AWA: Academic Writing at Auckland

I        Introduction

This opinion concerns whether Maggie can challenge the decision made by the Registrar not to grant her an immigration advice licence, by way of judicial review. Maggie must satisfy at least one of the following grounds in order to successfully challenge the decision in a court of law: procedural impropriety, illegality or irrationality.[1]

Courts will not interfere in an administrative decision unless that decision has been made outside the boundaries of their jurisdiction as delegated by Parliament through legislation.[2] Minister For Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others states that it is not for the courts to decide upon the merits of the decision where the discretion granted by Parliament makes such a decision possible.[3] Therefore the court must only assess whether the exercise of discretion of the Registrar was permissible under the Immigration Advisers Licensing Act 2007 (the Act). The legal issue turns to procedure rather than content and thus is judicially reviewable by the court on this basis.

II       Procedural Impropriety

A         Breach of the Right to a Fair Hearing

Council of Civil Service Unions v Minister for the Civil Service (CCSU) terms procedural impropriety as the “failure to observe basic rules of natural justice or failure to act with procedural fairness” towards the person to be affected by the decision.[4] The New Zealand Court of Appeal in Daganayasi v Minister of Immigration defines natural justice as “but fairness writ large and juridically, fair play in action”.[5] In this case, natural justice refers to the expectation that Maggie be given sufficient notice and opportunity for her case to be heard.

The Registrar denied Maggie the opportunity to demonstrate her oral communicative ability in an oral interview. An oral hearing was denied in Daganayasi on the basis that the statute expressly provided for written submissions but excluded the possibility of an oral hearing by implication.[6] In this case, s 19 merely refers to “evidence demonstrating a high standard of language competency in both written and oral communications”. The word “evidence” does not impliedly exclude an oral interview.

However, s 18 states that the application must be in a “form approved by the Registrar” which indicates that the Registrar has a relatively wide discretion in terms of choosing whether or not to grant an oral interview. Drew v Attorney-General found that the constriction of Mr Drew’s right to legal representation, effectively denying the right to a fair oral hearing, was outside of the discretion of the decision-maker.[7] Both Drew and Daganayasi can be distinguished on the basis that the constrictions imposed by the decision makers concerned significantly more important rights than the right of Maggie to advance her career. While administrative difficulties or inconvenience at supplying the oral interview are not a basis alone for the deprivation of the right to natural justice, it is most likely that a court will find the text and implied purpose of s 18 clear enough to conclude that the Registrar was under no obligation to provide an oral hearing to Maggie.[8]

The Registrar found that the experience and knowledge demonstrated by Maggie’s files did not reach an acceptable standard. Cooke J in Daganayasi quashed the decision made by the Minister of Immigration on the basis that prejudicial material was not disclosed and therefore the applicant had had no opportunity to respond or challenge the substance of the material.[9] An applicant should have the opportunity to challenge prejudicial material.[10] As was the case for the applicant in Daganayasi, Maggie had the ‘legitimate expectation’ to believe that she had complied with the statutory requirement of the Act. Maggie submitted evidence of a favourable success rate, attendance at development courses and evidence of her supervision. Maggie was most probably under the assumption that these pieces of evidence would demonstrate sufficient knowledge and practical experience in her field. The assessor included prejudicial comments concerning Maggie’s experience and knowledge in the industry. These comments should have been made available to Maggie for the opportunity of rebuttal on the basis that an applicant should be given every opportunity to comply with the statutory regulations.

III      Illegality

CCSU outlines that illegality requires a decision-maker to “understand correctly the law that regulates the decision-making power and must give effect to it”.[11]

A         Taking Account of Irrelevant Considerations

The Registrar considered the information provided by Maggie’s colleague regarding excessively optimistic advice. The list under s 17 is not exhaustive but instead inclusive because Parliament has used the term “may” indicating that there could be other factors pertaining to the fitness of an applicant. Therefore, as outlined in Wahrlich v Bate, a statutory interpretation must be undertaken.[12] The discretion given to the decision-maker under s 17 is relatively defined; it expressly concerns “convictions” and “disciplinary proceedings” with regard to the conduct of an advisor. These terms indicate that Parliament intended s 17 to only apply to relatively serious matters relating to the fitness of an applicant. There is no evidence to suggest that a disciplinary proceeding has been taken. The unsubstantiated nature of the allegation limits the seriousness nature of the matter. It is unlikely that a court will consider the information concerning Maggie’s optimistic advice as falling within the ambit of s 17 because this would require a broad interpretation of relatively express terms.

The Registrar considered the already sufficient number of licensed immigration advisers in Maggie’s part of Auckland as a reason for refusing the licence. Cooke J in Fiordland Venison Ltd v Minister of Agriculture and Fisheries stated that the taking account of a practical consideration will still not be valid if it is outside the scope of the statute.[13] In that case, the court deemed the taking into account of economic considerations to be ultra vires.[14] This is a similar case. While it may be practical, from a policy point of view, to limit the number of immigration advisors in a particular area, there is no content in the Act suggesting that the number of licensed immigration advisors should be a consideration for the decision-maker.

Wahrlich outlines the importance of adopting a broad or narrow interpretation based on the perceived intention of Parliament.[15] In that case the broad interpretation extended to the administration of justice whereas the narrow interpretation only extended to justice for the individual.[16] In this case it is clear that ss 17 to 19 only apply to the individual. The text is worded in the third person singular: “the applicant” and “immigration advisor”. The general text and scope of the Act is clearly focused on the individual to the extent that even a broad interpretation would unlikely accommodate any meaning extending to the wider immigration advice industry. A narrow interpretation would lead the court to the conclusion that the taking account of the number of advisers in Maggie’s part of Auckland is an irrelevant consideration.

B         Failure to Take Account of Mandatory Relevant Considerations

Fiordland makes out that it is strictly necessary to take account express statutory criteria.[17] The ground of failure to take account of mandatory relevant considerations can only be made out if the decision-maker fails to consider a factor which he is bound to consider.[18] In this case, it is clear that the decision-maker is bound to consider Maggie’s additional evidence of supervision, attendance at courses and success rates because s 19(c) states that the decision-maker must grant the licence if satisfied that any evidence meets a sufficient level. In this regard, the decision-makers discretion is relatively confined. Providing that the additional evidence supplied by Maggie was sufficient evidence of the required “practical experience and knowledge of immigration law, policy and practice”, it would not necessarily be pertinent to the consideration that the assessor found the client files to be insufficient evidence of the required experience and knowledge in and of themselves.

Fiordland found that a court may not invalidate a decision if an insignificant consideration was overlooked.[19] This does not seem to be an insignificant consideration because it is possible that the evidence overlooked was enough to demonstrate sufficient knowledge and experience by themselves even though the client files did not reach such an acceptable standard. As found in Peko-Wallsend, decision makers must weigh mandatory considerations openly and transparently or risk a finding of no weight.[20] The failure to fully reason and take account of the mandatory consideration perhaps manipulated the final decision of the Registrar. It is not for the courts to comment on whether this is indeed the case based on the content of the evidence unconsidered but merely for the court to quash the decision and remit the application for re-determination by the Registrar within the proper discretion of the statute.

IV      Irrationality

In order to satisfy the ground of Wednesbury unreasonableness, the court must consider the decision to be a decision that no reasonable body could have come to.[21] It is not what the court considers unreasonable but instead a decision that the court considers that no other reasonable body would have made under the particular legislation guiding the decision-making.[22] Maggie is unlikely to satisfy this particularly high threshold because the decision made was not manifestly unreasonable and it would be possible that another reasonable body would make the same decision under the guidance of ss 17 to 19 of the Act.

V       Conclusion

There are two possible successful grounds upon which Maggie can challenge the decision of the Registrar by way of judicial review: illegality and procedural impropriety. Maggie has a reasonable likelihood of success based on the non-disclosure of the materials, the taking into account of irrelevant considerations and the failure to take into account relevant considerations.

[1] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410.

[2] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 232.

[3] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 at 310 at 309.

[4] Council of Civil Service Unions v Minister for the Civil Service, above n 1.

[5] Daganayasi v Minister of Immigration [1980] 2 NZLR 30 (CA) at 141.

[6] Ibid at 142.

[7] Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [66].

[8] Ibid at [75].

[9] Daganayasi v Minister of Immigration, above n 5 at 145.

[10] Philip A Joseph Constitutional and Administrative Law in New Zealand (3^rd ed, Thomson Brookers, Wellington, 2007) at 973.

[11] Council of Civil Service Unions v Minister for the Civil Service, above n 1.

[12] Wahrlich v Bate [1990] 3 NZLR 97 (HC).

[13] Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 344.

[14] Ibid.

[15] Warlich v Bate, above n 12.

[16] Ibid.

[17] Fiordland Venison Ltd v Minister of Agriculture and Fisheries, above n 13.

[18] Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above n 3 at 308.

[19] Fiordland Venison Ltd v Minister of Agriculture and Fisheries, above n 13.

[20] Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above n 3.

[21] Associated Provincial Picture Houses Ltd v Wednesbury Corporation, above n 2 at 230.

[22] Ibid.