WENZEL v THE MINISTER OF IMMIGRATION [2019] NZHC 1005

WENZEL v THE MINISTER OF IMMIGRATION [2019] NZHC 1005 [9 May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-2547[2019] NZHC 1005UNDER the Judicial Review Procedure Act 2016 andss 247 and 248 of the Immigration Act 2009IN THE MATTER of an application for judicial reviewBETWEEN SHANE CHARLES WENZELApplicantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 22 March 2019Appearances: P F Chambers for the ApplicantS Connolly and M Madden for the RespondentJudgment: 9 May 2019JUDGMENT OF GAULT JThis judgment was delivered by me on 9 May 2019 at 1:00 p.m.pursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Mr P F Chambers, Barrister, AucklandMr M Henley-Smith (applicant's instructing solicitor), Henley-Smith Law, AucklandMr S Connolly, Crown Law, Wellington[1] The applicant is an Australian citizen who has lived in New Zealand for manyyears. Following a trip overseas in November 2017, the applicant was denied entryback into New Zealand. He applied for judicial review of that decision and asubsequent decision to decline his application for a visa.Background facts[2] As an Australian citizen, the applicant was exempt from the requirement tohold a visa when he arrived in New Zealand on each occasion prior to the coming intoforce of the Immigration Act 2009 (the Act) on 29 November 2010. Under the Act,persons who were in New Zealand on that date and exempt from the requirement tohold a visa, including the applicant as an Australian citizen, were deemed to hold aresident visa allowing them to stay in New Zealand.1[3] On 15 October 2012, the applicant was convicted in the District Court on twocharges of using a document with intent to defraud and six charges of using adocument dishonestly.2 This was a retrial ordered by the Court of Appeal when hisconvictions from an earlier trial were quashed.3 He was sentenced to a term of threeyears' imprisonment.4 His later appeal against conviction was dismissed.5[4] On 8 November 2017 the applicant and his partner travelled to Hong Kong.On 24 November 2017 the applicant attempted to travel from Hong Kong toNew Zealand via Sydney. Following an immigration alert, an ImmigrationNew Zealand officer spoke with the applicant by telephone and decided to offload theapplicant from the flight to New Zealand (he could still travel on the flight from HongKong to Sydney). The officer relied on s 15(1)(b) of the Act, because in the preceding10 years the applicant had been convicted of an offence for which he had beensentenced to imprisonment for a term of 12 months or more.[5] On 12 January 2018 the applicant applied to Immigration New Zealand for avisitor visa. In subsequent correspondence, in particular dated 28 September 2018,1 Immigration Act 2009, s 417.2 R v Wenzel DC Manukau CRI-2006-092-14379, 15 October 2012.3 Wenzel v R [2010] NZCA 501.4 R v Wenzel DC Manukau CRI-2006-092-14379, 14 December 2012.5 Wenzel v R [2013] NZCA 403.Mr Chambers on behalf of the applicant sought to expand the application to one basedon the applicant's claimed resident visa pursuant to s 17(2)(a) of the Act.[6] On 12 November 2018 Immigration New Zealand declined the applicant'sapplication for a visitor visa, on the basis that he fell under s 15(1)(b) of the Act sincehe had been sentenced to three years' imprisonment. Therefore, ImmigrationNew Zealand decided he was not eligible for a visa or entry permission unless a specialdirection was given under s 17(1)(a) of the Act. A special direction was consideredbut was not granted.Relevant legal provisions[7] Section 15 of the Act relevantly states:15 Certain convicted or deported persons not eligible for visa orentry permission to enter or be in New Zealand(1) No visa or entry permission may be granted, and no visa waiver mayapply, to any person—(b) who, at any time in the preceding 10 years (whether before orafter the commencement of this section), has been convictedof an offence for which the person has been sentenced toimprisonment for a term of 12 months or more, or for anindeterminate period capable of running for 12 months ormore;(4) This section is subject to section 17.[8] Section 17 provides:17 Exceptions to non-eligibility for visa or entry permission(1) Despite sections 15 and 16, a visa and entry permission may begranted to any person—(a) in accordance with a special direction; or(b) in accordance with section 83.(2) Despite sections 15 and 16,—(a) entry permission must be granted to—(i) the holder of a permanent resident visa; and(ii) the holder of a resident visa granted in New Zealand;and(iii) the holder of a resident visa arriving in New Zealandfor a second or subsequent time as the holder of thevisa:(b) a visa and entry permission must be granted to a person whois for the time being entitled to any immunity fromjurisdiction by or under the Diplomatic Privileges andImmunities Act 1968 (other than a person referred to insection 10D(2)(d) of that Act) or the Consular Privileges andImmunities Act 1971.(3) A decision to grant a visa and entry permission under subsection (1)is in the absolute discretion of the decision maker.[9] Section 186 provides:186 Limited right of review in respect of temporary entry class visadecisions(1) No appeal lies against a decision of the Minister or an immigrationofficer on any matter in relation to a temporary entry class visa,whether to any court, the Tribunal, the Minister, or otherwise.(2) Subsection (1) applies except to the extent that section 185 provides aright of reconsideration for an onshore holder of a temporary visa inthe circumstances set out in that section.(3) A person may bring review proceedings in a court in respect of adecision in relation to a temporary entry class visa except if thedecision is in relation to the—(a) refusal or failure to grant a temporary entry class visa to aperson outside New Zealand:(b) cancellation of a temporary entry class visa before the holderof the visa arrives in New Zealand.[10] Section 417(3) provides:417 Persons exempt from holding permit under former Act deemed tobe holders of temporary visa or resident visa(3) A person in New Zealand who immediately before thecommencement of section 404 of this Act was exempt from therequirement to hold a permit under Part 2 of Schedule 1 of theImmigration Regulations 1999 is deemed on and from thatcommencement to hold a resident visa under this Act allowing stay inNew Zealand only.Submissions[11] Mr Chambers, counsel for the applicant, confirmed that the only decisionsubject to challenge in the proceeding is the decision made on 12 November 2018, asa formalisation of the decision to refuse entry to New Zealand in November 2017.[12] Mr Chambers submitted that, although no review proceedings are possible inrespect of a decision in relation to a temporary entry class visa as the applicant isoutside New Zealand, his application effectively changed from one seeking atemporary entry class visa to one seeking a resident visa pursuant to s 17(2)(a)(iii).Mr Chambers submitted that entry permission must be granted to the applicant as "theholder of a resident visa arriving in New Zealand for a second or subsequent time asthe holder of the visa". He submitted that the holder of a resident visa included theholder of an expired visa.[13] Mr Chambers relied on the provisions of the Immigration (Visa, EntryPermission, and Related Matters) Regulations 2010 to support his interpretation ofs 17(2)(a)(iii) of the Act – focusing on regs 8 and 18 which deal with applications byor waiver for Australian citizens. He also referred to the definition of "person whopreviously held a resident visa",6 which means a person whose resident visa hasexpired because he or she has travelled in a way that does not meet the travelconditions of the visa. He submitted that the applicant was only required to show thathe was an Australian citizen with a previous resident visa, and that he was compliantin terms of completion of the application form and any medical requirement.He described these requirements as merely administrative.[14] The applicant's written submission expressed the alleged ground of review interms of the decision being not only contrary to s 17(2)(a)(iii), but also unreasonable,based on irrelevant considerations and a failure to take account of relevantconsiderations, otherwise than in accordance with law and abuse of the decision-making process. These were not pursued as separate grounds.6 Regulation 4(1).[15] Mr Connolly, counsel for the respondent, acknowledged that reg 18 providesfor visa waiver in the case of Australian citizens but submitted they must still, onarrival, apply for a visa. Mr Connolly pointed out that the definition of "person whopreviously held a resident visa" in the regulations is not used in regs 8 or 18 butelsewhere, such as reg 6.[16] Moreover, Mr Connolly submitted the Regulations are subject to ss 15 and 17of the Act. In relation to s 17, Mr Connolly submitted that in the absence of a specialdirection, s 17(1) does not apply. In any event, a decision to grant a visa and entrypermission under subs (1) is in the absolute discretion of the decision maker.7 Such adecision is not reviewable.8[17] In relation to s 17(2), Mr Connolly noted that "holder" is defined in s 4 of theAct:holder, in relation to a visa granted under this Act,—(a) means the person in respect of whom the visa is granted; but(b) does not include a person whose visa has expired or been cancelled[18] Mr Connolly submitted that the applicant's visa had expired so he was not the"holder of a resident visa arriving in New Zealand for a second or subsequent time asthe holder of the visa". This was because the resident visa the applicant was deemedto hold upon the transition to the Act was a resident visa allowing stay in New Zealandonly. This visa expired upon travel out of New Zealand. Mr Connolly acknowledgedit would be different if the applicant's resident visa had travel conditions, but his didnot.[19] Mr Connolly advised that the Minister had decided not to intervene while theproceeding was ongoing but noted the applicant could apply again.7 Section 17(3).8 Section 186(3).Discussion[20] I accept that in correspondence the applicant effectively expanded hisapplication for entry from the original application of 12 January 2018 seeking a visitorvisa to an application based on his claimed resident visa under s 17(2)(a)(iii) of theAct.[21] I also accept that Immigration New Zealand's decision letter dated12 November 2018 focused on the original application for a visitor visa and did notrefer to s 17(2)(a).[22] It was common ground at the hearing that the focus of the application forjudicial review is on the correctness of the decision under s 17(2)(a)(iii) of the Act.Indeed, any decision refusing to grant a temporary entry class visa to a person outsideNew Zealand is not reviewable.9 Also, a decision whether to grant a special directionis in the absolute discretion of the Minister.10[23] Mr Chambers sought to rely on the regulations to support his interpretation ofs 17(2)(a)(iii) of the Act. I consider the regulations do not assist the applicant.Section 17(2)(a)(iii) does not apply in his case, for the following reasons.[24] As Mr Connolly pointed out, the definition of "holder" in the Act "does notinclude a person whose visa has expired". References in the regulations to "personswho previously held a resident visa", and the process applicable for such persons underthe regulations, do not affect the clear meaning of s 17(2)(a)(iii) of the Act.[25] As an Australian citizen, the applicant was deemed to hold a resident visa whenthe Act came into force on 29 November 2010 as a result of s 417(3). That provisionstated that the resident visa was one "allowing stay in New Zealand only". Theapplicant had not been granted any variation of the conditions of his visa relating tofurther travel to New Zealand. Accordingly, as Mr Connolly submitted, when theapplicant travelled out of New Zealand on 8 November 2017, his resident visa9 Section 186(3)(a).10 Section 378(8).expired.11 When he sought to return to New Zealand on 24 November 2017, he wasno longer the holder of a resident visa, within the terms of s 17(2)(a)(iii). Nor was hethe holder of a resident visa when the 12 November 2018 decision was made.[26] Therefore, he could not be granted a visa or entry permission by reason ofs 15(1)(b), at least in the absence of a special direction. The applicant could only travelto New Zealand if he had a visa or a visa waiver applied.12 Even if a visa waiverapplied, the applicant would still have to apply for a visa and entry permission onarrival.13 In his case, absent a special direction, a visa was precluded by s 15(1)(b).[27] For these reasons, Immigration New Zealand's decision to decline theapplicant a visa or entry permission under s 15(1)(b) of the Act was not unlawful(however the ground of review is expressed). The application for judicial review mustfail.Result[28] The application for judicial review is dismissed.[29] The respondent is entitled to costs on a 2B basis plus reasonable disbursements.________________________________Gault J11 Section 63(2)(a).12 Section 14(1).13 Regulation 18.