A v Minister of Internal Affairs

[2019] NZHC 2992

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-32 [2019] NZHC 2992

UNDER

the Judicature Amendment Act 1972 and

Part 30 of the High Court Rules

IN THE MATTER OF

an application for judicial review of the suspension and cancellation of a passport

BETWEEN

A Applicant

AND

MINISTER OF INTERNAL AFFAIRS Respondent

Hearing:	14 November 2019
Appearances:	Applicant in person (via telephone) A L Martin and G M Taylor for respondent B J R Keith, special advocate
Judgment:	15 November 2019

RESERVED JUDGMENT OF DOBSON J

[1]      This proceeding seeks judicial review of decisions by the respondent in May

2016  to  suspend,  and  then  cancel,  the  applicant’s  New Zealand  passport.    The decisions were made on the basis of a belief by the respondent that the applicant posed a danger to the security of a country other than New Zealand, pursuant to what is now s 27GA(2) of the Passports Act 1992 (the Act).1

[2]      No steps have been taken by the applicant to progress the proceeding since

10 December 2018.  Understandably encouraged by the terms of minutes that I have

1      At the time, the same provision was in sch 2, clause 2(2) of the Act.

[7]      The special advocate filed a further memorandum of his own responding to the issues  raised  by respondent’s  counsel.    He has  submitted that  the scope of his involvement ought to include, to the extent considered appropriate by the Court, contributions on matters to be argued in open court in an attempt to compensate for the unfairness to the applicant of not having access to the CSI.

[8]      At the start of the present hearing, I acknowledged that the applicant could address her submissions in light of the content of the special advocate’s submissions in opposition to the strike out. I indicated that, after hearing counsel for the respondent and the applicant, I would afford the special advocate a brief opportunity to respond to matters raised in relation to the content of his written submissions, and new matters that had not been addressed in them.  I deferred consideration as to whether it was appropriate to add to matters taken into account on the present application by hearing respondent’s counsel and the special advocate in closed court (from which the applicant is excluded).3

Grounds for strike out

[9]      The grounds for the strike out application are that the applicant has failed to prosecute the proceeding to a hearing and, secondly, that the passage of time has rendered the issues in the proceeding moot to an extent that the Court would not grant the relief sought as it would serve no useful purpose.  Important to the second ground is that since December 2017 there has been no impediment to the applicant applying for a fresh New Zealand passport.   On 9 October 2019 she was provided with an acknowledgement that the NZSIS (the security agency responsible for recommending to the respondent that her passport be cancelled) would not, on current circumstances, anticipate recommending that the respondent refuse to issue a fresh New Zealand passport to her.

Delay

[10]     After the proceeding was commenced and the respondent gave notice that he would rely on CSI in the proceeding, a substantial period of time was taken with the

3 See [46] below.

applicant’s challenge to the relevant statutory terms on which that procedure might apply.  I rejected that challenge and the applicant’s appeal to the Court of Appeal was eventually not pursued.4

[11]     After clarification of the statutory process that would apply to the provision of CSI to the Court, a further substantial period was occupied in my iterative assessments of the extent to which claims to withhold relevant information from the applicant on the ground that it is CSI should be upheld.  That analysis included settling the terms of an unclassified summary of the CSI to be provided to the applicant.

[12]     Throughout that process, the special advocate has pressed for a greater extent of disclosure of documents thus far protected as CSI, as well as seeking disclosure (initially on a confidential basis just to him) of additional categories of potentially relevant documents.   That process has substantially, but not completely, been completed.

[13]     On 7 November 2018, I issued an open judgment addressing on-going issues with the scope of disclosure and how the discovery process should occur.5     On

23 November 2018, the applicant served on Crown Law, acting for the respondent, a

32 page notice to answer interrogatories. This was an attempt by the applicant to have more information revealed to her about matters taken into account in the respondent’s decisions that are under challenge, and the processes by which those decisions were made,

[14]     In the course of a closed court interlocutory hearing on 14 December 2018, I reviewed with the respondent’s counsel and the special advocate how the applicant’s notice to answer interrogatories ought to be dealt with. Leave is required to administer interrogatories in this proceeding.   In anticipation of such an application for leave being filed by the applicant, I considered it would be helpful for her to understand the grounds on which any such application for leave would be resisted by Crown Law. Accordingly, I directed that Crown Law was to file a memorandum outlining the

grounds  the  respondent  might  rely  on  to  oppose  an  application  to  administer

4      A v Minister of Internal Affairs [2017] NZHC 746, [2017] 3 NZLR 247.

5      A v Minister of Internal Affairs [2018] NZHC 2890.

interrogatories so that the applicant could consider the likely grounds of opposition when drafting her application for leave.

[15]     Crown Law complied with that direction on 23 December 2018. However, the applicant took no steps at all in the proceeding until filing a short memorandum on

28 August 2019 advising that she intended to seek dialogue with Crown Law on a way forward for the proceeding and requesting that the respondent’s strike out application be adjourned.  Since then, she has filed documents in opposition to the respondent’s present strike out application in a timely way.

[16]     In seeking to progress the proceeding, I have this year directed:

(a)      on  27 February 2019,  that  any application  for  leave to  administer interrogatories be filed and served by 20 March 2019;

(b)on 2 April 2019, that the applicant provide advice to the Court as to her future intentions with the proceeding by 29 April 2019;

(c)      on 7 June 2019, that the applicant either file her own memorandum or contribute to a joint memorandum setting out any proposals she had for further steps in the proceeding by 28 June 2019;

(d)on 13 August 2019, that the applicant file a memorandum addressing the terms on which the proceeding should continue by 28 August 2019.

[17]   Applications for judicial review are intended to be relatively confined assessments of the lawfulness of the exercise of statutory powers.  In general they are expected to be determined expeditiously.  In the absence of adequate explanations, applicants for relief who have legal representation would be vulnerable to strike out on grounds of delay where no steps have been taken in such a proceeding for a period of some 11 months.

[18]     To achieve a strike out of proceedings on the ground of an applicant’s delay, a respondent must establish that the delays have been inordinate and inexcusable, and that the respondent has suffered serious prejudice from the delay.   In addition, the

Court has to be satisfied that it is not in the overall interests of justice to allow the case to proceed.6

[19]     There can be no set period of months or years that qualifies as inordinate delay in every case.  The expectation of a satisfactory rate of progress will depend on the nature of any individual case.  Here, the issues as to the lawfulness of the grounds for the respondent’s decision to cancel a passport ought to be relatively confined and certainly there is a risk of such a challenge becoming stale where the grounds for concern motivating the decision to cancel the passport may not continue to apply.

[20]   The length of the period of the applicant’s inactivity certainly requires explanation. In an affidavit sworn on 29 October 2019, the applicant explains in some detail the adverse personal circumstances she has encountered since December 2018 that she claims have precluded her making progress with the proceeding. Some of the details adverted to in her affidavit are unclear.  She expanded upon her predicament somewhat in answer to questions from me during the hearing.

[21]     I  acknowledge  the  applicant’s  concern  to  avoid  disclosure  of  further identifying details, given her intention to apply for permanent name suppression at the conclusion of the proceeding, and having the benefit of interim suppression orders currently.

[22]     The applicant has deposed that a close family member died unexpectedly in late 2018 and that another close family member requires on-going care and support for a range of health conditions, for which the applicant now has primary responsibility. The applicant also deposes that the family organisational burdens have fallen to her.  In addition, other matters have disrupted the course of her study and research to an extent that, combined with the family circumstances, she has not been able to devote the requisite time and attention to this proceeding throughout 2019.

[23]     The   applicant’s   affidavit   alludes   to   the   prospect   of   retaining   legal representation at a later point, without explaining why that initiative is not presently

6      Lovie v Medical Assurance Society of New Zealand Ltd [1992] 2 NZLR 244 (HC); Commerce

Commission v Giltrap City Ltd [1997] NZCA 330, (1997) 11 PRNZ 573.

feasible, or why it has not been possible throughout the course of 2019.  The reasons advanced for not progressing the proceeding would not have the same weight in the event that the applicant was legally represented.

[24]     However, on balance I am not persuaded that the delay thus far has been inordinate, nor am I persuaded that it is inexcusable.  There have been a number of unusual circumstances contributing to the totality of delays in reaching this point, but they cannot all be fairly attributed to the applicant. A range of novel legal issues have arisen in what is the first proceeding under the relevant statutory provisions to reach the present stage.

[25]     The respondent cannot make a great deal of the prejudice arising from delay. The concerns focus on the extent of resources required.  The longer the proceeding is protracted, the greater the resources required to respond to it.  The extent of work required already can be seen as unusually extensive for a judicial review on the present scale.  However, the respondent cannot resist the claimed importance to the applicant of the decision, and much of the work involved thus far has been required, at least in part, because of the novelty of the closed court procedure involved.

[26]     In assessing the competing interests of the parties, I am not persuaded that the respondent  can  make out  serious  prejudice arising from  delays,  including those throughout 2019.   I am accordingly not persuaded that the respondent is currently entitled to have any of the causes of action struck out, or the proceeding dismissed, on the ground of delay.

Is the proceeding now moot?

[27]    The second ground relied on by the respondent for striking out is that circumstances  relevant  to  the concerns motivating the proceeding have  changed sufficiently so that, even if the pleaded criticisms were made out, the Court would not grant relief.   Relief in judicial review is a matter of discretion and the Court will decline to grant relief where it would have no practical utility.

[28]     Mr Martin’s submissions cited decisions such as Maddever v Umawera School

Board of Trustees, where a student challenging the process for exclusion from the

school no longer wished to attend the school and the personnel on the board of trustees responsible for the challenged decision were no longer in office.7   It was determined that, given the futility of granting relief in those circumstances, the action having become moot, refusal of relief would have been inevitable.8

[29]     A further decision cited was Ngāti Tama ki Te Waipounamu Trust v Tasman District Council, in which a resource consent that was challenged by way of judicial review had lapsed without being implemented.9    Cooke J observed that the claim would be limited to declaratory relief in circumstances where the underlying issue between the parties may no longer be a live one.10

[30]     In the present case, the statutory process provides that, at the end of a period of cancellation of a passport, it would not be reinstated but the person becomes eligible to apply for a new one.11

[31]     Subsequent to the respondent’s withdrawal of a separate proceeding seeking orders to extend the length of cancellation, the applicant has been able to apply for a new passport.   In a narrow, prospective sense, the passage of time has cured the applicant’s concern.  Certainly since the middle of October 2019, she has been on notice that the NZSIS would not now take the point. The respondent’s submission is that the applicant does not need court orders to get a new New Zealand passport. Arguably, that renders the application for judicial review moot.

[32]     From  the  applicant’s  perspective,  that  is  not  a  sufficient  answer  to  her challenges to the decisions.  She asserts that they were wrong and seeks to discharge the relatively high onus of establishing administrative law unreasonableness.  Getting a new passport does not remove the allegedly wrongful decision that there were grounds for cancelling the last one.  Her amended statement of claim also seeks a

declaration that the decision-making involved gross negligence and that the manner in

7      Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478 (HC).

8      At 502-503.

9      Ngāti Tama ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166.

10 At [25].

11     On the terms at the time, cl 2(4) of sch 2, now s 27GD of the Passports Act 1992.

which the decision was conveyed to her caused unnecessary distress. She also claims administrative law damages for the harm allegedly caused.

[33]     In addition to the prospective interest in having the adverse impact of the decisions expunged, the special advocate submitted that there are legal issues of precedential significance. For example, what is required to make out various forms of activity specified in the Act as grounds for cancellation of a passport?

[34]     On this aspect of possible precedential relevance of the proceeding, Mr Martin submitted for the respondent that any decision in the present case would be fact- specific and necessarily delivered in a closed court judgment that would provide no precedential value for later cases.

[35]     The  special  advocate  disputed  that  the  potential  utility  of  a  substantive judgment in the proceeding could be excluded on this ground.  Mr Keith suggested that the Court was more likely to produce a reasoned outcome in an open judgment, with only CSI-specific analysis separately recorded in a classified addendum. Certainly, he submitted that the extent to which a substantive decision would be specific to facts derived from CSI could not eliminate the prospect of an open court judgment with precedential value, and that amounted to a material factor against a finding that the proceeding is now moot.

[36]     I accept the essence of the special advocate’s point on this.

[37]     I am not persuaded that the ability of the applicant to apply for a fresh New Zealand passport with an indication from NZSIS that it would not, on the present state of its understanding, raise objection to a passport being issued to her, makes the present judicial review proceeding moot in a sense that could justify its being struck out at this stage.   That is not to say that I accept various strands of the concerns described by the applicant, in terms both of the historical decision under challenge and the perceived adverse prospective risks for her, as necessarily being logical or rational. She attributes importance to a substantive outcome as hopefully placing constraints on what  she  sees  as  an  arbitrary  and  unreasonable  exercise  of  powers  to  deprive New Zealand citizens of their rights to passports.

[38]     However, the statutory scheme provides for rights of appeal from decisions in relation to an application for a passport or suspension or cancellation of it. That more conventional safeguard is the one that persons contending that they have been denied a passport, or had one cancelled, in arbitrary fashion can invoke to test the reasonableness of the decision made.

[39]     I also have difficulty understanding the fear described by the applicant that the adverse view formed about her in 2016, which provided grounds for cancelling her passport, will be resurrected at some point in the future as sufficient grounds for a further cancellation.  This is advanced as a reason for proceeding with the judicial review notwithstanding the acknowledgement recently conveyed to her that the matters relied on in 2016 do not, on the present state of affairs, warrant any further opposition to her holding a New Zealand passport. In the absence of fresh information coming to light justifying an adverse view of her activities, it is difficult to conceive of circumstances in which the NZSIS could now cite the matters of concern in 2016 as constituting grounds for recommending that a passport should not be issued, or that any passport should be cancelled.

[40]     The applicant expressed reluctance to make an application for a new passport, whilst conditionally indicating she intended to take that step.   That is a decision entirely for her.  However, I raised with her the prospect that, if the present judicial review were to be pursued to a substantive hearing, it may become relevant to the Court to know whether she has applied, as invited, and if so whether she has had a new passport issued to her.

[41]     In all these circumstances, I am satisfied that the proceeding should not be

struck out on the grounds that they have become moot.  The arguments the applicant has foreshadowed, supported by any further criticisms of the process leading to the decisions under challenge that may be raised by the special advocate, could give rise to prospects for relief that would have a measure of utility.

Dismiss or adjourn the strike out application?

[42]     Mr Martin submitted that if the grounds for a strike out were not made out on the present argument, then rather than dismiss the application the Court should allow

it to stand adjourned for a period, such as six, nine or 12 months.  He submitted that was appropriate, given the uncertainty over the applicant’s commitment and capacity to advance the proceeding to a substantive hearing.  Part of his argument for a strike out was that, some three years after the decisions sought to be challenged, there was still no clear timetable leading to a substantive hearing.

[43]     A sufficient answer for a major part of the delays encountered thus far is that they have been caused or contributed to by the respondent’s resort to the exceptional closed court procedure, and the need for the Court to rule on the extent and manner of resort to that procedure.

[44]     Nevertheless, there are sufficient grounds for concern about the applicant’s capacity to now make reasonable progress with her proceeding to defer dismissal of the respondent’s application to strike the proceeding out.

[45]     The outcome at this point is a determination that grounds are not made out for the striking out of the judicial review proceeding. In lieu of dismissing the application, I direct that it is to stand adjourned for a period of nine months from delivery of this judgment. I do not apprehend there are any issues as to costs on the present argument.

[46]     In view of that outcome, I have found it unnecessary to consider additional matters raised by the special advocate in opposition to the strike out application which would have required me to convene a closed court hearing.

Timetabling

[47]     From the applicant’s perspective, she wishes to pursue an application for leave to administer interrogatories.  Since 23 December 2018, she has been on notice of the grounds on which the respondent would oppose any such leave.  In addressing the likely scope of such an argument, Mr Martin submitted that it would be unfortunate if the leave application involved any extensive revisiting of  the applicant’s earlier challenges to the respondent’s resort to the closed court procedure and claims for withholding relevant documents as CSI.  That is a valid point.  My provisional view is that a substantial number of the questions posed in the interrogatories as originally notified by the applicant appear to be attempts to outflank the respondent’s resistance

to providing documents on the grounds that they constitute CSI.  I have determined those claims after closed court hearings.

[48]     However, as both the applicant and Mr Keith pointed out, that concern is not sufficient to deprive the applicant of the opportunity of arguing an application for leave.

[49]     I accordingly direct that any application for leave to administer interrogatories, either in the form previously notified or any amendment thereto, together with any supporting  documents  intended  to  be  relied  on,  are  to  be  filed  and  served  by

20 January 2020.  The respondent is to have 15 working days after service of any such application in which to file a notice of opposition and any documents to be relied on in opposing the application for leave.

[50]     I will have the file referred to me after such documents have been filed and will make further directions by way of minute at that time.

Dobson J

Solicitors:

Crown Law, Wellington for respondent

Copy to:

The applicant

Special Advocate, BJR Keith, Wellington