New Zealand, High Court of New Zealand, 22 November 2021, NZHC 3154
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Non-discrimination
- Freedom of movement of people
- Scope of powers of public authorities (legislative, executive etc.)
- International humanitarian law including a duty to protect a civilian from harm
Vulnerability groups
Outcome of the decision
Link to the full text of the decision
General Summary
Application for judicial review of a decision by the Minister of Immigration to put on hold two Afghan nationals’ applications for residency due to the COVID-19 border closure. The applicants have family in New Zealand and were seeking Refugee Family Support visas. Since the border closure, the Taliban took control of Afghanistan placing the applicants at grave risk due to their family association with the Allied forces during the Afghanistan conflict. The applicants claimed that New Zealand had obligations under international humanitarian law including the Geneva Conventions and customary international law to protect civilians from harm arising from armed conflict. The applicants claimed that the New Zealand Bill of Rights Act 1990 applies to decisions made by the Executive, even where individuals are located overseas. They further claimed that rights such as the right to life (s 8) and natural justice (s 27) must be considered. The Court did not agree that New Zealand had international humanitarian law obligations to the applicants; however, it held the Bill of Rights had extraterritorial operation and applied to the decision made by the Minister.
The applicants also claimed that the refusal of their visa applications was inconsistent with the Immigration Act. The Court held that the applicants were entitled to have their applications processed in accordance with the regulations in place at the time they applied, prior to the COVID-19 border closure. The Court also held that the Minister incorrectly applied the humanitarian exception to the applicants. The decision was remitted back to the Minister to consider with reference to the judgement.
Facts of the case
The applicants were family members of interpreters who worked for New Zealand/Allied forces during the Afghanistan conflict. Their family members already resident in New Zealand had made an application for residency for two family members under the Refugee Family Support Category in 2016 and 2017 respectively. The applications were selected for processing in 2018 and 2019. The applications were in final stages in December 2020 when the applicants were advised that all applications were on hold due to COVID-19 border restrictions. After the fall of Afghanistan to the Taliban in August 2021 the New Zealand government met to coordinate the evacuation of New Zealand citizens, residents and approved Afghan nationals. The Immigration Instructions under the Immigration Act were amended so that approved Afghan nationals could apply for a Critical Purpose Visitor Visa, which the applicants proceeded to do. Their applications were denied. The applicants argued that New Zealand had international obligations to protect civilians from harm due to armed conflict and that they were owed obligations under the New Zealand Bill of Rights Act 1990. The Applicants challenged 3 decisions:
1. Failure to issue residence visas in Refugee Family Support Category because of the changes made to the Immigration Instructions arising from the COVID-19 border closure
2. Failure to issue Critical Purpose Visitor Visas on humanitarian grounds; and
3. Failure to grant residence visas under the humanitarian exception.
The Court agreed that the New Zealand Bill of Rights Act 1990 applied, but primarily found for the applicants on the basis that the Immigration Act and Instructions had not been correctly applied. The applicants were successful and the decisions were remitted back to the Minister for Immigration for reconsideration in light of the judgement.
Type of measure challenged
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
In relation to the argument of the applicants that New Zealand owed an obligation to the applicants in Afghanistan under international humanitarian law, the Court considered the Geneva Convention and a decision of the Human Rights Committee (AS v Italy of 2020). The Court agreed that New Zealand can have responsibilities to civilians during an armed conflict and such responsibility would arise under international customary law; however, in this instance it considered the circumstances of the applicants (being family members of the interpreters) too remote for there to be any continuing international law obligations on New Zealand. The Court distinguished AS v Italy as in that case there existed a closer connection to the actions of Italy and the applicants at risk. The Court agreed that the New Zealand Bill of Rights Act 1990 applied extraterritorially, in that New Zealand had chosen to address the circumstances under its laws, and found that the right to natural justice as contained in s 27 was engaged.
In considering the three specific grounds, the Court found as follows:
Decision 1: Failure to issue residence visas under the Refugee Family Support Category due to changes to the immigration instructions because of the COVID-19 border closure. The Court considered the legislation and engaged in statutory interpretation of the relevant clauses and determined that the relevant residence instructions were those in place at the time the application for residency was made , not the subsequent amendments enacted in response to COVID-19. The refusal to grant a visa was therefore not lawful.
Decision 2: Failure to issue critical purpose visas on humanitarian grounds. This visa type was created to allow exemptions to the COVID-19 border closure. Effectively the Minister did not consider the threat of death to the applicants due to their family’s association with New Zealand defence force a valid exception on humanitarian grounds. The Court considered the meaning of “humanitarian” with reference to case law and concluded that it included a person who faced a threat of mistreatment or death. The Minister had therefore erred in ruling that no exemption applied, and the claim was upheld.
Decision 3: Failure to grant residence visas under the humanitarian exception. The Court determined this by adopting a similar approach to the second decision in dispute and upheld the claim. The Court also considered the breach of natural justice in the delay of processing the applications which then resulted in the applications not being finalized when the borders were closed due to COVID-19. The Court acknowledged the breach but did not uphold the claim as concluded that nothing could be gained by upholding this particular ground of judicial review.
Conclusions of the deciding body
The claim was upheld and the decision of the Minister was remitted back for reconsideration.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. Right to natural justice
General principle applied
- Rule of law
- Due process
- Reasonableness
Balancing techniques and principles (proportionality, reasonableness, others)
In relation to the claim that New Zealand had obligations under international humanitarian law including the Geneva Convention and customary international law to protect civilians from harm arising from armed conflict, the Court considered case law namely AS v Italy from the Human Rights Committee and determined that there was an insufficient causal connection between the threat to the applicants and New Zealand. The applicants were not the interpreters, they were the family members of the interpreters and the court found that connection too remote to enliven an obligation of New Zealand under international humanitarian law.
More generally, the Court considered the nature of humanitarian exceptions to COVID-19 border restrictions and held that these ought to extend to people facing threats in Afghanistan, especially where they had a family connection to New Zealand.
