ZHANG v MINISTER OF IMMIGRATION [2020] NZHC 568 [19 March 2020]

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

CIV 2019-404-000699

[2020] NZHC 568

UNDER

The Judicial Review Procedure Act 2016

BETWEEN

YAN ZHANG

Applicant

AND

MINISTER OF IMMIGRATION

Respondent

Hearing:

06 September 2019

Appearances:

S R G Judd for the Applicant

S M Earl & E A M Mok for the Respondent

Judgment:

19 March 2020

JUDGMENT OF GWYN J

This judgment was delivered by me on 19 March 2020 at 3.00pm

Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel: J Tam, Edison Tam Lawyers, Auckland

S R G Judd, Barrister, Auckland

Meredith Connell, Auckland

Introduction

[1] The applicant, Ms Yan Zhang, applied for New Zealand residence under the

Family (Partnership) category of the immigration instructions (the Instructions)

promulgated pursuant to the Immigration Act 2009 (the Act). Immigration New

Zealand declined the application. Ms Zhang appealed to the Immigration and

Protection Tribunal (the Tribunal). The Tribunal confirmed the decision of

Immigration New Zealand as correct in terms of the Instructions but considered Ms

Zhang had special circumstances that warranted consideration by the Minister of

Immigration as an exception to the Instructions.1 The Tribunal requested that the

Minister make a decision pursuant to s 190(5) of the Act.

[2] The decision under s 190(5) was made by the Associate Minister of

Immigration, the Hon Kristopher Faafoi, on delegated authority from the respondent

Minister. On 18 March 2019 the Associate Minister declined to grant the resident visa

as an exception (the Decision).

[3] Ms Zhang now seeks judicial review of the Decision.

Facts

[4] Ms Zhang, a citizen of the People’s Republic of China, met Kexiao Chen, a

New Zealand citizen, in February 2015. A relationship developed where Mr Chen

would fly back and forth to China to visit Ms Zhang. The pair married in China in

May 2016. Shortly thereafter Ms Zhang discovered she was pregnant and in August

2016 came to New Zealand on a visitor visa. The couple’s son was born in April 2017

and is a New Zealand citizen.

[5] On 22 March 2018 the applicant applied for New Zealand residence under the

Family (Partnership) category of the Instructions.

[6] In a letter dated 16 August 2018 Immigration New Zealand declined the

applicant’s residence application because Mr Chen was found to be an ineligible

1 ZD (Partnership) [2019] NZIPT 205223, 8 March 2019.

sponsor. Mr Chen was ineligible because a person may act as a partner only twice in

their lifetime and he had previously acted as a partner in two successful partnership

residence applications. His ineligibility was the only reason for the refusal of the

application.

[7] The two instances in which Mr Chen had acted as partner are as follows: in

2002 he relocated to New Zealand from China with his then wife and their daughter.

In 2004 he and his wife were granted residence visas under the general skills category.

He acted as a secondary applicant in a successful residence class visa application;

although the application was not made under the partnership category the Instructions

deemed him to have acted as a partner. In 2008 he and his wife separated and he

formed a relationship with a new partner.

[8] In 2009 Mr Chen acted as a supporting partner for his new partner’s application

under the partnership category. Her residence visa was approved on 7 September

2010. The relationship subsequently broke down and the pair separated.

[9] On the basis of these two previous instances of Mr Chen acting as a supporting

partner Immigration New Zealand declined Ms Zhang’s application.

Tribunal decision

[10] Ms Zhang appealed the decision of Immigration New Zealand to the Tribunal

pursuant to s 187(4) of the Act. This provision sets out that there will be grounds for

an appeal where the decision was not correct in terms of the Instructions or where

special circumstances of the appellant are such that consideration of an exception to

the Instructions should be recommended by the Tribunal.

[11] On 8 March 2019 the Tribunal issued its determination (Tribunal Decision). It

held that the decision of Immigration New Zealand had been correct as it was made in

accordance with the Instructions, there being no dispute that Mr Chen had acted as a

supporting partner on two previous occasions and was therefore ineligible to act as

sponsor of Ms Zhang’s application.2 However, while confirming that the decision was

2 At [27].

correct in terms of the Instructions, the Tribunal considered there were special

circumstances of the appellant that warranted consideration by the Minister of

Immigration as an exception to the Instructions and requested the Minister consider

the grant of a resident visa, with or without conditions, pursuant to s 190(5) of the

Act.3

[12] The Tribunal noted that special circumstances are “circumstances that are

uncommon, not commonplace, out of the ordinary, abnormal”.4 The Tribunal

identified the following salient factors in relation to the appellant:

(a) Ms Zhang has been married to her husband, Mr Chen, since 2016 and

he is a New Zealand citizen who has been living in New Zealand since

2002.5 Their relationship is genuine and stable.6

(b) Ms Zhang and Mr Chen have a son who was born in New Zealand and

is a New Zealand citizen.7 Ms Zhang was then pregnant with their

second child.8

(c) The couple’s son has only ever lived in New Zealand and has never

visited China.9 The best interests of the children are a primary

consideration and it is in their best interests that Ms Zhang remains

living in New Zealand permanently where she is able to provide the

necessary care and maintain their safe and loving family unit, with both

parents.10

(d) Mr Chen has an adult daughter who is a New Zealand citizen and has

lived in New Zealand since 2004.11 Mr Chen’s daughter has her own

young daughter who is also a New Zealand citizen.

3 At [57]–[58]. 4 At [30]; quoting Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24]. 5 At [32]. 6 At [36]. 7 At [33]. 8 She has since given birth to a baby girl who is also a New Zealand citizen. 9 At [48]. 10 At [46], [51] and [55]. 11 At [34].

(e) Mr Chen’s previous relationships broke down for legitimate reasons

and were not used as devices for migration.12

(f) China does not recognise dual citizenship and therefore Mr Chen is no

longer a Chinese citizen and would be treated as a foreign citizen if he

returned.13

(g) Mr Chen and the two children, who do not have Chinese citizenship,

will have no automatic long-term permanent status in China.14 They

will be able to enter as temporary visitors. As visitors, they will not

have access to health care, education or other services in the public

system. Obtaining these services through the private system is costly

and outside the family’s means. Ms Zhang and Mr Chen do not have

employment in China. Even if they were able to obtain employment

the costs of private schooling would place significant strain on their

resources.15

(h) Mr Chen is well-settled in New Zealand and holds a stable, senior

position in a company in New Zealand.16 He currently supports the

family unit.17

(i) While Mr Chen may be able to reintegrate into life in China, as he was

previously a Chinese national and speaks the language, this may require

him to renounce his New Zealand citizenship and leave the country and

home where he has been settled for the last 17 years and where his

children are citizens.18

(j) Ms Zhang meets the health and character requirements for residence.19

12 At [36]. 13 At [38]. 14 At [40]. 15 At [49]. 16 At [39]. 17 At [50]. 18 At [41]. 19 At [44].

(k) Ms Zhang has a clear updated Police certificate.20

[13] Cumulatively, these factors led to the conclusion that Ms Zhang had special

circumstances arising from the best interests of her children, her genuine and stable

relationship with Mr Chen, her lack of other viable pathways to obtain residence in

New Zealand and the difficulty in relocating the family to China.21

[14] As a result, the Minister of Immigration was requested to make one of two

decisions pursuant to s 190(5) of the Act: grant a residence visa with or without

conditions, as an exception to the Instructions; or, decline to do so.

The Decision

[15] On 18 March 2019 the Associate Minister of Immigration, on behalf of the

Minister, declined to grant Ms Zhang a resident visa.22 Reasons were not required and

were not given.23

[16] In a sworn affidavit dated 2 July 2019 Mr Faafoi outlines the usual process that

he adopted when making a decision pursuant to s 190(5), which he says he followed

when making the Decision:

(a) he would be provided with the Tribunal decision;

(b) he would consider the Tribunal’s decision with particular focus on the

factual background and the Tribunal’s assessment of special

circumstances;

(c) he was aware that he could ask for further information from the

Immigration New Zealand file, however it was usually unnecessary to

do so as the relevant circumstances were typically set out in detail in

20 At [45]. 21 At [56]. 22 In a letter annexed to the affidavit and dated 13 November 2017 the Minister of Immigration

delegated certain classes of decisions to the Associate Minister, including those under s190(5).

This confirmed that the Associate Minister had the authority to make the Decision. His authority

to make the Decision is not disputed by either party. 23 Immigration Act 2009, s 190(6).

the Tribunal’s decision and he could make his decision based on the

factual background described, together with the special circumstances

described;

(d) after considering the matter he would make a decision and sign the

Tribunal decision in the space provided to indicate whether the

exception had been granted or not; and

(e) the decision would then be returned to the Tribunal.

[17] Mr Faafoi noted that he was aware he could grant a resident visa subject to

conditions and of New Zealand’s international obligations as they relate to the making

of immigration decisions.

[18] Mr Faafoi confirmed that he made the decision in the appellant’s case and that

he remembered making it. He also confirmed that he did not review any material

beyond the Tribunal Decision.

The grounds for review

[19] The applicant seeks judicial review on three separate but interrelated grounds:

(a) In making the Decision the Associate Minister failed to properly

consider one or more of the following mandatory considerations:

(i) the special circumstances identified by the Tribunal;

(ii) the purposes of the Act;

(iii) international conventions relating to the protection of the family

including arts 17 and 23 of the International Covenant on Civil

and Political Rights (ICCPR); and

(iv) whether a visa should be granted on conditions.

(b) The consequences of the Decision are harsh, oppressive and unjust and

are the very reason and purpose for the special circumstances exception

in s 190(5) sufficient to show error in the Decision.

(c) No reasonable decision maker in the position of the respondent, having

read the Tribunal’s determination and being aware of the statutory

purpose of the Act and the relevant obligations under international law,

could have declined to grant a residence visa in the circumstances.

[20] Should any of the above grounds be made out the applicant seeks an order

setting aside the Decision and referring it back to the respondent to reconsider the

Tribunal’s recommendation.

The Law

Immigration Act 2009

[21] The purpose of the Act is set out in s 3(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.

[22] Section 22 of the Act provides for the Minister to 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”, including “any general or specific objectives of immigration policy”.24

The Immigration Instructions

[23] Immigration instructions are statements of government policy, rather than

regulations or legislation.25 The Court of Appeal referred to immigration instructions

in the following terms:26

24 Immigration Act 2006, s 22(5)(a). 25 Singh v Chief Executive of Ministry of Business, Innovation and Employment [2013] NZHC 3273

at [20]. 26 Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.

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

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.

[24] Residence instructions are applicable to applications for residence class visas.

They are binding on the Minister and on immigration officials as per the Act:

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.

[25] The Instructions set out the relevant criteria for assessment. Regarding the

objectives of the Family and Partnership categories they state:

The objectives of the Family Categories are to:

a. strengthen families and communities, while reinforcing the

Government's overall objectives in immigration instructions; and

b. contribute to New Zealand's economic transformation and social

development.

…

[the] Partnership Category contributes to the overall objective of the Family

Categories (see F1) by allowing the partners of New Zealand citizens and

residence class visa holders to apply for a residence class visa in order to live

with their partner in New Zealand.

[26] The key requirements to qualify for a partnership visa are set out at F2.5.

Applicants are required to “provide sufficient evidence to satisfy an immigration

officer that they have been living together for 12 months or more in a partnership that

is genuine and stable with a New Zealand citizen or resident.” A legal marriage is a

recognised partnership. The onus of proving the relationship is genuine and stable lies

with the applicant and their partner.

[27] The listed grounds for declining an application are if:

i the application is not supported by an eligible New Zealand citizen or

resident partner;27 or

ii an immigration officer is not satisfied that the partnership on which

the application is based is genuine and stable; or

iii the applicant and New Zealand citizen or resident partner have not

lived together for 12 months or more at the time the application is

lodged; or

iv the application is based on marriage or a civil union to a New Zealand

citizen or resident and either that New Zealand citizen or resident, or

the principal applicant is already married to or in a civil union with

another person; or

v both the principal applicant and the New Zealand citizen or resident

partner cannot satisfy an immigration officer they comply with the

minimum requirements for recognition of partnerships (see F2.15); or

vi the applicant(s) does not meet health and character requirements (see

A4 and A5).

[28] The Instructions define a partnership at F.2.10.1 as being genuine and stable if

an immigration officer is satisfied that it:

a is genuine, because it has been entered into with the intention of being

maintained on a long-term and exclusive basis; and

b is stable, because it is likely to endure.

[29] The Instructions which were in force at the time state an application should

include as much information and documentation as necessary to demonstrate that the

applicant’s partner is a New Zealand citizen or resident and eligible to support (and

actually in support of) their application, that New Zealand is the supporting partner’s

primary place of established residence and that the partnership is genuine and stable.

A range of factors bearing on the latter assessment include but are not limited to:

27 This is the ground on which Ms Zhang’s application failed.

i. the duration of the parties’ relationship;

ii. the existence, nature and extent of the parties’ common residence;

iii. the degree of financial dependence or interdependence, and any

arrangements for financial support, between the parties;

iv. the common ownership, use, and acquisition of property by the

parties;

v. the degree of commitment of the parties to a shared life;

vi. children of the partnership, including the common care and support of

such children by the parties;

vii. the performance of common household duties by the partners; and

viii. the reputation and public aspects of the relationship.

[30] The Instructions provide a list of possible types of evidence, noting that each

case will be decided on the basis of all the provided evidence, without any one item’s

presence or absence being determinative.

[31] Relevantly, at F.2.10.10 the Instructions state that for an individual to be

eligible to support a residence class visa application under the Partnership category

they must not have acted as a partner in more than one previous successful residence

class visa application. This includes if they previously:

i supported a successful Partnership Category application for a

residence class visa; or

ii were the principal applicant in a successful Partnership Category

application for a residence class visa; or

iii were the principal applicant in a successful application for a residence

class visa that included a secondary applicant partner, excluding

residence class visa applications made under RV After the grant of a

resident visa; or

iv were a secondary applicant partner in a successful application for a

residence class visa, excluding residence class visa applications made

under RV After the grant of a resident visa.

[32] The other requirements (such as character requirements) were not at issue in

this case.

The Minister’s role

[33] 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):

190 Procedure where appeal successful or Tribunal makes

recommendation

…

(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.

(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.

What is the nature and breadth of the Minister’s discretion?

[34] There are only three cases that have considered the scope of judicial review in

relation to decisions made under s 190(5), namely CF v Attorney-General,28 Goundan

v Immigration and Protection Tribunal29 and Matua v Minister of Immigration.30

CF v Attorney-General

[35] In CF an Iranian man who was previously employed in his home country by

an organisation with a history of gross human rights abuses was denied a residence

class visa on the basis that he did not reach the character requirements contained in

the Instructions.31 The Tribunal confirmed that the decision to reject his application

was correct but recommended that the Minister consider granting a residence visa by

way of exception to the Instructions.32 The Minister declined to do so and provided

28 CF v Attorney-General [2016] NZHC 3159, [2017] NZAR 152. 29 Goundan v Immigration and Protection Tribunal [2018] NZHC 1756. 30 Matua v Minister of Immigration [2018] NZHC 2078. 31 CF v Attorney-General, above n 28, at [3]. 32 At [5].

no reasons for the decision.33 CF sought judicial review of the decision, on grounds

including that the Associate Minister failed to take into account mandatory relevant

considerations (including the best interests of his children), considered irrelevant

factors, breached natural justice and made a decision that was unreasonable in the

Wednesbury sense.34

[36] The claim failed on all grounds and review was declined. Moore J considered

authorities to the effect that a lack of reasons, where reasons are not statutorily

required, will not necessarily indicate a lack of consideration of particular factors in

an s 190(5) context.35 In light of the extensive consideration of the interests of the

child in the Tribunal’s decision, which the Associate Minister had “considered in some

detail”, Moore J inferred that the Associate Minister had not failed to take into account

any relevant considerations.36 His Honour also rejected the argument that the

Associate Minister had taken into account irrelevant considerations, on the facts as

well as the legal basis that nothing in s 190 limits the matters a Minister can take into

account when considering a Tribunal recommendation under s 190(5).37 The

unreasonableness argument was also rejected.38

Goundan v Immigration and Protection Tribunal

[37] Ms Goundan, a citizen of Fiji, had been refused a residence class visa under

the skilled migrant category, but the Tribunal recommended that the Minister consider

granting a visa as an exception to the Instructions due to special circumstances.39 The

Associate Minister declined and provided no reasons.40 Ms Goundan sought review

of the decision on the basis that the Associate Minister had failed to consider a

mandatory relevant consideration, namely her Immigration New Zealand file, which

had been pointed to in the Tribunal decision.41

33 At [6]. 34 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at

233–234. CF also sought to challenge the validity and effect of the Instructions themselves. 35 CF v Attorney-General, above n 28, at [92]–[94]; quoting Ning v Minister of Immigration [2016]

NZHC 697 at [46]. 36 At [101]. 37 At [105]–[108]. 38 At [120]. 39 Goundan v Immigration and Protection Tribunal, above n 29, at [4]. 40 At [5]. 41 At [7].

[38] Justice van Bohemen found that the file was not a mandatory consideration and

that considering the Tribunal decision was sufficient, as it had traversed all the relevant

details of the file.42 In coming to this decision van Bohemen J noted that the broad

terms in which the Minister’s power is cast, coupled with the fact that the Minister is

not required to give reasons, made it clear that the Minister’s discretion is broad.43

Given the high policy content of decisions made under s 190(5) the Court should be

cautious about interfering absent an error of law or unreasonableness in the

Wednesbury sense.44

Matua v Minister of Immigration

[39] Mrs Matua, a citizen of Samoa, had applied for a residence visa for herself and

her daughter.45 Mrs Matua’s residence application had included her daughter as, due

to intellectual disabilities, her daughter was dependent on her. The application was

declined because Mrs Matua’s daughter did not meet the acceptable standards of

health prescribed in the Instructions.46 On appeal to the Tribunal a recommendation

was made that the Minister consider whether to grant a residence visa as an exception

the Instructions.47 The application was declined and no reasons were given.

Mrs Matua sought judicial review.

[40] After hearing the matter Woodhouse J identified two broad grounds for review

requiring consideration, namely, whether the Minister failed to consider granting a

visa subject to conditions or whether the consequences of the decision were so unduly

harsh as to indicate an error of law.48

[41] Justice Woodhouse distinguished the discretion conferred on the Minister by

s 190(5) from an absolute discretion under the Act.49 This was because of the statutory

provisions enabling applicants to apply for an exception to be recommended and

because the Minister has a duty under s 190(5) to consider whether to grant the visa

42 At [27]. 43 At [18]. 44 At [19] and [21]. 45 Matua v Minister of Immigration, above n 30, at [1]. 46 At [2]. 47 At [3]. 48 At [43]. 49 At [56].

as an exception.50 The discretion not to give reasons under s 190(6) does not inform

the scope of the discretion under s 190(5).

[42] Justice Woodhouse then diverged from the general statements made in CF and

Goundan that emphasised the broad nature of the discretion and the high policy

content of the decision as a general proposition relevant to every applicable case

arising under s 190(5).51 His Honour considered that when it comes to the Minister’s

decision under s 190(5):52

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.

[43] Justice Woodhouse took s 190(5) to represent recognition by Parliament that

the Instructions are a “blunt instrument” whose rigid application will occasionally

require an exception to accommodate special circumstances.53 This is not to say that

s 190(5) decisions will never involve questions of policy (his Honour considered CF

involved a policy evaluation regarding New Zealand’s international reputation),54 but

that the breadth of the discretion granted to the Minister will depend on the particular

circumstances of each case.55 Where a case’s special circumstances do not give rise

to new policy considerations 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.56 Some circumstances will be insufficiently severe to

warrant an exception, whereas others “plainly [will be] circumstances of a nature for

which the power was granted and which require an exception to be made.”57

[44] Turning to the grounds for review, Woodhouse J considered the possibility of

the residence visa being granted subject to conditions to be a mandatory relevant

50 At [56]. 51 At [58]. 52 At [58]. 53 At [59]. 54 At [60]–[61]. 55 At [52]. 56 At [65]. 57 At [66].

consideration, distinct from whether a visa should be granted generally.58 Also

mandatory was consideration of the relevant international obligations.59 With no

evidence from which it could be inferred that the Associate Minister had considered

the possibility of granting a visa subject to conditions the decision was set aside.60

Regarding international obligations, his Honour took the provisions of the relevant

articles as supporting the conclusion that the consequences of the decision indicated

error, but was not persuaded that it could be inferred that the Associate Minister had

simply ignored all international obligations, noting that the Associate Minister

expressly mentioned 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”.61

[45] Notably, Woodhouse J also held that it was possible, in the context of s 190(5),

to determine error from the consequences of a decision:62

… [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.

[46] His Honour considered the consequences of the decision were sufficient to

conclude an error had been made. Fourteen factors pointed to the case being in the

category for which the power to grant an exception was provided, in that the policy

contained in the Instructions would produce unduly harsh, oppressive or unjust

consequences.63 A fifteenth factor was that requiring Mrs Matua choose to either leave

her family to care for her dependent daughter in Samoa or abandon that daughter was

a choice that “no humane and just society would ever expect a mother and wife to have

58 At [79](d). 59 At [81] and [82]. 60 At [111]. 61 At [137]. 62 At [95]. 63 At [116].

to make”.64 No external policy justification had been identified by the respondent, and

the policy underlying the Instructions could not suffice to warrant denying the

exception.65

Intensity of review

[47] In submissions the parties traversed at length the appropriate approach to

judicial review of a decision made pursuant to s 190(5). In short, counsel for the

respondent contends that judicial review is limited to the grounds of Wednesbury

unreasonableness and illegality (or error of law).66

[48] Regarding illegality, Ms Earl for the respondent says that where reasons are

not required, as under s 190(5), it is difficult to infer that an error has been made and

accordingly broad discretion should be given to the decision maker. Ms Earl relies on

CF and Goundan, both of which emphasised the broad discretion of the Minister. She

distinguishes the approach adopted in those cases from that in Matua and asks this

court to find that Matua was wrongly decided. Mr Judd, counsel for Ms Zhang,

responds that there is no need to distinguish the legal approaches but rather the facts

of the cases, as the current case is much closer to Matua than the others, and in Matua

Woodhouse J found the facts warranted closer scrutiny.

[49] The discussion of the Minister’s discretion in the three previous s 190(5) cases

focuses largely on three factors which may limit the extent of the Court’s review of

the Minister’s decision under s 190(5). Those are the policy content of the Minister’s

decision; the statutory framing of the discretion (including the lack of a requirement

that the Minister give reasons); and whether it is an “absolute” or an “ordinary”

discretion.

64 At [120]. 65 At [121]. 66 See Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2015]

NZCA 592, [2016] NZAR 93, in which the Court of Appeal rejects a “correctness” standard at

[41].

“Policy” decision

[50] In Goundan van Bohemen J stressed the “high policy content” to decisions

under the Act, including under s 190(5): in making a decision under s 190(5) the

Minister is making a decision that is not subject to established government policy.67

However, as discussed above, in Matua Woodhouse J cautioned against automatically

assuming that decisions have high policy content.68 His Honour considered that where

special circumstances in an individual case do not 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 should be on individuals’ rights.69

[51] I agree with Woodhouse J’s approach. There is a distinction between

determinations with significant policy content, or which have policy implications

beyond the borders of the particular circumstances, and those which are focused on

the individualised circumstances of the particular case without (or with very limited)

policy ramifications.70 I do not consider that a decision can be characterised as a

“policy decision” purely by reference to the fact that it involves a ministerial

responsibility – there must be something more.71

“Absolute” or “ordinary” discretion

[52] In Matua Woodhouse J noted the distinction between two types of discretion

conferred by the Act on the Minister and on immigration officers: an “absolute

discretion” and a discretion which is not otherwise defined, but which he termed an

“ordinary” discretion. 72 The meaning of absolute discretion is defined at s 11. Under

the s 11 definition, the exercise of the powers affected cannot be applied for and there

67 Goundan v Immigration and Protection Tribunal, above n 29, at [19]. 68 Matua v Minister of Immigration, above n 30, at [58]. 69 At [65]. 70 I am influenced in this comment by Chris Finn “The Justiciability of Administrative Decisions: A

Redundant Concept?” (2002) 30 FL Rev 239 at 240; and Fiona Wheeler “Judicial Review of

Prerogative Power in Australia: Issues and Prospects” (1992) 14 Syd LR 432 at 451. 71 See Finn, above n 70, at 249. In Matua v Minister of Immigration, above n 30, Woodhouse J

surveyed examples of decisions giving rise to new policy considerations – such as whether an

overseas qualification not recognised in New Zealand should nevertheless be accepted; whether a

shortage of people with a relevant expertise should be met by granting an exception to a health

criterion; and the appropriate response to the risk a particular individual posed to New Zealand’s

international reputation at [60]–[62]; drawing on examples in Doug Tennent, Katy Armstrong and

Peter Moses Immigration and Refugee Law (3rd ed, LexisNexis, Wellington, 2017) at [10.10.7]. 72 Matua v Minister of Immigration, above n 30, at [53]–[56].

is no obligation to consider their exercise; there is also no duty to make any inquiries

and no duty to give reasons where the powers are exercised. Some sections expand

on the s 11 definition – such as s 177, which provides an absolute discretion as to the

decision to cancel a deportation order served on a person unlawfully in New Zealand

but sets certain parameters on when the decision maker must consider making a

decision and requiring them to have regard to (and record details relevant to) relevant

international obligations.

[53] Section 190(5) plainly does not give the Minister an absolute discretion.

Where the Tribunal makes a recommendation the Minister “must” consider whether

to grant the visa as an exception. Implicitly, the Minister must consider the

circumstances of the applicant and balance New Zealand’s “national interest” and the

rights of the individuals concerned, and may on the facts be required to consider New

Zealand’s international obligations.73

[54] Many of the authorities relied on by the respondent to the effect that the Court’s

ability to review a ministerial decision is necessarily very limited involved absolute

discretions.74 While absolute discretion provisions allow much less room for judicial

scrutiny, even there, judicial review is not ousted. Review must always be available

to ensure that a power has been exercised in accordance with law, in good faith and

for its proper purpose.75 As Hanna Wilberg notes in her useful discussion of absolute

discretion provisions in New Zealand legislation:76

The intended effect of an ‘absolute discretion’ provision is likely to include

discouraging judicial challenges. …

At one extreme, the phrase might represent an attempt at complete ouster of

judicial review. However, this possible meaning has been rejected both by the

courts and during the legislative process. Judicial review applies to ‘absolute

73 At [81]–[82]; and Immigration Act 2000, s 3(1). 74 See Ning v Minister of Immigration, above n 35; Zhang v Associate Minister of Immigration

[2016] NZCA 361, [2016] NZAR 1222; Singh v Chief Executive, Ministry of Business Innovation

and Employment, above n 66; Chief Executive of the Ministry of Business, Innovation and

Employment v Liu [2014] NZCA 37, [2014] 2 NZLR 662; and Yure v Bentley HC Auckland M

1530-PL01, 8 November 2001. 75 Hanna Wilberg “Interrogating Absolute Discretion’: Are NZ’s Parliament and Courts

Compromising the Rule of Law?” (2017) 45(3) FL Rev 451 at 551; citing Ning v Minister of

Immigration, above n 35, at [24]; and Cao v Ministry of Business, Innovation and Employment

[2014] NZHC 1551, [2014] NZCAR 871 at [36]. See also McGrath v Accident Compensation

Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [31]. 76 At 549.

discretion’ at least to some extent, at least in the context of the more significant

powers where the point has been considered. Still, there is much appellate

authority – all of it concerning the Immigration Act provisions – for

considering review to be severely limited.

[55] Given s 190(5) is plainly not an absolute discretion I do not need to discuss

these issues further. Conclusions about the scope of judicial review based on the

authorities on absolute discretion cases are not applicable to s 190(5).

Absence of reasons

[56] Section 190(6) provides:

The Minister is not obliged to give reasons in relation to any decision made as

a result of any consideration under s 190(5), and neither section 27 of this

Act77 nor section 23 of the Official Information Act 198278 applies in respect

of any such decision.

[57] The respondent relies on this provision in support of a submission that, in many

respects, the Minister’s discretion under s 190(5) is similar to an absolute discretion.

But the discretion not to give reasons is not an essential part of an absolute discretion.

As Wilberg notes, some provisions expressly pair an ‘absolute discretion’ with a duty

to give reasons.79 The inclusion of a provision such as s 190(6) does not magically

turn an ordinary discretion into an absolute discretion.80

[58] As Woodhouse J noted in Matua, the fact that the Minister is not obliged to

give reasons means that there is not a reviewable error merely because the Minister

chooses not to give reasons.81 The lack of a record of the Minister’s reasoning process

will generally mean there is no direct evidence of which matters were and were not

taken into account.82 Nor can the quality of the reasoning process be subjected to

direct scrutiny. But the decision can be assessed for reviewable error having regard to

the statutory context and the evidence, which will include evidence established to have

77 Headed “Reason for decisions must be given if visa or entry permission refused to certain

persons”. 78 Headed “Right of access by person to reasons for decisions affecting that person”. 79 At 550. One example is s 24 of the Social Workers Registration Act 2003. 80 Matua v Minister of Immigration, above n 30, at [57]. 81 At [67]–[68]. 82 At [67]; see also CF v Attorney-General, above n 28, at [93]–[94]; and Ning v Minister of

Immigration, above n 35, at [46].

been put before the Minister, and any matters the Minister was bound to consider.83

In certain cases the Court may be required to infer reasons in the absence of given

reasons, and those inferences may be adverse, suggesting the decision was flawed.84

[59] In Ning v Minister of Immigration Thomas J said:85

In the absence of reasons, it is difficult to determine what has been considered

and what has not. However, this does not lead to the inference that the

decision has been made without requisite consideration. That would

undermine the clear statutory policy of allowing decisions to be made and

issued without reasons. 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.

[60] This is not a case where the Court lacks access to the full range of information

upon which the Associate Minister’s decision is based. Mr Faafoi’s affidavit makes it

plain that he looked only at the Tribunal’s decision, as provided to him under the cover

letter, that he did not seek further information and that he followed his usual decision-

making process as set out above at [16]. He also noted that, when considering Tribunal

requests that he consider making an exception to residence instructions, he “was aware

of New Zealand’s international obligations as they relate to the making of international

decisions.”

Analysis

[61] I will begin by assessing the mandatory considerations ground of review,

before addressing the second and third grounds (that the consequences of the decision

indicate error and unreasonableness) together.

Failure to consider mandatory considerations

[62] Ms Earl, for the respondent, submits that there is no evidence that the Tribunal

Decision, the purpose of the Act or the relevant international conventions were

overlooked by the Associate Minister. The Associate Minister’s sworn affidavit

83 Matua v Minister of Immigration, above n 30, at [67]; and Nair v Chief Executive of the Ministry

of Business, Innovation and Employment [2016] NZHC 345, at [37]–[38]. I note that Nair was

overturned on appeal, but not on the point which is relevant here. 84 Nair v Chief Executive of the Ministry of Business, Innovation and Employment at [38]–[40]. 85 Ning v Minister of Immigration, above n 35, at [46].

specifically states that he considered the Tribunal’s decision and that he was aware of

New Zealand’s international obligations. In addition, although not referring to the

international obligations by name, the Tribunal Decision addressed them in substance,

so it can be inferred that the Associate Minster had regard to them. Regarding whether

he considered the imposition of conditions on a residence class visa Mr Faafoi’s

affidavit notes he was aware of that ability and counsel submits that it is unclear what

purpose imposing conditions could serve in the circumstances of the present case.

[63] The Act does not expressly specify the considerations that the Minister must

take into account when making a decision under s 190(5). However, a statute may

impliedly identify considerations which are mandatory for a Minister to take into

account when exercising a discretion.86 In my view the following were mandatory

considerations for the Associate Minister in this case:

(a) the Tribunal Decision, including its assessment of the appellant’s

special circumstances;

(b) section 3(1) of the Act;

(c) the provisions of international instruments bearing on the rights of the

individuals affected by the decision, in this case the applicant, her

husband and their two children; and

(d) whether a residence class visa should be granted subject to conditions.

Appellant’s special circumstances

[64] The Associate Minister says in his affidavit that he “considered the factual

background outlined in the Tribunal’s decision, and the Tribunal’s description of the

special circumstances specific to the applicant (and her family).” There is nothing to

challenge this account.

86 Auckland City Council v Minister of Transport [1990] 1 NZLR 264 (CA) at 293.

Section 3

[65] Section 3 of the Act relevantly states that “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.” As I understand it, the applicant’s argument is that the

national interest (as embodied in the Instructions) was fully reflected in the original

decision and the Associate Minister was therefore required to focus on the rights of

individuals.87 I consider that ground too is addressed by the Associate Minister’s

express statement that he considered the specific circumstances of the applicant and

her family as they were set out in the Tribunal’s decision.

New Zealand’s international obligations

[66] I accept there was a mandatory obligation on the respondent to consider New

Zealand’s international obligations, specifically (as in Matua) arts 17 and 23 of the

ICCPR, but also art 3 of the United Nations Convention on the Rights of the Child

(UNCROC).

[67] Article 17 of the ICCPR provides for legal protection against arbitrary or

unlawful interference with individuals’ privacy, family, home or correspondence, as

well as unlawful attacks on their honour and reputation. Article 23 states that “the

family is the natural and fundamental group unit of society and is entitled to protection

by society and the State” and sets out rights protecting marriages as well as providing

for consent and equality in marriages. Article 3 of the UNCROC states that the best

interests of the child shall be a primary consideration in all actions concerning children

undertaken by public institutions, including public welfare institutions, courts of law,

administrative authorities and legislative bodies. It relevantly requires that states

“undertake to ensure the child such protection and care as is necessary for his or her

well-being, taking into account the rights and duties of his or her parents, legal

guardians, or other individuals legally responsible for him or her, and, to this end, shall

take all appropriate legislative and administrative measures.”

87 As the Court found in Matua v Minister of Immigration, above n 30.

[68] The Associate Minister says he considered the Tribunal Decision. He also

deposes that in considering requests for him to grant an exception to residence

instructions he was “aware of New Zealand’s international obligations as they relate

to the making of immigration decisions.” The Tribunal Decision does not refer

specifically to any of New Zealand’s international obligations, although it does canvas

the difficulties Ms Zhang and her husband and children would face in being able to

live together as a family in China were a visa not granted88 and makes extensive

reference to the best interests of her son and (then) unborn child.89

[69] Can the Court reasonably conclude from the Associate Minister’s statement as

to his usual practice that he was “aware” of New Zealand’s international obligations

and from the factual references in the Tribunal Decision that he did have adequate

regard to the relevant international obligations?

[70] I bear in mind Thomas J’s observation in Ning that the absence of reasons alone

does not lead to the inference that the decision has been made without requisite

consideration.90 However I also heed Duffy J’s view in Nair (which was overturned

on appeal, but on a different basis) that where reasons are not given “unless it can be

inferred from the information available to the Court that [the decision maker] paid

proper regard to [the relevant] obligations, the Court cannot be satisfied on the balance

of probabilities that he did so. Merely listing those obligations in his decision will not

suffice.”91 Consideration of mandatory considerations must be genuine, and not

tokenistic or superficial.92

[71] Without simply assessing the outcome the Associate Minister reached in terms

of whether it was “correct” or not (and recognising that the Associate Minister was

entitled to weigh the balancing of competing factors himself), I note, as in Matua, that

the consequences of the decision he reached cut against the best interests of the family

88 ZD (Partnerhsip), above n 1, at [38]–[42]. 89 At [46]–[51] and [55]–[56]. 90 Ning v Minister of Immigration, above n 35, at [46]. 91 Nair v Chief Executive of the Ministry of Business, Innovation and Employment, above n 83, at

[42]. 92 At [46]; and Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 (CA) at [90];

and O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at

[30]–[35].

unit and the child, which are the subject of the relevant international obligations.93 In

that context, had the Associate Minister wanted to dispel any doubts that he did

genuinely consider those obligations he could have set out that his usual practice

included considering them directly, or indicated how he usually reasoned regarding

New Zealand’s international obligations in the context of s 190(5) decisions. On the

affidavit as written, all the Court can be sure of is that he was aware of New Zealand’s

international obligations as they relate to the making of immigration decisions in a

general sense. In the particular context of Ms Zhang’s case, I do not consider this a

sufficient basis on which I can confidently infer that he did in fact consider, in a

genuine and discrete way, the significance of the ICCPR or the UNCROC arts in

making the decision to decline her a visa. Nor was the Minister assisted by the

Tribunal Decision – while it did discuss the best interests of the children, in my view

those interests should have been assessed in the specific context of the relevant

international obligations.

[72] I consider this points to a material error, such that the decision should be

reconsidered by the Minister.

Grant of visa on conditions

[73] In Matua Woodhouse J took the view that s 190(5) requires the Minister to

consider three options: granting a visa as an exception; granting a visa as an exception

but with conditions; or declining to grant a visa.94 In that case the Associate Minister’s

description of his process under s 190(5) did not include any reference, explicit or

implicit, to considering whether to grant a visa as an exception but subject to

conditions.95 Similarly, there was nothing in the Tribunal decision which might have

directed the Associate Minister’s attention to conditions.96 Whether any particular

condition or conditions might suffice to address particular concerns was a question for

the decision maker – the Court’s focus was merely on whether that consideration had

been undertaken.97

93 Matua v Minister of Immigration, above n 30, at [137]. 94 At [85]. 95 At [106]. 96 At [107]. 97 At [110].

[74] The evidence in this case was somewhat different. The Associate Minister

specifically noted that he followed the usual decision-making practice of his office in

cases such as this. In describing that process he deposed “I was aware that …. I was

able to impose conditions on the visa or grant a visa without imposing conditions.”

The submissions also note that the backing sheet attached to the Tribunal Decision, on

which the Associate Minister actually recorded his decision, gave him two options:

“grant with/without conditions a resident visa to YAN ZHANG as an exception to

instructions” or “decline to grant a resident visa as an exception to instructions”.

[75] The question for this Court is whether it can be inferred from that statement

that the Associate Minister actually turned his mind to consider whether it was

appropriate to apply any conditions in this case.

[76] While the Associate Minister did not specifically state that he had regard to the

ability to impose conditions (only that he was aware of them), in the context as a whole

I am unable to infer that he did not give genuine consideration to whether a residence

visa might be granted to Ms Zhang subject to conditions. He was aware of his ability,

and the document on which he recorded his decision explicitly mentioned it.

Second and third grounds of review – approach

[77] Ms Zhang’s second ground of review is that the consequences of the Decision

are harsh, oppressive and unjust and are the very reason and purpose for the ability to

grant an exception in s 190(5). Her third ground is essentially that the Decision was

unreasonable.

[78] Ms Earl for the respondent argues the two grounds overlap – with the second

ground simply being an attempt to conduct an unreasonableness review using a harsher

“correctness” standard.98 The respondent submits that the proper approach to

unreasonableness is the traditional Wednesbury standard.99 To the extent the second

ground suggests there has been an error of law, the respondent says that it is difficult

98 See Tamil X v Refugee Status Appeals Authority [2009] NZCA 488, [2010] 2 NZLR 73; and the

“rigorous” approach taken in Matua v Minister of Immigration, above n 30, at [93]–[94]. 99 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 66, at

[41].

to see how any reviewable error can be inferred in the absence of reasons. The

respondent characterises the applicant’s position as essentially arguing that there was

only one viable outcome from the proper application of the discretion, which Ms Earl

says is inconsistent with the discretion that the respondent is given under the Act.

[79] Ms Earl makes the same point in the context of Wednesbury unreasonableness

– that the standard is high and there was more than one outcome reasonably available

to the Associate Minister. Ms Zhang’s familial circumstances were not so compelling

that the only reasonable option was to grant her residence, and therefore the decision

was not unreasonable.

[80] The respondent points to a number of cases as supporting the notion that there

is a standard approach to the review of all immigration discretions, regardless of

whether the discretion in question is absolute or ordinary.100 This approach

acknowledges that immigration decisions are typically in the realm of the executive

and that the Court ought to defer to the Minister unless the decision has been

unreasonable or there has been a clear error of law. It draws on the broad powers given

to the Minister, the high policy content of the decisions, the repeated refusal of the

courts to infringe on the sphere of the executive and the differences in legislative

context that render the more intrusive review undertaken in the United Kingdom

inappropriate.101 In this manner there is a general review approach that is to be taken

to all immigration cases. That approach is consistent with the remarks of Moore J in

CF and with the overall approach adopted by van Bohemen J in Goundan.

[81] I have already set out that I am not influenced by the authorities cited

discussing absolute discretion provisions in assessing the scope of review for the

ordinary discretion under s 190(5). Similarly, I have already addressed the Court’s

approach to the lack of a requirement that the Associate Minister provide reasons for

his decision.

100 See Singh v Chief Executive, Ministry of Business, Innovation and Employment, above n 66;

Puli'uvea v Removal Review Authority 14 FRNZ 322 (CA); and Huang v Minister of Immigration

[2008] NZCA 377; [2009] 2 NZLR 700. 101 See Singh, above n 66, at [64].

[82] In Wolf v Minister of Immigration Wild J set out a short history of

unreasonableness review, before commenting:102

Whether a reviewing Court considers a decision reasonable and therefore

lawful, or unreasonable and therefore unlawful and invalid, depends on the

nature of the decision: upon who made it; by what process; what the decision

involves (ie its subject matter and the level of policy content in it) and the

importance of the decision to those affected by it, in terms of its potential

impact upon, or consequences for, them.

[83] In Matua Woodhouse J was satisfied that the context of the case required a

“rigorous appraisal” of the Associate Minister’s decision.103 Relevant context

included:104

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.

[84] That approach is consistent with the Court of Appeal’s recent comments in Kim

v Minister of Justice (which dealt with an extradition decision) that the implication of

human rights concerns warrants a more rigorous standard of review.105 The Court

endorsed remarks by the High Court that where fundamental human rights are at stake

a “heightened scrutiny” standard is appropriate, which does not amount to merits

review but will require the Court to:106

...ensure the decision has been reached on sufficient evidence and has been

fully justified, while recognising that Parliament has entrusted the Minister

(not the courts) to undertake adequate enquiries and to exercise her judgment

on whether surrender should be ordered.

102 Wolf v Minister of Immigration [2004] NZAR 427 (HC) at [47]. At [65] his Honour held that the

fact that the decision’s consequences would involve breaking up a New Zealand family unit,

coupled with New Zealand’s obligations under relevant international treaties, obliged the Court to

scrutinise the decision of the Deportation Review Tribunal carefully and closely. 103 Matua v Minister of Immigration, above n 30, at [94]. 104 At [93] (footnotes omitted). 105 Kim v Minister of Justice [2019] NZCA 209, [2019] 3 NZLR 173 at [45]–[47]. I note that the

Court did not appear to regard the issue of heightened scrutiny review as controversial. This has

led to some academic debate about the extent to which heightened scrutiny review is available and

how it will be applied. See Hanna Wilberg “Administrative Law” (2019) 4 NZ L Rev 487 at 497. 106 Kim v Minister of Justice [2016] NZHC 1490, [2016] 3 NZLR 425 at [7].

[85] The human rights ramifications of this case are less severe than those in Kim

(which involved a risk that the subject of the decision might face torture or be

subjected to an unfair trial if surrendered for extradition), but the impact the decision

will have on Ms Zhang’s family and children in particular raises rights concerns. I

note that this cuts somewhat against the Court of Appeal’s statement in WK v Refugee

and Protection Officer that Wednesbury remains the governing test in that Court of

unreasonableness in an immigration context.107 In a footnote the Court listed Wolf

amongst a list of “conflicting” High Court authorities suggesting greater intensity of

review.108 The Supreme Court has also granted leave to the Minister to appeal the

decision in v Kim.109

[86] In any event, the submission that a Wednesbury standard is appropriate raises

the question of what that entails. In Wednesbury Lord Greene defined unlawful

unreasonableness as arising where a decision maker has taken the correct matters into

account and followed correct procedure, but nonetheless “come to a conclusion so

unreasonable that no reasonable authority could ever have come to it.”110 Justice

Palmer in Hu v Immigration and Protection Tribunal noted this language is somewhat

circular, in defining unreasonableness by reference to itself.111 His Honour pointed to

the Supreme Court’s account of when a finding of fact becomes an error of law in

Bryson v Three Foot Six Ltd as preferable to the tautologous language in

Wednesbury:112

An ultimate conclusion of a fact-finding body can sometimes be so

insupportable – so clearly untenable – as to amount to an error of law

[because] proper application of the law requires a different answer.

[87] The Supreme Court in that case drew on the words of Viscount Simonds for

the UK Court of Appeal in Edwards v Bairstow, that “a view of the facts which could

not reasonably be entertained” can constitute an error of law.113 In applying that

107 WK v Refugee and Protection Officer [2018] NZCA 258, [2019] 2 NZLR 223 at [51]. 108 At n 23. 109 Minster of Justice v Kim [2019] NZSC 100. 110 Associated Provincial Picture Houses Limited v Wednesbury Corporation, above n 34, at 233–

234. 111 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [22]–[27]. 112 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26]; cited in Hu v

Immigration and Protection Tribunal, above n 111, at [28]; and citing Edwards v Bairstow [1956]

AC 14 (HL). 113 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, [1955] 3 All ER 48 at 29.

approach to an exercise of discretion Palmer J did not intend that it be an all-

encompassing definition of unreasonableness, rather that it provide operational

content to assist in the determination of unreasonableness.114 Such a reading

reconciles the two “novel” approaches to error of law that Ms Earl argues Woodhouse

J adopted in Matua, by framing them as a means of assessing reasonableness – not

lowering the standard, but providing a means of understanding it.

[88] Framed in that way it seems to me that the applicant’s second and third grounds

of review cover the same question: was the Associate Minister’s decision in this case

so unsupportable or untenable that proper application of the law requires a different

answer?

[89] The Tribunal concluded:115

Considered cumulatively, the Tribunal finds that the appellant has special

circumstances, arising from the best interests of her New Zealand-citizen son

and unborn child, her genuine and stable partnership with her New Zealand-

citizen husband, the lack of other viable pathways for her to obtain residence,

and her husband and son’s difficulty in relocating to China. These warrant

consideration by the Minister of Immigration of an exception to the

instructions.

[90] I have set out above the many factors identified by the Tribunal as

cumulatively amounting to “special circumstances”.116 I have also had regard to the

objectives of the Family categories of the Instructions and the exacting criteria which

applicants must satisfy. The applicant met all of the substantive criteria. The sole

reason her application did not meet the requirements in the Instructions was Mr Chen’s

deemed ineligibility to sponsor her application.117

[91] These factors indicate that this is clearly the kind of case for which the power

to grant an exception was provided. In my view, the reasons for Mr Chen’s

ineligibility and therefore Ms Zhang’s application being unsuccessful were technical,

rather than substantive in nature.118 The effect of the policy contained in the residence

114 Hu v Immigration and Protection Tribunal, above n 111, at [30]. 115 ZD (Partnership), above n 1, at [56]. 116 At [12] of this judgment. 117 Which I have referred to earlier at [7]–[8]. 118 In particular I note that the Tribunal was satisfied that all three of Mr Chen’s relevant relationships

were genuine rather than being devices for immigration.

instructions will produce consequences for the applicant and her family which are

harsh, oppressive and unjust.

[92] The Associate Minister’s affidavit confirms that he made his decision on the

basis of the Tribunal Decision; he did not need or seek additional material. As I have

earlier found, the policy considerations reflected in the Instructions were “exhausted”

in the Tribunal Decision. I infer from the Associate Minister’s affidavit that he did not

have regard to other policy considerations in reaching his decision. Nor is this a case

where other policy issues, such as the potential for the granting of a residence visa to

have implications for costs or demands on New Zealand’s health system, are at play.119

The decision to grant an exception bore significance only for Ms Zhang and her family

– not for the wider immigration system.

[93] As such, I consider the decision was unreasonable, and that its

unreasonableness was a material error warranting reconsideration.

Result

[94] I conclude that there were material errors by the Associate Minister in declining

to grant a residence visa to the applicant as an exception to the residence instructions,

in that:

(a) the Associate Minister failed to have adequate regard to the mandatory

relevant considerations of New Zealand’s international obligations; and

(b) the Associate Minister’s decision was unreasonable in that it was not

supported by any evidence, is inconsistent with or contradictory of the

evidence and the only reasonable conclusion contradicts the

determination.

[95] Those errors require that the decision be set aside. I make the following orders

in respect of the decision:

119 See Goundan v Immigration and Protection Tribunal, above n 29, at [19]; and Matua v Minister

of Immigration, above n 30, at [58].

(a) The decision is set aside.

(b) The decision is referred back to the Minister for reconsideration of the

recommendation of the Tribunal in its decision of 8 March 2019.

(c) The Minister’s reconsideration should take account of the conclusions

of law in this judgment.

(d) Counsel for the respondent gave an undertaking at the hearing that no

enforcement action would be taken against Ms Zhang pending my

judgment and, should it be ordered, the Associate Minister’s

reconsideration. My expectation is that no action will be taken until

after the Associate Minister’s decision is made.

Costs

[96] The applicant is 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.

Suppression

[97] Pursuant to cl 19 of sch 2 of the Immigration Act 2009, the Tribunal ordered

that, until further order, the research copy of its decision be depersonalised by removal

of the appellant’s name and any particulars likely to lead to the identification of the

appellant and her family.120

[98] This was not brought to my attention or discussed at the hearing. I do not

consider there is any serious possibility that the safety of the applicant or any other

person would be endangered by the disclosure of the information to warrant

suppression. In case I am mistaken, I will direct that this judgment be released to the

parties, who will then have two working days to file memoranda as to suppression or

120 ZD (Partnership), above n 1, at [59].

anonymisation, should they wish to do so. Following that point I will revisit the issue

and either allow for the full publication of this judgment or amend it accordingly.

______________________

Gwyn J