IN THE COURT OF APPEAL OF NEW ZEALAND CA484/2014 [2015] NZCA 592 BETWEEN AND KULBIR SINGH AND NAVJOT KAUR Appellants CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent Hearing: 27 October 2015 Court: Counsel: Judgment: Harrison, Stevens and Wild JJ R J Hooker and E C Davis for Appellants I C Carter and IMG Clarke for Respondent 8 December 2015 at 2.30 pm JUDGMENT OF THE COURT A The appeal is dismissed. B The appellants are to pay the respondent s costs for a standard appeal on a band A basis plus usual disbursements. REASONS OF THE COURT (Given by Wild J) Introduction [1] On 14 October 2013 an immigration officer (IO), Mr Shand, made a decision under s 177 of the Immigration Act 2009 (the Act) not to cancel deportation orders made in relation to the appellants and two of their three children. SINGH v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2015] NZCA 592 [8 December 2015]
[2] The appellants appeal from Brewer J s dismissal, in a judgment he delivered in the High Court at Auckland on 14 August 2014, of their application for judicial review of Mr Shand s decision. 1 [3] The issues for decision on this appeal are: (a) Cross-examination: Did Brewer J err in declining to allow the appellants to cross-examine Mr Shand on his reasons for his decision under s 177? (b) Approach on review: Was Brewer J s approach in reviewing Mr Shand s s 177 decision erroneous? In particular: Did the Judge err in limiting his review to what Mr Shand had done in recording the relevant international obligations and the individual circumstances of the appellants and their children, to which he had regard? Did the Judge err in applying the orthodox reasonableness test rather than undertaking a broader assessment having regard to the relevant international obligations? [4] We next set out the factual background. Having done that, we will summarise the statutory framework, including setting out s 177 on which the appeal issues hinge. We will provide context to the enactment of s 177. All of that will enable us to deal with the two issues, which we do in reverse order. Factual background [5] Mr Hooker took no issue with the following background set out in the respondent s submissions: 2 4. The appellants arrived in New Zealand from India on 2 April 2004 with their three year-old son, Sumeet, on a two-week limited purpose 1 2 Singh v Chief Executive, Ministry of Business, Innovation and Employment [2014] NZHC 1916. Footnotes omitted.
visa for the purposes of a family reunion. Ms Kaur was eight months pregnant at the time (but this was not disclosed to Immigration New Zealand (INZ) upon application for the visa). The visas expired on 15 April 2004, but the family stayed. A week later, on 22 April 2004, Ms Kaur gave birth to a daughter, Amanpreet. Amanpreet is a New Zealand citizen under the law at the time of her birth, and hence is not liable for deportation. On 11 November 2006, Ms Kaur gave birth to another son, Sukhpreet. Because his parents were unlawfully in New Zealand at the time of his birth, Sukhpreet is not a New Zealand citizen. 5. On the day their limited purpose visa expired (15 April 2004), the appellants applied for a further limited purpose visa. This was declined. INZ advised them to depart New Zealand immediately and that failure to do so may result in deportation action being taken. In June 2004 Mr Singh applied for refugee status but this was declined and his subsequent appeal to the Refugee Status Appeals Authority was unsuccessful. Following a representation from Mr Singh in April 2007, the Minister of Immigration in June 2007 declined to intervene in his and the family s immigration matters. In March 2013, Mr Singh and Ms Kaur s requests for work visas (under s 61 of the Act) were declined. A further request to the Minister to intervene in April 2013 was also declined (in July 2013). 6. An immigration officer, Mr Shand, served deportation liability notices and deportation orders on Mr Singh and on Sumeet and Sukhpreet (served upon Mr Singh as the responsible adult for the children) on 10 September 2013 and on Ms Kaur on 19 September 2013. 7. As the deportation of the appellants and their two children raised issues relevant to New Zealand s international obligations, Mr Shand had to consider whether to exercise his discretion under s 177 of the Act to cancel the deportation orders. Mr Shand interviewed Mr Singh, Ms Kaur, and the three children, and received letters from the children and submissions from the appellants legal representatives. Mr Shand considered the submissions and researched information relating to education and health in the Punjab region and other immigration options for Amanpreet. Copies of the information he proposed to consider in making his decision under s 177 were sent to the appellant s legal representatives and they provided further submissions. 8. On 14 October 2013, after considering all information provided and the research material he had compiled, Mr Shand decided not to cancel the deportation orders in relation to Mr Singh, Ms Kaur, Sumeet, and Sukhpreet. Mr Shand completed the decisions pages of the Record of Personal Circumstances Interview form for Mr Singh and Ms Kaur. Mr Shand listed the international conventions and material he had considered. Mr Shand elected not to give reasons for his decisions. 9. After the appellants filed judicial review proceedings, it was brought to Mr Shand s attention that there was no separate recording of the decisions in respect of Sumeet and Sukhpreet. Mr Shand says he did
make a decision in relation to Sumeet and Sukhpreet in October 2013 but the more age-appropriate template he used did not have decision pages. As a result, in December 2013 Mr Shand reconsidered the deportation decisions for the whole family (since INZ s policy is that deportation decisions should take into account the circumstances of the family group as a whole). Before doing so, Mr Shand gave the appellants an opportunity to provide any further submissions, but none were received. 10. On 28 January 2014 Mr Shand re-read all the material he had previously compiled and the submissions received in October 2013. Mr Shand decided not to cancel the deportation orders for Mr Singh, Ms Kaur, Sumeet, and Sukhpreet. Mr Shand elected not to give reasons, but the decisions record the international conventions and material he considered. Statutory framework [6] The first of the preliminary provisions, in pt 1 of the Act, is s 3. Section 3(1) provides: 3 Purpose (1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals. [7] Section 3(2) then summarises the system established by the Act to achieve that purpose. That system includes, in s 3(2)(e)(ii), prescribing: for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements [8] Section 9, and particularly s 11, both also in pt 1, are relevant to this case. Section 9 spells out the meaning, in the Act, of unlawfully in New Zealand. Section 11 defines the meaning of absolute discretion, a phrase used in s 177(1). All the material part of s 11 is duplicated in s 177(2), (3)(b) and (4). [9] Part 6 of the Act deals with deportation. It begins with this section: 153 Purpose of Part (1) The purpose of this Part is to support the integrity of New Zealand's immigration system and the security of New Zealand by providing for the deportation of certain persons from New Zealand. (2) To this end, this Part
(a) (b) (c) (d) (e) specifies when a person is liable for deportation; and specifies how that liability must be communicated to the person; and sets out the consequences of the liability for the person; and specifies the only situations in which an appeal right exists in respect of that liability; and provides for the person's deportation to be executed without the need for further inquiries if no appeal is made or an appeal is unsuccessful. [10] Pursuant to that framework, ss 154 to 169 stipulate the various situations in which a person becomes liable for deportation and the effect of a person being so liable. Sections 170 and 171 deal with notification of liability for deportation and ss 172 to 174 with cancellation or suspension of deportation liability. Sections 175 to 176 then stipulate when a deportation order may be served and the content of the order. [11] Section 177 is positioned at this point in the Act. It provides: 177 Deportation order may be cancelled (1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies. (2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations. (3) If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise (a) (b) may make a decision as he or she thinks fit; and in doing so, is not under any obligation, whether by implication or otherwise, (i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or
(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person. (4) Whether or not an immigration officer considers cancelling a deportation order, (a) (ab) (b) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and section 23 of the Official Information Act 1982 does not apply in respect of the decision. (5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record (a) (b) a description of the international obligations; and the facts about the person's personal circumstances. [12] Three points emerge from the framework of the Act. First, the Act aims to balance New Zealand s interest (in not permitting people to be in this country unlawfully) with the rights of individuals. In this case, Mr Hooker focused his argument on the rights of Amanpreet, the one child who is a New Zealand citizen. 3 Doubtless that was because the other four members of the family have limited rights, and in particular no right under the Act to remain in New Zealand. They are all in this country unlawfully. [13] Second, pt 6 of the Act, dealing with deportation, has the purpose of supporting the integrity of New Zealand s immigration system. As mentioned in [7] above, that system is summarised in s 3(2). As s 3(2)(a) spells out, this country s immigration system requires persons who are not New Zealand citizens to hold a 3 Mr Hooker summarised these as: Amanpreet has the right to remain in New Zealand, to be educated in New Zealand, to have employment opportunities in New Zealand, to have access to healthcare which New Zealand citizens have, to enjoy the quality of housing in New Zealand, and to travel abroad as a New Zealand citizen. She has a right to be raised by her parents, to enjoy family life with her parents and her siblings. If her parents are removed from New Zealand and she also leaves New Zealand she will lose all those benefits. If she remains in New Zealand but her parents and siblings leave New Zealand she is disconnected from her parents and her siblings. She is deprived of her family life: International Covenant on Civil and Political Rights [999 UNTS 171] (opened for signature 16 December 1966, entered into force 23 March 1976), art 23.
visa to travel to New Zealand and to hold a visa and be granted entry permission to stay in New Zealand. [14] Third, s 177 is toward the end of pt 6. It is positioned after ss 175 and 175A, which deal with service of a deportation order, and before s 178, which is headed Executing deportation order. Mr Hooker rightly accepted s 177 provides a last ditch opportunity to have cancelled a deportation order made as a result of the detailed and careful deportation process set out in pt 6 of the Act. Significantly, each of the earlier sections in pt 6 dealing with liability for deportation affords a right of appeal to the Immigration and Protection Tribunal. 4 [15] That, then, is the context in which the provisions of s 177 must be interpreted. We note seven points about s 177. First, the IO s discretion is absolute: s 177(1). That has the consequences spelt out in s 11 and again in s 177(3) and (4). [16] Second, the section is triggered by the provision to the IO of information concerning the deportee s personal circumstances information that is relevant to New Zealand s international obligations : s 177(2). [17] Third, if the IO does consider cancelling a deportation order, the IO must have regard to any relevant international obligations: s 177(3). Because those words had been considered in many earlier cases, it can confidently be said Parliament selected them deliberately. In his judgment in this Court in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries, McMullin J said the words: 5 require an open and receptive mind which is none the less free to disregard the submissions made if other relevant considerations require it. This Court subsequently said much the same thing in Te Runanga O Raukawa Inc v Treaty of Waitangi Fisheries Commission: 6 4 5 6 The exception is s 163: Deportation liability of persons threatening security. New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 566. Te Runanga O Raukawa Inc v Treaty of Waitangi Fisheries Commission CA178/97, 14 October 1997 at 8.
The words have regard to mean simply that the [decision-maker] must consider the statutory criteria in making its decision under that section. But what, if any, weight the [decision-maker] gives to a particular criterion in the particular is for the [decision-maker] to decide. All that is necessary is for the decision maker to turn its mind to each criterion The words have regard to have also been considered in several High Court cases, including those collected by Gallen J in Greenpeace New Zealand Inc v Minister of Fisheries and by Wylie J in New Zealand Co-operative Dairy Company Limited v Commerce Commission. 7 [18] Fourth, the negating, in s 177(3)(b), of any obligation to apply any particular test or inquire into the circumstances annulled the effect of the decisions of the Supreme Court in Ye v Minister of Immigration and Huang v Minister of Immigration. 8 Both those cases involved Chinese citizens, unlawfully in New Zealand, but with New Zealand citizen children. In each case IOs had conducted humanitarian interviews before deciding, under s 58 of the Immigration Act 1987, not to cancel the removal orders. Section 58 was the equivalent of the current s 177. The Supreme Court held the decisions under s 58 erred in not applying the exceptional circumstances of a humanitarian nature test for appeals to the Removal Review Authority under s 47(3) of the 1987 Act (now s 207 of the 2009 Act). The Court decided there was an obligation on IOs to cancel removal orders when s 47(3) circumstances were present. [19] Parliament s response was to amend s 58, effective from 29 November 2009, by removing any obligation on the IO making the decision to consider the s 47(3) criteria in that way. Section 177(2) to (5) essentially mirrors those amendments. The Explanatory Note to the Supplementary Order Paper that introduced those amendments to the Bill expressly stated the amendments were to reverse the future effect of Ye and Huang. 9 7 8 9 Greenpeace New Zealand Inc v Minister of Fisheries HC Wellington CP492/93, 27 November 1995 at 25 26; New Zealand Co-operative Dairy Company Limited v Commerce Commission [1992] 1 NZLR 601 (HC) at 612 613. Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104; Huang v Minister of Immigration [2009] NZSC 77, [2010] 1 NZLR 135. Supplementary Order Paper 2009 (32) Immigration Bill 2007 (132 2) at 31 and 105.
[20] This Court acknowledged the impact of those changes in Parmanadan v Minister of Immigration. 10 After referring to the Supplementary Order Paper, the Court observed: 11 It seems clear that the amendments were intended to reduce the scope for a challenge to s 58 decisions. As well, the amendments represent a sharp legislative rejection of the necessity to apply the section 47(3) test at the section 58 stage of the process. [21] More recently, in Chief Executive of the Ministry of Business, Innovation and Employment v Liu, the Court stated, of the amended legislation: 12 We emphasise too that under s 177 the immigration officer is not required to apply any particular test; it must follow that he or she need not attach particular weight to any given international obligation. [22] Fifth, the IO is not obliged to give reasons for his or her decision, whichever way it goes: s 177(4)(a). [23] Sixth, application of s 23 of the Official Information Act 1982 (right of access by a person to reasons for decisions affecting that person) is expressly ousted: s 177(4)(b). [24] Seventh, to the extent the IO does have regard to international obligations, the IO is obliged to record a description of them and of the (related) facts about the deportee s personal circumstances: s 177(5). Issue one: Was Brewer J s approach on review erroneous? The judgment [25] Brewer J recorded Mr Hooker submitting: 13 this case puts the best interests of the citizen child at the centre of a decision to deport. If the best interests of the citizen child are to stay in the country of citizenship then, although that will not be an inevitably decisive factor, it almost always will be. 10 11 12 13 Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424. At [7]. Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37, [2014] 2 NZLR 662 at [28] (footnote omitted). Singh v Chief Executive, Ministry of Business, Innovation and Employment, above n 1, at [19].
[26] The Judge dealt with this argument in these two paragraphs: [23] In my view, Mr Shand did have an obligation under [the United Nations Convention on the Rights of the Child (UNCROC)] to consider the effect on Amanpreet if her family were deported. [14] He realised that. He identified [UNCROC] as containing applicable international obligations and he listed the applicable articles, including art 3. In the forms he completed setting out his decisions on the family members, he lists under the facts about personal circumstances, Child interview with NZ citizen child Amanpreet Kaur from 19/09/2013. He also spoke to Mrs Kaur, in particular, at length about Amanpreet s position, and recorded her answers in the record of her personal circumstances. He received submissions from lawyers acting for the family. In his affidavit, he deposes: I considered the submissions and researched information relating to education and health in the Punjab region and other immigration options for Amanpreet Singh, the New Zealand citizen child. [24] In terms of process, Mr Shand demonstrates that he turned his mind to Amanpreet s situation. Against the background of absolute discretion and no obligation to give reasons, that is enough. (footnote omitted) Submissions on appeal [27] Mr Hooker submitted these paragraphs demonstrate an erroneous approach by the Judge to the review of Mr Shand s decision. In the course of oral argument, responding to a question from the Bench as to what the High Court should have done, Mr Hooker suggested three steps were required: (a) Determine what rights were being asserted (as noted in [12] above, Mr Hooker focused on Amanpreet s rights). (b) Decide whether those rights were being violated. (c) If yes to (b), decide whether the violation was justified. In other words, carry out a proportionality review. [28] Mr Hooker supported this approach by relying on several English decisions, one Irish one, and on the judgment of Baragwanath J in this Court in Tamil X v 14 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
Refugee Status Appeals Authority. 15 First, Mr Hooker cited this passage from the judgment of Baroness Hale in the House of Lords in Belfast City Council v Miss Behavin Ltd: 16 The first, and most straightforward, question is who decides whether or not a claimant s Convention rights have been infringed. The answer is that it is the court before which the issue is raised. The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account. It is unnecessary to go into the facts of Miss Behavin Ltd, save to mention that it concerned an alleged breach of the respondent company s right to freedom of expression under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention), incorporated into English domestic law as schedule 1 to the Human Rights Act 1998 (UK). 17 [29] Next, from the House of Lords decision in R (Nasseri) v Secretary of State for the Home Department, Mr Hooker singled out this passage from the leading judgment of Lord Hoffmann: 18 when breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong. [30] Lord Hoffmann had earlier explained: 19 It is understandable that a judge hearing an application for judicial review should think that he is undertaking a review of the Secretary of State s decision in accordance with normal principles of administrative law, that is to say, that he is reviewing the decision-making process rather than the merits of the decision. In such a case, the court is concerned with whether the Secretary of State gave proper consideration to relevant matters rather than whether she reached what the court would consider to be the right answer. But that is not the correct approach when the challenge is based upon an alleged infringement of a Convention right. 15 16 17 18 19 Tamil X v Refugee Status Appeals Authority [2009] NZCA 488, [2010] 2 NZLR 73. Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420 at [31]. Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221 (opened for signature 4 November 1950, entered into force 3 September 1953). R (Nasseri) v Secretary of State for the Home Department [2009] UKHL 23, [2010] 1 AC 1 at [14]. At [12].
[31] Lord Hoffmann had then cited this passage from the judgment of Lord Bingham in R (SB) v Denbigh High School Governors: 20 the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant s Convention rights have been violated. [32] Mr Nasseri was an Afghan national who had entered the United Kingdom illegally in 2005 and then claimed asylum. Investigation revealed his fingerprints matched those of a person who had claimed asylum in Greece. Accordingly, Greece was invited to take, and took, responsibility for dealing with his claim to asylum. Mr Nasseri argued his removal to Greece would be incompatible with his rights under art 3 of the European Convention, essentially on the basis that it would result in his being denied a fair process for determining his claim to asylum. [33] Mr Hooker also referred, several times, to the House of Lords decision in ZH (Tanzania) v Secretary of State for the Home Department. 21 After arriving in England aged 20, ZH gave birth to two children who were British citizens, because they were born there and their father was British. ZH had what the Court described as an appalling immigration history, including making a number of fraudulent claims for asylum. 22 She appealed against a decision to deport her, claiming her removal would constitute a disproportionate interference with her right to respect for her private and family life, guaranteed by art 8 of the European Convention. [34] Baroness Hale delivered the leading judgment. She began: 23 The over-arching issue in this case is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this, however, is a much more specific question: in what circumstances is it permissible to remove or deport a non-citizen where the effect will be that a child who is a citizen of the United Kingdom will also have to leave? 20 21 22 23 At [12], citing R (SB) v Denbigh High School Governors [2006] UKHL 15, [2007] 1 AC 100 at [29]. ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. At [5]. At [1].
[35] After considering the domestic law, the Strasbourg cases, UNCROC and the best interests of the child, Baroness Hale turned to apply the principles she had extracted. She said this: 24 We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother s appalling immigration history and the precariousness of her position when family life was created. But, as the tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. In those circumstances, the Secretary of State was clearly right to concede that there could be only one answer. [36] As we explain in [42] to [50] below, the approach demonstrated by these English cases, relied on by Mr Hooker, has no application in the immigration context in New Zealand. Those cases therefore do not assist the appellants. [37] Mr Hooker also referred to Mallak v Minister for Justice Equality & Law Reform, a decision of the Irish Supreme Court, in support of his submission that Brewer J could not properly review Mr Shand s decision without knowing his reasons. 25 Although the relevant Minister in that case similarly had absolute discretion in determining an application for naturalisation, that discretion was in fact tempered by a number of statutory preconditions. Given the express language of s 177(4)(a), Mallak is not in point and we say no more about it. [38] Lastly, Mr Hooker relied on the judgment of Baragwanath J in this Court in Tamil X v Refugee Status Appeals Authority. 26 That was an appeal turning on the High Court s finding that the Refugee Status Appeals Authority (RSAA) had properly directed itself in law as to the interpretation of serious reasons for considering the appellant was complicit in crimes against humanity or had 24 25 26 At [33]. Mallak v Minister for Justice Equality & Law Reform [2012] IESC 59. Tamil X v Refugee Status Appeals Authority, above n 15.
committed a serious non-political crime: Relating to the Status of Refugees. 27 art 1F(a) and (b) of the Convention [39] This Court unanimously held the High Court had erred in concluding it was open to the RSAA, on the evidence before it, to find there were serious reasons for considering the appellant was complicit in or had committed relevant crimes. Hammond and Arnold JJ approached the issue on the orthodox judicial review ground of error of law. 28 [40] Baragwanath J came to the same result by two different, though somewhat entwined, routes. The first approach was based on essentially the same orthodox error of law ground. Because there was a condition precedent to the exercise of the relevant statutory power, the Judge considered the Court should determine for itself whether that requirement was met. The second route involved the Judge drawing on the approach he had taken in the High Court in Mihos v Attorney-General, 29 and on several English cases including R (Nasseri) v Secretary of State, 30 Canadian cases including Dunsmuir v New Brunswick, 31 and the late Professor Taggart s article entitled Proportionality, Deference, Wednesbury. 32 [41] That second approach involved Baragwanath J rejecting Wednesbury in favour of correctness as the standard for judicial review of a decision affecting a person s fundamental human rights. 33 Insofar as the Judge did that, his remarks are not part of the ratio decidendi of Tamil X. They are obiter observations, not supported by the other two members of that Court. Nor, to the best of our knowledge, and, we assume, counsel s, have they received subsequent endorsement. For those reasons we do not consider they provide authoritative support for Mr Hooker s argument here. 27 28 29 30 31 32 33 Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951, entered into force 22 April 1954). Tamil X v Refugee Status Appeals Authority, above n 15, in particular at [88], [93] [112] and [119] [124]. Mihos v Attorney-General [2008] NZAR 177 (HC) at [107]. (When referring to Mihos, the Judge did not acknowledge it was his own decision). R (Nasseri) v Secretary of State, above n 18. Dunsmuir v New Brunswick [2008] 1 SCR 190. Michael Taggart Proportionality, Deference, Wednesbury [2008] NZ L Rev 423. Tamil X v Refugee Status Appeals Authority, above n 15, in particular at [271] and [275].
Test in New Zealand for judicial review of an immigration decision [42] In 2008 this Court considered the correct approach to judicial review of an immigration decision, in Huang v Minister of Immigration. 34 Delivering a judgment for himself and Hammond J, William Young P said: [63] In England, immigration decisions are subject to a proportionality analysis (see, for instance, Beoku-Betts v Secretary of State for the Home Department [2008] 3 WLR 166). But we do not see this approach as applicable in this case. [64] In the first place, the English proportionality approach is applied in a legislative and human rights environment which is very much influenced by s 6 of the Human Rights Act 1998 (UK) and the European Convention on Human Rights (see the discussion of this by Wild J in Wolf v Minister of Immigration [2004] NZAR 414 at paras [25] [36]). We operate in a different legislative and human rights environment. [43] Last year, in Chief Executive of the Ministry of Business, Innovation and Employment v Liu, 35 this Court was dealing, as we are here, with judicial review of a decision under s 177 of the Act. After describing the way in which s 177 operated, the Court observed: Manifestly, s 177 offers an inauspicious setting for judicial review but, as Whata J recognised, the courts may at least review an immigration officer s decision for compliance with these requirements. (footnotes omitted) [44] Two earlier decisions of the High Court had also emphasised the limited scope for judicial review of a s 177 decision. In Babulal v Chief Executive, Department of Labour Lang J described the scope for judicial review of decisions under s 177 as extremely limited. 36 He expressed the view that Parliament had chosen: 37 to restrict the level of judicial scrutiny to which decisions under s 177 may be subject. This suggests that, where an immigration officer makes a decision that requires him or her to have regard to New Zealand s international obligations, Parliament intended the record of the decision to 34 35 36 37 Huang v Minister of Immigration [2008] NZCA 337, [2009] 2 NZLR 700. Chief Executive of the Ministry of Business, Innovation and Employment v Liu, above n 12, at [8]. Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29 September 2011 at [29]. At [36].
contain sufficient information to allow the decision to be judicially reviewed within a very narrow compass. It accepted that the court must have sufficient information to be able to determine whether the immigration officer who made the decision took into account the international obligations relevant to the particular case. [45] Similarly, in Nair v Chief Executive of the Department of Labour, Woodhouse J took the view that an IO making a decision under s 177, although obliged to have regard to any relevant international obligations, was not obliged to give effect to [those] obligations in some particular way, or at all. 38 [46] We agree with those observations. Section 177 has severely circumscribed the scope for judicial review, effectively limiting it to a Wednesbury unreasonableness inquiry. This is consistent with this Court s approach in Puli uvea v Removal Review Authority and Huang v Minister of Immigration. 39 In Puli uvea the Court said: 40 The question which we have to address is whether there is any reviewable error of law in the decisions that have been taken or one of the decisions is so unreasonable that no reasonable immigration officer could have come to it. [47] In Huang the Court said: [67] As to intensity of review, we therefore propose to follow the approach adopted in Puli uvea. The Court should ensure that the best interests of an affected child were genuinely taken into account as a primary consideration but, beyond that, how conflicting considerations are weighed is for the decision maker and not the Court unless unreasonableness considerations can be successfully invoked. [48] The point the Court was making in this passage in Huang was amplified by the Court in Liu: 41 [15] Article 3.1 [of UNCROC] provides that in all actions by state agencies concerning children, the best interests of the child shall be a primary consideration. Best interests is a broad concept 42 which 38 39 40 41 42 Nair v Chief Executive of the Department of Labour [2013] NZHC 358 at [31]. Puli uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA); Huang v Minister of Immigration, above n 34. At 522. Chief Executive of the Ministry of Business, Innovation and Employment v Liu, above n 12 at [15]. United Nations High Commissioner for Refugees UNHCR Guidelines on Determining the Best Interests of the Child (May 2008) at [1.1].
obviously extends to a child s interest in not being separated from its parents except for good cause. Under art 3 the child s interests are not the primary consideration, still less the paramount consideration as they would be in proceedings about care of children within the jurisdiction. In an immigration setting other considerations, such as the public interest, may be no less important. 43 The purpose provision of the 2009 Act emphasises that point, providing that the Act is intended to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals. 44 (footnotes in original) [49] As Mr Carter pointed out, although the English Courts, consistent with art 3.1 of UNCROC, acknowledge that the best interests of a child are a primary consideration, they actually elevate them to the primary consideration. This is neatly exemplified by what Baroness Hale said in ZH (Tanzania) in the passage cited at [35] above. [50] As this Court observed in the passage in Liu set out in [43] above, a reviewing court can check the IO s compliance with the requirements of s 177, particularly s 177(5). Beyond that, the fact that the IO is not obliged to give reasons for his or her decision represents an obvious obstacle to the court reviewing whether the best interests of an affected child have genuinely been taken into account by the IO. Our assessment [51] In our view, there is no error in Brewer J s approach in reviewing Mr Shand s s 177 decision. We agree with the Judge s reasoning in the two paragraphs we have set out in [26] above. Accordingly, we answer this first issue No, Brewer J s approach on review was not erroneous. [52] Mr Hooker had a fall back position. Even if Wednesbury is the correct approach, he argued the IO s decision in this case was unreasonable. Based on Amanpreet s rights, and the facts (in particular, that the appellants have no criminal convictions and have done nothing wrong other than remain in New Zealand illegally), Mr Hooker submitted only one decision was reasonable and therefore 43 44 Ye v Minister of Immigration, above n 8, at [24] [25]. Immigration Act 2009, s 3(1).
available. Again, that submission wrongly elevates the best interests of Amanpreet to the primary consideration, a point we have addressed at [47] to [49] above. For that reason we reject this fall back submission. Issue two: Did Brewer J err in not permitting cross-examination? [53] Brewer J stated the test thus: 45 in a judicial review proceeding, cross-examination will not be permitted unless it is clearly necessary to enable the case to be disposed of fairly. [54] Consistent with the approach to judicial review for which he contended, Mr Hooker submitted the High Court had no ability to review Mr Shand s decision in a meaningful way without knowing Mr Shand s reasons. Cross-examination should therefore be permitted to elicit his reasons. [55] Mr Hooker submitted that not being obliged to give reasons is not the same as not having to have reasons. He relied on Cao v Ministry of Business, Innovation and Employment, in which Fogarty J granted an application for discovery of the reasons for refusal of a visa. 46 That decision turned on the interpretation of s 61 of the Act, which also provides the Minister has absolute discretion, but is in very different terms from s 177. It does not contain any equivalent limitations on scrutiny of a Minister s decision to those in s 177(3) to (5). Nor does it need to be interpreted in the light of the legislative history to s 177 we have outlined in [18] [21] above. [56] In his written submissions, Mr Hooker had also submitted that Mr Shand should have given reasons as a matter of natural justice or sound administrative practice. 47 Mr Hooker did not advance this submission in oral argument. We assume that was because s 177(1) (the absolute discretion) and s 177(4)(a) (reasons not required) render untenable a submission that natural justice requires the giving of reasons. And the High Court has so held, in a series of decisions. 48 45 46 47 48 Singh v Chief Executive, Ministry of Business, Innovation and Employment, above n 1, at [13]. Cao v Ministry of Business, Innovation and Employment [2014] NZHC 1551. In particular, Mr Hooker relied on Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817. Ly v Minister of Immigration HC Auckland CIV-2011-404-1540, 5 May 2011; Oajwajee v
[57] Our rejection of the approach to judicial review for which Mr Hooker had argued necessarily entails rejection of his submission that the Judge had erred in not allowing him to cross-examine Mr Shand. [58] There is now clear guidance as to when cross-examination should be permitted in judicial review. In Stratford Racing Club Inc v Adlam this Court observed: 49 Cross-examination will always be permitted where it is necessary to enable the application for review to be decided properly and fairly [59] In a subsequent case, the Supreme Court, in a brief decision declining leave to appeal, observed: 50 [Mr Geary] now seeks leave for a second appeal to this Court. He wishes to challenge the long-standing rule that leave is necessary to cross-examine a deponent in a judicial review proceeding. We are not persuaded that such a challenge has any prospect of success. The approach which has been taken for many years in New Zealand, namely that cross-examination in judicial review proceedings will be permitted only on rare occasions when required by the interests of justice, is soundly based. Moreover, a similar approach applies in comparable jurisdictions. Natural justice considerations and similar concerns are adequately met by the Court s responsibility to grant leave where it is in the interests of justice. That is to say the same thing in different words. [60] Fairness in other words what the interests of justice require was exactly the test Brewer J applied in declining leave to cross-examine: 51 [16] Mr Shand annexes to his affidavit copies of the forms he completed in which he listed the international obligations he found to be relevant and the factual material he considered. In my view, cross-examination for the purposes identified by Mr Hooker was not clearly necessary to enable the case to be disposed of fairly in the context of s 177. [61] We agree with the Judge s view as to the result of applying the fairness/interests of justice test in this case: 49 50 51 Department of Labour HC Auckland CIV-2011-404-1771, 1 April 2011; Ou v Department of Labour HC Auckland CIV-2010-404-2730, 12 May 2010 at [22]. Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 329 at [63]. Geary v The Psychologists Board [2009] NZSC 67, (2009) 19 PRNZ 415 at [1] (footnote omitted). Singh v Chief Executive, Ministry of Business, Innovation and Employment, above n 1.
[17] In short, Mr Shand s affidavit tells me what he did. Why he did what he did, and how he did what he did, will not assist me in deciding whether or not he complied with his obligations under s 177. [62] There is the further, if somewhat obvious point, that permitting cross-examination of Mr Shand with the aim of eliciting the reasons for his decision would undermine s 177(4)(a). This was the point made by William Young P in a judgment he delivered for himself and Hammond J in Huang v Minister of Immigration: 52 [72] There has been no challenge to the decision to require Mr Fennell to give evidence, but it is right for us to note that this requirement does not sit particularly easily with ss 35A(6) and 58(5) [the predecessor of s 177(4)(a)], as the practical effect was to require the immigration officer to give reasons, something which is specifically not required under those subsections. [63] For those reasons, we see no error on the Judge s part in declining to grant the appellant leave to cross-examine Mr Shand. We answer this second issue No, Brewer J did not err in not permitting cross-examination. Summary [64] To summarise, s 177, in its statutory context, precludes a New Zealand Court from reviewing a deportation decision by conducting a broad proportionality assessment of the type undertaken by Courts in the United Kingdom. Parliament has made a deliberate choice, in the wake of judgments of the Supreme Court, to place the ultimate decision in the hands of the IO. If s 177 is triggered, the IO must undertake the evaluative exercise required by the section. But s 177 imposes minimal obligations on the IO. He or she is required to record a description of the applicable international obligations and the relevant personal circumstances. Beyond those recording obligations, s 177 empowers the IO to make a decision as he or she thinks fit. By expressly not obliging the IO to give reasons for any decision, Parliament has narrowed the scope of judicial review to a Wednesbury type assessment. 52 Huang v Minister of Immigration, above n 34.
[65] Without doubt, deportation of Amanpreet s parents and two siblings would seriously affect her. Her alternatives are stark, as summarised by Mr Hooker. 53 If her parents on her behalf exercise her right as a New Zealand citizen to remain here, she will be deprived at the age of 11 years of her right to a future upbringing in the only family environment she has ever known. If Amanpreet returns to India with her parents and siblings she will lose what Baroness Hale described in ZH as the intrinsic importance of citizenship. 54 Principal among the benefits to which she is entitled in New Zealand are free education and health care, and she will suffer the dislocation of a future in a different country. [66] The only inference available from Mr Shand s affirmation 55 of performance of his obligations under s 177 is that, in accordance with New Zealand s international obligations, he has treated Amanpreet s interests as a primary consideration. But, within his discretionary power, he has decided that the statutory requirement to ensure the integrity of New Zealand s immigration system what may generally be termed the national interest 56 must prevail. A Court cannot inquire further. In these circumstances, applying the Wednesbury approach, it cannot be said there could be only one answer, 57 namely that the IO should have cancelled the deportation orders. We are satisfied that the IO reached a decision that was reasonably open to him on all the facts and having regard to New Zealand s international obligations. Result [67] In the result, as our decision is against the appellants on both issues, we dismiss the appeal. [68] The appellants are to pay the respondent s costs for a standard appeal on a band A basis plus usual disbursements. 53 54 55 56 57 Above at n 3. ZH (Tanzania) v Secretary of State for the Home Department, above n 21, at [32]. Mr Shand swore an affidavit on 3 February 2014 setting out in general terms the steps he took, including interviewing each member of the family, before coming to his decision under s 177. Section 3(1) of the Immigration Act 2007, set out in [6] above. ZH (Tanzania) v Secretary of State for the Home Department, above n 21, at [33].
Solicitors: Vallant Hooker & Partners, Auckland for Appellants Crown Law Office, Wellington for Respondent