FANG v THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2016] NZHC 1630

FANG v THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2016] NZHC 1630 [21 July 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2015-404-001971[2016] NZHC 1630UNDER he Judicature Amendment Act 1972, Part30 of the High Court Rules, theDeclaratory Judgments Act 1908 and theNew Zealand Bill of Rights Act 1990IN THE MATTER OF an application for judicial review,extraordinary remedies, interim relief,declaratory remedy and claim for breachof rightsBETWEEN MING BO FANGPlaintiffAND THE MINISTRY OF BUSINESSINNOVATION AND EMPLOYMENTDefendantHearing: 30 October 2015Additional material and submissions received 9, 16, 20November 2015, 22 January 2016, 16 February 2016, 9 May2016, 14, 20, 22 & 30 June 2016.Counsel: Dr F C Deliu for PlaintiffC P Paterson for DefendantJudgment: 21 July 2016JUDGMENT OF DUFFY JThis judgment was delivered by me on 21 July 2016 at 3.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:Meredith Connell, AucklandDr F C Deliu, Justitia Chambers, Auckland[1] The plaintiff, Ming Bo Fang, is the subject of a deportation order servedunder s 175 of the Immigration Act 2009 ("the Act"). Section 177 of the Act allowsan immigration officer to consider whether to cancel a deportation order. In theplaintiff's case the decision was made not to cancel the order; thus his deportationmust proceed. Hence this proceeding, in which the plaintiff seeks judicial review of the decision not to cancel the deportation order.[2] The approach to s 177 is succinctly summarised by the Court of Appeal inChief Executive of the Ministry of Business, Innovation and Employment v Nair:1[30] It is apparent from the statutory scheme in general, from the specific wording of s 177 and from the legislative history that s 177 providessomething of a "last ditch" opportunity to have a deportation ordercancelled. It is also apparent that while the immigration officer is required toturn his or her mind to ("have regard to") any relevant internationalobligations no particular test need be applied and the immigration officer"need not attach particular weight to any given international obligation".Finally, it follows that the scope for judicial review of the decision not to cancel a deportation order is limited.[3] The Act also grants to immigration officers an express exemption from any requirement to give reasons for their decisions,2 as well as vesting in them an absolute discretion regarding the decision whether to cancel a deportation order.3Bearing all this in mind, it becomes difficult to imagine how a successful judicial review of a decision not to cancel a deportation order might be made. However, despite the obvious difficulties which the plaintiff faces, he still sees merit in makinga "last ditch" attempt to thwart his removal from New Zealand.Grounds of judicial review[4] In the plaintiff's third statement of claim, which was filed after the hearing,4the plaintiff seeks judicial review on the following grounds:1 Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA 248.2 Immigration Act 2009, s 177(4).3 Section 177(1).4 Third statement of claim dated 9 November 2015, filed 10 November 2015.(a) error of law: the immigration officer erred in law as she failed to consider the record of personal circumstances (facts) with NewZealand's international obligations (law);(b) failure to take into account relevant considerations: the immigration officer failed to take into account relevant considerations by focusingon the plaintiff's partner's return to China and not her right to remainin New Zealand;(c) taking into account irrelevant considerations: the immigration officer took into account irrelevant considerations or otherwise had no evidence for its wrongful presupposition that the plaintiff had a fraudulent visa and/or one obtained by fraud and/or as part of an illegal operation;(d) breach of natural justice: the immigration officer contravened s 27 ofthe New Zealand Bill of Rights Act 1990 ("NZBORA") and failed toact in accordance with the principles of natural justice by failing to give reasons. Although the Act states that an immigration officer is not required to give reasons, it does not prohibit an officer from giving reasons when he or she ought to do so. In the instant case, the immigration officer should have given reasons pursuant to natural justice, and in any event the superior officer was not excluded from the ordinary requirement to give reasons;(e) Wednesbury unreasonableness: the immigration officer acted unreasonably in that there was no or otherwise an insufficient basis to refuse to exercise her discretion to cancel the deportation; and(f) breach of legitimate expectation: the immigration officer acted in breach of legitimate expectation as she failed to comply with theMinistry's own internal instructions in the Immigration New ZealandOperational Manual.[5] I shall deal with each judicial review ground in turn.Error of law[6] Section 177 does not create a general right for persons subject to deportation to have an immigration officer consider whether to cancel the deportation order or not. However, s 177(2) mandates such consideration when the proposed deportee provides personal information that is relevant to New Zealand's internationalobligations.[7] When this circumstance arises, an immigration officer must have regard to any relevant international obligations, but otherwise he or she may make a decision as he or she thinks fit.5 The immigration officer is under no obligation to apply any particular test (including the test in s 207 of the Act); nor is the officer obliged to make any enquiries (including further enquiries) into information concerning the proposed deportee or any other person. In short, the immigration officer need look no further than the information provided to him or her by the proposed deportee or any other person interviewed as part of the consideration under s 177(2).[8] There is no obligation to provide any reasons for not cancelling the deportation order.6 However, s 177(5) provides that when it comes to animmigration officer's obligation to have regard to any international obligations, theofficer is obliged to record:7(a) a description of the international obligations; and(b) the facts about the person's personal circumstances.[9] There is conflicting High Court authority regarding the interpretation of s 177(5). One line of authority, exemplified in Babulal v Chief Executive, Department of Labour, finds that it will be enough if: (a) the relevant internationalobligations are listed; and (b) the facts about the proposed deportee's personal5 Immigration Act, s 177(3).6 Section 177(4).7 Section 177(5).circumstances are recorded.8 The other line of authority, demonstrated in Ewebiyi v Parr, requires the immigration officer to go one step further and to identify the personal circumstances which are relevant to each of the international obligations.9[10] The defendant argues that the Court of Appeal in Singh v Chief Executive, Ministry of Business, Innovation and Employment10 has expressed a preference for the approach followed in Babulal. The plaintiff argues that any such preference, if expressed at all, is obiter and not binding on this Court.[11] By letter dated 24 August 2015, the immigration officer wrote to the plaintiff advising him that she had decided not to cancel the deportation order. She advised that she had considered the information he provided in his record of personal circumstances interview of 17 August 2015, the interview with his partner XingxingZhao, counsel's oral submissions of 18 August 2015 and the two sets of writtensubmissions dated 20 August 2015. The decision letter went on to state that the decision whether or not to cancel a deportation order was made at the immigrationofficer's "absolute discretion" and that she was not obliged to give reasons for herdecision.[12] The immigration officer recorded the following international obligations as those to which she had regard:(a) International Covenant on Civil and Political Rights:(i) Article 17 – no-one shall be subject to arbitrary or unlawful interference with his privacy, family or correspondence; and(ii) Article 23 – the family is the natural and fundamental group of society.(b) International Covenant on Economic, Social and Cultural Rights:8 See Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29 September 2011.9 See Ewebiyi v Parr HC Christchurch CIV-2011-409-2010, 7 December 2011.10 Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93.(i) Article 6 – the right to work;(ii) Article 7 – the right to just and favourable work conditions;(iii) Article 9 – the right to social security including social insurance;(iv) Article 10 – the widest possible protection and assistance shall be accorded to the family which is a natural and fundamental group unit of society;(v) Article 11 – the right of everyone to an adequate standard of living;(vi) Article 12 – the right to the highest attainable standard of physical and mental health; and(vii) Article 13 – the right of everyone to education.(c) International instruments/documents provided by counsel in their submissions of 20 August 2015:(i) Universal Declaration of Human Rights: every person with a mental illness shall have the right to exercise all civil, political, social and cultural rights recognised;(ii) Principles for the protection of persons with mental illness and for the improvement of mental health.[13] The record of the plaintiff's personal circumstances interview runs to approximately 27 pages. Before the interview was conducted, the plaintiff spoke with his lawyer and confirmed to the immigration officer that he was happy for the interview to proceed. The interview, at times, fills out sections of specific questions in a prepared form, and on other occasions comprises a handwritten narrative that was recorded by the immigration officer. Clearly, it all could not relate to therelevant international obligations to which the immigration officer records she had regard.[14] The plaintiff claims that the immigration officer was required to consider the relevant facts against the relevant international obligations and that in this case, all she did was to note the international obligations without selecting the relevant facts to which those international obligations applied. The plaintiff contends there is no indication as to which facts were considered and/or deemed relevant, which leads him to assert that the immigration officer did not comply with the recording obligation under s 177(5), and therefore that the decision is fundamentally flawed for error of law.[15] The respondent's case is that the actions taken by the immigration officermeet the requirements of s 177(5).[16] In this case, the immigration officer's decision included the record ofpersonal circumstances of the plaintiff, as well as the interview of the plaintiff'spartner and other related material. However, there is nothing in the decision which indicates which facts were considered to be relevant in respect of the listedinternational obligations. Thus, I am satisfied that the immigration officer's decisionfollows the form of the decision made in Babulal. The next question is whether, as the respondent argues, the Court of Appeal in Singh found that this form of decision satisfied the requirements of s 177(5).[17] In Singh, the Court of Appeal considered an appeal brought by Mr Singh and his partner Ms Kaur against a decision of Brewer J in the High Court. From the statement of the factual background, it appears that the decision of the immigration officer in Singh resembled the form of decision which was followed in Babulal andin the present case. In its judgment, the Court of Appeal set out the respondent'ssubmissions which included the following statements:11[8] On 14 October 2013, after considering all information provided and the research material he had compiled, Mr Shand decided not to cancel the deportation orders in relation to Mr Singh, Ms Kaur, Sumeet, and Sukhpreet.11 Emphasis added.Mr Shand completed the decisions pages of the Record of Personal Circumstances Interview form for Mr Singh and Ms Kaur. Mr Shand listedthe international conventions and material he had considered. Mr Shand elected not to give reasons for his decisions.[10] On 28 January 2014 Mr Shand re-read all the material he had previously compiled and the submissions received in October 2013. Mr Shand decided not to cancel the deportation orders for Mr Singh, Ms Kaur, Sumeet, and Sukhpreet. Mr Shand elected not to give reasons, but the decisions record the international conventions and material he considered.[18] After an in depth consideration of the scheme of the Act, insofar as the scheme is relevant to the issuing and cancellation of deportation orders, the Court of Appeal in Singh affirmed earlier authority on the limited scope for judicial review of decisions under s 177. It referred to its earlier decision in Chief Executive of the Ministry of Business, Innovation and Employment v Liu where it had observed:12Manifestly, s 177 offers an inauspicious setting for judicial review but, asWhata J recognised, the courts may at least review an immigration officer'sdecision for compliance with these requirements.[19] The Court of Appeal then turned to consider if the High Court's approach onreview was erroneous.13 This was considered in the context of the argument raised before Brewer J to the effect that if the best interests of a citizen child are to stay in the country of citizenship, that would almost always be the decisive consideration. The Court of Appeal described Brewer J's approach to this argument as follows:[26] The Judge dealt with this argument in these two paragraphs:[23] In my view, Mr Shand did have an obligation under [the United Nations Convention on the Rights of the Child (UNCROC)] to consider the effect on Amanpreet if her family were deported. He realised that. He identified [UNCROC] as containing applicable international obligations and he listed the applicable articles, including art 3. In the forms he completed setting out his decisions on the family members, he lists under the facts about personalcircumstances, "Child interview with NZ citizen child Amanpreet Kaur from 19/09/2013". He also spoke to Mrs Kaur, in particular, at length about Amanpreet's position, 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:12 Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37,[2014] 2 NZLR 662 at [8].13 Singh, above n 10.I 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 turnedhis mind to Amanpreet's situation. Against the background ofabsolute discretion and no obligation to give reasons, that is enough.[20] Before reaching a view on the approach adopted by Brewer J, the Court of Appeal in Singh referred, inter alia, to two earlier decisions of the High Court whichwere described as having "emphasised the limited scope for judicial review of a s 177 decision".14 One of those decisions was Babulal v Chief Executive, Department of Labour.15[21] In Babulal, Lang J described the scope for judicial review of decisions unders 177 as "extremely limited"16 and observed:17[35] Parliament clearly intended ss 177(4) and (5) to restrict the amount of information that an immigration officer is required to record when making a decision under s 177. That in turn necessarily limits the information available to any court tasked with judicially reviewing the decision. As the decision in the present case demonstrates, the court will have no information regarding the reasoning process the immigration officer has employed when balancing the relevant competing factors that need to be taken into accountin making any decision that has regard to New Zealand's internationalobligations.[36] Parliament must be taken to have intended that consequence. It chose to adopt that route, in my view, in order to restrict the level of judicial scrutiny to which decisions under s 177 may be subject. This suggests that, where an immigration officer makes a decision that requires him or her tohave regard to New Zealand's international obligations, Parliament intendedthe record of the decision to contain sufficient information to allow the decision to be judicially reviewed within a very narrow compass. It accepted that the court must have sufficient information to be able to determine whether the immigration officer who made the decision took into account the international obligations relevant to the particular case. The requirement to record the facts relating to the personal circumstances of the person subject to the deportation order also provides the court with the ability to determine14 At [44].15 Babulal, above n 8. The other decision was Nair v Chief Executive of the Department of Labour[2013] NZHC 358 at [31], where Woodhouse J recognised that an immigration officer was under no obligation to give effect to the international obligations to which he had regard. However,Woodhouse J's statement simply reflects an accepted principle in public law: see CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA). So, the statement has no specifically limiting effect on judicial review of s 177 decisions.16 Babulal, above n 8, at [29]17 Emphasis added.whether the ultimate decision was reasonable in a Wednesbury sense, but no more than that.[22] In Babulal, all that the immigration officer did was to list the relevant international obligations to which he or she had regard as well as to itemise the various statements taken from Mr Babulal and other relevant persons recording his personal circumstances. How those statements might relate to the listed international obligations was left unsaid.18[23] In Singh, the Court of Appeal expressly referred to the observations of Lang J in Babulal and then stated:19[46] We agree with those observations. Section 177 has severely circumscribed the scope for judicial review, effectively limiting it to aWednesbury unreasonableness inquiry.[24] Later in Singh, the Court of Appeal stated:[50] As this Court observed in the passage in Liu set out in [43] above, areviewing court can check the [immigration officer]'s compliance with therequirements of s 177, particularly s 177(5). Beyond that, the fact that the [immigration officer] is not obliged to give reasons for his or her decision represents an obvious obstacle to the court reviewing whether the best interests of an affected child have genuinely been taken into account by the [immigration officer].[25] Ultimately the Court of Appeal concluded in Singh:There is no error in Brewer J's approach in reviewing Mr Shand's s 177decision.[26] The expressed reasoning of the Court of Appeal in Singh approved Lang J'sgeneral approach in Babulal. The Court of Appeal also expressly found that there was no error in Brewer J's approach; this was in circumstances where the s 177decision took the same form as the s 177 decision in Babulal, and the approach adopted by Brewer J was the same as that taken by Lang J in Babulal. This causes me to conclude that I should find that a s 177 decision which follows the form of the decision in Babulal will comply with the requirements of s 177, and in particular18 At [34].19 Singh, above n 10.s 177(5). As the decision under review does this, I find that it was not made in error of law.[27] That said, I prefer the approach that was taken by Fogarty J in Ewebiyi, which has never been appealed. This approach requires there to be some evidence that the immigration officer identified the relevant international conventions and then selected the facts regarding the proposed deportee's personal circumstances that wererelevant to those obligations. In this regard Fogarty J stated:20[45] To my mind the purpose [of s 177(5)] is reasonably self-evident. Parliament intended that immigration officers must consider cancelling adeportation order if the facts engage New Zealand's internationalobligations. Not only did they impose a duty, they wanted the discharge of that duty evidenced in the decision. When sovereign Governments enter into international obligations they do not become domestic law until they are enacted. Therefore, it is a basic principle of international law and statutory interpretation that the fact that New Zealand has entered into international obligations does not obligate any Government officials to conform to them in the absence of a New Zealand statute. This New Zealand statute does not obligate adherence to the international obligations. This is deliberately so.Parliament has rejected the Supreme Court's assumption that that was Parliament's intention in the earlier Immigration Act. That said, Parliament wants it to be demonstrably the case that individual officers have considered any international obligations, the application of which is raised by theperson's personal circumstances. Given the officer is not bound to follow the international obligations, the need to record consideration of them, pertaining to the facts of the case, is so that it can be demonstrated to the domestic and international community that the purpose of these provisions isso that New Zealand's international obligations are taken seriously.[28] Later in Ewebiyi, Fogarty J outlined the policy concerns which supported his interpretation of the requirements of s 177(5):[54] If the Courts do not enforce subs (5) they will enable immigration officers to avoid the duty to consider cancellation, and thereby avoid therequirement to "have regard to any relevant international obligations"(s 177(3)).[29] Fogarty J's interpretation of s 177 led him ultimately to the conclusion thatsimply listing international obligations will not suffice to satisfy s 177:[55] A generic reference to any one of a range of possible applicable international obligations is not a discharge of the obligation of the officer torecord a "description of the international obligations". Plainly, the word "relevant" in s 177(3) requires selection from the body of international20 Ewebiyi, above n 9.obligations. That selection should be recorded, s 177(5). The qualifier"relevant" is not repeated, but is not necessary, as it is only the relevant obligations that must be taken into account.[30] This led the Judge to the view that:[56] Subsection (5) read in line with its purpose, is calling for a crisp succinct description of the relevant international obligations. Similarly, does it make sense for the obligation to record the facts about the person'spersonal circumstances to include facts utterly irrelevant to compliance withNew Zealand's international obligations. Subs (2) addresses: personal information relevant to New Zealand'sinternational obligations.[31] On this basis Fogarty J was of the view that in Ewebiyi, the issue being theseparation of a father and a son, the immigration officer's decision required:21 a description of the relevant facts about the personal circumstances of the father and the son, including, for example, that the age of the child and the nature of the present relationship, the wishes of the child and so on.[32] Fogarty J found that the decision in Ewebiyi did not conform to the requirements as he considered them to be. He found the errors were manifest on therecord. He found it was a "system" error, as the record of personal circumstancesform assumed, in his view, wrongly, that all information collected in the interview would be relevant. Fogarty J considered that could not be right. In this regard he was of the view that:22Relevance is a qualifier applied to facts which are made relevant by considering them against the relevant international obligations. That is why subs (5) naturally orders: (a) international obligations, before (b) facts. If an immigration officer is not capable of identifying the relevant obligations and then selecting the relevant facts from the information at hand, the officer is not competent to apply s 177(3) and discharge subs (5).[33] The result in Ewebiyi was that the Judge concluded that a decision which seemingly followed the form of the decision in Babulal did not comply with s 177(5), and therefore was an error of law.21 At [57].22 At [57].[34] I consider that there are sound policy reasons for the interpretation Ewebiyitook of s 177(5). Unless some recorded connection is drawn between the relevant personal circumstances of a deportee and the relevant international obligations which are engaged by those circumstances there is virtually no way to determine whether an immigration officer has properly applied his or her mind to the few mandatory considerations imposed by s 177(5), or even whether the immigration officer has acted in good faith when refusing to cancel a deportation order. In saying so, I donot intend to cast aspersions upon the integrity of New Zealand's immigrationofficers. However, to adopt an extreme example, an immigration officer might hypothetically reach a decision under s 177 by flipping a coin. That method of decision-making is clearly inadequate and improper. Yet absent some form of internal investigation or disclosure by whistle blowing, it would be virtually impossible for a supervisory Court to identify, let alone overturn, a decision that was made on that basis. I do not consider that Parliament could have intended an outcome where the supervisory Courts were effectively stymied from ascertaining ifproper regard had been paid to s 177(5)'s mandatory considerations. Nor do Iconsider that a supervisory Court can effectively ascertain if proper regard has beenpaid to s 177(5)'s mandatory considerations when all that is before it is a list of theinternational obligations the immigration officer considered relevant and a series of references by subject heading to all the material that was available to theimmigration officer about the deportee's personal circumstances.[35] In the present case I consider that the decision in Singh leaves me with no option but to find that the decision under review, which follows the form of the decisions that were made by the immigration officers in Singh and Babulal, is not an error of law. Nonetheless, I continue to adhere to the view expressed by Fogarty J inEwebiyi and would apply that view in the present case if I thought that I could do so. I consider it necessary to express this view in case my reading of the Court ofAppeal's decision Singh is in error.[36] I find that this ground of review is not established.Failure to take into account relevant considerations[37] The plaintiff contends that the immigration officer failed to take into accountrelevant considerations by focusing on his partner's possible return to China and noton her right to remain in New Zealand as a New Zealand citizen.[38] The plaintiff's partner is Xingxing Zhao.23 She is a New Zealand citizen. She was born in China and at the time of her interview had lived in New Zealand for approximately nine and a half years. The relevant international obligations in this case (as recorded by the immigration officer in her decision) would require some consideration of the impact on the plaintiff and Ms Zhao as a family unit, includinghow the plaintiff's deportation might impact on Ms Zhao, both if she accompaniedhim to China and if she did not.[39] The immigration officer recorded that she had regard, inter alia, to the International Covenant on Civil and Political Rights, particularly article 17 which includes no-one being subject to arbitrary or unlawful interference with his family and article 23 which recognises "the family is the natural and fundamental group of society." Regard was also had to the International Covenant on Economic, Social and Cultural Rights including article 10, which provides that "the widest possibleprotection and assistance should be accorded to the family, which is the natural andfundamental group unit of society."[40] At the time of Ms Zhao's interview, her mother was living in China but had resident status in New Zealand. Ms Zhao's father had recently died in China. Theimmigration officer noted that Ms Zhao still held a Chinese passport. She had used this passport to visit her dying father in China as she did not hold a New Zealand passport and needed to travel to China quickly.[41] However, in her interview Ms Zhao had expressed her intention to begin travelling on a New Zealand passport as soon as possible, and to inform the Chinese authorities that she was now a New Zealand citizen. She stated that she wished to continue living in New Zealand. The immigration officer was also aware from other23 The plaintiff and Ms Zhao married on 25 September 2015.material independently sourced by her that China does not allow dual citizenship and that as soon as a Chinese citizen takes foreign citizenship, he or she will automatically lose his or her Chinese citizenship.[42] I consider that on the basis of the information provided to her during Ms Zhao's interview, the immigration officer must have understood that there was atleast a possibility that if the deportation order was not cancelled, the plaintiff would be required to return to China whilst Ms Zhao would be forced or would choose toremain in New Zealand. This is also demonstrated by the immigration officer'srequests for further country information, which specifically address whether Ms Zhao would be able to return to China and if so, under what conditions.[43] It is clear that the immigration officer understood that the plaintiff and Ms Zhao might be separated as a result of her decision. In my view, that knowledge was sufficient to enable the immigration officer to consider the relevant international obligations regarding the protection of the family unit.[44] I find that this ground of review is not established.Taking into account irrelevant considerations[45] The plaintiff claims that the immigration officer took into account irrelevant considerations insofar as there was a wrongful pre-supposition that the plaintiff had arrived in New Zealand on a fraudulent visa and/or obtained a visa by fraud and/or in some way that was part of an illegal operation.[46] The interview with the plaintiff discloses some questions regarding how he came by his visa. However, there is nothing in the material to suggest that the immigration officer took into account the notion that he had obtained a visa fraudulently or as part of an illegal operation. The fact the immigration officer asked questions which touched on his visa being obtained by fraud does not mean that the immigration officer concluded that this was how the visa was obtained or that such a conclusion influenced the decision not to cancel the deportation order.[47] I find this ground of review is not established.Breach of natural justice[48] The plaintiff contends that the immigration officer violated s 27 of the NZBORA by failing to give reasons for her decision not to cancel the deportation order. Here the plaintiff argues that while s 177 provides that an immigration officer is not required to give reasons, it does not prohibit an officer from giving reasons when he or she ought to do so. Further, that insofar as a superior officer of the Immigration Service may have been involved in the decision-making process, he or she was not excluded from the ordinary requirement to give reasons. There are a number of obstacles to this ground of review.[49] First, I accept that s 177 does not prohibit an immigration officer from giving reasons for a decision not to cancel a deportation order. However, s 177(4) expressly provides, and therefore makes it clear, that there is no obligation for an immigration officer to provide reasons for a decision under s 177. Thus the language of s 177(4) is patently inconsistent with the existence of a requirement for reasons.[50] Secondly, there is still no common law recognition that a failure to give reasons will in principle be a breach of the rules of natural justice, and therefore s 27(1) of the NZBORA. In Ou v Department of Labour White J considered and dismissed an application for a declaration of inconsistency with the NZBORA regarding s 57(7)(a) of the Immigration Act 2009 (predecessor to s 177(4) of the current Act).24 He held:25a) The statutory provision relating to the cancellation of removal orders by immigration officers, with the express statement of the absence of any obligation to give reasons, appears to have been inserted in the Immigration Act 1987 as s 52A by the Immigration Act Amendment Act 1991: s 52A(3)(b)(i).b) The right to the observance of the principles of natural justice mandated by s 27(1) of NZBORA does not expressly require reasons to be given for determinations in respect of person's rights, obligations and interests. While the Courts have extended the circumstances when an obligation to give reasons will be imposed, they have not yet decided that such an obligation is a mandatory requirement of the principles of natural justice which will be imposed without regard to the circumstances of the particular tribunal or authority encompassed by s 27(1): cf Philip Joseph,24 Ou v Department of Labour HC Auckland CIV-2010-404-2730, 12 May 2010.25 At [22].Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007) at 24.4.10, Graham Taylor, Judicial Review: A New Zealand Perspective (LexisNexis, Wellington 201 0) at 9.15, Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A commentary (LexisNexis, Wellington, 2005) at 25.2.14-25.2.17.c) There is therefore no reason to conclude that s 58(7)(a) of the Immigration Act is inconsistent with s 27(1) of NZBORA: cf R v Hansen. The two provisions are able to be read together consistently in that the general right to the observance of the principles of natural justice does not require immigration officers making decisions under s 58 of the Immigration Act to give reasons.[51] New Zealand common law remains fixed in the position which White J outlines in Ou v Department of Labour. I acknowledge that supervisory courts are becoming increasingly ready to find a requirement for reasons in particular cases, but nowhere have I found authority to indicate the existence of a general duty to do so, which is to be found in the rules of natural justice. Thus it is hard to see how s 27(1) of the NZBORA is engaged in the first place.[52] In short, decisions under s 177(5) do not provide fertile ground for developing the principles of natural justice and s 27(1) of the NZBORA to include a general duty to provide reasons.26[53] It follows that the decision under review is not a breach of natural justice, either in the common law sense or the right guaranteed by s 27(1) of the NZBORA. I find this ground of review is not established.The refusal to cancel the deportation order was unreasonable[54] The plaintiff contends that the immigration officer's decision wasunreasonable in that there was no or otherwise an insufficient basis to refuse to exercise her discretion to cancel the deportation.[55] An unreasonable decision is one which no reasonable decision-maker could reach.27 It is well settled that an immigration officer need not give effect to the26 Whether the avoidance of any requirement to give reasons, which s 177(5) permits, is an unjustified limitation on s 27(2) of the NZBORA, in consequence of the deleterious impact an absence of reasons may have on the exercise of the supervisory jurisdiction, is a question that was not argued before me. Nor does it appear to have been argued in Ou v Department of labour.international obligations which he or she must consider. An immigration officer could reasonably reach the view that the separation of a young couple was anunhappy consequence of the plaintiff's deportation, but nonetheless something to be tolerated if New Zealand was to maintain the integrity of its immigration system. In my view, the immigration officer in this case was entitled to come to such a conclusion.[56] I find this ground of review is not established.Breach of legitimate expectation[57] The plaintiff contends that the policies and procedures set out in theImmigration New Zealand Operational Manual ("Manual") stipulate a process andgive rise to a legitimate expectation which was not followed in this case.[58] The plaintiff drew the Court's attention to a number of provisions in theManual which purport to guide decision-making processes under the Act.28 If applicable, those provisions would impose significantly more restrictive requirements upon immigration officers when making decisions under s 177 of the Act. For example, cl A1.15 provides:29A1.15 Practical steps towards achieving fairness and natural justice in decision-makinga. If the applicant insists on proceeding, accept and process an application made in the prescribed manner (see R2.35 – R2.50), even if it is likely that it will be declined; andb. consider all the facts, keeping an open mind towards all the relevant forms of evidence; andc. distinguish fact from opinion, rumour, allegation, assumption or report; andd. apply relevant immigration instructions; ande. inform the applicant of the actual reasons for a decision; and27 Puli'uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA), affirmed in Singh, above n 10, at [46].28 Immigration New Zealand Operational Manual, cls A1.1, A1.5, A1.10, A1.15 and A1.15.1.29 Emphasis added.f. include an interpreter in an interview if the applicant is not fluent in English, or if the applicant asks for one to be present (see A14); andg. include an applicant's lawyer, immigration adviser, or familyrepresentative if the applicant asks for them to be present.[59] Legitimate expectation is well established in New Zealand as a ground of judicial review.30 In a recent Court of Appeal decision, Randerson J held:31[121] The concept of legitimate expectation may be viewed as an aspect of the administrative law principle that requires governments and public authorities to act fairly and reasonably. The general principle was formulated by the Privy Council in Attorney-General of Hong Kong v Ng Yuen Shiu [[1983] 2 All ER 346 (PC) at 351]: when a public authority has promised to follow a certainprocedure, it is in the interests of good administration that it should act fairly and should implement its promise, so long as it does not interfere with its statutory duty.[122] This general principle was affirmed by the Privy Council more recently in New Zealand Maori Council v Attorney-General [[1994] 1 NZLR 513 (PC) at 525] but with the qualification that a successful challenge to an assurance of this type would depend in part whether there was any"satisfactory reason" for the Crown not to comply with it.[123] Establishing a legitimate expectation in administrative law is not dependent on the existence of a legal right to the benefit or relief sought. The expectation might be engendered by promises that a particular authority will act in a certain way or by the adoption of a settled practice or policy which the claimant can reasonably expect to continue. A promise of the kind alleged may be express or implied.[124] Legitimate expectation is to be distinguished from a mere hope that a cause of action will be pursued or a particular outcome gained. To amount to a legitimate expectation, it must, in the circumstances (including the nature of the decision-making power and of the affected interest) be reasonable for the affected person to rely on the expectation.[125] Where legitimate expectation is raised, the inquiry general has three steps. The first is to establish the nature of the commitment made by the public authority whether by a promise or settled practice or policy. This is a question of fact to be determined by reference to all the surrounding circumstances. A promise or practice that is ambiguous in nature is unlikely to be treated as giving rise to a legitimate expectation in administrative law terms.[126] The second is to determine whether the plaintiff's reliance on thepromise or practice in question is legitimate. This involves an inquiry as to30 New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC).31 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598; [2014] 2 NZLR 137.whether any such reliance was reasonable in the context in which it was given.[127] The third, and often most difficult part of the inquiry, is to decide what remedy, if any, should be provided if a legitimate expectation is established.[60] There have been a number of cases in New Zealand where the Courts have enforced the requirements of voluntarily adopted policy documents, either under the ground of unreasonableness or legitimate expectation.32[61] I consider that, under different circumstances, the respondent might well be bound by the provisions of the Manual. However in its submissions, the respondent drew my attention to the following provision of the Manual:D2.40.10 Deportation order may be cancelledd. Whether or not an immigration officer considers cancelling a deportation order:i. he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; andii. section 23 of the Official Information Act 1982 does not apply in respect of the decision.[62] This provision in the Manual summarises s 177 of the Act and directly contradicts the more general provisions which the plaintiff cited in his submissions. In light of that fact, I consider that the general principles of statutory interpretation must apply so that the specific (cl D2.40.10) must prevail over the general.[63] I find that this ground of review is not established.32 See Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA); Ankers v Attorney-General[1995] 2 NZLR 595 (HC); G v Psychologists Board HC Wellington CIV-2007-485-2558, 8 December 2009; Problem Gambling Foundation of New Zealand v Attorney-General [2015] NZHC 1701; Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196;Splice Fruit Ltd v New Zealand Kiwifruit Ltd [2016] NZHC 864, [2016] NZAR 680.Result[64] The application for judicial review is dismissed.