MATUA v MINISTER OF IMMIGRATION [2018] NZHC 2078

MATUA v MINISTER OF IMMIGRATION [2018] NZHC 2078 [16 August 2018]THERE IS AN ORDER PROHIBITING PUBLICATION OF THE ACTUALNAMES OF THE APPLICANTS, THEIR FAMILY, AND ANYIDENTIFYING PARTICULARS. THIS VERSION OF THE JUDGMENTMAY BE PUBLISHED AS THE NAMES OF THE APPLICANTS,AND THEIR FAMILY, HAVE BEEN ANONYMISED.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-2125[2018] NZHC 2078UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial reviewBETWEEN TALIA MATUAFirst ApplicantHANA SEFOSecond ApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: 2 March and 15 June 2018Appearances: S Foliaki and H Singh for the ApplicantsS Jerebine and K Gaskell for the RespondentJudgment: 16 August 2018JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 16 August 2018 at 4:00 p.m.pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarSolicitors:Mr S Foliaki and Mr H Singh, Community Legal Services South Trust, Solicitors, AucklandMs S Jerebine and Ms K Gaskell, Crown Law, WellingtonTABLE OF CONTENTSIntroduction [1]The background facts [5]Immigration New Zealand's decision [8]The Tribunal decision [18]Was Immigration New Zealand's decision correct? [20]Background to special circumstances [22]The Associate Minister's evidence [29]The grounds for review [38]Unreasonableness [39]Breach of the New Zealand Bill of Rights Act 1990 and the HumanRights Act 1993 [40]Failure to take account of mandatory considerations [41]Taking account of irrelevant matters [42]New issues [43]The law [45](1) The legal nature of immigration instructions [46](2) The statutory context: the nature and extent of the Minister'spower and duty under s 190(5) [50](3) The absence of reasons [67](4) The statutory power to impose conditions on resident visas [76](5) Mandatory considerations under s 190(5) [79]International instruments [81]A visa subject to conditions [83](6) Determining error from the consequences of a decision [88]EvaluationWas there material failure to consider granting a visa subject toconditions? [99]Do the consequences of the decision indicate error? [113]The original grounds for review [127]Unreasonableness [128]Breach of the New Zealand Bill of Rights Act 1990 and the HumanRights Act 1993 [135]Failure to take account of mandatory considerations [137]Taking account of irrelevant matters [139]Result [140]Introduction[1] In November 2015, the first applicant, Mrs Talia Matua, applied toImmigration New Zealand for residence visas for herself and her daughter, Hana, thesecond applicant.1 Hana was included in the application because, although she was21 years old at the time, she was, and remains, dependent on her mother because ofintellectual disabilities.[2] On 16 January 2017 Immigration New Zealand declined the applicationbecause Hana did not meet the acceptable standard of health prescribed in immigrationinstructions for residence visas.[3] On an appeal by Mrs Matua to the Immigration and Protection Tribunal, theTribunal upheld the decision of Immigration New Zealand, but concluded that therewere special circumstances of the applicants which were such as to warrantconsideration by the Minister of Immigration as an exception to the instructions unders 190(5) of the Immigration Act 2009 (the Act).2 The decision under s 190(5) wasmade by the Associate Minister of Immigration, on delegated authority from therespondent Minister. On 17 August 2017 the Associate Minister declined to grant thevisas.[4] The applicants now challenge the decision of the Associate Minister on anapplication for judicial review.The background facts[5] Mrs Matua is a citizen of Samoa. She came to New Zealand in 2009 with herfour children, Hana and three sons.[6] Mrs Matua and her children have now settled in New Zealand. Mrs Matua andHana have remained in New Zealand on temporary permits, and therefore lawfully,except in Hana's case her last temporary visa expired in April 2017 after the1 There is an order prohibiting publication of the actual names of the applicants, their family, andany identifying particulars. In the published version names have been anonymised.2 SG (Partnership) [2017] NZIPT 203939.application for residence visas were declined. Mrs Matua has a current temporaryvisa. Mrs Matua's three sons, aged 28, 26 and 18 when the Associate Minister'sdecision was made, are either New Zealand citizens or have residence status. The twoolder sons live in Auckland with partners and each has two children.[7] Mrs Matua is now married to Mr Filipo Matua. Mr Matua is a New Zealandcitizen. When the Tribunal's decision was delivered in June 2017, Mr and Mrs Matuahad been living together in a genuine and stable relationship for almost seven years.They married in 2012 following Mrs Matua's divorce from her former husband. Theylive in Auckland with Hana and Mrs Matua's youngest son. They live in a suburb nearthe older sons' homes.Immigration New Zealand's decision[8] On 12 November 2015, Mrs Matua applied for a New Zealand residence classvisa under the Family (Partnership) category. Hana was subsequently included in thatapplication.[9] In its assessment of the application, Immigration New Zealand was required toapply residence instructions. These are part of the immigration instructions certifiedby the Minister of Immigration pursuant to s 22 of the Act.3[10] On 16 January 2017, Immigration New Zealand declined the application on thegrounds that Hana did not meet an "acceptable standard of health", as defined in thehealth instructions, and she did not qualify for a medical waiver as provided for in theinstructions. The directly relevant provisions are recorded in the followingparagraphs.[11] The objectives of the health instructions are as follows:A4.1 ObjectiveThe objectives of Health instructions are to:a. protect public health in New Zealand; and3 The legal nature of the instructions is outlined below at [46]-[48].b. ensure that people entering New Zealand do not impose excessivecosts and demands on New Zealand's health and special educationservices; andc. where applicable, ensure that applicants for entry to New Zealand areable to undertake the functions for which they have been grantedentry.[12] An "acceptable standard of health" is relevantly defined as follows:4A4.10 Acceptable standard of health (applicants for residence)a. Applicants for residence class visas must have an acceptable standardof health unless they have been granted a medical waiver Anapplication for a residence class visa must be declined if any personincluded in that application is assessed as not having an acceptablestandard of health and a medical wavier is not granted (see A4.60).b. Applicants for residence class visas are considered to have anacceptable standard of health if they are:ii. unlikely to impose significant costs or demands on NewZealand's health services c. The conditions listed in A4.10.1 are considered to impose significantcosts and/or demands on New Zealand's health services. Where animmigration officer is satisfied (as a result of advice from anImmigration New Zealand medical assessor) that an applicant has oneof the listed conditions, that applicant will be assessed as not havingan acceptable standard of health.[13] Instruction A4.10.1 lists medical conditions which are "deemed to imposesignificant costs and/or demands on New Zealand's health services". One groupof conditions is "severe developmental disorders or severe cognitive impairmentswhere significant support is required, including but not exclusive to: intellectualdisability ".4 This definition, and other provisions in the health requirements section of the instructions, alsorefer to costs or demands on special education services. That was not a factor in Immigration NewZealand's decision and these references are omitted.[14] If a medical condition is one deemed to impose significant costs or demandson New Zealand's health services, the actual cost or demand imposed by the particularapplicant is irrelevant. In addition, the capacity of family (or friends or a charitableorganisation) to provide care for an applicant has "no bearing on whether an applicantis unlikely to impose significant" costs or demands on health services.5[15] If the deeming provisions do not apply, an assessment is required to be madeas to whether "there is a relatively high probability that the applicant's medicalcondition will require health services costing in excess of NZ$41,000" or "willrequire health services for which the current demand in New Zealand is not beingmet".6[16] Instruction A4.60 provides that, if applicants are assessed as not having anacceptable standard of health, but meet all other requirements for approval under theresidence instructions, they may be considered for grant of a medical waiver, withsome provisos.7 One proviso, preventing consideration of a waiver, is if an applicanthas "a physical, intellectual, cognitive and/or sensory incapacity that requires full timecare, including care in the community". Immigration New Zealand concluded thatthis proviso applied to Hana.[17] Immigration New Zealand did not identify any circumstances relating toMrs Matua for declining the application. The sole ground for declining the combinedapplication was that Hana did not have an acceptable standard of health.The Tribunal decision[18] The applicants had a right of appeal to the Tribunal on the grounds thatImmigration New Zealand's decision was not correct in terms of the residenceinstructions or on the grounds that "the special circumstances of the appellant are suchthat consideration of an exception to those residence instructions should berecommended".85 Instructions A4.10.2(d)(iv) and A4.10.10(b)(ii).6 Instructions A4.10.2(a) and A4.10.10(a).7 Instruction A4.60 as it applied at the time.8 Section 187(4) of the Act.[19] The applicants elected to appeal on the second alternative ground – specialcircumstances. They did not challenge Immigration New Zealand's decision on themerits. Although there was no challenge on the merits, the Tribunal was required toassess the correctness of the decision, before considering special circumstances.Section 188(1)(f) provides that, in determining an appeal, the Tribunal may—confirm the decision as having been correct in terms of the residenceinstructions applicable at the time the visa application was made, butrecommend that the special circumstances of the applicant are such as towarrant consideration by the Minister as an exception to those instructions.Was Immigration New Zealand's decision correct?[20] On the question whether the decision was correct, the Tribunal reviewed therelevant health instructions and concluded, in light of the medical evidence, that it wascorrect. The medical evidence was recorded in some detail in this part of the Tribunal'sdecision. The evidence came from medical reports or certificates provided by theapplicants and obtained by Immigration New Zealand in accordance with standardprocedures, including, in Immigration New Zealand's case, second opinions.[21] The details relating to Hana's disability, set out in this part of the decision, maybe recorded in summary form as follows: a global developmental delay effecting theability to function independently or to be able to work full time; able to speak only afew words of Samoan and no English; unable to cook or do household chores; had notreceived any formal education; had never been left on her own and required constantsupervision; formal diagnosis (by a psychologist instructed by Immigration NewZealand) as having a cognitive standard score of 50, when intellectual disability isestablished with any score below 70; a long and permanent history of developmentaldisability; if a New Zealand citizen the diagnosis would be intellectual disabilityresulting in an entitlement to disability support services; not independent in the skillsof daily living; currently dependent on support people (her family) for safety andinteraction within her community; requires constant supervision and never left alone;not able to live independently; and requires full time care, including care in thecommunity.Background to special circumstances[22] The background provided by the Tribunal, preceding its discussion of specialcircumstances, covered the following topics: the evidence relating to Hana's disability,including important new evidence from a psychiatrist admitted on the appeal; theextent of Hana's dependence not only on her mother, but also her stepfather and hertwo older brothers; the support given by Mrs Matua to her husband; and whetherMrs Matua qualified for a resident visa if the application had not included Hana as adependent child.[23] Addressing the last point first, the Tribunal concluded that Mrs Matua wouldhave qualified for a resident visa had she applied only for herself and not includedHana as a dependent. The Tribunal noted that Mrs Matua's application was declinedbecause Hana was included in it. The Tribunal recorded the relationship betweenMr and Mrs Matua as "a genuine and stable relationship" and that they had by thenbeen together for almost seven years. There were no negative health reports forMrs Matua and no negative police reports for Mrs Matua or Mr Matua (being standardrequirements applicable on all applications). The current family circumstances weresummarised by the Tribunal as follows:[49] The appellant and her husband and daughter are currently living in aHousing New Zealand property. Her husband was previously employed butwas made redundant in 2013. He is not in good health. The appellant iscurrently not in paid employment but is engaged in voluntary work with herchurch. Two of her sons in New Zealand financially assist her. It is apparentthat the appellant's contribution is focussed on her voluntary work with herchurch and looking after her husband, daughter and grandchildren.[24] The Tribunal's summary of other background matters, and in particular thoserelating to Hana, is appropriately recorded in full:The daughter's health[44] The appellant's daughter, aged 23 years, has a severe intellectualdisability. She is said to have had less than one year's primary schooleducation before she was withdrawn from school and has remained at home,where she is constantly supervised. While it has been contended that thefamily doctor, as a fluent speaker of Samoan, had provided an accuratediagnosis for the daughter, describing her as independent in daily living skills,he did concede in his report of April 2016 that the daughter had never beenleft alone. Although the appellant has some basic skills in terms of personalhygiene and dressing herself, she is plainly not independent, not able tocommunicate in other than gestures and isolated words in Samoan. Sherequires full-time care.Psychologist's report[45] The appellant produced a psychological assessment (15 June 2016) ofher daughter which also made it clear that the appellant's daughter'sintellectual disability meant that she required full-time care. This is currentlyprovided by her mother, stepfather and siblings in New Zealand. In the eventthat the appellant and her daughter are granted residence, the daughter wouldbe eligible for disability services in this country, but she is not eligible forOngoing Resourcing Scheme assistance which is based on attendance at aschool. That assistance is only available until an applicant is 21 years and theappellant is 23 years old.Psychiatrist's report[46] Dr Ashok Malur, a consultant psychiatrist, produced a report (20 April2017) which is submitted on appeal. This was not produced to ImmigrationNew Zealand but the Tribunal is able to consider the report in the context ofconsideration of the appellant's special circumstances. The psychiatrist'sreport noted that the daughter had never attended school. Her biological fatherhad died when she was two years old and she had been raised by her mother.The psychiatrist noted the very strong bonds between the appellant, herdaughter, and her stepfather, whom her mother married in 2012. The daughteris well-supported by her siblings, who are aware of her disability, whereas hermaternal uncles and aunts living in Samoa are not in a position to offerassistance. It is said that the appellant does not own property that would beavailable to them in Samoa.[47] The psychiatrist described the daughter's intellectual impairment as"obvious". She communicated through gestures and spoke only a few wordsin Samoan, but did not understand or speak any English. The daughter'scomprehension was "extremely limited". She was able to pick up simpleinstructions using visual cues and would be able to pick up "some very basicactivities if instructed appropriately". However, her global assessment offunctioning was poor. That was essentially because of her minimalcomprehension of language, which might improve with some training.[48] The psychiatrist's concern was that if the daughter was repatriated toSamoa, even with her mother, there would be a risk that she would be molestedwithout close supervision. In New Zealand she has the support of two brothersas well as her mother and stepfather. Separating the daughter from her familyin New Zealand would cause significant harm to all members of the family.She would be eligible for a disability benefit, but was physically healthy andwas unlikely to be a burden on the New Zealand health system.[50] The potential burden the daughter represents to the New Zealandtaxpayer would be through her entitlement, as a resident, to apply for asupported living payment under the Social Security Act 1964. In 2016 thiswas a weekly payment of $295 (gross) for an individual over the age of 18years, without children, who was found to qualify for assistance. In addition,the daughter may be eligible for a disability allowance under the SocialSecurity Act. This was up to a maximum of $62.37 per week tax free,calculated according to the extra costs that an individual may have because oftheir disability.[25] The Tribunal's discussion of special circumstances was succinct, as follows:Discussion of special circumstances[51] The situation the appellant finds herself in is due to the fact that herdaughter has a significant intellectual disability. She otherwise met all aspectsof the Family (Partnership) category. She has lived in New Zealand since2009 and has made efforts over those years to ensure that she and her daughterhave been here lawfully. Two of her three sons remain in New Zealand andthe third has relocated to Australia. She therefore has a strong familial nexusto this country and is providing care and support for her husband, who hassome (unspecified) medical problems. The appellant was invited to withdrawher daughter from her application but declined to do so. She remains herdaughter's primary caregiver. Warm letters of support have been producedfrom members of her family and church community.[52] The Tribunal draws to the Minister's attention that the daughter'sintellectual disability will potentially involve costs to New Zealand. This is amatter to be considered. Her daughter, because of the entitlement to apply forthe disability allowance ($62 per week) and the supported living payment($295 (gross) 2016 figures) that would come with residence, does potentiallypresent a significant burden to the New Zealand taxpayer. On the other hand,the appellant is married to a New Zealand citizen and is making a contributionto her family in this country.[53] The Tribunal finds that the appellant has special circumstances thatwould warrant a recommendation to the Minister that an exception be madeto the instructions. The appellant has become well-settled in New Zealandand has been acknowledged as a valuable member of her local and churchcommunities. She is providing assistance for her unwell husband and isassisting her children and grandchildren in a mutually beneficial arrangementon a daily basis.[26] The formal decision was recorded in the following terms:[54] This appeal is determined pursuant to section 188(1)(f) of theImmigration Act 2009. The Tribunal confirms the decision of ImmigrationNew Zealand as correct in terms of the applicable residence instructions butconsiders there are special circumstances of this appellant that warrantconsideration by the Minister of Immigration as an exception to thoseinstructions.[55] Pursuant to section 190(5) of the Immigration Act 2009, the Ministerof Immigration is requested to make one of the two decisions set out below.Pursuant to section 190(6) of the Immigration Act 2009, the Minister ofImmigration is not obliged to give reasons in relation to any decision made asa result of a consideration of the Tribunal's recommendation.[27] The alternative decisions the Minister was requested to make were recorded ona separate page following the Tribunal's decision, as follows:1. Grant resident visas to [TALIA MATUA] and [HANA SEFO] as anexception to instructions.OR2. Decline to grant resident visas as an exception to instructions.[28] The Associate Minister's name and office is recorded beneath each option. Onthe copy produced, as page 15 of the decision itself, the Associate Minister's signatureappears below option 2 with the date, 17 August 2017.The Associate Minister's evidence[29] Affidavit evidence was provided by the Associate Minister and his privatesecretary, Ms Clare Owens.[30] The Associate Minister acted on authority delegated to him by the Minister ofImmigration contained in a letter dated 9 May 2017, some three months before thedecision in this case was made. The letter was produced. Seven classes of decisionwere delegated. Two are of relevance, recorded in the letter as follows:• residence appeals referred by the Immigration and Protection Tribunal(IPT) for consideration of approval by you as exceptions to Governmentresidence instructions;• requests for exceptions to Government residence instructions;[31] The first of those classes is a reference to decisions under s 190(5) of the Actfollowing a Tribunal recommendation under s 188(1)(f), as in this case. The secondclass, although also requiring consideration of exceptions to government residenceinstructions, would, as indicated, come to the Associate Minister following a requestby an applicant for an exception.[32] The Minister did not provide any advice to the Associate Minister on anymatter relating to decision making in relation to those two types of decision relatingto exceptions to instructions. As discussed below, they are materially different.9[33] The letter did record, in some detail, matters remaining the responsibility ofthe Minister. This included the following:I reserve the right to consider individual cases in all categories outlined above.I will retain responsibility for individual decisions on deportation of residenceclass visa holder cases. I will also retain responsibility for making decisionson the deportation of persons threatening security (section 163), and for casesinvolving classified information.[34] In his evidence the Associate Minister said, in relation to this case, he did "notremember making this decision specifically", but said he would have followed his"usual decision-making process". He said that the following "invariably occurred",unless there was an "occasional exception" (such as a decision relating to a personliving in the Associate Minister's electorate):4.1 The IPT Liaison Team within the Ministry of Business, Innovationand Employment would provide the IPT decision to me in my role asAssociate Minister. 4.2 In considering a matter, I was aware of New Zealand's internationalobligations as they relate to immigration decision-making.4.3 It would have been unusual but in rare cases I may have sought furtherinformation to assist with making my decision; however I am notunder any obligation to do so.4.4 After considering each matter I would make a decision and sign theIPT decision identifying what my decision was.4.5 My private secretary returned my decision to the IPT Liaison team,who would then send a letter to the appellant advising him or her ofmy decision.4.6 I was not obliged to give reasons for my decision as of [sic] result ofany consideration under s 190(5): s 190(6) of the Act.[35] The Minister also said that his "normal practice was to consider the IPTdecision and evaluate, in particular, any discussion on special circumstances on [sic]the decision".9 Below at [53]-[56].[36] The final matter noted by the Minister, in paragraph 4.6, does not, in a literalsense, record something that occurred, but rather a provision contained in s 190(6) ofthe Act. However, the six sub-paragraphs are presented as the things that invariablyoccurred. If the Associate Minister intended to say that one thing which invariablyoccurred was that he did not give reasons, he has impermissibly, and completely,fettered his discretion in relation to reasons. The discretion is one to give or not givereasons. This conclusion, on an assumption as to meaning, would not be removed bythe Associate Minister's observation at the end of his affidavit when he said: "I wasnot obliged to provide any reasons for my decision and did not do so in this case".[37] In her affidavit, Ms Owens said: (1) the Associate Minister's description of hispractice accorded with her understanding; (2) she remembered dealing with theAssociate Minister in relation to the decision; (3) she did not recall him asking forfurther information for the purpose of making his decision; and (4) it was unusual forhim to ask for further information.The grounds for review[38] The grounds for review as pleaded were expanded in submissions withoutopposition from the respondent. There are three broad causes of action:unreasonableness; breach of the New Zealand Bill of Rights Act 1990 and the HumanRights Act 1993; and illegality through failing to take into account mandatory factors,or taking into account irrelevant factors. The main contentions under each headingare summarised in the following paragraphs. As will be apparent from the followingsummary, there is a degree of overlap, and some contentions might have beenadvanced under a different heading. These are not matters of consequence.Unreasonableness[39] The applicants contended that the decision was unreasonable, on a Wednesburybasis, for the following reasons.(a) The Associate Minister relied on the Tribunal's decision which theapplicants contended involved a "flawed" interpretation of the healthinstructions applied to the facts of this case. The argument, reduced toits essence, was that the Tribunal upheld Immigration New Zealand'sapplication of the health instructions when the core question waswhether Hana was unlikely to impose significant costs or demands onNew Zealand's health services and the evidence positively establishedthat she would not.(b) The decision involved improper discrimination against the applicantson the grounds of intellectual disability.(c) The decision is inconsistent with the objectives and purposes of the Actand immigration instructions.(d) The decision is inconsistent with New Zealand's internationalobligations.Breach of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993[40] The contentions under this ground were that the decision breached s 19 of theNew Zealand Bill of Rights Act 1990, affirming the right to freedom fromdiscrimination, and s 21(h)(iv) of the Human Rights Act 1993, which prohibitsdiscrimination on the grounds of intellectual disability.Failure to take account of mandatory considerations[41] The applicants submitted that the Associate Minister failed to take into accountthe following matters which were said to be mandatory considerations:(a) The International Covenant on Civil and Political Rights (protection offamily) and the convention on the rights of persons with disabilities(rights to equality, non-discrimination, and equal rights to nationalityand family).(b) The medical evidence indicating that Hana would not in fact imposesignificant costs or demands on New Zealand's health services.(c) The purposes and objectives of the Act and immigration instructions.Taking account of irrelevant matters[42] The principal contention was that the Associate Minister, relying on theTribunal's decision, improperly took into account Hana's eligibility for a supportedliving payment benefit if granted a resident visa.New issues[43] In considering my judgment following the hearing I concluded that theapplicants' challenge to the decision required consideration of two issues. These wereraised by the broad grounds advanced, but had not been separately identified asreviewable error. I issued a minute seeking further submissions on two issues asfollows:(a) Was there reviewable error by the Associate Minister in failing toconsider, as an alternative to declining to grant the visas as an exceptionto instructions, to grant the visas as an exception but subject toconditions in accordance with ss 50 and 190(5)(b) of the Act. Theremay be a number of subsidiary issues within this broad issue. Onesubsidiary issue on which I seek submissions is whether or not it canproperly be inferred from the evidence that the Minister did notconsider this possibility.(b) Was there reviewable error in the decision because it will result in, oris likely to result in, members of the family being separated?[44] Further submissions were provided. I am grateful to counsel for theirassistance in this regard. I have now determined that what amount to two additionalgrounds for review should be assessed. In my evaluation of the application, I willassess these two new grounds first, under the following headings:• Was there failure to consider granting a visa subject to conditions?• Do the consequences of the decision indicate error?The law[45] Immigration instructions, the relevant statutory provisions, and relevant legalaspects grounds for judicial review, are considered under the following headings:(1) The legal nature of immigration instructions.(2) The statutory context: the nature and extent of the Minister's power andduty under s 190(5).(3) The absence of reasons.(4) The statutory power to impose conditions on resident visas.(5) Mandatory considerations under s 190(5).(6) Determining error from the consequences of a decision.(1) The legal nature of immigration instructions[46] Under s 22 of the Act, the Minister may certify "immigration instructions"relating to a range of immigration matters, including residence class visas. Subsection(5) specifies "the kinds of matters that may constitute immigration instructions", andthis includes "any general or specific objectives of immigration policy".10 Subsection(6) provides, without limiting subs (5), that any rules or criteria relating to eligibilityfor a visa may include, amongst other things, matters relating to health.[47] Immigration instructions are statements of government policy, rather thanregulations.11 The Court of Appeal discussed immigration instructions in thefollowing terms:12A policy document, such as the one in issue, is not to be construed with thestrictness which might be regarded as appropriate to the interpretation of astatute or statutory instrument. It is a working document providing guidance10 Section 22(5)(a).11 Singh v Chief Executive of Ministry of Business, Innovation and Employment [2013] NZHC 3273at [20].12 Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.to immigration officials and to persons interested in immigrating to NewZealand or sponsoring the immigration of a person to this country. It must beconstrued sensibly according to the purpose of the policy and the naturalmeaning of the language in the context in which it is employed, that is, as partof a comprehensive and coherent scheme governing immigration into thiscountry.[48] Residence instructions apply to applications for residence class visas. Theyare binding on the Minister and on immigration officers on the terms contained in s 72,as follows:72 Decisions on applications for residence class visa(1) Where the Minister or an immigration officer makes any decision inrelation to an application for a residence class visa, that decision mustbe made in terms of the residence instructions applicable at the timethe application was made and any discretion exercised must be interms of those instructions.(2) No application for a residence class visa that is received by animmigration officer may be referred to the Minister for decision atfirst instance, unless the Minister gives a special direction to thateffect.(3) Nothing in this section prevents the Minister, in his or her absolutediscretion, from making any decision to grant a residence class visaas an exception to residence instructions in any particular case.[49] The application of s 72(3) is discussed later.13(2) The statutory context: the nature and extent of the Minister's power and dutyunder s 190(5)[50] The Minister's powers and duties, following a recommendation from theTribunal under s 188(1)(f), are prescribed in s 190(5) and (6) as follows:(5) Where the Tribunal makes a recommendation under section 188(1)(f),the Minister—(a) must consider whether a residence class visa should begranted to the appellant as an exception to residenceinstructions; and(b) may, if he or she grants a resident visa, impose conditions onthe visa in accordance with section 50.13 Below at [56].(6) The Minister is not obliged to give reasons in relation to any decisionmade as a result of any consideration under subsection (5), and neithersection 27 of this Act nor section 23 of the Official Information Act1982 applies in respect of any such decision.[51] It appears that these sections have been substantively considered in only twoother decisions of this Court: CF v Attorney-General (No 2),14 and Goundan vImmigration and Protection Tribunal.15 The fuller discussion is in Goundan. In thatcase, van Bohemen J said:[18] The broad terms in which the Minister's power is cast, coupled withthe fact the Minister is not required to give reasons for his or her decision,make it clear the Minister has a broad discretion when making a decisionunder s 190(5). That conclusion is reinforced by two further considerations:(a) The purpose of the Act as set out in s 3(1) is to manage immigrationin a way that balances the national interest, as determined by theCrown, and the rights of individuals; and(b) The Minister's decision is an exception to the residence instructionswhich, in accordance with s 22, are certified by the Minister ofImmigration and are statements of government policy.[19] These considerations make it clear there is a high policy content todecisions made under the Act and that in decisions under s 190(5), the Ministerhas a discretion to make decisions that are an exception to national policy asdetermined by the government. This last factor is itself a matter ofconsiderable significance because the Minister is authorised to make adecision that is not subject to established government policy.[52] In making a decision to grant a visa, the Minister does have a discretion.16 But,in my opinion, it is not a broad discretion applying in every case. The breadth of thediscretion will depend on the particular circumstances, as discussed in the followingparagraphs.[53] The Act confers two types of discretion on the Minister and on immigrationofficers: a discretion defined as an "absolute discretion", and a "discretion" which isnot otherwise defined and which, for present purposes, may be referred to as an"ordinary discretion". There is a marked difference between the power of decisionmaking under an absolute discretion and the power under an ordinary discretion. Thisis relevant in the present context, relating to the nature and extent of the power under14 CF v Attorney-General (No 2) [2016] NZHC 3159, [2017] NZAR 152.15 Goundan v Immigration and Protection Tribunal [2018] NZHC 1756.16 Section 45(2) and (3) of the Act.s 190(5). Also, as I will come to, it is relevant because it distinguishes a case unders 190(5) from other cases, some of which have been relied on by the respondent in thisproceeding, concerned with exercise of an absolute discretion.[54] An "absolute discretion" is defined in s 11, which relevantly provides asfollows:11 Meaning of absolute discretion of the decision maker(1) If a provision of this Act provides that a matter or decision is in theabsolute 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, thereis no obligation on the decision maker to—(i) consider the purported application; or(ii) inquire into the circumstances of the person or anyother person; or(iii) make any further inquiries in respect of anyinformation provided by, or in respect of, the personor any other person; and(c) whether the purported application is considered or not,—(i) the decision maker is not obliged to give reasons forany decision relating to the purported application,other than the reason that this section applies;[55] Some provisions of the Act which provide an absolute discretion expand on thedefinition in s 11. An example is s 177, discussed below at [70]-[73].[56] Section 72(3), noted above, provides the Minister with an "absolutediscretion", to make "any decision to grant a residence class visa as an exception toresidence instructions in any particular case".17 This does not apply to matters thatcome before the Minister under s 190(5). An absolute discretion cannot apply unders 190(5) because of the statutory provisions enabling the applicants to apply for anexception to be recommended and because the Minister has a duty under s 190(5) to17 See above at [48].consider whether to grant the visa as an exception. The absolute discretion wouldapply to "requests for exceptions", which is what s 72(3) is directed to. It will berecalled that requests for exceptions were identified in the delegated authority to theAssociate Minister as distinct from referrals from the Tribunal requiring considerationunder s 190(5).18[57] Pursuant to s 190(6) the Minister is not obliged to give reasons. The extent towhich this may circumscribe some grounds for judicial review is considered below.But a discretion not to give reasons does not assist in defining the extent of thediscretion in making any particular decision under s 190(5).[58] A relevant enquiry, in considering the extent of the Minister's discretion in aparticular case, is whether there is substantial policy content in the decision. InGoundan, the Judge said there is "high policy content to decisions under the Act",including under s 190(5).19 That is undoubtedly correct for the reason noted by theJudge – the Minister is required to decide whether there should be an exception togovernment policy. But, in my opinion, caution is needed in applying this generalproposition to a particular case arising under s 190(5). Every case will have the policycontent contained in the residence instructions, that policy will have already beenapplied, and this will have resulted in refusal of the application for the resident visa.The matter has got to the Minister because the applicant cannot meet governmentpolicy, and this will have been confirmed by the Tribunal. The Minister, acting unders 190(5), is not required to make any determination of government policy in thatregard.[59] Section 190(5) contains a duty as well as a power. Assessment of the natureand content of both elements needs to extend beyond the undoubted fact that there isgovernment policy contained in the original decision of Immigration New Zealand tothe purpose of s 190(5). The purpose may be discerned, first, from the nature ofimmigration instructions. They are directions to immigration officers and the Ministerwhich are required to be implemented irrespective of the consequences for individuals18 I note that Mr Singh, for the applicants, drew this distinction in his submissions when dealing withthe nature of the discretion under s 190(5). Ms Jerebine, for the respondent, did not take issuewith the distinction drawn.19 Goundan v Immigration and Protection Tribunal, above n 15, at [19].who will be affected if a visa is refused. Individuals who will be affected, in a familycontext, may include not only the applicant or applicants, but other family memberswho do not require residence class visas because they are already New Zealandcitizens or holders of a residence class visa. The instructions are a blunt instrument.It is apparent, from this, that Parliament has recognised that, from time to time, thenecessarily rigid application of the instructions will have consequences which shouldbe avoided, or at least ameliorated. Parliament has recognised that from time to timean exception to government policy will be required.[60] I am not intending to suggest that there will be no case under s 190(5) whichmay require the Minister to determine what amounts to a question of policy. Somecases of that nature are noted in Immigration and Refugee Law in a section dealingwith the meaning of "special circumstances" in s 187(4).20 An issue in one case waswhether an overseas qualification not recognised in New Zealand should neverthelessbe accepted, as an exception, and therefore effectively as the equivalent ofqualifications that were recognised in the instructions and therefore consistent withgovernment policy.21 An issue in another case was whether a person who did not meeta health criterion under the residence instructions should nevertheless be granted avisa because there was a shortage of people in New Zealand with the recognisedexpertise of the applicant. The policy issue there related to a question whether thatshortage should be met by granting an exception to the health policy.[61] Another example is provided by one of the two earlier cases in this Court unders 190(5) – CF v Attorney-General.22 In that case, following protracted proceedings,CF on a second application was granted refugee status. He then applied for a residenceclass visa. This was declined because he was deemed to pose a risk to New Zealand'sinternational reputation because of his association with an organisation in Iran. That20 Doug Tennent, Katy Armstrong and Peter Moses Immigration and Refugee Law (3rd ed,LexisNexis, Wellington, 2017) at [10.10.7]. The cases referred to did not involve applications forreview of decisions under s 190(5), or the equivalent provision under the Immigration Act 1987,but appeals against the refusal of the Immigration Tribunal to make a recommendation under theequivalent of s 188(1)(f).21 Martin v Chief Executive of the Department of Labour HC Auckland HC113-98, 4 November1998.22 CF v Attorney-General, above n 14.issue effectively required the Minister, under s 190(5), to make a policy evaluation inrelation to the risk to New Zealand's international reputation.[62] Goundan, the other s 190(5) decision, did not give rise to any issue relating topolicy content. The main issue was whether the Minister was required to considerImmigration New Zealand's file, as well as the Tribunal's decision. The Judge heldthat there was no obligation to consider the file.[63] Other cases under s 190 may not require assessment of any new policy issuebecause of the nature of the special circumstances. In my judgment, the facts of thiscase provide an example. For reasons I will come to, the special circumstances thatare raised in this case are purely of a humanitarian nature and far removed fromgovernment policy reflected in the instructions.[64] This brings the analysis to s 3(1) which prescribes the purpose of the Act in thefollowing terms:The purpose of this Act is to manage immigration in a way that balances thenational interest, as determined by the Crown, and the rights of individuals.[65] If the special circumstances in an individual case are not special circumstanceswhich in themselves give rise to new policy issues, the national interest, as determinedby the Crown, will be fully reflected in the original decision and the Minister's focusunder s 190(5) must be on the rights of individuals.[66] Where the focus is on the rights of individuals, there will be, from case to case,a wide range of circumstances which have to be put in the balance against theestablished government policy. At an abstract level, and as with all decision makingof this nature, there will be a lot of circumstances presented as special which rangeacross the middle ground, some which plainly do not qualify for an exception, andothers which plainly are circumstances of a nature for which the power was grantedand which require an exception to be made.(3) The absence of reasons[67] The fact that the Minister is not obliged to give reasons obviously means thatthere is no reviewable error if the Minister chooses not to give reasons. In addition,grounds for review that in other cases can be directed to recorded reasons may not beavailable or may be limited in scope. The absence of a record of the actual reasoningprocess means that there is no direct evidence, by that means, of matters taken intoaccount and matters that were not taken into account. Also, the quality of the reasoningprocess cannot be subjected to direct scrutiny. But, if the discretion not to give reasonsis exercised, this does not exclude grounds for review directed to the decision. Thedecision can be assessed for reviewable error having regard to the statutory contextand the evidence, which will include evidence established to have been put before theMinister, and any matters the Minister was bound to consider,[68] In addition, if the Minister has not provided reasons, but it can be inferred fromthe available evidence that the Minister has misunderstood the law in relation to thepower and duty under s 190(5), or made a reviewable error in relation to evidence andif the error is material, the decision may be set aside.[69] Ms Jerebine, for the respondent, submitted as follows:As the Court of Appeal recognised in Singh, the absence of a duty to givereasons is an "obvious obstacle"23 for reviewing the merits of a decision, andas a consequence, the scope of review is narrowed "to a Wednesbury typeassessment".24 In addition, the absence of a right of appeal of the Minister'sdecision not to grant a residence class visa tells against reviewing such adecision on an exacting basis, such as proportionality.[70] I do not agree with the submission about proportionality. This is discussedlater.25 The second citation from Singh (Kulbir) is in a concluding paragraph to thejudgment which summarises the Court's earlier findings in relation to the scope ofs 177 of the Act. The foundation for the primary conclusion was stated more broadlythan what is contained in the summary. It was expressed as follows:2623 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA592, [2016] NZAR 93 at [50].24 At [46] and [64].25 Below at [98].26 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 23,at [46].Section 177 has severely circumscribed the scope for judicial review,effectively limiting it to a Wednesbury unreasonableness inquiry.[71] I do not read that statement as a finding that no other grounds for review areavailable when the decision maker under the Act is not obliged to give reasons and hasnot given reasons. In any event, it was a conclusion directed to the fact that s 177provides an absolute discretion.[72] The scope for judicial review of decisions under s 177, and decisions underother sections providing absolute discretions, is severely limited by the extent of thediscretion provided. As already discussed, an absolute discretion under the Act ismarkedly different from the discretion under s 190(5). The absolute discretion unders 177 is even wider than what is defined as an "absolute discretion" in s 11.Section 177 states that the immigration officer has an absolute discretion, and goes onto expand the scope of the discretion. The extent of this discretion is readily apparentfrom s 177(3), which is in the following terms:If an immigration officer does consider cancelling a deportation order,whether by way of a purported application or his or her own motion, the officermust have regard to any relevant international obligations, but otherwise—(a) may make a decision as he or she thinks fit; and(b) in doing so, is not under any obligation, whether by implication orotherwise,—(i) to apply any test or any particular test and, in particular, theofficer is not obliged to apply the test set out in section 207;or(ii) to inquire into the circumstances of, or to make any furtherinquiry in respect of the information provided by or in respectof, the person who is the subject of the deportation order orany other person.[73] In my opinion, the conclusion of the Court of Appeal that s 177 has severelycircumscribed the scope for judicial review is not a conclusion applicable to s 190(5).[74] I note, for completeness, that Ms Jerebine also referred to CF v Attorney-General (No 2),27 Ning v Minister of Immigration,28 and Pesamino v Minister of27 CF v Attorney-General (No 2), above 14.28 Ning v Minister of Immigration [2016] NZHC 697.Immigration.29 The observations in those cases, relating to the scope of review incases where the decision maker is not under an obligation to provide reasons, are notcontrary to my conclusions recorded above. Both Ning and Pesamino were casesinvolving exercise of an absolute discretion, and for that reason are not applicable tos 190(5). CF v Attorney-General is a judgment on an application for judicial reviewof a decision under s 190(5). In that case Moore J cited observations in Pesamino andNing and then said:30[94] Although these comments were made in relation to the exercise of theMinister's absolute discretion under different provisions, the observationsremain relevant.[75] There was no discussion which appears to be contrary to my conclusions.Indeed, in CF v Attorney-General, Moore J cited the following observations ofThomas J's in Ning:31If there were no reasons, and the information provided as to what was beforethe decision maker showed there was no reference to, for example,international obligations, an inference that the decision was made withoutrequisite consideration could be sustained.(4) The statutory power to impose conditions on resident visas[76] Section 190(5)(b) provides that the Minister may, if he or she grants a residentvisa, impose conditions in accordance with s 50.[77] Section 50 relevantly provides as follows:50 Conditions on resident visas(1) On granting a resident visa as an exception to residence instructions,the Minister may—(a) impose conditions in addition to those specified in theapplicable residence instructions (if any):(b) vary or waive conditions that would otherwise apply to a visaof that type.(2) Following the grant of a resident visa, the Minister may, by specialdirection,—29 Pesamino v Minister of Immigration [2012] NZHC 4.30 CF v Attorney-General (No 2), above 14, at [92]-[94].31 At [93]; see Ning v Minister of Immigration, above n 28, at [46].(a) impose further conditions whether or not the conditions arespecified in the applicable residence instructions (if any):(b) vary or cancel conditions that would otherwise apply to thevisa or were imposed under subsection (1).(3) The Minister may also do 1 or more of the things in subsection (2) byagreement with the visa holder.(4) A condition imposed, varied, waived, or cancelled under thissection—(a) must be notified to the visa holder by the Minister or animmigration officer; and(b) takes effect—(i) from the date the visa is granted, if the condition isimposed, varied, or waived when the visa is granted;or(ii) from the date specified in the notice (being a date notearlier than the date of notification), in any other case.[78] Section 50(5)(b) provides that the Minister's power to impose conditions is notavailable in relation to a "permanent resident visa". The residence class visa to whichMrs Matua would have been eligible, with her daughter included as a dependent, is aresident visa, not a permanent resident visa. In consequence, conditions could havebeen imposed by the Minister under s 190(5). There was no submission fromMs Jerebine to the contrary.(5) Mandatory considerations under s 190(5)[79] In my opinion, the following were mandatory considerations for the AssociateMinister in this case:(a) The Tribunal decision.(b) Section 3(1) of the Act.(c) Flowing from s 3(1), the provisions of international instrumentsbearing on the rights of the individuals affected by the decision in thiscase, being the applicants and the immediate members of their family.(d) In the course of making the decision, to consider whether a residenceclass visa should be granted subject to conditions.[80] That list is not intended to be a definitive list applying in every case. They arethe matters of relevance in this case.International instruments[81] It was submitted for the respondent that "there is no express statutoryrequirement for the respondent to have regard to 'any relevant internationalobligations'". That is correct, but is not determinative of the question whether, in theparticular case, consideration of international obligations was a mandatoryconsideration.32 In this case I am satisfied that it was, in relation to obligations notedbelow. Such mandatory obligation arises from s 3(1), and the facts put before theAssociate Minister through the Tribunal's decision.[82] One of the grounds for review advanced for the applicants was that theAssociate Minister failed to take into account relevant articles in the InternationalCovenant on Civil and Political Rights (protection of family) and the Convention onthe Rights of Persons with Disabilities (rights to equality, non-discrimination, andequal rights to nationality and family). I have concluded that the internationalobligations of most relevance are in parts of two articles in the Covenant on Civil andPolitical Rights, as follows:Article 171. No one shall be subjected to arbitrary or unlawful interference withhis privacy, family, home or correspondence ....2. Everyone has the right to the protection of the law against suchinterference Article 231. The family is the natural and fundamental group unit of society and isentitled to protection by society and the State.32 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA); Petrocorp Exploration Ltd vMinister of Energy [1991] 1 NZLR 1 (CA).A visa subject to conditions[83] Ms Jerebine also submitted that it is not mandatory to consider imposition ofconditions when determining a recommendation under s 190(5). The argument wasthat s 190(5) envisages a two-stage process. First, under s 190(5)(a), the Minister mustconsider whether a residence class visa should be granted as an exception to theinstructions. Second, if the Minister decides to grant a resident visa, the Minister mayimpose conditions in accordance with s 50. The words "if he or she grants a residentvisa" in s 190(5)(b) were said to be "permissive in nature only", allowing the Ministerto impose conditions only if a decision had already been made to grant a visa as anexception.[84] I do not agree with that argument. It requires an unduly literal interpretationof individual words and involves unjustified weight being given simply to the structureof the subsection, with the separate paragraphs (a) and (b). The word "may" ispermissive, but not in the sense suggested. It simply means that the Minister is notobliged to impose conditions. The suggested two-stage process is also illogical. Theargument contemplates a decision by the Minister that an unqualified visa should begranted at the first stage. If that is the conclusion the Minister reaches, there would beno reason to impose conditions. Why would the Minister impose conditions havingconcluded that the applicant was entitled to a visa that was not subject to conditions?The respondent's argument would also mean that if the Minister was in fact satisfiedthat an exception should be granted, but only subject to special conditions, thatapproach would not be possible. That cannot be right.[85] In my opinion, s 190(5) requires the Minister to consider three possibilities: togrant a visa as an exception; to grant a visa as an exception but with conditions,including conditions modifying the full effect of an unconditional visa; or to declineto grant a visa.[86] This interpretation is reinforced by s 50. Section 50 indicates that Parliamentexpressly contemplated that conditions could be imposed in the course of, and as anintegral part of, a decision to grant an exception.[87] The relevant text of s 50 is recorded above at [77]. The first words of subs (1)are directed to action that will occur as part of the decision to grant an exception – "Ongranting a resident visa as an exception to residence instructions, the Minister may impose conditions ". If there is any residual doubt, this is removed by the openingwords of subs (2) – "Following the grant of a resident visa, the Minister may, byspecial direction impose further conditions ". The power under subs (2) is ofgeneral application in respect of any resident visa that has already been granted,whether pursuant to the standard provisions for grant of a resident visa, or as anexception under s 190(5), or otherwise, and which visa already granted may alreadybe subject to conditions. The respondent's argument would effectively requires 190(5)(b) to be read as if it were part of, or referred back only to, s 50(2), but thereference in s 190(5)(b) to s 50 is plainly not restricted in that way. This interpretationis also in harmony with the temporal prescriptions of s 50(4)(b): the condition takeseffect "from the date the visa is granted". Where the Minister grants a visa unders 190(5), and decides to impose conditions on that visa, the conditions apply from themoment it is granted. The Minister's power to impose conditions must therefore be acontemporaneous consideration with his or her power to grant a visa as an exceptionto residence instructions.(6) Determining error from the consequences of a decision[88] The "consequences of a decision", referred to in the heading, are in this casethe consequences for each of the applicants and their immediate family. The broadissue is whether a decision can be set aside when no reasons for the decision have beengiven, but the consequences, weighed with other circumstances, indicate error.[89] Ms Jerebine submitted that the test to be applied on a challenge of this natureis the Wednesbury standard of unreasonableness: a decision that is "so unreasonablethat no reasonable authority could ever have come to it".33 The Wednesbury test forunreasonableness creates a high hurdle.33 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA) at 230 and233-234.[90] The principal authorities cited in support are four decisions of the Court ofAppeal.34 The cases include Singh (Kulbir), which was discussed above.35 Forreasons already adverted to in that earlier discussion, those authorities are notapplicable to decisions under s 190(5). The context of the decisions in all of thosecases is similar, but materially different from the context of the decision in this case.Context is central in considering the appropriate legal test, as discussed below.36[91] The relevant statutory context in the Court of Appeal cases is that the decisionsbeing challenged resulted from exercise of an absolute discretion, and they weredeportation cases.37 The relevant context of this case is markedly different. Thedistinction between deportation cases and cases under s 190(5) is also indicated,perhaps, by the fact that the Minister, in delegating authority to the Associate Ministerunder s 190(5), and in respect of other matters, did not delegate authority in relationto deportation cases.38[92] Ms Jerebine also referred to the decision in CF v Attorney-General.39 One ofthe grounds for judicial review in that case was that a decision under s 190(5) wasunreasonable. Ms Jerebine noted that Moore J applied the Wednesbury standard. Thatis correct, but in that case there was no issue as to the standard. The challenge wasexpressly made on the basis that the decision did not meet the Wednesbury standard.40Given the fact that the case was advanced on that basis, Moore J was not required toconsider whether it was the correct standard and he simply applied it withoutdiscussion.4134 Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA); Huang v Minister ofImmigration [2008] NZCA 377, [2009] 2 NZLR 700; Singh (Kulbir) v Chief Executive, Ministryof Business, Innovation and Employment, above n 23; and Zhang v Associate Minister ofImmigration [2016] NZCA 361, [2016] NZAR 1222.35 At [69]-[73]36 See, for example, the detailed discussion of Wild J in Wolf v Minister of Immigration [2004] NZAR414 (HC) at [47]-[48]. See, generally, Phillip A Joseph Constitutional and Administrative Law inNew Zealand (4th ed, Brookers, Wellington 2014) at [24.4].37 In Galani v Chief Executive of the Ministry of Business, Innovation and Employment [2018]NZHC 383 at [20], Lang J distinguished Huang and Singh (Kulbir), and some similar cases, fromthe immigration case he was dealing with on the grounds that those cases are "deportation cases",but did not determine whether the principle stated in the Court of Appeal's decisions neverthelessapplied, because it was unnecessary to do so.38 See above at [32].39 CF v Attorney-General, above n 14.40 At [45].41 At [117]-[120].[93] The context of this case, relevant to the present issue, comes from the followingmatters: the nature and extent of the Minister's powers under s 190(5); the purpose ofthe power under s 190(5); those matters assessed in relation to the facts of this case asput before the Associate Minister in the Tribunal's decision; because the AssociateMinister chose not to provide reasons, the absence of any evidence that the decisionrequired the Associate Minister to weigh new matters of policy; and the effect of thedecision on individuals, being both applicants, and other individuals in theirimmediate family.42[94] I am satisfied that the context of this case requires rigorous appraisal of thedecision that has been made, weighed with the other contextual matters just noted.[95] As part of this analysis, I am also satisfied that, if the consequence of thedecision, assessed in light of the evidence known to be available to the decision maker,is harsh, oppressive, or unjust, to an extent that the circumstances must come withinthe purpose for which the power in s 190(5) was clearly provided, and the decisionmaker has chosen not to explain why such a decision was made, the decision shouldbe set aside. The consequences of the decision may also indicate one or more of thefollowing, which may also require that the decision be set aside: (1) a failure to haveregard to all of the material evidence that was required to be considered; (2) a failureto understand from that evidence that refusal to grant a visa would have the particularconsequences; and (3) the full range of consequences was recognised, but the Ministerconsidered he or she was bound to apply the policy reflected in the instructions.[96] Ms Jerebine submitted that "separation of family does not make a decisionunder s 190(5) unlawful". That was seemingly put as a legal proposition. It is notsustainable as a general proposition. This is in fact indicated in the submission whichfollowed that "immigration will often have the unfortunate but inevitable effect offamily members being separated". A number of cases were cited in support of thatmore qualified observation.43 The cases cited do not establish a general proposition42 Authorities for context considerations of this nature are noted in Constitutional and AdministrativeLaw in New Zealand, above n 36, at [24.4.2].43 Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [47]; Nacis v Ministerof Immigration [2016] NZHC 2627 at [40]; Zhang v Associate Minister of Immigration, aboven 34, at [3]; and Davies v Chief Executive of the Ministry of Business, Innovation and Employment[2017] NZHC 503 at [9].of law which can be extended to every decision-making power under the Act whichmay, or will, separate families. None of the cases cited involved a decision unders 190(5) and, as might be expected, each case turned on its particular facts. And oneof those cases, Zhang, was also a case involving exercise of an absolute discretion.44[97] It can be said that separation of a family, viewed in isolation, may not make adecision under s 190(5) unlawful, but a general proposition of that nature simply doesnot assist analysis. What is required is that the consequences be weighed in the fullstatutory and factual context.[98] Authority for the point just made, if required, is found in the Supreme Court'sdecision in Guo v Minister of Immigration.45 Guo is also authority that the Tribunal,and the Courts, should consider the proportionality of hardship. Guo was a decisionon an application for leave to appeal after the High Court and Court of Appeal hadrefused leave to appeal from a decision of the Tribunal under s 207 of the Act. TheTribunal had dismissed an appeal against liability for deportation on humanitariangrounds. The Court granted leave because there were "some areas of legal concern".46One was the following:47The Tribunal's focus on whether deportation would be unduly harsh was interms which suggested a comparison of the level of hardship which [theappellants] would suffer as against that of anyone who was required to go toanother country as opposed to the proportionality of that hardship in respectof the basis upon which they were liable to deportation. Indeed, the onlyproportionality analysis explicitly carried out was in the context of thefamily as a whole and was not carried out appellant by appellant.EvaluationWas there material failure to consider granting a visa subject to conditions?[99] The heading to this section encapsulates two issues arising from my conclusionthat the Associate Minister was required, as part of his primary decision unders 190(5), to consider granting visas subject to conditions. Those issues are:44 Zhang v Associate Minister of Immigration, above n 34. This is one of the cases discussed aboveat [90] and [91].45 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.46 At [22].47 At [22](b) (footnotes omitted).(a) Did the Minister fail to consider granting a visa subject to conditions?(b) If so, should the decision be set aside?[100] Ms Jerebine submitted that it cannot properly be inferred that the AssociateMinister failed to consider the possibility of granting the visas subject to conditionsfor the following reasons:It can be inferred that the (then) Associate Minister was well aware of hisobligations in considering immigration matters under the Act. Further heexpressly references his decision as a result of any consideration unders 190(5) of the Act.[101] The evidential foundation for the first submission is the letter from the Ministerdelegating authority to the Associate Minister. The letter does not provide any basisfor an inference that he considered the possibility of granting a visa subject toconditions.[102] The second submission is a reference to the Associate Minister's affidavit.48There was no statement about conditions. And what the Minister did say did notcontain an implicit reference to conditions and does not enable an inference to bedrawn that the Minister did consider conditions. The statement relied on was directedonly to the fact that he was not obliged to give reasons. The conclusion that this wasthe Associate Minister's sole consideration is reinforced by the fact that in this sub-paragraph of his affidavit he also referred expressly to s 190(6) – the provisionrecording the right not to give reasons.[103] The argument that the Associate Minister did consider the possibility ofgranting conditions is also not readily reconciled with the primary argument that hehad no obligation to consider the possibility of imposing conditions when decidingwhether to grant a visa.[104] Although I do not agree with the respondent's submissions, the analysis isproperly extended beyond them.48 The full text of the relevant paragraph in the affidavit is recorded above at [34].[105] Weighing all of the evidence of the Associate Minister and his private secretary,I am satisfied, for the following reasons, that the proper inference to draw is that theAssociate Minister did not consider the possibility of granting a visa subject toconditions.[106] The Associate Minister described in some detail what "invariably occurred".There is no suggestion that the imposition of conditions was considered, and there isnothing in any of the evidence from which that might reasonably be inferred.[107] The Associate Minister said his normal practice "was to consider the IPTdecision and evaluate, in particular, any discussion on special circumstances on thedecision". There is nothing in the Tribunal decision which might direct the AssociateMinister's attention to conditions. The Tribunal decision directs the Minister'sattention away from the possibility of granting a visa subject to conditions. If myinterpretation of s 190(5) is correct, the Tribunal in fact misstated the legal effect ofs 190(5).49 The Minister was requested, "pursuant to s 190(5) to make one of thetwo decisions set out below". As earlier recorded, the options were either to grant thevisas as an exception to the instructions, or to decline to grant them as an exception.Given the fact that it was a statement directed personally to the Minister, and thereforein substance to the Associate Minister, it may be inferred that the Associate Ministerwould have proceeded on the basis that he only had the two options. That wasreinforced by the way in which the two options were recorded on the page followingthe Tribunal's decision.[108] Ms Jerebine submitted that conditions could not have addressed concerns thatHana's disability would in fact impose significant costs or demands on New Zealand'shealth services because the Associate Minister could not impose a condition that Hana,as holder of a resident visa, would not be entitled to health or disability supportservices. Ms Jerebine submitted that health care is available to residence visa holdersregardless of conditions on their visas.5049 At [55] of the Tribunal decision. This is recorded above at [25].50 Citing: the Health and Disability Services Eligibility Direction 2011, made under s 32 of the NewZealand Public Health and Disability Act 2000; and GB (Sibling and Adult Child) [2013] NZIPT201044 at [38].[109] That submission, in relation to the particular concern and the particularcondition posited, may be correct. But that does not provide any basis to concludethat the decision should stand notwithstanding a failure to give consideration to theimposition of conditions. On the terms this point was advanced for the respondent,there was a necessary assumption that the Associate Minister did have the particularconcern, but that is not known. In addition, if it is assumed that the Associate Ministerdid have such a concern, the obligation to consider conditions is not removed byproposing a condition which is, or may be, unenforceable. The proper approach wouldbe to devise a condition which is lawful. And this could include seeking legallyeffective agreement from the applicants to a condition or conditions which would meetany particular concerns pursuant to the power contained in s 50(3).[110] Fundamentally, however, the submission for the respondent is beside the point.Whether in substance a condition or conditions could meet, or sufficiently alleviate,any relevant concerns, whatever they might be, was a question for the AssociateMinister. The question for the Court, at this point in the analysis, is whether theAssociate Minister's failure to consider granting visas subject to conditions was areviewable error.[111] For the following reasons I am satisfied that there was error requiring thedecision to be set aside and for the Tribunal's recommendation to be reconsidered bythe Minister.[112] The power to impose conditions is an integral part of the power provided forthe purposes already discussed. The factual context of this case illustrates theimportance of the power to impose conditions. Those considerations are reinforcedby the following features of this case. First, Hana is deemed to impose significant costand demand in circumstances where she does not. Second, the case came before theMinister under s 188(1)(f), which allowed exceptions to be made to the policy thatdeems Hana's condition to be cost-imposing. Third, the only evidence of the actualcost or demand from Hana's remaining in New Zealand, if granted a resident visa, iscost arising from the disability allowance and supported living payment referred to bythe Tribunal.51 The total of those benefits is $18,564 per annum which is less than halfof the maximum sum above which an applicant not deemed to impose significant costsmust nevertheless be held to do so, or held to do so if that threshold is reached withinfive years.52 Fourth, there is a number of further circumstances, considered in the nextsection, which add substantial weight to a conclusion that the decision should be setaside.Do the consequences of the decision indicate error?[113] The following summary of essential aspects of Immigration New Zealand'sdecision provides a foundation for consideration of this question:(a) Hana does not comply with the residence instructions because of hermental disability.(b) This is because she is deemed to impose significant costs or demandson New Zealand health services because of the intellectual disabilityand because the capacity of her family to provide care has no bearingon whether Rosaline will in fact impose significant costs or demandson health services.(c) Mrs Matua would have been granted a resident visa. The applicationfor Mrs Matua was declined because Hana was included in herapplication as a dependent.[114] Fifteen factors can be identified which indicate that this clearly is a case forwhich the power to grant an exception was provided, with one proviso. The provisois whether there were countervailing policy considerations beyond those alreadyapplied through the residence instructions which justified refusal. I will refer to thisproviso, to be discussed below, as "the additional policy proviso".[115] Fourteen of the factors are as follows:51 At [52]. See [24] above.52 Instructions A4.10.2(a) and (b). See above at [15].1. Hana was admitted to New Zealand in 2009, with her mother and threesiblings, in spite of the fact that she was totally dependent on hermother because of her intellectual disability.2. From entry to New Zealand in 2009, Mrs Matua has taken all necessarysteps to ensure that she and her four children were lawfully in NewZealand, and with her two older sons taking direct responsibility forthemselves when they were lawfully able to do so. The entire familyhas been lawfully in New Zealand since 2009 except, in Hana's case,since April 2017 when her visitor's visa expired after the applicationfor the resident visa had been declined.3. When the Associate Minister made his decision in October 2017,Mrs Matua had been in a genuine and stable relationship withMr Matua, whom she had married in 2012, for over seven years.4. Mrs Matua's three sons have either obtained New Zealand citizenshipor residency. Her two older sons live with their partners in Auckland,near Mrs Matua's home.5. Mrs Matua has four grandchildren in New Zealand who are, of course,also nephews and nieces of Hana.6. Hana is totally dependent on the support of her immediate family. Hermother is her primary caregiver, but she is also supported by anddependent on her stepfather and siblings.7. There are very strong bonds between Hana and her stepfather as wellas between Hana and her mother.8. Extended family in Samoa are not in a position to care for Hana.9. There was no evidence before the Associate Minister that Hana, in spiteof her severe intellectual disability, had imposed any actual significantcost or demand on New Zealand's health services. Hana has not, andat the date of the decision did not, as a matter of fact, impose any costsor demands on New Zealand's health services of any consequence.10. The only evidence before the Associate Minister of actual cost ordemand on public resources Hana might impose, if granted a residentvisa, was not a cost to health services but the cost of a disabilityallowance and the supported living payment which totalled $18,564 perannum. These entitlements were given emphasis by the Tribunal in thediscussion of special circumstances, and with the comment that thebenefits "potentially present a significant burden to the New Zealandtaxpayer".53 Given the Associate Minister's evidence that his normalpractice was to consider the Tribunal decision and any discussion onspecial circumstances in particular, it may be inferred that this effectiveadvice from the Tribunal would have been given weight by theAssociate Minister. In my respectful opinion, what the AssociateMinister was told is, in context, materially misleading for the followingreasons: (1) the two benefits identified by the Tribunal are not costs onNew Zealand health services because they are benefits payable underthe Social Security Act 1964 (funded through Vote Social Developmentnot Vote Health); (2) on a visa application under the Family(Partnership) category, benefits of this nature are not to be taken intoaccount; (3) the total cost of these benefits would be less than half ofthe actual cost of $41,000 above which a person not deemed to imposeactual cost or demand will be held to do so; and (4) the benefit amountnoted by the Tribunal is the maximum entitlement and it is unknownwhether Hana would be entitled to the maximum.11. Those considerations, directed to likely future costs in fact, as opposedto what is deemed by the instructions, do not exclude the possibilitythat, at some time in the future, Hana might begin to impose significantcosts or demands on health services. However, there was the evidencefrom the psychiatrist, Dr Malur, that Hana "would be eligible for a53 At [52].disability benefit, but was physically healthy and was unlikely to be aburden on the New Zealand health system". The Associate Minister'sevidence was that it was his "normal practice to consider the IPTdecision and evaluate, in particular, any discussion on specialcircumstances on [sic] the decision". It is proper to infer that theAssociate Minister read the Tribunal's summary of Dr Malur'sevidence, but in my judgment it is also proper to infer that it is unlikelythat any weight would have been attached to Dr Malur's evidence,when weight should have been attached to it, because the reference toDr Malur's evidence was not contained in the Tribunal's "discussion ofspecial circumstances", but the advice from the Tribunal, noted in thepreceding sub-paragraph, was. In any event, Dr Malur's evidence wasdirect evidence, not contradicted by any other evidence recorded in theTribunal decision, that Hana was "unlikely to be a burden on the NewZealand health system".12. In the future, as Mrs Matua and her husband get older, support for Hanawill be available from her siblings. And it appears there is a strongchurch tie which is likely also to be a source of support.13. Mrs Matua would have been entitled to a resident visa if Hana had notbeen included in her application as a dependent.14. If an exception is not granted this family will be split apart becauseMrs Matua cannot allow her daughter to return to Samoa alone forreasons made clear in the Tribunal decision.[116] In my judgment these matters, all drawn from the Tribunal's decision, put thecase into a category for which the power to grant an exception was provided byParliament. This is because, possibly subject only to the additional policy proviso, theeffect of the application of the policy contained in the residence instructions willproduce consequences for the applicants and their family which are harsh, oroppressive, and unjust.[117] I referred to fifteen factors and have noted fourteen. The remaining factor, inmy judgment, makes this a compelling case for an exception. This arises fromconsideration of the individual circumstances of Mrs Matua and Hana resulting fromthe application of the health instructions.[118] If Mrs Matua were to do what she is lawfully entitled to do, she could applyseparately for a resident visa, she would obtain it, and she could then remain lawfullyin New Zealand with her New Zealand citizen husband, her sons, their partners, andher grandchildren. However, were Mrs Matua to secure those basic human rights forherself, and for her family, it would mean that Hana could not remain in New Zealandand would have to return to Samoa. The unchallenged evidence in the Tribunaldecision, from Dr Malur's report, makes clear that the consequences for Hana wouldbe dire.[119] To avoid that outcome for Hana, Mrs Matua was presented with a choice –either to abandon her totally dependent daughter, or go with her to Samoa and leaveher husband and her other children and their families in New Zealand.[120] No humane and just society would ever expect a mother and wife to have tomake such a decision. Nor would any democratic society expect blanket policyprovisions, contained in administrative directions required to be enforced rigidly, tobe allowed to stand in such circumstances, unless there were policy considerations,beyond those contained in the instructions, compelling a contrary conclusion. This isso especially when the matters just considered are coupled with the other factors.[121] If the Associate Minister's reason for his decision was that the policy containedin the residence instructions outweighed these considerations, the decision cannotstand, for reasons already recorded. If further support for that conclusion wererequired – and in my opinion it is not – it is found in the failure to consider grantingthe visa with conditions.[122] The additional policy proviso remains for consideration. It might be surmised,on an hypothetical basis, that the Associate Minister declined the application becausehe considered there were policy considerations requiring refusal of the visas beyondthe policy already applied through the instructions. But analysis on that basis isinappropriate. This is for reasons earlier discussed in relation to an election not toprovide reasons when reasons could be provided.54[123] The analysis to this point has been directed to the consequences of the decisionin light of the evidence available to the Minister and the evidence the AssociateMinister has provided. Analysed on that basis, my conclusion is that the decision iscontrary to law and the decision should be set aside.[124] There is an alternative approach arising from the consequences of the decision.This is to assume, and it is proper to assume, that the Associate Minister would nothave made a decision with such harsh and unjust consequences if he had fully realisedand understood what the consequences would be, and also understood that not onlydid he have the power under s 190(5) to avoid such grave consequences by grantingvisas, but also to do so subject to conditions should conditions be required.[125] If the matter is considered from that perspective, however, further error isestablished for one or more of three reasons. The first is that the Minister failed tohave regard to all of the material evidence. The second is that he failed to understandfrom that evidence that refusal to grant the visa would have all of the consequences Ihave outlined. The third is that he did understand the full range of consequences, butmisunderstood his duties and powers under s 190(5), whether in respect of a powernot to apply the policy reflected in the instructions, or the duty to consider imposingconditions, or otherwise.[126] Any one of those failures constitutes an error of law also requiring the decisionto be set aside.54 See above at [67]-[75].The original grounds for review[127] The "original grounds for review", as will be apparent, are the grounds asoriginally advanced for the applicants.55 These do not include what amount to newgrounds arising from the issues identified in my minute following the hearing andwhich have now been considered. The discussion of the two new grounds takesaccount of some matters of substance advanced for the applicants by Mr Singh insubmissions on some of the original grounds. Given the conclusions already reached,and matters taken into account from the original grounds of review, it is unnecessaryto consider the original grounds in detail.Unreasonableness[128] Mr Singh submitted that the Associate Minister's decision was unreasonable,on a Wednesbury basis.[129] The principal argument proceeded on the basis that the Associate Minister isbound to have relied on the Tribunal's decision, the Tribunal's decision was "flawed"in a material respect and, in consequence, the Associate Minister's decision isunreasonable and should be set aside. This was summarised, at the outset ofMr Singh's submissions, as follows:The crux of the application for judicial review is as follows. The Applicants'residence application was declined on the basis that the Second Applicant wasdeemed to impose significant costs or demands on New Zealand's healthservices or special education services. However, the medical evidenceavailable indicates that the Second [Applicant] would not impose significantcosts or demands on health [or] education services.The result of the above is that the Applicants, who do not impose significantcosts or demands on New Zealand's health or education services, have beendeclined residence applications on the erroneous basis that they do imposesuch costs. This matter has not been expressly addressed by the Tribunal intheir [sic] decision.55 Summarised above at [38]-[42].[130] This argument, as developed in submissions, merged quite separate areas ofenquiry. The first was whether Immigration New Zealand was correct in itsapplication of the residence instructions. Mr Singh disavowed an intention to arguethat the applicants met the health instructions, but an essential part of this argumentwas a challenge to the application of the instructions and, in substance, to theTribunal's conclusion that the instructions were properly applied. This element of theargument could not assist the applicants in the challenge to the Associate Minister'sdecision. His decision did not turn on, and could not properly turn on, a questionwhether application of the instructions was correct or incorrect. The decision for theAssociate Minister was whether to grant an exception to residence instructions on theexpress statutory basis, under s 188(1)(f), that the instructions had been correctlyapplied.[131] In addition, whether Hana, as a matter of fact, did, or would, imposesignificant cost on New Zealand's health services was also not a relevant enquiry forImmigration New Zealand, and therefore not a relevant enquiry for the Tribunal indetermining whether Immigration New Zealand was correct. This is because of thedeeming provision in cl A4.10(c) of the health requirements under the residenceinstructions.[132] The second and separate area of enquiry, merged in this challenge to thedecision, was whether, in the Tribunal's opinion, there were special circumstancesjustifying a recommendation to the Minister. The evidence that Hana did not andwould not impose significant costs on New Zealand's health services was noted by theTribunal in this context. This was the evidence from the psychiatrist, Dr Malur.Mr Singh gave emphasis to Dr Malur's opinion that Hana "was unlikely to be a burdenon the New Zealand health system". What was perhaps the heart of Mr Singh'sargument was that this evidence was effectively set aside by the Tribunal in its adviceto the Associate Minister that Hana's entitlement to a disability allowance and asupported living payment "does potentially present a significant burden to the NewZealand taxpayer".[133] I agree with the thrust of this part of the submissions for the applicants asindicated in the preceding discussion of error indicated by the consequences of thedecision.[134] Three further arguments in support of the unreasonableness ground for reviewwere improper discrimination, inconsistency with the objectives and purposes of theAct and immigration instructions, and inconsistency with international obligations.These arguments have already been taken into account in the preceding discussion.None provides independent grounds for setting aside the decision.Breach of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993[135] Section 19(1) of the New Zealand Bill of Rights Act 1990 provides thateveryone has the right to freedom from discrimination on the grounds ofdiscrimination in the Human Rights Act 1993. Under s 21(h)(iv) of the Human RightsAct, intellectual disability is a prohibited ground of discrimination. The statutoryprovisions were advanced as a separate ground of illegality on the basis that thedecision breaches those provisions.[136] An argument on that basis is not tenable. As with some other grounds forreview, in substance it is a challenge to the validity of the residence instructions and,in particular, the deeming provisions. In addition, as Ms Jerebine noted, had theapplicants made a claim of discrimination to the Human Rights Review Tribunal, thechallenge could not have been permitted. Section 392 of the Act expressly providesthat a complaint cannot be made under the Human Rights Act in respect of the "contentor application of any immigration instructions made in accordance with section 22".56Failure to take account of mandatory considerations[137] It was argued for the applicants that the Associate Minister failed to take intoaccount relevant articles in the International Covenant on Civil and Political Rightsand the Convention on the Rights of Persons with Disabilities.57 For reasons earlier56 Section 392(3) also provides that s 392 "recognises that immigration matters inherently involvedifferent treatment on the basis of personal characteristics".57 See above at [82].recorded, I am satisfied that two articles in the Covenant on Civil and Political Rightswere mandatory considerations in this case. I have taken the provisions of thosearticles into account, to the extent I consider them relevant, in itemising the factorswhich bear on my conclusion that the consequences of the Associate Minister'sdecision do indicate error. Beyond those considerations, I am not persuaded that it canbe inferred from the evidence that the Associate Minister simply ignored allinternational obligations. As earlier recorded, the Associate Minister expressly saidthat, in considering a referral under s 190(5), he "was aware of New Zealand'sinternational obligations as they relate to immigration decision-making".58[138] Mr Singh also argued that there was reviewable error in failing to take intoaccount medical evidence that Hana would not in fact impose significant costs ordemands on New Zealand's health services and, separately, the purposes andobjectives of the Act and immigration instructions. I have also taken account of theseconsiderations, but in my judgment neither point provides an independent ground forsetting aside the decision.Taking account of irrelevant matters[139] The argument was that the Associate Minister, relying on the Tribunal'sdecision, must have improperly taken into account Hana's eligibility for a supportedliving payment benefit if granted a resident visa. Again, this factor has been taken intoaccount in my reasons.Result[140] For all of the preceding reasons, I am satisfied that there was material error bythe respondent in declining to grant resident visas to the applicants as an exception toinstructions and such error requires the decision to be set aside. There are thefollowing orders in respect of the decision:(a) The decision is set aside.58 See above at [34].(b) The decision is referred back to the Minister for reconsideration of therecommendation of the Tribunal in its decision dated 7 June 2017.(c) Such reconsideration should take account of the conclusions of law inthis judgment, which include interpretation of statutory provisions.[141] The applicants are entitled to costs to be assessed on a 2B basis, together withreasonable disbursements. Any issue in relation to quantification of costs or as toreasonableness of disbursements is to be determined, in the first instance, by theRegistrar.__________________________________Woodhouse J