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Judge-Trevor-Faber1Recently, we have come across cases involving Indian work visa holders crying foul over the INZ’s decision to stop them from returning to New Zealand even though they held a valid visa to do so.

It may seem legitimate given that the effect of having a visa under s 43 of the Immigration Act 2009 only goes to the visa holders’ ability to present themselves at the border for entry permission. However, it becomes a different matter if the visa holders are not allowed to do so, as was the case with the Indian visa holders.

Here’s the nutshell of the case. INZ has become suspicious of movements by a group of Indian nationals. The suspicion arose out of the visa holders remaining out of New Zealand for a lengthy period of time, causing INZ to suspect that the visa holders’ jobs were not genuine. INZ also found out that most of their partners in India had been refused a partnership visa for not meeting the ‘living together requirement’.

Bent on its duty to uphold the integrity of our border, INZ took an immediate action to stop those suspected visa holders from boarding their return flights. First thing first, it advised those visa holders by email that it had decided not to allow them to board their return flights pending investigation. INZ also placed a travel alert in AMS against each of those visa holders to make sure that those visa holders are not allowed to board their return flights.

Those two decisions by INZ were the subjects of a recent judicial scrutiny in an action brought by a total of six plaintiffs, who were affected by the decisions: Kaur v Ministry of Business, Innovation and Employment [2012] NZHC 3563.

This case was an interlocutory application seeking interim relief against INZ giving effect of the impugned decisions. Such relief was not granted by the court.
However, what is more interested for the purpose of this article is the court’s position on the ouster clause under s 97 of the Act. INZ argued that the court’s jurisdiction is ousted by s 97 (4), which provides that the court cannot review the INZ decision to not allow a passenger to board a flight to New Zealand.

The court held that its inherent jurisdiction to review administrative decisions still prevails despite the ouster clause if the decision under s 97 is deemed to be so capricious and arbitrary that it was ‘irrational’ and ‘unreasonable’ in terms of the administrative principle. This is because such a decision cannot be deemed to fall within the statutory power under s 97 of the Act.

Whilst the court held that the plaintiffs did not successfully present their case on those terms, the Court took every opportunity to stress that INZ had no evidential basis on which the travel alerts was placed against the plaintiffs. No attempts have been made by INZ to substantiate its allegation of the suspected employment scheme. So far as the court was concerned, the INZ’s decision to place the travel alert was based on nothing more than a pure speculation.

The court did not overlook the consequence of placing the travel alert against the plaintiffs. Valid visa holders travelling on a genuine reason in reliance on their valid visas could run the risk of being prevented from returning part way through the working span of their visa. To say they have no judicial redress leaves them vulnerable to abuse of statutory power: per para [77].

The plaintiffs were not successful in obtaining the restraint order, technically because the impugned s 97 decision cannot have any bearing on their further attempts. The substantive hearing was to be held on 30 January 2013. However, this decision was enough to give INZ a stern warning that the court will not resile from its duty to review abuse of power in the shadow of the ouster clause.

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