H v THE MINISTER OF IMMIGRATION [2020] NZCA 562

H v THE MINISTER OF IMMIGRATION [2020] NZCA 562 [13 November 2020]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 IMMIGRATIONACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA629/2019[2020] NZCA 562BETWEEN HAppellantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 9 July 2020Court: Kós P, Brown and Courtney JJCounsel: R E Harrison QC for AppellantR A Kirkness and EGR Dowse for RespondentJudgment: 13 November 2020 at 11 amJUDGMENT OF THE COURTA The appeal is dismissed.B The respondent is entitled to costs for a standard appeal on a band A basis,plus usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] Instruction A5.30 of the Immigration New Zealand (INZ) Operational Manual(the Manual) provides that applicants who would pose a risk to New Zealand'sinternational reputation will not normally be granted a residence class visa (RCV).Applicants are considered to pose a risk to New Zealand's international reputation ifthey have or have had an association with, membership of, or involvement with, anygovernment, regime, group or agency that has (among other things) committed grosshuman rights abuses. The question in this appeal is whether instruction A5.30 isinvalid.[2] Mr H, a Chinese citizen, arrived in New Zealand in 1996 on a visitor visa.He was an officer of the Chinese Public Security Bureau (PSB). For present purposesit was uncontested that the PSB is an organisation that has committed gross humanrights abuses. Mr H had been sent to New Zealand to conduct espionage againstTaiwanese nationals living here. By 1997, however, Mr H decided that he preferredNew Zealand's democratic way of life and abandoned his mission.[3] Mr H applied, unsuccessfully, for refugee status without disclosing hisinvolvement with the PSB. He remained in New Zealand unlawfully. In 2007 hemade a second application, acknowledging his involvement with the PSB but claimingto be at real risk of persecution if he returned to China, having abandoned his officialduties. The application was initially refused but ultimately granted on the basis thatMr H was a refugee sur place as a result of the media reporting information likely toidentify him.[4] Notwithstanding his refugee status, Mr H has been unable to obtain a RCV inNew Zealand. As a result, he lives a rather uncertain life, relying on temporary workpermits and unable to obtain a passport for ease of travel out of New Zealand.[5] In 2009 Mr H's application for a RCV was refused on character groundsbecause of his involvement with the PSB. The decision was upheld by the ResidenceReview Board (RRB) and the High Court.1 The application was referred forministerial consideration but declined.[6] In 2014 Mr H applied again and was refused for the same reason. He appealedsuccessfully to the Immigration and Protection Tribunal (IPT) and the application wasreferred back to INZ for consideration. INZ refused the application on the sameground. Mr H appealed to the IPT, which upheld the INZ decision but considered thatMr H's special circumstances warranted ministerial consideration. The matter wasreferred to the Minister of Immigration (the Minister) but declined.[7] As well as pursuing his appeal rights in respect of the second application, Mr Hmade an application for judicial review which was dismissed by Davison J.2 This isthe judgment under appeal.Issues on appeal[8] In the High Court, Mr H raised four grounds of challenge to the legality ofA5.30, all of which the Judge rejected. Mr Harrison QC, for Mr H, argues thatthe Judge was wrong in relation to each of his conclusions. The questions that ariseare whether A5.30 is invalid because:(a) it is not a test of character when the purpose of A5.30 is to establish acharacter test;(b) it impermissibly and unfairly deems a person to whom it applies to posea risk to New Zealand's international reputation, even if there is, in fact,no such risk;(c) it is too vague and uncertain to have been contemplated by Parliament;(d) the requirement under A5.30.1(b) that an immigration officer must besatisfied beyond doubt that the applicant's involvement with thegovernment, regime, group or agency was minimal or remote before1 AB v Chief Executive of the Department of Labour [2011] 3 NZLR 60 (HC).2 H v Minister of Immigration [2019] NZHC 2870 [High Court decision].exercising the discretion to grant a RCV imposed an unfair onus ofproof on the applicant; and(e) it was certified without consideration of the position and rights ofrefugees.Statutory schemeThe Immigration Act[9] The purpose of the Immigration Act 2009 (the Act) is "to manage immigrationin a way that balances the national interest, as determined by the Crown, and the rightsof individuals".3 To achieve this purpose the Act establishes an immigration systemthat has specified features including, relevantly, one that:4(b) provides for the development of immigration instructions (which setrules and criteria for the grant of visas and entry permission) to meetobjectives determined by the Minister, (g) supports the settlement of migrants, refugees, and protectedpersons; [10] Section 22 confers on the Minister the power to certify immigrationinstructions relating to a variety of matters:22 Immigration instructions(1) The Minister may certify immigration instructions relating to—(a) residence class visas, temporary entry class visas and transitvisas: (5) The kinds of matters that may constitute immigration instructions forthe purposes of this Act are as follows:(a) any general or specific objectives of immigration policy:(b) any rules or criteria for determining the eligibility of a personfor the grant of a visa of any class or type, 3 Immigration Act 2009, s 3(1).4 Section 3(2)(b) and (g).(c) any indicators, attributes, or other relevant information ormatters that may or must be taken into account in assessing aperson's eligibility for a visa or entry permission:(f) any matters relevant to balancing individual eligibility for avisa or entry permission against the overall objectives orrequirements of immigration instructions:(i) the nature and extent of the discretion that immigrationofficers may exercise in making a decision on any visa.(6) Without limiting subsection (5), any rules or criteria relating toeligibility for a visa or entry permission—(a) may include matters relating to—(ii) character:(8) Immigration instructions certified by the Minister under subsection(1)—(a) are statements of government policy:[11] Section 45 provides that there is no entitlement to a visa as of right and that thegrant of a visa is a matter of discretion for the Minister or an immigration officer:45 Grant of visa generally matter of discretion(1) No person is entitled to a visa as of right.(2) In determining a visa application, the Minister or, subject to anyspecial direction, an immigration officer, in his or her discretion,—(a) may grant or refuse to grant a visa; and(b) regardless of the class and type of visa that was applied for,may grant a visa of any class and type; and(c) may impose conditions on the visa granted, or vary or waiveconditions that would otherwise apply to it.(3) This section applies unless any provision in this Act expresslyprovides otherwise.[12] There are specific provisions for RCVs under s 72:72 Decisions on applications for residence class visa(1) Where the Minister or an immigration officer makes any decision inrelation to an application for a residence class visa, that decision mustbe made in terms of the residence instructions applicable at the timethe application was made and any discretion exercised must be interms of those instructions.(2) No application for a residence class visa that is received by animmigration officer may be referred to the Minister for decision atfirst instance, unless the Minister gives a special direction to thateffect.(3) Nothing in this section prevents the Minister, in his or her absolutediscretion, from making any decision to grant a residence class visaas an exception to residence instructions in any particular case.[13] The reference to "residence instructions" in s 72(1) and (3) leads back tothe immigration instructions certified under s 22 because "residence instructions" aredefined as "immigration instructions certified under s 22 that relate to the grant ofresidence class visas".5Section A5 of the immigration instructions[14] The Manual, which is published online, contains the immigration instructionscertified pursuant to s 22.6 Section A5 of the Manual sets out instructions relatingspecifically to the character requirements to be satisfied by applicants for residence ortemporary entry visas.[15] Instruction A5.1 provides that:Applicants for all visas must:(a) be of good character; and(b) not pose a potential security risk.If any person included in the application fails to meet the necessary characterrequirements and the character requirements are not waived, the applicationmay be declined.5 Section 4.6 As required by s 25(1).[16] Instruction A5.15 identifies "[a]pplicants not considered to be of goodcharacter for a residence class visa":Applicants not considered to be of good character for a residence class visaare classified as follows:(a) applicants who will not be granted a residence class visa (see A5.20);or(b) applicants who will not normally be granted a residence class visa(see A5.25) unless a character waiver is granted; or(c) applicants whose applications for a residence class visa will usuallybe deferred (see A5.35).(Emphasis in original.)[17] Instruction A5.20, which applies to applicants in the first category who are noteligible for a RCV at all, captures those who fall within ss 15 or 16 of the Act.Section 15 covers those who have certain criminal convictions, or have been subjectto a period of prohibition on entry, or have been removed or deported fromNew Zealand, or have been excluded from New Zealand, or have been removed ordeported from another country. Section 16 covers any person who the Minister hasreason to believe is likely to commit an imprisonable offence in New Zealand, or whois or is likely to be a threat or risk to security, the public order or the public interest, orwho is a member of a terrorist entity.[18] Instruction A5.25, which applies to those in the second category who willnormally not be granted a RCV unless granted a character waiver, captures thoseconvicted of a variety of offences,7 or who have made false statements or given falseor misleading information in support of a visa application, or who have belonged tocertain kinds of organisations. Instruction A5.25 does not apply to Mr H but it isrelevant to the interpretation of A5.30. Relevantly, A5.25 provides that:Applicants who will not normally be granted a residence class visa, unlessgranted a character waiver (see A5.25.1(b) below), include any person whohas been:7 Including drugs, dishonesty and sexual and violent offending.j. at any time in a public speech or public comments, or publicbroadcast, or in publicly distributing or publishing a document;i. argue[d] that one race or colour is inherently inferior orsuperior to another race or colour; orii. used language intended to encourage hostility or ill willagainst any person or group of persons on the basis of colour,race or ethnic or national origins of that person or group; ork. has been, or is, a member of (or adheres or has adhered to) anyorganisation or group of people which (at the time of the person'smembership or adherence) had objectives or principles based on:i. hostility against people or groups of people on the basis ofcolour, race, or ethnic or national origins; orii. an assumption that persons of a particular race or colour areinherently inferior or superior to other races or colours Note:- When considering whether or not an applicant has committed an act thatcomes under A5.25 (i), (j) or (k) or (l) above, an immigration officershould establish whether, on the balance of probabilities, it is more likelythan not that the applicant committed such an act.A5.25.1 Action(a) An immigration officer must not automatically decline residence classvisa applications on character grounds.(b) An immigration officer must consider the surrounding circumstancesof the application to decide whether or not they are compelling enoughto justify waiving the good character requirement (c) In the case of a person covered by A5.25(j) and (k) above, officersmust consider, in addition to any relevant matters listed in A5.25.1(b)above, the following:(i) the length of time since the applicant publicly expressed theviews, or was a member or adherent of the group ororganisation; and(ii) whether the applicant still holds the views or still belongs oradheres to the group or organisation, and any evidence of achange in views; and(iii) the extent to which the applicant was involved in publishingor distributing the views, or the extent of involvement in thegroup or organisation; and(iv) the nature of the views, or the nature of the group ororganisation.[19] Although not referred to in A5.15, A5.30 (the instruction under challenge) alsoidentifies applicants who will not normally be granted a RCV. Relevantly, theseapplicants include any person who has had "an association with, membership of, orinvolvement with, any government, regime, group or agency" that has committedgross human rights abuses:A5.30 Applicants normally ineligible for a residence class visaa. Applicants will not normally be granted a residence class visa, unless inaccordance with A5.30.1 below, where an applicant would pose a risk toNew Zealand's international reputation.b. In particular (but not exclusively), applicants are considered to pose a riskto New Zealand's international reputation if they have or have had anassociation with, membership of, or involvement with, any government,regime, group or agency that has advocated or committed war crimes,crimes against humanity and/or other gross human rights abuses.c. A5.30(b) does not mean that an applicant cannot be considered to pose arisk to New Zealand's international reputation for any other reason.d. Applications to which this provision applies must be determined inaccordance with A5.30.1 below.A5.30.1 Actiona. An immigration officer may decline residence class visa applicationsunder A5.30 on character grounds. In determining whether to decline anapplication under A5.30 the surrounding circumstances of the application,including any family connections the applicant might have toNew Zealand, are to be disregarded for the purposes of the decision.b. Where A5.30(b) applies, an immigration officer may consider the natureand extent of the applicant's association with, membership of, orinvolvement with, the government, regime, group or agency. If theimmigration officer is satisfied beyond doubt that the nature and extent ofthe association, membership or involvement was minimal or remote thenthe officer may grant a residence class visa to the applicant provided allother Instructions requirements are met.c. An immigration officer must make a decision in compliance with fairnessand natural justice requirements (see A1).d. An immigration officer must record the reasons for their decision on thisaspect of the character requirements.e. Any decision to determine the application in accordance with A5.30 mustbe made by an immigration officer with Schedule 1-3 delegations.[20] A5.30 did not appear in the immigration instructions until 2005. Itsintroduction was prompted by concerns following the entry into New Zealand of Iraqinationals with ties to Saddam Hussein's regime. INZ prepared a paper for the Ministerand the Prime Minister in May 2005 entitled "Immigration Applicants who may posea Risk to New Zealand's International Reputation". It discussed the need to limit therisk of individuals who were or had been associated with governments, regimes,groups or agencies that had committed human rights abuses gaining entry toNew Zealand; the presence of such persons was viewed as a potential risk toNew Zealand's international reputation.[21] A second paper entitled "Amendments to Character Requirements inGovernment Residence Policy and Government Immigration Policy" was prepared.It proposed new character requirements be developed for immigration policy relatingto high risk applications. The paper noted that the current policy did not allowimmigration officers to decline an application from a person connected to a regimethat had been involved in war crimes, crimes against humanity and/or other grosshuman rights abuses where allowing entry could damage New Zealand's internationalreputation, except where that person had criminal convictions or pendinginvestigations. Such cases had to be dealt with as involving persons being "not ofgood character". It was therefore proposed to strengthen the character requirementsof the existing policy to make specific reference to the ability to decline applicationsby those whose entry to New Zealand would pose a risk to New Zealand's internationalreputation.[22] The proposed amendment to the policy became immigration instruction A5.26,which was later renumbered as the current A5.30.8Issue 1: is A5.30 a character test?[23] As noted, immigration instructions certified under s 22 may include mattersrelating to character. It is common ground that A5.30 was developed specifically to8 The two versions are materially the same.strengthen the existing character requirements of the immigration instructions.In certifying A5.30 the Minister was required to exercise his power in accordance withs 22 and for the purposes of the Act.9 But Mr Harrison contends that A5.30 is not onany rational view a test of an individual's character and is therefore not authorised bys 22.[24] Mr Harrison's argument is that it is implicit in the statutory scheme thatdisqualifying deeds or character traits be personal to the applicant; for this he relies onthe ordinary meaning of character as being personal.10 But A5.30 does not have thateffect because it requires an applicant who has already satisfied the requirements ofA5.1 (i.e. being "of good character" and "not [posing] a potential security risk") toclear the further hurdle of not posing a risk to New Zealand's international reputation.Moreover, the scheme of the Act is one of dedicated outright prohibitions on eligibilityof undesirable would-be immigrants or residents on specified, plainly justifiablegrounds. Thus, he argues, A5.30 represents an unlawful attempt to create a newexclusionary criterion that is inconsistent with and not expressly or impliedlyauthorised by the Act.[25] In rejecting these arguments, the Judge considered that A5.30 did establish atest that relates to and informs an assessment of individual character concluding that:11[75] Adopting a sensible construction of A5.30, it is clear that its purposeis to give INZ discretion to decline an application for a residence visa whereit considers that having regard to the character of the applicant, granting thema resident visa would pose a risk to New Zealand's international reputation.[80] Furthermore, I do not accept the submission that a person's more thanminimal or remote involvement in, or association with or membership of aregime, group, or agency that has advocated or committed gross human rightsabuses, has no bearing on the issue of their character. In my view, any suchassociation directly informs an assessment of the character of those personsinvolved with such an organisation. By virtue of their association ormembership of such an organisation it is reasonable to assume that they willhave necessarily involved and aligned themselves with its philosophies andpractices to some degree at least, irrespective of their particular role andresponsibilities in the organisation. Unless their involvement with9 Applying Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at[50].10 Shorter Oxford English Dictionary (5th ed, Oxford University Press, Oxford, 2002) vol 1 at 381.11 High Court decision, above n 2.the organisation or group was minimal or remote, it rationally reflects on theircharacter [26] Mr Harrison argues that the Judge's conclusion ignored the fact that characterand other risk factors were already directly and comprehensively addressed elsewherein the immigration instructions. Nor does Mr Harrison accept the Judge's conclusionthat A5.30 confers a discretion on INZ to decline an application where there was a riskto New Zealand's international reputation; he argues that, to the contrary, A5.30 treatedthe normal rule as being that such an applicant would not be granted residence(regardless of his or her actual character).[27] The "sensible construction" adopted by the Judge is that explained by thisCourt in Patel v Chief Executive of the Department of Labour:12A policy document, such as the one in issue, is not to be construed withthe strictness which might be regarded as appropriate to the interpretation ofa statute or statutory instrument. It is a working document providing guidanceto immigration officials and to persons interested in immigrating toNew Zealand or sponsoring the immigration of a person to this country.It must be construed sensibly according to the purpose of the policy andthe natural meaning of the language in the context in which it is employed,that is, as part of a comprehensive and coherent scheme governingimmigration into this country.[28] Mr Harrison criticises this approach as being "less strict" than the orthodoxapproach to statutory interpretation, given that the language and operational effect ofthe challenged provision is clear. He relies, as the preferable approach, onChamberlain v Minister of Health, which related to a government policy effectedunder the New Zealand Public Health and Disability Act 2000.13 This Court endorsedthe approach taken in the High Court:[41] The Policy is the source of [the first Appellant's] entitlement toreceive funded family care. However, in restricting the scope of the Minister'sstatutory power to enter funding agreements, the Policy is an instrument withdirect force of law. We endorse Palmer J's general approach to itsinterpretation in these terms:[50] ... The [Policy] is a legal instrument under Part 4A of the Act.Accordingly, interpretation of the [Policy], and of those terms, should beapproached using the usual legal principles of interpretation of text in lightof purpose. Their interpretation must be consistent with the purposes of Part4A of the Act, under which the [Policy] is promulgated, consistent with usual12 Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.13 Chamberlain v Minister of Health [2018] NZCA 8, [2018] 2 NZLR 771.principles of administrative law. And their interpretation must be consistentwith the rights and freedoms in the [New Zealand] Bill of Rights [Act], asprovided by s 6.(Footnote omitted.)[29] Although the opening words of the statement in Patel suggest a less strictapproach, read as a whole, it can be seen that there is in fact no real difference betweenthe two approaches. Both interpret the subject policy by reference to the text read inlight of the purpose of the policy. The same outcome would result in this case.[30] We turn to Mr Harrison's argument that instruction A5.30 is not concerned withpersonal character. It is correct that, in ordinary parlance, character is understood tomean traits or characteristics personal to an individual. But in A5.30 the word is usedin a wider sense and is not limited to internal characteristics. It encompasses anindividual's external circumstances. This is obvious from the requirement in A5.1 thatan applicant "not pose a potential security risk". A security risk is capable of arisingnot only from the inherent personal characteristics of an individual but also as a resultof that individual's status or social or occupational connections. It is not controversialto say that a person of otherwise good character may nevertheless pose a security risk.[31] Secondly, the fact that instruction A5.30 encompasses those who merely posea risk is entirely consistent with the scheme of section A5 of the Manual, which is allabout risk. A5.30 is in fact complementary to A5.25(j) and (k), and performs the samefunction as A5.25 by providing for another class of people not normally eligible for aRCV. The only contra-indication to that interpretation is the fact that at A5.15(b) thereis a reference only to A5.25. But this undoubtedly reflects a failure to amend A5.15to add a reference to A5.30 when A5.30 (then A5.26) was added in 2005. A5.25recognises that a person's membership of any organisation may speak to his or hercharacter. A5.30 expresses exactly the same concept. The only difference is the natureof the organisation; A5.30 is concerned with much more serious forms of conduct butin principle there is no difference between the purpose and the effect of A5.25 andA5.30. Viewed in this way, it cannot be said that persons who fall to be consideredunder A5.30 have already cleared the good character test. They have merely satisfiedsome of the tests.[32] We do not accept that the phrase "where an applicant would pose a risk toNew Zealand's international reputation" precludes A5.30 being a character test. In thecontext of the Act character traits are relevant because of their potential effect onNew Zealand society (i.e. risk). Some risks are obvious, others less so. The personwith tendencies towards violence poses a physical risk to New Zealanders but there isno need to expressly state that; the existence of previous convictions for violence isall that is needed. The espousing of racist views has the capacity to underminethe fabric of New Zealand's multi-racial society, but there is no need to say so; it issufficient to refer to membership of organisations with racist objectives. And likewise,the person with a history of association with an agency involved in human rightsabuses undermines New Zealand's ability to conduct itself internationally as it wouldwish.[33] Once it is accepted, as it must be, that association with an organisation speaksto character, it must also be accepted that A5.30 is a character test. The fact that therelevant risk associated with that aspect of character is explicitly stated at the outsetdoes not detract from the fact that the test is one of character. As such, it falls squarelywithin the ambit of s 22.Issue 2: the deeming effect of A5.30(b)[34] Mr Harrison submits that the wording of A5.30(b) has the effect of deeming anapplicant who falls within its scope to pose a risk to New Zealand's internationalreputation (with the consequence that the applicant would not normally be granteda RCV). This interpretation was not resisted by the Crown and we think it is correct.Mr Harrison argues, however, that the deeming effect of A5.30(b) is outside the scopeof s 22 because it is contrary to the statutory scheme.[35] The purpose of the statutory scheme is to manage immigration by balancingthe national interest with the rights of individuals. Mr Harrison submits thatthe national interest in New Zealand's international reputation is relatively lowcompared with public safety and national security, which are already protected byother provisions such as ss 15–17 of the Act. Those sections provide for the exclusionor removal of individuals on grounds of past deeds or threats to security, public orderor safety. These significant areas of interest are not furthered by creating a test ofeligibility based on risk to international reputation. This is all the more so when lookedat against the interests of an individual applicant such as Mr H who, by virtue of hisstatus as a refugee, has the right to remain in New Zealand.[36] The Judge held that there is nothing in the Act that prohibits the Minister fromcertifying an immigration instruction that has a deeming effect.14 He did not discussthe nature of the national interest with which A5.30 is concerned. Rather, he regardedthe creation of a rule with a deeming effect as within the scope of s 22 and acceptable,having regard to practical considerations:[83] Once it is determined that an applicant has had involvement in orassociation with an organisation considered responsible for the commission ofgross abuses of human rights, the use of a deeming provision that renders themnormally ineligible for a residence visa recognises the practical difficultiesconfronting INZ of obtaining reliable information as to the specific role andactions of the applicant during the time when they were a member of thatorganisation. The obtaining of reliable information regarding the specificactivities of any individual within such an organisation is inherentlyproblematic having regard to the nature of the activities of any suchorganisation. In this context it is in my view therefore reasonable and rationalfor an immigration instruction to provide that involvement or membership ofsuch an organisation will normally render an applicant ineligible for aresidence visa, with the qualification that where an immigration officer iswholly satisfied that the applicant's involvement was minor or remote, theyhave a discretion to grant the application.[37] Nor did the Judge consider A5.30(b) to be unreasonable, disproportionate orunfair, observing that:[85] The impact on New Zealand's international reputation of suchpersons being granted residence visas is a legitimate risk, and theidentification of that risk and the establishment of criteria which identify thosewho pose that risk is a matter that falls within the Crown's expertise.[86] Furthermore, A5.30.1(b) provides an exception to the deeming effectof A5.30(b) and provides an immigration officer with the ability to grant aresidence visa to an applicant otherwise caught by the deeming provisionwhere the immigration officer is satisfied that the applicant's association wasminor or remote. If the immigration officer is not to satisfied, then I do notsee how it can be said to be unfair that Immigration New Zealand retains toitself the entitlement to refuse a residence visa to that person, considering theimpact their prior association could have on New Zealand's internationalreputation as recognising and upholding principles of universal human rights.14 High Court decision, above n 2, at [82].[38] We perceive Mr Harrison's criticism of the Judge's approach to be thathis Honour took the power under s 22(5) at face value, i.e. that the Minister wasempowered to certify immigration instructions that relate to general and specificobjectives on immigration policy, and that since one of the specific objectives was toensure that those associated with foreign organisations implicated in the commissionof gross human rights abuses do not obtain RCVs, A5.30(b) was lawful. ButMr Harrison's argument rests on the overarching purpose of the Act to balance thecompeting interests of the State and the individual.[39] Consideration of this issue must start on the basis of our conclusion that A5 isconcerned with risk and justifiably casts a wider net than internal personal charactertraits. Almost invariably, the assessment of suitability for a RCV will turn on aprospective assessment of an applicant's place in New Zealand society. Whatconstitutes the national interest is to be determined by the Crown under s 3(1) ofthe Act. It was not suggested that New Zealand's international reputation is not amatter of national interest. Mr Harrison's suggestion that this is a lesser interest thanmatters of security and public safety may be a reasonable submission to make, but thebalance between that interest and the interest of an individual applicant caught byA5.30 can only be properly determined by reference to A5.30 as a whole.The deeming effect of A5.30(b) is not to be viewed in isolation but in the context ofthe mitigating effect of the discretion available under A5.30.1.[40] This is effectively the approach the Judge took and we agree with it.The deeming provision is not, in itself, objectionable. We note, for example, thatA5.25 is similarly framed. It allows a measure of certainty where establishing thefacts may be difficult. But the discretion allowed by A5.30.1 is an effective counter.Nor, as Mr Harrison argues, does the deeming effect ignore personal circumstancesand character. Different aspects of character are addressed in each of A5.20, A5.25and A5.30. Involvement with an organisation that has committed human rights abusesis simply one aspect and, in our view, a legitimate one.Issue 3: is A5.30 unacceptably vague or uncertain?[41] A statutory power to make delegated legislation does not permit a rule to bemade that is so vague, uncertain or ambiguous that it cannot be given an ascertainableand reasonable meaning. Parliament cannot have meant the rule making power wouldcover such a rule.15[42] Mr Harrison submits that the words in A5.30(b) "have or have had anassociation with, membership of, or involvement with, any government, regime, groupor agency that has advocated or committed war crimes, crimes against humanityand/or other gross human rights abuses" are too vague and uncertain to create a lawfulrule.[43] The Judge dealt with this issue as follows:16In my view the meaning of those words is clear, and they have been drafted toensure that any, other than minor, involvement by an applicant in anorganisation such as described in A5.30(b) will result in them normally beingineligible for a residence class visa.[44] We do not agree with that reasoning . In our view, the words do not connoteany particular degree of involvement, whether substantial or minor (other than purelyde minimis); degree is left to the discretion under A5.30.1(b). Mr Harrison's complaintis simply that the words are so broad that they would capture all manner of connectionand all manner of organisations.[45] We agree that the wording of A5.30(b) is very wide. But it is comparable tothe wording in A5.25(k) and we do not consider that it is so vague or uncertain as notto have been within Parliament's contemplation. To the contrary, the fact that it iscomparable with A5.25(k) indicates that it is precisely what was intended. We thinkthe Judge was right to conclude that the wording reflects an element of practicality; itis a matter of common knowledge that organisations, including those that advocateand commit human rights abuses, exist in a wide variety of forms, frequently with noformal (as would be understood in New Zealand) structure or foundation. Having15 Transport Ministry v Alexander [1978] 1 NZLR 306 (CA) at 311; and Cropp v Judicial Committee[2008] NZSC 46, [2008] 3 NZLR 774 at [40].16 High Court decision, above n 2, at [87].regard to the circumstances that led to the addition of A5.30 we conclude that thebreadth of A5.30(b) was contemplated as being within the scope of immigrationinstructions certified under s 22.[46] Nor do we consider that the wording is so broad as to be incapable ofdetermination by an immigration officer. The words are all capable of beingunderstood by reference to their plain and ordinary meaning and applied byan immigration officer to determine whether A5.30(b) is engaged.Issue 4: the requirement for the immigration officer to be "satisfied beyonddoubt"[47] Mr Harrison submits that the requirement in A5.30.1(b) that an immigrationofficer must be "satisfied beyond doubt" that the nature and extent of the applicant'sassociation, membership or involvement with the group in question was minimal orremote creates an onus of proof on the applicant, and a standard that is at best uncertainand at worst higher than the criminal standard of beyond reasonable doubt. The effectis unreasonable and disproportionate.[48] Before considering this ground, we address a point that arose in argument: howshould the phrase "was minimal or remote" be read?17 Mr Kirkness, for the Minister,said that in relation to the question of remoteness, 'was' should be read as 'is'.We agree. The nature and extent of an association will usually be assessed byreference to the past. But logically, the assessment of remoteness must be undertakenfrom the standpoint of the present. This means that the wording of A5.30(1)(b) isproblematic whichever word is used; whilst the provision is obviously directedtowards whether the nature and extent of the association "was" minimal, in relation toremoteness, the question falls to be answered in the present, i.e. whether theassociation "is" remote. The better wording would therefore be "was minimal or isremote".17 This issue appears not to have been considered in the High Court.[49] However, it appears that this adjustment is often made in practice. In itsdecision dismissing Mr H's appeal, the RRB treated A5.30(1)(b) as directed towardsthe present in relation to remoteness:[98] Counsel for the appellant says that "remote" has inter alia a temporalquality. That is correct. However, an association of this nature and duration,ceasing 14 years ago, is not so remote in time as to be dismissed as irrelevantor meaningless now.[99] The Board is accordingly not satisfied beyond doubt that, in 2010, hisassociation can be said to be remote or minimal. [50] Later, the IPT treated the question whether the nature of the involvement(minimal or not) as being determined by reference to historical events, i.e. reading"was" as "was". But it treated the question of remoteness as being determined fromthe present perspective, i.e. reading "was" as "is":[45] Remoteness, in the temporal sense, cannot be assessed in a vacuum.It has an obvious relationship to the nature and extent of an applicant'sassociation or involvement Where that involvement is central to theactivities of the government, regime, group or agency, in question, and wassustained for a long period of time, at a high level, even the passage of asignificant amount of time may not result; in it being considered "remote". [51] In these circumstances we proceed on the basis that the intended meaning ofthe phrase "was minimal or remote" is "was minimal or is remote". If satisfied as toeither the immigration officer would be entitled to exercise the discretion conferred byA5.30.1(b).[52] We turn now to the ground of appeal. The Judge did not accept that A5.30.1(b)had the effect of imposing either an onus or a standard of proof.18 Rather, it was amatter for evaluation by the immigration officer. We agree that the words "satisfiedbeyond doubt" do not connote any onus of proof. Being "satisfied" simply refers tothe state of mind to which the immigration officer must come before exercising thediscretion to grant a RCV. In R v Leitch this Court said that the requirement to be18 High Court decision, above n 2, at [89]–[90], citing Jiao v Refugee Status Appeals Authority[2003] NZAR 647 (CA) at [12]–[14]; and AL v Immigration and Protection Tribunal [2014]NZHC 1810, [2014] NZAR 1079 at [26]."satisfied" calls for the exercise of judgment by the Court and is inapt to import notionsof burden or standard of proof.19 Similarly in R v White (David):20The phrase "is satisfied" means simply "makes up its mind" and is indicativeof a state where the Court on the evidence comes to a judicial decision. Thereis no need or justification for adding any adverbial qualification to "issatisfied" [53] Nor do we accept that "beyond doubt" creates a particular standard to beassessed by reference to the criminal standard of beyond reasonable doubt. The sameand very similar phrases have been considered in the criminal context.21 It is clearfrom the phrase that it conveys a level of certainty that amounts to being "sure".22Possibly, it would have been preferable to have used a phrase that does not bear suchsimilarity to that used in the criminal context. But we are satisfied that the words donot have the effect contended for.Issue 5: failure to have regard to the position and rights of recognised refugees[54] The final ground of challenge is that A5.30 is invalid because it was certifiedwithout consideration of the rights of refugees both from a general humanitarianperspective and in light of New Zealand's obligations under the Convention relatingto the Status of Refugees (the Refugee Convention), particularly art 34, whichprovides that:23The Contracting States shall as far as possible facilitate the assimilation andnaturalization of refugees. They shall in particular make every effort toexpedite naturalization proceedings and to reduce as far as possible thecharges and costs of such proceedings.[55] The relationship between the Act and the Refugee Convention is specificallyprovided for in the Act. All decisions made under pt 5 (refugee and protection statusdeterminations) must be made in a way that is consistent with New Zealand'sobligations under the Refugee Convention (which appears as sch 1 to the Act).24 The19 R v Leitch [1998] 1 NZLR 420 (CA) at 428.20 R v White (David) [1988] 1 NZLR 264 (CA) at 267.21 R v McI [1998] 1 NZLR 696 (CA) at 712, considering the proviso to s 385(1) of the Crimes Act1961 before it was repealed by s 6 of the Crimes Amendment Act (No 4) 2011.22 At 712.23 Convention relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951,entered into force 22 April 1954).24 Immigration Act, s 127(2).decision in this case arises under a different part of the Act but, as the Crown noted,to the extent that those provisions do not apply, INZ's Refugee Convention obligationswould necessarily be considered as a relevant consideration.25 In addition there arespecific provisions relating to refugees. Relevantly, s 3(2)(g) provides that one of theways of achieving the statutory purpose of the Act is to establish an immigrationsystem that "supports the settlement of migrants, refugees, and protected persons".[56] Mr Harrison submits that, against this background, any attempt by means of animmigration instruction to address a perceived risk to New Zealand's internationalreputation ought, at least, specifically to take into account as a relevant considerationthe situation of recognised Convention refugees. That is not a contentious proposition;the issue between the parties is whether, on the material before the Court, it can besaid that this consideration was taken into account in certifying A5.30.[57] Mr Harrison argues that on the policy development material and evidence theissue was not addressed by the Minister. Specifically, the Minister's response to thepleading of this point was to confirm that incoming Ministers are briefed on theirresponsibilities with regard to relevant international conventions, includingthe Refugee Convention. But Mr Harrison points out that the briefing papers produceddid not draw the Minister's attention to those obligations in the context of A5.30.He says that a general acknowledgment or understanding of Convention obligations isinadequate; what is needed is specific consideration in the relevant circumstances.26[58] The Judge rejected this argument on the basis that:27I consider it to be reasonable to assume in the circumstances that as refugeesare entitled to seek residence on the same basis as any foreign national, thatthe Minister when certifying A5.30 had sufficient regard to the Convention,and the rights of refugees to seek naturalisation consistently with itsprovisions.[59] Mr Harrison identified two aspects of the Judge's decision that he said werewrong. First, that it was wrong to conclude that making refugees eligible forpermanent residence on the same basis as any other foreign national was sufficient to25 Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA) at 266.26 Relying on Zhang v Minister of Immigration [2020] NZHC 568 at [71].27 High Court decision, above n 2, at [94].discharge the obligations imposed by the Refugee Convention. We agree with thiscriticism. The underlying point of Mr Harrison's argument is that refugees attractspecific protection that, in itself, makes it inappropriate to put them on the samefooting as any other foreign national. Indeed the Manual itself inthe "Special Categories" section recognises this fact.[60] The second conclusion under challenge is that the Minister had sufficientregard to Convention rights. Mr Harrison's argument on this point focused on thepolicy development process which he contended failed completely to consider theposition and interests of those already lawfully settled here under a temporary permitor visa and who wish to progress to permanent residence. More significantly, it failedto consider the position of recognised refugees, with particular reference to art 34.[61] It is correct that there is nothing specific in the briefing papers prepared bythe Ministry that preceded the amendment of the Manual to add the current A5.30. Wedo note however that Christine Hyndman, the principal policy adviser who providedthe affidavit detailing the process by which A5.30 came to be certified, deposed thatthe certifying Minister, Minister Swain, had previously been the Associate Minister ofImmigration and so would necessarily have been aware of issues related to the rightsof asylum seekers and refugees.[62] In addition, Mr Kirkness pointed to other briefing material provided tothe Minister in 2004, from which it can reasonably be inferred that the Minister wasfully cognisant of the rights of refugees when certifying A5.30. This material wasreferred to in the letter from the Ministry of Business, Innovation and Employment toMr Harrison dated 5 November 2018 responding to his Official Information Act 1982request. Specifically:(a) 27 February 2004, briefing to the incoming Minister of Immigrationproviding an overview of the immigration system, including referencesto the refugee and asylum system.(b) September 2004, research report "Migration Trends 2003/04" whichincluded information on the numbers of asylum seekers recognised asrefugees and granted residence and explained the difference betweenthose processes.(c) 21 January 2005, briefing note "Strengthening the Immigration Act:Progress and Timetable" reporting on progress on the Immigration Actreview under which officials were to report back by February 2005 withadvice on a range of issues including the review and appeal ofimmigration and asylum decisions.[63] Thirdly, when certifying A5.30 the Minister must be taken to have appreciatedthe other provisions of the operational manual of which A5.30 would form a part.These included specific instructions relating to the eligibility of refugees to apply fora RCV:(a) Immigration instruction S3.1 refers to the objective of the refugee andprotection instructions as being (a) to reflect the Government'scommitment to fulfilling its international humanitarian obligations and(b) contributing to the global community's efforts to assist refugees andprotected people.(b) Immigration instruction S3.10(a) provides that refugees may be grantedpermanent resident visas. S3.10(c) provides that all refugee claimantswho are recognised as having refugee status may apply for a permanentresidence visa on the basis of that recognition. S3.10(b) provides thatimmigration officers may at their discretion grant permanent residencevisas to "Convention" refugees (cross-referencing C5.15.1).(c) Immigration instruction C5.15.1 provides that refugees are eligible toapply for residence, though C5.15.5 cautions that "[t]he grant ofresidence does not automatically follow the recognition of refugee orprotection status" and that refugees may not be granted residency ifthere are character issues.[64] Looking at the overall scheme created for the determination of RCVapplications it cannot fairly be said that A5.30 was implemented without considerationof the rights of refugees and New Zealand's Convention obligations. Nor can it besaid that A5.30 is inconsistent with those obligations. Article 34 requires States Partiesto facilitate the assimilation and naturalisation of refugees "as far as possible". Theobligation is procedural rather than substantive. States Parties are not obliged to grantresidence or citizenship to refugees but must ensure that refugees are able to accesswhatever opportunities for naturalisation may exist under the host State's domesticlaws.28 Instructions S3.10–3.40 and C5.15.1(a) establish that refugees in New Zealandare eligible for RCVs, but like all other applicants, they are subject to the characterrequirements in section A5 of the Manual, including instruction A5.30.Result[65] We are not satisfied that instruction A5.30 is invalid for any of the reasonsMr H contended for. Until the time is reached where it can be said that Mr H'sassociation with the PSB is remote, he remains ineligible for a RCV.[66] The appeal is dismissed.[67] The respondent is entitled to costs for a standard appeal on a band A basis, plususual disbursements.Solicitors:Mark Lee Lawyers, Auckland for AppellantCrown Law Office, Wellington for Respondent28 James C Hathaway The Rights of Refugees under International Law (Cambridge University Press,Cambridge, 2005) at 990.