CCH Learning Immigration Law Conference 2017 Immigration Case

CCH Learning Immigration Law Conference 2017 Immigration Case Law Update Mc. Leod & Associates

Topics • Appeal to High Court on point of law under s 245 of the Immigration Act 2009 – Dew James, Solicitor • Developments in humanitarian appeals under s 207 of the Immigration Act 2009 – James Mc. Leod, Solicitor • Recent judicial review challenges to immigration and ministerial decisionmaking – Richard Mc. Leod, Principal

Appeal on Point of Law Section 245 of the Immigration Act 2009 Dew James

Statutory Framework • Decisions made by the Immigration and Protection Tribunal can be appealed to the High Court – s 245 • Leave to appeal is required (High Court, or, if the High Court refuses leave, with the leave of the Court of Appeal) – s 245(1) • Significant departure from the Immigration Act 1987 – D Tennent Immigration and Refugee Law (2 nd ed, Lexis. Nexis, Wellington, 2013)

“Gateway” Provision 245 Appeal to High Court on point of law by leave … (3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision. …

Judicial Interpretation of s 245(3) • Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 at par [8]: “In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either: (a) Has importance extending beyond the particular case (which is what “general or public importance” entails); or (b) For some other reason, warrants a decision from the High Court. Although category (b) is open ended, we agree with a series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met. ” • Converting a question of fact into a question of law in leave applications – Taafi v Minister of Immigration HC NAP CIV-2011 -441 -471 (par [19])

Residence & Humanitarian Appeals • Dahiya v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZCA 546 at par [16]: “Despite their best endeavours and their reliance on the maxim res ipsa loquitur, the reality is that none of the several matters to which they refer raises any question of law in respect of the Tribunal’s decision, let alone that satisfies the threshold of general or public importance. ” • Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 – all five proposed grounds of appeal were rejected (par [9] – [14])

Refugee Appeals (1) • DO v The Immigration and Protection Tribunal [2016] NZHC 3158 at par [48] – [49]: “In refugee cases higher standards of fairness and natural justice are engaged. This recognises the consequences of a tribunal or Court declining refugee or protected person status. Not infrequently those consequences may involve threats to health or life, personal safety and liberty… in examining whether the potential for substantive unfairness was such that general pubic interest considerations demanded intervention… the starting point for this evaluation is the recognition refugee status claims involve claimants at the highest end of vulnerability and potential for risk of gross human rights violations. The tolerance for procedural unfairness in such cases must be small. ”

Refugee Appeals (2) • AR v Immigration and Protection Officer [2017] NZHC 132 at par [27]: “To my knowledge the New Zealand courts have not considered in great detail how credibility assessments should be made in claims for refugee status, and whether those assessments require a particular approach that differs from that adopted in other legal proceedings. This seems to me to raise a question of law of general and public importance… The legal questions in issue here are important as they impact on how well New Zealand discharges its obligations under the relevant international conventions. Accordingly, they merit the attention of a substantive hearing. ” • AI (Somalia) v The Immigration & Protection Tribunal & Anor [2016] NZHC 2227 – “[w]hether the Tribunal can base positive factual findings on negative credibility findings of the opposite” (par [61])

Conclusions & Options • “Gateway” provision intended to limit appeals in immigration decisions • Carefully consider merits of seeking leave to appeal / consult with senior counsel • Consider filing application for judicial review concurrently • Consider alternatives (s 61, Ministerial request, apply offshore)

Deportation Appeals Section 207 of the Immigration Act 2009 James Mc. Leod

Section 207 - grounds for determining humanitarian appeals (1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that— (a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and (b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

S 207(1)(a) – what do the terms mean? • See Ye and Ors v Minister of Immigration and Anor SC 53/2008 20 July 2009, Tipping J: • “Exceptional” - “must be well outside the normal run of circumstances”. “The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. ” (See also Minister of Immigration v Jooste [2014] NZHC 2882 [19 November 2014] – “high threshold”) • “Humanitarian” - “It is unnecessary and undesirable to attempt to define the compass of the word “humanitarian”. It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. ” • “Unduly harsh” - “beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system”. • See Guo v Minister of Immigration [2015] NZSC 132 • Unjust v unduly harsh – ‘composite in nature’ and Tribunal need not inquire separately as to whether deportation (a) unjust or (b) unduly harsh.

S 207(1)(a) – a “sequential” test • Elias CJ (dissenting) in Ye favoured “composite” test, Tipping J (majority) favoured “tripartite sequential” test. • Tribunal’s approach in practice: • Stage 1 - Whethere are exceptional circumstances of a humanitarian nature. • Stage 2 - Would it be unjust or unduly harsh to deport? Balance the reasons why the appellant is liable for deportation against the consequences for the appellant of deportation - Guo v Minister of Immigration (supplanting Tribunal’s previous approach as per Galanova v Minister of Immigration [2012] NZIPT 500426). • If no exceptional humanitarian circumstances found, the enquiry ends there. • Recent court decisions have focused on which factors are relevant to s 207(1)(a) assessment, and at which of the two stages they are relevant.

S 207(1)(a) – which factors are relevant? • Tribunal no longer directed by legislation as to which factors pertaining to an appellant’s circumstances are relevant to s 207(1)(a). Implicit though that all relevant matters taken into account. Is New Zealand residence visa status relevant? • Minister of Immigration v Jooste • Tribunal thought that resident status was “important” to exceptional humanitarian circumstances, but Katz J disagreed. The mere fact of residence visa status is not important, only the closeness of the appellant’s association with New Zealand. • The decision has generated debate.

S 207(1)(a) – which factors are relevant? Is permanent prohibition from New Zealand relevant? • S 179 sets out periods of prohibition from New Zealand following deportation. In most cases prohibition is permanent for residents, but only 2 -5 years for over-stayers. • Katz J in Minister of Immigration v Jooste at [61]) -this more severe outcome may be relevant to exceptional humanitarian circumstances • Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 [2016] NZAR 662 - permanent prohibition not truly exceptional “but rather something that was in the normal run of events”. • Mere fact of permanent prohibition unlikely to be important. Only the effect or impact of that permanent prohibition is important.

S 207(1)(a) – to which stage are the factors relevant? • No guidance in statute or in Ye as to which factors should be considered at each of the two stages (i. e. exceptional humanitarian circumstances v unjust or unduly harsh to deport). • Recent cases suggest “overlapping” of factors between the two stages, especially whether the reasons why the appellant is liable for deportation and the consequences of deportation (i. e. the two parts of the balancing exercise at the second stage) are also relevant to the first stage. • This issue can have serious consequences for appellants, given the enquiry ends if no exceptional humanitarian circumstances are found.

S 207(1)(a) – to which stage are the factors relevant? Are the reasons for deportation (the offence or fraud) relevant to the first stage? • The Tribunal has considered criminal offending at both stages. • In Chan v Minister of Immigration [2015] NZHC 2036 [27 August 2015] Brewer J held that Mr Chan’s criminal offending (which was low level) was not relevant to first stage (exceptional humanitarian circumstances) but only to the second stage (whether it would be unjust or unduly harsh to deport). • However, in Guo a lack of any fault on the part of an appellant child was held by Tribunal and SC to be relevant to exceptional humanitarian circumstances. • Edwards J in Tuitupo v The NZ Immigration And Protection Tribunal [2015] NZHC 3158 [10 December 2015] (non-resident deportation): [50] The recent Supreme Court decision in Guo also suggests that the fact of the offending, at least in terms of fault for deportation, is relevant to the exceptional circumstances assessment. The issue is not clear-cut.

S 207(1)(a) – to which stage are the factors relevant? Are the effects of deportation relevant to the first stage? • Edwards J in Tuitupo v The NZ Immigration And Protection Tribunal - “just because the effects of deportation are relevant to the third ingredient, does not necessarily mean they are irrelevant to the assessment of the first two ingredients. ” • Wu v Minister of Immigration & Ors [2016] NZHC 1309 [16 June 2016] - Ms Wu claimed the Tribunal frequently referred to effects of deportation at first stage of analysis.

S 207(1)(a) – to which stage are the factors relevant? • Palmer J in Wu v Minister of Immigration: [34] While the “sequential” versus “composite” terminology may be a useful label to characterise the different approaches of Elias CJ and the majority in Ye, it should not be a basis for reading in to the majority’s approach a more restrictive dimension than is there. Neither the Chief Justice’s approach nor the majority’s approach requires an artificially sequenced or separate consideration of the three ingredients. Neither prohibits the Tribunal from referring to the effects of deportation in determining whether circumstances are exceptional. Otherwise it would have been odd for the majority to have identified “[t]he flavour of the subsection as a whole, with its interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest. [36] I consider all that is required by the Supreme Court’s recipe for the humanitarian limb is that the Tribunal should use the right three ingredients. The relevant factors may well overlap. As Edwards J noted in Tuitupou “just because the effects of deportation are relevant to the third ingredient, does not necessarily mean they are irrelevant to the assessment of the first two ingredients” A practical approach is called for and that is what the Tribunal used here.

S 207(1)(a) – what are we left with? • Ye “sequential” two-stage process still applies, but the factors considered at each stage “overlap”. • Move away from “over refinement” towards a more “practical” approach (as per Palmer J) • The matter needs settling, particularly the issue of fault (i. e. Chan decision). • Until then, divergence of approaches may lead to unfair outcomes. • Practitioners should apply a ‘belt and braces’ approach by raising all factors at exceptional humanitarian circumstances stage.

S 207(1)(b) – public interest limb (b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand. • A general concern about the integrity of New Zealand’s borders and immigration system not enough to demonstrate it would be contrary to the public interest (Tipping J in Ye at [31]) • Unjust or unduly harsh to deport v public interest – the two tests are distinct but overlap and the factors viewed “through a different lens”, per Mc. Grath J in Helu v Immigration and Protection Tribunal and Minister of Immigration (SC 72/2013) [2015] NZSC 28 at [157] and [170]. Helu involved s 105 of Immigration Act 1987, but still authoritative. • Recidivism is a key factor. Majority in Helu approved Tribunal’s ‘sliding scale’ test, but only as a tool and not as determinative.

Judicial Review Challenges Immigration and Ministerial decision-making Richard Mc. Leod

The slow death of judicial review challenges to immigration and ministerial decision-making? 1. 2. 3. 4. 5. Judicial review of INZ decisions in offshore visa applications Judicial review of INZ decisions denying entry at the border Judicial review of Ministerial declines Use of judicial review to discover reasons for refusals of visas under s 61 Judicial review of INZ decisions refusing to cancel deportation orders under s 177 Gradual strangulation of judicial review prospects through the Act’s - • • • privative clauses (offshore visa applications ss 186 and 187) vesting of “absolute discretion” (s 11) statutory amendments severely restricting the scope of judicial review in deportation cases (s 177).

1. Judicial review of INZ decisions in offshore visa applications Yalan Liu & Ors v Minister of Immigration [2015] NZHC 2048 [27 August 2015] Urgent application for judicial review for 3 offshore Chinese temporary visa applicants seeking urgent flight to attend their father’s funeral and support their mother in NZ. INZ refused visas partly because their NZ-based parents had “immigrated illegally to New Zealand…” High Court Auckland: 1. Saw merit in scrutinising the INZ decision further: “[4]. It appeared to me that the reasoning was at least partly based on the conduct of the parents…. I therefore was minded to consider granting this extraordinary relief on the grounds of Associated Provincial Picture Houses Ltd v Wednesbury Corporation irrationality. ” (Useful for countering INZ “biological propensity for non-compliance” arguments) 2. However, found no jurisdiction due to s 186(3) of the Immigration Act: (3) A person may bring review proceedings in a court in respect of a decision in relation to a temporary entry class visa except if the decision is in relation to the— (a) refusal or failure to grant a temporary entry class visa to a person outside New Zealand…

Oosterveen v MBIE [2014] NZHC 1709 [22 July 2014] SMC residence approved on basis of NZ job offer, visa recorded “initial stay [is] subject to grant of entry permission”. Before departure, anonymous information that the job offer was false; INZ warned Oosterveen not to travel to NZ during investigation. Brought judicial review seeking various interim orders and declarations, claimed a residence visa gave her a “substantive legitimate expectation” she would be able to travel to and live in NZ. High Court Wellington dismissed application: 1. 2. 3. 4. the doctrine of “substantive legitimate expectation” requires a public authority to have given a clear and unambiguous undertaking. INZ had given no undertaking to Oosterveen about any unconditional right to enter New Zealand. the Act confers no right of entry into New Zealand. The regime of the Act prescribes a two-step process for all visa holders: the grant of a visa and the grant of entry permission. section 108(5)(a) and 108(6) entitles INZ to refuse entry permission in accordance with residence instructions applicable at the time of the application. Those instructions included provisions for false information. interim relief would usurp the statutory decisions INZ had to make and wouldn’t preserve her position – instead it would make her “significantly better off because she would be permitted entry to New Zealand in circumstances where she has no right to be granted permission to enter New Zealand”.

Kaur v MBIE [2016] NZHC 2595 [31 October 2016] Privative clauses in ss 186 and 187 of the Act (limits on review in temporary and residence cases) applied despite the court finding there had been an error of law on the part of a DDM in refusing to give reasons for his decision to decline a temporary visa to the applicant. Hinton J noted the general presumption that Parliament does not intend to exclude judicial review for error of law but found “Parliament may exclude review for error of law, with sufficiently clear legislative wording”. The privative clauses were sufficiently clear. “Ms Kaur can at any time re-apply for a temporary visa or residence visa and request ministerial intervention”

2. Judicial review of INZ decisions denying entry at the border Xue v The Chief Executive of the Ministry of Business, Innovation and Employment[2013] NZHC 3561 [20 December 2013] and Yu v Ministry of Business, Innovation and Employment[2015] NZHC 1953 [17 August 2015] On their “no” to the Zealand … 2013] / more Customs found Ms Yu’s cigarettes in Mr Xue’s luggage. Applications for interim orders in High Court Auckland by temporary visa holders. passenger arrival cards answered question: Are you bringing into New more than 200 cigarettes [Xue - than 50 cigarettes [Yu - 2015]. 848 cigarettes in Chinese tea tins in luggage and 480 Interviewed by immigration officers, found to have made false statements; informed their entry permission had been revoked and they were liable for turnaround. Both argued - (a) denied the right to seek legal advice (Yu referred to Udompun v Minister of Immigration (2003) 7 HRNZ 238 regarding rights of a detained person under s 23 of BORA). (b) the decisions refusing entry permission were based on irrelevant considerations (Xue), failure

2. Judicial review of INZ decisions denying entry at the border (cont. ) The Crown in Yu referred to Instruction Y 4. 15 (mandatory refusal of entry permission where a false declaration has been made on any part of the passenger arrival card “whether that declaration relates to an immigration matter or not”). Courts held: Both plaintiffs proved a “real contest” between themselves and INZ and a “respectable chance of succeeding”. In Xue the Court was “troubled” by the officer’s reliance on statements allegedly made by Xue that did not appear to be “of particular relevance to the inquiry”, while in Yu the Court found a real contest over whether the decision to refuse entry permission was “ irrational and inconsistent” and “whether (and … from what point) she was entitled to be advised that she had a right to obtain legal advice, and as to whether she was denied access to legal advice”.

Judicial review of Ministerial declines – “absolute discretion” (ss 11, 16, 61, 378) Feifei Ning v Minister of Immigration [2016] NZHC 697 [15 April 2016] (s 378) Zhang v The Associate Minister of Immigration [2016] NZCA 361 [28 July 2016] (s 61) Singh v Associate Minister of Immigration [2016] NZHC 2888 [1 December 2016] (s 61) Mc. Kelvey v Minister of Immigration [2017] NZHC 659 [6 April 2017] (s 17, s 61)

Judicial review of Ministerial declines – “absolute discretion” (cont. ) Key points arising from decisions: • Section 61 “preserves to the executive the absolute discretion to intervene in the deportation process. It precludes formal application and the legitimate expectations associated with that act”; Zhang v The Associate Minister of Immigration [2016] NZCA 361 [28 July 2016], 38. • “…while a decision might involve absolute discretion and no requirement to provide reasons, it remains reviewable…. absolute discretion does not amount to absolute power, and the provisions do not constitute privative clauses. The Court will still turn its mind to whether, if an official has elected to consider an application, he or she has done so according to the law and that any statutory power has been exercised in good faith and for its proper purpose”; Feifei Ning v Minister of Immigration [2016] NZHC 697 [15 April 2016]. • By expressly not requiring an immigration officer to give reasons for any decision, Parliament has narrowed the scope of judicial review to a Wednesbury type assessment; Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592 [8 December 2015] (Court of Appeal); Feifei Ning v Minister of Immigration.

Judicial review of Ministerial declines – “absolute discretion” (cont. ) • The untrammelled nature of s 61’s absolute discretion “gives bleak prospects for judicial review unless Wednesbury unreasonableness can be identified”. Unless an “extraordinary circumstance” of Wednesbury unreasonableness is identified, the courts can’t intervene; Zhang v The Associate Minister of Immigration [2016] NZCA 361 [28 July 2016], 14. • Wednesbury unreasonableness “is conduct falling only within the narrow scope of a decision so unreasonable that no reasonable authority could ever consider imposing it”. That would include a decision “outside the limits of reason”, “so outrageous in its defiance of logic or of accepted moral standards”, or “so absurd that [the decision-maker] must have taken leave of his senses”; Singh v Associate Minister of Immigration [2016] NZHC 2888 [1 December 2016], 8, 25; Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545. • Error of law, taking into account irrelevant considerations and failing to take into account relevant considerations are not instances of Wednesbury unreasonableness or reviewable errors in the context of a decision under s 61; Singh v Associate Minister of Immigration [2016] NZHC 2888 [1 December 2016], 8, 25.

Judicial review of Ministerial declines – “absolute discretion” (cont. ) • In the absence of any reasons for a decision, it’s difficult to determine what has / hasn’t been considered. Consider what information was given to the Minister or DDM by the INZ Resolutions Ministerial Team. If that information showed no reference to, for example, international obligations, “an inference that the decision was made without requisite consideration could be sustained”; Feifei Ning v Minister of Immigration at [46]. • Judicial review proceedings “should not be brought simply because a reasonable decision maker might have come to a different decision…[particularly] in the case where the decision is at the decision maker’s absolute discretion”; Feifei Ning v Minister of Immigration [2016] NZHC 1856 [10 August 2016], 14. • A failure to defer to the views of the Family Court as to the best interests of a NZ citizen child affected by deportation does not invalidate a Minister or DDM’s refusal to intervene: “… it would be an abdication of his independent assessment function if the Family Court’s parenting orders, based on the perceived best interests of the child in isolation from other concerns, could have an immutable importance in the very distinct immigration context …. ” Feifei Ning v Minister of Immigration at [46].

Judicial review of Ministerial declines – “absolute discretion” (cont. ) • An obligation to record reasons is not the same as an obligation to give reasons. Failure by the Minister / DDM to record reasons might be an administrative error but “in the context of the exercise of an absolute discretion, and the limited role of judicial review arising as a result, the error is not material”. Nor is it conduct breaching BORA natural justice rights – what constitutes natural justice “depends upon context” and this context is an absolute discretion; Zhang v The Associate Minister of Immigration [2016] NZCA 361 [28 July 2016], 27, 28. • There’s no point arguing that “no reasonable Minister or DDM could have declined” a special direction request or a s 61 request when there clearly are factors present that militate against a visa being granted (e. g. concealment of relevant information, adverse character or medical issues): “I am satisfied that on the material available to the Minister’s delegate, it was reasonably open to him to decline Mrs Mc. Kelvey’s request for a visa and a special direction to overcome her non-eligibility under s 15 of the Act”; Mc. Kelvey v Minister of Immigration [2017] NZHC 659 [6 April 2017], 63.

Use of judicial review to discover reasons for ministerial refusals of visas under sections 61 and 378 (discovery and cross-examination) 1. Applications for discovery of reasons Cao v MBIE [2014] NZHC 1551, [2014] NZAR 871 Fogarty J allowed an application for discovery of the reasons Recorded by an immigration officer for a refusal to grant a visa under s 61: “[38] – [39] … There is a very real distinction between the ability of private individuals to require information on immigration files and the ability of the High Court, seized with an application for judicial review, to know what the reasons for the decision are, particularly when the Court has evidence that there will be reasons, because of an internal circular requiring those to be written down…. The Court will examine those reasons taking into account the “absolute discretion” conferred on the decision-maker by the statute…. ”

Applications for discovery of reasons (cont. ) Zhang v The Associate Minister of Immigration [2016] NZCA 361 [28 July 2016] Court of Appeal found at [25] that while the High Court can require the discovery of reasons recorded pursuant to internal administrative practice, that is for “the limited purpose the Judge identifies: to enable the Court to exercise its jurisdiction properly. In the context of an absolute discretion, that means considering the existence of Wednesbury unreasonableness. It does not follow that the absence of recorded reasons amounts to reviewable error …” On Cao, Court held: “[26] We make it clear that Cao is not authority for the proposition that any applicant for judicial review of a s 61 decision is entitled to discovery of recorded reasons. That would undermine the statutory scheme that reasons do not have to be given and cannot be obtained under the Official Information Act. In our view, discovery should not be ordered unless the applicant can point to a real risk that Wednesbury unreasonableness is present”.

Applications for discovery of reasons (cont. ) Mc. Kelvey v Minister of Immigration [2017] NZHC 659 [14 March 2017] Citing Cao, Mc. Kelvey sought discovery of the 1 page document containing reasons for the Minister of Immigration’s refusal to grant her a visa, arguing that Wednesbury unreasonableness was present because (a) INZ delays in processing meant she lost her chance to seek a reconsideration and (b) DDM hadn’t had regard to the evidence that she was a victim of a scam. Court cited both Cao and Zhang but found that Mc. Kelvey’s consultant had contributed to the processing delays, and that her version of events was before the DDM. Court noted at [32]: “Had there been any real doubt whether the full position was put before the DDM, I would have allowed the application for discovery”.

2. Subpoenas and Cross-examination Singh v The Associate Minister of Immigration [2016] NZHC 1941 [19 August 2016] Interlocutory application for order to subpoena Minister Craig Foss for cross-examination over his decision refusing a s 61 request. Court cited Deliu v New Zealand Law Society and Kaur v The Ministry of Business, Innovation and Employment: • • it is “… well established that the relevant test is whether cross examination is necessary, not whether it is helpful. The requirement … results in leave to cross-examine being granted ‘only on rare occasions when required by the interests of justice’. . it would only be in an exceptional case that it would ever be appropriate to compel the presence before the Court of a decision maker in judicial review proceedings. (Deliu v NZLS) “… in the context of review of a decision under a section of the Act which provides that a decision maker does not have to give reasons for the decision …. cross examination for the purpose of eliciting reasons for the decision may undermine the statutory provision” (Kaur v MBIE citing Court of Appeal in Singh v Chief Executive of MBIE) Held: proposed questions of Minister Foss (mostly directed at what he read and took into account or failed to take into account) were all unnecessary. Application refused.

Subpoenas and Cross-examination (cont. ) Kaur v The Ministry of Business, Innovation and Employment & Ors[2016] NZHC 872 [3 May 2016] From offshore, Kaur requested s 378 special direction from the Minister of Immigration for “a visa”. A DDM declined the request. Kaur sought to cross-examine the DDM. Court ruled out all proposed lines of cross-examination except that of determining if the DDM had correctly distinguished whether Ms Kaur actually had a character issue before deciding whether to grant her a character waiver (INZ Resolutions Team briefing paper had only told the Minister Kaur needed a character waiver). Thomas J found (at [73] - [74]) this limited line of cross-examination was “necessary to enable the application for review to be decided properly and fairly” and that it was “… not contrary to the policy position behind the “absolute discretion” given to designated decision makers. ” (In the substantive decision that followed Hinton J found the failure to give reasons under s 76 was an error of law but found that s 72 and s 76 privative clauses applied to bar review).

Judicial review of INZ decisions refusing to cancel deportation under s 177 The cases mainly concern INZ’s recording obligations in s 177 “humanitarian” interviews. Singh v Chief Executive of The Ministry of Business, Innovation and Employment [2015] NZCA 592 [8 December 2015] Makes important observations in respect of the correct approach to s 177: • The IO’s discretion to cancel a deportation order is absolute. • If the IO does consider cancelling a deportation order, the IO must “have regard to” any relevant international obligations (s 177(3)). What, if any, weight the IO attaches to those obligations is a matter for the IO to decide. • Section 177(3)(b) negates any obligation to apply any particular test or inquire into the circumstances, and was designed to reverse the “future effect” of the Supreme Court decisions in. Ye v Minister of Immigration and Huang v Minister of Immigration.

Judicial review of INZ decisions under s 177 • The IO is not obliged to give reasons for his or her decision, whichever way it goes. • Section 23 of the Official Information Act 1982 (right of access by a person to reasons for decisions affecting that person) is expressly ousted. • To the extent that the IO does have regard to international obligations, the IO is obliged under s 177(5) to record a description of them and of the (related) facts about the deportee’s personal circumstances. • While s 177 has narrowed the scope of judicial review to a Wednesbury unreasonableness inquiry, that is still subject to the court being satisfied that compliance with the requirements of s 177 has been achieved – especially whether the recording obligations in s 177(5) have been met: “(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record— (a) a description of the international obligations; and (b) the facts about the person’s personal circumstances” • A number of judgments since Singh have involved challenges regarding an IOs’ recording obligations under s 177(5). Two are noteworthy:

Judicial review of INZ decisions under s 177 Li v Ministry of Business, Innovation and Employment [2016] NZHC 1788 [3 August 2016] Davison J: application failed on all grounds of review except that the immigration officer’s decision failed to comply with the reporting obligation in s 177(5). Found that “ any failure by an IO to record the requisite information will amount a reviewable error of law”. Remitted the matter back to INZ to enable the IO to comply with the recording obligation of s 177(5). Defang Dong v The Chief Executive of The Ministry of Business, Innovation and Employment[2016] NZHC 1468 [30 June 2016] Davidson J: merely referring to “various sources of information, without identifying the most basic relevant facts drawn from them”, does not comply with the statutory obligations under s 177(5). Ordered a stay on Mr Dong’s deportation pending the Ministry “ stating the relevant facts” in line with s 177(5).

Conclusions on judicial review challenges of INZ / ministerial decisions Judicially reviewing offshore visa declines … • Not worth the fight. Judicially reviewing INZ decisions denying entry at the border … • No “absolute discretion” or privative clauses typically apply to airport entry decisions. However, worthwhile enquiring into – especially denials of legal representation. Judicially reviewing Ministerial / DDM declines … • S 378 and s 61 “absolute discretion” removes grounds of legitimate expectation, taking into account irrelevant considerations and failing to take into account relevant considerations, and restricts review solely to Wednesbury unreasonableness. • Worth looking into what INZ Resolutions (Ministerial) Team gave the Minister. • Needs to be a highly compelling case to succeed on Wednesbury unreasonableness.

Conclusions on judicial review challenges of INZ / ministerial decisions (cont. ) Using judicial review to discover reasons for s 61 refusals of visas … • Discovery requires pointing to “a real risk that Wednesbury unreasonableness is present”. • Cross-examination of a Minister or DDM unlikely unless case is exceptional and crossexamination is necessary. In the context of “absolute discretion”, cross examination to elicit reasons for a decision may undermine the statutory provision. Judicial review of INZ decisions refusing to cancel deportation orders under s 177 • Courts will require proper compliance by INZ with requirements • Failures to comply with s 177(5) requirement have led to determinations being remitted back to INZ but only to enable an immigration officer to ensure compliance. • Consider is s 177 judicial review really worth it in the end?