Clash of the crises – immigration decision-making in a pandemic and humanitarian crisis

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Immigration New Zealand (INZ) decision-making during the current COVID-19 pandemic has come under further scrutiny by the Courts last week with Cooke J’s judgment in Afghan Nationals v Minister of Immigration [2021] NZHC 3154, the substantive sequel to an interim relief application earlier this year.

While the particular findings on judicial review are very interesting in the immigration context, the case is also of wider interest for the approach taken to determining the actual scope of the ouster clauses in the Immigration Act (Act), given that on their face they provide significant limits on the ability to challenge particular decisions under that Act.

The Court has acknowledged the immense difficulties for INZ having to navigate the complexities caused by the COVID-19 crisis (and accompanying border restrictions) and the Afghanistan humanitarian crisis.

Despite these difficulties, the Court determined that INZ erred in concluding it could not progress residence visa applications given border entry restrictions. The Court found that INZ in particular erred in applying the Immigration Instructions (as amended to reflect the border policy which came into force in March 2020) (Instructions) to the applications in question, rather than the Instructions in force at the time the applications were made.

The Court granted declaratory relief to the applicants, including a declaration that Instruction Y3.5.1(a)(ii) is ultra vires to the extent it requires border entry instructions for residence class visas to be those in effect when entry permission is sought rather than those in force at the time the resident visa application was made.

The Court also directed that the Minister of Immigration proceed to consider and determine the visa applications in accordance with the law.

Following this decision, INZ issued Amendment Circular No.2021-56, which amends the criticised compassionate entry requirements for a Critical Purpose Visa. This amendment changes the critical purposes for travelling to New Zealand to stipulate that it only applies to people who meet compassionate entry requirements or who hold a valid invitation to apply under the previous humanitarian requirements. The amendment also expressly clarifies that, when considering a compassionate entry exception, it is irrelevant if the applicant has been affected by a humanitarian crisis occurring outside of New Zealand. Therefore, this amendment effectively limits challenges to INZ decisions made before 29 November, the date the Amendment Circular was issued. However, it does not affect the Court’s findings on the need for INZ to apply the Immigration Instructions that were in force at the time of the resident class visa application, to any decisions on entry permission.


COVID-19 border restrictions

Immigration Instructions are issued under section 22 of the Act and are the main way Government implements key immigration policy. The Instructions set out key rules for decision-making in this space.

As is now well known, in March 2020 Cabinet made the decision to close the NZ border due to the threat caused by the COVID-19 pandemic, with some exceptions to be considered on a case by case basis. Those exceptions included humanitarian reasons.

The decision was given effect by the Minister of Immigration certifying an amendment to the Instructions dealing with entry permissions, specifying individuals who must be refused entry permission and those who must be granted entry permission.

From June 2020, INZ took the view that visas could no longer be granted because it considered the applicants would not qualify for entry permission as a result in a change to the March 2020 amendment to the Instructions.

In 2020 a new temporary visa – a Critical Purpose Visitor Visa (CPVV) was created to deal with the difficulty of dealing with exceptions to border closures on arrival. This visa would enable exceptions to the border closure to be granted offshore prior to departure. It was not designed expressly for the Afghanistan situation but rather the COVID-19 border closure more generally.

The visa was implemented through an amendment to the Instructions. Applicants seeking a CPVV needed to lodge an expression of interest and then receive an invitation to apply for the visa. The list of critical purposes including one arising from humanitarian considerations. Relevant factors to considering whether humanitarian reasons justified granting a visa include the applicant’s connection to NZ.

748 CPVVs had been granted to Afghan nationals who met the Cabinet criteria as of the date of the respondents’ evidence being sworn.

The applicants in this case

The applicants (sample cases representing a larger group) were family members of Afghan nationals who assisted NZDF when they were serving in Afghanistan – most of whom applied for visas some time ago (2017 – 2019). Due to the processes involved in progressing residence class visas, applications by members of this group had not been progressed by the time the borders were closed in March 2020 due to the COVID-19 pandemic.

At least one applicant had their application progressed, declined and the subject of an Immigration Protection Tribunal decision which found INZ relied on internally inconsistent material in declining an application and INZ was directed to reconsider it. No active steps were taken to do so given the border closure.

At least some of the applicants sought critical purpose visas following an interim relief hearing in August but were subsequently denied them.

Cabinet agreed in August that those Afghan nationals who already held visas (i.e not the applicants) were entitled to come to NZ and the relevant instructions were accordingly amended.

Judicial Review ouster clauses

The Court noted that the Immigration Act includes ouster clauses (sections 187 and 191) which would on their face limit the ability to bring judicial review proceedings.

Section 187 (and a similar provision in section 186(3) in relation to temporary entry class visas) sets out a right of appeal for decisions relating to residence class visas and expressly prevents review of decisions relating to refusal to grant a residence class visa to a person outside of New Zealand.

Section 191 provided no review proceedings may be brought in any court in relation to any refusal or failure to issue an invitation to apply for a visa.

While on their face the provisions prevented the applicants from proceeding with their claims (being outside NZ and the subject matter involving an alleged failure to offer an invitation to apply for a visa), the Court disagreed with the Crown’s argument that the effect of the provisions in this case was to prevent the Court from granting judicial review relief to the individual applicants. The Crown did concede the Court could still consider the questions of law argued in the proceeding and provide general declaratory relief.

The Court took the view that the relevant authorities on this issue are clear that ouster clauses cannot be interpreted to mean the Court has no jurisdiction – decisionmakers are required to act lawfully and the Court’s role is to ensure the law is observed. Such an interpretation would arguably be beyond Parliament’s intent and possibly competence.

An application raising questions about whether a statute is being complied with triggers the Court’s proper constitutional role. While ouster clauses have a clear role – in this case they show that Parliament is indicating applications for judicial review are not part of the scheme for making immigration decisions and the rights of appeal from those decisions, and may therefore prevent challenges to individual decisions through this mechanism, they do not prevent a challenge arguing the statute is not being properly applied generally which is what the Court found was happening here.

The Court held that it may be necessary to consider particular cases when considering the question of statutory interpretation and any relief granted will likely address those particular cases – which the Court found was a legitimate role.

Failure to issue residence visas in Refugee Family Support Category

INZ claimed it could not grant the residence visas because it had reason to believe the applicants would not be granted entry into NZ because of the border amendment to the Instructions outlined above.

Court found INZ did not act lawfully in declining to process and issue the residence visas because of the amendments outlined above.

Section 108(6) of the Immigration Act requires decisions on entry permission relating to residence class visas (the category applied for by the applicants) to be considered in accordance with the Instructions in force at the time the applications were made not as they might be subsequently amended.

The Court found that part of the amended Instructions were therefore ultra vires as it was inconsistent with the Act. Any decision to prevent the applicants coming to NZ would need to be made by Parliament which has not occurred during Parliament’s amendments to the immigration legislation in the Covid-19 context.

INZ must complete its consideration of the applications and form decisions as required under the Act. The Court expressed a strong view that based on the information before it it would likely involve granting visas to those in the position of the applicants but appropriately noted that the final decisions are for the relevant officers.

Failure to issue Critical Purpose Visas

The finding on the first cause of action was enough to dispense with the review but the Court considered the alternative grounds, which challenged INZ’s interpretation of humanitarian grounds for the issue of visas.

The Court found INZ misinterpreted and misapplied the relevant Instruction relating to CPVVs.

It was not clear to the Court why INZ formed the view individuals in the applicants’ position would not qualify for the CPVV exception on humanitarian grounds. The material before the Court suggested INZ took the view that the scenarios faced by the applicants (including death threats) were not exceptional circumstances of a humanitarian kind for the purposes of the relevant CPVV decision-making factors. The INZ interpretation was the exceptional circumstances relevant to the decision to grant the visa had to arise in NZ (e.g. a death or terminal illness of family in NZ) not overseas.

The Court considered this interpretation was in error, being inconsistent with both the wording and apparent intent of the policy, and would lead to perverse results.

The Court disagreed with the Crown’s approach, noting the relevant instruction has three elements – exceptional circumstances, of a humanitarian nature and they must make it strongly desirable for the applicant to travel to NZ. Humanitarian has a natural meaning and is not to be given a narrow or technical reading.

The Court agreed with the Crown that the exceptional circumstances had to involve a connection with NZ, (the exceptional circumstances needed to justify the person being able to enter NZ despite the COVID-19 entry restrictions) and did not provide a general exception.

The Court did not however agree the humanitarian circumstances needed to arise in NZ. In this case there was a clear connection and reason for the applicants to come to NZ in particular – the fact their family members had assisted NZDF put their lives in peril.

Failure to issue residence visas under humanitarian exception

The Court agreed that INZ failed to apply the separate humanitarian exception contained within the COVID-19 entry permission amendment itself.

The Court found there was no evidence or contemporaneous material that INZ considered whether the humanitarian exception applied to the applicants. The only reason put forward for why a visa might not be processed arose under section 43(1)(b) of the Act, which notes that a visa indicates at the time it was granted there was no reason to believe the holder would be refused entry permission.

For similar reasons to those set out in finding in favour of the second cause of action, the Court upheld this ground of challenge.

Unsuccessful alternative judicial review grounds

The Court dismissed other grounds raised by the applicants, which included a challenge to an August 2021 Cabinet decision determining that (only) Afghan nationals holding valid New Zealand visas would  qualify for evacuation flights (if there was sufficient space). That decision was implemented through an amendment to the Instructions under section 61A of the Act.

The Court acknowledged Cabinet decisions involve high levels of policy and policy judgment does not make them immune from judicial review, but for the Court to intervene there needs to be a basis upon which the decision-making is subject to legal limits – the Court will not just apply legal criteria to political decision-making.

Here the Cabinet Ministers made an emergency evacuation decision about who would be included in evacuation flights – a decision based on political, international and humanitarian concerns rather than a decision under the Act. While it could be subject to legal limits given the subsequent changes to the Instructions, in this case the Court found no evidence to support an independent ground of review associated with the August 2021 Cabinet decisions, and noted that the success of the applicants on their first three grounds of challenge provided the proper scrutiny by the Court of the relevant decision-making by the respondents.

For more information in the immigration space, please contact a member of our immigration law team. For more information in relation to government decision-making processes generally please contact a member of our public law team.


Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.


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