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Why the High Court let Posie Parker into New Zealand

28 Apr 2023

| Author: Anna Longdill

Judicial Review Procedure Act 2016, s 15 – application for interim orders – decision of Minister of Immigration not to intervene under s 16 Immigration Act 2009 to prevent Kellie-Jay Keen-Minshull (Posie Parker) from entering New Zealand – do the applicants have a position to preserve? – factors relevant to exercise of court’s discretion to grant interim relief  strength of the applicants’ substantive case – right of Keen-Minshull to be heard – mandatory nature of proposed interim relief – granting interim orders would effectively amount to final relief

Auckland Pride v Minister of Immigration [2023] NZHC 758 (Gendall J)

Kellie-Jay Keen-Minshull (also known as Posie Parker) is a public figure and anti-transgender activist based in the United Kingdom. She was scheduled to travel to New Zealand (as a visa waiver traveller due to her UK citizenship) to speak at public events in Auckland and Wellington on 25-26 March 2023.

Previous events overseas had resulted in violence and arrests of attendees and counter-protestors. Her visit raised concerns for members of rainbow communities and submissions were made to the Minister of Immigration and Immigration New Zealand (INZ) requesting that she be denied entry into New Zealand.

Section 16(1)(a)(ii)–(iv) Immigration Act 2009 provides that no visa waiver may apply to any person who the minister has reason to believe, is, or is likely to be, a threat or risk to security, public order, or the public interest.

A delegated INZ decisionmaker had considered Keen-Minshull’s case and determined s 16 did not apply. The minister had declined to intervene with this assessment.

Auckland Pride Incorporated, Gender Minorities Aotearoa, and InsideOUT Kōaro, all organisations that support and advocate for the rights of rainbow communities, applied to the High Court for interim orders to prohibit the minister from permitting Keen-Minshull from entering New Zealand as being contrary to s 16.  The proceedings were served only on the Crown on a Pickwick basis (and not on Keen-Minshull). The New Zealand Free Speech Union appeared as intervenor.

Judicial review – interim orders – applicable principles – do the applicants have a position to preserve? (yes, but only by a small margin) – factors relevant to the exercise of the court’s discretion to grant interim relief – the strength of applicants’ substantive case (possible case for unreasonableness, but high threshold, and considerable exercise of discretion in s 16) – the right of Keen-Minshull to be heard (tells against granting of interim relief) – difficulty with the implementation of interim orders (court stepping into minister’s shoes and requiring positive action from minister) – granting of interim orders would effectively grant the applicants the substantive final relief they seek.

Held: The application for interim orders was dismissed. The applicants did have a position to preserve (their views as to the legality of Keen-Minshull’s entry into New Zealand). But to grant relief would require the court to step into the shoes of the minister at an interim and urgent stage.

To justify such orders, the applicants would have needed to establish a reasonably arguable case that the minister’s decision was unlawful and/or unreasonable, which they had not done. In all the circumstances (including the lack of a fulsome argument or the opportunity for Keen-Minshull to be heard), it is inappropriate to grant interim relief. That the court briefly noted the intervenor’s submissions on freedom of expression and observed that no real issue arose due to how the interim order’s application was framed. If a competing rights analysis is required, that is a matter for the substantive proceeding.

Auckland Pride v Minister of Immigration

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