NAIR v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 345

NAIR v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2016] NZHC 345 [3 March 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-0154[2016] NZHC 345UNDER THE Judicature Amendment Act 1972 & Part30 of the High Court RulesAND Immigration Act 2009AND THE New Zealand Bill of Rights Act 1990IN THE MATTER an application for judicial review underPart 1 of the Judicature Amendment Act1972 and a claim for breach of the Bill ofRightsBETWEEN MILAN SANKUNNY NAIRPlaintiffAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTDefendantHearing: 22 February 2016Further evidence from plaintiff 25 February 2016Additional memorandum from defendant 1 March 2016Counsel: R Sathiyanathan for PlaintiffM J Hodge and K H Lawson-Bradshaw for DefendantJudgment: 3 March 2016JUDGMENT OF DUFFY JThis judgment was delivered by me on 3 March 2016 at 4.30 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:McClymont and Associates, AucklandMeredith Connell, Auckland[1] The plaintiff, Milan Nair, applies for interim relief to restrain the respondentfrom implementing Mr Nair's deportation from New Zealand until such time as thisCourt hears and determines Mr Nair's judicial review of the decision not to cancel thedeportation order.1[2] The application is opposed by the respondent, who is the chief executive of thegovernment department responsible for administering the Immigration Act 2009 (theAct). The Act provides the legislative authority for the deportation order.Facts[3] Mr Nair is a citizen of India. He entered New Zealand on 11 November 2009and was granted a student visa to 1 May 2011. He applied for a further student visaon 21 April 2011 which was granted on 7 June 2011 and expired on 30 October 2011.Mr Nair remained in New Zealand after the expiry of his second student visa. Heaccordingly became unlawfully present in New Zealand on 1 November 2011 and hasremained so.[4] Since he has been in New Zealand Mr Nair has entered into a de factorelationship with a New Zealand born citizen, whom he first met in 2014. They havea biological child M who was born eight weeks premature in September 2015.Mr Nair's partner is the mother of another child L who was born in October 2014. Asthe de facto partner of L's mother, Mr Nair is the step-father of L.2 Each child hashealth problems of which more will be said later.[5] Mr Nair took no steps to regularise his illegal status in New Zealand until 14January 2016 when he requested a visa under s 61 of the Act.3 He has provided thefollowing summary of events in his affidavit:6. On or around 10 January 2016, my partner and I managed to save upenough money to lodge a s61 request with Immigration New Zealand.We could not afford a lawyer and so we lodged the application by1 Mr Nair initially sought an interim injunction. However, the respondent had approached theapplication as if it had been made under s 8 of the Judicature Amendment Act 1972 and at thehearing Mr Nair's counsel acknowledged that s 8 provided the more appropriate procedure.2 See s 29B of the Interpretation Act 1999.3 Section 61 authorises the Minister of Immigration to grant a visa of any type to a person whosatisfies the requirements of s 61, which at the time Mr Nair did.ourselves and gave Immigration New Zealand all the documents aboutour children, our relationship and our medical issues.7. I did not get any response from Immigration New Zealand and I keptcalling the Immigration Contact Centre for an update. I was told thatit was with a case officer.8. On 27 January 2016, Immigration officers came to my house and tookme away from my family. I was also served with a deportation order.[6] Once Mr Nair had been served with a deportation order he became ineligiblefor consideration under s 61 because he was then a person who was subject to adeportation order.4 Accordingly, on 28 January 2016 an officer of Immigration NewZealand (INZ), a business unit within the respondent's department, refused to considerMr Nair's request under s 61.[7] Mr Nair was not entitled to appeal against the deportation order because he hadbeen unlawfully in New Zealand for more than 42 days.5 However, s 177(2) of the Actstates that: an immigration officer must consider cancelling the deportation order of aperson who is in New Zealand if the person provides information to the officerconcerning his or her personal circumstances, and the information is relevantto New Zealand's international obligations.[8] There is no right of appeal from the decision of the immigration officer.[9] Following service of the deportation order on Mr Nair he was taken into Policecustody and while he was in Police custody James Casson, an officer of INZ conducteda record of personal circumstances interview with Mr Nair. That same day anotherofficer of the respondent interviewed Mr Nair's de-facto partner.[10] On 3 February 2016 Mr Casson considered the information available to him aswell as the applicable international obligations and decided under s 177 of the Act notto cancel the deportation order made in relation to Mr Nair, which meant that hisdeportation should proceed. Mr Casson listed the international obligations and the4 See Immigration Act 2009, s 61(1)(b).5 Immigration Act, s 154(2).material that he considered. He elected not to give reasons for his decision as under s177(4)(a) he is not obliged to give reasons.[11] Mr Casson's decision not to cancel the deportation order is the subject ofMr Nair's judicial review proceeding. Mr Nair understandably wants to remain inNew Zealand until his judicial review is determined; hence this application for interimrelief. The respondent wants to deport Mr Nair pending the outcome of the judicialreview on the basis that Mr Nair is someone who is illegally in New Zealand, and thathis judicial review can proceed even if Mr Nair is not present in this country.Approach to interim relief under s 8[12] Section 8(1) of the Judicature Amendment Act 1972 provides as follows.8 Interim orders(1) Subject to subsection (2) of this section, at any time before the finaldetermination of an application for review, and on the application ofany party, the Court may, if in its opinion it is necessary to do so forthe purpose of preserving the position of the applicant, make aninterim order[13] The threshold for granting interim relief under s 8 in relation to an immigrationmatter was set out by the Court of Appeal in Parmanadan v Minister of Immigration:6It is common ground that the appellant cannot obtain relief from this Courtunless he can establish that he has at least a respectable chance of success inrelation to his challenge to his proposed removal. He must also show that themaking of an interim order is appropriately necessary to preserve his currentstatus, an issue which must be addressed in the context of the scheme andpurpose of the legislation.[14] The Court of Appeal held that in order to show interim relief was necessary topreserve an applicant's current status an applicant would need to show the existenceof any adverse consequences arising from deportation. These would need to be:7 established by evidence and assessed in the context of both a legislativescheme under which the overstayer is necessarily illegally in New Zealandand is under a legal duty to leave and also a legislative policy under whichthose who break the rules are not to be advantaged over those who comply.6 Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424 at [10] (footnotesomitted).7 At [11].Will Mr Nair suffer adverse consequences if he is deported before his judicialreview is heard and determined?[15] I propose to deal first with the question of whether it is necessary to preserveMr Nair's current status, which is that of someone who is unlawfully in New Zealand.[16] The respondent submitted that the decision in Parmanadan v Minister ofImmigration was directly on point.8 Like the present case, the application for interimrelief in Parmanadan arose in relation to the decision of an immigration officer not tocancel a deportation order in respect of the applicant, who had overstayed his visa.The legislation in force at that time was the Immigration Act 1987 and s 58 of that Actconcerned the cancellation of a removal order. The crucial provisions of that sectionwere as follows.58 Cancellation of removal order(1) An immigration officer who has been designated by the chiefexecutive for the purpose of making removal orders under section 54may, at any time while the person named in the removal order is stillin New Zealand, cancel a removal order that has been served byendorsing a copy of the order accordingly, and personally serving thatcopy on the person named in the order.(4) In the case of a person who has already been removed from or has leftNew Zealand, an immigration officer of the type referred to insubsection (1) may cancel a removal order by sending the personnamed in it a notice to that effect in the prescribed form.(5) Nothing in this section gives a person a right to apply to animmigration officer for the cancellation of a removal order. However,an immigration officer must consider cancelling the removal order ofa person who is in New Zealand if the person provides information tothe officer concerning his or her personal circumstances, and theinformation is relevant to New Zealand's international obligations.[17] Subsection (5) is substantively replicated in s 177 of the current Act.Subsections (1) and (4) are not.8 Parmanadan v Minister of Immigration, above n 6.[18] In Parmanadan the Court of Appeal recognised that the scheme and purposeof the Immigration Act 1987 required officers making decisions on cancellation ofdeportation orders either to decide not to cancel the order, in which case the overstayerwas deported (if he or she did not first leave voluntarily), or to grant him or herpermission to remain in New Zealand. Quoting from its earlier decision in Huang vMinister of Immigration9 the Court of Appeal in Parmanadan stated:10As this Court put it in Huang:[45] The discretions under ss 54 and 58(5) can only sensiblybe exercised in the context of the scheme of the Act as a whole – ascheme which contemplates that those in New Zealand illegallymust either leave or obtain a permit. Immigration officers cannotexercise discretionary authority so as to leave an overstayer in legallimbo (ie in New Zealand unlawfully but not required to leave). Theend result of the process should be that the overstayer either leavesNew Zealand (compulsorily if necessary) or has his or herimmigration status regularised, perhaps under ss 35A or 130.[19] The concerns that were recognised in Huang influenced the Court of Appeal inParmanadan in a way that led the Court to conclude that denial of interim relief wouldnot have adverse consequences for a person judicially reviewing a decision not tocancel a deportation order:11[9] This is an important aspect of the present case. In previous caseswhere interim relief has been sought, the assumption has usually been thatunless the status quo (ie the overstayer's continuing presence in New Zealand)is maintained, the overstayer's right to challenge removal will (or may) beirretrievably damaged on the basis that the overstayer, even if successful inthe review proceedings, may not be permitted to return to New Zealand. Incontrast, s 58(4) contemplates that a removal order may be cancelled despitean overstayer having left New Zealand. And once it is appreciated that thecorollary of an ultimately successful challenge by the appellant to his removalwill be a grant of permission to reside in New Zealand, the need for an interimorder in cases such as the present might be thought to fall away, at least inlarge measure.[10] To be more specific, the corollary of an ultimately successfulchallenge by the appellant to his removal will be a grant of permission toreside in New Zealand. In other words, the end point of the whole process(which may include reconsideration of his case by an immigration officer) willbe either the appellant's removal, or him being permitted to stay in NewZealand. Armed with such permission, the appellant, even if removed in themeantime, will be able to return to New Zealand. So allowing him to be9 Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700.10 At [8].11 At [9] (emphasis added).removed would not compromise his legal rights should his challenge toremoval be ultimately successful.[20] I agree with the Court of Appeal that the outcome of a successful applicationfor cancellation of a deportation order should be that the person is permitted to residein New Zealand. However, I find it difficult to see how I can draw such a conclusionin relation to the Act which is currently in force. There is no equivalent to s 58(4) ofthe Immigration Act 1987 in the current Act and I cannot identify any section in thecurrent Act that would allow an overstayer who has already left or been deported fromNew Zealand to re-enter the country as of right.12 Section 14 of the Act provides thata person who is not a New Zealand citizen must hold a visa in order to travel to andbe in New Zealand. Mr Nair would not possess a visa and there is no provision that Ican see which would require INZ to grant him one. From what I see of the Act'sprovisions, once Mr Nair is outside New Zealand for him to return he would need toshow that he came within one of the categories of persons who ordinarily would begiven permission to enter New Zealand.13 If Mr Nair could not establish himselfwithin one of those categories, he would not get permission to return to New Zealand.[21] This situation concerns me for three reasons.[22] First, deporting Mr Nair at this stage of the proceeding may undermine anysubsequent reconsideration of the decision regarding cancellation of the deportationorder. If Mr Nair is deported now and if he is ultimately successful in his judicialreview application, the most he is likely to achieve is that the refusal to cancel thedeportation order will be set aside.14 At that stage there would need to be a freshconsideration of the refusal to cancel a deportation order that had already in fact been12 Sections 35A and 130 of the Immigration Act 1987 were referred to in Huang as possiblemechanisms for regularising the status of an overstayer who was in New Zealand. These sectionsare substantially reproduced in ss 61 and 378 of the current Act. However, those sections do notappear to have applied to an overstayer who has already left New Zealand.13 I cannot see provision for a visa permitting someone to enter and to remain in New Zealand as aspecial case. If Mr Nair is deported to India at this stage and if his deportation order issubsequently cancelled, the only benefit which seems to accrue to him is that he may not beautomatically prohibited from entering New Zealand (with a visa) in the future: see s 179 of theAct.14 This judicial review is not like those rare cases where the impugning of an administrative decisionmay result in the Court making a declaration of entitlement to the discretionary benefit the plaintiffseeks as occurred in Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR341. I cannot see a Court declaring that Mr Nair is entitled to a visa permitting him to remain inNew Zealand.implemented, in which case the INZ officer could hardly ignore the change ofcircumstances that necessarily would have arisen. Factors that may favourcancellation of the order while Mr Nair remains in New Zealand may no longerrealistically be engaged once he, either alone or together with his family, is in India.[23] Secondly and more importantly, deporting Mr Nair at this stage of theproceeding may affect Mr Nair's future entitlement to reside in New Zealand. If on are-consideration of Mr Nair's request for the deportation order to be cancelled the INZofficer decides in his favour, there is no automatic entitlement for Mr Nair to return toNew Zealand. Thus, if Mr Nair is deported at this stage of the proceeding,cancellation of the deportation order will not give rise to any right to live in NewZealand, because Mr Nair will not be able to re-enter the country. Mr Nair's futurewill effectively have been determined by the initial decision not to cancel thedeportation order, even though that decision was subsequently overturned. On theother hand if Mr Nair remains in New Zealand, and if his judicial review is successful,and if on re-consideration the deportation order is set aside, he will be entitled toremain in New Zealand for the time being, with a view towards regularising his statusin some way.[24] Thirdly, the Nair family are of modest means. Mr Nair does not work and hispartner is on a benefit. If he is deported and is then successful in his judicial reviewproceeding he may not be able to afford return travel to New Zealand.[25] The respondent argues that if Mr Nair had complied with his visa requirementshe would necessarily have had to leave New Zealand which would entail travel costsfor him. That may be so and I acknowledge that the cost of travel to New Zealandfollowing a successful judicial review can probably be equated to the cost of travelfrom New Zealand if Mr Nair had fulfilled his visa requirements.[26] As the respondent would have it, one set of travel costs would cancel out theother and in that sense Mr Nair would not suffer adverse consequences if, followinghis deportation from New Zealand, he subsequently had to pay to return to this country.Further, the respondent relies on the well settled principle that those who contravenethe Acts' requirements should not be advantaged over those who do not. However, inmy view that is to look at the matter in the wrong way. The fact is that Mr Nair ispresently in New Zealand and he has commenced a judicial review against MrCasson's refusal to cancel the deportation order. The Act allows him to judiciallyreview this decision, which in turn leaves open the possibility the review will succeedwith the prospect that Mr Nair will be permitted to remain in New Zealand. Thus, tothis limited extent, Parliament has allowed for someone who is unlawfully in NewZealand to be advantaged, by being able to remain here in a way that those who havenot overstayed their visas do not enjoy. I consider therefore that if Mr Nair'sdeportation may place him at risk of being prevented from enjoying the benefits of asuccessful judicial review. This is an adverse consequence that supports the grant ofinterim relief.[27] If Mr Nair remains in New Zealand and his judicial review is successful, hewill be able to enjoy the benefit of that success.15 But if he is in India and his judicialreview is successful he will not be able to enjoy the successful outcome unless hereturns to New Zealand, which will depend on whether he can afford the cost of travelto New Zealand. If he cannot afford such cost, which is what the evidence suggests,his success in the judicial review proceeding will be no more than a Pyrrhic victoryfor him. This, in my view, is an adverse consequence for Mr Nair.[28] It is clear to me, therefore, that the consequences of deporting Mr Nair now areso adverse to his interests that they meet the threshold for an order preserving hiscurrent status. It follows that Mr Nair has met one arm of the legal test for grantinghim interim relief.Is there a respectable case for judicial review?[29] I now turn to consider if Mr Nair has a respectable case for judicial review.[30] The grounds on which Mr Nair sought the interim order were as follows.i. The Respondent's decision to deport Mr Nair is unreasonable.15 On reconsideration the same outcome may be reached in which case the victory will be short lived,but if the reconsideration leads to a decision to allow Mr Nair to remain in New Zealand theMinister can give him a visa under s 61 of the Act and he will be able to remain in New Zealandwith his family.ii. The Respondent did not exercise its discretion in a fair and justmanner.iii. The Respondent failed to properly take into account the relevantinternational obligations that were applicable to Mr Nair, his citizenwife and his citizen children.iv. Mr Nair and his family would suffer undue harm if he is deported fromNew Zealand on 11 February 2016.v. Mr Nair has a reasonable chance of success in the judicial reviewproceedings.vi. Mr Nair is not a flight risk.[31] I acknowledge that there is "extremely limited" scope for judicial review of MrCasson's decision.16 Such limitation was well described and affirmed in Singh v ChiefExecutive Ministry of Business, Innovation and Employment.17 Nonetheless, as wasrecognised by the Court of Appeal in Chief Executive of the Ministry of Business,Innovation and Employment v Liu, "the courts may at least review an immigrationofficer's decisions for compliance with" the limited requirements of s 177 of the Act.18[32] Section 177(1) gives an immigration officer an absolute discretion to decidewhether to cancel a deportation order or not. The term "absolute discretion" is definedin the Act to mean that:19(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 noobligation on the decision maker to—(i) consider the purported application; or(ii) inquire into the circumstances of the person or any otherperson; or(iii) make any further inquiries in respect of any informationprovided by, or in respect of, the person or any other person;and(c) whether the purported application is considered or not,--16 See Babul v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29September 2011 at [29].17 See discussion in Singh v Chief Executive of the Ministry of Business, Innovation and Employment[2014] NZCA 220, [2014] 3 NZLR 23 at [42]—[50].18 Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37,[2014] 2 NZLR 662 at [28].19 Immigration Act, s 11(1).(i) the decision maker is not obliged to give reasons for anydecision relating to the purported application, other than thereason that this section applies; and(ia) privacy principle 6 (which relates to access to personalinformation and is set out in section 6 of the Privacy Act 1993)does not apply to any reasons for any decision relating to thepurported application; and(ii) section 27 of this Act and section 23 of the OfficialInformation Act 1982 do not apply in respect of the purportedapplication.[33] However, the absolute discretion in s 177(1) is tempered by the requirementsof subss (2) and (3). Subsection (2) requires an immigration officer to considercancelling a deportation order under some circumstances; while subs (3) states thatwhen considering whether to cancel a deportation order, an immigration officer "musthave regard to any relevant international obligations."[34] Furthermore, while an immigration officer is entitled to "make a decision as heor she thinks fit",20 this does not mean that he or she has authority to act arbitrarily orcapriciously. The immigration officer's decision must not be unreasonable, in theWednesbury sense of that term.21Does the absence of reasons prevent a court from judicially reviewing thedecision?[35] As was recognised by the Court of Appeal in Singh the absence of reasons forthe refusal to cancel a deportation order poses an obstacle for a court charged withjudicially reviewing this decision, particularly when the court must reach a view onwhether the limited requirements of s 177 have been taken into account or not.22[50] As this Court observed in the passage in Liu set out in [43] above, areviewing court can check the IO's compliance with the requirements of s 177,particularly s 177(5).23 Beyond that, the fact that the IO is not obliged to givereasons for his or her decision represents an obvious obstacle to the court20 Immigration Act, s 177(3)(a).21 Singh v Chief Executive of the Ministry of Business, Immigration and Employment, above n17, at[64].22 Singh v Chief Executive of the Ministry of Business, Immigration and Employment, above n 17, at[50].23 Section 177(5) provides that, "to the extent that an immigration officer does have regard to anyinternational obligations, the officer is obliged to record a description of the internationalobligations; and the facts about the person's personal circumstances."reviewing whether the best interests of an affected child have genuinely beentaken into account by the IO.[36] This led the Court of Appeal in Singh to conclude that:24[66] The only inference available from Mr Shand's affirmation ofperformance of his obligations under s 177 is that, in accordance with NewZealand's international obligations, he has treated Amanpreet's interests as aprimary consideration. But, within his discretionary power, he has decided thatthe statutory requirement to ensure the integrity of New Zealand'simmigration system – what may generally be termed "the national interest" –must prevail. A Court cannot inquire further. In these circumstances, applyingthe Wednesbury approach, it cannot be "there could be only one answer",namely that the IO should have cancelled the deportation orders. We aresatisfied that the IO reached a decision that was reasonably open to him on allthe facts and having regard to New Zealand's international obligations.[37] The respondent sought to persuade me that the present case was met with thesame obstacles as were present in Singh. However, I do not accept that the absence ofreasons will always represent "an obvious obstacle" to the court on judicial review.[38] Courts have long been faced with decisions of the Executive that are givenwithout reasons. When there is no legal obligation to give reasons it does notnecessarily follow that the court is, therefore, precluded from making an assessmentof the decision in terms of how it accords with the requirements of administrative law.There have been occasions where courts have drawn adverse inferences fromunreasoned decisions. In the seminal case of Padfield v Minister of Agriculture,Fisheries & Food Lord Reid stated:25I do not agree that a decision cannot be questioned if no reasons are given. Ifit is the Minister's duty not to act so as to frustrate the policy and objects ofthe Act, and if it were to appear from all the circumstances of the case that thathas been the effect of the Minister's refusal, then it appears to me that the courtmust be entitled to act.[39] The same was said by this country's Court of Appeal in Fiordland Venison Ltdv Minister of Agriculture where in the absence of a decision for which reasons hadbeen given or an affidavit from the Minister setting out the reasons for his decision the24 At [66].25 Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997 at 1032G-1033A.court was left to infer from the evidence available to it what those reasons might havebeen:26In the absence of a statement by the Minister of the reasons for his decisionthe first step is to assess the information which it is known was before himwhen he made the decision.[40] Both in Padfield and in Fiordland Venison the absence of reasons did not deterthe court from finding that the subject decision was flawed and so susceptible to thegranting of relief.Did Mr Casson have regard to the relevant international obligations?[41] As noted above, s 177(3) of the Act means that Mr Casson was required to haveregard to any relevant international obligations when he considered whether or not tocancel the deportation order against Mr Nair. Mr Casson included a list of relevantinternational obligations in his final published decision, including a number ofobligation that related to the importance of the family unit as well as the health andwell being of children.27 Such obligations would be engaged if Mr Nair were deportedfrom New Zealand because his removal from this country would mean that either thechildren grew up in New Zealand without their father's presence, or if the entire familyaccompanied Mr Nair to India the children would then be dependent upon whateverhealth care was available to them in India.[42] Under s 177(3) Mr Casson is not obliged to give effect to the applicableinternational obligations, but he must have regard to them.28 Given the absence ofpublished reasons for Mr Casson's decision, my view is that unless it can be inferredfrom the information available to the Court that Mr Casson paid proper regard to thoseobligations, the Court cannot be satisfied on the balance of probabilities that he did so.Merely listing those obligations in his decision will not suffice.26 Fiordland Venison Ltd v Minister of Agriculture [1978] 2 NZLR 341 at 354.27 International Covenant on Civil and Political Rights, arts 17, 23 and 24; International Covenanton Economic, Social and Cultural Rights, arts 10, 11 and 12; United Nations Convention on theRights of the Child, arts 3, 4, 16, 18, 24 and 27.28 Nair v Chief Executive of the Department of Labour [2013] NZHC 358 at [31].[43] The Court of Appeal in Singh held that the words "have regard to" in s 177(3)were significant.29Because those words had been considered in many earlier cases, it canconfidently be said Parliament selected them deliberately.[44] There are a number of cases which have defined or discussed the meaning of"have regard to". In New Zealand Fishing Industry Association Inc v Minister ofAgriculture and Fisheries, McMullin J held that in order to "have regard to" aconsideration, the decision-maker would "require an open and receptive mind."30 InNew Zealand Co-operative Dairy Co Ltd v Commerce Commission, Wylie J stated thatto "have regard to" meant that the factors for consideration must be given:31genuine attention and thought and such weight as the [decision maker]considers appropriate.[45] The Privy Council in Nilamdeen Mohamed Ishak v Ibrahim Lebbe MohamedThowfeek held that the words "have regard to certain matters" meant:32They must take them into account and consider them and give due weight tothem, but they have an ultimate discretion and are not bound to select a personor persons whom they consider unsuitable.[46] Regarding mandatory considerations generally, I concur with the judgment ofGlazebrook J in Ye v Minister of Immigration that "a decision maker must givegenuine, and not merely token or superficial regard, to mandatory considerations."33[47] A relevant case in the context of deportation is O'Brien v Immigration andProtection Tribunal.34 In that case, Simon France J considered whether the Tribunal29 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 17, at[17].30 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1NZLR 544 (CA) at 566.31 New Zealand Co-operative Dairy Co Ltd v Commerce Commission [1992] 1 NZLR 601 (HC) at612. Whilst the weight to be given to each factor is a matter for the decision-maker to determine,if the weight the decision-maker gives to the considerations is too inadequate and unbalanced itcan mean that the decision is manifestly unreasonable: see Ministry of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 as discussed in Issac v Minister of Consumer Affairs [1990] 2NZLR 606 at 635.32 Nilamdeen Mohamed Ishak v Ibrahim Lebbe Mohamed Thowfeek [1968] 1 WLR 1718 at 1725.33 Ye v Minister of Immigration [2009] 2 NZLR 596 (CA) at [90].34 O'Brien v Immigration and Protection Tribunal [2012] NZAR 1033.had sufficiently considered the best interests of the applicant's child in making an orderfor deportation:35[32] The case law makes it plain that the best interests of the child are aprimary consideration, but are neither paramount nor the primaryconsideration. But they are to be given important and genuine assessment. Iconsider the first step in doing that is to carefully analyse and identify whatthose interests are, and what if any might be the consequences of theirdisappointment.[48] In this case, I consider that in order to "have regard to the relevant internationalobligations", particularly those concerning the children's health and wellbeing, MrCasson was required to identify the relevant facts about the availability of healthcarein Gujarat, where the children might be forced to live. I refer particularly to thedecision of the Court of Appeal in New Zealand Fishing Industry Association vMinister of Agriculture and Fisheries, where Cooke P held:36I accept that the relevant consideration which the [decision maker] was boundto take into account included such facts obviously material to the mandatorystatutory considerations as were or ought to have been known to himself orthe Ministry. That is to say, the duty to consider statutory criteria extends tofacts so plainly relevant to those criteria that Parliament would have intendedthem to be taken into account and a reasonable [decision maker] would notfail to do so.[49] I consider that the availability of adequate healthcare in Gujarat is a fact whichis so plainly relevant to New Zealand's international obligations in respect of MrNair's children that Parliament must have intended them to be taken into account.37[50] It might be argued for the respondent that s 177(3) precludes any obligation onan immigration officer to seek further information of this sort. That subsection states:38(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—35 At [32] (emphasis added).36 New Zealand Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLR544 at 552.37 This availability could extend to whether the children as New Zealand citizens would have anentitlement to any healthcare in India that was available to Indian citizens or persons legallyresident in India, as well as the impact of the children's New Zealand citizenship if through M'sconnection with Mr Nair and L's connection with his Indian born father they sought to obtainIndian citizenship in order to have better access to the Gujarat health system.38 (Emphasis added.)(a) may make a decision as he or she thinks fit; and(b) in doing so, is not under any obligation, whether byimplication or otherwise,—(i) (ii) to inquire into the circumstances of, or to make anyfurther inquiry in respect of the information providedby or in respect of, the person who is the subject ofthe deportation order or any other person.[51] As per my added emphasis above, I consider that subs (3)(b)(ii) operatesseparately from the statutory requirement for an immigration officer to "have regardto any relevant international obligations". In other words, subs (3)(b)(ii) releases theimmigration officer from any obligation to make additional inquiries beyond thosewhich are necessary to satisfy the statutory requirement. Any other interpretation ofthat subsection leads to the bizarre conclusion that an immigration officer couldsomehow "have regard to" an international obligation that a child has the right to theenjoyment of the highest attainable standard of health without knowing anything aboutthe health system in India. However in any case, Mr Casson clearly requested theinformation and since he subsequently attached that information to his decision, I amconfident that Mr Casson considered the information to be relevant.[52] The information that was provided regarding the availability of appropriatemedical care in Gujarat was manifestly inadequate. It did not specifically address thehealth care that would be available to the children. Instead it comprised print-outsfrom various web sites which give a general overview of the Indian health care system.In relation to M's digestive problems the availability in India of the formula PeptiJunior was disclosed by chat room websites called "Baby Whisper" and "Sour Poo".Whilst the discussions on those sites revealed persons in India taking about using theformula how it was obtained, whether it was something that would be readily availableto M was completely unknown.[53] I do not consider that it is possible to "have regard to any relevant internationalobligations" when the basis for making the assessment about the extent of any breachof those obligations is so fundamentally flawed. On that basis, I would hold that MrCasson did not have adequate regard for New Zealand's international obligations inrespect of Mr Nair's children and therefore that his decision was invalid.[54] The findings that I have reached are made in the context of the legal test forinterim relief where all I need to be satisfied of is that there is a respectable case forMr Nair to argue in this judicial review.Was the decision not to cancel the deportation order unreasonable?[55] One of the grounds for Mr Nair's application was that Mr Casson's decisionnot to cancel his deportation order was unreasonable. Although the scope for judicialreview of an immigration officer's decision under s 177 has been substantiallynarrowed in recent times, the Court of Appeal in Singh affirmed that a Wednesbury-type assessment is still available to the courts on judicial review.39[56] In the original Wednesbury decision, Lord Greene MR interpretedunreasonableness in a broad sense:40Now what does that mean? Lawyers familiar with the phraseology commonlyused in relation to exercise of statutory discretions often use the word'unreasonable' in a rather comprehensive sense. It has frequently been usedand is frequently used as a general description of the things that must not bedone. For instance, a person entrusted with a discretion must, so to speak,direct himself properly in law. He must call his own attention to the matterswhich he is bound to consider. He must exclude from his consideration matterswhich are irrelevant to what he has to consider. If he does not obey those rules,he may truly be said, and often is said, to be acting 'unreasonably'. Similarly,there may be something so absurd that no sensible person could ever dreamthat it lay within the powers of the authority. Warrington LJ in Short v PooleCorporation [[1926] Ch 66, 90, 91] gave the example of the red-hairedteacher, dismissed because she had red hair. This is unreasonable in one sense.In another sense it is taking into consideration extraneous matters. It is sounreasonable that it might almost be described as being done in bad faith; and,in fact, all these things run into one another.(emphasis added)[57] The comprehensive interpretation of unreasonableness, to which Lord GreeneMR referred, includes a failure to take account of relevant considerations. So in thissense the failure of Mr Casson that I have already identified would bring his decisionwithin the scope of Wednesbury unreasonableness as well. But that is simply to look39 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 17, at[46] and [64].40 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 229.at the same decision making error from a different perspective, which adds nothing tothe findings I have already made on the failure to take account of relevantconsideration ground of review.[58] As noted above, the Court of Appeal in Singh held:41[66] The only inference available from [the immigration officer's]affirmation of performance of his obligations under s 177 is that, in accordancewith New Zealand's international obligations, he has treated [the child's]interests as a primary consideration. But, within his discretionary power, hehas decided that the statutory requirement to ensure the integrity of NewZealand's immigration system – what may generally be termed "the nationalinterest – must prevail. A Court cannot inquire further. In these circumstances,applying the Wednesbury approach, it cannot be said "there could be only oneanswer", namely that the [immigration officer] should have cancelled thedeportation orders. [emphasis added][59] This finding was made in a case where the immigration officer concerned wasfound to have paid proper regard to the matters that he was bound to consider and tohave properly discharged the other requirements for his decision-making, so that theonly remaining question was whether his refusal to cancel the deportation order wasone which in the circumstances it could be said no reasonable officer would refuse todo. This understandably would be a high onus for a plaintiff in judicial review todischarge. The present case is different. Here Mr Casson's failure to have properregard to all the relevant factors means that the decision has not progressed to the stagewhere its reasonableness can properly be assessed. The absence of adequateinformation regarding the health care system available to Mr Nair's children in Gujaratmeans that as matters stand there is nothing from which the Court could infer as towhether a properly informed immigration officer, who had otherwise discharged therequirements for his decision-making, could have only come to a decision to cancelthe deportation order.Result[60] I direct pursuant to s 8 of the Judicature Amendment Act that Mr Nair is not tobe deported from New Zealand until the substantial hearing of his judicial reviewproceeding in this Court is determined.41 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 17, at[66].[61] The substantial hearing needs to proceed expeditiously. To progress matters itis to be listed in the judicial review list at 9am on Thursday 10 March 2016 fortimetabling orders that will enable the proceeding to be heard at the earliestopportunity.[62] The parties have leave to file memoranda as to costs.