stresses and gives detail about the genuine nature of her relationship with Mr Hussein. However, there is nothing in the text of the settlement agreement that could give rise to the expectations alleged by Mr Hooker. In fact, the text of the settlement agreement suggests the opposite. Clause 6 of the agreement explicitly provides that an immigration officer will make a decision under s 177(3) of the Act. That subsection provides:(3) If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—(a) may make a decision as he or she thinks fit; and16 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 (CA).(b) in doing so, is not under any obligation, whether by implication or otherwise,—(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or(ii) to inquiry into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.[52] In particular, the provision in subs (3)(b)(i) that the immigration officer may make a decision as he or she sees fit appears to be directly inconsistent with the legitimate expectations alleged by Mr Hooker.[53] I do not consider that Ms Dean has a respectable case for judicial review on the ground of legitimate expectation.Error of law regarding international obligations[54] The amended statement of claim describes this ground of review as being thatthe Immigration Officer failed to make a decision consistent with New Zealand'sinternational obligations. However, following receipt of the parties' submissions, itis clear that Ms Dean is not alleging that the decision itself was inconsistent withNew Zealand's international obligations, but rather that the Immigration Officerfailed to comply with s 177(5) of the Act. That subsection provides:(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—(a) a description of the international obligations; and(b) the facts about the person's personal circumstances.[55] This point is not mentioned in the amended statement of claim, but does appear in the notice of interlocutory application for interim relief. If Ms Dean wishes to pursue this point further, it may be necessary to amend the statement of claim in order to clarify this ground of review.[56] Counsel draws attention to two recent High Court decisions, Dong v Chief Executive of the Ministry of Business Innovation and Employment17 and Li v The Ministry of Business Innovation and Employment.18 In each of those cases, the Court held that in order to comply with s 177(5), an Immigration Officer was required to identify the relevant facts which pertained to each of the relevant international obligations. It was not sufficient merely to list the international obligations without further comment. Mr Hooker submitted that the Immigration Officer in this case followed the same illegitimate process as the officers in Dong and Li and accordingly that his decision is susceptible to review on the ground that the Immigration Officer made an error of law.[57] The respondent addressed this cause of action on the basis set out in the amended statement of claim, namely as a challenge to the substance of the decision. Ms Charmley accordingly submitted that this cause of action is untenable for two reasons: first, that Ms Dean has failed to particularise how the decision isinconsistent with New Zealand's international obligations; and secondly, because while an immigration officer "must have regard to" any relevant internationalobligations, s 177 of the Act does not require the officer to make a decision which is consistent with those obligations.[58] The tenor of the respondent's submissions is perhaps understandable, giventhe wording of the amended statement of claim. Nevertheless it is clear from thenotice of application and Ms Dean's submissions that the present ground of review does not directly challenge the substance of the Immigration Officer's decision.Instead, it challenges the decision on procedural grounds, namely that the manner in which he recorded his decision failed to comply with the procedural requirement in s 177(5) of the Act. In light of the recent High Court decisions in Dong and Li, it must be said that Ms Dean has a respectable chance of success on this ground. I17 Dong v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 1468, [2016] 3 NZLR 357.18 Li v The Ministry of Business Innovation and Employment [2016] NZHC 1788.acknowledge that those cases19 are currently the subject of an appeal, as a result of which they may well be overturned. However for the present, those decisions standand Ms Dean's chances of success must be evaluated accordingly.Unreasonableness[59] The final ground of review in the amended statement of claim is that the decision of the Immigration Officer is unreasonable. The amended statement of claim lists the following particulars:(i) The Plaintiff and Mr Hussein have been living together in a genuine and stable relationship since 2009 and have completed a cultural/religious marriage;(ii) The Plaintiff is no longer in communication with her family in Fiji and has been disowned;(iii) The Plaintiff has not had any communication with her family in Fiji since 2011;(iv) Expecting Mr Hussein to return to Fiji with the Plaintiff would force him to be separated from his New Zealand citizen children.[60] The respondent notes that an Immigration Officer has an absolute discretion under s 177 and accordingly submits that the scope for judicial review on grounds of unreasonableness is severely limited. Counsel particularly referred to the recent decision of the Court of Appeal in Zhang v The Associate Minister of Immigration, inwhich the Court held that "the definition of absolute discretion gives bleak prospectsfor judicial review unless Wednesbury unreasonableness can be identified."20 Ms Charmley also noted the following comments made by the Court of Appeal in Singh v Chief Executive, Ministry of Business, Innovation and Employment:21But, within [the immigration officer's] discretionary power, he has decided that the statutory requirement to ensure the integrity of New Zealand's19 A third case, Fang v Ministry of Business, Innovation and Employment [2016] NZHC 1630, was heard at the same time. In that case, the High Court considered the same issue but reached the opposite conclusion; in other words that the requirements listed in s 177(5) would be met if an immigration officer merely listed the relevant international obligations, provided that the relevant facts were recorded elsewhere.20 Zhang v The Associate Minister of Immigration [2016] NZHC 361; [2016] NZAR 1222 at [14]. See also Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 at [44] and [46]; Chief Executive of the Ministry of Business, Innovation and Employment, above n 9, at [30]–[32].21 Singh v Chief Executive, Ministry of Business, Innovation and Employment, above n 20, at [66].immigration system – what may generally be termed "the national interest" –must prevail. A Court cannot inquire further. In these circumstances, applying the Wednesbury approach, it cannot be said "there could be only one answer", namely that the [immigration officer] should have cancelledthe deportation orders. We are satisfied that the [immigration officer] reached a decision that was reasonably open to him on all the facts andhaving regard to New Zealand's international obligations.[61] This is not a case where "there could be only one answer". As in Singh, it appears that the Immigration Officer in this case reached a decision that wasreasonably open to him on all the facts and having regard to New Zealand'sinternational obligations. At this stage, I do not consider that Ms Dean has a respectable case for judicial review on the ground of unreasonableness.Result[62] I am satisfied that the adverse consequences of deportation before the judicialreview application is determined are such that it is necessary to preserve Ms Dean'sposition in the interim.[63] I am also satisfied that Ms Dean has a respectable case for judicial review on the bases of mistake of fact; breach of natural justice; and error of law.[64] I accordingly exercise my discretion to make an order restraining the respondent from deporting Ms Dean from New Zealand until such time as this Courthears and determines Ms Dean's application for judicial review of the Immigration Officer's decision pursuant to s 177 of the Act.Costs[65] The applicant is entitled to costs. Counsel are agreed that costs should be awarded on a 2B basis.[66] Ms Dean having succeeded on her application, I do not make a costs order inrelation to the adjournment of the 2 February 2017 hearing (costs having been reserved).___________________________________Gordon J