Al (Nigeria) v Immigration and Protection Tribunal

[2018] NZHC 42

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS

MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE

DLM1440836.HTML

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002759

[2018] NZHC 42

UNDER

the Judicial Review Procedure Act 2016 and the Immigration Act 2009, s 249

BETWEEN

AL (NIGERIA)

Applicant

AND

THE IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

THE CHIEF EXECUTIVE MINISTRY OF BUSINESS INNOVATION AND
EMPLOYMENT
Second Respondent

proceeding continued over

Hearing:

[On the Papers]

Counsel:

R S Pidgeon for the Applicant

M J Mortimer for the Second Respondent, and as Agent for the First Respondent

Judgment:

1 February 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 1 February 2018 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AL (NIGERIA) v IMMIGRATION AND PROTECTION TRIBUNAL [2018] NZHC 42 [1 February 2018]

CIV-2018-404-000088

IN THE MATTER OF        the High Court Rules 2016, Part 19,

the Declaratory Judgments Act 1908 and the Senior Courts Act 2016, s 12,

the inherent jurisdiction

AND

IN THE MATTER OF        applications made by the applicant as

AL (Nigeria) in CIV-2017-404-002759

under the Immigration Act 2009, ss 245 and 249

AL (NIGERIA)
Applicant

[1]On 14 November 2017, the applicant filed:

(a)An application for leave to appeal under s 245 of the Immigration Act 2009; and

(b)An application for leave to judicially review a decision of the Immigration and Protection Tribunal  under  s 249  of  the Immigration Act 2009.

[2]        In the ordinary course, each application is treated as a distinct proceeding and separate CIV numbers are allocated. In this case, the Court Registry allocated a CIV number to the application for leave to appeal (CIV-2018-404-000088) but, due to an oversight, omitted to allocate a separate CIV number to the leave to review application.

[3]        The applicant has now filed a without notice application seeking leave to file an originating application, directions as to service, and an order that the applicant’s name be anonymised. The originating application for which leave is sought seeks declarations confirming that both leave applications were filed on 14 November 2017, and therefore within the statutory timeframe.

[4]        The without notice application was served on a  Pickwick  basis  on  the  Chief Executive of the  Ministry  of  Business,  Innovation,  and  Employment  (Chief Executive). Counsel for the Chief Executive has filed a memorandum confirming that there is no opposition to the directions sought in the without notice application. The Chief Executive also confirms that there is no objection to both applications being recognised or deemed to have been filed on 14 November 2017. However, counsel takes issue with the making of such orders by way of originating application. Counsel submits that a separate originating application is not required and that a minute recognising that the applicant filed sufficient documentation in time is sufficient.

[5]        I am satisfied that both the without notice application, and the originating application should be granted in this case. There is no dispute that both leave applications were filed on 14 November 2017, and were therefore filed within time.

The failure to allocate a separate CIV number to the review application does not alter that position. Both applications were served and both have been set down for hearing on 8 March 2018. There is no prejudice to the Chief Executive in granting the orders sought.

[6]        In terms of the procedure followed in this case, I accept the Chief Executive’s submission that filing an originating application to regularise the position may not have been necessary. It is apparent that the Court, and the parties, have proceeded on the basis that the application for review was filed within time and a minute confirming that approach may have sufficed. Alternatively, the Court may have had jurisdiction to correct the defect under r 1.9 of the High Court Rules, although I need not, and do not, determine that issue.

[7]        In any event, the applicant has chosen to follow the originating procedure route, and there is no reason to suggest that this was not an available route in the circumstances. Given the strict statutory timeframes for filing an application for leave to appeal and leave to review, it is understandable that the applicant would want certainty as to the status of his review application and to seek formal orders confirming the position. As there is no opposition to the substantive orders sought, I consider it appropriate to grant both the without notice and originating applications in this case.

[8]Accordingly, I make the following orders:

(a)Leave is granted to the applicant to file the originating application;

(b)Service of the originating application is dispensed with;

(c)The originating application is granted and orders are made in terms of paragraph 1 of that application;

(d)The Registry is directed to allocate a separate CIV number to the application for leave to judicially review;

(e)The applicant shall be referred to as “Al (Nigeria)” and the proceedings shall be listed under that name;

(f)Costs of the application are reserved.

Edwards J

Counsel:     R S Pidgeon, Auckland

Solicitors:    Integritas Law Firm (M S P Pang), Auckland

Meredith Connell (Office of the Crown Solicitor), Auckland