H (SC 104/2020) v MINISTER OF IMMIGRATION [2022] NZSC 27
Instruction A5.30 can be interpreted to require a rational connection between an applicant's association with an organisation and the applicant's character; on that interpretation the instruction was not unreasonable, unfair or ultra vires, and having regard to the Court's formulation of that interpretation and...
Source-derived case information.
- Citation
- [2022] NZSC 27
- Parties
- Appellant: H (SC 104/2020); Respondent: Minister of Immigration
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 25 March 2022
- Procedural Posture
- Immigration Appeal / Final Judgment (supreme Court)
- Outcome
- Appeal dismissed; no order for costs in this Court; costs in lower courts to be dealt with by those courts
- Legal Topics
- Interpretation of Immigration Instructions, Character Assessment for Visas, Judicial Review, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
H (SC 104/2020)
Appellant
Minister of Immigration
Respondent
Procedural Posture
Immigration Appeal / Final Judgment (supreme Court)
Legal Issues
- 1 Whether instruction A5.30 of the Immigration New Zealand Operational Manual required a rational connection between an applicant's association with an organisation and the applicant's character
- 2 Whether instruction A5.30 was unreasonable, unfair or ultra vires
- 3 Appropriate costs outcome in light of the Court's interpretation
Ratio Decidendi
Instruction A5.30 can be interpreted to require a rational connection between an applicant's association with an organisation and the applicant's character; on that interpretation the instruction was not unreasonable, unfair or ultra vires, and having regard to the Court's formulation of that interpretation and identified drafting flaws, costs in this Court should lie where they fall.
Court Disposition
Appeal dismissed; no order for costs in this Court; costs in lower courts to be dealt with by those courts
Orders
- No order for costs in this Court; costs to lie where they fall
- Costs in the courts below to be dealt with by those courts in light of this judgment
Full Case Text
Judgment text and source record
1 paragraphs
H (SC 104/2020) v MINISTER OF IMMIGRATION [2022] NZSC 27 [25 March 2022]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT2009. SEEhttp://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440836.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 104/2020[2022] NZSC 27BETWEEN H (SC 104/2020)AppellantAND MINISTER OF IMMIGRATIONRespondentHearing: 20 July 2021Court: Winkelmann CJ, William Young, Glazebrook, O'Regan andArnold JJCounsel: R E Harrison QC and M Lee for AppellantR A Kirkness and E G R Dowse for RespondentJudgment: 25 March 2022JUDGMENT OF THE COURTA There is no order for costs.B Costs in the courts below should be dealt with by thosecourts.____________________________________________________________________REASONSIntroduction[1] The majority's judgment of 23 December 2021 dismissed Mr H's appeal to thisCourt and reserved costs.1 The majority found that the challenged instruction,1 H (SC 104/2020) v Minister of Immigration [2021] NZSC 192 at [37]–[38].instruction A5.30 of the Immigration New Zealand Operational Manual, could beinterpreted as requiring a rational connection between a residence class visaapplicant's association with an organisation said to have committed gross human rightsabuses and their character. On that basis, it was not unreasonable, unfair or ultra vires.2Submissions[2] The Minister of Immigration submits that costs should follow the event in thenormal manner but seeks a reduced costs award of $12,500. No disbursements aresought. The reduction recognises the fact that Mr H succeeded in obtaining leave overthe Minister's opposition at an oral leave hearing and that, although the instructionwas held to be valid, this was through an interpretation not initially advanced by theMinister in written submissions.[3] Mr H submits that costs should lie where they fall. In his submission the formaloutcome does not fairly reflect either the reality or the intrinsic merits of the situationor the overall litigation history between these parties. He submits that ImmigrationNew Zealand has always strongly argued for a broad interpretation of the challengedinstruction. This broad interpretation was rejected by this Court. Further, the majorityjudgment identified drafting flaws and suggested "that the instruction should beredrafted to make it explicit that there has to be a rational connection between theassociation with the organisation and the character of an applicant".3Our assessment[4] We accept Mr H's submission that costs should lie where they fall. Theinterpretation of the instruction leading to the dismissal of the appeal was onesuggested by the Court. We agree it is relevant that the Court suggested draftingchanges to make the position clear.Result[5] We make no order for costs, which are to lie where they fall.2 At [32].3 At [33].[6] Costs in the courts below should be dealt with by those courts in light of ourjudgment in the appeal and this costs judgment.Solicitors:Mark Lee Lawyers, Auckland for AppellantCrown Law Office, Wellington for Respondent