Immigration Service fails to provide adequate opportunity to comment on adverse information and failed to give clear reasons for decline decision

Immigration-residence visas—applications provisionally approved and subsequently declined—reasons for declining not given at time of provisional approval-whether decisions to decline unlawful or unreasonable—whether procedures adopted in declining applications unreasonable

The complainant was an immigration consultant based in Hong Kong. His complaint centred on the refusal by New Zealand authorities to issue residence visas for a large number of clients after their applications had previously been approved for this purpose in Hong Kong subject to satisfactory compliance with conditions as to health and character, when the subsequent refusal was on grounds unrelated to those issues. The complainant alleged that this was unreasonable and not in accordance with the law. At the complainant’s request the issue was initially considered purely as a matter of principle. In this respect the Ombudsman formed the preliminary view that the complaint could not be sustained and invited the complainant’s comments. The complainant responded rejecting the preliminary view formed on the issue of principle involved and also raising the issue that apart from principle, the Department had, on the facts, behaved in a procedurally unreasonable manner. This is because the applications involving newly established businesses were declined because the businesses were new. Also, the Department had allegedly given proper and adequate consideration to the applications before declining them and finally, it had been declining applications in a manner conflicting with its own advice to the complainant in this regard and/or without sufficient regard to its own internal instruction manual.

The Ombudsman considered not whether the Department’s decisions on the applications were reasonable, but rather whether the Department’s conduct and procedure meant that in the overall context it would be seen to have acted reasonably, irrespective of the merits of individual decisions.  On the issue of principle, the Ombudsman was not persuaded by the complainant’s arguments that the Department had acted either unlawfully or unreasonably. A large body of case law relating to natural justice estoppel and legitimate expectations was referred to by the complainant to support his claim that the Hong Kong approvals were binding on the Crown. However, in the Ombudsman’s view, unless there was something in the Immigration Act itself which imposed a duty to issue a visa in the circumstances applicable to this complaint he could not see how he could properly form an opinion that the refusal to issue visas had been unlawful. In fact, the Act in this case precluded a Court from entertaining any review proceeding in respect of the refusal to issue visas and as Ashby v Minister of Immigration [1981] NZLR 222 makes clear, the exercise of discretion in immigration matters is considered by the Courts a falling in a special class of its own, linked, as it is with foreign policy.

The Ombudsman did not see that the Crown was in any way bound by the approvals of the Hong Kong official as such an approval could not, in my opinion, be equated with the issuing of a visa which was defined in the Act as an endorsement via a passport. The clear legislative intent appeared to be that the issue of a visa could be refused if at any time prior to its issue something causes the visa officer to decide not to issue the visa in question. Section 14 of the Act expressly refers to the ‘time of issuing the visa’ as being the relevant time at which the visa officer knows of no reason why a permit should not be granted. The fact that the issue of the visas was taken out of the hands of the official who had conditionally approved them did not in affect the position. Canadian case law later cited by the complainant in support of a different argument confirmed this view that there was nothing in this aspect of the claim.

It was also submitted that it was not lawful for the applications to be re-opened after approval by the Hong Kong official. The Ombudsman rejected this submission on the grounds that the applications had not been re-opened as the statutory procedure would only be complete when the visa was actually issued or refused, and that the exercise of that discretion could not be fettered in advance by any purported "approval". The case Rootkin v Kent County Council [1981]2 All ER 227 is a case where the English Court of Appeal considered a number of the cases the complainant had referred to in support of his argument and rejected that they applied to a situation where a citizen has no right to a determination on certain facts being established, but only to the benefit of the exercise of a discretion (in that case) by a local authority. In the Ombudsman’s view this reasoning could apply to the issue of visas.

Consequently the Ombudsman confirmed his preliminary view that in principle the Department’s refusals could not be considered contrary to law.

Similarly, the Ombudsman did not accept that in principle it was unreasonable for the Department to refuse to issue the visas simply on the grounds of the prior approvals. A residence visa confers no right to a residence permit and consequently had visas been issued in circumstances where the Department doubted that permits ought subsequently to be granted, it seemed that the converse would in fact be true.

However, these issues of principle were a separate matter and did not address the complainant’s other claim that the procedure adopted by the Department had been unreasonable.

He provided material which appeared to show:

1. Some applicants had been told the reason for declining their application was that the prospective employer was not operating at a level to sustain their employment, when in fact the businesses in question were new ones requiring overseas employees before commencing business, and that prior to forming the new businesses, the complainant had been advised that such a procedure complied with immigration policy.

2. Some applicants had been refused for reasons which appeared to be conflict with the material on file.

3. The advice given by the Department at the complainant’s specific request as to how the approved applications would be processed had not been adhered to and that the procedure actually adopted failed to follow the departmental manual instructions obliging the Department to observe the rules of natural justice.

This material was of such a nature that the Ombudsman felt an investigation into these aspects was warranted and an explanation from the Department as to these matters was sought. The Ombudsman considered that it became clear that the Department had misunderstood his concerns in these respects. This misunderstanding was however resolved and the Department ultimately responded on the several issues raised.

As to the declining of applications involving new businesses, the Department accepted that the establishment of new businesses which could not commence operations until necessary overseas personnel arrived in New Zealand was not precluded by immigration policy. However, it said that it had not been that factor that had caused it to decline applicants who had been recruited by such newly established businesses. Rather, it said that it was the genuineness of such job offers that had been its concern and not the newness of the businesses. The Department had put its concern about genuineness to the complainant, and the complainant had failed to satisfy it that the offers were genuine.

The Ombudsman accepted that it was for the Department to determine to its own satisfaction that a job offer is ‘genuine’, and had that been all that was involved the Ombudsman would have considered discontinuing the investigation as the applicants had the alternative remedy to have the matter reconsidered by the Minister.

However, not all had been rejected on the grounds that the job offer was not considered genuine and yet that was the only basis, other than health or character, which the Department had informed the complainant (as agent for the applicants), it was questioning the provisionally approved applications before they were declined.

The Ombudsman considered that where the Department had given reasons for declining an application other than upon grounds which had already been given to the complainant, or to the applicant themselves, it would be contrary to the concepts of natural justice and fairness and the Immigration Manual itself, and therefore unreasonable and wrong.  

Because of these and other preliminary views conveyed to the Department, it analysed all the cases it could identify as having come within the ambit of the complaint from a list of 93 given to the Ombudsman by the complainant. Of these, the Department stated that in 44 cases clear and accurate reasons for declining, which were based on job offers had been given. However, it also said that 12 involved giving reasons unrelated to job offers, including four where wrong reasons were given. In addition, in 32 cases the reasons given were not ‘clear an accurate’ but required letters to be ‘read as a whole’ in order to fully understand the real reasons for declining the applications.

The remaining cases were considered to be outside the ambit of the investigation for a variety of reasons. In the Ombudsman’s view the procedure adopted in cases where clear and accurate reasons were not provided was inadequate and wrong. The Ombudsman did not consider it was good enough to decline applications where provisional approval had been given and specific grounds for reconsidering that provisional approval had also been provided. In such circumstances, the Ombudsman believed the applicants were entitled to equally clear and accurate reasons for the provisional approvals being overturned as to do otherwise could have been potentially misleading and could thus also be prejudicial to the formulation of any request for reconsideration of an application.

It was also my opinion that the Department in declining the applications had not adhered to the advice it had given the complainant that provisionally approved applications would not be immediately and finally declined where an employer was no longer able to honour or guarantee employment. Although the Department explained that the letter may have been misleading, it considered that it had complied with the advice given because it also stated that where it was found that one offer of employment was not genuine the treatment accorded an applicant would depend on the applicant’s good faith in dealings with the Department. However, as the Department had never put the issue of good faith to the applicants themselves, or to the complainant and in fact denied that it had ascribed bad faith to the applicants, the Ombudsman was not persuaded that no obligations were owed to the applicants by the Department before it declined their applications.

One of the Department’s own legal advisers had said the best course of action would have been for the Department to notify the applicants of its conclusions and to seek comment before any application was in fact declined. The Ombudsman agreed this was not only the best, but also the fair and reasonable thing for the Department to have done in light of the policy which it had indicated to the complainant applied to these applicants.

The Department maintained that in all cases the decisions to decline applications were correct and consequently the applicants suffered no loss. However, this was not the point in issue as far as the Ombudsman’s investigation was concerned. Even if this had been so, being fair means more than being right. In his view, where an applicant had received conditional approval for a visa, (subject to health and character clearances), there was an entitlement to be given the opportunity to comment on any other adverse factors which were material to a decision to reverse the approval.

It was also necessary for the Department to communicate those other matters correctly to an applicant. The Department conceded that in seven cases no opportunity for comment had been given and in four the wrong reasons had been given. The complaint was sustained in this respect and the Ombudsman recommended that those applicants who had not been given the opportunity to comment, or had been provided with wrong reasons, or with reasons which were not ‘clear and accurate’, be given the opportunity to make fresh applications under current Government policy, and that the fees previously paid be regarded as the only fee payable for the new application. The Department accepted this recommendation.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.