IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2018-404-2547
[2019] NZHC 1005	

UNDER	the Judicial Review Procedure Act 2016 and ss 247 and 248 of the Immigration Act 2009	
IN THE MATTER	of an application for judicial review	
BETWEEN	SHANE CHARLES WENZEL
Applicant	
AND	THE MINISTER OF IMMIGRATION
Respondent	

Hearing:	22 March 2019	
Appearances:	P F Chambers for the Applicant
S Connolly and M Madden for the Respondent	
Judgment:	9 May 2019	

JUDGMENT OF GAULT J

This judgment was delivered by me on 9 May 2019 at 1:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr P F Chambers, Barrister, Auckland
Mr M Henley-Smith (applicant’s instructing solicitor), Henley-Smith Law, Auckland Mr S Connolly, Crown Law, Wellington

WENZEL v THE MINISTER OF IMMIGRATION [2019] NZHC 1005 [9 May 2019]

[1]	The applicant is an Australian citizen who has lived in New Zealand for many years. Following a trip overseas in November 2017, the applicant was denied entry back into New Zealand. He applied for judicial review of that decision and a subsequent decision to decline his application for a visa.

Background facts

[2]	As an Australian citizen, the applicant was exempt from the requirement to hold a visa when he arrived in New Zealand on each occasion prior to the coming into force of the Immigration Act 2009 (the Act) on 29 November 2010. Under the Act, persons who were in New Zealand on that date and exempt from the requirement to hold a visa, including the applicant as an Australian citizen, were deemed to hold a resident visa allowing them to stay in New Zealand.1

[3]	On 15 October 2012, the applicant was convicted in the District Court on two charges of using a document with intent to defraud and six charges of using a document dishonestly.2 This was a retrial ordered by the Court of Appeal when his convictions from an earlier trial were quashed.3 He was sentenced to a term of three years’ imprisonment.4 His later appeal against conviction was dismissed.5

[4]	On 8 November 2017 the applicant and his partner travelled to Hong Kong. On 24 November 2017 the applicant attempted  to  travel  from  Hong  Kong  to  New Zealand  via  Sydney.  Following  an  immigration  alert,  an  Immigration   New Zealand officer spoke with the applicant by telephone and decided to offload the applicant from the flight to New Zealand (he could still travel on the flight from Hong Kong to Sydney). The officer relied on s 15(1)(b) of the Act, because in the preceding 10 years the applicant had been convicted of an offence for which he had been sentenced to imprisonment for a term of 12 months or more.

[5]	On 12 January 2018 the applicant applied to Immigration New Zealand for a visitor visa. In subsequent correspondence, in particular dated 28 September 2018,

1	Immigration Act 2009, s 417.
2	R v Wenzel DC Manukau CRI-2006-092-14379, 15 October 2012.
3	Wenzel v R [2010] NZCA 501.
4	R v Wenzel DC Manukau CRI-2006-092-14379, 14 December 2012.
5	Wenzel v R [2013] NZCA 403.

Mr Chambers on behalf of the applicant sought to expand the application to one based on the applicant’s claimed resident visa pursuant to s 17(2)(a) of the Act.

[6]	On 12 November 2018 Immigration New Zealand declined the applicant’s application for a visitor visa, on the basis that he fell under s 15(1)(b) of the Act since he had been sentenced to  three  years’  imprisonment.  Therefore,  Immigration  New Zealand decided he was not eligible for a visa or entry permission unless a special direction was given under s 17(1)(a) of the Act. A special direction was considered but was not granted.

Relevant legal provisions

[7]	Section 15 of the Act relevantly states:

15	Certain convicted or deported persons not eligible for visa or entry permission to enter or be in New Zealand

(1)	No visa or entry permission may be granted, and no visa waiver may apply, to any person—

…

(b) who, at any time in the preceding 10 years (whether before or after the commencement of this section), has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more;

…

(4)	This section is subject to section 17.

[8]	Section 17 provides:

17	Exceptions to non-eligibility for visa or entry permission

(1)	Despite sections 15 and 16, a visa and entry permission may be granted to any person—

(a)	in accordance with a special direction; or

(b)	in accordance with section 83.

(2)	Despite sections 15 and 16,—

(a)	entry permission must be granted to—

(i)	the holder of a permanent resident visa; and

(ii)	the holder of a resident visa granted in New Zealand; and

(iii)	the holder of a resident visa arriving in New Zealand for a second or subsequent time as the holder of the visa:

(b)	a visa and entry permission must be granted to a person who is for the time being entitled to any immunity from jurisdiction by or under the Diplomatic Privileges and Immunities Act 1968 (other than a person referred to in section 10D(2)(d) of that Act) or the Consular Privileges and Immunities Act 1971.

(3)	A decision to grant a visa and entry permission under subsection (1) is in the absolute discretion of the decision maker.

[9]	Section 186 provides:

186 Limited right of review in respect of temporary entry class visa decisions

(1)	No appeal lies against a decision of the Minister or an immigration officer on any matter in relation to a temporary entry class visa, whether to any court, the Tribunal, the Minister, or otherwise.

(2)	Subsection (1) applies except to the extent that section 185 provides a right of reconsideration for an onshore holder of a temporary visa in the circumstances set out in that section.

(3)	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—

(a)	refusal or failure to grant a temporary entry class visa to a person outside New Zealand:

(b)	cancellation of a temporary entry class visa before the holder of the visa arrives in New Zealand.

[10]	Section 417(3) provides:

417 Persons exempt from holding permit under former Act deemed to be holders of temporary visa or resident visa

…

(3) A person in New  Zealand  who  immediately  before  the commencement of section 404 of this Act was exempt from the requirement to hold a permit under Part 2 of Schedule 1 of the Immigration Regulations 1999 is deemed on and from that

commencement to hold a resident visa under this Act allowing stay in New Zealand only.

Submissions

[11]	Mr Chambers, counsel for the applicant, confirmed that the only decision subject to challenge in the proceeding is the decision made on 12 November 2018, as a formalisation of the decision to refuse entry to New Zealand in November 2017.

[12]	Mr Chambers submitted that, although no review proceedings are possible in respect of a decision in relation to a temporary entry class visa as the applicant is outside New Zealand, his application effectively changed from one seeking a temporary entry class visa to one seeking a resident visa pursuant to s 17(2)(a)(iii). Mr Chambers submitted that entry permission must be granted to the applicant as “the holder of a resident visa arriving in New Zealand for a second or subsequent time as the holder of the visa”. He submitted that the holder of a resident visa included the holder of an expired visa.

[13]	Mr Chambers relied on the provisions of the Immigration (Visa, Entry Permission, and Related  Matters) Regulations 2010 to support his interpretation of   s 17(2)(a)(iii) of the Act – focusing on regs 8 and 18 which deal with applications by or waiver for Australian citizens. He also referred to the definition of “person who previously held a resident visa”,6 which means a person whose resident visa has expired because he or she has travelled in a way that does not meet the travel conditions of the visa. He submitted that the applicant was only required to show that he was an Australian citizen with a previous resident visa, and that he was compliant in terms of completion  of  the  application  form  and  any  medical  requirement.  He described these requirements as merely administrative.

[14]	The applicant’s written submission expressed the alleged ground of review in terms of the decision being not only contrary to s 17(2)(a)(iii), but also unreasonable, based on irrelevant considerations and a failure to take account of relevant considerations, otherwise than in accordance with law and abuse of the decision- making process. These were not pursued as separate grounds.

6	Regulation 4(1).

[15]	Mr Connolly, counsel for the respondent, acknowledged that reg 18 provides for visa waiver in the case of Australian citizens but submitted they must still, on arrival, apply for a visa. Mr Connolly pointed out that the definition of “person who previously held a resident visa” in the regulations is not used in regs 8 or 18 but elsewhere, such as reg 6.

[16]	Moreover, Mr Connolly submitted the Regulations are subject to ss 15 and 17 of the Act. In relation to s 17, Mr Connolly submitted that in the absence of a special direction, s 17(1) does not apply. In any event, a decision to grant a visa and entry permission under subs (1) is in the absolute discretion of the decision maker.7 Such a decision is not reviewable.8

[17]	In relation to s 17(2), Mr Connolly noted that “holder” is defined in s 4 of the Act:

holder, in relation to a visa granted under this Act,—

(a)	means the person in respect of whom the visa is granted; but

(b)	does not include a person whose visa has expired or been cancelled

[18]	Mr Connolly submitted that the applicant’s visa had expired so he was not the “holder of a resident visa arriving in New Zealand for a second or subsequent time as the holder of the visa”. This was because the resident visa the applicant was deemed to hold upon the transition to the Act was a resident visa allowing stay in New Zealand only. This visa expired upon travel out of New Zealand. Mr Connolly acknowledged it would be different if the applicant’s resident visa had travel conditions, but his did not.

[19]	Mr Connolly advised that the Minister had decided not to intervene while the proceeding was ongoing but noted the applicant could apply again.

7	Section 17(3).
8	Section 186(3).

Discussion

[20]	I accept that in correspondence the applicant effectively expanded his application for entry from the original application of 12 January 2018 seeking a visitor visa to an application based on his claimed resident visa under s 17(2)(a)(iii) of the Act.

[21]	I  also  accept  that  Immigration   New   Zealand’s   decision   letter   dated 12 November 2018 focused on the original application for a visitor visa and did not refer to s 17(2)(a).

[22]	It was common ground at the hearing that the focus of the application for judicial review is on the correctness of the decision under s 17(2)(a)(iii) of the Act. Indeed, any decision refusing to grant a temporary entry class visa to a person outside New Zealand is not reviewable.9 Also, a decision whether to grant a special direction is in the absolute discretion of the Minister.10

[23]	Mr Chambers sought to rely on the regulations to support his interpretation of s 17(2)(a)(iii) of the Act. I consider the regulations do not assist the applicant. Section 17(2)(a)(iii) does not apply in his case, for the following reasons.

[24]	As Mr Connolly pointed out, the definition of “holder” in the Act “does not include a person whose visa has expired”. References in the regulations to “persons who previously held a resident visa”, and the process applicable for such persons under the regulations, do not affect the clear meaning of s 17(2)(a)(iii) of the Act.

[25]	As an Australian citizen, the applicant was deemed to hold a resident visa when the Act came into force on 29 November 2010 as a result of s 417(3). That provision stated that the resident visa was one “allowing stay in New Zealand only”. The applicant had not been granted any variation of the conditions of his visa relating to further travel to New Zealand. Accordingly, as Mr Connolly submitted, when the applicant travelled out of New Zealand on 8 November 2017, his resident visa

9	Section 186(3)(a).
10	Section 378(8).

expired.11 When he sought to return to New Zealand on 24 November 2017, he was no longer the holder of a resident visa, within the terms of s 17(2)(a)(iii). Nor was he the holder of a resident visa when the 12 November 2018 decision was made.

[26]	Therefore, he could not be granted a  visa or entry permission by reason of     s 15(1)(b), at least in the absence of a special direction. The applicant could only travel to New Zealand if he had a visa or a visa waiver applied.12 Even if a visa waiver applied, the applicant would still have to apply for a visa and entry permission on arrival.13 In his case, absent a special direction, a visa was precluded by s 15(1)(b).

[27]	For these reasons, Immigration New Zealand’s decision to decline the applicant a visa or entry permission under s 15(1)(b) of the Act was not unlawful (however the ground of review is expressed). The application for judicial review must fail.

Result

[28]	The application for judicial review is dismissed.

[29]	The respondent is entitled to costs on a 2B basis plus reasonable disbursements.

Gault J

11	Section 63(2)(a).
12	Section 14(1).
13	Regulation 18.