SINGH & KAUR v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 1916

SINGH & KAUR v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 1916 [14 August 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-4502[2014] NZHC 1916BETWEEN KULBIR SINGH and NAVJOT KAURPlaintiffsAND CHIEF EXECUTIVE, MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTDefendantHearing: 24 March 2014Counsel: RJ Hooker for PlaintiffsAR Longdill and H Musgrave for DefendantJudgment: 14 August 2014JUDGMENT OF BREWER JThis judgment was delivered by me on 14 August 2014 at 3:30 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors: Vallant Hooker & Partners (Auckland) for PlaintiffsMeredith Connell (Auckland) for DefendantIntroduction[1] Mr Kulbir Singh and Mrs Navjot Kaur arrived in New Zealand on 2 April 2004 with their three year old son, Sumeet. They were allowed entry for two weeks on a limited purpose visa, the purpose being to attend a family reunion. Mrs Kaur was eight months pregnant. The visa expired on 15 April 2004, but the family stayed. On 22 April 2004, Mrs Kaur gave birth to a daughter, Amanpreet. The family continued to live in New Zealand. On 11 November 2006, Mrs Kaur gave birth to a son, Sukhpreet. The family remained in New Zealand.[2] Last year, Mr Shand, an immigration officer, served deportation orders on Mr Singh, Mrs Kaur, Sumeet and Sukhpreet. That is because they are all citizens of India and are illegally in New Zealand. However, because of the law at the time of her birth, Amanpreet is a New Zealand citizen. She cannot be deported.[3] Having served the deportation orders, Mr Shand then looked to see whether he should cancel them. The law gives him an absolute discretion to do that. He decided not to.[4] Mr Singh, Mrs Kaur, Sumeet and Sukhpreet do not want to be deported to India. They like the life they have here, and think it is a much better life than they would have in India. Sumeet, now 13, has been here as long as he can remember, and Sukhpreet, seven, was born here. Amanpreet, 10 years old, does not want her family to go. She is a New Zealander and this is her home. If they go, Amanpreet will almost certainly have to go with them (unless her family want to, and can, find someone here to care for her). In the one case, Amanpreet would go to a foreign life. In the other case, she would be separated from her family.[5] Mr Singh and Mrs Kaur apply for judicial review of Mr Shand's decisions notto cancel the deportation orders. They argue he made mistakes in the process he followed in making the decisions. They want me to direct Mr Shand to reconsider his decisions and to tell him how he should go about that.Issues[6] The issues I have had to consider are:(a) Should Mr Shand be required to make himself available for cross- examination before I decide the case?(b) Did Mr Shand follow the correct procedure in making his decisions?(c) If he did, were his decisions ones that no reasonable immigration officer would make?1Should Mr Shand be cross-examined?[7] This issue was argued as a preliminary matter at the hearing. I decided that Mr Shand should not be cross-examined and I now give my reasons for that decision.[8] Mr Hooker, for Mr Singh and Mrs Kaur, submitted it was necessary for Mr Shand to be cross-examined. Mr Hooker wanted to test whether Mr Shand actually considered the material he said he considered, how he weighed Amanpreet'sbest interests in his decisions, and what findings of facts he made.[9] In Mr Hooker's submission, s 27 of the New Zealand Bill of Rights Act 1990, which, among other things, provides for the observance of natural justice and for judicial review, is consistent with a right to cross-examine.2[10] Mr Shand has elected not to provide reasons for his decisions. Mr Hooker submitted that this has denied his clients the ability to examine Mr Shand's reasonsand to challenge them in Court. This means that the Court will not be able to consider whether the decisions were reasonable. Mr Hooker submitted thatAmanpreet "ought to be entitled to know in this Court why the immigration officer is sending her parents back to the Punjab".3 Mr Hooker took issue also with words1 Puli'uvea v Minister of Immigration (1996) 2 HRNZ 510 (CA) at 522.2 The right to take judicial review proceedings is expressly recognised by s 247 of the Immigration Act 2009.3 Memorandum of submissions in support of application to cross-examine decision-maker, dated 21 March 2014, at [16].used by Mr Shand in his decisions. In each case he said, in bold letters, "I considerthat deportation should proceed". Mr Hooker submitted that this form of wording gives rise to concern that the decisions might not have been made in accordance with the law.[11] Mr Hooker accepted that Mr Shand cannot be obliged to give his reasons. He submitted, however, that that does not mean that the Court cannot compel Mr Shand to give his reasons if that is in the interests of justice. He emphasised, in particular, that the Court will not be able to decide this case without knowing how Mr Shand regarded the rights of Amanpreet. The Court must know, at least, that there were reasons for the decisions made by Mr Shand.[12] The major obstacle for Mr Hooker, as he recognised, is that judicial review is a review of process. The Court is concerned with whether the official concerned took into account all relevant matters, took into account irrelevant matters, or made an error of law. There is a final category, which is whether the decision made is manifestly wrong.[13] Judicial review is not an appeal where the Judge examines the substantive merits of a decision reached by an official. Therefore, in a judicial review proceeding, cross-examination will not be permitted unless it is clearly necessary to enable the case to be disposed of fairly.[14] The intensity of judicial review in a particular case depends largely on theofficial's legal obligations. Mr Shand was exercising an absolute discretion which is set out in s 177 of the Immigration Act 2009 (the Act). Since this section is at the heart of this case, I will set it out in full:177 Deportation order may be cancelled(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.(2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or herpersonal circumstances, and the information is relevant to New Zealand's international obligations.(3) If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—(a) may make a decision as he or she thinks fit; and(b) in doing so, is not under any obligation, whether by implication or otherwise,—(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.(4) Whether or not an immigration officer considers cancelling a deportation order,—(a) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and(b) section 23 of the Official Information Act 1982 does not apply in respect of the decision.(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—(a) a description of the international obligations; and(b) the facts about the person's personal circumstances.[15] It can be seen from this that judicial review of a decision made under s 177 is very limited in its scope. There is an absolute discretion. The immigration officer must have regard to any relevant international obligations but otherwise may make a decision as he or she thinks fit, and is not under any obligation either to apply any particular test or to make any particular inquiry. If an immigration officer does have regard to any international obligations then the officer must record a description ofthem and the facts about the person's personal circumstances. The obligations specified in s 177 are certainly amenable to judicial review; that is to say, the processmust be followed. But that is about as far as it goes. Miller J in the Court of Appeal put it this way:4[8] It will be seen that an immigration officer's discretion under s 177 is not in every sense absolute. Although there is no right to apply, or to a reasoned decision, a deportee may require an immigration officer to considercancellation by giving the officer information about the deportee's personalcircumstances that is relevant to New Zealand's international obligations.Relevance is an objective standard. When considering cancellation, whether in response to such information or of his or her own volition, the officer must consider relevant international obligations. Where any are relevant, theofficer must record a description of them and the facts about the deportee'spersonal circumstances. Manifestly, s 177 offers an inauspicious setting for judicial review but the courts may at least review an immigrationofficer's decision for compliance with these requirements.[16] Mr Shand annexes to his affidavit copies of the forms he completed in which he listed the international obligations he found to be relevant and the factual material he considered. In my view, cross-examination for the purposes identified by Mr Hooker was not clearly necessary to enable the case to be disposed of fairly in the context of s 177.[17] In short, Mr Shand's affidavit tells me what he did. Why he did what he did,and how he did what he did, will not assist me in deciding whether or not he complied with his obligations under s 177.Did Mr Shand follow the correct procedure in making his decisions?[18] The first error identified by Mr Hooker is that Mr Shand does not say that he took into account the interests of Amanpreet. Mr Hooker recognises that Amanpreet has not been served with a deportation order and she is not a plaintiff in this proceeding. However, Mr Hooker's submission is that Amanpreet's situation mustbe taken into account by Mr Shand in making the decisions to deport Amanpreet'sparents and siblings. Mr Hooker relies upon the decision of the Supreme Court of the United Kingdom in ZH (Tanzania) v Secretary of State.5 The issue in that case was the circumstances in which it is permissible to remove or deport a non citizen parent where the effect will be that a child who is a citizen will also have to leave.4 Chief Executive, Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37, [2014] 2 NZLR 662.5 ZH (Tanzania) v Secretary of State [2011] UKSC 4, [2011] 2 AC 166.The Court based its decision on international obligations relating to the rights of children which Mr Hooker submits are also New Zealand's international obligations.[19] Mr Hooker submits that this case puts the best interests of the citizen child at the centre of a decision to deport. If the best interests of the citizen child are to stay in the country of citizenship then, although that will not be an inevitably decisive factor, it almost always will be.[20] I put it to Mr Hooker that, if he is right, any overstayer from a third world country with a child who is a New Zealand citizen will be allowed to stay in New Zealand for that very reason unless there is some very significant counterweight, such as convictions for serious criminal offending. Mr Hooker accepted that proposition.[21] The reason that the non citizen parent was not deported in ZH (Tanzania) v Secretary of State is because the United Kingdom, as a member of the European Union, is a signatory to the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 of that Convention protects the right to family life and thus deportation of the parent would have interfered with that right. New Zealand is not a party to that Convention and no right to family life is contained within the New Zealand Bill of Rights Act 1990.[22] In ZH (Tanzania) v Secretary of State, Baroness Hale discussed the United Nations Convention on the Rights of the Child (UNCRC) to which New Zealand is a party. She expressly noted that art 3 of UNCRC requires member states to consider the rights of children but they are not the primary consideration:25 Further, it is clear from the recent jurisprudence that the Strasbourg court will expect national authorities to apply article 3.1 of UNCRC and treatthe best interests of a child as "a primary consideration". Of course, despitethe looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration".[23] In my view, Mr Shand did have an obligation under UNCRC to consider the effect on Amanpreet if her family were deported. He realised that. He identified UNCRC as containing applicable international obligations and he listed theapplicable articles, including art 3. In the forms he completed setting out his decisions on the family members, he lists under the facts about personal circumstances, "Child interview with NZ citizen child Amanpreet Kaur from19/09/2013". He also spoke to Mrs Kaur, in particular, at length about Amanpreet'sposition, and recorded her answers in the record of her personal circumstances. He received submissions from lawyers acting for the family. In his affidavit, he deposes:6I considered the submissions and researched information relating to education and health in the Punjab region and other immigration options for Amanpreet Singh, the New Zealand citizen child.[24] In terms of process, Mr Shand demonstrates that he turned his mind toAmanpreet's situation. Against the background of absolute discretion and noobligation to give reasons, that is enough.[25] This is really the main thrust of Mr Hooker's argument. He has other procedural objections, however, which he puts in the balance. The first is that Mr Shand approached the decision making process in two stages. At first, he made decisions about Mr Singh and Mrs Kaur but did not specifically make decisions about Sumeet and Sukhpreet. He realised that he needed to make, and record, separate decisions about them and so he did that subsequently. At the same time he reconsidered Mr Singh and Mrs Kaur's position because it is policy to considerfamily groups as a group and individually.[26] I will dispose of this point quickly. I do not see any error of process. If Mr Shand made a mistake, he rectified it. In the end, he considered, and reconsidered, the material before him and made and recorded his decisions. If there were a valid procedural criticism, I would exercise my discretion to disregard it.[27] The second is Mr Shand did not, as s 177(5)(b) requires him to do, "record the facts about [Mr Singh's and Mrs Kaur's] personal circumstances". What he did,was list the documents which contain the facts he considered.6 Affidavit of Alan John Shand, sworn on 3 February 2014, at [23].[28] The same challenge was raised in Babulal v Chief Executive, Department of Labour7 where the immigration officer listed the documents which contained the substantive facts upon which he based his decision. Counsel for Mr Babulal submitted that was not sufficient to comply with s 177(5). Counsel argued that the facts needed to be set out in a narrative form.[29] Lang J rejected this contention. He considered that a requirement to list every fact in narrative form flew in the face of the language of s 177 which imposed minimal formal requirements upon the immigration officers.8 If s 177(5) was interpreted in such a way it would be an onerous requirement on the officer to list every relevant fact and if he or she failed to do so they would commit a reviewable error.[30] Lang J noted at [75] that the officer can record the material facts upon which his/her decision is based either by recording the facts in narrative form or by listing the documents in which the facts are to be found. In Leung v Chief Executive of Ministry of Business, Innovation and Employment,9 I agreed with this approach.Section 177(5) requires the officer to record the facts about a person's personalcircumstances but it specifies no form requirements as to how this is to be done. In listing the documents in which the personal facts are contained, the officer still has regard to the relevant personal circumstances of the applicant. Mr Shand made no error in listing the documents containing the facts he considered.[31] The third is that Mr Shand did not consider a relevant fact. In his decision of 28 January 2014 relating to Mr Singh, Mr Shand does not list the Record of Personal Circumstances of Mr Singh which he took on 11 September 2013. The same situation applies to the decision in respect of Mrs Kaur.[32] In my view this does not mean there was a reviewable error of procedure. Mr Shand, in his affidavit, makes it clear that having made his decision in respect of Mr Singh and Mrs Kaur, he reviewed those decisions when considering the children7 Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29 September 2011.8 At [74].9 Leung v Chief Executive of Ministry of Business, Innovation and Employment [2013] NZHC 1158.separately. He read again all the existing material. There is nothing in this point which gives rise to an unease that the review of the decisions might, through a procedural error, have given rise to outcomes which should be revisited.[33] The fourth point relates to there being no formal decision initially in respect of Sumeet and Sukhpreet. This was a breach of his statutory duty under s 177, I agree. But it was rectified by the later consideration and, on review, I have no ground to consider that I should require Mr Shand to make the same analysis again.[34] The fifth point relates to the form of words used by Mr Shand in recording his decision. In the records of his first decisions relating to Mr Singh and Mrs Kaur,he used the words, in bold, "I consider that deportation should proceed". In therecords of his second decisions relating to the four family members, he inserts thewords, "I have decided not to cancel the deportation order" before the words inbold. Mr Hooker submits that this shows Mr Shand either misdirected himself or made an error of law. That is because s 177 does not require Mr Shand to reach aconsideration on whether deportation should proceed. In Mr Hooker's submission,this raises a danger that Mr Shand might have focused on the family's illegaloverstayer status rather than on their need to stay in New Zealand.[35] There is nothing in this point. The decision not to cancel a deportation order can only be made if Mr Shand decided that deportation should proceed. The s 177 discretion is absolute. Reasons do not have to be given. Mr Hooker, doing his utmost for his clients, seeks to find real differences in semantics. But, I have a discretion which will only be exercised if I conclude that the semantic differences raise, on the balance of probabilities, a risk of misdirection or error going to outcome. I do not.[36] Finally, Mr Hooker submits that in the context of children being deported, not giving reasons is a breach of procedure. His arguments are the same as those advanced in his application for Mr Shand to be cross-examined. Mr Hooker'ssubmission is summarised by him:1010 Submissions by counsel for the plaintiffs, dated 12 March 2014, at [71].The Immigration Officer has produced no evidence of how he approached the matter. The fact that he stated that he had decided to proceed with deportation (in both instances that phrase was emphasised by the Immigration Officer) is in the submission of Counsel strong and compelling evidence that the Immigration Officer misdirected himself in fact. Lady Hale set out a number of factors to be addressed. The logical and reasonable conclusion is that the Immigration Officer fails to do so and has chosen in this Court not to provide his reasons notwithstanding the fact he has reasons. Counsel repeats earlier submissions about the importance of judicial review in the immigration context in the context of children and is protected by the NZBORA.[37] Again, Mr Hooker wishes to go behind s 177 so as to open up for judicial scrutiny the reasons why Mr Shand made his decisions. In my view, Parliament has made it plain that that is not to be done. Section 177 is clear in its wording, and the legislative background gives the context. It was enacted to overcome the decision of the Supreme Court in Ye v Minister of Immigration.11 In Ye it was held that immigration officers must apply the humanitarian test in what is now s 207 of the Act when considering whether to cancel (what are now) deportation orders. Section 177 specifies there is no such obligation and its other provisions make clear the restrictions on judicial oversight of decisions. It is not for me to find a jurisdiction which Parliament deliberately lost.Are the decisions ones no reasonable immigration officer would make?[38] This ground of judicial review is the one where the Court can have regard tothe broad merits of an immigration officer's decision under s 177. It is a limitedjurisdiction because it does not empower the Court to quash an officer's decisionsimply because the Court would reach a different view. The inquiry is whether the facts and the law lead to a conclusion that no reasonable immigration officer would have made the decisions not to cancel the deportation orders.12[39] In Mr Hooker's submission, it is quite clear from the material before Mr Shand that the standard of living of all three children would be drastically downgraded if they have to live in India. Their prospects for advancement in life would be much less due to disparities in the education systems of India and New Zealand. They are more likely to get sick in India and, if they do, will not have11 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.12 Puli'uvea v Minister of Immigration, above n 1.access to a health system comparable to that of New Zealand. Further, as a New Zealand citizen, Amanpreet would not have, as of right, the same access toIndia's institutions as Indian citizens.[40] I accept Mr Hooker's submission. The issue is whether this makesMr Shand's decisions ones no reasonable immigration officer would make.[41] An immigration officer must act in accordance with New Zealand'simmigration law. That is the context for the exercise of the s 177 absolute discretion.[42] As a sovereign nation, New Zealand reserves to itself the right to determine access to its territory by people who are not citizens. The Act imposes an obligation on all persons not in New Zealand lawfully to leave, and provides – as a last resort –for the deportation of those who fail or refuse to do so.[43] Section 177 does have a focus on New Zealand's international obligations.Among them, as Mr Shand recognised, is UNCRC. Article 3 provides that in all actions concerning children, their best interests shall be a primary consideration.13But, as recognised by the Court of Appeal in Liu,14 those interests are not "the"primary or paramount consideration in immigration decisions.[44] The factual material provided to Mr Shand, and the material he researched on his own initiative, is to the effect I set out in [39]. It will very frequently be the case that children required by law or associated circumstance to leave New Zealand so as to reside with their parents in a third world country will experience the deprivations I have described. But if the likelihood of those deprivations meant that no reasonable immigration officer would fail to cancel deportation orders then the integrity of New Zealand's immigration system would be compromised. All that would be necessary to avoid the requirement to leave the country if in it illegally, would be to overstay until children were sufficiently acclimated to the New Zealand way of life to make the contrast in living conditions palpable. That is not what Parliament13 In fact, New Zealand entered a reservation concerning children unlawfully in New Zealand so, strictly speaking, the letter of the Convention applies only to Amanpreet. See Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24] and [25].14 Chief Executive, Ministry of Business, Innovation and Employment v Liu, above n 4, at [15].intended when it enacted s 177. It is significant that not only is there no particular test, but the humanitarian grounds test under s 207 is specifically excluded as an obligation on the immigration officer.15[45] Of course, there will be circumstances where the interests of children, whether or not they are citizens, will be the controlling consideration. For example, if a child has a life-threatening medical condition which will not be treated in the country of deportation. Or, perhaps, if a girl who had lived as a New Zealander for most of her life faced deportation to a country which had extremely restrictive religious laws on the rights of females.[46] In this case, Mr Shand turned his mind to the factual material before him which included material on the education and health systems in the Punjab. He considered the material and submissions put before him by and on behalf of Amanpreet and her siblings. He was not required to adopt any particular test. He was specifically not required to adopt a humanitarian test. He decided not to cancel the deportation orders. The consequences for Amanpreet, Sumeet and Sukhpreet will be hard, but not to an extent which overwhelms16 considerations such as the integrity of the immigration system. Mr Shand's decisions were within the scope of his discretion and I cannot say that no reasonable immigration officer would have made them.Decision[47] The application is dismissed.[48] I make no order for costs.________________________________Brewer J15 I note that Woodhouse J made similar observations in Nair v Chief Executive of the Department of Labour [2013] NZHC 358 at [31].16 Wellington City v Woolworths NZ Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.