Yan Zhang v Minister of Immigration  NZHC 568 (19 March 2020)
In a recent decision the High Court at Auckland has confirmed that the decision of the Associate Minister of Immigration to refuse to grant residence as an exception after a referral back from the Immigration and Protection Tribunal, can amount to Wednesbury unreasonableness.
A fresh look at the complexities involving Wednesbury unreasonableness mirrors similar judicial developments in Australia (more about that in a later more detailed paper).
In the current case, Justice Gwyn quashed the Associate Minister of Immigration’s refusal to grant residence as an exception which had been recommended by the Tribunal. The case involved a genuine marriage. The New Zealand citizen sponsor and the appellant had a New Zealand citizen child, born in April 2017. Residence under the partnership category had been refused because the New Zealand citizen had become ineligible to sponsor, given that he had been sponsored previously (as part of his partner’s Skilled Migrant Category application) and then had sponsored a second partner previously.
Both relationships had broken down and there were no reasons to suggest that there had been any form of immigration abuse. The hardships that the couple faced were set out in detail by the Tribunal. A third sponsorship is prohibited by immigration rules.
The Court held that the Associate Minister’s discretion under s 190 of the Immigration Act was not an “absolute discretion,” a term used elsewhere in the Act. Cases relating to a judicial review of a decision made under an “absolute discretion” were not relevant.
Justice Gwyn based her decision on two grounds. The first related to the treatment of international obligations and as indicated above, the second relates to whether or not the decision was itself unreasonable (i.e. Wednesbury unreasonableness).
The Court held that it was insufficient for the Associate Minister to merely state that he “understood” and was aware of New Zealand’s international obligations. He needed to give such matters actual consideration. The Court also did not accept that because these international obligations were referred to in the Tribunal’s decision that it could be inferred that the Associate Minister had regard to them. Even where there is no duty to provide reasons, the absence of reasons does not necessarily prove that relevant mandatory considerations have been made. Justice Gwyn referred to Duffy J’s reference to this in Nair v Chief Executive of the Ministry of Business, Innovation and Employment at  (overturned on appeal on a different point). Neither will “listing” obligations in a decision necessarily be sufficient (referring to Ye v Minister of Immigration and O’Brien v IPT). It is insufficient for the decision maker to be “aware” of New Zealand’s international obligations.
The case is however significant for the second reason I discuss above and that is its recognition that the Wednesbury standard should not be as insurmountable as has often been stated. There is some discussion that cases involving significant human rights deserve more careful scrutiny. The Court in particular drew on Woodhouse J’s approach in Matua v Minister of Immigration  NZHC 2078 in this regard (although noting a recent ruling of the Court of Appeal in this area, is due to come up in an appeal to be heard at the Supreme Court, Kim v Minister of Justice, shortly, the Supreme Court having granted leave). The High Court recognised that where matters concern significant human rights there may need to be a more rigorous standard of review.
I read however Gwyn J’s decision as not requiring an intensified standard of review involving subject matter that will have serious consequences for the applicant. In this case the Associate Minister had a detailed Tribunal decision before it, which set out in quite extensive detail the significant negative impact that the failure to grant Ms Zhang residence would have on her, her husband, her child and unborn child. The relationship came within all of Immigration New Zealand’s requirements. There were no implications for costs or demands on New Zealand’s health system. The decision to grant an exception bore significance only for Ms Zhang and her family – not for the wider immigration system. In other words, there was no reason why an exception could not be made. The only reason that residence was not given was her husband’s deemed ineligibility to sponsor her application. The Court framed it in this way:
“was the Associate Minister’s decision in this case so unsupportable or untenable that proper application of the law requires a different answer?”
The Tribunal had put it this way:
“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.”
At  the Court viewed the appellant’s and her husband’s ineligibility and therefore the reasons why the case was unsuccessful as “technical” rather than substantive in nature (and the court noted that the husband’s relevant relationships were genuine rather than being devices for immigration).
In short, the Associate Minister’s inexplicable refusal to follow the quite compelling reasons for an exception to be made and recommended by the Tribunal amounted to a decision that the Court could quash under the Wednesbury principles as a decision that was unreasonable and deserving of the Court’s intervention.
David Ryken, Principal
Ryken & Associates