H v THE MINISTER OF IMMIGRATION [Redacted] [2019] NZHC 2870

H v THE MINISTER OF IMMIGRATION [Redacted] [2019] NZHC 2870 [5 November 2019]NOTE: ORDER SUPPRESSING THE IDENTITY OF THE APPLICANT ANDTHE PARTICULARS OF HIS CLAIM, PER SECTION 151(1) OF THEIMMIGRATION ACT 2009.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-1065[2019] NZHC 2870BETWEEN HApplicantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 1 April 2019Appearances: R E Harrison QC for ApplicantR A Kirkness & A P Miller for RespondentJudgment: 5 November 2019JUDGMENT OF PAUL DAVISON J[Redacted Version]This judgment was delivered by me on 5 November 2019 at 3:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Jessie & Associates, AucklandCrown Law Office, WellingtonIntroduction[1] The primary issue for determination in this proceeding is whether animmigration instruction contained in the Immigration New Zealand OperationsManual, which relevantly provides that applicants for a residence class visa who havehad an association with or membership of any group or agency that has advocated orcommitted gross human rights abuses are to be normally ineligible on charactergrounds for a visa, is ultra vires s 22 of the Immigration Act 2009 (the Act).[2] [Redacted].[3] [Redacted].[4] H has since made two applications for a residence class visa, both of whichwere declined. He now brings this proceeding seeking judicial review of an INZ1decision dated 3 May 2018 which declined his application for a residence class visaon the basis that he does not meet the requirements under the immigration instructionsrelating to character contained in A5.30 of the INZ Operational Manual (the Manual),because he poses a risk to New Zealand's international reputation by reason of beinga member of the PSB between 1982 and 1996, it being considered to be an organisationresponsible for the commission of gross abuses of human rights.[5] The applicant seeks a declaration that the immigration instruction in A5.30 ofthe Manual is unlawful and invalid by reason of being ultra vires s 22 of the Act.Background[6] [Redacted].[7] [Redacted].[8] [Redacted].[9] [Redacted].1 Immigration New Zealand.[10] [Redacted].[11] [Redacted].[12] [Redacted].[13] [Redacted].[14] [Redacted].[15] [Redacted].[16] [Redacted].[17] [Redacted].[18] H made his first application for refugee status on 8 May 1997. In thatapplication he made no mention of the true circumstances under which he had cometo be in New Zealand, and instead advanced a fictitious claim. Due to the significantbacklog of applications awaiting consideration he was granted an interim work permit.He used the opportunity presented by this delay to set up a business. On 11 April and9 May 2000, he was eventually interviewed by an immigration officer in relation tohis application for refugee status. The immigration officer was not satisfied that hisstory was plausible and on 27 October 2000 his application was declined. While thatdecision was not appealed, H made an application to the Minister of Immigration fora special direction that a residence permit be granted. On 27 February 2001 thatapplication was declined. On 20 June 2001, the Minister of Immigration determinedthat H was required to leave New Zealand.[19] Thereafter a lengthy period of inactivity by INZ elapsed until 10 January 2007when an order for H's removal was eventually made. On 15 January 2007 the applicantwas taken into custody. On 17 January 2007, he appeared before the District Courtand that same day his counsel gave notice to Immigration New Zealand that Hintended to lodge a further application for refugee status. The second application wasfiled on 24 January 2007.[20] This second claim for refugee status was declined on 29 June 2007.[Redacted]. The refugee status officer determined that he was excluded from theprotection of the Refugee Convention, and considered there were serious reasons forconsidering that he had committed a crime against humanity [redacted]. H appealed.[21] His appeal was successful. In a decision dated 22 November 2007 the RSAAfound that H was not excluded from the protection of the Refugee Convention byreason of there being serious concerns that he had committed a crime againsthumanity. While the Authority accepted that accomplices and parties to crimes againsthumanity are excluded from the protection of the Convention, [redacted], it was notsatisfied that the evidence presented to the Authority established any complicity onH's part in such crimes.[22] Having being granted refugee status in November 2007, H has since been ableto renew his temporary work visa year by year, and thus able to remain and work inNew Zealand. [Redacted]. However, without a residence visa he remains in NewZealand in what may be termed "immigration limbo". Although permitted to remainin New Zealand and be able to renew his temporary visas annually, he is otherwiserestricted. He cannot exercise the ability of a residence visa holder to travel to NewZealand at any time and be granted entry permission and to work, study, and stay inNew Zealand as provided for by s 73 of the Act. He is unable to apply for New Zealandcitizenship, and thus unable to apply for a New Zealand passport for travel purposes.[23] In February 2008, H made the first of his two applications for a residence visa.It was declined by Immigration New Zealand on 11 December 2009. The basis for thedecision being that H did not satisfy the character requirements in A5.26 of therelevant immigration instructions at the time.2 Specifically, INZ determined that Hhad worked [redacted] an organisation responsible for having committed gross humanrights violations, and that his role in that organisation was not minimal or remote. Hsought a review of that decision by the Residence Review Board (RRB).2 That immigration instruction is materially similar to immigration instruction A5.30, which theapplicant challenges the validity of in this proceeding.[24] The RRB agreed with INZ's decision as regards H being ineligible for aresidence visa by virtue of immigration instruction A5.26, however the Boardexercised its power to refer the matter to the Minister for consideration as to whetheran exception to immigration policy should be made in the circumstances. In itsdecision of 21 July 2010, the Board said:[114] Counsel for the appellant contends that the appellant does not, in fact,pose any risk to New Zealand's reputation. While not relevant to determiningwhether the appellant meets policy, it must be an important consideration here.It seems to the Board that if he poses no actual risk, there would be no reasonnot to accord him permanent residence. In the absence of risk, in fact, there isno public interest imperative in denying him this status. Absent a compellingreason not to grant him residence, there is a good reason to do so and that isregularising, permanently, the immigration status of someone accordedrefugee status, who has nowhere else to go to be able to settle down.[116] The appellant points out that his background as refugee status is aconfidential process and cannot be publicly disclosed, even though hispermanent residence here would be a matter of public fact. [Redacted] Thatis so, but it seems to the Board that even if his background was publicknowledge, there would be no loss of public confidence in the immigrationsystem and no injury to New Zealand's international reputation, given hisrefugee status and the absence of evidence of personal responsibility forhuman rights abuses.[117] It would therefore seem to the Board that granting residence to theappellant would not put at risk, in any material way, the internationalreputation of New Zealand. However, that is pre-eminently a matter for theMinister to assess.[25] The Minister, however, did not consider any such exception should be made.[26] H also pursued an appeal against the decision of the Residence Review Board,but that too was unsuccessful.3[27] H made a second application for a residence visa on 3 September 2014. On 12July 2016, INZ notified him that his application had been declined because he did notmeet the requirements of the relevant immigration instructions. In particular, theapplicant was informed that he did not meet the character requirements set out inA5.30. [Redacted]:3 AB v Chief Executive of the Department of Labour [2011] 3 NZLR 60 (HC).[Redacted].[Redacted].[28] H appealed to the Immigration and Protection Tribunal and was successful.4[Redacted].[29] The Tribunal referred the matter back to INZ for reconsideration. By letter of3 May 2018, INZ declined H's application for a residence visa, stating:[Redacted].[Redacted].[30] Following receipt of that letter, the applicant filed this proceeding for judicialreview.[31] The applicant also appealed to the Immigration Protection Tribunal against thedecision of 3 May 2018 declining his residence application. Although the appeal wasdismissed the Tribunal exercised its discretion to refer the matter to the Minister forconsideration as to whether an exception to the immigration policy should be made inthe particular circumstances.5 By letter of 14 February 2019, the Minister declined tomake any such exception.Residence visas[32] There is no entitlement to residence in New Zealand. The Immigration Act2009 (the Act) provides:45 Grant of visa generally matter of discretion(1) No person is entitled to a visa as of right.4 IPT Residence Decision [2017] NZIPT 203647.5 IPT Residence Decision [2018] NZIPT 205054.[33] Decisions to grant a residence visa, whether made by the Minister ofImmigration or an immigration officer, are generally a matter of discretion, unless theAct provides otherwise.6[34] Under the Act, applications for residence are ordinarily determined byimmigration officers in accordance with the relevant immigration instructions.7 Thoseinstructions are statements of policy certified by the Minister pursuant to s 22 of theAct,8 and they play a central role in the Government's management of New Zealand'simmigration system. As expressed in s 3(1), the purpose of the Act is to:manage immigration in a way that balances the national interest, asdetermined by the Crown, and the rights of individuals.To achieve that purpose, the Act provides for the development of immigrationinstructions to meet objectives determined by the minister.[35] Section 22 is the core provision under which immigration instructions aredeveloped and certified. It relevantly provides: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, or for entrypermission, being rules or criteria relating to thecircumstances of that person or of any other person (a thirdparty) whose circumstances are relevant to the person'seligibility, including (without limitation) rules and criteriaabout how any status or approval may be obtained or lost bythe third party:6 Immigration Act 2009, ss 45(2) and (3).7 Immigration Act 2009, s 72(1).8 Immigration Act 2009, ss 22(1) and (8).(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:(d) any statement of, or rules or criteria or process fordetermining, the number or categories or ranking of personsor classes of persons whose applications for visas of any classor type or entry permission may be granted at any particulartime or over any particular period:(e) any rules or criteria for the lapsing of applications in respectof which no decision to grant a visa has been made:(f) any matters relevant to balancing individual eligibility for avisa or entry permission against the overall objectives orrequirements of immigration instructions:(g) any requirements relating to documentation, consultation, orother evidence or information required to assess a person'seligibility for a visa or entry permission:(h) any statement of the conditions or types of conditions thatmay be imposed upon a visa of any particular class or type,and the circumstances in which or classes of persons inrelation to whom the conditions may be imposed:(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:[36] The instructions include A5.30, which relevantly provides that a person willordinarily not be granted a residence visa if he or she has been associated with anorganisation responsible for gross abuses of human rights. The policy underpinningthat instruction is that to grant residence to such a person would pose a risk to NewZealand's international reputation. A5.30 provides:A5.30 Applicants normally ineligible for a residence class visaa. Applicants will not normally be granted a residence class visa, unlessin accordance with A5.30.1 below, where an applicant would pose arisk to New Zealand's international reputation.b. In particular (but not exclusively), applicants are considered to pose arisk to New Zealand's international reputation if they have or have hadan association with, membership of, or involvement with, anygovernment, regime, group or agency that has advocated orcommitted war crimes, crimes against humanity and/or other grosshuman rights abuses.c. A5.30(b) does not mean that an applicant cannot be considered to posea risk 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.[37] Instruction A5.30.1 sets out the mechanism by which A5.30 is to be applied toindividual residence applications. A5.30.1(a) provides an immigration officer with adiscretion to decline residence applications under A5.30 on character grounds.A5.30.1(b) applies when A5.30(b) applies, and provides that the immigration officermay consider the nature and extent of the applicant's association with the organisation,and if satisfied the nature and extent of their association with the organisation wasminimal or remote, may grant a residence visa to the applicant. A5.30.1 provides:A5.30.1 Actiona. An immigration officer may decline residence class visa applicationsunder A5.30 on character grounds. In determining whether to declinean application under A5.30 the surrounding circumstances of theapplication, including any family connections the applicant mighthave to New Zealand, are to be disregarded for the purposes of thedecision.b. Where A5.30(b) applies, an immigration officer may consider thenature and extent of the applicant's association with, membership of,or involvement with, the government, regime, group or agency. If theimmigration officer is satisfied beyond doubt that the nature andextent of the association, membership or involvement was minimal orremote then the officer may grant a residence class visa to theapplicant provided all other Instructions requirements are met.c. An immigration officer must make a decision in compliance withfairness and natural justice requirements (see A1).d. An immigration officer must record the reasons for their decision onthis aspect of the character requirements.e. Any decision to determine the application in accordance with A5.30must be made by an immigration officer with Schedule 1-3delegations.The applicant's challenge[38] As noted the applicant's challenge is principally directed at the legality ofimmigration instruction A5.30.[39] Dr Harrison QC for the applicant first submits that immigration instructionA5.30 was developed and certified in accordance with s 22 of the Act to purportedlycreate a test of character. In support he refers to s 22(6)(a)(ii), which provides thatimmigration instructions may include matters relating to character; that the relevantimmigration instruction is found in part A5 of the Operation Manual, entitled"Character Requirements"; that at the time of the introduction of the immigrationinstruction, which is now found in A5.30, it is clear that the new policy was explicitlybeing introduced by way of an amendment to character requirements; and finally, thatA5.30.1(a) explicitly states that an immigration officer may decline residence visaapplications under A5.30 on character grounds.[40] The thrust of Dr Harrison's submission is that, although purportedly a charactertest, A5.30 quite plainly has nothing to do with an individual applicant's personalcharacter. He submits that it is neither directly, nor indirectly, a test of character, andis therefore ultra vires the Minister's power to certify immigration instructionspursuant to s 22 of the Act.[41] The applicant also pleaded various other grounds related to that firstsubmission that did not receive the same emphasis in submissions, but are as follows:(a) mistake of fact or law that posing a risk to New Zealand's internationalreputation is relevant to an applicant's character;(b) an applicant's risk to New Zealand's international reputation is anirrelevant consideration to the assessment of his or her actual character;(c) that the immigration instruction is arbitrary/unreasonable/unfair ordisproportionate given the lack of connection between an applicant'scharacter and his or her potential to pose a risk to New Zealand'sinternational reputation; and(d) that the immigration instruction is arbitrary/unreasonable/unfair ordisproportionate by reason of its vagueness as a test of character.[42] As is clear, those secondary challenges all turn on essentially the same point.That is whether the immigration instruction can be properly classified as a test ofcharacter.[43] The second of Dr Harrison's submissions is that the effect of A5.30(b) of theimmigration instructions is to deem an applicant for a residence visa, with abackground such as is the case with Mr H, to be considered as posing a threat to NewZealand's international reputation, even where the residence visa applicant does notin fact pose such a risk. He submits that such a deeming provision is ultra vires, as thestatutory scheme of the Act is predicated on discretionary decision making byimmigration officers and an assessment of an applicant's individual character.[44] In essence, counsel submits that in order for the assessment of an applicant'scharacter to properly form the subject of an immigration instruction, the instructionshould direct the immigration officer to consider and assess the applicant's actualcharacter. However as the immigration instruction deems a person to possess acharacter which renders them ineligible for a residence visa on the basis that they posea "threat to New Zealand's international reputation", the instruction is ultra vires theAct.[45] As part of that submission, Dr Harrison further submits that the words "haveor have had an association with, membership of, or involvement with regime,government or agency" are unacceptably vague. He submits that such vaguenessalso supports a conclusion that the immigration instruction is ultra vires the Act.[46] The applicant also pleaded various other grounds related to that secondsubmission that did not receive the same emphasis in counsel's submissions, but whichare as follows:(a) that an applicant's deemed character is an irrelevant consideration tothe assessment of his or her actual character; and(b) that the immigration instruction is arbitrary/unreasonable/unfair ordisproportionate when mandated by the deeming effect given the lackof connection between an applicant's actual character and his or herdeemed risk to New Zealand's international reputation.[47] The third of Dr Harrison's principal submissions is that immigrationinstruction A5.30.1(b) imposes upon the applicant the burden of a reverse onus ofproof to satisfy the immigration officer "beyond doubt" that the nature and extent ofhis or her association, membership or involvement with the impugned organisationwas minimal or remote. Dr Harrison says it is not even clear to what standard theapplicant is required to satisfy the immigration officer "beyond doubt". He argues thatit is not apparent whether the standard of proof to be applied is the civil standard oreven the criminal standard of beyond reasonable doubt. He argues that it could evenbe read as requiring the immigration officer to be satisfied beyond all doubt.[48] Dr Harrison submits that this creates a very high standard for an applicant tomeet, and moreover, it is uncertain and vague. He says that this vagueness iscompounded by the requirement that the immigration officer be satisfied theapplicant's association with the organisation was "minimal or remote".[49] Dr Harrison's final submission is that when developing the challengedimmigration instruction, A5.30, the Minister responsible for the instruction, failed tohave regard to the special position of recognised refugees such as the applicant, giventhe rights such persons enjoy under Article 34 of the United Nations ConventionRelating to the Status of Refugees.9[50] Dr Harrison submits that the s 22(1) power to certify immigration instructionsmust be exercised in a proportionate manner, consistent with both specific provisionsand the overall purposes of the Act. He says that those purposes include managingimmigration "in a way that balances the national interest, as determined by the Crown,and the rights of individuals",10 and determining "to whom [New Zealand] has9 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April1954).10 Immigration Act 2009, s 3(1).obligations under the United Nations Convention Relating to the Status of Refugeesand the Protocol Relating to the Status of Refugees".11[51] Dr Harrison says that in the case of a recognised refugee, those obligationsmust include recognition of Article 34 of the Convention, which provides:Article 34 - NaturalizationThe 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.[52] Dr Harrison says that in light of New Zealand's obligation to refugees, animmigration instruction directed at addressing the risk to New Zealand's reputationought to have made specific provision for the situation of recognised refugees.However, says Dr Harrison, the policy development documentation plainly shows thatthis was not the case, and the challenged immigration instruction fails to facilitate thenaturalisation of refugees.The respondent's submissions[53] In response to the first of the applicant's four submissions (that A5.30 purportsto set out a character test that does not in fact relate to an individual's character), therespondent says that the applicant's interpretation of A5.30(a), relying on the phrase"to pose a risk to New Zealand's international reputation", divorces that phrase fromthe context of the whole immigration instruction.[54] The respondent argues that a sensible construction of A5.30(a) needs to beadopted. The respondent submits that in light of the context in which that phrase isused and the purpose of A5.30, it is clear that A5.30(a) establishes that a person willnormally not be granted a residence class visa if, as a result of his or her character, thegranting of a residence visa to that person would pose a risk to New Zealand'sinternational reputation. The respondent submits that is consistent with the purposeof A5.30 which is to ensure that the Crown, though its immigration officers, is able to11 Immigration Act 2009, s 124(a).control the grant of residence to individuals whose character means that granting themresidence may pose a risk to New Zealand's international reputation.[55] The respondent submits that immigration instruction A5.30(a) clearly fallswithin the scope of s 22 of the Act – being " rules or criteria for determining theeligibility of a person for the grant of a visa",12 including matters relating tocharacter.13[56] In response to the applicant's second submission (that A5.30(b) is contrary tothe Act, unreasonable and unfair, because it deems an applicant who is associated withan impugned organisation to pose a risk to New Zealand's international reputation),the respondent submits that neither s 22 or any other provision of the Act prevents theCrown from developing an immigration instruction that deems a person's associationwith an organisation that commits gross human rights violations to pose a risk to NewZealand's international reputation. The respondent submits that on the contrary, theAct provides that immigration instructions are to be developed as a means to set outthe rules and criteria for granting visas in a manner that meets any objectivesdetermined by the Minister.14[57] The respondent also submits that the deeming effect is neither unreasonablenor unfair. Its effect is also ameliorated and qualified by A5.30.1(b), which gives animmigration officer the discretion to grant a residence class visa to an applicant whofalls within the scope of A5.30(b), if the immigration officer is satisfied the applicant'sassociation with the organisation was minor or remote.[58] In response to the applicant's third submission (that A5.30.1(b) is unreasonablebecause it imposes an onus of proof on applicants caught by A5.30(b) to satisfy animmigration officer beyond doubt that their association was minimal or remote), therespondent submits that the argument is misconceived, as A5.30.1(b) does not place areverse onus on an applicant falling within A5.30(b). The respondent submits that theinstruction simply provides that the immigration officer may consider the extent of an12 Immigration Act 2009, s 22(5)(b).13 Immigration Act 2009, s 22(6)(a)(ii).14 Immigration Act 2009, s 3(2)(b).applicant's association with the impugned organisation, and if satisfied beyond doubtthat such association was minimal or remote, grant the applicant a residence visa. Therespondent submits that the extent to which that threshold is met is solely a matter forthe immigration officer's evaluation, and the reference to an onus of proof is inapt inthe circumstances.[59] As to the applicant's fourth submission (that A5.30 is void because of thealleged failure on the part of the Minister, or whoever else was responsible, to haveregard to New Zealand's obligations under the Refugee Convention in formulatingand certifying the immigration instruction), the respondent submits that the applicant'sposition is again misconceived.[60] The respondent submits that article 34 of the Refugee Convention onlyimposes a qualified obligation on New Zealand to facilitate the assimilation andnaturalisation of refugees, as far as possible. The respondent submits that article 34only requires New Zealand to give good-faith consideration to the possibility ofnaturalisation and nothing more. The respondent relies on the observation of JamesHathaway, a professor of law at the University of Michigan:15Art 34 is intended to promote, rather than to compel, access tonaturalization. Refugee status does not give rise to an entitlement to access tocitizenship, even after the passage of a long period of time. But the RefugeeConvention does commit governments to assisting refugees to accesswhatever opportunities for naturalization may exist under the host state'sgeneral laws.[61] The respondent submits that New Zealand meets its obligations to refugees bymaking them eligible for naturalisation on the same terms as any other person, andsays that the fact that a refugee does not meet the criteria that every other person isexpected to meet, does not mean that New Zealand has failed in its obligations.15 James C Hathaway The Rights of Refugees under International Law (Cambridge University Press,2005) at 977ff.The first challenge – the character test in A5.30[62] I accept, as does the respondent, that immigration instruction A5.30 wasdeveloped and certified in accordance with s 22 of the Act with the intent of creatinga test of character.[63] In May 2005, a paper was prepared for, inter alia, the Minister of Immigrationand the Prime Minister, titled "Immigration Applicants who May Pose a Risk to NewZealand's International Reputation". The genesis of that paper was the entry into NewZealand of two Iraqi individuals who had ties to the Saddam Hussein regime. Theirentry revealed to Immigration New Zealand a gap in the then current immigrationsystem. Until that time, an immigration officer would make a decision regarding anindividual applicant's character based on issues such as whether they possessedcriminal convictions and whether they presented a security risk. The paper recognisedthe need for revision of the immigration system, by putting screening processes inplace to limit the risk of individuals gaining entry to New Zealand who are or havebeen associated with governments, regimes, groups of agencies that have committedhuman rights abuses that do not accord with the values of New Zealand and wheretheir presence in New Zealand would pose a risk to our international reputation.[64] Thereafter a second paper was prepared for the Minister of Immigration dated27 May 2005 entitled "Amendments to Character Requirements in GovernmentResidence Policy and Government Immigration Policy". That paper stated that itsought the Minister's agreement to new character requirements in immigration policyregarding the assessment of high risk applications. The key proposed amendment wasto ensure that:character requirements for both temporary entry and residence applicationsare sufficiently robust to manage the risks associated with applicants(including those from high risk countries) who pose a risk to New Zealand'sinternational reputation[65] The version of the policy submitted to and approved by the Minister thenbecame immigration instruction A5.26 in the version of the Operation Manual thatceased to be effective on 29 November 2010. Since that date the current immigrationinstruction A5.30 has been in effect. It is in substance identical to its predecessor.[66] Immigration instruction A5.30 is located in the section of the OperationManual entitled "Administration", and falls under subpart A5, which is headed"Character requirements". Immigration instruction A5.1 is titled "Requirement ofgood character" and provides that:Applicants for all visas must:a. be of good character; andb. 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.[67] Immigration instruction A5.15 sets out three classes of applicants who are notconsidered to be of good character, and classifies them as follows:a. applicants who will not be granted a residence class visa (see A5.20);orb. applicants who will not normally be granted a residence class visa(see A5.25) unless a character waiver is granted; orc. applicants whose applications for a residence class visa will usuallybe deferred (see A5.35).[68] Immigration instruction A5.30, based on its introductory words, clearly fallsinto the second category, despite not being specifically referred to in A5.15(b).[69] The real question to be determined is whether A5.30(a) actually imposes a testof character, or whether, as the applicant contends, it has nothing to do with theindividual character of the applicant. If that is the case, the applicant contends that theimmigration instruction is ultra vires the Act, because the Minister having purportedto exercise a statutory power to create a test of character cannot exercise that powerfor any other purpose, such as to create a test which is not directed towards anapplicant's character.16[70] In my view, however, immigration instruction A5.30(a) does in fact establish atest that relates to and informs an assessment of an applicant's individual character.16 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [50] –[55].[71] As the respondent correctly submits, policy documents need to be construedaccording to the purpose of the policy and the natural meaning of the languageemployed in its context. Policy documents are not to be construed with the samestrictness that a Court would employ when considering a statute or statutoryinstrument.17 The Court of Appeal in Patel v Chief Executive of the Department ofLabour said:18A policy document, such as the one in issue, is not to be construed with thestrictness which might be regarded as appropriate to the interpretation of astatute or statutory instrument. It is a working document providing guidanceto immigration officials and to persons interested in immigrating to NewZealand or sponsoring the immigration of a person to this country, It must beconstrued sensibly according to the purpose of the policy and the naturalmeaning of the language in the context in which it is employed, that is, as partof a comprehensive and coherent scheme governing immigration into thiscountry.[72] Dr Harrison, in making his argument to the contrary, relies solely on thewording to immigration instruction A5.30(a) that an applicant will not be granted aresidence class visa where they "would pose a risk to New Zealand's internationalreputation". He says that a risk presented by a person to New Zealand's internationalreputation is not a test of personal character at all. He says that character, either goodor bad, has a well-established meaning, and is limited to the personal attributespossessed by the individual concerned, or, as the Oxford English Dictionary puts it"the collective qualities or characteristics, esp. mental and moral, that distinguish aperson or thing."[73] However, when the whole of immigration instruction A5.30 is read, it is clearthat it is both intended to be, and meets the objective of establishing a test of character.[74] Firstly, A5.30.1(a) provides that an immigration officer may decline residencevisa applications under A5.30 on character grounds. Thus, character is the meansthrough which the officer either grants or declines the residence visa. An applicant'sinvolvement in or association with an agency or organisation responsible for thecommission of gross abuses of human rights, rationally informs an assessment of thatperson's character, and the granting of a residence visa to a person who has had17 Patel v Chief Executive Department of Labour [1997] NZAR 264 (CA) at 271.18 At 271.involvement or association with an agency or organisation responsible for thecommission of gross abuses of human rights, risks New Zealand's internationalreputation. That is the concern that the immigration instruction is directed towardsresolving.[75] Adopting a sensible construction of A5.30, it is clear that its purpose is to giveINZ discretion to decline an application for a residence visa where it considers thathaving regard to the character of the applicant, granting them a resident visa wouldpose a risk to New Zealand's international reputation.[76] Dr Harrison attacks this construction on two grounds.[77] First, he submits that the wording of A5.30(a) is clear and does not contain aqualification to the effect that a residence visa will not be granted because anapplicant's character poses a risk to New Zealand's international reputation. However,as I have already noted, the whole of the immigration instruction needs to be readtogether, and a sensible approach to its construction needs to be adopted. When theentirety of the immigration instruction is read together it is clear that A5.30.1(a)provides that applications may be declined on character grounds.[78] Second, Dr Harrison submits that A5.30.1(a) explicitly excludes a person'spersonal character from consideration. The relevant part of the instruction he relieson states:the surrounding circumstances of the application, including any familyconnections the applicant might have to New Zealand, are to be disregardedfor the purposes of the decision.[79] However, I do not agree that A5.30.1(a) excludes a person's personal characterfrom consideration. Although the instruction directs an immigration officer to ignorethe surrounding circumstances of the application, it specifically provides that animmigration officer may decline residence class visa applications on charactergrounds. The reference to family connections the applicant might have to New Zealandis an example of the kind of surrounding circumstances the officer is directed to ignore.To interpret the instruction as directing the immigration officer to ignore the characterof the applicant when deciding whether to decline their application on charactergrounds would render the instruction nonsensical.[80] Furthermore, I do not accept the submission that a person's more than minimalor remote involvement in, or association with or membership of a regime, group, oragency that has advocated or committed gross human rights abuses, has no bearing onthe issue of their character. In my view, any such association directly informs anassessment of the character of those persons involved with such an organisation. Byvirtue of their association or membership of such an organisation it is reasonable toassume that they will have necessarily involved and aligned themselves with itsphilosophies and practices to some degree at least, irrespective of their particular roleand responsibilities in the organisation. Unless their involvement with theorganisation or group was minimal or remote, it rationally reflects on their character,and A5.30 provides that where it is determined that an applicant has had such anassociation, they are considered to pose a risk to New Zealand's internationalreputation and are normally ineligible for a residence class visa.The second challenge – the deeming effect of A5.30(b)[81] The applicant further contends that A5.30(b) is contrary to the Act as it deemsan applicant who has associated with organisations that have committed gross humanrights abuses to pose a risk to New Zealand's international reputation. Dr Harrisonsubmits that the overall scheme of the Act is predicated on discretionary decisionsbeing made by immigration officers, and that a deeming provision, such as A5.30(b),casts a wide and undiscriminating net which captures individuals who have never beeninvolved in the commission of human rights abuses.[82] However, there is nothing in the Act which prohibits the Minister fromcertifying an immigration instruction having a deeming effect. On the contrary,s 3(2)(b) provides that immigration instructions are to be developed as a means ofsetting out the rules and criteria for granting visas in a manner that meets anyobjectives determined by the Minister. Section 22(5) of the Act also provides that thekinds of matters that may constitute immigration instructions include general andspecific objectives on immigration policy. In the present context, it was a specificobjective of immigration policy to tighten up New Zealand's residence visa criteria toensure that people who had been associated with foreign organisations that wereimplicated in the commission of gross human rights abuses would not ordinarily beeligible for a residence visa.[83] Once it is determined that an applicant has had involvement in or associationwith an organisation considered responsible for the commission of gross abuses ofhuman rights, the use of a deeming provision that renders them normally ineligible fora residence visa recognises the practical difficulties confronting INZ of obtainingreliable information as to the specific role and actions of the applicant during the timewhen they were a member of that organisation. The obtaining of reliable informationregarding the specific activities of any individual within such an organisation isinherently problematic having regard to the nature of the activities of any suchorganisation. In this context it is in my view therefore reasonable and rational for animmigration instruction to provide that involvement or membership of such anorganisation will normally render an applicant ineligible for a residence visa, with thequalification that where an immigration officer is wholly satisfied that the applicant'sinvolvement was minor or remote, they have a discretion to grant the application.[84] Therefore, I agree with the respondent's submission that it is within theMinister's power to certify immigration instructions that have a deeming effect in thiscontext.[85] I also agree that immigration instruction A5.30(b) is not unreasonable,disproportionate or unfair. The deeming effect is limited and relates only to thosepersons who have been associated with foreign organisations which have engaged inactions which are clearly, inconsistent with New Zealand's standards as regards humanrights. Those persons' ability to gain a residence visa in New Zealand is limited byreason of their association with organisations of that kind. The impact on NewZealand's international reputation of such persons being granted residence visas is alegitimate risk, and the identification of that risk and the establishment of criteriawhich identify those who pose that risk is a matter that falls within the Crown'sexpertise.[86] Furthermore, A5.30.1(b) provides an exception to the deeming effect ofA5.30(b) and provides an immigration officer with the ability to grant a residence visato an applicant otherwise caught by the deeming provision where the immigrationofficer is satisfied that the applicant's association was minor or remote. If theimmigration officer is not so satisfied, then I do not see how it can be said to be unfairthat Immigration New Zealand retains to itself the entitlement to refuse a residencevisa to that person, considering the impact their prior association could have on NewZealand's international reputation as recognising and upholding principles ofuniversal human rights.[87] I also disagree with Dr Harrison's submission to the effect that there is a degreeof vagueness inherent in the words "have or have had an association with,membership of, or involvement with any government, regime, group or agency".In my view the meaning of those words is clear, and they have been drafted to ensurethat any, other than minor, involvement by an applicant in an organisation such asdescribed in A5.30(b) will result in them normally being ineligible for a residenceclass visa.The third challenge – satisfaction beyond doubt required by A5.30.1(b)[88] Dr Harrison submits that the exception afforded by A5.30.1(b), whereby animmigration officer can grant an applicant a residence visa if satisfied their associationwas minimal or remote, is unreasonable because it imposes a reverse onus of proof onan applicant to satisfy the immigration officer to an extremely high standard that theirassociation with the impugned organisation was minimal or remote.[89] However, in my view A5.30.1(b) does not impose a reverse onus of proof onan applicant. What that instruction does is provide that an immigration officer mayconsider the nature and extent of the applicant's association with the unacceptableorganisation, and if satisfied "beyond doubt" that it was minimal or remote, may granta residence visa to the applicant. The "beyond doubt" standard by which theimmigration officer is directed to be satisfied that an applicant's association with theorganisation or group was minimal or remote reinforces the otherwise disqualifyingconsequence of such an association. Whether that high standard is met or not ishowever, entirely for the immigration officer's evaluation. Nothing in A5.30.1(b)implies that an applicant bears an onus of satisfying the immigration officer on anymatter regarding the extent of their association notwithstanding that it is obviously intheir interests to do so if they can. In any event, as noted in AL v IPT, in theimmigration context, where the question involves an assessment of objective fact,reference to either side bearing an onus of proof is inapt.19[90] As to whether the "beyond doubt" requirement amounts to a standard of proof,AL v IPT also repeats the observation made in Jiao v Refugee Status AppealsAuthority,20 that in the immigration context, issues for determination are not sensiblyamenable to a standard of proof, and it is a mistake to try and define a standard ofproof.21[91] I also consider there to be nothing unreasonable about an immigration officerbeing required by the relevant instruction to be "satisfied beyond doubt" that anapplicant's association with an impugned organisation is minimal or remote beforethey are willing to grant a residence visa. The risk of damage to New Zealand'sinternational reputation should people with past associations with organisations orgroups, such as described in A5.30(b), be granted residence in New Zealand, isconsidered to be sufficiently serious as to require an immigration officer to be satisfiedto a high standard before granting a residence visa to an applicant where A5.30(b) isengaged.The fourth challenge – the position of refugees as recognised in Article 34[92] Dr Harrison's final submission was that when developing the challengedimmigration instruction, A5.30, the minister failed to have proper regard to theposition of refugees, and specifically Article 34 of the Refugee Convention.[93] A very similar argument was addressed by Moore J in CF v Attorney-General(No 2),22 in which an Iranian refugee, who had previously served with the Iranian19 AL v IPT [2014] NZHC 1810, [2014] NZAR 1079 at [26].20 Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) at [12] – [14].21 At [26] and [28].22 CF v Attorney-General (No 2) [2016] NZHC 3159, [2017] NZAR 152.State Prison Organisation and which it was accepted routinely tortured inmates, wasdeclined a residence visa pursuant to A5.30. It was argued that the application ofA5.30 denied the applicant his rights under the Convention, including his right tonaturalisation. Moore J noted that taking the argument to its natural conclusion meantthat Immigration New Zealand would be compelled to grant a residence visa to everyperson on whom refugee status is conferred.23 He held that the Convention is notintended to grant unqualified rights on refugees, instead its purpose is to require statesto make refugees eligible for permanent residence on the same basis as any otherforeign national.24 New Zealand does this by granting refugees the ability to apply forresidence through the same processes as anyone else is obliged to follow, and A5.30is a criteria applicable to all foreign nationals who apply for residence class visas.25[94] The immigration instructions formulated under s 22 of the Act must take intoaccount New Zealand's obligations to refugees under the Convention. I consider it tobe reasonable to assume in the circumstances that as refugees are entitled to seekresidence on the same basis as any foreign national, that the Minister when certifyingA5.30 had sufficient regard to the Convention, and the rights of refugees to seeknaturalisation consistently with its provisions.Conclusion[95] The applicant has failed on each of his four challenges to satisfy me thatimmigration instruction A5.30 is either wholly or in part ultra vires the Act, orotherwise unreasonable, disproportionate or unfair.[96] The application for judicial review is accordingly dismissed.[97] The respondent is entitled to costs on a 2B basis. The parties are invited todetermine costs between themselves. In the event that they cannot, the respondent isto file a short memorandum of no more than three pages, not including any annexedschedules, no later than 20 working days after the date of this judgment. The applicantwill have five working days in which to file a short memorandum of no more than23 At [80].24 At [81].25 At [82] – [83].three pages, not including annexed schedules, in response. I will thereafter determinethe matter on the papers._____________Paul Davison J