McKELVEY v MINISTER OF IMMIGRATION [2017] NZHC 430

McKELVEY v MINISTER OF IMMIGRATION [2017] NZHC 430 [14 March 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2016-409-510[2017] NZHC 430BETWEEN LEONORA ATETEO McKELVEYPlaintiffAND MINISTER OF IMMIGRATIONDefendantHearing: 13 March 2017 (By way of telephone conference)Appearances: A Toohey for PlaintiffM Conway and O Upperton for DefendantJudgment: 14 March 2017JUDGMENT OF DUNNINGHAM J[1] The applicant has, belatedly, sought particular discovery, pursuant to s 10 Judicature Amendment Act 1972, of the one page document containing reasons for the Minister of Immigration's (the Minister) refusal to grant the applicant a visa.[2] While it was accepted that the Minister has the statutory power to withhold reasons,1 the applicant relies on the Court's power to order discovery if there is a realrisk that Wednesbury unreasonableness is present. 2 The applicant submitted that thiswas a case that met that "rare threshold" and that discovery was necessary for theCourt to properly conduct the exercise of judicial review of the decision.[3] The Minister has opposed discovery on the grounds that there is no real risk of Wednesbury unreasonableness, having regard to the particular circumstances of this case.1 Immigration Act 2009, s 11(1)(c)(i).2 Zhang v Associate Minister of Immigration [2016] NZCA 361 at [26].[4] Given the matter is scheduled to go to hearing on 16 March 2017, I convened an urgent telephone conference where the parties spoke to their written submissions on this issue.[5] At the conclusion of the telephone conference, I declined the application for discovery, with reasons to follow. This decision sets out those reasons.Factual background[6] Mrs McKelvey is aged 65. She was born in the Philippines and lived there most of her life.[7] In June 2001, during a period of financial hardship, Mrs McKelvey was offered the opportunity to obtain work as a maid in Italy at an appealing salary. The offer was made by a local police officer. Mrs McKelvey was told she would have to pay a sizeable fee, which equated to approximately $NZ11,500. Mrs McKelvey'sfamily contributed to the fee and she paid it to the police officer. She also provided her passport to the police officer for the purpose of securing the work visa and an airline ticket to Italy.[8] In November 2001, Mrs McKelvey was taken to the airport by the policeofficer's wife, and was provided with a passport which the police officer's wife toldher to sign and use. Mrs McKelvey says that, on the basis of the assurances that all would be okay, and because she considered she had no choice but to go to Italy, she carried on with her journey via Hong Kong. At Hong Kong airport she was detained, arrested and charged with having a false document. Without the funds to mount a defence, she pleaded guilty and was sentenced to six months' imprisonment and wasthen the subject of a deportation order from Hong Kong.[9] On her return, she made a complaint to the public prosecutor against the police officer and his wife. As the result of steps taken, she was repaid some of the money she paid the police officer, but he died before payment was complete.[10] Mrs McKelvey came to New Zealand on 5 June 2014 to visit her son's familywho live in Marlborough. She arrived on a six month visitor's visa, and then applied for, and was granted, a further six month visitor's visa, while she was staying with her family in Marlborough. On neither occasion did she declare the conviction anddeportation order. In early 2015, and before her second visitor's visa expired, she met and married her husband, David McKelvey. She then sought a partnership visa on the basis of her marriage. She obtained the services of a licensed immigration adviser, Mr John Horan, whose terms required full disclosure of any adverse history. Mrs McKelvey then disclosed the Hong Kong events in her application for a partnership visa which was submitted on 2 March 2015.[11] Immigration New Zealand (INZ) issued Mrs McKelvey with an interim visa while they considered her application. This was in place from March 2015 until 5 September 2015. As INZ's enquiries with the Hong Kong authorities confirmedthat Mrs McKelvey had been the subject of a deportation order in Hong Kong, this meant she was unable to be granted a temporary visa unless a special direction was made under s 17 of the Immigration Act 2009 (the Act).[12] On 14 August 2015, INZ sent a letter outlining concerns that Mrs McKelvey did not meet character requirements unless a character waiver was granted, due to her non-disclosure of the Hong Kong conviction in her first two applications for avisitor's visa. The letter also explained that Mrs McKelvey's health had beenassessed as not of acceptable standard, and therefore she would not be eligible for a temporary entry class visa unless she also obtained a medical waiver.[13] On 16 October 2015, INZ declined to provide a character waiver and therefore declined the application for a partnership visa.[14] Mrs McKelvey's temporary visa had expired on 5 September 2015 andconsequently she was unlawfully in New Zealand at the time she was advised that the partnership visa application was declined. This prevented her from seeking reconsideration of the decision.33 Immigration Act 2009, s 185.[15] Instead, she made an application for work visa pursuant to s 61 of the Act, which enables INZ to grant a visa to any person who is unlawfully in New Zealand, and for consideration to grant a visa retrospectively under s 17.[16] On 15 February 2016, she made a direct request to the Associate Minister of Immigration providing additional information, including the affidavit of the public prosecutor from the Philippines and exhibits supporting her explanation that she had been the victim of a scam and that this had resulted in criminal charges being laid against the police officer.[17] Her application was considered by the Minister's delegated decision-maker (DDM) but the final decision on 13 May 2016 was to refuse to grant Mrs McKelvey a temporary visa under s 61 of the Act. The DDM noted "as s 11 of theImmigration Act 2009 applies I am not obliged to give reasons for my decision".[18] Mrs McKelvey has sought review of that decision on the basis that it "erred in law", failed to take into account relevant considerations, was unfair, and was unreasonable in that "any reasonable decision-maker in receipt of the material provided by her would not have reached that decision".The statutory framework[19] Mrs McKelvey requested that the Minister grant her a temporary visa under s 61 of the Act. That section provides:61 Grant of visa in special case(1) The Minister may at any time, of the Minister's own volition, grant avisa of any type to a person who—(a) is unlawfully in New Zealand;(b) is not a person in respect of whom a deportation order is in force; and(c) is not a person in respect of whom a removal order is in force.(2) A decision to grant a visa under subsection (1) is in the Minister'sabsolute discretion.[20] The reference to the decision being in the Minister's absolute discretion isexplained in s 11 of the Act. That section provides:11 Meaning of absolute discretion of the decision makerIf a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that—(a) the matter or decision may not be applied for; and(b) if a person purports to apply for the matter or decision, there is no obligation on the decision maker to—(i) consider the purported application; or(ii) inquire into the circumstances of the person or any other person; or(iii) make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and(c) whether the purported application is considered or not,—(i) the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies;(ia) privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decisions relating to the purported application; and(ii) section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application.[21] As was noted in Zhang, this definition of absolute discretion gives "bleak prospects for judicial review unless Wednesbury unreasonableness can beidentified".4This application[22] The applicant now seeks discovery of the one page document containing reasons for the decision-maker's refusal to grant her a visa. She accepts that therespondent has the statutory power to withhold reasons, but relies on the Court's4 At [14].power to make an order for discovery of recorded reasons if the applicant can point to a real risk that Wednesbury unreasonableness is present. In this regard, the applicant cites Cao v Ministry of Business, Innovation and Employment, where Fogarty J granted an application for discovery pursuant to s 10 Judicature Amendment Act 1972, saying:5[38] The Australia and United Kingdom authorities are consistent with my understanding of the function of judicial review and the responsibilities of it. There is a very real distinction between the ability of private individuals to require information on immigration files and the ability of the High Court, seized with an application for judicial review, to know what the reasons for the decision are, particularly when the Court has evidence that there will be reasons, because of an internal circular requiring those to be written down.[39] The Court will examine those reasons taking into account the"absolute discretion" conferred on the decision-maker by the statute. Consideration of the reasons by the High Court does not thereby undermine the statutory scheme but simply performs the essential function of examining the decision to ensure that all statutory powers are exercised in good faith, for their proper purpose. There will be an order for discovery of those reasons. There will be leave to apply for further discovery, after examination of those reasons.[23] However, it does not follow that discovery will be permitted in all applications for judicial review. As the Court of Appeal in Zhang said:[26] We make it clear that we do not consider that Cao is authority for the proposition that any applicant for judicial review of a s 61 decision is entitled to discovery of recorded reasons. That would undermine the statutory scheme that reasons do not have to be given and cannot be obtained under the Official Information Act. In our view, discovery should not be ordered unless the applicant can point to a real risk that Wednesburyunreasonableness is present.Is there a real risk that Wednesbury unreasonableness is present?The applicant's submission[24] The applicant submits that discovery should be ordered because it is not clear that the DDM had regard to the delay in reaching INZ's decision of 16 October 2015not to allow the applicant a visa, and that frustrated Mrs McKelvey's right toreconsideration pursuant to s 185 of the Act. The applicant relied on the decision inAwan v Minister of Immigration, to say that INZ could not unreasonably frustrate an5 Cao v Ministry of Business, Innovation and Employment [2014] NZHC 1551 at [38]-[39].applicant's access to the right of reconsideration. 6 Thus, when an applicant submits an application reasonably in advance of the expiry of his or her current permit, INZ must act reasonably in the processing of the application to protect the right of reconsideration conferred by the Act. The applicant submits that, by not making a decision until more than one month after the expiry of the temporary visa, INZ unreasonably frustrated Mrs McKelvey's right to reconsideration of the applicationand the DDM not take this into account because the case note from INZ did not contain any detail on this point.[25] She also argues that the DDM was briefed as to the fact that a character waiver had been declined by INZ, but not the "flawed reasoning adopted by INZ staff in reaching that decision". Specifically she refers to the assessment prepared by INZ staff which declined the character waiver noting "no evidence of the scam hasbeen provided. Client keeps claiming she is a victim and has not expressed anyremorse". Because the applicant says there was "overwhelming evidence that Mrs McKelvey was the victim of a scam in 2001", there must be some doubt as to whether that was understood by the DDM when making his decision and this is a circumstance which would justify disclosure of his reasons.The respondent's submissions[26] The Minister accepts the applicant's explanation of the legal principlesrelating to the discovery of the decision maker's reasons and that discovery should only be ordered if Mrs McKelvey can point to a real risk that Wednesburyunreasonableness is present.[27] Noting that the threshold of Wednesbury unreasonableness is a decision thatwas "outside the limits of reason", "so outrageous in its defiance of logic or ofaccepted moral standards", or "so absurd that [the decision-maker] must have takenleave of his senses", Mr Upperton submitted that there was no real risk of that threshold being met in this case.7 The Minister submits that the alleged INZ delay is not relevant to this issue. This was not a case like Awan, where the applicant had not contributed to the delays. Here, the evidence was that the application had been6 Awan v Minister of Immigration [2000] NZAR 655 at [21]-[32].7 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.processed diligently and when INZ required further information, Mrs McKelvey'sadviser was slow to provide that and to respond to INZ's concerns. He did not provide a full response to INZ's letter until two weeks after her interim visa hadexpired, and so the time taken after this made no difference to Mrs McKelvey'simmigration status or her s 185 rights.[28] However, even if there was an ordinate delay, the Minister says this issue was before the decision-maker, when deciding Mrs McKelvey's ss 17 and 61 request,and, where reasons are withheld under s 11(1)(c)(i), this Court has drawn inferences from the information provided to the decision-maker to ascertain what matters were taken into account.8[29] The case note prepared for the decision maker expressly referred to Mrs McKelvey's claim that "the excess time taken by INZ to complete the application within the time provided by the interim visa detracted from Mrs McKelvey's right to appeal to the IPT", and that, "due to the process [ofMrs McKelvey's partnership visa application] taking so much time, Mrs McKelvey's interim visa of six months expired". Thus, her concerns that INZ's delays meant shelost her right of appeal were before the decision-maker and he has given sworn evidence that he considered the information contained in her request.[30] In my view, nothing in the assertion that there was delay by INZ comes close to the threshold of there being an unreasonable decision in the Wednesbury sense.[31] In respect of the second issue, which is whether there was a risk the decision was unreasonable in the Wednesbury sense because the DDM did not have regard to the evidence that Mrs McKelvey was a victim of a scam, the Minister again relies on the fact that Mrs McKelvey's account of events was before the decision maker. This was through both the submissions of her immigration adviser and was recorded in the case note prepared for the decision maker.8 For example in Ning v Minister of Immigration [2016] NZHC 697 at [48]; and Pesamino v Minister of Immigration [2012] NZHC 4 at [23].[32] Had there been any real doubt whether the full position was put before the DDM, I would have allowed the application for discovery. However, I am satisfied that neither circumstance arises here, and as a consequence, I am not prepared to order discovery as sought.Result[33] The application for discovery of the Minister of Immigration's reasons for hisdecisions not to grant the applicant a special direction under s 17 of the Immigration Act 2009, and a visa under s 61 of the Immigration Act 2009 is declined.Solicitors:Anne Toohey, Barrister, ChristchurchCrown Law, Wellington