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JE (India) v Minister of Immigration [2021] NZHC 3073 (15 November 2021)

Last Updated: 25 November 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 15 November 2021 at 11.00 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:..............................

Solicitors/counsel:

Crown Law Office/K Sheppard, Wellington Castlefinn Law Ltd

JE (INDIA) v THE MINISTER OF IMMIGRATION [2021] NZHC 3073 [15 November 2021]

Introduction

• [1] The applicant, JE, seeks to judicially review Immigration Instructions S4.5 and W17 (jointly “the Instructions”). They respectively establish a resident visa and a special work visa for victims of family violence. JE challenges the legality of the Instructions. She notes that they apply only to persons whose relationship has ended due to family violence by a New Zealand citizen or residence class visa holder. She argues that this is discriminatory, in breach of the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993, and in breach of this country’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (“the Convention”). She seeks an order quashing the Instructions.

Background

• [2] JE was born in a small village in rural India in 1994. She is a citizen of India.

• [3] In April 2016, she married in India.

• [4] JE’s husband obtained a work visa (post-study) permitting him to enter and remain in New Zealand for a period of one year. They came to New Zealand. She arrived in New Zealand in November 2016 on a visitor visa.

• [5] On 4 April 2017, JE’s husband’s work visa (post-study) expired. He was then granted a work visa (post-study, employer assisted) and JE was issued with a work visa. Both visas were valid until 5 May 2019.

• [6] Between May 2017 and April 2019, JE worked in New Zealand. Her marriage was however rapidly deteriorating over this period. Her husband was abusive towards her and, in August 2018, she reported an assault on her by her husband to the New Zealand police. He was subsequently convicted of male assaults female under the Crimes Act 1961 and sentenced to nine months’ supervision.

• [7] In February 2019, JE separated from her husband and shortly thereafter he was served with a deportation liability notice.
• [8] JE’s work visa expired in May 2019. She was then granted a visitor visa, valid until November 2019. In September 2019, she applied for a student visa so she could undertake an English language course as a precursor to a business studies course. She was granted an interim visa valid until 13 December 2019 pending consideration of her student visa application.

• [9] Between October 2019 and January 2020, JE’s husband pressured her to withdraw the student visa application and to leave New Zealand. He believed her continued presence in this country jeopardised his chances of remaining here. In November 2019, JE sent an email to her immigration advisor requesting that he withdraw her student visa application for “personal reasons”. Her immigration advisor in turn informed Immigration New Zealand (“INZ”) that JE was withdrawing the application for the student visa.

• [10] On 22 November 2019, INZ reminded JE by letter that her interim visa expired on 13 December 2019 and that, as the holder of an interim visa, she could not apply for any further visa. She was asked to ensure that she arranged to leave New Zealand before her interim visa expired and advised that if she remained in New Zealand after that date, she would be liable for deportation.

• [11] On 13 December 2019, JE’s interim visa expired. She remained in New Zealand. She was then in this country unlawfully and as a result she could not apply for any visa.¹

• [12] On 19 December 2019, JE lodged a humanitarian appeal against deportation with the Immigration and Protection Tribunal (“the Tribunal”). Submissions were lodged on her behalf in late January 2020. In a written decision dated 18 May 2020, the Tribunal dismissed her appeal against deportation.²

• [13] On 12 June 2020, JE applied for leave both to appeal and to judicially review the Tribunal’s decision. This application was heard by Campbell J on 14 October

¹ Immigration Act 2009, s 20.

² Re JE (India) [2020] NZIPT 504867.

2020. He issued a decision in February 2021 declining JE leave to appeal or to judicially review the Tribunal’s decision.³

• [14] On 17 March 2021, JE applied to the Court of Appeal for leave to appeal and judicially review the Tribunal’s decision. The matter was dealt with by the Court of Appeal on the papers. In a judgment issued on 9 July 2021, the Court also declined JE leave to appeal or to commence judicial review proceedings in respect to the Tribunal’s decision.⁴

• [15] JE has sought the grant of a special visa from the respondent, the Minister of Immigration (“the Minister”) under s 61 of the Immigration Act 2009 (“the Act”). The Minister, in the exercise of the discretion enforced on him by that section, declined to grant her a visa.

The Tribunal’s decision

• [16] JE’s humanitarian appeal to the Tribunal was brought pursuant to s 206 of the Act. Section 207 applied. Relevantly, it provides as follows:

207 Grounds for determining humanitarian appeal

(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

• [17] The Tribunal found that JE had not met the requisite threshold. It recorded the facts giving rise to JE’s appeal, setting out the abuse she had been subjected to by her former husband. It recorded that, under s 207(1)(a), the exceptional circumstances “must be well outside the normal run of circumstances”; while they do not need to be unique or very rare, they must be “truly an exception rather than the rule”.⁵ The Tribunal acknowledged JE felt pain and upset at the actions of her former husband but

³ JE (India) v Immigration and Protection Tribunal [2021] NZHC 91.

⁴ JE (India v Immigration and Protection Tribunal [2021] NZCA 307.

⁵ Re JE (India), above n 2, at [13] citing Ye v Minister of Immigration [2009] NZSC 76 at [34].

noted that there was no medical evidence that she suffered from a mental health condition and no evidence that she would face any particular harm from her former husband or his family in India. It accepted that she might experience stigma and prejudice from members of the community after returning to India, but considered that she would have the support of her parents, including the financial support of her sisters in Australia. It observed that she has “no familial nexus” to New Zealand and that a desire to remain in this country for the purposes of economic betterment was not an exceptional circumstance of a humanitarian nature.

• [18] The Tribunal held that “[l]ooked at cumulatively, [JE’s] circumstances are such that deportation could cause her disappointment and emotional upset”⁶ but not such that it would be unjust or unduly harsh for her to be deported.

• [19] JE’s appeal to the Tribunal did not turn on the Instructions. Mr Castelino, then appearing on behalf of JE, did however submit to the Tribunal that, as a victim of family violence in New Zealand, JE had “a legitimate expectation of some level of safety”. The Tribunal itself referred to the Instructions when it commented as follows:⁷

It is unclear what counsel means by “a legitimate expectation of some level of safety” as the victim of domestic violence. The appellant can have no legitimate expectation under the Act outside immigration instructions. In this regard, immigration instructions are clear that the Victims of Domestic Violence category is limited to victim[s] [sic] of domestic violence from New Zealand citizens or residents. The appellant’s husband is neither. New Zealand has provided protection and safety to the appellant via the police, the District Court and the Family Court. Its socio-political environment allows for the operation of non-governmental organisations specialising in assisting women who are subjected to domestic abuse and violence regardless of immigration status, which the appellant has availed herself of.

• [20] There is nothing in Campbell J’s judgment dealing with JE’s application for leave to appeal or to judicially review the Tribunal’s decision which suggests that it was then proposed that the vires of the Instructions would be an issue in any proposed appeal or review. It seems however that the matter was raised in the Court of Appeal. It noted that the proposed questions of law/grounds of review could be distilled to four questions, including whether the Tribunal erred by not considering whether the victims of family violence visa Instructions are ultra vires. The Court observed succinctly that

⁶ At [23].

⁷ At [25].

the Tribunal did not have the power to determine whether or not the Instructions were ultra vires. It noted that JE had commenced these review proceedings in this Court challenging the legality of the Instructions and that this Court is the appropriate forum for that issue.⁸

The Instructions

• [21] Immigration Instructions are issued pursuant to the Act. They are the guidebook by which immigration officers process and determine visa applications exercising their powers under the Act.

• [22] Instruction S4.5 relevantly provides as follows:

S4.5 Residence Category for victims of family violence S4.5.1 Objective

The objectives of the residence category for victims of family violence is to:

(a) enable partners of New Zealand citizens or residence class visa holders to remain in New Zealand where they:

(i) intended to seek residence class visas on the basis of their relationship which has ended because of family violence to either the non-resident partner or their dependent child; and

(ii) cannot return home because of the impacts of stigma, or because they would have no means of independent financial support from employment or other means; and

(b) recognise New Zealand's international obligations, particularly to:

(i) end discrimination against women in all matters related to marriage and family relations (Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women); and

(ii) protect children from mental and physical violence (Article 19 of the United Nations Convention on the Rights of the Child);

S4.5.2 Who is eligible for a resident visa for victims of family violence

People in New Zealand who:

(a) are, or have been, in a partnership ... with a New Zealand citizen or residence class visa holder; and

⁸ JE (India) v Immigration and Protection Tribunal, above n 4, at [19] and [27].

(b) had intended to seek a residence class visa in New Zealand on the basis of that relationship; and

(c) that partnership has ended due to family violence by the New Zealand citizen or residence class visa holder or by someone with whom the applicant is living with in a family relationship; and

...

may be granted a resident visa.

• [23] Instruction W17.1 relevantly provides as follows:

WI7.1 Who is eligible for a special work visa

People in New Zealand:

(a) who are, or have been in a partnership ... with a New Zealand citizen or residence class visa holder; and

(b) had intended to seek residence in New Zealand on the basis of that partnership; and

(c) that partnership has ended due to family violence by the New Zealand citizen or residence class visa holder or someone with whom the applicant is living in a family relationship; and

(d) who show a need to work in order to support themselves;

may be granted work visas valid for 6 months. This may be extended to nine months if the applicant applies for residence.

...

• [24] The Instructions have been certified by the respondent, the Minister of Immigration, under s 22(1) of the Act.⁹

• [25] It is common ground that the perpetrator of the family violence against JE was her husband and that he was neither a New Zealand citizen nor a residence class visa holder. As a result, JE was at no stage eligible to apply for either a resident or a special work visa pursuant to the Instructions. She did not endeavour to do so.

⁹ Immigration Act 2009, s 22(1).

The submissions

• [26] JE’s statement of claim is wide-ranging. The arguments however became much more focused at the hearing. Essentially, it became JE’s assertion that the Instructions are ultra vires the Act because they are inconsistent with New Zealand’s international obligations under the Convention. Mr Castelino, for JE, submitted that there is nothing in the certificates issued pursuant to s 22 of the Act suggesting that the Minister considered this country’s obligations under the Convention before certifying the Instructions. It was also argued that the Instructions are discriminatory and in breach of the New Zealand Bill of Rights Act and the Human Rights Act because they discriminate between the victims of family violence inflicted by New Zealand citizens or residence class visa holders and the victims of family violence inflicted by other persons.

• [27] Ms Clarke, for the Minister, asserted that New Zealand takes its responsibilities under the Convention seriously, that the Convention was considered and that this is expressly recorded in Instruction S4.5.1(b). She argued that the Instructions are not ultra vires and that there is no inconsistency between the Instructions and the empowering provision, s 22. She accepted that the vires of the Instructions is open to challenge, but submitted that the scope of the Instructions is not justiciable because it reflects Government policy. She argued that there is no legal yardstick against which to measure the scope of the Instructions because the entry of non-citizens into this country and the control of this country’s borders is the sole prerogative of the Executive.

Analysis

Utility of any order made?

• [28] I had an initial concern as to whether or not the relief sought by JE is moot, given the Tribunal’s decision and the subsequent decisions in this Court and the Court of Appeal. I was concerned that the Court should not be expected to provide a free or subsidised opinion service if there is no ongoing lis between the parties.¹⁰

¹⁰ See for example Re 110 Martin Street, Upper Hutt, and 64 Gibbons Street, Upper Hutt [1973] 2 NZLR 15 (CA) at 17; Attorney-General v Smith [2018] NZCA 24; [2018] 2 NZLR 899 (CA) at [18]- [29].

• [29] Having heard from counsel, I am satisfied that there is some utility to the proceedings. JE has already sought that the Minister should grant her a visa under s 61 of the Act. The Minister declined to exercise his discretion to do so but there is nothing in the Act to preclude JE making a fresh application to the Minister. Ms Clarke responsibly accepted that, if the Instructions are set aside, it would be open to JE to make a fresh application and for the Minister to reconsider her position.

• [30] I therefore turn to consider the substantive issues raised.

The Immigration Act/The Instructions

• [31] The purpose of the Act is to manage immigration in a way that balances the national interest as determined by the Crown and the rights of individuals.¹¹ To achieve this purpose, the Act establishes an immigration system that requires persons who are not New Zealand citizens to hold a visa to travel to New Zealand and to hold a visa and be granted entry permission to stay in New Zealand. It provides for the development of immigration instructions (which set rules and criteria for the grant of visas and entry permission) to meet objectives determined by the Minister. These can include objectives such as contributing to the New Zealand workforce through facilitating access to skills and labour and supporting families.¹²

• [32] Relevantly, s 22 of the Act provides as follows:

22 Immigration instructions

(1) The Minister may certify immigration instructions relating to —

(a) residence class visas, temporary entry class visas, and transit visas:

(b) entry permission:

(c) conditions relating to resident visas, temporary entry class visas, and transit visas, including, without limitation, conditions relating to—

(i) travel to New Zealand:

(ii) the holder’s ability to work or study in New Zealand or in the exclusive economic zone of New Zealand:

¹¹ Immigration Act 2009, s 3(1).

¹² Section 3(2).

(d) the periods for which each type of temporary entry class visa may be granted:

(e) the types of temporary visas that may be granted, and the name and description of each type.

...

(5) The kinds of matters that may constitute immigration instructions for the purposes of this Act are as follows:

(a) any general or specific objectives of immigration policy:

(b) any rules or criteria for determining the eligibility of a person for the grant of a visa of any class or type, or for entry permission, being rules or criteria relating to the circumstances of that person or of any other person (a third party) whose circumstances are relevant to the person’s eligibility, including (without limitation) rules and criteria about how any status or approval may be obtained or lost by the third party:

(c) any indicators, attributes, or other relevant information or matters that may or must be taken into account in assessing a person’s eligibility for a visa or entry permission:

...

(h) any statement of the conditions or types of conditions that may be imposed upon a visa of any particular class or type, and the circumstances in which or classes of persons in relation to whom the conditions may be imposed:

(i) the nature and extent of the discretion that immigration officers may exercise in making a decision on any visa.

(6) Without limiting subsection (5), any rules or criteria relating to eligibility for a visa or entry permission —

...

(b) may, in respect of any 1 or more specified classes or categories of person who wish to apply for a visa, —

...

(i) set or indicate rules, criteria, or other relevant matters of the kinds specified in subsection (5)(a) to (g) that will or may apply for the purpose of determining whether an invitation to apply for a visa should be granted to any such person:

...

...

(8) Immigration instructions certified by the Minister under subsection

(1) —

(a) are statements of government policy:

...

• [33] Mr Castelino accepted that the Instructions fall within the scope of s 22, both in respect of the types of visa category established and the eligibility requirements. He also accepted that the control of New Zealand’s borders lies with the Crown. He nevertheless argued that the Instructions breach New Zealand’s international obligations and domestic law.

The evolution of S4.5 and W17

• [34] The evolution of Instructions S4.5 and W17.1 was set out in a comprehensive affidavit filed by Christine Hyndman, a principal policy advisor employed by the Ministry of Business, Innovation and Employment. She has worked for the Immigration Policy team since 1998 and she was authorised to affirm her affidavit on behalf of the Minister. Her evidence was not challenged by JE.

• [35] Ms Hyndman explained that, at a high level, the development of immigration instructions generally involves the following steps:

(a) a policy change proposal which the Minister and the Department agree should be progressed;

(b) the development of a suitable policy (with the Minister being briefed on policy development and conclusions as matters progress);

(c) if the Minister agrees with the policy, the Minister taking the policy to Cabinet and seeking the agreement of other Ministers to its implementation;

(d) if Cabinet agrees, the implementation of the policy, for example by providing instructions to Parliamentary Counsel Office for the drafting

of new instructions or by the Department drafting minor amendments to existing immigration instructions;

(e) the Minister reviewing the draft amendments;

(f) if the drafting is acceptable, the Minister certifying the Instructions;

(g) the new or amended immigration instructions being added to INZ’s operational manual and published online.

• [36] Instructions S4.5 and W17 have their genesis in late 2000, when the then Minister of Immigration, Minister Dalziel, became aware of New Zealand men entering into abusive relationships with vulnerable foreign women. She sought to put in place measures to meet the immediate needs of non-New Zealanders following the break-up of their relationships with New Zealand citizens or residents due to domestic violence. She expressed concern. The problems identified were as follows:

(a) a partner of a New Zealander could enter New Zealand on a temporary visa, but with the intention of marriage or with the intention of applying for residence on the basis of the marriage or the de facto relationship with the New Zealand partner, who would support the residence application;

(b) where such a relationship ended due to family violence before residence had been granted, and the New Zealand partner withdrew support, the non-New Zealand partner needed to apply and qualify for another visa under another immigration category (which was not usually possible);

(c) if a non-New Zealand partner did not qualify for a visa under any other category, he or she had to leave New Zealand or become an overstayer;

(d) there were no sanctions for the New Zealand partner.

• [37] In October 2000, the then Ministers of Social Services and Employment and of Immigration, sought Cabinet’s approval to put in place two interim measures for victims of domestic violence who had come to New Zealand in good faith to marry or live permanently with New Zealand citizens or residents and who had separated before gaining residence in their own right. They proposed:

(a) a financial assistance programme; and

(b) the grant of work permits to victims of domestic violence who were living apart from and who had lost the support of their New Zealand citizen or resident partners, so that they could work and support themselves.

On 10 October 2020, the Cabinet Social Policy and Health Committee agreed to amend the Special Needs Grant Welfare Programme and to issue work permits as proposed. These were interim measures with an anticipated expiry date of 30 September 2001.

• [38] In July 2001, shortly before the interim measures were due to expire, Minister Dalziel sought Cabinet’s agreement to a longer term response. She took a paper to Cabinet, the purpose of which was to assist the victims of domestic violence without the right to residence, who could not qualify for residence under any other category, but who could not return to their home country for cultural and social reasons. Specifically, the Minister sought agreement to a “domestic violence immigration policy” using both work and residence permits (now visas). It was proposed that such permits would only be available to partners of New Zealand citizens or residents. Cabinet was advised that these measures were seen as providing protection and options for people placed in vulnerable situations by their violent New Zealand citizen or resident partners.

• [39] This domestic violence immigration policy, using a two-phase process of work and residence permits, was agreed to by the Cabinet Economic Development Committee on 8 August 2001. The policy was then implemented by the Minister under

ss 13A and 13AB of the Immigration Act 1987 (now repealed). It became part of INZ’s Operational Manual.

• [40] Various changes were made to the domestic violence immigration policy in 2007 and 2008. Inter alia, Cabinet invited the Minister of Immigration, in consultation with the Minister of Womens’ Affairs, to amend the policy by easing, but not removing entirely, the requirements around return to the home country. A further measure proposed was the introduction of additional character criteria for the sponsors of partners to reduce the risk that people with a history of domestic violence would become sponsors.

• [41] Research from the University of Waikato, commissioned by the Ministry of Womens’ Affairs, was published in August 2007. That research included various recommendations about immigration policy appropriate for the victims of domestic violence. It did not however recommend extending the victims of domestic violence policy to people other than the partners of New Zealand citizens or residents.

• [42] The Government undertook a review of the victims of domestic violence policy in 2008. The review included consideration of the matters raised in the University of Waikato’s research paper. As part of the review, two options were put to the then Minister, Minister Cosgrove, in February 2008. Option one suggested that eligibility for a temporary visa should be restricted to victim partners who intended to seek residence on the basis of being a partner of a New Zealand citizen or resident; the other option suggested that the policy should be extended to victim partners of principal applicants for residence where both were lawfully in New Zealand. Various factors were presented both for and against each option.

• [43] The paper that the Minister took to Cabinet in September 2008 favoured option one. It retained the requirement that applicants for a work or residence permit needed to have been in a relationship with a New Zealand citizen or resident, to have been intending to apply for residence on the basis of that relationship, but that the relationship ended because of domestic violence on the part of the sponsor. The Minister recommended that the Cabinet Social Development Committee agree to various wide-ranging amendments to the policy, inter alia to “recognise New

Zealand’s international obligations, particularly to: end discrimination against women in all matters related to marriage and family relations (Article 16 of the Convention on the Elimination of all forms of Discrimination Against Women)”. In an accompanying letter addressed to the Chair of the Cabinet Committee, the Minister recorded that the proposed amendments were intended, as far as possible, to ensure that immigration policy did not put barriers in the way of people leaving abusive relationships, while also managing potential immigration risks.

• [44] Cabinet agreed to the proposed policy amendments on 10 September 2008. It specifically noted that the Victims of Domestic Violence Policy entitled the partners of New Zealand citizens and residents to apply for a work permit or residence. It agreed:

(a) that a policy objective statement should be included in the policy, stating that its aim was to enable partners of New Zealand citizens and residents to remain in New Zealand either temporarily or permanently where they intended to seek residence on the basis of their relationship which had ended because of domestic violence to either the person on a temporary permit or their dependent children; and

(b) that the policy statement should be amended to include reference to the Convention.

• [45] As a result, the victims of domestic violence policy was amended as from 2 March 2009. Inter alia, it was amended to include a statement referring to New Zealand’s international obligations to protect women and children, and its focus was broadened so that domestic violence extended to victims where the violence had been perpetrated by anyone in a domestic relationship with the applicant. Applicants for temporary work permits no longer needed to demonstrate an inability to return home, and a temporary work permit could be extended for up to nine months’ duration, if the holder subsequently applied for residence. The amendments were certified by the Minister on 2 March 2009 under the then applicable provision in the Immigration Act 1987. They became part of INZ’s Operational Manual.
• [46] The new Act came into force, in most respects, on 29 November 2010. What was previously the Operational Manual was rewritten to become the Immigration Instructions. Most provisions were carried directly across. Ms Hyndman deposed that briefings focused on changes brought about by the new Act and that they did not cover areas where policy settings remained the same. The victims of domestic violence policy did not change, and the substance of the relevant Instructions was effectively the same as the relevant part of the Operational Manual under the old Act. As a result, the Minister was not separately briefed before certifying the Instructions under the new Act. The victims of domestic violence policy was recertified as Instruction S4.5 and Instruction W17, effective as from 20 November 2010. Subsequently, minor amendments were certified in July 2011, March 2015 and December 2019. Those amendments are not relevant for present purposes.

Further amendments?

• [47] In July 2018, the committee monitoring the Convention issued a report.¹³ It made various recommendations relating to migrant victims of family violence. It did not recommend amending the scope of family violence visas to include people in JE’s position.

• [48] In 2019, INZ published a “cross-INZ Victims of Family Violence Project” report accessing the effectiveness of INZ’s approach to both preventing and responding to family violence for recent migrants.¹⁴ The report recorded the position taken by various non-Governmental organisations that the requirement for partnership with a New Zealand citizen or resident in the Instructions is a barrier preventing recent migrant victims from obtaining family violence visas.¹⁵ The report noted however that New Zealand’s approach is similar to that in comparable countries, in particular, Australia, United Kingdom and the United States of America. Although various recommendations were made in the report, it was Ms Hyndman’s evidence that New Zealand’s family violence immigration policy settings are not currently subject to further investigation or amendment.

¹³ CEDAW/C/NZL/CO8.

¹⁴ Immigration New Zealand Recent Migrant Victims of Family Violence Project 2019: Final Report

(Ministry of Business, Innovation & Employment, 2020).

¹⁵ At 4 and 28-29.

Are the Instructions contrary to the Convention?

• [49] The Convention was adopted and opened for signature, ratification and accession on 18 December 1979. New Zealand became a signatory. The Convention condemns discrimination against women in all its forms and State parties agree to pursue, by all appropriate means, a policy of eliminating discrimination against women. Pursuant to Art 16, State parties agree to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and, in particular, to ensure, on a basis of equality of men and women, the same rights to enter into marriage and to choose a spouse, the same rights and responsibilities during marriage and on its dissolution, the same rights and responsibilities as parents irrespective of their marital status, the same rights to decide freely and responsibly on the number and spacing of their children, the same rights and responsibilities with regard to guardianship and the like and the same personal rights as husband and wife and in respect of the ownership of property.

• [50] Decision-makers are required to consider relevant international obligations when making immigration decisions.¹⁶ However, the existence of international obligations does not necessarily require a particular substantive outcome.¹⁷

• [51] In the present case, it is clear that New Zealand’s obligations under the Convention were taken into account as a relevant consideration in the development of the Instructions. The Convention was referred to in the Minister’s advice to Cabinet in September 2008. The Minister’s advice was accepted by Cabinet. There is an express reference to the Convention in the text of S4.5. An express purpose of the residence category created by S4.5 is to recognise New Zealand’s international obligations, particularly in relation to discrimination against women in matters related to marriage and family relations – as noted in Art 16 of the Convention. There is no express reference to the Convention in W17 but it is in substantially similar terms and is part of New Zealand’s family violence immigration policy. The Instructions are in gender neutral terms. They do not on their face discriminate against women and there is nothing in the Convention which requires that New Zealand’s family violence

¹⁶ Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [143]- [144].

¹⁷ H v Minister of Immigration [2020] NZCA 562 at [64].

immigration policy should apply not only to partners of New Zealand citizens and residents but also to partners of other persons who are temporary residents in this country.

• [52] This challenge to the Instructions cannot succeed.

Are the Instructions contrary to the New Zealand Bill of Rights Act and to the Human Rights Act?

• [53] Section 19 of the New Zealand Bill of Rights Act provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act.

• [54] The grounds of discrimination in the Human Rights Act are set out in s 21 of that Act. The prohibited grounds of discrimination are sex, marital status, religious belief, ethical belief, colour, race, ethnic national origins, disability, age, political opinion, employment status, family status and sexual orientation.

• [55] The visa status of one’s partner or former partner is not a prohibited ground of discrimination. Section 19 of the New Zealand Bill of Rights Act cannot be relied on if the ground of discrimination alleged is not within the list of prohibited grounds of discrimination set out in the Human Rights Act.¹⁸

• [56] JE nevertheless submits that the Instructions are discriminatory against women “who are temporary migrants in New Zealand”. She says this is discrimination because the Instructions do not apply to all domestic abuse victims in New Zealand.

• [57] The submissions for JE did not specify the prohibited ground of discrimination said to apply to her. It is important to appreciate that the right under s 19 of the New Zealand Bill of Rights Act to freedom from discrimination does not however require equal legislative recognition of everyone.¹⁹

¹⁸ R v King [2008] NZCA 79, [2008] 2 NZLR 460 at [36].

¹⁹ Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523 (CA) at 527.

• [58] Under the Act, a person other than a New Zealand citizen must hold a visa to travel to and be in New Zealand.²⁰ Pursuant to s 45 of the Act, no person is entitled to a visa as of right, and not every person who would like a visa is able to have one. The types of visa available and their scope are essentially matters of Government policy.²¹ Some applicants will inevitably fall outside the scope of particular visa categories.

• [59] Necessarily, all persons granted visas under either S4.5 or W.17 will be temporary visa holders. From the outset, the policy adopted by successive Governments has been confined to persons in a relationship with a New Zealand citizen or resident. As Ms Hyndman noted in her affidavit, there are various policy reasons for this difference in approach:

(a) the partner of a New Zealand citizen or resident has a greater expectation of remaining long-term in New Zealand than a person who is on a temporary visa because there is a clear pathway through the partner to residence. The breakdown of the relationship through violence removes the pathway to residence the partner would otherwise have had;

(b) there is a power imbalance, which can result in a victim staying in an abuse relationship because the victim’s visa is dependent on sponsorship from the New Zealand citizen or resident partner;

(c) New Zealand has a greater level of responsibility for the vulnerability experienced by a non-New Zealand partner as a direct result of the actions of a New Zealand citizen or resident.

• [60] It is well recognised, and was conceded by Mr Castelino, that the control of the New Zealand’s border lies with the Crown. The decision as to whether a non-citizen

²⁰ Immigration Act 2009, s 14.

²¹ Section 22.

can enter and remain in New Zealand is the sole prerogative of the Executive. It is a fundamental incident of the sovereignty of the State.²²

• [61] As noted in s 3, the Act provides for a balancing between Government policy and the rights of individuals and s 392(3) of the Act explicitly recognises that “immigration matters inherently involve different treatment on the basis of personal characteristics”.

• [62] The Act distinguishes between persons on the basis of their visa status (in particular between persons on temporary visa and those on resident visas). For example, resident visas confer the right to stay in New Zealand indefinitely; temporary visas do not. Decisions relating to residence class visas may be appealed to the Tribunal; decisions relating to temporary visas cannot be appealed.²³ The power to deport the holders of resident visas is more restrictive than the equivalent power in relation to temporary visa holders.²⁴ Only residents may appeal deportation liability on the facts.²⁵ Following a successful humanitarian appeal, the Tribunal can suspend the deportation of residents, but not the deportation of those on temporary visas.²⁶ Entitlement to visas and differing treatment on the basis of personal characteristics is commonplace in the Act. JE has not been singled out or treated differently from other persons in the same situation.

• [63] It is noteworthy that s 392(2) provides as follows:

392 Relationship between this Act and Human Rights Act 1993

...

(2) ... despite anything in the Human Rights Act 1993,—

(a) no complaint may be made under that Act in respect of—

...

²² Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [116]- [117]; Chief Executive of Department of Labour v Yadegary [2008] NZCA 295, [2009] 2 NZLR 495 (CA) at [5]- [6]; See also Attorney-General for Canada v Cain [1906] UKLawRpAC 37; [1906] AC 542 (PC) at [546].

²³ Sections 217(2)(a)(i) and 186 and 187.

²⁴ Sections 158 and 158.

²⁵ Sections 155(4), 156(3)(b), 158(3), 159(2) and 160(3).

²⁶ Section 212.

(ii) the content or application of any immigration instructions made in accordance with section 22:

JE has not made a complaint under the Human Rights Act but this provision, together with s 392(3), suggests that the Human Rights Act has limited application in the immigration context.

• [64] I am not persuaded that the Instructions breach the New Zealand Bill of Rights Act or the Human Rights Act.

Result

• [65] For the reasons I have set out, JE’s application for review fails.

• [66] The respondent is entitled to his reasonable costs and disbursements. In that regard, I direct as follows:

(a) any memorandum seeking costs is to be filed and served within 10 working days of the date of release of this judgment;

(b) any memorandum in response is to be filed and served within a further 10 working days;

(c) memoranda are not to exceed five pages.

I will then deal with the issue of costs and disbursements on the papers unless I require the assistance of counsel.








Wylie J