KESONSUNG V MINISTER OF IMMIGRATION HC AK CIV 2006-404-1597

KESONSUNG V MINISTER OF IMMIGRATION HC AK CIV 2006-404-1597 9 November 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-1597UNDER the Judicature Amendment Act 1972 BETWEEN TIPAKORN KESONSUNG AND PRAPAPORN KESONSUNG Plaintiffs AND MINISTER OF IMMIGRATION Defendant Hearing: 1 November 2006 Appearances: P Pa'u for the plaintiffs A Longdill for the defendant Judgment: 9 November 2006JUDGMENT OF STEVENS JThis judgment was delivered by me on Thursday, 9 November 2006 at 4pm pursuant to r 540(4) of the High Court Rules. Registrar/Deputy RegistrarSolicitors/Counsel: P Pa'u, PO Box 78 213, Grey Lynn, Auckland A Longdill, Meredith Connell, PO Box 2213, AucklandIntroduction[1] This is an application for judicial review of a decision of the Associate Minister of Immigration dated 23 March 2006 refusing to intervene in the compliance process in respect of the plaintiffs but determining that they will not be the subject of a five year ban from re-entering New Zealand once removed (the Ministerial decision). The application is opposed by the defendant on the basis that the plaintiffs have not established that the Associate Minister acted unlawfully in respect of the Ministerial decision. [2] At the outset, the application sought to challenge three separate decisions, namely: a) The decision by an Immigration Officer to decline a permit under s 35A of the Immigration Act 1987 (the Act) made in December 2005 (the December decision); and b) The decisions by an Immigration Officer to serve removal orders on the plaintiffs and not to cancel those orders (the removal order decisions); and c) The Ministerial decision made on 23 March 2006, which was communicated to the plaintiffs by letter of the same date. [3] As a result of developments which have occurred since the application was filed, the only challenge which the plaintiffs advanced at the hearing was to the Ministerial decision. The challenges to the December decision and the removal order decisions were not pursued, the latter because the plaintiffs were refused leave under s 146A of the Act to do so by Allan J (in a reserved judgment dated 22 September 2006) and the former because the plaintiffs elected not to do so. As stated in a joint memorandum of counsel dated 19 October 2006, abandonment of the challenge to the removal decisions meant that Mr Pa'u, counsel for the plaintiffs, was thereby able to represent the plaintiffs at the hearing.Factual background[4] The plaintiffs have an unsatisfactory immigration history in New Zealand. They are aged 34 years and 30 years respectively. They are citizens of Thailand who arrived in New Zealand from Thailand on or about 15 October 1999. They are the parents of a child, Valda Kesonsung, who was born in New Zealand on 30 January 2001 and is a New Zealand citizen. [5] Their immigration status from October 1999 until 23 March 2006 is conveniently summarised in the agreed chronology attached to this judgment as Schedule 1. The defendant contends that they have been unlawfully in New Zealand since their last permit expired on 13 December 2004. This is not strenuously contested, although there is an issue raised by the plaintiffs as to whether a residence application filed on 14 December 2004 (the residency application) should have been accepted and acted upon. The New Zealand Immigration Service (NZIS) considered that the residence application could not be accepted and "must be returned unactioned" because, at the time the application was tendered, the plaintiffs did not hold a current permit to be in New Zealand. This was clearly communicated by NZIS to the plaintiffs in a letter dated 17 January 2005. In the same letter, the plaintiffs were advised of certain rights to "test their eligibility for a temporary permit under s 35A [of the Act]" and then relodge the residence application. [6] Curiously, the plaintiffs took no action regarding this suggestion until 8 November 2005 when only Mr Kesonsung filed a request for a permit under s 35A of the Act. Although there was no obligation on an Immigration Officer to consider the request under the relevant statutory provisions, it was in fact considered. But having done so, the Immigration Officer was not prepared to grant the permit as he "did not consider that this is justified in the circumstances of your case". This was communicated to Mr Kesonsung via his counsel Mr Pa'u on 19 December 2005. He was advised that he was in New Zealand unlawfully and should make immediate arrangements to leave. He was warned that, if he did not leave, the NZIS might take removal action against him.[7] On 1 March 2006, an Immigration Officer, Mr Fennell, spoke with Mr Pa'u, the plaintiffs' counsel. Mr Fennell was told that the plaintiffs were going to make an application for a special direction from the Minister. Mr Pa'u was informed that there was a need to lodge this application to the Minister "within the next day or so". Nothing happened within this time and NZIS commenced compliance operations. On 16 March 2006, the plaintiffs were served with removal orders and Mr Kesonsung was taken into custody. Mrs Kesonsung was able to remain at large in order to care for their New Zealand-born five year old daughter. [8] After Mr Kesonsung had been taken into custody, an application for a special direction was lodged with the Associate Minister of Immigration. This application was supported by comprehensive submissions and considerable supporting documentation, all put together at short notice by Mr Pa'u on behalf of the plaintiffs. In summary, there was a letter dated 16 March 2006 to the Minister which attached a copy of an earlier letter dated 3 November 2005 (four pages). This was followed by a letter of 20 March 2006 (four pages) and a further letter written later in the day (five pages), together with the supporting documentation. Each of these letters was forwarded to Mr Steve Armitage, Private Secretary to the Associate Minister. For completeness, it is noted that Mr Pa'u also wrote to the Associate Minister on 17 March 2006. This communication referred to a discussion with the Private Secretary that day and confirmed "that the Minister would not make a decision on this application until he had received all relevant documentation and information". [9] The correspondence from Mr Pa'u and the supporting documentation was provided to a Review Branch Officer for the purpose of preparing a briefing or "case notes" for the Associate Minister. There is no dispute that the case notes were prepared by an advisor in the Review Branch on 17 March 2006 and were later revised by another advisor on 20 March 2006. This is apparent from the case notes as they refer to the second of the letters from Mr Pa'u dated 20 March 2006 which were described as "full submissions received late on 20 March 2006". The case notes were prepared for, and provided to, the Associate Minister together with the file containing the correspondence and documentation described.[10] The Associate Minister considered the request for a special direction and made his decision in respect of the request on 23 March 2006. Prior to the making of the decision, Mr Pa'u had provided two further letters to the Associate Minister dated 21 March and 23 March 2006 respectively. Each letter contained additional supporting materials and references, including a reference from a Mr Davies for whom the plaintiffs had worked at Kerikeri. He indicated that, if the request were successful, he would be able to offer Mr and Mrs Kesonsung fulltime employment and support them in any way he could, including acting as sponsor/guarantor. There was a question at the hearing as to whether the two letters had in fact been seen by the Minister. This point was clarified in an affidavit which the defendant was given leave to file on the day of the hearing. The affidavit was from Mr Armitage, the Private Secretary to the Associate Minister. Leave was granted because the issue of whether these letters were placed on the file and seen by the Associate Minister only emerged when Mr Pa'u filed his submissions (late) the day before the hearing. [11] Mr Armitage confirmed that the letters dated 21 March and 23 March 2006 were placed on the file and put in front of the Associate Minister. Having considered the position, the Associate Minister wrote to the plaintiffs on 23 March confirming that the plaintiffs remain subject to the Immigration Service compliance process, but advising that they "will not be subject to a five year ban from re-entering New Zealand once removed" as provided for under s 57 of the Act. In other words, the approach to the Associate Minister pursuant to s 130 of the Act resulted in an amelioration of the plaintiffs' position. But he declined to intervene further. It is this aspect of the Ministerial decision which the plaintiffs challenged at the hearing. [12] Following the decision of the Associate Minister on 23 March, NZIS indicated that it was proposing to place Mr Kesonsung on an aircraft due to leave New Zealand on Saturday, 25 March 2006. Mrs Kesonsung and their daughter were to be permitted to remain in New Zealand for a period so that they could tidy up their affairs before leaving the country. The pending removal of Mr Kesonsung from New Zealand resulted in increased activity on the part of the plaintiffs' legal advisors. The application for judicial review was prepared and filed in the High Court on Friday, 24 March 2006. That evening during a judicial telephone conference, an interim order was made to postpone the removal of Mr Kesonsungfrom New Zealand. Full argument was presented at a hearing of the application for the interim order before Courtney J on 28 March. The interim order delaying the execution of the removal orders made under s 54 of the Act was confirmed. Courtney J provided reasons for granting the interim relief sought in a reserved judgment dated 4 April 2006. [13] In the course of the hearing of the interim orders application, counsel for the plaintiffs had advanced two proposed causes of action relating to the December decision and the removal order decisions. The then known factual circumstances relating to the December decision were canvassed at the hearing. As will emerge when the grounds of review are considered below, the Court in the present hearing was shown further information which put the events surrounding the December decision in a quite different light to that which was before Courtney J.The challenge to the s 130 decision[14] In the written submissions filed on behalf of the plaintiffs, it was said that the decision of the Associate Minister dated 23 March 2006 was "invalid" because it was: a) Unreasonable; b) Disproportionately harsh; c) Based upon a material error of fact; d) Made in circumstances of procedural unfairness; e) Contrary to law and/or was made without taking into account adequately or at all the interests of the New Zealand born child of the plaintiffs. [15] As the hearing developed, Mr Pa'u indicated that grounds (a) and (b) were abandoned. The key focus of the argument was on issues of alleged proceduralunfairness, a so called mistake of fact (which is perhaps better characterised as an alleged relevant factor which was said not to have been taken into account), and failure to have regard for the interests of the New Zealand born child. Incidentally, the written submissions also contained a section directed at whether the Minister had properly exercised his discretion. This was based on similarities between a draft letter prepared for the Minister by officials and the terms of the letter that was actually sent to the plaintiffs on 23 March 2006. In the event, this ground was not pursued at the hearing.The statutory provisions[16] The scope of the Minister's discretion in the context of the Ministerial decision under challenge is determined by s 130 of the Act. This section provides:130 Special directions (1) The Minister may from time to time give to the [chief executive of the Department of Labour], or to any other immigration officer [or to any visa officer], either in writing or orally, a special direction in respect of— (a) Any person, permit, visa, or document; or (b) Any 2 or more persons, permits, visas, or documents where by reason of any specific event, occurrence, or unusual circumstances there is a common link between those persons, permits, visas, or documents,— in relation to any matter for which such a direction is contemplated by any of the provisions of this Act or of any regulations made under this Act. (1A) The Minister may from time to time give in writing a special direction classifying persons who require transit visas for the purposes of section 14E, and section 14E(2B) applies in respect of any such direction. (2) Where any special direction is given orally, the chief executive of the Department of Labour or another immigration officer shall, as soon as possible thereafter, make a written record of the content and date of the direction. (3) A special direction may be subject to such conditions as the Minister thinks fit. (4) A special direction may revoke or amend any previous special direction. (5) Nothing in this section shall limit or affect the powers of the Minister to give all such instructions to the [chief executive of the Department ofLabour] as the Minister thinks fit in the ordinary course of the administration of the immigration portfolio and of this Act. (6) Nothing in this section, or in any other provision of this Act that refers to or confers a power to make any special direction, gives any person a right to apply for a special direction, or for any visa or permit in circumstances where the issue or grant of the visa or permit would be dependent on the giving of a special direction, and where any person purports to make any such application— (a) The Minister or appropriate visa officer or immigration officer is under no obligation to consider the application; and (b) Whether the application is considered or not,— (i) The Minister or appropriate officer is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and (ii) Section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.[17] In order to appreciate the full breadth of such discretionary powers, it is necessary to refer to the provisions of s 7(4) of the Act which provides:(4) Nothing in subsection (3) of this section gives any person a right to apply for any type of permit or for a special direction, and where any person purports to apply for a permit or a special direction under this section— (a) The Minister or appropriate immigration officer is under no obligation to consider the application; and (b) Whether the application is considered or not,— (i) The Minister or officer is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and (ii) Section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.][18] Ms Longdill, for the Associate Minister, correctly submitted that an application for a special direction is the last resort for persons in the position of the plaintiffs. She cited the decision of Yure v Bentley HC AK M1530-PL01 8 November 2001, Chambers J. There, the learned Judge summarised the statutory framework in the following terms:[9] Under s 130 of the Immigration Act, the Minister is empowered to give to the Chief Executive of the Department of Labour or to any other immigration officer or to any visa officer, either in writing or orally, a special direction in respect of any person, permit, visa, or document, in relation to any matter for which such a direction is contemplated by any of the provisions of the Act or of any regulations made under the Act. One such provision is s 7(3) of the Act, which allows permits to be granted by special direction to persons who would otherwise be ineligible. A special direction may be subject to such conditions as the Minister thinks fit. [10] It is clear from the scheme of the Act that the power conferred on the Minister is primarily intended for those situations where all else has failed from a prospective immigrant's point of view. The Minister retains a residual power to do something for someone notwithstanding the fact that the recipient has not managed to persuade any immigration officer or immigration tribunal of his or her case. It is, with respect, thoroughly sensible for Parliament to have vested such a residual power in the Minister. [11] Because the power is exceptional, Parliament has strictly limited the scope for judicial review. That has been achieved in several ways.[19] Thus, the ability to review a Ministerial decision under s 130 of the Act is extremely limited. This limitation is achieved by the provisions of s 7(4) which provide that no one has the right to apply for a special direction. Also, where a person does apply for a special direction, s 7(4) provides that the Minister is under no obligation to consider it. Moreover, whether the application is considered or not, the Minister is not obliged to give reasons for any decision relating to the application other than the reason s 7(4) applies. The provisions of s 130(6) are to similar effect. In the case of T & S v Minister of Immigration HC AK CIV 2004-404-348 29 January 2004, cited on behalf of the plaintiffs, Rodney Hansen J applied the principles in the Yure case and concluded at [12] that "the power to review a decision of the Minister under s 130 is, by the terms of the statute itself, strictly circumscribed". [20] As to the case law applying the provisions of s 130 of the Act, Chambers J inYure observed:[16] These provisions have been considered in a number of High Court decisions. In Singh v Minister of Immigration HC AK M1321/95 18 July 1996, Robertson J remarked that Parliament had clearly indicated in this area that 'issues relating to immigration are fundamentally for the executive arm of Government' (ibid at p 7). He further observed that unless there was clear and cogent evidence that the ministerial exercise had been unlawful, the court lacked jurisdiction to intervene (ibid at pp 7- 8).[17] Gendall J's judgment in Singh v The Chief Executive of the Department of Labour HC WN CP85/97 22 May 1997 is to similar effect. He stressed that 'a person seeking a special declaration under s 130 has very limited rights' (ibid at p 7). He said that the Minister's decision was 'very much a discretionary policy decision coming usually at the very end, or even outside, of any legal process, and to a large extent outside judicial review' (ibid). [18] Goddard J in Liuliu v The Minister of Immigration HC WN CP304/96 26 August 1997 said that the Minister's power under s 130 was 'virtually unreviewable' (ibid at p 9). She referred to 'the high policy content of immigration decisions' and said that the courts would not intervene 'in the absence of clear and cogent evidence that the exercise [of power] has been unlawful' (ibid at p 14). [19] The statute and the case law that has developed on it therefore make clear that the court's power to review in this area is extremely limited. [20] Mr Dorbu submitted to me that these decisions were wrong. He said that the court's power of review was much broader than these decisions indicated. I do not accept that submission. In my respectful view, the decisions of my High Court colleagues correctly state the legal position in light of the overall statutory framework governing immigration matters.[21] In argument, Mr Pa'u for the plaintiffs accepted that the discretion of the Minister is a broad one and that, where the Minister makes a decision on an application under s 130 of the Act, he is not obliged to give reasons. He also cited a passage from the judgment of Courtney J in Kesonsung v Minister of ImmigrationHC AK CIV 2006-404-1597 4 April 2006 where at paragraph [30] she said:Ms Longdill referred to the fact that under s 35A the Minister and his delegates have an extremely broad discretion and are not obliged to even consider applications or, if they do consider them, to give reasons. She relied on Singh v Chief Executive Department of Labour (CA235/96, 19 May 1997). However, I respectfully agree with Potter J's observation in Awan v Minister of Immigration (HC AK M404/781/00, 12 July 2000) that, in relation to a decision to decline to consider under s 35A: While there is no obligation to consider the application or to give reasons, where reasons are stated for any decision under s 35A, as they were in this case, a reason based on a clear error of fact will render the decision reviewable: see Daganayasi v Minister of Immigration [1980] 2 NZLR 130, per Cooke J; Air New Zealand v Wellington National Airport (unreported on this point, CA73/92, 24 September 1992) citing the judgment of Cooke P New Zealand Fishing Industry Association v Minister of Agriculture & Fisheries[1988] 1 NZLR 544 at 552.[22] However, it is important to note that this passage concerned s 35A of the Act. That was in the context of the application for an interim order, in relation to thedecision dated 19 December 2005 to decline the s 35A request which was then under consideration by the Court. That is not the case now. As noted, the evidence has now clarified the factual position and since then, Allan J has declined leave for that challenge to proceed. [23] Ms Longdill submitted that, whilst the wording of parts of s 35A and s 130 are similar, there is a distinct difference in the purposes of the two sections. Section 35A is a section under which anyone who is unlawfully in New Zealand who has not been served with a removal order (or a deportation order) can apply for a temporary permit. This was the step that was taken by the plaintiff on 8 November 2005. The provisions for application for a permit under s 35A are dealt with in Part 1 of the Act which relates exemptions, visas and permits. As a matter of practice, such permits are considered by Immigration Officers as delegates of the Minister because of the large volume of applications involved. It is a stage before the s 130 special direction provision. This section appears in Part 7 (miscellaneous provisions) and is very much a last port of call under the Act. The powers in s 130 are, as a matter of practice, exercised by the Minister or Associate Minister. [24] Ms Longdill confirmed that the case of Yure had not been cited to Courtney J and was not referred to in the judgment. This is not surprising because the focus of the judgment was on the December decision and the removal order decisions, and did not deal with s 130 of the Act. [25] Accordingly, in respect of the present challenge to the Ministerial decision, I propose to follow the approach taken by Chambers J in the Yure case. I will also have regard to the authorities which he mentioned in his judgment and which dealt specifically with the provisions of s 130 of the Act. [26] Therefore, a Court should be reluctant to intervene in respect of a Ministerial decision under s 130 unless compelling grounds exist for doing so, or unless there is clear and cogent evidence which establishes that the decision was unlawful. Like Goddard J in the Liuliu case, I accept that any decision by a Minister in respect of a special direction, be it to grant or to decline such a direction, is a matter with high policy content and one in respect of which the Court should not willingly intervene.General principles of review[27] In an application for judicial review, the applicable principles were succinctly described in Singh v Minister of Immigration HC AK M1561/97 9 February 1998, Williams J, at [2] – [3] as follows:Judicial review, as the House of Lords held in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1173 (as endorsed by the Privy Council in Mercury Energy Ltd v Electricity Corp of NZ Ltd [1994] 2 NZLR 385, 389): "is concerned not with the decision but the decision-making process. Unless that restriction on the power of the Court is observed, the Court will under the guise of preventing the abuse of power, be itself guilty of usurping power" Broadly put, on judicial review the Court may only intervene if the decision or the decision-making process exceeds the Authority's power, is procedurally unfair or is based on a misunderstanding of the facts, or discloses an error of law, or if it has taken irrelevant matters into account or is so unreasonable no rational authority could reach it.The Ministerial decision[28] Because the first amended statement of claim and the written submissions filed on behalf of the plaintiffs were somewhat economical as to the particulars of the real nature of the challenges, it is necessary to set out the context in which the request was made to the Minister for a special direction under s 130 of the Act. [29] The relevant details of the plaintiffs' early history in New Zealand from 1999 to June 2000 is set out in Schedule 1. On 30 June 2000, the plaintiffs applied for refugee status. Thereafter, the claims for refugee status were dismissed by the Refugee Status Branch in March 2001. An appeal to the Refugee Status Appeals Authority was dismissed in June 2001. The plaintiffs remained in New Zealand unlawfully for over two years from September 2001 until January 2004. This is confirmed in Schedule 2 which summarises in chronological form the plaintiffs' immigration status. In January 2004, the plaintiffs were issued with work permits which were valid for six months, namely, until 14 July 2004. These permits expired. Subsequently, on 13 September 2004, further three month work permits were issued as an exception to policy, such permits being valid until 13 December 2004. Sincethe expiry of these permits on that date, the plaintiffs have been unlawfully in New Zealand and liable for removal. [30] The request to the Associate Minister for a special direction under s 130 of the Act was made after the application for a temporary permit (under s 35A) was declined in December 2005. After that, there had been a significant intervention in that the compliance process was begun, leading to a Compliance Officer serving removal orders on the plaintiffs under s 54 of the Act. This occurred on 16 March 2006. The criteria by which a person unlawfully in New Zealand may be the subject of a removal order is set out in s 53 of the Act. Ms Longdill confirmed that the plaintiffs had become liable for removal because the provisions of s 53(1)(a) applied to them. [31] Following the serving of the removal orders on the plaintiffs, a decision was made to continue with the removal process following interviews with both Mr and Mrs Kesonsung individually. Such interviews are known as "humanitarian interviews" which are carried out as a matter of practice by NZIS as a result of the decision of the Court of Appeal in Tavita v Minister of Immigration [1994] 2 NZLR 257. [32] Accordingly, the time at which the approach was made to the Associate Minister under s 130 of the Act was several steps further on from the circumstances of the challenge to the s 35A application decision of December 2005 which was before Courtney J. [33] For the purposes of the s 130 request, the plaintiffs supplied the Associate Minister with five letters (referred to in paragraphs [8] and [10] above) and substantial supporting documentation. As noted, this material was analysed and the case notes prepared as a briefing for the Associate Minister. Some of the detail of the case notes will be referred to in relation to the specific challenges considered below. [34] On 23 March 2006, the Associate Minister made his decision. He then wrote to the plaintiffs in the following terms:I am replying to your letters dated 16 and 20 March 2006 regarding Tipakorn and Prapaporn Kesonsung. As you are aware Mr and Mrs Kesonsung have been served removal orders and are subject to removal action. I have given careful consideration to the matters you raise in your letters and the letters from Mr and Mrs Kesonsung's supporters. I have taken into account the circumstances that Mr and Mrs Kesonsung currently face and I am aware of the discussions between you and the Immigration Service regarding delaying removal action in order to give you time to make a submission. I have been advised that the outcome from that discussion is that removal action has been delayed for sixteen days. I am satisfied that the Immigration Service has acted in accordance with the relevant policies and laws. It is not my normal practice to intervene in compliance activity undertaken by the Department of Labour Immigration Service, however, in light of Mr and Mrs Kesonsung's current circumstances I am prepared to make an exception. Mr and Mrs Kesonsung remain subject to the Immigration Service compliance process but they will not be subject to a five year ban from re-entering New Zealand once removed.Grounds of challenge[35] The first criticism made on behalf of the plaintiffs is the lack of evidence from the Associate Minister, or any member of his office. On behalf of the Associate Minister, the evidence presented at the hearing was contained in three affidavits from Craig Allan Fennell (an Immigration Officer), an affidavit of Kay Patricia Mitchell (an Immigration Officer), and an affidavit of Neeraj Nagpal (an Immigration Manager). There was also an affidavit from Stephen Allan Armitage, the Private Secretary to the Associate Minister, for which leave to file was granted in order to deal with a factual issue raised by the plaintiffs only the day before the hearing regarding whether the letters of 21 and 23 March were received and considered by the Minister. [36] Mr Pa'u's criticism of the failure by the Associate Minister to file an affidavit was based on the observations of McMullin J in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA). But the circumstances which were before the Court of Appeal in that case involved the question of whether the Minister was obliged to consult the fishing industrybefore increasing the rentals. In that context, s 107G of the Fisheries Act 1983 required the Minister to: a) Advise the Fishing Industry Board of his proposed recommendation and the reasons for it; b) Invite the Board to make submissions to him; and c) Having regard to those submissions, make his recommendations to the Governor-General. [37] As discussed above, the statutory context here is quite different. On this issue, the observations of Chambers J in the Yure case are on point. He considered the issue of what material the Minister might have considered, including a submission that it may have included prejudicial material relating to a former marriage. Chambers J said:[34] In my view, it is unlikely that this oblique reference to a former marriage played any part in the Minister's decision. But it is not for the court to speculate on what the Minister based her decision. That part of the departmental file which has been exhibited to affidavits does not give any inkling as to the Minister's reasoning or as to what influenced her. The Minister has chosen not to swear an affidavit explaining her reasoning. She cannot be criticised for that. It would be wrong for the courts to demand affidavits of explanation when Parliament has expressly said that the Minister does not have to give reasons.[38] The plaintiffs' criticism of the lack of an affidavit from the Minister also requires to be put in the context of the application. First, the pleadings as to the nature of the challenge to the Associate Minister (even in the amended statement of claim) were very general. Indeed, they were entirely lacking in meaningful particulars. Mr Pa'u suggested that the grounds of challenge could be seen and better understood by reference to certain paragraphs of the affidavit of Mrs Kesonsung. But in my view these add very little to the generality of the pleading. But more importantly, the Court has before it the letter of the Associate Minister dated 23 March 2006.[39] I consider that the circumstances of this case did not require the filing of an affidavit on the part of the Associate Minister. His counsel, correctly in my view, took the position that no affidavit was called for. In any event, it was open to counsel to contend that the plaintiffs had not made out a sufficient case on the evidence to warrant a detailed factual response, let alone an affidavit from the Associate Minister. Counsel was able to rely largely on the documents before the Court as a basis for resisting the plaintiffs' challenge. Moreover, the legal principles relative to s 130 of the Act did not require the filing of an affidavit by the Associate Minister. In my judgment, counsel cannot be criticised for not doing so in the circumstances of this case.Did the Associate Minister give reasons?[40] Next, Mr Pa'u submitted that this was a case where the Associate Minister "did provide reasons" and therefore "the reasons, and the process used to arrive at those reasons, are therefore amenable to judicial review". In argument, I pressed Mr Pa'u to indicate where in the letter of 23 March 2006 were the reasons that he relied upon. He accepted that the reasons were "economical". [41] However, Ms Longdill, for the Associate Minister, submitted that a consideration of the letter itself and an analysis the language on a line by line basis, fails to discern the existence of any reasons at all. She submitted, correctly, that the first two paragraphs are simple statements of fact. The next two sentences (in paragraph 3) merely set out what the Associate Minister knew about the discussion with the NZIS and what he had, as a matter of fact, considered. The next sentence recorded his advice and the final sentence set out his opinion that the NZIS has "acted in accordance with the relevant policies and laws". Again, the first sentence in the final paragraph sets out his "normal policy" with regard to intervention in compliance activity. The final sentence is his conclusion. The only part of the letter which comes even close to setting out reasons for his action are the words "in light of Mr and Mrs Kesonsung's current circumstances I am prepared to make an exception".[42] Again, the views of Chambers J in the Yure case are instructive. When considering a submission made in respect of s 130 of the Act that "there must be good reason not to exercise the power" and the argument that "a decision not to exercise a discretionary power will be open to an inference that the power had been fettered", Chambers J at [25] said:That submission is, with respect, wrong. Because a power is granted does not mean that there is a presumption it will be exercised in any particular case. The Minister does not have to justify failing to exercise the power. Parliament has decreed that she does not even need to consider the application. If she does consider it, she does not have to give any reasons for her decision. Mr Dorbu's submission is completely contrary to the whole scheme of the Act.[43] I have considered the plaintiffs' submission that the letter of 23 March 2006 did provide reasons and that such reasons are therefore more amenable to judicial review. However, I conclude that the letter does not contain any reasons for the conclusion that the plaintiffs should remain subject to the NZIS compliance process. Even if it had done so, it would have been unlikely to assist the plaintiffs. That is because, as a matter of law, the Minister did not need to justify any refusal to intervene. Therefore, this submission does not advance the plaintiffs' case.Unfairness[44] The next ground for challenge really rested on the alleged failure of the Associate Minister to consider the two letters from Mr Pa'u dated 21 March and 23 March 2006. Mr Pa'u made the point that these letters were not referred to in the case notes, were not referred to in the letter from the Associate Minister, and hence it had not been shown that the letters were considered by the Associate Minister. [45] However, this point is clearly met by the contents of the affidavit of Mr Armitage. As noted, he deposed that both letters were placed on the file and were put in front of the Associate Minister. It is correct that the Minister did not explicitly refer to these letters in his letter of 23 March 2006. But neither did he refer to the letter from Mr Pa'u dated 17 March 2006 and several other dated materials which were attached to the letters from Mr Pa'u. There can be no doubt that the Minister had the file. His letter expressly referred to "letters dated 16 and20 March 2006". He confirmed that he had given careful consideration to the matters raised in the letters and the letters from the supporters. He also said he had taken into account the circumstances the plaintiffs currently faced. [46] I accept the submission on behalf of the Associate Minister that the main thrust of the material placed before him was contained in the letters of 16 March (which enclosed the letter of 3 November 2005) and the two letters of 20 March 2006. It is patently clear that all such material was considered by the Review Branch Officer who wrote the case notes which were prepared for the Associate Minister. With respect to the second letter of 20 March 2006 sent late that day, there is a specific reference in the case notes to that letter in the fourth paragraph on page 2. [47] It was further contended by Mr Pa'u that the Associate Minister made his decision on 20 March 2006. If this was the case, then the decision would have been made without giving consideration to the subsequent letters of 21 and 23 March 2006. But this point was decisively met by the affidavit of Mr Armitage which made it clear that the date of the decision of the Associate Minister was 23 March 2006. [48] Ms Longdill submitted that the plaintiffs had not established any ground of procedural or other unfairness, let alone clear and cogent evidence of such. I agree. The plaintiffs have failed to prove this ground of claim.Mistake of fact[49] This submission may best be summarised as relating to an omission in the case notes to refer to the purported applications for residence in July 2004 and December 2004. I pressed Mr Pa'u on whether he contended that the case notes contained any material error. Mr Pa'u said it was more a question of emphasising that the plaintiffs had endeavoured in July 2004 to file a residence application, and again in December 2004. But, with respect to the July correspondence, NZIS did not accept that there was a compliant application for residence. The plaintiffs were so advised on 9 August 2004. The evidence makes it plain that it was never accepted by NZIS that the letter from Gubb & Partners dated 14 July 2004 complied with the relevant regulations setting out the form and content of resident permit applications.Incidentally, the firm Gubb & Partners was acting for the plaintiffs at this time and Mr Pa'u, their counsel at the hearing, was then a senior associate of the firm. [50] I consider that this head of challenge is more appropriately seen as involving an alleged omission to consider a relevant and material factor. That factor was the attempts in 2004 by the plaintiffs to apply for residence. It was said by Mr Pa'u to have been overlooked by the Associate Minister because it was not referred to directly in the case notes or in the letter of 23 March 2006. Accordingly, the plaintiffs submitted that it was not established that this factor was taken into account. [51] In response, Ms Longdill submitted that it was clear from the correspondence from NZIS that there was no compliant application. The letter of 20 July 2004 from NZIS to Gubb & Partners stated:Our record shows that you have made no attempts to lodge your residence application before the expiry of the work permit. Therefore, you have not followed the instructions outlined by the Minister in his letter. Please comment in writing.[52] The letter from the "Minister" being referred to was in fact a letter to Gubb & Partners from the former Associate Minister of Immigration, Mr O'Connor. That letter written on 16 September 2003 relevantly stated:I am replying to your letter of 10 June 2003 on behalf of Tipakorn and Prapaporn Kesongsung, concerning their request for Work Permits or residence in New Zealand. I have given your letter careful consideration. It is not my normal practice to intervene in the established immigration application process, however, I have decided to make an exception in this case. I have directed the New Zealand Immigration Service (NZIS) to grant the abovenamed couple six- month Work Permits under section 35A of the Immigration Act 1987, subject to completion of the appropriate forms and payment of the relevant fees. They should apply for their permits within one month of the date of this letter. Tipakorn and Prapaporn Kesongsung will be able to lodge a residence application and have it assessed against normal policy once they have received their temporary permits.[53] The plaintiffs did not apply for their work permits within the stipulated one month period. Apparently, there was some misunderstanding on their part.Nevertheless, Mr O'Connor's Private Secretary wrote again to Gubb & Partners on 18 November 2003. The contents of the letter are instructive:I write on behalf of Damien O'Connor, Associate Minister of Immigration, in reply to your letter dated 10 November 2003 regarding Tipakorn Kesonsung and Prapaporn Kesonsung request for ministerial intervention. Unfortunately you appear to have misunderstood the Associate Minister of Immigration's letter of 16 September 2003. His approval was for a six-month work permit to be granted on application with the relevant forms and payment of fees. The grant of this permit would then allow for the couple to gather the documentation for an application for residence, which should be lodged before the expiry of the work permit. Given this misunderstanding the Minister is prepared to allow further time for the work permit to be applied for. The couple should approach the New Zealand Immigration Service within two weeks of the date of this letter with a completed work permit application form and the required fees. They should also take the advice of the New Zealand Immigration Service as to the documentation required to successfully lodge an application for residence because the residence application will be required to be lodged and accepted before any other temporary permit will be contemplated.[54] The final sentence of the last paragraph plainly put the plaintiffs and their legal advisers on notice that the residence application was required to be "lodged and accepted" before any other temporary permit would be contemplated. The letter also suggested that the plaintiffs should take the advice of NZIS as to the documentation required to successfully lodge an application for residence. [55] The next step was that on 14 January 2004 NZIS issued the plaintiffs with work permits which were valid for six months until 14 July 2004. Once those permits were issued, the requirement to lodge a residence application referred to in the letter of 18 November 2003 applied. Yet no steps were taken by the plaintiffs within that six month period until the very last day, 14 July 2004. So, despite the clear direction from the Associate Minister, the plaintiffs did not file a compliant residential application. Ms Longdill submitted that accordingly, they could not expect to receive any sympathy later from NZIS or the Associate Minister. [56] Ms Longdill also submitted that the attempt to file a residence application on 14 July 2004 was woefully inadequate. It comprised one paragraph and four brief points in support. She submitted that the handwritten note on page 2 of that letterdid not advance the case for compliance. Mr Pa'u accepted, as he had to, that the form for a residence application was not included, but he made the point that some of the required supporting materials were submitted, albeit as part of the work permit application. However, when compared with the letter from Gubb & Partners dated 29 November 2004, referred to below, the limitations of this July attempt are obvious. [57] Ms Longdill noted that the correspondence after the purported residence application of 14 July 2004 made it clear that NZIS was considering only the work permit application: see for example the NZIS letter to Gubb & Partners dated 19 August 2004. Plainly, NZIS was not treating the letter as a residence application. Even the reply from Gubb & Partners dated 26 August 2004 is headed "Application for Work Permit". The letter claimed that the application for permanent residence had been filed at the same time as the work permit application, but nevertheless went on to change focus and seek a "special direction" for a grant of permanent residence. [58] On 13 September 2004 in a further exception to policy the plaintiffs were granted a further three month work permit valid until 13 December 2004. Again, the contents of the letter are instructive and the following two paragraphs were set out in bold on page 1 as follows:Please find enclosed your passport endorsed with a work permit. This permit is valid for you to remain in New Zealand until 13 December, 2004. This permit is granted to your spouse and you as an exception to policy to allow you to lodge residence application which should be accepted for consideration by New Zealand Immigration Service. Please be advised that you should lodge the residence application before the expiry of this permit as there is no guarantee that any further temporary permit applications may be considered.These paragraphs were in bold for emphasis. [59] The next event occurred on 14 December 2004 when an application for permanent residence on behalf of the plaintiffs was received by NZIS. As noted earlier, this application could not be accepted and was returned unactioned. In official parlance the application "failed lodgements". The application itself was contained in a letter from Gubb & Partners and was dated 29 November 2004. In thejudgment of Courtney J, this application was assumed to have been received on or before 13 December 2004. However, the evidence has now established to my satisfaction, and I so find that this was not the case. The application was left in a drop box at the Auckland Central Branch of NZIS on 14 December 2004. This is confirmed in the affidavit of Mr Nagpal. He explained the NZIS systems in relation to deliveries in the drop box and confirmed that the effect of the systems used is such that it was not possible for an application to have been left in a drop box on 13 December 2004 and not recorded as being received until 14 December 2004. [60] The timing of the receipt of the application for residence (dated on its face 29 November 2004) is critical because, if it were received on or after 14 December 2004, that would have been at a time when the plaintiffs were no longer in New Zealand on valid permits. Hence, the application could not be accepted for consideration. Accordingly, the plaintiffs were then required to apply to NZIS for a permit under s 35A as described above. Advice to this effect was contained in a letter from NZIS to the plaintiffs legal advisors dated 17 January 2005. The letter stated:We wish to advise you to test your eligibility for a temporary permit under s 35A and when granted, then you can relodge your residence application. Please specify what category and complete all requirements, medical/Police clearances must be current and include all information needed in the application form.This portion of the letter was also bolded for emphasis. [61] Despite this clear advice, the plaintiffs did not apply for temporary permits until 8 November 2005. Then, on 19 December 2005, the s 35A applications were declined. That was the last step prior to the final application to the Minister under s 130 of the Act. Even this latter request was only made after compliance operations had caught up with the plaintiffs on 16 March 2006. [62] All of the above steps were carefully traversed by Ms Longdill in order to deal effectively with the submission on behalf of the plaintiffs that the allegedly relevant consideration of the attempts to file residence applications were not spelled out in the case notes. But Ms Longdill went on to submit that, in the light of thehistory of failure by the plaintiffs and their advisors to meet deadlines and failure to act on the basis of clear advice given, such consideration was not relevant, not material and in any event not helpful to the plaintiffs. [63] Ms Longdill submitted that what the Review Branch officer said in the case notes under background was "extremely mild". The case notes stated:Please refer to min03\1344 and correspondence from the former Associate Minister and his Private Secretary. Mr and Mrs Kesonsung arrived in October 1999. Please refer to immigration history in the previous case notes. A final work permit was granted to this couple which expired on 13 December 2004 to allow them an opportunity to lodge a residence application. A residence application was lodge on 14 December 2004 but failed lodgements. The couple have now been served removal orders and are booked for a flight out on Tuesday, 21 March 2006.[64] Ms Longdill also submitted that, in the light of the wholly unsatisfactory history of failures to file compliant applications in a timely fashion, the Associate Minister had before him a fair summary of the position. She contended that it would have been entirely appropriate for the authors of the case notes to outline a range of other factors which could have been more prejudicial to the prospects of the plaintiffs. She submitted that the plaintiffs had, in this regard, shown no reviewable error. I agree.Failure to have regard for interests of child[65] In a final challenge under this head, the plaintiffs in effect asked the Court to infer that, because no reference to the New Zealand born child was made in the letter of the Associate Minister dated 23 March 2006, those interests were not taken into account. [66] Ms Longdill said that this allegation did not stand up to scrutiny, particularly when considered in the light of the material before the Associate Minister. This material specifically refers in various ways to the interests of the five year old New Zealand born child. She cited the first letter of 20 March 2006 (page 2 final paragraph), the second letter of 20 March 2006 (references on page 3 at the top andpage 4), and the letter of 3 November 2005 (page 1 last paragraph). In all of this material, the existence of the family unit, including the daughter, was given prominence. The same can be said of a number of the references in support. [67] The content of the case notes takes the matter even further. If reference is made to the material under the heading "representations" there is a statement that "they have a five year old New Zealand citizen child". Also under the heading "family" appears the following sentence:This couple has a New Zealand born child and the Associate Minister is obliged to consider the effects on the rights of the New Zealand born child in his consideration of the case.[68] In the light of all of this material and the specific references in the case notes, Ms Longdill submitted that the Court should not draw an adverse interest from the omission to mention specifically the child in the letter of 23 March 2006. [69] I consider that the plaintiffs have not established that there was a failure to have regard for the interests of the child. My reasons for so concluding are that it is highly unlikely that this occurred, particularly bearing in mind the various references in the letters and other supporting papers and the specific notation in the case notes as to the Minister's obligation to consider the effects on the New Zealand born child. Any inference that the Associate Minister did not consider such effects is simply not open on the evidence and I so find. Moreover, applying the principles set out in theYure case, the plaintiffs have not been able to come anywhere near establishing clear and cogent evidence that the interests of the child were not considered by the Associate Minister.Discretionary factors[70] Even though I have concluded that each of the three grounds of challenge mounted by the plaintiffs have failed, I go on to consider applicable discretionary factors. I do so on the basis that, even if the plaintiffs had established some form of procedural error or unfairness, relief in the context of judicial review does not automatically follow.[71] The remedy which would follow from a successful challenge would be an order directing the Associate Minister to reconsider the request for a special direction under s 130 of the Act. Indeed, the third prayer for relief seeks "an order directing the defendant to reconsider the March decision in accordance with law". The problem with this direction is that by the terms of s 130(6) of the Act itself, nothing gives any person a right to apply for a special direction. Also, the Minister is under no obligation to consider such application. Accordingly, as a matter of law, the declaration sought by the plaintiffs is not available. [72] In this regard, in the course of argument Mr Pa'u acknowledged that, if when the matter was first placed before the Minister after 16 March 2006 he had simply refused to consider the request for a special direction, then that refusal would not have been reviewable. The same principle must apply in respect of any other request for a special direction, or a request following a successful challenge. [73] There are various factors relevant to the discretion. The first is the fact that the plaintiffs accept that they do not fit into any current immigration policy. When Mr Pa'u was making representations on behalf of the plaintiffs, he urged the NZIS and the Associate Minister to grant residence to his clients "as an exception to policy". This was because he fairly acknowledged that they did not fit into any current policy. The same acknowledgement was very properly made during the course of the hearing. [74] The next point is that the case is now in the final stages of available immigration processes. The fact is that these plaintiffs have been turned down on a request for a temporary permit under s 35A of the Act. The compliance processes have begun and decisions have been made by Immigration Officers to proceed with removal following the humanitarian interviews of each of the plaintiffs. The Associate Minister has refused to make a special direction under s 130. Instead, he said that the plaintiffs should remain subject to the compliance process. But significantly, he went on to ameliorate the position to a considerable extent by determining that they would not be subject to a five year ban from re-entering New Zealand once removed.Decision[75] I consider that the plaintiffs have had what Chambers J in Yure described as "the last throw of the dice". The challenges to the process have all failed. No procedural irregularity, unfairness or unlawfulness has been established on any basis, let alone on clear and cogent evidence. I consider that, even if the matter were to come before the Associate Minister again on a second request for a special direction under s 130, it is unlikely that any change would follow. I say this on the basis of the wholly unsatisfactory immigration history of the plaintiffs stretching from the time when they first became unlawfully in New Zealand in January 2000. Since that time, they have been unlawfully in the country for four periods, the most recent spanning over one year and ten months, from 14 December 2004 to the present time. This is confirmed by the chronology in Schedule 2. [76] The application by the plaintiffs has failed in all respects. The defendant is entitled to costs on a 2B basis. If the parties cannot agree, counsel may submit memoranda. _________________________ Stevens JSCHEDULE 1 AGREED CHRONOLOGY Date Event15 October 1999 Tipakorn Kesonsung ("TK") and Prapaporn Kesonsung ("PK") arrive in New Zealand. Granted visitors' permits valid until 15 January 2000. 15 January 2000 Visitors' permits expire. TK and PK in New Zealand unlawfully. 30 June 2000 TK and PK apply for refugee status. 30 March 2001 Refugee Status Branch declines application for refugee status. Appeal lodged with Refugee Status Appeals Authority subsequently. 18 June 2001 Refugee Status Appeals Authority dismisses appeal. 30 August 2001 New Zealand Immigration Service ("NZIS") revokes temporary permits (which had been issued pending the refugee determination). 21 September 2001 Revocation of temporary permit becomes effective. TK and PK in New Zealand unlawfully. 10 June 2003 TK and PK approach Minister of Immigration. 16 September 2003 Associate Minister of Immigration directs NZIS to grant TK and PK six month work permits, subject to completion of forms and payment of fees. TK and PK to apply within one month. 16 October 2003 One month time period for application expires. No application by TK and PK. 10 November 2003 TK and PK write further letter to Associate Minister of Immigration. 18 November 2003 Private Secretary responds on behalf of Associate Minister, advising TK and PK that they misunderstood previous letter, but Minister was prepared to allow further time for work permit to be applied for. TK and PK should approach NZIS within two weeks of the date of the letter with completed application form and fees. 14 January 2004 NZIS issues TK and PK with work permits valid for six months, until 14 July 2004.14 July 2004 Expiration of work permits. TK and PK unlawfully in New Zealand. 14 July 2004 TK and PK make application for work permits and application for special direction for permanent residence (NB: not accepted that permanent residence application is valid). 20 July 2004 NZIS writes to Mr Pa'u advising that no application for residence had been lodged. 29 July 2004 Pa'u writes to NZIS (referred to in 19 August letter). 19 August 2004 NZIS writes back to Pa'u, advising that records show no attempt to lodge residence application. 26 August 2004 Pa'u writes back to NZIS. 13 September 2004 Further three month work permits issued as exception to policy, valid until 13 December 2004. 13 December 2004 Expiration of work permits. TK and PK unlawfully in New Zealand. 14 December 2004 TK and PK lodge residence application. 17 January 2005 Residence application returned failed lodgments (as TK and PK not on valid permits). 8 November 2005 TK applies for s 35A temporary permit. 19 December 2005 Section 35A application declined. 1 March 2006 Craig Fennell contacts Mr Pa'u to discuss removal of TK and PK. 16 March 2006 No Ministerial application lodged. TK and PK served with removal orders. TK taken into custody. 16 March 2006 Ministerial application lodged later that day. 16 March 2006 Pa'u writes to Minister, enclosing copy of 3 November letter. 17 March 2006 Private Secretary replied on behalf of Minister. 17 March 2006 Pa'u writes further letter to Minister. 17 March 2006 Case notes created. 20 March 2006 Pa'u submissions to Minister.20 March 2006 Further submissions lodged with Minister. 20 March 2006 Case notes amended. 21 March 2006 Further submissions to Minister. 23 March 2006 Further submissions to Minister. 23 March 2006 Minister responds, intervening by agreeing to cancel five year ban on re entering New Zealand. TK and PK to be removed. 24 March 2006 Proceedings filed in the High Court seeking interim orders. 24 March 2006 Teleconference before Courtney J. Interim orders made until the following week. 28 March 2006 Further hearing before Courtney J. Interim orders made. Timetable orders imposed. 21 June 2006 Following the failure of TK and PK to comply with any of the timetable orders, conference convened before Frater J. Grant Illingworth QC withdraws as counsel. Frater J makes order that TK and PK to file all outstanding documents by 28 July 2006 otherwise interim orders will be revoked. 28 July 2006 TK and PK file amended statement of claim, affidavits and s 146A application. 3 August 2006 Mention before Winkelmann J. Timetable orders made. Section 146A application subsequently set down for Monday 18 September 2006 and substantive judicial review hearing for week commencing 30 October 2006. 18 September 2006 Hearing of s 146A application. 22 September 2006 Allan J releases decision dismissing application for leave under s 146A Immigration Act 1987. Timetable orders made in respect of substantive judicial review hearing: Plaintiff to file submissions by 16 October 2006, Defendant to file submissions by 24 October 2006.SCHEDULE 2 CHRONOLOGY – STATUS IN NEW ZEALAND Dates Time Event Status in NZ15 October 1999 - 15 January 2000 3 months Mr Kesonsung* arrived in New Zealand, granted three month visitors permit on arrival. Lawful 16 January 2000 – 29 June 2000 6 months Mr Kesonsung remained in New Zealand at the expiry of his visitors permit. Unlawful 30 June 2000 – 21 September 2001 1 year 3 months Mr Kesonsung granted temporary permit whilst his refugee claims were extant. Lawful 21 September 2001 – 13 January 2004 2 years 4 months Mr Kesonsung remained in New Zealand following revocation of temporary permit. Unlawful 14 January 2004 – 14 July 2004 6 months Work permit issued. Lawful 15 July 2004 – 12 September 2004 2 months Mr Kesonsung remained in New Zealand following expiry of work permit. Unlawful 13 September 2004 – 13 December 2004 3 months Temporary permit issued for three months Lawful 14 December 2004 – present 1 year 10 months Mr Kesonsung remained in New Zealand following expiry of temporary permit. Unlawful * Although this schedule (submitted by counsel) is expressed to relate only to Mr Kesonsung, it also sets out the immigration status of Mrs Kesonsung.