JACKSON v THE MINISTER OF IMMIGRATION [2014] NZHC 1920

JACKSON v THE MINISTER OF IMMIGRATION [2014] NZHC 1920 [14 August 2014]JUDGMENT RECALLED AND REISSUED 22 AUGUST 2014.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2014-485-005696[2014] NZHC 1920UNDER the Declaratory Judgments Act 1908, Part18 of the High Court Rules, the NewZealand Bill of Rights Act 1990 and theImmigration Act 2009IN THE MATTER of an application for a declaratoryjudgment in respect of the application of ss15, 20 and 28 of the New Zealand Bill ofRights Act 1990 to temporary entry classvisa decisions under the Immigration Act2009BETWEEN LINDSAY ANN JACKSONFirst ApplicantSAMIR MARTASecond ApplicantAND THE MINISTER OF IMMIGRATIONRespondentHearing: 24 July 2014Counsel: M S Smith and N R Woods for First and Second ApplicantsM Coleman and S K Shaw for RespondentJudgment: 14 August 2014Reissued: 22 August 2014INTERIM JUDGMENT OF COLLINS JIntroduction[1] This judgment explains why I am dismissing the applicants' requests fordeclarations.[2] I have reached this conclusion because:(1) one of the declarations sought is not necessary;(2) there are too many unresolved factual issues for me to consider issuing the declarations sought by Ms Jackson and Mr Marta;(3) it is not appropriate to consider issuing declarations at this stage; and(4) Ms Jackson and Mr Marta have more appropriate options and remedies available to them.[3] To assist in understanding my reasons I shall:(1) set out the relevant background facts;(2) explain the declarations which the applicants have sought;(3) explain the declaratory judgments jurisdiction; and(4) explain why I have reached the conclusions summarised in paragraph [2].[4] I shall also provide some observations which I hope will assist in resolving this unfortunate litigation.Background[5] Ms Jackson is a New Zealand citizen. She is a successful business woman, who lives in Wellington. In September 2004 Ms Jackson met Mr Marta. Mr Marta was born in Aleppo, Syria in 1963. The couple entered into a committed de facto relationship soon after meeting. They have lived in Syria, but for most of their relationship Ms Jackson and Mr Marta have lived together in Wellington.[6] Ms Jackson and Mr Marta want to get married. It will be the first marriage for both of them.[7] Mr Marta is a Greek Orthodox Christian, as are his immediate family. His mother attends church in Aleppo on an almost daily basis.[8] Ms Jackson and Mr Marta's reasons for getting married are genuine. They have explained in their affidavits that culturally and legally de facto relationships are not accepted in Syria and it is important for Mr Marta and his family that he marry Ms Jackson in a Greek Orthodox Church.[9] Ms Jackson and Mr Marta have chosen to get married in Wellington. Their reasons for choosing Wellington as the venue for their wedding are also genuine. Those reasons include the following:(1) Wellington is their home;(2) they both work in Wellington and have many friends and colleagues living in Wellington;(3) Ms Jackson's immediate family live in Wellington. Her father, who is 80, is looking forward to "walking his daughter down the aisle";(4) Ms Jackson's mother is physically disabled and dependent on awheelchair for mobility. Ms Jackson's mother cannot fly anysignificant distances;(5) Mr Marta's family are physically able. Although his mother is almost80 years old she is in good health and can cope with flying to New Zealand.[10] Mr Marta's family have decided that they should be represented at thewedding by Mr Marta's mother, his sister (aged 50), his nephew (aged 21) and hisniece (aged 15), all of whom live in Syria. For convenience I shall refer to Mr Marta's mother, sister, nephew and niece as his "family members".[11] Mr Marta's family have substantial property and business interests in Syria and Turkey. Mr Marta's sister is a teacher. His nephew and niece are students whohave been promised a trip to New Zealand if they work hard at their studies and gain good passes.[12] Ms Jackson and Mr Marta initially planned to marry on 7 March 2013.[13] On 28 January 2013 Ms Jackson and Mr Marta, through their lawyer, Mr Woods, applied for temporary entry class visas1 (visitor visas) to enable Mr Marta's family members to travel to New Zealand for the wedding.[14] On 29 January 2013 Immigration New Zealand (INZ) returned the visa applications to Mr Woods because the applications were not properly completed.[15] On 22 February 2013 Mr Woods submitted new visa applications to INZ onbehalf of Mr Marta's family members. On the same day INZ emailed Mr Woodsasking for further information. The request for further information was contained in a standard INZ form.2 That form contained a section dealing with military service which INZ thought was particularly relevant to the visa application filed on behalf ofMr Marta's nephew. For reasons which have not been made clear to me, these formswere not completed and returned to INZ.[16] On 11 March 2013 INZ declined visitor visas for Mr Marta's mother, sister and niece. On 12 March 2013 INZ declined a visitor visa for Mr Marta's nephew. INZ formed the view that Mr Marta's family members' applications for visitor visaswere not bona fide. The letter from INZ said: that the current security situation in Syria is not conducive to voluntaryreturn. The related concern for people's safety and the internationallyrecognised abuse of human rights due to the civil war, raise concerns that[Mr Marta's family members] may not be intending a temporary stay. These circumstances are a significant deterrent to Syrian visitors to leave New Zealand even if they intend a temporary stay.1 Immigration Act 2009, ss 79-80.2 INZ1200 Additional Information Form.[17] On 15 April 2013 Mr Woods wrote to the Minister of Immigration asking thathe reconsider INZ's decision. No response was received from the Minister of Immigration. On 22 August 2013 a letter was sent to the Associate Minister of Immigration asking for a response to the letter sent on 15 April 2013 to the Minister of Immigration.[18] On 30 August 2013 an advisor to the Associate Minister of Immigration wrote to Mr Woods. That letter said the Associate Minister would not intervene inMs Jackson and Mr Marta's case.[19] Ms Jackson decided to approach the Associate Minister of Immigration directly. She sent an email to the Associate Minister on 2 September 2013requesting the Associate Minister's intervention.[20] On 16 September 2013 the couple sent an email to the Minister of Foreign Affairs, the Minister of Immigration and the Associate Minister of Immigration. They did not receive a response to that email. On 4 October 2013 they wrote to the Attorney-General asking him to intervene.[21] On 21 October 2013 INZ wrote to Ms Jackson and Mr Marta in response to the email of 16 September to the three Ministers. INZ said that the process it hadfollowed "was fair" and that its decision not to grant visitor visas to Mr Marta's family members "was correct". INZ has stated in its affidavit that it was the applicant's responsibility to ensure all information and evidence they wished to relyon was submitted when their applications were made.3 INZ found that Mr Marta'sfamily members had not supplied the information that was required to enable visitor visas to be issued to them and that INZ had no obligation to seek further information. However, INZ decided to consider whether there was a compelling reason to depart from the immigration instructions4 and concluded there was no reason to depart from the immigration instructions in this case.3 Immigration Act 2009, s 58.4 Promulgated pursuant to Immigration Act 2009, s 22.[22] On 30 October 2013 the Associate Minister of Immigration wrote to thecouple advising that she would not intervene but that Mr Marta's family memberswere entitled to make further applications if they wished.[23] On 13 November 2013 Mr Woods wrote again to the Attorney-General. No response was received from the Attorney-General's office.[24] On 28 February 2014 Mr Woods wrote again to the Associate Minister ofImmigration asking her to reconsider the application for visitor visas for Mr Marta'sfamily members. In a letter dated 11 March 2014 the Associate Minister's officeadvised that she did not wish to review the matter.[25] These proceedings were commenced on 12 May 2014.[26] During the course of the hearing before me on 24 July 2014 I suggested to the parties that they confer after which INZ advised Ms Jackson and Mr Marta whatadditional information INZ required in order to grant visitor visas to Mr Marta'sfamily members. After the hearing I was advised that further information was supplied to INZ on 1 August 2014 but that INZ determined that this further information was not sufficient for INZ to issue the visitor visas.[27] I have resolved that I should issue this judgment. In doing so I expressly reserve leave for Ms Jackson and Mr Marta to return to me to pursue a claim for judicial review if that becomes necessary. For this reason, I have styled this judgment as an interim judgment.The declarations which are sought[28] The statement of claim seeks five declarations. The first declaration asks meto declare that the Minister (or his delegate) is acting as the "executive branch of the government" and/or "in the performance of [a] public function, power, or duty, conferred or imposed on that person or body by or pursuant to law" in terms of s 3 ofthe New Zealand Bill of Rights Act 1990 (NZBORA) when making a decision onwhether to grant visitor visas to Mr Marta's family members.[29] The second declaration asks me to declare s 15 of the NZBORA5 guarantees to Mr Marta the right to have his family members attend and participate at his wedding in accordance with his religious beliefs.[30] The third declaration asks me to declare that s 20 of the NZBORA6guarantees to Ms Jackson and Mr Marta the right to have Mr Marta's familymembers attend and participate at their wedding in accordance with their cultural beliefs.[31] The fourth declaration asks me to declare the common law right to protection of the family preserved by s 28 of the NZBORA7, which is also reflected in art 16 of the United Nations Universal Declaration of Human Rights8 and art 23 of the International Covenant on Civil and Political Rights,9 guarantees to Ms Jackson andMr Marta the right to have Mr Marta's family members attend and participate at theirwedding in accordance with their family beliefs.[32] The fifth declaration asks me to declare that in order for INZ to comply with the NZBORA, Ms Jackson and Mr Marta's human rights need to be specifically5 15 Manifestation of religion and beliefEvery person has the right to manifest that person's religion or belief in worship, observance,practice, or teaching, either individually or in community with others, and either in public or inprivate.6 20 Rights of MinoritiesA person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not bedenied the right, in community with other members of that minority, to enjoy the culture, toprofess and practise the religion, or to use the language, of that minority.7 28 Other rights and freedoms not affectedAn existing right or freedom shall not be held to be abrogated or restricted by reason only thatthe right or freedom is not included in this Bill of Rights or is included only in part.8 Article 161. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.2. Marriage shall be entered into only with the free and full consent of the intending spouses.3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.9 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.considered and weighed in a written decision on whether to grant visitor visas to Mr Marta's family members.[33] The Minister of Immigration does not resist the submission that the Minister or his delegate is acting as the executive branch of the government and/or in the performance of a public function, power or duty conferred or imposed on that person or body by or pursuant to law in terms of s 3 of the NZBORA when making a decision on whether to grant a temporary entry class visa.[34] The Minister does, however, contest the making of the remaining four declarations sought by Ms Jackson and Mr Marta. I will refer to these fourdeclarations as the "contested declarations".Scope of declaratory relief[35] Section 3 of the Declaratory Judgments Act 1908 enables any person to apply to the High Court for a declaration when they desire to do any act where the legality of the act depends on the construction of any statute, or where they claim to have acquired any right under any statute. In issuing a declaration the High Court may determine any question as to the construction of the statute. In addition, the High Court has both an equitable and an inherent jurisdiction to declare rights and obligations between parties.10[36] However, there are limits to the High Court's jurisdiction under theDeclaratory Judgments Act 1908 and its common law declaratory jurisdiction. A declaration should not be issued where:(1) a declaration will serve no useful purpose;11(2) the defendant would abide the decision of the court without the need for formal orders;1210 Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 (CA) at [10] and Burt v Governor-General [1992] 3 NZLR 672 (CA) at 676.11 Banks v Grey District Council [2004] 2 NZLR 19 (CA) at [19]-[20].12 Right to Life New Zealand Inc v Abortion Supervisory Committee (No 2) HC Wellington CIV- 2005-485-999, 3 August 2009 at [12].(3) the facts are in dispute;13(4) the decision involves an abstract or hypothetical question;14 and(5) the dispute may be more appropriately determined in the High Court'sordinary jurisdiction.15[37] Disputes about the application of rights under the NZBORA in specific factual settings may be ideally suited to declaratory relief.16Reasons why declaratory declarations are not appropriate at this juncture[38] I shall explain the reasons why declaratory relief is not appropriate in this case at this stage by reference to the following headings:(1) lack of necessity;(2) factual issues;(3) timing issues; and(4) other options.Lack of necessity[39] No useful purpose will be served in me issuing the first of the declarations sought by Ms Jackson and Mr Marta. It is beyond dispute that the Minister and decision-makers within INZ are acting as members of the executive branch ofgovernment when making decisions on whether to grant visitor visas to Mr Marta's13 Mandic v Cornwall Park Trust Board (Inc) [2011] NZSC 135, [2012] 2 NZLR 194 at [5]; New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) andElectoral Commission v Tate [1999] 3 NZLR 174 (CA) at [38] and [42].14 Attorney-General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (CA) at [45]; Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [141].15 Collins v Lower Hutt City Corporation [1961] NZLR 250 (SC).16 See for example, Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218 (HC) at [40]; Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229;Air New Zealand v Trustees of the New Zealand Airline Pilots Mutual Benefit Fund [2000] 1 NZLR 418 (HC) and Attorney-General v Family Court at Otahuhu [1995] 1 NZLR 603 (HC).family members. The Minister and INZ accept they fall within the ambit of s 3 of the NZBORA. No declaration is needed to affirm what is obvious and not disputed.Factual disputes[40] Ms Jackson and Mr Marta have tried to minimise any scope for factual disputes in this proceeding. There are, however, a number of factual issues which are germaine to the contested declarations.[41] The Minister correctly submits that the evidence about Mr Marta's religiousbeliefs is unclear. I do not believe the evidence before me is sufficient to enable me to embark upon a consideration of the application of s 15 of the NZBORA because I do not have adequate evidence about:(1) Mr Marta's religious beliefs; and(2) the religious significance of Mr Marta's family members beingpresent in New Zealand for his wedding.[42] I anticipated these issues would have been fully explained by a representative of the Greek Orthodox Church in Wellington. Unfortunately, evidence of this nature has not been provided.[43] Similarly, I anticipated much more evidence in relation to the claim that Mr Marta's cultural rights are engaged. Unfortunately, there is simply not sufficientevidence to enable me to properly determine whether Mr Marta's s 20 NZBORArights are actually engaged in this case, let alone breached.Timing issues[44] In my assessment, the applications for declarations are premature because, todate, Mr Marta's family members have failed to supply the information which INZ requires to enable visitor visas to be granted.[45] Mr Marta's NZBORA rights cannot be relied upon by Mr Marta's family members to circumvent their failure to comply with INZ's requests for furtherinformation in the INZ1200 form.[46] If fully completed applications had been submitted to INZ and subsequentlydeclined, I would have undertaken an analysis of Ms Jackson and Mr Marta'sNZBORA rights. Any attempt to do so at this stage would be inappropriate, and I would effectively be usurping the decision which INZ is required to make and therequirement of Mr Marta's family members to supply all information required byINZ to enable it to determine if visitor visas should be issued.Other options[47] In my assessment, there are more appropriate options for Ms Jackson and Mr Marta to pursue. Those options are:(1) First, Ms Jackson and Mr Marta should ensure that INZ has all information it requires in order to be in a position to make a decision on the applications for the visitor visas sought by Mr Marta's familymembers. They should ensure all communications from INZ are answered fully and promptly. It is unfortunate the applications in this case were derailed at an early juncture when there was a failure torespond to INZ's request for further information between 22 February 2013 and 11 March 2013.(2) If, after supplying all information sought by INZ Mr Marta's familymembers continue to be denied visitor visas, then Ms Jackson and Mr Marta can file an amended statement of claim in this proceeding in the form of an application for judicial review.Additional observations[48] The following additional observations are offered to the parties in an effort to try and assist them in avoiding the need to return to court. Because these additional observations are made in a factual vacuum they must, of necessity, be brief.[49] Mr Marta's religious and cultural rights (if any) may be considered by INZ when determining whether Mr Marta's family members should be granted visitorvisas to attend his wedding in New Zealand. These considerations need only be considered however:(1) if Mr Marta's family members' applications for visitor visas wouldotherwise be declined; and(2) there is a factual foundation provided to INZ for it to consider Mr Marta's rights under ss 15 and 20 of the NZBORA.[50] In appropriate cases, a person's rights under ss 15 and 20 of the NZBORAmay be justifiably restricted under s 5 of the NZBORA. I have deliberately refrained from determining if the approach taken by the Supreme Court in R v Hansen17applies when determining justified limitation issues in this case.[51] The claim based on s 28 of the NZBORA, if pursued, would face a number ofobstacles primarily because INZ's decision does not prevent Ms Jackson andMr Marta from marrying.Conclusion[52] For the reasons set out above I have declined to grant the declarations sought.[53] I am not making any award of costs in relation to this judgment because it is an interim judgment. If necessary, costs can be revisited once the ultimate outcome of this litigation is known.____________________D B Collins JSolicitors:Rowland Woods Legal, Wellington for First and Second ApplicantsCrown Law Office, Wellington for Respondent17 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.