LALLI V THE ATTORNEY-GENERAL (MINISTER OF IMMIGRATION) HC CIV 2006-404-00435

LALLI V THE ATTORNEY-GENERAL (MINISTER OF IMMIGRATION) HC CIV 2006-404-00435 27 April 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-00435IN THE MATTER OF the Judicature Amendment Act 1972 AND IN THE MATTER OF of the Immigration Act 1987 BETWEEN TARANBIR SINGH LALLI Plaintiff AND THE ATTORNEY-GENERAL (MINISTER OF IMMIGRATION) Defendant Hearing: 5, 6 April 2006 Appearances: G Monk for Plaintiff K Hogan for Defendant Judgment: 27 April 2006JUDGMENT OF ASHER JThis judgment was delivered by me on at am/pm pursuant to Rule 540(4) of the High Court Rules Registrar/Deputy Registrar .. DateSolicitors: Grant Monk Law, Solicitors, PO Box 47740 Ponsonby Auckland Russell McVeagh, PO Box 8 Auckland (K Hogan)Table of ContentsParagraph NumberIntroduction [1]The application for leave to cross-examine [7]First ground of review: Legitimate expectation [17]Principles relating to legitimate expectation [19]Legitimate expectation arising from written material [30]Legitimate expectation arising from the dealings of the plaintiff and Ms Churms with the Immigration Service[44]Second ground of review: Failure to take into account a relevant consideration, namely the impact on Ms Churms[73]Third ground of review: Material error of fact [76]Fourth ground of review: Predetermination [84]Fifth ground of review: Wednesbury unreasonableness [93]General discretion [95]Conclusion [99]Introduction[1] Mr Lalli, the plaintiff, is an Indian national. He arrived in New Zealand on 27 November 2003 on the basis of a visitor's permit, valid until 27 December 2003. That permit has expired. [2] The Immigration Service was unaware of the plaintiff's location until September 2005 when it was informed that Mr Lalli intended to marry Claudine Mary Churms, a New Zealand citizen. Mr Lalli and Ms Churms married on 6 October 2005. [3] On 9 November 2005 the New Zealand Police took Mr Lalli into custody. On that day a removal order was made pursuant to s 54 of the Immigration Act 1987. [4] The Immigration Service then proceeded to carry out interviews to determine whether there were any unusual factors indicating that Mr Lalli should not be removed from New Zealand. On 20 November 2005 the Immigration Service determined that the removal action should proceed. [5] Following a complaint to the Ombudsman about the interviews there was a second interview process carried out by a different immigration officer. The second interview took place on 24 January 2006. It was decided that the plaintiff's removal from New Zealand should proceed. The removal was scheduled to take place on 28 January 2006. However, an interim injunction was obtained to prevent the removal of the plaintiff pending determination of an application for judicial review. [6] In considering administrative action in refugee cases high standards of fairness are required: R v Secretary of State for Home Department, Ex parte Bugdaycay [1987] AC 514, Khalon v Attorney-General [1996] 1 NZLR 458, 463. This is because fundamental questions of liberty are at stake. In this case, although there are no suggestions of danger to life or safety, the issue that arises is whether the plaintiff can live in the country of his choice, or whether he faces forcible removal.The application for leave to cross-examine[7] Mr Monk on behalf of Mr Lalli has sought leave to cross-examine the immigration officer who carried out the second interview, Ms Bentley. The Crown opposed. I allowed the questions, but with the consent of counsel did not give my reasons at that time, as this would have delayed completion of the hearing. I give my reasons now in this judgment. [8] There are two obvious reasons for caution in allowing cross-examination in judicial review proceedings. The first is that judicial review is an area of litigation particularly susceptible to arguments lacking focus, and examinations that are of a "fishing expedition" nature. Because of the delicate nature of the administrative process there is always the potential that cross-examination will have as its primary focus the intention to embarrass and publicise, rather than illuminate the issues for determination on the pleadings. There will be particular caution exercised in this regard where the deponents are Ministers of the Crown. The second reason is that judicial review in its nature is a process that should proceed expeditiously. Lengthy cross-examination has the capacity to delay or frustrate the process. However, the need to recognise the two factors must always be balanced against the requirement that a trial be fair, and that the parties are given an opportunity to properly explore the matters at issue. [9] In this case, at my request, Mr Monk provided headings as to the topics on which he wished to cross-examine. This gave me an opportunity to consider the relevance and importance of the proposed questions. He wished to cross-examine Ms Bentley on the following specific issues:1. On what basis did Ms Bentley reach her estimate of 50% -• was it premised on her experience; other information; both.• "relevant cases" – did the estimate relate to other family also (parents; children; siblings etc.)• face to face interview; or other• were interviews referred to where relationship genuine or not?2. What were the reasons why Ms Bentley elected not to consult Ms Churms? 3. On what basis did Ms Bentley conclude Ms Churms was willing to go to India?[10] The Crown submitted that the interests of justice do not require cross- examination, and that the details of the decision-making process involved will sufficiently emerge in the course of judicial scrutiny. While there is force in this, judicial scrutiny of facts is by its nature limited to the material that is before the Court as admissible evidence. The process of giving submissions cannot add to that evidence. Only properly adduced evidence elicited by questions can do that. It is therefore necessary to allow cross-examination if the issues to be explored are sufficiently relevant and important to outweigh the policy considerations against cross-examination. [11] As will be noted in more detail later in this judgment, the case for the plaintiff centres on the submission that: a) There was a legitimate expectation that Ms Churms would be independently interviewed; b) Interviewing the partners of persons to be removed was a practice of the defendant; and c) The defendant, through Ms Bentley, failed to take into account a relevant factor, namely the effect on Ms Churms of removal, or made an error, or pre-determined that factor. [12] The questions Mr Monk has listed relate to the decision-making process on the key issue of whether the officer should interview Ms Churms or not. It is difficult at this stage of the proceedings to precisely weigh the relevance and importance of any answers that might be elicited. It does seem, however, that the answers to the questions may well be relevant, as they relate to the actual decision- making process of the defendant. If those answers revealed a relevant practice or consideration, those answers could affect the decision in this case.[13] Ms Bentley has asserted that partners of the persons to be removed are only interviewed in about 50% of cases. That is a relevant matter, and not accepted by Mr Lalli. There is no supporting evidence or corroboration for the figure. The plaintiff should be able to test it. The question is raised as to why Ms Bentley decided not to consult Ms Churms and why Ms Bentley concluded that Ms Churms might not go to India. In her affidavit Ms Churms only refers to these matters briefly. If they are relevant, then an injustice may result if the statements of Ms Bentley cannot be explored. [14] In this sense the questions may come within the first category referred to by Williams J in Zaoui v Attorney-General (2003) 7 HRNZ 279 at 283. He said:[23] It would be both impossible and unhelpful to try and list all the situations in which cross-examination in judicial review may be appropriate, but they include at least the following: [a] Where there is a lack of adequate or proper explanation of the decision making process, eg where the decision maker(s) have, by discrete omission from their (affidavit) account of how the decision was arrived at, rendered themselves vulnerable to cross-examination. [b] Where there exists a material conflict of evidence. [c] Where the credibility of a deponent is in issue.[15] I did not consider when I granted leave that there had been any deliberate withholding of information by the defendant. But some of the key factual areas were not covered in detail in the affidavits. The purpose of the proposed questions that were set out was to obtain further information as to how the relevant decision was arrived at, in an area where there is an absence of corroborative material. To this limited extent I allowed cross-examination. I requested counsel to restrict himself to the listed topics. Ultimately that cross-examination was short and amounted to seven typed pages of evidence. [16] I now turn to the substantive grounds of review.First ground of review: legitimate expectation[17] It is claimed that Mr Lalli held a legitimate expectation that the defendant would, as a matter of practice, interview Mr Lalli's partner, Ms Churms, to ascertain the impact and affect on her if Mr Lalli was removed. It was Mr Monk's submission for Mr Lalli, that the practice is reflected in the defendant's Operational Manual. He submitted that in undertaking the second humanitarian interview and review the defendant failed to apply this practice. [18] There is no evidence that the plaintiff had knowledge of the defendant's practices. It is necessary to ascertain whether the doctrine of "legitimate expectation" can be applied in such circumstances.Principles relating to legitimate expectation[19] The general principle was set out by the Privy Council in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346, 351: when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is . that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty This principle has been applied on many occasions. It was affirmed by the Privy Council in New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513, 525. It is clear from that case and others that legitimate expectations may be based on statements or undertakings made by or on behalf of the public authority, which would make it unfair or inconsistent with the good administration of justice for that person to be denied realisation of the expectation. The principle applies to a foreign national, just as much as to a citizen: Attorney-General of Hong Kong v Ng Yuen Shiu 638. However, it is also clear from that decision that there could on occasions be a "satisfactory reason" for the administrative body to not act in accordance with the assurance: New Zealand Maori Council v Attorney-General, 525.[20] As was observed by Randerson J in New Zealand Association for Migration & Investments Inc v Attorney-General (High Court Auckland, M1700/02, 16 May 2003), the ability of an administrative body to not act in accordance with an assurance reflects the two key policy considerations which often lie at the heart of legitimate expectation cases. There is, on the one hand, an interest in holding public authorities to promises made in the interests of fairness and proper public administration. On the other hand, there is also a public interest in allowing authorities to change policy from time to time when it is necessary to do so. I observe that any such change of policy should, if possible, be carried out with proper notice to those affected and, if appropriate, with a transitional period, to ensure that there is not undue unfairness to those whose expectations are not realised. [21] In Australia the role of legitimate expectation as an operative and discreet concept in administrative law has been questioned at the highest level: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 311-312; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, 522. Rather, legitimate expectation is seen as no more than a relevant matter to be taken into account in considering procedural fairness. [22] Such reservations have not been widely expressed in New Zealand, and it may be that in practice there will not be different consequences, whether legitimate expectation is treated as an administrative law doctrine on its own, or simply an application of the need for there to be procedural fairness. [23] However, it is useful when applying the concept of legitimate expectation to particular facts, to bear in mind that behind the cases relating to legitimate expectation is the Court's wish to ensure that administrative bodies act in a way which is procedurally fair. They must act in accordance with natural justice. Legitimate expectation as a doctrine does not exist in a vacuum. It is a way of measuring fair practice. This is particularly so in a case such as this, where the plaintiff does not claim to have been aware of the guidelines and procedures which are relied on to support the legitimate expectation. The question arises in this case whether it is necessary for the plaintiff to personally have an expectation, or, rather, whether the test is an objective one, not related to the state of mind of a plaintiff.[24] In Aronson Dyer & Groves, Judicial Review of Administrative Action 3rd ed at p 398-400, it is suggested that there are in fact three patterns of usage of the concept of legitimate expectation. The first is actual reliance. To that extent there is some analogy with estoppel. An example of legitimate expectation operating in this way can be seen in Attorney-General of Hong Kong v Ng Yuen Shiu, where there was actual reliance on an announcement in a television programme. [25] Another way in which it can arise is where there is a likelihood of the person acting in reliance upon the expectation, given the background circumstances. An example of this sort of reliance is where a licensee can have a legitimate expectation of a renewal, but where there was no actual enquiry made about its availability to the administrative body, and no representation by it. [26] The third type of usage of legitimate expectation is that described as a "prescriptive expectation" by Finn & Smith in 'The Citizen, The Government and "Reasonable Expectations"' (1992) 66 ALJ 139, 141, 142. This is where there is no actual expectation on the part of the plaintiff, and the matter is assessed objectively in terms of what expectation might reasonably be engendered by the actions of the authority in question. It is difficult to find any New Zealand decisions that fall into this category. In such a situation it could be thought that the word "expectation" is something of a misnomer. This type of "legitimate expectation" can be seen as an example, at most, of what objectively could be seen as procedurally fair because it is the usual practice, and therefore in accordance with the ordinary rules of natural justice. It is an example of what an objective bystander or indeed the Court might legitimately expect, rather than what the plaintiff expected. [27] The third pattern of usage does not so comfortably fit under the rubric "legitimate expectation". If the plaintiff does not, as a matter of fact, have any expectation the issue then becomes more what the Court, or an objective bystander with knowledge of all the facts, expects or would expect on the basis of the undertakings of the administrative body. The concept of legitimate expectation is extended to the notional expectation of the interested bystander knowing all the facts and law, or the Court's expectation.[28] Where an authority has publicised a course of practice which it has then not followed, it may be held to its word irrespective of whether there has been specific reliance, on the basis that the stated course of practice may be the fair practice which should be followed in the interests of natural justice. Such a situation cannot be truly said to arise as a "legitimate expectation", of any actual person. Rather, the doctrine may arise because it can be expected that an authority should behave towards those bound by its decisions in the way that it says it will. [29] There are then two elements to be considered: first, the action of the administrative authority which has led to the expectation; and, second, the state of knowledge and actions of the party that seeks to rely on the expectation. The following further points can also be noted: a) Legitimate expectation is distinguished from a mere hope that a course of action will be pursued or a particular outcome gained:Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, 682; White v New Zealand Stock Exchange [2000] NZAR 297, 314; and New Zealand Association for Migration and Investments Inc v Attorney-General, [143]. b) It is not necessary for a person to have actually changed position as a result of the expectation: R v Secretary of State for Education and Employment, Ex parte Begbie [2000] WLR 1115, Gibson LJ at 1124 and Sedley LJ at 1133; R (Bibi) v Newham London Borough Council[2002] 1 WLR 237, 245. Detrimental reliance is relevant but not invariably required: R v (Bibi) v Newham London Borough Council,245-246; New Zealand Association for Migration and Investments Inc v Attorney-General, [144]. c) The expectation is generally procedural in nature, but in some circumstances substantive benefits may be recognised: R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213. In that case the complexity of the Court's task in assessing the appropriate remedy was addressed in detail. It was observed at [82]:The court's task – and this is not always understood – is then limited to asking whether the application of the policy to an individual who has been led to expect something different is a just exercise of power. In many cases the authority will already have considered this and made appropriate exceptions or resolved to pay compensation . But where no such accommodation is made, it is for the court to say whether the consequent frustration of the individual's expectation is so unfair as to be a misuse of the authority's power.d) The word "legitimate" can be regarded as commensurate with the concept of reasonableness: Attorney-General of Hong Kong v Ng Yuen Shiu, p 636.Legitimate expectation arising from written material[30] To establish legitimate expectation the plaintiff relies on various documents which, it is asserted, establish that Mr Lalli and Ms Churms, as Mr Lalli's partner and wife, were entitled to expect that Ms Churms would be interviewed at the time of the second interview in January 2006. It is not suggested that Mr Lalli or Ms Churms knew about the documents or their contents at any material time, so the type of legitimate expectation relied on is of the third type of usage referred to earlier in this judgment. [31] The statute itself is of little assistance. It sets out a procedure whereby a person who is unlawfully in New Zealand may appeal to the Removal Review Authority against the requirement for that person to leave New Zealand. That process has not been invoked in this case. Section 53 provides that a person unlawfully in New Zealand may be the subject of a removal order. Such a removal order can be made by the Chief Executive of the Department of Labour or any properly designated immigration officer (s 54). Section 58(1) provides that a properly designated Officer may cancel a removal order.[32] Section 58(5) provides:58 Cancellation of removal order (5) Nothing in this section gives any person a right to apply to an immigration officer for the cancellation of a removal order, and where any person purports to so apply— (a) The immigration officer is under no obligation to consider the application; and (b) Whether the application is considered or not,— (i) The immigration officer is under no obligation to give reasons for any decision relating to the application, other than the reason that this subsection applies; and (ii) Section 23 of the Official Information Act 1982 does not apply in respect of the application.[33] Section 58 contains no reference to interviews with either a person subject to a removal order or any member of that person's family. Such a practice cannot be inferred from the statute and can form no basis for a legitimate expectation. The non-judicial nature of the process is indicated by the fact that the decision-maker need not give reasons. [34] New Zealand is a party to certain international conventions that are relied on by Mr Lalli. In particular, he relies on the International Covenant on Civil and Political Rights. Article 23 of that Covenant provides:Article 231. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.[35] Article 17 provides that no person shall be subjected to arbitrary or unlawful interference with "his family everyone has the right to the protection of the law against such interference ". Reference has also been made to the International Covenant on Economic Social and Cultural Rights. This Covenant was ratified by New Zealand on 28 December 1978. Article 10 of that the ICESCR provides that the widest possible protection and assistance should be accorded to the family which is the natural and fundamental group unit of society. This Covenant was also ratified by New Zealand on 28 December 1978. [36] It is common ground between the plaintiff and the defendant that relevant provisions of these Covenants, when related to an administrative discretion, call for a balancing exercise on the part of the administrator which takes the provisions into account: Tavita v Minister of Immigration [1994] 2 NZLR 257, 264-265. [37] The Investigations Manual of the New Zealand Immigration Service, issued on 21 December 2005, appears to recognise these provisions of the Conventions, and is relied on by the plaintiff. Chapter 4 deals with removal of persons from New Zealand. Chapter D4.45.5 recognises New Zealand's obligations under international law and that these obligations should be taken into account when executing removal orders. There is particular reference to the International Covenant on Civil and Political Rights, but no reference to the International Covenant on Economic, Social and Cultural Rights. [38] Paragraph D4.45.5 provides:D4.45.4 Necessity to consider other rightsa. When determining whether or not to execute a removal order it is necessary for the immigration officer to take into account the particulars of the case and the impact removal might have on the rights of: i. the person being removed; and ii. any immediate family associated with that person, (particularly those who are New Zealand citizens or residents).b. The immigration officer must then balance the factors set out in (a) above against: i. the rights and interests of the State in determining who should reside within its borders; ii. the principal goals of Government residence policy; iii. the intention of the Immigration Act 1987 to ensure a high level of compliance with immigration laws; iv. the need to be fair to other potential immigrants who have not met policy requirements and who have not been able to remain in New Zealand.[39] There is no doubt that this provision announces an intention on the part of the Immigration Service to take into account in determining whether or not to execute a removal order, any immediate family associated with the person to be removed, particularly those who are New Zealand citizens or residents. "Family" is not defined, but it is not in dispute that a "wife" falls within the scope of the family of such a person. Although the word "family" is commonly used to refer to a parent or parents and children, I accept that in this context it would extend to a husband and a wife or indeed two partners living together. It turns on the concept of persons living together in a common household. [40] This provision, and indeed the Conventions, do not contain any statement either directly or by implication that the immediate family of the person to be removed can expect to be interviewed or consulted (as distinct from having their interests considered) before removal. The International Covenant on Civil and Political Rights only states that the family is entitled to protection. The Investigation Manual provides that the immediate family will be "taken into account" in the determination process. There is no practice of conducting an interview required. Rather there is a need to take interests into account. While this process may include interviews, they are not directly or by implication required. The only legitimate expectation that these documents could engender, is an expectation that the rights of immediate family members would be considered. [41] Quite simply, none of these documents support the expectation contention put forward by the plaintiff, namely an expectation that there will be an actual interview of those family members who are available to be interviewed, and in thisparticular case, in addition to the person to be removed himself, a spouse. The only requirement is for their position to be considered. In this case it has not been contended by the plaintiff that the wife's position was not considered. It undoubtedly was. There are no statements in the Covenant or the Manual, on which to base a claim of breach of legitimate expectation that a spouse or partner will as a matter of practice be interviewed. [42] In addition, there is no evidence of any actual reliance on these documents by Mr Lalli or Ms Churms. They have not given evidence that they had an expectation based on this material. [43] For these reasons no ground for review based on legitimate expectation is made out on the plaintiff's written material.Legitimate expectation arising from the dealings of the plaintiff and Ms Churms with the Immigration Service[44] It emerged in submissions that the essence of the factual claim to legitimate expectation, rests upon the plaintiff and Ms Churms' expectation that the interview of Ms Churms that had taken place on 16 November 2005 would be repeated when the second interview process took place on 24 January 2006. This is legitimate expectation of the first or second type, referred to earlier in this judgment. It is necessary to consider the facts in more detail. [45] The plaintiff had initially in December 2003 applied for an extension of his visitor's permit. That was declined on 4 February 2004. The plaintiff lodged a complaint with the Office of the Ombudsman in relation to that decision, which was not upheld. There have in the past been strong complaints about this process made by the plaintiff or his advisers. The complaints are not raised in this proceeding. [46] The solicitor's correspondence records that Mr Lalli initially met Ms Churms in late 2004. In September 2005 the plaintiff had been in New Zealand illegally for approximately 19 months. On 5 October 2005 Mr Lalli was to fly to Wellington for his wedding. At the Auckland Domestic Airport as a result of information receivedhe was approached by an immigration officer, Mark Wilson. There was something of an altercation between Mr Wilson and Mr Lalli. Both give differing views on what happened, but it is not suggested that that issue needs to be resolved in these proceedings. The consequence was that Mr Lalli avoided Mr Wilson's attempts to stop him and left the airport. He made his way to Wellington, and he and Ms Churms married on 6 October 2005. [47] On 6 October 2005 Mr Wilson telephoned Ms Churms and advised that he was informed that she was to be the plaintiff's arranged wife. Ms Churms told him that she did not know Mr Lalli. [48] On 7 November 2005 Mr Lalli's former solicitor requested a special direction from the Ministry of Immigration granting Mr Lalli a permit in New Zealand. On 9 November 2005 as a result of information received by the Defendant, Mr Lalli was taken into custody by the Police and he was served with a removal order on that day. [49] An interview as to whether it was necessary to execute a removal order was held at the Papakura Police Station on 10 November 2005. It was conducted by the same immigration officer who had met Mr Lalli at the airport, Mr Wilson. The interview follows a set procedure in that the Immigration Service has prepared a "Humanitarian Questionnaire" which is administered by the interviewing officer. It is a printed document and contains three stages. [50] The first stage must always be completed and is designed to obtain information regarding personal circumstances which require further interview and assessment. At the completion of stage 1 the Officer must decide whether further information is required to enable a decision to be made in accordance with New Zealand's obligations under international law. If no further information is necessary the Officer can move directly to stage 3. [51] However, if information is required, a further investigation and assessment is carried out and stage 2 is then completed. Stage 2 is designed to obtain further information of a personal nature to enable a proper decision to be made in accordance with New Zealand's obligations under international law.[52] Stage 3 is the assessment and decision. [53] Mr Wilson carried out this process. The first stage was carried out on 10 November 2005. The interview with Ms Churms was carried out on 16 November 2005 in the presence of Mr Monk, Mr Lalli's counsel. Following that interview, and after comparing Ms Churms' answers to supplementary questions to previous answers, Mr Wilson advised Ms Churms, to use his words, that "he had made up 75% of his mind, regarding whether the plaintiff's removal should proceed." [54] On 20 November 2005 Mr Wilson decided that there were no unusual factors that meant that the removal of the plaintiff should not proceed. His decision was recorded as follows:There are no compelling reasons that should cease removal action. Recommend removal to continue[55] Mr Wilson wrote to Mr Lalli care of Mr Monk on 21 November 2005 advising him of his decision. He stated that he was not satisfied that the relationship with Ms Churms was genuine and stable or likely to endure. [56] Mr Monk on Mr Lalli's behalf strongly protested about Mr Wilson's conduct of the interview and his decision-making. On 22 December 2005 Mr Lalli lodged a complaint with the Ombudsman regarding Mr Wilson's decision. The Ombudsman became involved. It was decided that the defendant would undertake a second humanitarian interview of Mr Lalli. The Ombudsman wrote to Mr Monk on 13 January 2006. It was stated:I have been advised by Graham Buchanan of the Department of Labour that the Department has decided to undertake a second humanitarian interview of your client, Mr Lalli, and that this will be done by a senior officer independent of any earlier consideration of the case.[57] The officer chosen to carry out the second humanitarian interview was a senior immigration officer, Theresa Margaret Bentley. She has the role of a technical advisor of overseas junior officers. She has conducted numerous humanitarian interviews during her years with the Service. She carried out aninterview on 24 January 2006. She went through both the stage 1 and stage 2 processes in the questionnaire. In the second part of the interview she asked a number of questions about Ms Churms. It was noted that Ms Churms would accompany Mr Lalli back to his own country. Mr Lalli was asked about the affect on Ms Churms if he was removed from New Zealand. The notes record the following:We have spoken about what would happen if I went to India. She would go back to India with me but would find it very difficult. You must understand how hard it would be for a husband and wife to live apart for 5 years. She has a fear that her health may suffer in India and has concerns about tsunami and natural disasters. She would have difficulty living without me and maybe she will suffer from depression [58] It was also noted in the stage 3 interview sheet:He advises that he is hopeful that his wife will accompany him back to India. She has told him she would be [sic]. He acknowledges the difficulty she will experience residing in a foreign country.[59] In response to a question as to whether it was reasonable to expect the spouse to live in the interviewee's home country she recorded:Yes - New Zealand citizen by birth. His wife has no children and has indicated that she would accompany him to India. His parents are well established and I do not envisage that the conditions will be unreasonable.[60] Ms Bentley's decision of 24 January 2006 is recorded at the end of the humanitarian interview form and read as follows:The client has been in NZ since 27 November 2003. For all but one month he has resided in New Zealand unlawfully. He married a New Zealand citizen 22 months after he had been in New Zealand unlawfully. I am aware that an informant has made allegations regarding the non-genuineness of the marriage. I must accept that the marriage is of recent vintage and occurred after he had been in New Zealand unlawfully for some considerable time. There are no children of the relationship. His family are in India and his father holds the position as an Assistant Commissioner with an Employer Provident Fund. Applicant speaks excellent English and is articulate and should be able to obtain employment readily in India. Wife has indicated she is willing to accompany him to India. Considering all of the above I believe removal should continue.[61] There is then an asterix after the decision and a reference to "See page 9 for file note". The file note reads as follows:I am aware that an informant has advised the Immigration Service that Mr Lalli's marriage has been entered into for immigration purposes. That information has not formed part of my assessment as to whether there are any reasons as to why Mr Lalli's removal should not proceed. For these purposes I have treated the marriage as a genuine one. I am not of the view that there is anything about Mr Lalli's situation, including the existence of the marriage, that indicates that removal should not continue. In arriving at view [sic] I have considered that Mr Lalli has only recently married and has been in New Zealand for a significant time (nearly 2 years) when he was married. His wife has indicated that she is willing to travel to India if removed. There are no children of the marriage and he has no other family in New Zealand.[62] Ms Bentley had not been previously involved in Mr Lalli's case, although prior to her involvement she had a general awareness that he was in custody awaiting removal. She stated in her evidence that she reached her decision independently of any previous decision-maker in the plaintiff's case, and that has not been challenged. She reiterated in her evidence that the information that had been given about Mr Lalli's marriage to Ms Churms as being arranged did not form part of her assessment. She also stated in her evidence that the Immigration Service does not always interview the New Zealand partner of a person to be removed. She estimated that such interviews occurred, at most, in 50% of relevant cases. [63] I allowed cross-examination on this point, and she clarified that when referring to relevant cases she was "referring to cases where there was a spouse or partner". It seems that the reason why interviews are not carried out is often because the partners are not available for one reason or another. She stated that when there is a re-interview of the person to be removed, there is "certainly" no requirement or practice that a re-interview of the New Zealand resident/partner of a person to be removed take place. This was not challenged. [64] It is necessary now to stand back from these facts and to consider whether, as submitted by Mr Monk, a legitimate expectation arose that there would be a second interview process carried out by Ms Bentley of Ms Churms. Ms Bentley acknowledged that she read the plaintiff's file in preparing for her interview. She was therefore aware of what Ms Churms had said previously to Mr Wilson in herinterview, some 9 weeks earlier. However, for the purposes of considering legitimate expectation, it is not Ms Bentley's state of mind that is relevant. The relevant question is what Mr Lalli could have reasonably expected. [65] There was no statement, direct or indirect, from the Department of Labour officers, that there was to be any interview process carried out at all in relation to spouses or partners. This is not indicated in the questionnaire and Mr Lalli and Ms Churms have not suggested that any such promise was made to them. [66] As Ms Bentley put it in her evidence, officers make a "judgment call" as to whether in all the circumstances it is necessary to interview a partner. As she pointed out, the nature of the relationship is relevant in making that assessment. There is therefore no evidence that there was any practice or statement that in any circumstances there would be an interview of the partner of the person to be removed. Thus, none of the three usages of the phrase "legitimate expectation" applies to the facts of this case. There was no representation of any form or type that could give rise to a reasonable expectation. There is no evidence of any practice that would give rise to an expectation. [67] Any expectation must be "legitimate" in the sense that it must be reasonable. It does not follow as a matter of logic that because there had been an interview of the spouse in the earlier investigation by Mr Wilson, that there should be a further interview of the spouse the second time round. Even if there was an expectation that partners or spouses would be interviewed, Ms Churms had, of course, been interviewed by Mr Wilson 9 weeks previously. Given that earlier interview, it was not reasonable for Mr Lalli or Ms Churms to expect that there should be automatically a second interview so soon after the first. [68] It was not unreasonable for Ms Bentley to consider the material from the first interview with Ms Churms. The answers that had been received in that earlier interview were not in any way challenged or brought into question by what Mr Lalli said at the second interview. Indeed, what he said at that second interview was, in essence, consistent with what he and Ms Churms had said earlier. The essence of what he said was that Ms Churms was a New Zealand resident who did not wish tolive in India permanently but would be prepared to go there with him, at least for a period. [69] There was nothing to indicate that anything had changed between the first and second interviews. Given the short period between them, and the fact that Ms Bentley had considered the earlier material, it would not have been reasonable to expect a second interview. Indeed, Mr Lalli does not assert that he did expect that his wife would be interviewed, although the strong tone that he adopts in his affidavits may be seen as implicitly including such a claim. Ms Churms does say in her affidavit that she assumed she would be consulted by Ms Bentley to ascertain her views. Such an assumption was not reasonable. It was not legitimate. She had been interviewed nine weeks earlier and there was no indication that she had anything new to say. [70] In assessing reasonable expectation it is necessary to consider reasonableness on an objective basis. The simple fact that an expectation is asserted is obviously insufficient. Ms Churms had only been married to Mr Lalli for a matter of months. She had married him when he was illegally in New Zealand and has not suggested that she was unaware of this immigration status at the time of the marriage. Their relationship had only been going since late 2004, and there were no children. Her claim to be a stakeholder in Mr Lalli's future was therefore in relationship terms not as strong as the relationship of a child to a parent, or the relationship of a spouse who was the parent of the person to be removed's child. And it was weaker also than a relationship of marriage of considerable length. [71] In this context, given that there had been an interview nine weeks earlier, it was not reasonable to expect that the Immigration Service would repeat the exercise. Why should it? There was nothing to alert it to a change of circumstances, and, in any event, the position of Ms Churms, given the comparative shortness of her relationship, was unlikely to be critical to any decision that was made. Any assumption or expectation of a second interview was not a legitimate assumption, and is an insufficient basis upon which to seek relief under this head.[72] For these reasons, the legitimate expectation ground of review does not succeed.Second ground of review: Failure to take into account a relevant consideration, namely the impact on Ms Churms[73] It is submitted for Mr Lalli that in failing to consult with Ms Churms, Ms Bentley failed to properly take into account a relevant and material consideration. The first question to consider is whether the position of Ms Churms was a relevant consideration. I am satisfied that it was. I have already noted earlier in this judgment that the International Covenant on Civil and Political Rights, and its reflection in the Immigration Service Manual at D4.45.5, requires the officer to consider the immediate family of the person to be removed, and that Ms Churms was a part of that immediate family. [74] It is necessary to consider whether this factor was considered. In his submissions Mr Monk appears to assert that a proper consideration must necessarily involve an interview, so that the best evidence could be obtained. [75] There undoubtedly was a consideration of Ms Churms' position by Ms Bentley. Her position was referred to quite extensively in Ms Bentley's interview notes and is also referred to in her decision. For the reasons that I have already given I consider that it was reasonable for Ms Bentley not to seek to interview Ms Churms again. A fair conclusion could be reached without actually meeting and speaking to all concerned persons. I am satisfied therefore that this ground of review must fail, and that there was a consideration of the relevant matter.Third ground of review: Material error of fact[76] The focus of judicial review is on the legality of administrative action. This does not usually involve a consideration of the factual merits of individual decisions. Judicial review ought not to be used as the means for the re-evaluation of findings of fact, a reconsideration of the merits of a case, or to re-visit factual arguments that have already been considered and which have failed.[77] This approach is not so easy to apply to particular fact situations as they arise in cases, considered against the background of precedent. There have been many times when administrative findings of fact have been reviewed. It has been said that it is a breach of natural justice to base a finding of fact upon material which did not logically support it: R v Deputy Industrial Injuries Commissioner; Ex parte Moore[1965] 1 QB 456 at 488. It was said by Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047, that officials exercising discretionary powers commit a jurisdictional error if they act "upon an incorrect basis of fact". In England it now appears to be the case that fundamental errors of fact can be reviewed: R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330. There is support for this approach in Australia:Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366-367. In New Zealand the ground of review of mistake of fact has been recognised on numerous occasions, particularly by Lord Cooke: Daganayasi v Minister of Immigration[1980] 2 NZLR 130 (CA, 145-149), Devonport v Local Government Commission[1989] 2 NZLR 203, 208, Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53, 61. [78] While no objection has been made to this ground of review on jurisdictional grounds by the Defendant, I am not satisfied that the error of fact alleged here is of the type that is usually susceptible to review. The error that is being alleged by the plaintiff is an error of inference, drawn from the material before it. Such an error, even if it was made, would be an error as to the shades of Ms Churms' attitude towards going to India. Was she "willing" to go, or reluctant to do so? As long as the inference was reasonably open that she was willing, in the short term at least, to go, that should be an end of the matter. Even if the conclusion was reached as a consequence of illogical reasons, there would be no place for judicial review:Australian Broadcasting Tribunal v Bond at 356. The error goes to the degree of Ms Churms' willingness to go to India. If a factual error that is fundamental to the process of administrative reasoning is clearly demonstrated, then the Court might take it into account in judicial review. The sort of error alleged here is not in this category.[79] I will, nevertheless, express my view on this question of fact. I am satisfied that there was no error made by Ms Bentley. [80] In Mr Lalli's initial statement to Mr Wilson he said that his wife would come back with him to India but that he did not think that she would stay. Ms Churms indicated to Mr Wilson in her interview on 16 November 2005 that she would initially go to India but she would wish to come back to New Zealand. This is consistent with Ms Bentley's conclusion that Ms Churms was willing to go to India. She noted in her file note attachment to her decision that she would regard the marriage as a genuine marriage. She also noted in the interview that Mr Lalli had advised that he was "hopeful" that his wife would accompany him back to India. She noted Mr Lalli's acknowledgement that Ms Churms would have difficulty in residing in a foreign country. This position was confirmed in Ms Bentley's evidence when called. She said that she understood when she prepared her report that Ms Churms was reluctant to go to India and would want to remain in New Zealand. [81] While there might be some difference in emphasis, the basic thrust of Ms Bentley's conclusion, that Ms Churms would be prepared to go to India in the short term at least, was correct. Indeed, it is not contradicted by the affidavits filed by Ms Churms in this proceeding. It was not suggested by Mr Lalli that she had changed her attitude about going to India, from when she spoke to Mr Wilson. There has been no clear evidence given of such a change in position in the material before the Court. [82] Ms Churms did say in her affidavit without elaboration that if she had been interviewed by Ms Bentley she would have made it clear that she did not want to travel to India and explained her reasons for adopting that position. There is nothing to indicate that this is a change of stance from that expressed previously. The thrust of all the interviews was that both Mr Lalli and Ms Churms wished to stay in New Zealand. They both definitely do not want to go to India. Ms Churms does not appear to have changed her mind. However, it is not suggested in the latest affidavit that she would not initially go to India with Mr Lalli, if he was removed.[83] Thus I do not consider that error of fact is a ground open to Mr Lalli, but even if it is I do not consider that there has been any error of fact demonstrated.Fourth ground of review: Pre-determination[84] The plaintiff submits that the defendant effectively pre-determined the issue of the impact of removal on the rights of Ms Churms, and that the limited consultation process relating to her situation was no more than "going through the motions". [85] Pre-determination in the context of this application to review the decision not to stop execution of the removal order, would involve Ms Bentley entering into the process with a closed mind, unwilling to consider the options available on the merits:Hutt Mana Energy Trust; Re Macaskill v Ogden (High Court Wellington, CIV 2003- 404-2172, 21 April 2004, Wild J). Had she already in whole or in part made up her mind? [86] It is inevitable in a case such as this where the judgment is carried out by Department of Labour officers, there will be some knowledge of the previous history. Such knowledge is acknowledged by Ms Bentley. She accepts that she had some general awareness of the case before she was asked to consider the question in detail. However, it is clear that she had no specific knowledge or views about it, and Mr Monk has not suggested otherwise. It is not suggested that before she started her interview process Ms Bentley had determined that Mr Lalli should be removed. It was stated in Devonport v Local Government Commission at 208:As any Judge knows, the fact that new arguments do not persuade one to change views previously formed does not mean that one has approached the new arguments with a closed mind.Having considered the material available and heard Ms Bentley I have formed the view that she approached Mr Lalli's position with an open mind, wishing to reach a fair conclusion irrespective of the earlier decision reached. [87] This argument was also put forward on the basis that there was pre- determination because of the failure to consult with Ms Churms. Mr Monk hassubmitted that there was no point in carrying out a reassessment if the officer was already minded to close her eyes to any views expressed by Ms Churms. This amounts to a submission that one relevant consideration was pre-determined. [88] There are no facts on which to base this submission. Ms Bentley had the notes of the earlier interview in which Ms Churms had set out her position in relation to travelling to India. There was nothing at all to indicate that she would not have been prepared to considered any different information if it had been brought to her attention. She took the step when she was interviewing Mr Lalli and asked him about his wife's position. She received fairly detailed information in reply. She took it into account. It was, as I have already found, largely consistent with the information that was in the earlier interview transcripts. [89] That process had no features of pre-determination. There was nothing in the documents or her evidence to indicate that she had closed her mind to Ms Churms' position when she carried out the exercise. [90] Mr Monk has with some force criticised Ms Bentley for expressing the view at the conclusion of her affidavit that even if Ms Churms had said that she would not accompany Mr Lalli to India, that on the facts of this particular case with them not having any children, and he having been unlawfully in New Zealand for almost two years with no other connections to New Zealand, that her decision would have remained the same. While this sort of sweeping statement in an affidavit is not helpful (and I will refer to this later in my judgment) it does not indicate pre- determination, at least at the time when the decision that is in question was made. It rather is symptomatic of a wish to shut down any chance of the matter being sent back for re-consideration following a High Court hearing. [91] It must be observed, from an objective point of view, that Ms Bentley's position at the time was not unreasonable. Ms Churms was prepared to go to India temporarily at least. Further, given the short nature of the relationship and the absence of any children it may well be that Ms Churms' willingness or unwillingness to go to India would not ultimately have been a significant factor. There is nothing to indicate that she did not go into the relationship with her eyes open to the dangerof Mr Lalli being removed. There is nothing to indicate any hardship out of the ordinary, arising from a separation between parties whose relationship was of 12 – 18 month's duration. [92] Certainly, there is nothing to indicate pre-determination or any form of bias at the time when Ms Bentley carried out her interview and made her decision. She had decided to assume that Ms Churms relationship with Mr Lalli was genuine. She treated it as relevant. She reached a conclusion on the material available, and did not just adopt the earlier decision and assume that it was correct. Justice was seen to be done. This ground for review is not established.Fifth ground of review: Wednesbury unreasonableness[93] This cause of action was not pursued by the advancement of any detailed submissions. Mr Monk accepted that if the legitimate expectation argument was unsuccessful it would be difficult to establish Wednesbury unreasonableness. [94] As was stated in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, the question is whether the decision reached was so unreasonable that no reasonable authority could ever have come to it. For the reasons I have given in relation to the other grounds of review, the decision to continue with the removal was a decision that was perfectly open to the defendant. Indeed, the case could be regarded as fairly straightforward. There were no children involved. There were no refugee issues. There were certainly no health and safety issues raised. The only substantive ground of opposition raised was the relationship with Ms Churms. The marriage had only existed for a matter of months, and the relationship for little more than a year. No circumstances were referred to that took the relationship into some special category. It cannot be suggested that no reasonable immigration officer could have reached the decision that Ms Bentley reached. This ground of review is dismissed.General discretion[95] As I have observed, Ms Bentley in her affidavit indicated that even if Ms Churms had indicated that she would not go to India at all it would not have made any difference to her decision. Does this mean that whatever the Court's view of the merits, it should not grant relief because such relief would be pointless? [96] I do not think that such a response would be appropriate. The Court's do, of course, have a discretion to refuse to apply an administrative law remedy if its exercise would be pointless. However, the Court should never exclude the possibility that a decision-maker might reach a different decision on a new consideration. It must be said that in this case it is very unlikely, looking at the matter objectively, that if there was a re-consideration there would be a different decision reached. However, if that happened, justice would not be seen to be done:R v Thames Magistrates' Court, Ex parte Polemis [1974] 2 All ER 1219, 1223, Chiu v The Minister of Immigration [1994] 2 NZLR 241. The person wronged by the administrative process would well feel deprived of a legitimate second chance. [97] It is also the case that judicial review should at times have the function of encouraging decision-makers to avoid error. It would be unfortunate if the idea gained currency that in the event of challenge, erroneous decisions could be protected by the expedient of presenting evidence predicting the same result (Chiu v The Minister of Immigration p 4 – 16). I am not suggesting that this was the intention here, and, indeed, the Crown has not made any submission that the Court should decline to exercise its discretion any event. Nevertheless, I have felt it necessary to consider this question, given Ms Bentley's affidavit evidence. [98] In this case the issue does not need to be determined as I have not found that any ground for review has been made out. If I had found such a ground for review made out, I would not have been dissuaded from granting relief by the prediction by the defendant of the same result.Conclusion[99] None of the grounds for review that have been advanced have been established. The application for review fails. I direct that the plaintiff pay costs on a 2B basis and disbursements to be fixed by the Registrar... Asher J