Immigration decision making - the scope of legal discretion
Immigration decision making - the scope of legal discretion
Legal discretion in New Zealand immigration cases operates within a carefully constructed statutory framework, primarily established by the Immigration Act 2009, which grants immigration officials and the Minister varying degrees of discretionary power.
The Act creates a spectrum of discretion, with the most significant being "absolute discretion" which allows decision making to be exercised with minimal procedural requirements and limited grounds for judicial review.
Key features of this framework include:
Statutory Foundation: The Act provides the primary statutory framework, with provisions such as sections 11, 20, 26, and 61 establishing various forms of discretionary power.
Limited Judicial Review: While even "absolute discretion" remains subject to judicial review, the scope of review is extremely limited, generally confined to Wednesbury unreasonableness, bad faith, and fundamental procedural failures.
Procedural Flexibility: The statutory framework often exempts decision-makers from providing reasons or following specific procedural steps, especially in cases involving "absolute discretion."
International Obligations: Despite broad discretion, decision-makers must consider New Zealand's international obligations, particularly in humanitarian cases.
Policy Considerations: Courts recognize the high policy content of immigration decisions and the Crown's prerogative to control its borders, leading to judicial deference in many cases.
This article focuses on points 1, 2 and 4 above. As will be observed, this highlights tensions between respecting Parliament's intent to grant immigration officials significant discretionary power and maintaining the rule of law through minimal judicial oversight. The result is a system that provides decision-makers with substantial flexibility while ensuring that statutory discretion is exercised within legal boundaries, fairly, and reasonably.
Statutory foundation
At the highest level of discretion, section 11 of the Act establishes what it terms "absolute discretion", which is referenced throughout the Act for certain decisions. This concept is particularly important as it creates a class of decisions with minimal procedural requirements and limited grounds for judicial review.
The Act also contains several key provisions that establish discretionary powers for decision-makers:
Section 17 provides that: "A decision to grant a visa and entry permission under subsection (1) is in the absolute discretion of the decision maker." This establishes that visa and entry permission decisions fall within the absolute discretion category.
Section 20 states: "No person who is unlawfully in New Zealand may apply for a visa and, where any such person purports to apply for a visa, it is a matter for the absolute discretion of the Minister." This provision is particularly significant as it establishes that persons unlawfully in New Zealand have no right to apply for a visa, but the Minister retains discretion to consider such applications.
Section 61 creates a special discretionary regime for persons unlawfully in New Zealand: "The Minister may at any time, of the Minister's own volition, grant a visa of any type to a person who—is unlawfully in New Zealand; and is not a person in respect of whom a deportation order is in force; and is not a person in respect of whom a removal order is in force. A decision to grant a visa under subsection (1) is in the Minister's absolute discretion." This section has been the subject of significant judicial interpretation.
Section 26 provides: "The order and manner of processing any application for a visa or entry permission is a matter for the discretion of the Minister or an immigration officer." This establishes discretion in procedural matters.
Limited judicial review
Section 24(3)(b)(i) provides: "no review proceedings may be brought in any court in respect of—the lapsing of an application for a visa under rules or criteria set under this section."
Similarly, section 186(3)(a) states: "A person may bring review proceedings in a court in respect of a decision in relation to a temporary entry class visa except if the decision is in relation to the—refusal or failure to grant a temporary entry class visa to a person outside New Zealand."
These statutory limitations on judicial review are designed to maintain the integrity of the discretionary powers granted to immigration decision-makers. However, the courts have developed approaches to interpret and apply these limitations in a manner that balances respect for statutory intent with the rule of law.
For example, in T (CA3/2016) v the Minister of Immigration [2023] NZHC 2504, the court established that with respect to judicial review, the High Court assesses if a statutory power is exercised "in accordance with law, fairly and reasonably." The court explained that "fairly and reasonably" are terms of art in judicial review, broadly meaning procedurally regular and substantively rational. Importantly, the court noted that, "there only is limited relief the Court may grant, and it generally is discretionary."
The application of the Wednesbury standard to immigration decisions was clearly articulated in Kartseva v Associate Minister of Immigration [2018] NZHC 1115: "The only issue for the Court on an application for review of a refusal under s 61 of the Act is whether the decision is or was 'unreasonable' in the Wednesbury sense." The court further observed that the definition of absolute discretion "gives bleak prospects for judicial review unless Wednesbury unreasonableness can be identified."
This limited scope of review was reaffirmed in Taylor v Minister of Immigration [2022] NZHC 657: "The respondent emphasised that the Court's jurisdiction on a review of a s 61 absolute discretion is very limited. The Court is limited to examining whether, on the information before the decision-maker, the decision could be seen as unreasonable."
Interpretation of Ouster Clauses
The Act contains several provisions, sometimes referred to as "ouster clauses" or "privative clauses," that attempt to limit or exclude judicial review of certain immigration decisions. The courts have developed nuanced approaches to interpreting these provisions, balancing respect for Parliament's intent with maintaining the rule of law.
In Afghan Nationals v The Minister For Immigration [2021] NZHC 3154, the court addressed the effect of such clauses: "The effect of ouster or privative clauses has been addressed in a number of leading New Zealand authorities... In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law."
This balanced approach was further elaborated in Argos Froyanes Limited v Chief Executive of Immigration New Zealand [2020] NZHC 3109: "Parliament does not intend to exclude judicial review for error of law. In this case, there is an error of law, in terms of the failure to give reasons in respect of the temporary entry class visa refusal... Despite the presumption, Parliament may exclude review for error of law, with sufficiently clear legislative wording. Legislative purpose and context are relevant and, in particular, where Parliament has provided for statutory appeal rights, courts are more likely to apply a privative clause on its terms."
The court also recognised the policy considerations underlying these limitations: As Fogarty J observed when examining s 186(3) in Liu v Minister of Immigration, 'it is a relevant factor here that the common law recognises the Crown's prerogative to control its borders'."
This suggests that courts are more likely to respect limitations on judicial review in immigration matters due to their connection to sovereign border control powers.
International Obligations
An important dimension of immigration discretion is its relationship with New Zealand's international obligations, particularly in the area of human rights.
In Climate Change and the Role of the Courts: Litigation and Mitigation in Aotearoa - New Zealand, it is noted: "In Tavita, the courts ruled that the Minister could not ignore international human rights obligations in making decisions about a removal order. The judgment in Tavita was followed by government procedures to give effect to international obligations in immigration cases. After the Tavita case, further case law has reaffirmed the applicability of international human rights commitments in judicial review."
Similarly, in the context of extradition (which shares many principles with immigration law), Minister of Justice and another v Kyung Yup Kim [2021] NZSC 57 stated: "The Commission submits that the Minister's discretion under s 30(e) of the Extradition Act must be interpreted consistently with the Bill of Rights and New Zealand's international obligations, including the right to a fair trial."
These cases establish that while decision-makers have broad discretion in immigration matters, this discretion must be exercised with due regard to New Zealand's international obligations and human rights commitments.
If you have experienced a problem with an immigration decision, we recommend contacting one of Young Hunter’s experienced deportation and immigration appeal lawyers as soon as possible. Our lawyers can help you understand your rights and guide you through the appeal process.
