ULLAH v CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2019] NZHC 332

ULLAH v CHIEF EXECUTIVE OFFICER OF THE MINISTRY OF BUSINESS, INNOVATION ANDEMPLOYMENT [2019] NZHC 332 [4 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-1950[2019] NZHC 332UNDER the Judicature Amendment Act 1972 and theImmigration Act 2009IN THE MATTER of an application for judicial review of adecision of the Ministry of Business,Innovation and EmploymentBETWEEN SHAKHAWAT ULLAHApplicantAND CHIEF EXECUTIVE OFFICER OF THEMINISTRY OF BUSINESS, INNOVATIONAND EMPLOYMENTRespondentHearing: 4 March 2019Appearances: T Mukusha for the ApplicantR A Kirkness and T Witten-Sage for the RespondentJudgment: 4 March 2019JUDGMENT OF PALMER JCounsel & Solicitors:Avondale Law, AucklandR A Kirkness, Barrister, WellingtonCrown Law, WellingtonWhat happened?[1] In June 2015, Mr Shakhawat Ullah entered New Zealand on a student visa fromBangladesh. In July 2016 he was granted a post-study open work visa valid until 25July 2017. He made multiple attempts to extend his stay in New Zealand:(a) On 2 June 2017, he applied for an employer-assisted post-study workvisa. An immigration officer raised concerns on 28 June about whetherthe job offer was genuine and the job was relevant to his qualifications.(b) On 4 July 2017 Mr Ullah sought to withdraw his application for theemployer-assisted visa. He requested a temporary visitor's visa whichwas rejected on 5 July 2017.(c) On 6 July 2017 he claimed he was in a serious relationship with a NewZealand citizen. He requested a temporary visitor's visa to enable himto gather evidence to support that. He got married on 14 July 2017.(d) On 18 July 2017, he was granted an interim visa pending a decision onan application for an employer-assisted work visa, or for six months,whichever was the earliest.(e) On 4 August 2017, Immigration New Zealand (INZ) declined to changeMr Ullah's application for an employer-assisted work visa to atemporary visitor's visa because he had not declared his relationship inhis original application. On 9 August 2017, INZ confirmed its decisionnot to change his work visa application to a visitor's visa. On 10August, Mr Ullah withdrew his application for a work visa, his interimvisa expired and he was unlawfully in New Zealand.(f) On 13 September 2017, Mr Ullah applied for a work visa based onpartnership. Because he was unlawfully in New Zealand it was dealtwith as a request for a grant of a visa in a special case. It was declinedon 4 October 2017.(g) On 27 November 2017, Mr Ullah applied for refugee status and wasinterviewed on 10 January 2018. On 9 February 2018, the interviewreport identified a number of concerns including about Mr Ullah'scredibility. On 5 March 2018, INZ sought Mr Ullah's comments andinformed him a person who is declined refugee and protection statusmay not apply for any further type of visa. He withdrew the applicationon 9 March. He subsequently appears to have acknowledged theapplication was based on false and misleading information.1(h) On 22 March 2018, Mr Ullah applied for a partnership-based work visaon the basis he was living in a genuine and stable partnership with aNew Zealand citizen. That is the application at issue here.[2] INZ held an initial telephone interview with Mr Ullah on 30 May 2018. On 11July 2018, Mr Ullah and his wife were interviewed by two immigration officers. On13 July 2018 he was invited to comment on concerns about whether he was living ina genuine and stable partnership and about his character. He responded to some ofthose concerns. On 16 August 2018, INZ declined Mr Ullah's application on thegrounds it was not satisfied, for specified reasons, that he and his wife met thedefinitions of "credibility", "living together", "genuine partnership" and "stablerelationship". Mr Ullah challenges that decision by way of judicial review.Relevant law[3] Section 45 of the Immigration Act 2009 (the Act) provides no person is entitledto a visa as of right and an immigration officer may grant or refuse to grant a visa inhis or her discretion. Section 26 provides the manner of processing a visa applicationis a matter of discretion unless immigration instructions require otherwise.Immigration instructions are certified under s 22, including in relation to partnership-based work visa applications. INZ's Operational Manual reflects the need for fairnessand natural justice in its decision-making.1 Transcript of Witness briefing, 11 July 2018, Common Bundle at 269-270.Submissions[4] This is a judicial review, not an appeal. Mr Ullah is not challenging theultimate decision. His challenge is based on one of the immigration officers at the 11July interview initially being said to be an observer, but then asking some questions.Mr Mukusha, on his behalf, submits the applicant was vulnerable and was not preparedto be asked questions by both officers and, out of fairness, he should have been toldthat before it happened. He submits, "in the interest of justice" this "high handedcrude approach" cannot stand. He submits, cumulatively, the process breached MrUllah's legitimate expectation the interview was to be conducted in a professionalmanner, breached natural justice, was unreasonable, grossly unfair and should be setaside. There are additional pleadings about other grounds of challenge which are notbeing pursued. Mr Mukusha also submits some of the questioning techniques wereunreasonable in using leading questions and giving advice.[5] Mr Kirkness, for the Crown, submits none of these claims withstands scrutiny.Decision[6] Mr Kirkness is correct. INZ's function involved interviewing Mr Ullah andhis wife. Two officers were involved in doing that. One was doing it for the first timeso the second was introduced as an observer. The second did ask questions, when heconsidered they needed to be asked. If he had not done so, he may have failed in hisduties as an immigration officer.[7] There was no basis for a legitimate expectation the second immigration officerwould not ask questions. There is nothing unfair or unreasonable about him askingquestions or asking them in the way he did. There is no error of law or evidence offailure to consider relevant considerations or of fettering of discretion. Immigrationofficers are bound by the rules of natural justice which were not breached here. Theydo not include the obligation that is placed on counsel in a court case not to ask leadingquestions in examination-in-chief or re-examination. They do not include anobligation not to provide information and asking questions.[8] I decline the application for judicial review and award costs to the Crown on a2B basis.Palmer J