KAUR v MBIE [2016] NZHC 2595

KAUR v MBIE [2016] NZHC 2595

The privative clauses in ss 186(3) and 187(8) of the Immigration Act 2009 clearly exclude judicial review of decisions refusing or failing to grant residence or temporary entry visas to persons outside New Zealand; the challenged decision was made under ss 72 and 76 and therefore falls within those privative clauses, so the judicial review proceeding is precluded; although there was an error in failing to give reasons under s 76, that error is caught by the privative clauses; s 11(c)(i) is not inconsistent with s 27 of NZBORA.

Citation
[2016] NZHC 2595
Parties
Applicant: Giyan Kaur; First Respondent: Ministry of Business, Innovation and Employment; Second Respondent: Associate Minister of Immigration
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 October 2016
Procedural Posture
Judicial Review (immigration) / Final Judgment (proceeding Dismissed)
Outcome
Applicant's judicial review proceeding dismissed; application for declaratory NZBORA relief dismissed; costs awarded to respondents on a 2B basis
Legal Topics
Privative Clauses, Judicial Review, Delegation of Power, Natural Justice, Ministerial Discretion, NZBORA Inconsistency, Residence and Temporary Entry Visas
Immigration Law Administrative Law Constitutional Law Human Rights Law Privative Clauses Judicial Review Delegation of Power Natural Justice +3 more

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Parties

Giyan Kaur

Applicant

Ministry of Business, Innovation and Employment

First Respondent

Associate Minister of Immigration

Second Respondent

Procedural Posture

Judicial Review (immigration) / Final Judgment (proceeding Dismissed)

Legal Issues

  1. 1 Whether ss 186(3) and 187(8) of the Immigration Act 2009 oust judicial review for refusals of residence/temporary entry visas to persons outside New Zealand
  2. 2 Whether the challenged decision was a Ministerial special direction under s 378 or a decision under ss 72 and 76
  3. 3 Whether delegation to Mr Hubscher was lawful and whether he unlawfully confined his discretion

Ratio Decidendi

The privative clauses in ss 186(3) and 187(8) of the Immigration Act 2009 clearly exclude judicial review of decisions refusing or failing to grant residence or temporary entry visas to persons outside New Zealand; the challenged decision was made under ss 72 and 76 and therefore falls within those privative clauses, so the judicial review proceeding is precluded; although there was an error in failing to give reasons under s 76, that error is caught by the privative clauses; s 11(c)(i) is not inconsistent with s 27 of NZBORA.

Court Disposition

Applicant's judicial review proceeding dismissed; application for declaratory NZBORA relief dismissed; costs awarded to respondents on a 2B basis

Orders

  • Proceeding dismissed
  • Application for declaratory relief under NZBORA dismissed