High Court judicial review overturns decision in the recent Zhang v Minister of Immigration case
Successful challenge to Immigration Minister’s decision to decline to grant a residence class visa, as an exception to instructions, following the Immigration and Protection Tribunal’s recommendation.
The Immigration Act 2009 provides people with a right to appeal to the Immigration and Protection Tribunal when they have been declined a residence visa.
The Tribunal may confirm that the decision was correct in terms of residence instructions (the policy framework which is binding on immigration officers and guides their actions) but recommend that there are “special circumstances” warranting reconsideration by the Immigration Minister as an exception to those instructions.
Where the Tribunal makes such a recommendation, the Minister must consider whether a residence visa should be granted as an exception to instructions. The Minister does not have to give reasons and exercises a discretion, but the decision can sometimes be reviewed by the Courts to ensure the discretion has been properly exercised.
In the recent case of Zhang v Minister of Immigration [2020] NZHC 568, an application for residence was declined by Immigration New Zealand because the applicant’s partner was an ineligible sponsor. The Tribunal recommended that there were “special circumstances” arising from the best interests of the applicant’s New Zealand-citizen son and unborn child, her genuine and stable partnership with her New-Zealand citizen husband, and her husband and son’s difficulty in relocating to China. The Minister then considered the matter but declined to grant a residence visa.
The High Court held that the Minister had failed to have adequate regard to New Zealand’s international obligations when declining to grant a visa in these circumstances and found that the decision was unreasonable because it was not supported by any evidence.
Drawing on the earlier decision in Matua v Minister of Immigration [2018] NZHC 2078, the Court held that, in exercising his discretion whether to grant a visa, the Minister had to have regard to:
• The decision of the Tribunal, including its assessment of the “special circumstances”
• The purpose of the Immigration Act 2009 (i.e. the need to balance the national interest against the rights of individuals)
• International obligations that are binding on New Zealand and relate to the protection of the family and the interests of children, and
• Whether to grant a visa subject to conditions
The High Court was not satisfied that the Minister had properly considered the significance of New Zealand’s international obligations when making his decision and noted that the decision reached was contrary to the best interests of the applicant’s family.
The High Court also considered that the applicant met all the substantive criteria for a residence visa, the reasons for the application failing being technical in nature. The application of the residence instructions would produce consequences for the applicant and her family that were harsh, oppressive and unjust, and these consequences were the very reason and purpose for the Minister’s ability to grant a visa as an exception. The Minister’s decision to decline a residence visa was therefore unreasonable.
Update: We are pleased to report that on 22nd September 2020, the Associate Minister of Immigration, having considered the Court’s decision, decided to grant our client Mrs Zhang a resident visa.
To read the full judgment, please follow this link.
