THERE IS AN ORDER PROHIBITING PUBLICATION OF THE ACTUAL NAMES OF THE APPLICANTS, THEIR FAMILY, AND ANY IDENTIFYING PARTICULARS. THIS VERSION OF THE JUDGMENT MAY BE PUBLISHED AS THE NAMES OF THE APPLICANTS,

AND THEIR FAMILY, HAVE BEEN ANONYMISED.

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

		CIV-2017-404-2125
		[2018] NZHC 2078
	UNDER	the Judicial Review Procedure Act 2016
	IN THE MATTER	of an application for judicial review
	BETWEEN	TALIA MATUA
		First Applicant
		HANA SEFO
		Second Applicant
	AND	MINISTER OF IMMIGRATION
		Respondent
Hearing:	2 March and 15 June 2018
Appearances:	S Foliaki and H Singh for the Applicants
	S Jerebine and K Gaskell for the Respondent
Judgment:	16 August 2018

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 16 August 2018 at 4:00 p.m.

pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr S Foliaki and Mr H Singh, Community Legal Services South Trust, Solicitors, Auckland Ms S Jerebine and Ms K Gaskell, Crown Law, Wellington

MATUA v MINISTER OF IMMIGRATION [2018] NZHC 2078 [16 August 2018]

	TABLE OF CONTENTS
Introduction		[1]
The background facts		[5]
Immigration New Zealand’s decision		[8]
The Tribunal decision		[18]
Was Immigration New Zealand’s decision correct?		[20]
Background to special circumstances		[22]
The Associate Minister’s evidence		[29]
The grounds for review		[38]
Unreasonableness		[39]
Breach of the New Zealand Bill of Rights Act 1990 and the Human
Rights Act 1993		[40]
Failure to take account of mandatory considerations		[41]
Taking account of irrelevant matters		[42]
New issues		[43]
The law		[45]
(1)	The legal nature of immigration instructions	[46]

(2)The statutory context: the nature and extent of the Minister’s

	power and duty under s 190(5)	[50]
(3)	The absence of reasons	[67]
(4)	The statutory power to impose conditions on resident visas	[76]
(5)	Mandatory considerations under s 190(5)	[79]
	International instruments	[81]
	A visa subject to conditions	[83]
(6)	Determining error from the consequences of a decision	[88]
Evaluation
Was there material failure to consider granting a visa subject to
conditions?		[99]
Do the consequences of the decision indicate error?		[113]
The original grounds for review		[127]
	Unreasonableness	[128]
	Breach of the New Zealand Bill of Rights Act 1990 and the Human
	Rights Act 1993	[135]
	Failure to take account of mandatory considerations	[137]
	Taking account of irrelevant matters	[139]
Result		[140]

application for residence visas were declined. Mrs Matua has a current temporary visa. Mrs Matua’s three sons, aged 28, 26 and 18 when the Associate Minister’s decision was made, are either New Zealand citizens or have residence status. The two older sons live in Auckland with partners and each has two children.

[7]Mrs Matua is now married to Mr Filipo Matua. Mr Matua is a New Zealand citizen. When the Tribunal’s decision was delivered in June 2017, Mr and Mrs Matua had been living together in a genuine and stable relationship for almost seven years. They married in 2012 following Mrs Matua’s divorce from her former husband. They live in Auckland with Hana and Mrs Matua’s youngest son. They live in a suburb near the older sons’ homes.

Immigration New Zealand’s decision

[8]On 12 November 2015, Mrs Matua applied for a New Zealand residence class visa under the Family (Partnership) category. Hana was subsequently included in that application.

[9]In its assessment of the application, Immigration New Zealand was required to apply residence instructions. These are part of the immigration instructions certified by the Minister of Immigration pursuant to s 22 of the Act.3

[10]On 16 January 2017, Immigration New Zealand declined the application on the grounds that Hana did not meet an “acceptable standard of health”, as defined in the health instructions, and she did not qualify for a medical waiver as provided for in the instructions. The directly relevant provisions are recorded in the following paragraphs.

[11]The objectives of the health instructions are as follows:

A4.1 Objective

The objectives of Health instructions are to:

a. protect public health in New Zealand; and

3The legal nature of the instructions is outlined below at [46]-[48].

b.ensure that people entering New Zealand do not impose excessive costs and demands on New Zealand’s health and special education services; and

c.where applicable, ensure that applicants for entry to New Zealand are able to undertake the functions for which they have been granted entry.

[12]An “acceptable standard of health” is relevantly defined as follows:4

A4.10 Acceptable standard of health (applicants for residence)

a.Applicants for residence class visas must have an acceptable standard of health unless they have been granted a medical waiver … An application for a residence class visa must be declined if any person included in that application is assessed as not having an acceptable standard of health and a medical wavier is not granted (see A4.60).

b.Applicants for residence class visas are considered to have an acceptable standard of health if they are:

…

ii.unlikely to impose significant costs or demands on New Zealand's health services …

…

c.The conditions listed in A4.10.1 are considered to impose significant costs and/or demands on New Zealand’s health … services. Where an immigration officer is satisfied (as a result of advice from an Immigration New Zealand medical assessor) that an applicant has one of the listed conditions, that applicant will be assessed as not having an acceptable standard of health.

…

[13]Instruction A4.10.1 lists medical conditions which are “deemed to impose significant costs and/or demands on New Zealand’s health … services”. One group of conditions is “severe developmental disorders or severe cognitive impairments where significant support is required, including but not exclusive to: … intellectual disability …”.

4This definition, and other provisions in the health requirements section of the instructions, also refer to costs or demands on special education services. That was not a factor in Immigration New Zealand’s decision and these references are omitted.

[19]The applicants elected to appeal on the second alternative ground – special circumstances. They did not challenge Immigration New Zealand’s decision on the merits. Although there was no challenge on the merits, the Tribunal was required to assess the correctness of the decision, before considering special circumstances. Section 188(1)(f) provides that, in determining an appeal, the Tribunal may—

confirm the decision as having been correct in terms of the residence instructions applicable at the time the visa application was made, but recommend that the special circumstances of the applicant are such as to warrant consideration by the Minister as an exception to those instructions.

Was Immigration New Zealand’s decision correct?

[20]On the question whether the decision was correct, the Tribunal reviewed the relevant health instructions and concluded, in light of the medical evidence, that it was correct. The medical evidence was recorded in some detail in this part of the Tribunal’s decision. The evidence came from medical reports or certificates provided by the applicants and obtained by Immigration New Zealand in accordance with standard procedures, including, in Immigration New Zealand’s case, second opinions.

[21]The details relating to Hana’s disability, set out in this part of the decision, may be recorded in summary form as follows: a global developmental delay effecting the ability to function independently or to be able to work full time; able to speak only a few words of Samoan and no English; unable to cook or do household chores; had not received any formal education; had never been left on her own and required constant supervision; formal diagnosis (by a psychologist instructed by Immigration New Zealand) as having a cognitive standard score of 50, when intellectual disability is established with any score below 70; a long and permanent history of developmental disability; if a New Zealand citizen the diagnosis would be intellectual disability resulting in an entitlement to disability support services; not independent in the skills of daily living; currently dependent on support people (her family) for safety and interaction within her community; requires constant supervision and never left alone; not able to live independently; and requires full time care, including care in the community.

Background to special circumstances

[22]The background provided by the Tribunal, preceding its discussion of special circumstances, covered the following topics: the evidence relating to Hana’s disability, including important new evidence from a psychiatrist admitted on the appeal; the extent of Hana’s dependence not only on her mother, but also her stepfather and her two older brothers; the support given by Mrs Matua to her husband; and whether Mrs Matua qualified for a resident visa if the application had not included Hana as a dependent child.

[23]Addressing the last point first, the Tribunal concluded that Mrs Matua would have qualified for a resident visa had she applied only for herself and not included Hana as a dependent. The Tribunal noted that Mrs Matua’s application was declined because Hana was included in it. The Tribunal recorded the relationship between Mr and Mrs Matua as “a genuine and stable relationship” and that they had by then been together for almost seven years. There were no negative health reports for Mrs Matua and no negative police reports for Mrs Matua or Mr Matua (being standard requirements applicable on all applications). The current family circumstances were summarised by the Tribunal as follows:

[49]The appellant and her husband and daughter are currently living in a Housing New Zealand property. Her husband was previously employed but was made redundant in 2013. He is not in good health. The appellant is currently not in paid employment but is engaged in voluntary work with her church. Two of her sons in New Zealand financially assist her. It is apparent that the appellant’s contribution is focussed on her voluntary work with her church and looking after her husband, daughter and grandchildren.

[24]The Tribunal’s summary of other background matters, and in particular those relating to Hana, is appropriately recorded in full:

The daughter’s health

[44]The appellant’s daughter, aged 23 years, has a severe intellectual disability. She is said to have had less than one year’s primary school education before she was withdrawn from school and has remained at home, where she is constantly supervised. While it has been contended that the family doctor, as a fluent speaker of Samoan, had provided an accurate diagnosis for the daughter, describing her as independent in daily living skills, he did concede in his report of April 2016 that the daughter had never been left alone. Although the appellant has some basic skills in terms of personal hygiene and dressing herself, she is plainly not independent, not able to

communicate in other than gestures and isolated words in Samoan. She requires full-time care.

Psychologist’s report

[45]The appellant produced a psychological assessment (15 June 2016) of her daughter which also made it clear that the appellant’s daughter’s intellectual disability meant that she required full-time care. This is currently provided by her mother, stepfather and siblings in New Zealand. In the event that the appellant and her daughter are granted residence, the daughter would be eligible for disability services in this country, but she is not eligible for Ongoing Resourcing Scheme assistance which is based on attendance at a school. That assistance is only available until an applicant is 21 years and the appellant is 23 years old.

Psychiatrist’s report

[46]Dr Ashok Malur, a consultant psychiatrist, produced a report (20 April 2017) which is submitted on appeal. This was not produced to Immigration New Zealand but the Tribunal is able to consider the report in the context of consideration of the appellant’s special circumstances. The psychiatrist’s report noted that the daughter had never attended school. Her biological father had died when she was two years old and she had been raised by her mother. The psychiatrist noted the very strong bonds between the appellant, her daughter, and her stepfather, whom her mother married in 2012. The daughter is well-supported by her siblings, who are aware of her disability, whereas her maternal uncles and aunts living in Samoa are not in a position to offer assistance. It is said that the appellant does not own property that would be available to them in Samoa.

[47]The psychiatrist described the daughter’s intellectual impairment as “obvious”. She communicated through gestures and spoke only a few words in Samoan, but did not understand or speak any English. The daughter’s comprehension was “extremely limited”. She was able to pick up simple instructions using visual cues and would be able to pick up “some very basic activities if instructed appropriately”. However, her global assessment of functioning was poor. That was essentially because of her minimal comprehension of language, which might improve with some training.

[48]The psychiatrist’s concern was that if the daughter was repatriated to Samoa, even with her mother, there would be a risk that she would be molested without close supervision. In New Zealand she has the support of two brothers as well as her mother and stepfather. Separating the daughter from her family in New Zealand would cause significant harm to all members of the family. She would be eligible for a disability benefit, but was physically healthy and was unlikely to be a burden on the New Zealand health system.

…

[50]The potential burden the daughter represents to the New Zealand taxpayer would be through her entitlement, as a resident, to apply for a supported living payment under the Social Security Act 1964. In 2016 this was a weekly payment of $295 (gross) for an individual over the age of 18 years, without children, who was found to qualify for assistance. In addition, the daughter may be eligible for a disability allowance under the Social

Security Act. This was up to a maximum of $62.37 per week tax free, calculated according to the extra costs that an individual may have because of their disability.

[25]The Tribunal’s discussion of special circumstances was succinct, as follows:

Discussion of special circumstances

[51]The situation the appellant finds herself in is due to the fact that her daughter has a significant intellectual disability. She otherwise met all aspects of the Family (Partnership) category. She has lived in New Zealand since 2009 and has made efforts over those years to ensure that she and her daughter have been here lawfully. Two of her three sons remain in New Zealand and the third has relocated to Australia. She therefore has a strong familial nexus to this country and is providing care and support for her husband, who has some (unspecified) medical problems. The appellant was invited to withdraw her daughter from her application but declined to do so. She remains her daughter’s primary caregiver. Warm letters of support have been produced from members of her family and church community.

[52]The Tribunal draws to the Minister’s attention that the daughter’s intellectual disability will potentially involve costs to New Zealand. This is a matter to be considered. Her daughter, because of the entitlement to apply for the disability allowance ($62 per week) and the supported living payment ($295 (gross) 2016 figures) that would come with residence, does potentially present a significant burden to the New Zealand taxpayer. On the other hand, the appellant is married to a New Zealand citizen and is making a contribution to her family in this country.

[53]The Tribunal finds that the appellant has special circumstances that would warrant a recommendation to the Minister that an exception be made to the instructions. The appellant has become well-settled in New Zealand and has been acknowledged as a valuable member of her local and church communities. She is providing assistance for her unwell husband and is assisting her children and grandchildren in a mutually beneficial arrangement on a daily basis.

[26]The formal decision was recorded in the following terms:

[54]This appeal is determined pursuant to section 188(1)(f) of the Immigration Act 2009. The Tribunal confirms the decision of Immigration New Zealand as correct in terms of the applicable residence instructions but considers there are special circumstances of this appellant that warrant consideration by the Minister of Immigration as an exception to those instructions.

[55]Pursuant to section 190(5) of the Immigration Act 2009, the Minister

of Immigration is requested to make one of the two decisions set out below. Pursuant to section 190(6) of the Immigration Act 2009, the Minister of Immigration is not obliged to give reasons in relation to any decision made as a result of a consideration of the Tribunal’s recommendation.

[27]The alternative decisions the Minister was requested to make were recorded on a separate page following the Tribunal’s decision, as follows:

1.Grant resident visas to [TALIA MATUA] and [HANA SEFO] as an exception to instructions.

OR

2.Decline to grant resident visas as an exception to instructions.

[28]The Associate Minister’s name and office is recorded beneath each option. On the copy produced, as page 15 of the decision itself, the Associate Minister’s signature appears below option 2 with the date, 17 August 2017.

The Associate Minister’s evidence

[29]Affidavit evidence was provided by the Associate Minister and his private secretary, Ms Clare Owens.

[30]The Associate Minister acted on authority delegated to him by the Minister of Immigration contained in a letter dated 9 May 2017, some three months before the decision in this case was made. The letter was produced. Seven classes of decision were delegated. Two are of relevance, recorded in the letter as follows:

•residence appeals referred by the Immigration and Protection Tribunal (IPT) for consideration of approval by you as exceptions to Government residence instructions;

•requests for exceptions to Government residence instructions;

…

[31]The first of those classes is a reference to decisions under s 190(5) of the Act following a Tribunal recommendation under s 188(1)(f), as in this case. The second class, although also requiring consideration of exceptions to government residence instructions, would, as indicated, come to the Associate Minister following a request by an applicant for an exception.

[32]The Minister did not provide any advice to the Associate Minister on any matter relating to decision making in relation to those two types of decision relating to exceptions to instructions. As discussed below, they are materially different.9

[33]The letter did record, in some detail, matters remaining the responsibility of the Minister. This included the following:

I reserve the right to consider individual cases in all categories outlined above. I will retain responsibility for individual decisions on deportation of residence class visa holder cases. I will also retain responsibility for making decisions on the deportation of persons threatening security (section 163), and for cases involving classified information.

[34]In his evidence the Associate Minister said, in relation to this case, he did “not remember making this decision specifically”, but said he would have followed his “usual decision-making process”. He said that the following “invariably occurred”, unless there was an “occasional exception” (such as a decision relating to a person living in the Associate Minister’s electorate):

4.1The IPT Liaison Team within the Ministry of Business, Innovation and Employment would provide the IPT decision to me in my role as Associate Minister. …

4.2In considering a matter, I was aware of New Zealand’s international obligations as they relate to immigration decision-making.

4.3It would have been unusual but in rare cases I may have sought further information to assist with making my decision; however I am not under any obligation to do so.

4.4After considering each matter I would make a decision and sign the IPT decision identifying what my decision was.

4.5My private secretary returned my decision to the IPT Liaison team, who would then send a letter to the appellant advising him or her of my decision.

4.6I was not obliged to give reasons for my decision as of [sic] result of any consideration under s 190(5): s 190(6) of the Act.

[35]The Minister also said that his “normal practice was to consider the IPT decision and evaluate, in particular, any discussion on special circumstances on [sic] the decision”.

9Below at [53]-[56].

[36]The final matter noted by the Minister, in paragraph 4.6, does not, in a literal sense, record something that occurred, but rather a provision contained in s 190(6) of the Act. However, the six sub-paragraphs are presented as the things that invariably occurred. If the Associate Minister intended to say that one thing which invariably occurred was that he did not give reasons, he has impermissibly, and completely, fettered his discretion in relation to reasons. The discretion is one to give or not give reasons. This conclusion, on an assumption as to meaning, would not be removed by the Associate Minister’s observation at the end of his affidavit when he said: “I was not obliged to provide any reasons for my decision and did not do so in this case”.

[37]In her affidavit, Ms Owens said: (1) the Associate Minister’s description of his practice accorded with her understanding; (2) she remembered dealing with the Associate Minister in relation to the decision; (3) she did not recall him asking for further information for the purpose of making his decision; and (4) it was unusual for him to ask for further information.

The grounds for review

[38]The grounds for review as pleaded were expanded in submissions without opposition from the respondent. There are three broad causes of action: unreasonableness; breach of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993; and illegality through failing to take into account mandatory factors, or taking into account irrelevant factors. The main contentions under each heading are summarised in the following paragraphs. As will be apparent from the following summary, there is a degree of overlap, and some contentions might have been advanced under a different heading. These are not matters of consequence.

Unreasonableness

[39]The applicants contended that the decision was unreasonable, on a Wednesbury

basis, for the following reasons.

(a)The Associate Minister relied on the Tribunal’s decision which the applicants contended involved a “flawed” interpretation of the health instructions applied to the facts of this case. The argument, reduced to

its essence, was that the Tribunal upheld Immigration New Zealand’s application of the health instructions when the core question was whether Hana was unlikely to impose significant costs or demands on New Zealand’s health services and the evidence positively established that she would not.

(b)The decision involved improper discrimination against the applicants on the grounds of intellectual disability.

(c)The decision is inconsistent with the objectives and purposes of the Act and immigration instructions.

(d)The decision is inconsistent with New Zealand’s international obligations.

Breach of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993

[40]The contentions under this ground were that the decision breached s 19 of the New Zealand Bill of Rights Act 1990, affirming the right to freedom from discrimination, and s 21(h)(iv) of the Human Rights Act 1993, which prohibits discrimination on the grounds of intellectual disability.

Failure to take account of mandatory considerations

[41]The applicants submitted that the Associate Minister failed to take into account the following matters which were said to be mandatory considerations:

(a)The International Covenant on Civil and Political Rights (protection of family) and the convention on the rights of persons with disabilities (rights to equality, non-discrimination, and equal rights to nationality and family).

(b)The medical evidence indicating that Hana would not in fact impose significant costs or demands on New Zealand’s health services.

(c)The purposes and objectives of the Act and immigration instructions.

Taking account of irrelevant matters

[42]The principal contention was that the Associate Minister, relying on the Tribunal’s decision, improperly took into account Hana’s eligibility for a supported living payment benefit if granted a resident visa.

New issues

[43]In considering my judgment following the hearing I concluded that the applicants’ challenge to the decision required consideration of two issues. These were raised by the broad grounds advanced, but had not been separately identified as reviewable error. I issued a minute seeking further submissions on two issues as follows:

(a)Was there reviewable error by the Associate Minister in failing to consider, as an alternative to declining to grant the visas as an exception to instructions, to grant the visas as an exception but subject to conditions in accordance with ss 50 and 190(5)(b) of the Act. There may be a number of subsidiary issues within this broad issue. One subsidiary issue on which I seek submissions is whether or not it can properly be inferred from the evidence that the Minister did not consider this possibility.

(b)Was there reviewable error in the decision because it will result in, or is likely to result in, members of the family being separated?

[44]Further submissions were provided. I am grateful to counsel for their assistance in this regard. I have now determined that what amount to two additional grounds for review should be assessed. In my evaluation of the application, I will assess these two new grounds first, under the following headings:

•Was there failure to consider granting a visa subject to conditions?

•Do the consequences of the decision indicate error?

The law

[45]Immigration instructions, the relevant statutory provisions, and relevant legal aspects grounds for judicial review, are considered under the following headings:

(1)The legal nature of immigration instructions.

(2)The statutory context: the nature and extent of the Minister’s power and duty under s 190(5).

(3)The absence of reasons.

(4)The statutory power to impose conditions on resident visas.

(5)Mandatory considerations under s 190(5).

(6)Determining error from the consequences of a decision.

(1)The legal nature of immigration instructions

[46]Under s 22 of the Act, the Minister may certify “immigration instructions” relating to a range of immigration matters, including residence class visas. Subsection

(5)specifies “the kinds of matters that may constitute immigration instructions”, and this includes “any general or specific objectives of immigration policy”.10 Subsection

(6)provides, without limiting subs (5), that any rules or criteria relating to eligibility for a visa may include, amongst other things, matters relating to health.

[47]Immigration instructions are statements of government policy, rather than regulations.11 The Court of Appeal discussed immigration instructions in the following terms:12

A policy document, such as the one in issue, is not to be construed with the strictness which might be regarded as appropriate to the interpretation of a statute or statutory instrument. It is a working document providing guidance

10Section 22(5)(a).

11Singh v Chief Executive of Ministry of Business, Innovation and Employment [2013] NZHC 3273 at [20].

12Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.

to immigration officials and to persons interested in immigrating to New Zealand or sponsoring the immigration of a person to this country. It must be construed sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed, that is, as part of a comprehensive and coherent scheme governing immigration into this country.

[48]Residence instructions apply to applications for residence class visas. They are binding on the Minister and on immigration officers on the terms contained in s 72, as follows:

72 Decisions on applications for residence class visa

(1)Where the Minister or an immigration officer makes any decision in relation to an application for a residence class visa, that decision must be made in terms of the residence instructions applicable at the time the application was made and any discretion exercised must be in terms of those instructions.

(2)No application for a residence class visa that is received by an immigration officer may be referred to the Minister for decision at first instance, unless the Minister gives a special direction to that effect.

(3)Nothing in this section prevents the Minister, in his or her absolute discretion, from making any decision to grant a residence class visa as an exception to residence instructions in any particular case.

[49]The application of s 72(3) is discussed later.13

(2)The statutory context: the nature and extent of the Minister’s power and duty under s 190(5)

[50]The Minister’s powers and duties, following a recommendation from the Tribunal under s 188(1)(f), are prescribed in s 190(5) and (6) as follows:

(5)Where the Tribunal makes a recommendation under section 188(1)(f), the Minister—

(a)must consider whether a residence class visa should be granted to the appellant as an exception to residence instructions; and

(b)may, if he or she grants a resident visa, impose conditions on the visa in accordance with section 50.

13Below at [56].

(6)The Minister is not obliged to give reasons in relation to any decision made as a result of any consideration under subsection (5), and neither section 27 of this Act nor section 23 of the Official Information Act 1982 applies in respect of any such decision.

[51]It appears that these sections have been substantively considered in only two other decisions of this Court: CF v Attorney-General (No 2),14 and Goundan v Immigration and Protection Tribunal.15 The fuller discussion is in Goundan. In that case, van Bohemen J said:

[18]The broad terms in which the Minister’s power is cast, coupled with

the fact the Minister is not required to give reasons for his or her decision, make it clear the Minister has a broad discretion when making a decision under s 190(5). That conclusion is reinforced by two further considerations:

(a)The purpose of the Act as set out in s 3(1) is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals; and

(b)The Minister’s decision is an exception to the residence instructions which, in accordance with s 22, are certified by the Minister of Immigration and are statements of government policy.

[19]These considerations make it clear there is a high policy content to decisions made under the Act and that in decisions under s 190(5), the Minister has a discretion to make decisions that are an exception to national policy as determined by the government. This last factor is itself a matter of considerable significance because the Minister is authorised to make a decision that is not subject to established government policy.

[52]In making a decision to grant a visa, the Minister does have a discretion.16 But, in my opinion, it is not a broad discretion applying in every case. The breadth of the discretion will depend on the particular circumstances, as discussed in the following paragraphs.

[53]The Act confers two types of discretion on the Minister and on immigration officers: a discretion defined as an “absolute discretion”, and a “discretion” which is not otherwise defined and which, for present purposes, may be referred to as an “ordinary discretion”. There is a marked difference between the power of decision making under an absolute discretion and the power under an ordinary discretion. This is relevant in the present context, relating to the nature and extent of the power under

14CF v Attorney-General (No 2) [2016] NZHC 3159, [2017] NZAR 152.

15Goundan v Immigration and Protection Tribunal [2018] NZHC 1756.

16Section 45(2) and (3) of the Act.

s 190(5). Also, as I will come to, it is relevant because it distinguishes a case under s 190(5) from other cases, some of which have been relied on by the respondent in this proceeding, concerned with exercise of an absolute discretion.

[54]An “absolute discretion” is defined in s 11, which relevantly provides as follows:

11 Meaning of absolute discretion of the decision maker

(1)If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that—

(a)the matter or decision may not be applied for; and

(b)if a person purports to apply for the matter or decision, there is no obligation on the decision maker to—

(i)consider the purported application; or

(ii)inquire into the circumstances of the person or any other person; or

(iii)make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and

(c)whether the purported application is considered or not,—

(i)the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies;

…

[55]Some provisions of the Act which provide an absolute discretion expand on the definition in s 11. An example is s 177, discussed below at [70]-[73].

[56]Section 72(3), noted above, provides the Minister with an “absolute discretion”, to make “any decision to grant a residence class visa as an exception to residence instructions in any particular case”.17 This does not apply to matters that come before the Minister under s 190(5). An absolute discretion cannot apply under s 190(5) because of the statutory provisions enabling the applicants to apply for an exception to be recommended and because the Minister has a duty under s 190(5) to

17See above at [48].

consider whether to grant the visa as an exception. The absolute discretion would apply to “requests for exceptions”, which is what s 72(3) is directed to. It will be recalled that requests for exceptions were identified in the delegated authority to the Associate Minister as distinct from referrals from the Tribunal requiring consideration under s 190(5).18

[57]Pursuant to s 190(6) the Minister is not obliged to give reasons. The extent to which this may circumscribe some grounds for judicial review is considered below. But a discretion not to give reasons does not assist in defining the extent of the discretion in making any particular decision under s 190(5).

[58]A relevant enquiry, in considering the extent of the Minister’s discretion in a particular case, is whether there is substantial policy content in the decision. In

Goundan, the Judge said there is “high policy content to decisions under the Act”, including under s 190(5).19 That is undoubtedly correct for the reason noted by the Judge – the Minister is required to decide whether there should be an exception to government policy. But, in my opinion, caution is needed in applying this general proposition to a particular case arising under s 190(5). Every case will have the policy content contained in the residence instructions, that policy will have already been applied, and this will have resulted in refusal of the application for the resident visa. The matter has got to the Minister because the applicant cannot meet government policy, and this will have been confirmed by the Tribunal. The Minister, acting under s 190(5), is not required to make any determination of government policy in that regard.

[59]Section 190(5) contains a duty as well as a power. Assessment of the nature and content of both elements needs to extend beyond the undoubted fact that there is government policy contained in the original decision of Immigration New Zealand to the purpose of s 190(5). The purpose may be discerned, first, from the nature of immigration instructions. They are directions to immigration officers and the Minister which are required to be implemented irrespective of the consequences for individuals

18I note that Mr Singh, for the applicants, drew this distinction in his submissions when dealing with the nature of the discretion under s 190(5). Ms Jerebine, for the respondent, did not take issue with the distinction drawn.

19Goundan v Immigration and Protection Tribunal, above n 15, at [19].

who will be affected if a visa is refused. Individuals who will be affected, in a family context, may include not only the applicant or applicants, but other family members who do not require residence class visas because they are already New Zealand citizens or holders of a residence class visa. The instructions are a blunt instrument. It is apparent, from this, that Parliament has recognised that, from time to time, the necessarily rigid application of the instructions will have consequences which should be avoided, or at least ameliorated. Parliament has recognised that from time to time an exception to government policy will be required.

[60]I am not intending to suggest that there will be no case under s 190(5) which may require the Minister to determine what amounts to a question of policy. Some cases of that nature are noted in Immigration and Refugee Law in a section dealing with the meaning of “special circumstances” in s 187(4).20 An issue in one case was whether an overseas qualification not recognised in New Zealand should nevertheless be accepted, as an exception, and therefore effectively as the equivalent of qualifications that were recognised in the instructions and therefore consistent with government policy.21 An issue in another case was whether a person who did not meet a health criterion under the residence instructions should nevertheless be granted a visa because there was a shortage of people in New Zealand with the recognised expertise of the applicant. The policy issue there related to a question whether that shortage should be met by granting an exception to the health policy.

[61]Another example is provided by one of the two earlier cases in this Court under s 190(5) – CF v Attorney-General.22 In that case, following protracted proceedings, CF on a second application was granted refugee status. He then applied for a residence class visa. This was declined because he was deemed to pose a risk to New Zealand’s international reputation because of his association with an organisation in Iran. That

20Doug Tennent, Katy Armstrong and Peter Moses Immigration and Refugee Law (3rd ed, LexisNexis, Wellington, 2017) at [10.10.7]. The cases referred to did not involve applications for review of decisions under s 190(5), or the equivalent provision under the Immigration Act 1987, but appeals against the refusal of the Immigration Tribunal to make a recommendation under the equivalent of s 188(1)(f).

21Martin v Chief Executive of the Department of Labour HC Auckland HC113-98, 4 November 1998.

22CF v Attorney-General, above n 14.

issue effectively required the Minister, under s 190(5), to make a policy evaluation in relation to the risk to New Zealand’s international reputation.

[62]Goundan, the other s 190(5) decision, did not give rise to any issue relating to policy content. The main issue was whether the Minister was required to consider Immigration New Zealand’s file, as well as the Tribunal’s decision. The Judge held that there was no obligation to consider the file.

[63]Other cases under s 190 may not require assessment of any new policy issue because of the nature of the special circumstances. In my judgment, the facts of this case provide an example. For reasons I will come to, the special circumstances that are raised in this case are purely of a humanitarian nature and far removed from government policy reflected in the instructions.

[64]This brings the analysis to s 3(1) which prescribes the purpose of the Act in the following terms:

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.

[65]If the special circumstances in an individual case are not special circumstances which in themselves give rise to new policy issues, the national interest, as determined by the Crown, will be fully reflected in the original decision and the Minister’s focus under s 190(5) must be on the rights of individuals.

[66]Where the focus is on the rights of individuals, there will be, from case to case, a wide range of circumstances which have to be put in the balance against the established government policy. At an abstract level, and as with all decision making of this nature, there will be a lot of circumstances presented as special which range across the middle ground, some which plainly do not qualify for an exception, and others which plainly are circumstances of a nature for which the power was granted and which require an exception to be made.

(3)The absence of reasons

[67]The fact that the Minister is not obliged to give reasons obviously means that there is no reviewable error if the Minister chooses not to give reasons. In addition, grounds for review that in other cases can be directed to recorded reasons may not be available or may be limited in scope. The absence of a record of the actual reasoning process means that there is no direct evidence, by that means, of matters taken into account and matters that were not taken into account. Also, the quality of the reasoning process cannot be subjected to direct scrutiny. But, if the discretion not to give reasons is exercised, this does not exclude grounds for review directed to the decision. The decision can be assessed for reviewable error having regard to the statutory context and the evidence, which will include evidence established to have been put before the Minister, and any matters the Minister was bound to consider,

[68]In addition, if the Minister has not provided reasons, but it can be inferred from the available evidence that the Minister has misunderstood the law in relation to the power and duty under s 190(5), or made a reviewable error in relation to evidence and if the error is material, the decision may be set aside.

[69]Ms Jerebine, for the respondent, submitted as follows:

As the Court of Appeal recognised in Singh, the absence of a duty to give reasons is an “obvious obstacle”23 for reviewing the merits of a decision, and

as a consequence, the scope of review is narrowed “to a Wednesbury type assessment”.24 In addition, the absence of a right of appeal of the Minister’s decision not to grant a residence class visa tells against reviewing such a decision on an exacting basis, such as proportionality.

[70]I do not agree with the submission about proportionality. This is discussed later.25 The second citation from Singh (Kulbir) is in a concluding paragraph to the judgment which summarises the Court’s earlier findings in relation to the scope of s 177 of the Act. The foundation for the primary conclusion was stated more broadly than what is contained in the summary. It was expressed as follows:26

23Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 at [50].

24At [46] and [64].

25Below at [98].

26Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 23, at [46].

Section 177 has severely circumscribed the scope for judicial review, effectively limiting it to a Wednesbury unreasonableness inquiry.

[71]I do not read that statement as a finding that no other grounds for review are available when the decision maker under the Act is not obliged to give reasons and has not given reasons. In any event, it was a conclusion directed to the fact that s 177 provides an absolute discretion.

[72]The scope for judicial review of decisions under s 177, and decisions under other sections providing absolute discretions, is severely limited by the extent of the discretion provided. As already discussed, an absolute discretion under the Act is markedly different from the discretion under s 190(5). The absolute discretion under s 177 is even wider than what is defined as an “absolute discretion” in s 11. Section 177 states that the immigration officer has an absolute discretion, and goes on to expand the scope of the discretion. The extent of this discretion is readily apparent from s 177(3), which is in the following terms:

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)may make a decision as he or she thinks fit; and

(b)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.

[73]In my opinion, the conclusion of the Court of Appeal that s 177 has severely circumscribed the scope for judicial review is not a conclusion applicable to s 190(5).

[74]I note, for completeness, that Ms Jerebine also referred to CF v Attorney- General (No 2),27 Ning v Minister of Immigration,28 and Pesamino v Minister of

27CF v Attorney-General (No 2), above 14.

28Ning v Minister of Immigration [2016] NZHC 697.

Immigration.29 The observations in those cases, relating to the scope of review in cases where the decision maker is not under an obligation to provide reasons, are not contrary to my conclusions recorded above. Both Ning and Pesamino were cases involving exercise of an absolute discretion, and for that reason are not applicable to s 190(5). CF v Attorney-General is a judgment on an application for judicial review of a decision under s 190(5). In that case Moore J cited observations in Pesamino and Ning and then said:30

[94]Although these comments were made in relation to the exercise of the Minister’s absolute discretion under different provisions, the observations remain relevant.

[75]There was no discussion which appears to be contrary to my conclusions. Indeed, in CF v Attorney-General, Moore J cited the following observations of Thomas J’s in Ning:31

If there were no reasons, and the information provided as to what was before the decision maker showed there was no reference to, for example, international obligations, an inference that the decision was made without requisite consideration could be sustained.

(4)The statutory power to impose conditions on resident visas

[76]Section 190(5)(b) provides that the Minister may, if he or she grants a resident visa, impose conditions in accordance with s 50.

[77]Section 50 relevantly provides as follows:

50 Conditions on resident visas

(1)On granting a resident visa as an exception to residence instructions, the Minister may—

(a)impose conditions in addition to those specified in the applicable residence instructions (if any):

(b)vary or waive conditions that would otherwise apply to a visa of that type.

(2)Following the grant of a resident visa, the Minister may, by special direction,—

29Pesamino v Minister of Immigration [2012] NZHC 4.

30CF v Attorney-General (No 2), above 14, at [92]-[94].

31At [93]; see Ning v Minister of Immigration, above n 28, at [46].

(a)impose further conditions whether or not the conditions are specified in the applicable residence instructions (if any):

(b)vary or cancel conditions that would otherwise apply to the visa or were imposed under subsection (1).

(3)The Minister may also do 1 or more of the things in subsection (2) by agreement with the visa holder.

(4)A condition imposed, varied, waived, or cancelled under this section—

(a)must be notified to the visa holder by the Minister or an immigration officer; and

(b)takes effect—

(i)from the date the visa is granted, if the condition is imposed, varied, or waived when the visa is granted; or

(ii)from the date specified in the notice (being a date not earlier than the date of notification), in any other case.

…

[78]Section 50(5)(b) provides that the Minister’s power to impose conditions is not available in relation to a “permanent resident visa”. The residence class visa to which Mrs Matua would have been eligible, with her daughter included as a dependent, is a resident visa, not a permanent resident visa. In consequence, conditions could have been imposed by the Minister under s 190(5). There was no submission from Ms Jerebine to the contrary.

(5)Mandatory considerations under s 190(5)

[79]In my opinion, the following were mandatory considerations for the Associate Minister in this case:

(a)The Tribunal decision.

(b)Section 3(1) of the Act.

(c)Flowing from s 3(1), the provisions of international instruments bearing on the rights of the individuals affected by the decision in this case, being the applicants and the immediate members of their family.

(d)In the course of making the decision, to consider whether a residence class visa should be granted subject to conditions.

[80]That list is not intended to be a definitive list applying in every case. They are the matters of relevance in this case.

International instruments

[81]It was submitted for the respondent that “there is no express statutory requirement for the respondent to have regard to ‘any relevant international obligations’”. That is correct, but is not determinative of the question whether, in the particular case, consideration of international obligations was a mandatory consideration.32 In this case I am satisfied that it was, in relation to obligations noted below. Such mandatory obligation arises from s 3(1), and the facts put before the Associate Minister through the Tribunal’s decision.

[82]One of the grounds for review advanced for the applicants was that the Associate Minister failed to take into account relevant articles in the International Covenant on Civil and Political Rights (protection of family) and the Convention on the Rights of Persons with Disabilities (rights to equality, non-discrimination, and equal rights to nationality and family). I have concluded that the international obligations of most relevance are in parts of two articles in the Covenant on Civil and Political Rights, as follows:

Article 17

1.No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence ....

2.Everyone has the right to the protection of the law against such interference …

Article 23

1.The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

32CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA); Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1 (CA).

A visa subject to conditions

[83]Ms Jerebine also submitted that it is not mandatory to consider imposition of conditions when determining a recommendation under s 190(5). The argument was that s 190(5) envisages a two-stage process. First, under s 190(5)(a), the Minister must

consider whether a residence class visa should be granted as an exception to the instructions. Second, if the Minister decides to grant a resident visa, the Minister may impose conditions in accordance with s 50. The words “if he or she grants a resident visa” in s 190(5)(b) were said to be “permissive in nature only”, allowing the Minister to impose conditions only if a decision had already been made to grant a visa as an exception.

[84]I do not agree with that argument. It requires an unduly literal interpretation of individual words and involves unjustified weight being given simply to the structure of the subsection, with the separate paragraphs (a) and (b). The word “may” is permissive, but not in the sense suggested. It simply means that the Minister is not obliged to impose conditions. The suggested two-stage process is also illogical. The argument contemplates a decision by the Minister that an unqualified visa should be granted at the first stage. If that is the conclusion the Minister reaches, there would be no reason to impose conditions. Why would the Minister impose conditions having concluded that the applicant was entitled to a visa that was not subject to conditions? The respondent’s argument would also mean that if the Minister was in fact satisfied that an exception should be granted, but only subject to special conditions, that approach would not be possible. That cannot be right.

[85]In my opinion, s 190(5) requires the Minister to consider three possibilities: to grant a visa as an exception; to grant a visa as an exception but with conditions, including conditions modifying the full effect of an unconditional visa; or to decline to grant a visa.

[86]This interpretation is reinforced by s 50. Section 50 indicates that Parliament expressly contemplated that conditions could be imposed in the course of, and as an integral part of, a decision to grant an exception.

[87]The relevant text of s 50 is recorded above at [77]. The first words of subs (1) are directed to action that will occur as part of the decision to grant an exception – “On granting a resident visa as an exception to residence instructions, the Minister may … impose conditions …”. If there is any residual doubt, this is removed by the opening words of subs (2) – “Following the grant of a resident visa, the Minister may, by special direction … impose further conditions …”. The power under subs (2) is of general application in respect of any resident visa that has already been granted, whether pursuant to the standard provisions for grant of a resident visa, or as an exception under s 190(5), or otherwise, and which visa already granted may already

be subject to conditions. The respondent’s argument would effectively require s 190(5)(b) to be read as if it were part of, or referred back only to, s 50(2), but the reference in s 190(5)(b) to s 50 is plainly not restricted in that way. This interpretation is also in harmony with the temporal prescriptions of s 50(4)(b): the condition takes effect “from the date the visa is granted”. Where the Minister grants a visa under s 190(5), and decides to impose conditions on that visa, the conditions apply from the moment it is granted. The Minister’s power to impose conditions must therefore be a contemporaneous consideration with his or her power to grant a visa as an exception to residence instructions.

(6)Determining error from the consequences of a decision

[88]The “consequences of a decision”, referred to in the heading, are in this case the consequences for each of the applicants and their immediate family. The broad issue is whether a decision can be set aside when no reasons for the decision have been given, but the consequences, weighed with other circumstances, indicate error.

[89]Ms Jerebine submitted that the test to be applied on a challenge of this nature is the Wednesbury standard of unreasonableness: a decision that is “so unreasonable that no reasonable authority could ever have come to it”.33 The Wednesbury test for unreasonableness creates a high hurdle.

33Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA) at 230 and 233-234.

[90]The principal authorities cited in support are four decisions of the Court of Appeal.34 The cases include Singh (Kulbir), which was discussed above.35 For reasons already adverted to in that earlier discussion, those authorities are not applicable to decisions under s 190(5). The context of the decisions in all of those cases is similar, but materially different from the context of the decision in this case. Context is central in considering the appropriate legal test, as discussed below.36

[91]The relevant statutory context in the Court of Appeal cases is that the decisions being challenged resulted from exercise of an absolute discretion, and they were deportation cases.37 The relevant context of this case is markedly different. The distinction between deportation cases and cases under s 190(5) is also indicated, perhaps, by the fact that the Minister, in delegating authority to the Associate Minister under s 190(5), and in respect of other matters, did not delegate authority in relation to deportation cases.38

[92]Ms Jerebine also referred to the decision in CF v Attorney-General.39 One of the grounds for judicial review in that case was that a decision under s 190(5) was unreasonable. Ms Jerebine noted that Moore J applied the Wednesbury standard. That is correct, but in that case there was no issue as to the standard. The challenge was expressly made on the basis that the decision did not meet the Wednesbury standard.40

Given the fact that the case was advanced on that basis, Moore J was not required to consider whether it was the correct standard and he simply applied it without discussion.41

34Puli’uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA); Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700; Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 23; and Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222.

35At [69]-[73]

36See, for example, the detailed discussion of Wild J in Wolf v Minister of Immigration [2004] NZAR 414 (HC) at [47]-[48]. See, generally, Phillip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington 2014) at [24.4].

37In Galani v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 383 at [20], Lang J distinguished Huang and Singh (Kulbir), and some similar cases, from the immigration case he was dealing with on the grounds that those cases are “deportation cases”, but did not determine whether the principle stated in the Court of Appeal’s decisions nevertheless applied, because it was unnecessary to do so.

38See above at [32].

39CF v Attorney-General, above n 14.

40At [45].

41At [117]-[120].

[93]The context of this case, relevant to the present issue, comes from the following matters: the nature and extent of the Minister’s powers under s 190(5); the purpose of the power under s 190(5); those matters assessed in relation to the facts of this case as put before the Associate Minister in the Tribunal’s decision; because the Associate Minister chose not to provide reasons, the absence of any evidence that the decision required the Associate Minister to weigh new matters of policy; and the effect of the decision on individuals, being both applicants, and other individuals in their immediate family.42

[94]I am satisfied that the context of this case requires rigorous appraisal of the decision that has been made, weighed with the other contextual matters just noted.

[95]As part of this analysis, I am also satisfied that, if the consequence of the decision, assessed in light of the evidence known to be available to the decision maker, is harsh, oppressive, or unjust, to an extent that the circumstances must come within the purpose for which the power in s 190(5) was clearly provided, and the decision maker has chosen not to explain why such a decision was made, the decision should be set aside. The consequences of the decision may also indicate one or more of the following, which may also require that the decision be set aside: (1) a failure to have regard to all of the material evidence that was required to be considered; (2) a failure to understand from that evidence that refusal to grant a visa would have the particular consequences; and (3) the full range of consequences was recognised, but the Minister considered he or she was bound to apply the policy reflected in the instructions.

[96]Ms Jerebine submitted that “separation of family does not make a decision under s 190(5) unlawful”. That was seemingly put as a legal proposition. It is not sustainable as a general proposition. This is in fact indicated in the submission which followed that “immigration will often have the unfortunate but inevitable effect of family members being separated”. A number of cases were cited in support of that more qualified observation.43 The cases cited do not establish a general proposition

42Authorities for context considerations of this nature are noted in Constitutional and Administrative Law in New Zealand, above n 36, at [24.4.2].

43Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [47]; Nacis v Minister of Immigration [2016] NZHC 2627 at [40]; Zhang v Associate Minister of Immigration, above n 34, at [3]; and Davies v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 503 at [9].

of law which can be extended to every decision-making power under the Act which may, or will, separate families. None of the cases cited involved a decision under s 190(5) and, as might be expected, each case turned on its particular facts. And one of those cases, Zhang, was also a case involving exercise of an absolute discretion.44

[97]It can be said that separation of a family, viewed in isolation, may not make a decision under s 190(5) unlawful, but a general proposition of that nature simply does not assist analysis. What is required is that the consequences be weighed in the full statutory and factual context.

[98]Authority for the point just made, if required, is found in the Supreme Court’s decision in Guo v Minister of Immigration.45 Guo is also authority that the Tribunal, and the Courts, should consider the proportionality of hardship. Guo was a decision on an application for leave to appeal after the High Court and Court of Appeal had refused leave to appeal from a decision of the Tribunal under s 207 of the Act. The Tribunal had dismissed an appeal against liability for deportation on humanitarian grounds. The Court granted leave because there were “some areas of legal concern”.46

One was the following:47

The Tribunal’s focus on whether deportation would be unduly harsh was in terms which suggested a comparison of the level of hardship which [the appellants] would suffer as against that of anyone who was required to go to another country as opposed to the proportionality of that hardship in respect of the basis upon which they were liable to deportation. Indeed, the only proportionality analysis explicitly carried out … was in the context of the family as a whole and was not carried out appellant by appellant.

Evaluation

Was there material failure to consider granting a visa subject to conditions?

[99]The heading to this section encapsulates two issues arising from my conclusion

that the Associate Minister was required, as part of his primary decision under s 190(5), to consider granting visas subject to conditions. Those issues are:

44Zhang v Associate Minister of Immigration, above n 34. This is one of the cases discussed above at [90] and [91].

45Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.

46At [22].

47At [22](b) (footnotes omitted).

(a)Did the Minister fail to consider granting a visa subject to conditions?

(b)If so, should the decision be set aside?

[100]Ms Jerebine submitted that it cannot properly be inferred that the Associate Minister failed to consider the possibility of granting the visas subject to conditions for the following reasons:

It can be inferred that the (then) Associate Minister was well aware of his obligations in considering immigration matters under the Act. Further he expressly references his decision as a result of any consideration under s 190(5) of the Act.

[101]The evidential foundation for the first submission is the letter from the Minister delegating authority to the Associate Minister. The letter does not provide any basis for an inference that he considered the possibility of granting a visa subject to conditions.

[102]The second submission is a reference to the Associate Minister’s affidavit.48

There was no statement about conditions. And what the Minister did say did not contain an implicit reference to conditions and does not enable an inference to be drawn that the Minister did consider conditions. The statement relied on was directed only to the fact that he was not obliged to give reasons. The conclusion that this was the Associate Minister’s sole consideration is reinforced by the fact that in this sub- paragraph of his affidavit he also referred expressly to s 190(6) – the provision recording the right not to give reasons.

[103]The argument that the Associate Minister did consider the possibility of granting conditions is also not readily reconciled with the primary argument that he had no obligation to consider the possibility of imposing conditions when deciding whether to grant a visa.

[104]Although I do not agree with the respondent’s submissions, the analysis is properly extended beyond them.

48The full text of the relevant paragraph in the affidavit is recorded above at [34].

[105]Weighing all of the evidence of the Associate Minister and his private secretary, I am satisfied, for the following reasons, that the proper inference to draw is that the Associate Minister did not consider the possibility of granting a visa subject to conditions.

[106]The Associate Minister described in some detail what “invariably occurred”. There is no suggestion that the imposition of conditions was considered, and there is nothing in any of the evidence from which that might reasonably be inferred.

[107]The Associate Minister said his normal practice “was to consider the IPT decision and evaluate, in particular, any discussion on special circumstances on the decision”. There is nothing in the Tribunal decision which might direct the Associate Minister’s attention to conditions. The Tribunal decision directs the Minister’s attention away from the possibility of granting a visa subject to conditions. If my interpretation of s 190(5) is correct, the Tribunal in fact misstated the legal effect of s 190(5).49 The Minister was requested, “pursuant to s 190(5) … to make one of the two decisions set out below”. As earlier recorded, the options were either to grant the visas as an exception to the instructions, or to decline to grant them as an exception. Given the fact that it was a statement directed personally to the Minister, and therefore in substance to the Associate Minister, it may be inferred that the Associate Minister would have proceeded on the basis that he only had the two options. That was reinforced by the way in which the two options were recorded on the page following the Tribunal’s decision.

[108]Ms Jerebine submitted that conditions could not have addressed concerns that Hana’s disability would in fact impose significant costs or demands on New Zealand’s health services because the Associate Minister could not impose a condition that Hana, as holder of a resident visa, would not be entitled to health or disability support services. Ms Jerebine submitted that health care is available to residence visa holders regardless of conditions on their visas.50

49At [55] of the Tribunal decision. This is recorded above at [25].

50Citing: the Health and Disability Services Eligibility Direction 2011, made under s 32 of the New Zealand Public Health and Disability Act 2000; and GB (Sibling and Adult Child) [2013] NZIPT 201044 at [38].

[109]That submission, in relation to the particular concern and the particular condition posited, may be correct. But that does not provide any basis to conclude that the decision should stand notwithstanding a failure to give consideration to the imposition of conditions. On the terms this point was advanced for the respondent, there was a necessary assumption that the Associate Minister did have the particular concern, but that is not known. In addition, if it is assumed that the Associate Minister did have such a concern, the obligation to consider conditions is not removed by proposing a condition which is, or may be, unenforceable. The proper approach would be to devise a condition which is lawful. And this could include seeking legally effective agreement from the applicants to a condition or conditions which would meet any particular concerns pursuant to the power contained in s 50(3).

[110]Fundamentally, however, the submission for the respondent is beside the point. Whether in substance a condition or conditions could meet, or sufficiently alleviate, any relevant concerns, whatever they might be, was a question for the Associate Minister. The question for the Court, at this point in the analysis, is whether the Associate Minister’s failure to consider granting visas subject to conditions was a reviewable error.

[111]For the following reasons I am satisfied that there was error requiring the decision to be set aside and for the Tribunal’s recommendation to be reconsidered by the Minister.

[112]The power to impose conditions is an integral part of the power provided for the purposes already discussed. The factual context of this case illustrates the importance of the power to impose conditions. Those considerations are reinforced by the following features of this case. First, Hana is deemed to impose significant cost and demand in circumstances where she does not. Second, the case came before the Minister under s 188(1)(f), which allowed exceptions to be made to the policy that deems Hana’s condition to be cost-imposing. Third, the only evidence of the actual cost or demand from Hana’s remaining in New Zealand, if granted a resident visa, is cost arising from the disability allowance and supported living payment referred to by

the Tribunal.51 The total of those benefits is $18,564 per annum which is less than half of the maximum sum above which an applicant not deemed to impose significant costs must nevertheless be held to do so, or held to do so if that threshold is reached within five years.52 Fourth, there is a number of further circumstances, considered in the next section, which add substantial weight to a conclusion that the decision should be set aside.

Do the consequences of the decision indicate error?

[113]The following summary of essential aspects of Immigration New Zealand’s decision provides a foundation for consideration of this question:

(a)Hana does not comply with the residence instructions because of her mental disability.

(b)This is because she is deemed to impose significant costs or demands on New Zealand health services because of the intellectual disability and because the capacity of her family to provide care has no bearing on whether Rosaline will in fact impose significant costs or demands on health services.

(c)Mrs Matua would have been granted a resident visa. The application for Mrs Matua was declined because Hana was included in her application as a dependent.

[114]Fifteen factors can be identified which indicate that this clearly is a case for which the power to grant an exception was provided, with one proviso. The proviso is whether there were countervailing policy considerations beyond those already applied through the residence instructions which justified refusal. I will refer to this proviso, to be discussed below, as “the additional policy proviso”.

[115]Fourteen of the factors are as follows:

51At [52]. See [24] above.

52Instructions A4.10.2(a) and (b). See above at [15].

1.Hana was admitted to New Zealand in 2009, with her mother and three siblings, in spite of the fact that she was totally dependent on her mother because of her intellectual disability.

2.From entry to New Zealand in 2009, Mrs Matua has taken all necessary steps to ensure that she and her four children were lawfully in New Zealand, and with her two older sons taking direct responsibility for themselves when they were lawfully able to do so. The entire family has been lawfully in New Zealand since 2009 except, in Hana’s case, since April 2017 when her visitor’s visa expired after the application for the resident visa had been declined.

3.When the Associate Minister made his decision in October 2017,

Mrs Matua had been in a genuine and stable relationship with Mr Matua, whom she had married in 2012, for over seven years.

4.Mrs Matua’s three sons have either obtained New Zealand citizenship or residency. Her two older sons live with their partners in Auckland, near Mrs Matua’s home.

5.Mrs Matua has four grandchildren in New Zealand who are, of course, also nephews and nieces of Hana.

6.Hana is totally dependent on the support of her immediate family. Her mother is her primary caregiver, but she is also supported by and dependent on her stepfather and siblings.

7.There are very strong bonds between Hana and her stepfather as well as between Hana and her mother.

8.Extended family in Samoa are not in a position to care for Hana.

9.There was no evidence before the Associate Minister that Hana, in spite of her severe intellectual disability, had imposed any actual significant cost or demand on New Zealand’s health services. Hana has not, and

at the date of the decision did not, as a matter of fact, impose any costs or demands on New Zealand’s health services of any consequence.

10.The only evidence before the Associate Minister of actual cost or demand on public resources Hana might impose, if granted a resident visa, was not a cost to health services but the cost of a disability allowance and the supported living payment which totalled $18,564 per annum. These entitlements were given emphasis by the Tribunal in the discussion of special circumstances, and with the comment that the benefits “potentially present a significant burden to the New Zealand taxpayer”.53 Given the Associate Minister’s evidence that his normal practice was to consider the Tribunal decision and any discussion on special circumstances in particular, it may be inferred that this effective advice from the Tribunal would have been given weight by the Associate Minister. In my respectful opinion, what the Associate Minister was told is, in context, materially misleading for the following reasons: (1) the two benefits identified by the Tribunal are not costs on New Zealand health services because they are benefits payable under the Social Security Act 1964 (funded through Vote Social Development not Vote Health); (2) on a visa application under the Family (Partnership) category, benefits of this nature are not to be taken into account; (3) the total cost of these benefits would be less than half of the actual cost of $41,000 above which a person not deemed to impose actual cost or demand will be held to do so; and (4) the benefit amount noted by the Tribunal is the maximum entitlement and it is unknown whether Hana would be entitled to the maximum.

11.Those considerations, directed to likely future costs in fact, as opposed to what is deemed by the instructions, do not exclude the possibility that, at some time in the future, Hana might begin to impose significant costs or demands on health services. However, there was the evidence from the psychiatrist, Dr Malur, that Hana “would be eligible for a

53At [52].

disability benefit, but was physically healthy and was unlikely to be a burden on the New Zealand health system”. The Associate Minister’s evidence was that it was his “normal practice … to consider the IPT decision and evaluate, in particular, any discussion on special circumstances on [sic] the decision”. It is proper to infer that the Associate Minister read the Tribunal’s summary of Dr Malur’s evidence, but in my judgment it is also proper to infer that it is unlikely that any weight would have been attached to Dr Malur’s evidence, when weight should have been attached to it, because the reference to Dr Malur’s evidence was not contained in the Tribunal’s “discussion of special circumstances”, but the advice from the Tribunal, noted in the preceding sub-paragraph, was. In any event, Dr Malur’s evidence was direct evidence, not contradicted by any other evidence recorded in the Tribunal decision, that Hana was “unlikely to be a burden on the New Zealand health system”.

12.In the future, as Mrs Matua and her husband get older, support for Hana will be available from her siblings. And it appears there is a strong church tie which is likely also to be a source of support.

13.Mrs Matua would have been entitled to a resident visa if Hana had not been included in her application as a dependent.

14.If an exception is not granted this family will be split apart because Mrs Matua cannot allow her daughter to return to Samoa alone for reasons made clear in the Tribunal decision.

[116]In my judgment these matters, all drawn from the Tribunal’s decision, put the case into a category for which the power to grant an exception was provided by Parliament. This is because, possibly subject only to the additional policy proviso, the effect of the application of the policy contained in the residence instructions will produce consequences for the applicants and their family which are harsh, or oppressive, and unjust.

[117]I referred to fifteen factors and have noted fourteen. The remaining factor, in my judgment, makes this a compelling case for an exception. This arises from consideration of the individual circumstances of Mrs Matua and Hana resulting from the application of the health instructions.

[118]If Mrs Matua were to do what she is lawfully entitled to do, she could apply separately for a resident visa, she would obtain it, and she could then remain lawfully in New Zealand with her New Zealand citizen husband, her sons, their partners, and her grandchildren. However, were Mrs Matua to secure those basic human rights for herself, and for her family, it would mean that Hana could not remain in New Zealand and would have to return to Samoa. The unchallenged evidence in the Tribunal decision, from Dr Malur’s report, makes clear that the consequences for Hana would be dire.

[119]To avoid that outcome for Hana, Mrs Matua was presented with a choice – either to abandon her totally dependent daughter, or go with her to Samoa and leave her husband and her other children and their families in New Zealand.

[120]No humane and just society would ever expect a mother and wife to have to make such a decision. Nor would any democratic society expect blanket policy provisions, contained in administrative directions required to be enforced rigidly, to be allowed to stand in such circumstances, unless there were policy considerations, beyond those contained in the instructions, compelling a contrary conclusion. This is so especially when the matters just considered are coupled with the other factors.

[121]If the Associate Minister’s reason for his decision was that the policy contained in the residence instructions outweighed these considerations, the decision cannot stand, for reasons already recorded. If further support for that conclusion were required – and in my opinion it is not – it is found in the failure to consider granting the visa with conditions.

[122]The additional policy proviso remains for consideration. It might be surmised, on an hypothetical basis, that the Associate Minister declined the application because he considered there were policy considerations requiring refusal of the visas beyond the policy already applied through the instructions. But analysis on that basis is inappropriate. This is for reasons earlier discussed in relation to an election not to provide reasons when reasons could be provided.54

[123]The analysis to this point has been directed to the consequences of the decision in light of the evidence available to the Minister and the evidence the Associate Minister has provided. Analysed on that basis, my conclusion is that the decision is contrary to law and the decision should be set aside.

[124]There is an alternative approach arising from the consequences of the decision. This is to assume, and it is proper to assume, that the Associate Minister would not have made a decision with such harsh and unjust consequences if he had fully realised and understood what the consequences would be, and also understood that not only did he have the power under s 190(5) to avoid such grave consequences by granting visas, but also to do so subject to conditions should conditions be required.

[125]If the matter is considered from that perspective, however, further error is established for one or more of three reasons. The first is that the Minister failed to have regard to all of the material evidence. The second is that he failed to understand from that evidence that refusal to grant the visa would have all of the consequences I have outlined. The third is that he did understand the full range of consequences, but misunderstood his duties and powers under s 190(5), whether in respect of a power not to apply the policy reflected in the instructions, or the duty to consider imposing conditions, or otherwise.

[126]Any one of those failures constitutes an error of law also requiring the decision to be set aside.

54See above at [67]-[75].

The original grounds for review

[127]The “original grounds for review”, as will be apparent, are the grounds as originally advanced for the applicants.55 These do not include what amount to new grounds arising from the issues identified in my minute following the hearing and which have now been considered. The discussion of the two new grounds takes account of some matters of substance advanced for the applicants by Mr Singh in submissions on some of the original grounds. Given the conclusions already reached, and matters taken into account from the original grounds of review, it is unnecessary to consider the original grounds in detail.

Unreasonableness

[128]Mr Singh submitted that the Associate Minister’s decision was unreasonable, on a Wednesbury basis.

[129]The principal argument proceeded on the basis that the Associate Minister is bound to have relied on the Tribunal’s decision, the Tribunal’s decision was “flawed” in a material respect and, in consequence, the Associate Minister’s decision is unreasonable and should be set aside. This was summarised, at the outset of Mr Singh’s submissions, as follows:

The crux of the application for judicial review is as follows. The Applicants’ residence application was declined on the basis that the Second Applicant was deemed to impose significant costs or demands on New Zealand’s health services or special education services. However, the medical evidence available indicates that the Second [Applicant] would not impose significant costs or demands on health [or] education services.

…

The result of the above is that the Applicants, who do not impose significant costs or demands on New Zealand’s health or education services, have been declined residence applications on the erroneous basis that they do impose such costs. This matter has not been expressly addressed by the Tribunal in their [sic] decision.

55Summarised above at [38]-[42].

[130]This argument, as developed in submissions, merged quite separate areas of enquiry. The first was whether Immigration New Zealand was correct in its application of the residence instructions. Mr Singh disavowed an intention to argue that the applicants met the health instructions, but an essential part of this argument was a challenge to the application of the instructions and, in substance, to the Tribunal’s conclusion that the instructions were properly applied. This element of the argument could not assist the applicants in the challenge to the Associate Minister’s decision. His decision did not turn on, and could not properly turn on, a question whether application of the instructions was correct or incorrect. The decision for the Associate Minister was whether to grant an exception to residence instructions on the express statutory basis, under s 188(1)(f), that the instructions had been correctly applied.

[131]In addition, whether Hana, as a matter of fact, did, or would, impose significant cost on New Zealand’s health services was also not a relevant enquiry for Immigration New Zealand, and therefore not a relevant enquiry for the Tribunal in determining whether Immigration New Zealand was correct. This is because of the deeming provision in cl A4.10(c) of the health requirements under the residence instructions.

[132]The second and separate area of enquiry, merged in this challenge to the decision, was whether, in the Tribunal’s opinion, there were special circumstances justifying a recommendation to the Minister. The evidence that Hana did not and would not impose significant costs on New Zealand’s health services was noted by the Tribunal in this context. This was the evidence from the psychiatrist, Dr Malur. Mr Singh gave emphasis to Dr Malur’s opinion that Hana “was unlikely to be a burden on the New Zealand health system”. What was perhaps the heart of Mr Singh’s argument was that this evidence was effectively set aside by the Tribunal in its advice to the Associate Minister that Hana’s entitlement to a disability allowance and a supported living payment “does potentially present a significant burden to the New Zealand taxpayer”.

[133]I agree with the thrust of this part of the submissions for the applicants as indicated in the preceding discussion of error indicated by the consequences of the decision.

[134]Three further arguments in support of the unreasonableness ground for review were improper discrimination, inconsistency with the objectives and purposes of the Act and immigration instructions, and inconsistency with international obligations. These arguments have already been taken into account in the preceding discussion. None provides independent grounds for setting aside the decision.

Breach of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993

[135]Section 19(1) of the New Zealand Bill of Rights Act 1990 provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. Under s 21(h)(iv) of the Human Rights Act, intellectual disability is a prohibited ground of discrimination. The statutory provisions were advanced as a separate ground of illegality on the basis that the decision breaches those provisions.

[136]An argument on that basis is not tenable. As with some other grounds for review, in substance it is a challenge to the validity of the residence instructions and, in particular, the deeming provisions. In addition, as Ms Jerebine noted, had the applicants made a claim of discrimination to the Human Rights Review Tribunal, the challenge could not have been permitted. Section 392 of the Act expressly provides that a complaint cannot be made under the Human Rights Act in respect of the “content or application of any immigration instructions made in accordance with section 22”.56

Failure to take account of mandatory considerations

[137]It was argued for the applicants that the Associate Minister failed to take into account relevant articles in the International Covenant on Civil and Political Rights and the Convention on the Rights of Persons with Disabilities.57 For reasons earlier

56Section 392(3) also provides that s 392 “recognises that immigration matters inherently involve different treatment on the basis of personal characteristics”.

57See above at [82].

recorded, I am satisfied that two articles in the Covenant on Civil and Political Rights were mandatory considerations in this case. I have taken the provisions of those articles into account, to the extent I consider them relevant, in itemising the factors which bear on my conclusion that the consequences of the Associate Minister’s decision do indicate error. Beyond those considerations, I am not persuaded that it can be inferred from the evidence that the Associate Minister simply ignored all international obligations. As earlier recorded, the Associate Minister expressly said that, in considering a referral under s 190(5), he “was aware of New Zealand’s international obligations as they relate to immigration decision-making”.58

[138]Mr Singh also argued that there was reviewable error in failing to take into account medical evidence that Hana would not in fact impose significant costs or demands on New Zealand’s health services and, separately, the purposes and objectives of the Act and immigration instructions. I have also taken account of these considerations, but in my judgment neither point provides an independent ground for setting aside the decision.

Taking account of irrelevant matters

[139]The argument was that the Associate Minister, relying on the Tribunal’s decision, must have improperly taken into account Hana’s eligibility for a supported living payment benefit if granted a resident visa. Again, this factor has been taken into account in my reasons.

Result

[140]For all of the preceding reasons, I am satisfied that there was material error by the respondent in declining to grant resident visas to the applicants as an exception to instructions and such error requires the decision to be set aside. There are the following orders in respect of the decision:

(a)The decision is set aside.

58See above at [34].

(b)The decision is referred back to the Minister for reconsideration of the recommendation of the Tribunal in its decision dated 7 June 2017.

(c)Such reconsideration should take account of the conclusions of law in this judgment, which include interpretation of statutory provisions.

[141]The applicants are entitled to costs to be assessed on a 2B basis, together with reasonable disbursements. Any issue in relation to quantification of costs or as to reasonableness of disbursements is to be determined, in the first instance, by the Registrar.

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Woodhouse J