New Zealand, High Court of New Zealand, 8 June 2022, [2022] NZHC 1333
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Private and family life
- Freedom of movement of people
Outcome of the decision
Link to the full text of the decision
General Summary
The case challenged two federal government decisions relating to border closures, immigration and temporary entry visa for non-New Zealand citizens. The main rights involved were the right to family and the right to have a family. The applicants also claimed they were being discriminated against for their sexual orientation and their desire to live with their same sex partner. The Applicants sought judicial review of both decisions. Remedies sought were a declaration that the first decision was ultra vires and also a declaration that both decisions were discriminatory. The Court held that the decisions were not ultra vires or discriminatory and did not infringe on the Applicant’s rights.
Facts of the case
Two applications were heard together, relating to two parties. There were two decisions being challenged. Both parties had same sex spouses who were not New Zealand citizens and who were prevented from entering New Zealand due to the COVID 19 border closures. The first decision challenged was the Minister’s recommendation to Cabinet to extend the temporary suspension of the ability of most non-New Zealand citizens or New Zealand residents to apply for a temporary entry class visa. The extensions were to the duration of reg 9A of the Immigration (Visa, Entry Permission and Related Matters) Regulations 2010 (Regulations). The second decision challenged was the Minister’s certification of immigration instruction E13 which permits (but does not require) an immigration officer to lapse (remove) certain applications for temporary entry class visas received or unable to be processed during the period of border closure. Both partner’s visa applications were about to lapse due to their inability to satisfy the relationship provisions. A key condition of being classified as being in a “relationship” was to satisfy the living together provisions. Both the applicant’s partners were from countries where it was not possible to live together as a same sex couple due to cultural, societal or religious reasons. New Zealand was the only country where they could safely live together to satisfy their immigration/visa requirements but the COVID-19 border closure and immigration restrictions prevented the issuing of the necessary visa. The applicants claimed that this was an infringement of their right to family and was an arbitrary interference with their right to have a family. They further claimed it was discriminatory based on their sexual orientation. The Court held that neither the suspension nor the lapsing decisions were discriminatory and did not infringe on the applicants’ rights.
Type of measure challenged
- National government measure
- Federal government measure
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court considered the application of the New Zealand Bill of Rights Act as it related outside the jurisdiction of New Zealand. The Court considered Afghan Nationals v Minister of Immigration [2021] NZHC 3154 and concluded that there may be some extra-territorial operation of the Bill of Rights Act. However, ultimately the Court articulated that the proper question to be posed was whether public officials in New Zealand must consider consistency with the Bill of Rights Act when acting in a way which affects the lives and rights of individuals overseas. The Respondents’ threshold objection to whether the Bill of Rights applied in this circumstance was not successful. In relation to whether the decisions were discriminatory, the Court considered sections 19 and 21 of the Bill of Rights Act. The Applicants were required to show that the contested decisions disproportionately affected a subgroup of persons in a manner amounting to indirect discrimination. The Court held there was no evidence to support a finding that there had been a material disadvantage on the basis of a prohibited ground of discrimination. As such the Court held that neither decision was discriminatory.
Conclusions of the deciding body
The Court determined that neither of the decisions were reviewable and as such the Applicants were unsuccessful. The decisions were upheld.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to marry
- Right to privacy
- Right to private and family life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Protection of family, Art. 10(1), International Covenant on Economic Social and Cultural Rights
- Freedom from arbitrary or unlawful interference on family life, Art. 17, ICCPR
- Freedom from discrimination, Section 19, New Zealand Bill of Rights Act
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. right to privacy (private and family life)
- Health v. immigrants’ fundamental rights
General principle applied
- Equality
- Non-discrimination
- Due process
Balancing techniques and principles (proportionality, reasonableness, others)
The Court applied the principles of Reasonableness and Proportionality
Other notes
On the type of scope (material scope): The High Court is New Zealand’s only court of general jurisdiction
