Bhasin v Immigration and Protection Tribunal

[2018] NZHC 644

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2428

[2018] NZHC 644

BETWEEN

SHIVNEET BHASIN

Applicant

AND

THE IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT

Second Respondent

Hearing:

23 March 2018

Appearances:

A M A M Ayoub and T Choudhury for Applicant

No appearance for First Respondent (abiding decision of the Court)

M J R Conway and E G R Dowse for Second Respondent

Judgment:

11 April 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by Justice van Bohemen On 11 April 2018 at 3pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:

Legal Associates, Auckland Crown Law, Wellington

BHASIN v THE IMMIGRATION AND PROTECTION TRIBUNAL [2018] NZHC 644 [11 April 2018]

Introduction

[1]    Shivneet Bhasin seeks an extension of time under s 247 of the Immigration Act 2009 (the Act) to bring review proceedings in respect of a decision by an Immigration Officer declining Mr Bhasin’s application for a partnership-based temporary visa. Mr Bhasin also seeks leave under s 249 of the Act to review a decision by the Immigration and Protection Tribunal (Tribunal) declining his appeal under s 206 of the Act against his liability for deportation from New Zealand on humanitarian grounds.1

[2]    The Tribunal informed the Court that it would abide the Court’s decision and took no part in the hearing.

Background

[3]    Mr Bhasin is a 32-year old citizen of India. He has been in New Zealand since February 2009 when he arrived on a student visa. His parents, brother and sister live in India.

[4]    Between March 2010 and March 2013, after completing a diploma in networking and communication technology, Mr Bhasin obtained job search and graduate work experience work visas, having found employment at a dairy/post shop.

[5]    Between October 2012 and June 2014, Mr Bhasin held another student visa and completed a diploma in business in 2014, after which he gained a two year graduate work experience visa from May 2014.

[6]    In November 2015 Mr Bhasin applied for residency under the skilled migrant category, based on his employment as store manager in the dairy/post shop. That application was eventually declined in February 2017 by Immigration New Zealand (INZ), notwithstanding a direction by the Tribunal – following an appeal from an initial decision declining Mr Bhasin’s application – that INZ reassess Mr Bhasin’s

1      Bhasin v Minister of Immigration [2017] IPT 503393.

application because the initial assessment had been incorrect. INZ was not satisfied that Mr Bhasin’s then new position as General Manager was a substantial match to the occupation of Retail Manager and could not be considered skilled employment.

[7]    On 20 April 2017, Mr Bhasin applied for a partner-based work visa, based on his relationship with Ms Mandeep Kaur. Ms Kaur is also an Indian citizen. She currently holds a post-study work visa that allows her to work as a customer relations supervisor at a café until May 2018.

[8]    Mr Bhasin and Ms Khan say their relationship began in December 2015 but it was not publicly acknowledged until approximately a year later because they both had issues to resolve with their respective families in India. As a consequence, there were discrepancies between the information Mr Bhasin submitted in support of his application for a partner-based work visa and that provided earlier by Mr Bhasin and Ms Khan to INZ in other contexts. Mr Ayoub informed the Court that Mr Bhasin and Ms Khan have since married.

[9]    By letter dated 8 June 2017, INZ informed Mr Bhasin that his application for a partner-based work visa had been declined because INZ was not satisfied that     Mr Bhasin’s relationship with Ms Kaur  was  a  genuine  and  stable  relationship.  Mr Bhasin was notified of the INZ decision on 16 June 2017.

[10]   Initially, Mr Bhasin did not seek to challenge the INZ decision from which, under s 186 of the Act, no appeal lies but which can be judicially reviewed in accordance with the requirements of the Act. Rather, Mr Bhasin, whose temporary visa expired the day after he had been notified of the INZ decision, appealed to the Tribunal on humanitarian grounds against his liability for deportation from New Zealand.

[11]   By decision dated 15 September 2017, the Tribunal declined Mr Bhasin’s appeal on the grounds that Mr Bhasin did not have exceptional circumstances of a humanitarian nature so he did not meet the criteria in s 207 of the Act for the granting of a humanitarian appeal.

[12]   On 12 October 2017, Mr Bhasin filed an application for leave under s 249 of the Act to review both the INZ decision of 8 June 2017 and the Tribunal’s decision of 15 September 2017.

[13]   On 24 January 2018, following discussion between Mr Bhasin’s counsel and the Crown Law Office acting for the respondents, Mr Bhasin filed an amended application for an extension of time to review the INZ decision under s 247 of the Act.

Procedural and jurisdictional issues

[14]   It was common ground between Mr Ayoub for Mr Bhasin and Ms Conway for the Chief Executive of the Ministry of Business, Innovation and Employment (Chief Executive) that:

(a)The correct legal basis for reviewing the INZ decision is s 247 of the Act and not s 249;

(b)The application for reviewing the INZ decision was made outside the time frame set by s 247 of 28 days after Mr Bhasin had been notified of that decision, even if 12 October 2017, the date on which the first application for review was lodged, is taken as the date of application;

(c)The correct legal basis for reviewing the Tribunal decision is s 249 of the Act;

(d)The application to review the Tribunal decision was made within the time frame of 28 days set by s 249 after the Mr Bhasin had been notified of that decision.

[15]I agree with that analysis. Sections 247 and 249 provide:

247     Special provisions relating to judicial review

(1)Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless—

(a)the High Court decides that, by reason of special circumstances, further time should be allowed; or

(b)leave is required, under section 249(3), before proceedings may be commenced (in which case section 249(4) applies).

(2)[Repealed]

(3)In this section, statutory power of decision has the same meaning as in section 4 of the Judicial Review Procedure Act 2016.

(4)Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.

249 Restriction on judicial review of matters within Tribunal’s jurisdiction

(1)No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

(2)No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.

(3)Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

(4)An application to the High Court for leave to bring review proceedings must be made—

(a)not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or

(b)within such further time as the High Court may allow on application made before the expiry of that 28-day period.

(5)A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.

(6)In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—

(a)whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b)if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

(7)A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.

(8)Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.

[16]   There is some overlap between the two sections. Section 247 applies to all review proceedings in respect of a statutory power of decision arising out of or under the Act. Its primary effect is to require that any review of decisions under the Act are brought within 28 days of the person concerned being notified of the relevant decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.

[17]   Section 249 applies only in relation to review proceedings of matters within the jurisdiction of the Tribunal. Section 249(3) specifies that proceedings covered by the section may only be brought with the leave of the High Court or Court of Appeal. Section 247(1)(b) seeks to manage the overlap between the two sections by excluding from the operation of s 247, proceedings for which leave is required under s 249(3).

[18]   Mr Bhasin wants to review the INZ decision to decline his application for a partner-based work visa made under s 57 of the Act. Under s 186 of the Act, no appeal lies against a decision of an Immigration Officer in relation to a temporary entry class visa, whether to a court, the Tribunal or otherwise. However, the section goes on to provide that review proceedings may be brought if the person seeking the visa is present in New Zealand.

[19]   If follows that, in terms of s 249, the INZ decision to decline Mr Bhasin’s application for a partner-based work visa is not a decision that may be subject to an appeal to the Tribunal. Accordingly, that decision is not covered by s 249, even though Mr Bhasin had a right, which he did exercise, to appeal to the Tribunal on humanitarian grounds against his liability for deportation. The INZ decision is, however, a decision that, in accordance with s 186, may be reviewed in accordance with s 247.

[20]   By contrast, the Tribunal’s decision to decline Mr Bhasin’s humanitarian appeal is a matter described in s 249(2), being a matter before the Tribunal and on which the Tribunal has issued a final determination. Accordingly, it is a matter in respect of which review proceedings may be brought under s 249(3) with the leave of the High Court.

[21]   I note the above analysis is consistent with the decision of Hinton J in Machida v Immigration and Protection Tribunal New Zealand.2

Application for extension of time under s 247 to review INZ decision

[22]   Mr Bhasin was notified of the INZ decision on 16 June 2017. In accordance with s 274(1) of the Act, any application to review that decision should have been lodged by 14 July 2017. In fact, Mr Bhasin’s application to review the decision, albeit mistakenly made under s 249 of the Act, was not made until 12 October 2017 – 85 days after his  being  notified  of  the  decision.  Accordingly,  under  s  147(1)(a),  Mr Bhasin cannot now review that decision unless this Court decides that, “by reason of special circumstances, further time should be allowed.”

[23]   Mr Ayoub and Ms Conway agreed that the leading decision on the interpretation of “special circumstances” in s 147(1)(a) is the Court of Appeal’s decision in Rajan v Minister of Immigration3 which concerned the interpretation of s 146A of the Immigration Act 1987, the equivalent section to s 147 in the Act. In that case, Glazebrook J stated:4

[24]    The term “special circumstances” is a commonly used phrase in the New Zealand statute book. It requires circumstances that are uncommon, not commonplace, out of the ordinary, abnormal ... Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s 146A time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. …

2      Machida v Immigration and Protection Tribunal New Zealand [2015] NZHC 2649.

3      Rajan v Minister of Immigration [2004] NZAR 615 (CA).

4      Rajan v Minister of Immigration [2004] NZAR 615 (CA).

[24]      Counsel were also agreed that, following Rajan, the relevant considerations in deciding whether special circumstances exist are:

(a)The length of the delay;

(b)The reasons for the delay; and

(c)The merits of the case in marginal cases, where the merits may tip the balance.

[25]      In Rajan and subsequent cases, the length of delay has been considered both in terms of time elapsed and as a percentage of how that time related to the time limit for bringing review proceedings. In Rajan, the delay was one month and would have required an extension one month of the time limit. Glazebrook J observed that in the context of the Immigration Act that could not necessarily be seen as a short delay.

[26]      Mr Ayoub properly accepted that the delay in the present case – 85 days or three times the length of the time limit in s 247(1) – is very substantial. In this regard, the observation by Allan J in Kesonsung v Minister of Immigration5 that “a long delay will ordinarily preclude the grant of leave in any circumstances” is relevant, even if the facts of that case were quite different from the present.

[27]      The reason for the delay in Mr Bhasin’s case was that neither Mr Bhasin nor those advising him were aware of the possibility of reviewing the INZ decision. In his written submissions, Mr Ayoub stated that Mr Bhasin was being advised by counsel at the time; in his oral submissions Mr Ayoub said Mr Bhasin was in fact relying on advice from an immigration consultant.

[28]      Whether it was error, inexperience or lack of knowledge by counsel or immigration consultant, it still amounts to Mr Bhasin not knowing the law. Traditionally, ignorance of the law is no excuse. While that basic principle, which is reflected in s 25 of the Crimes Act 1966, is traditionally applied in the criminal law

5      Kesonsung v Minister of Immigration HC Auckland CIV-2006-404-1597, 22 September 2006 at [35].

context, it also applies more generally, even if there can be exceptions and qualifications to the rule.

[29]      There are strong policy reasons why courts are reluctant to countenance delay and insist on compliance with statutory timeframes, not least in the immigration context. As the Court of Appeal in Fernandes v Immigration and Protection Tribunal observed, delay impacts upon the orderly and efficient administration of the immigration system.6 As Ms Conway noted, the Court of Appeal also observed in Fernandes that any failure by legal advisers to take steps to file an appeal in a timely fashion is not a good reason to excuse delay.7 If, in fact, Mr Bhasin did not have a legal adviser, that does not change the outcome.  Indeed, in one respect, it makes   Mr Bhasin’s case weaker because in that case not granting him an extension of time is not, in terms of the observations made by Muir J in Kaur v Minister if Immigration,8 visiting the errors or omissions of counsel on Mr Bhasin.

[30]      For these reasons, I am satisfied both that the delay was substantial and that the reasons for the delay do not excuse the delay. Taken together, they do not amount to circumstances that could be considered “uncommon, not commonplace, out of the ordinary, abnormal” in the sense described by Glazebrook J in Rajan.

[31]       It follows that this is not a marginal case in which an examination of the merits could tip the balance in the sense considered by Glazebrook J in Rajan, especially bearing in mind the examples Glazebrook J gave to illustrate when such an examination might be appropriate:9

[30]  Examination of the merits could tip the balance in a marginal case.   For example where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. We doubt, however, that even very strong merits could ever justify an extension if (as here) there is no proper excuse for the delay in filing.

[32]      Here, we have long delay and a poor excuse for the delay. Strictly, therefore, there is no need for me to examine the merits of Mr Bhasin’s case. I will do so briefly,

6      Fernandes v Immigration and Protection Tribunal [2014] NZCA 52 at [8].

7      Fernandes v Immigration and Protection Tribunal [2014] NZCA 52 at [10].

8      Kaur v Minister if Immigration [2018] NZHC 1971 at [26].

9      Rajan v Minister of Immigration [2004] NZAR 615 (CA).

however, in the context of considering Mr Ayoub’s submission that the decision of Palmer J in Li v Chief Executive of Ministry of Business, Innovation and Employment10 offers a way around Rajan and the cases that have applied it.

[33]      Mr Ayoub submitted that Li, where Palmer J held that review of a decision of the Tribunal can be available under s 247 of the Act even if there has been no appeal of that decision of the Tribunal’s decision, shows that an extension of time can be granted under s 247 where the Court is satisfied there is an arguable case on review. He argued that Mr Bhasin has such an arguable case.

[34]      Like any case, Li needs to be considered in terms of its own facts.  There,   Mr Li, who was lawfully in New Zealand under a temporary entry work visa, was served with a Deportation Liability Notice by INZ which asserted that Mr Li had breached a condition of his visa that he work only as a chef in a designated enterprise in Auckland. The alleged breach was that Mr Li was working for his wife’s business making air conditioners. The visas of Mr Li’s wife and their adult son, which were based on their relationship with Mr Li, were also cancelled.

[35]      Mr Li, his wife and son lodged humanitarian appeals to the Tribunal on the grounds that INZ had erred in the factual determination of Mr Li’s situation, namely that it had not established that Mr Li had ever worked for his wife’s company. He said he had been helping her out on a voluntary basis. The Tribunal declined the appeal, holding that there were no exceptional circumstances of a humanitarian nature. The Tribunal also held it did not have power to review whether the basis of a Deportation Liability Notice was correct or to review INZ’s decisions or actions leading up to the issuing of such a notice.

[36]      Mr Li applied for leave under s 249 of the Act to appeal the Tribunal’s decision and for leave to review the legality and fairness of INZ’s investigation into whether there was sufficient reason to deport Mr Li, his wife and son.

[37]      Palmer J declined leave to appeal the Tribunal’s decision on the grounds that “exceptional circumstances of a humanitarian nature” required for a humanitarian

10     Li v Chief Executive of Ministry of Business, Innovation and Employment [2017] NZHC 2977.

appeal under s 207 of the Act do not extend to the validity of the underlying liability for deportation. Accordingly, an appeal against the Tribunal’s decision based on an alleged invalidity of the deportation order that led to the appeal could not succeed. However, having regard to s 27(2) of the New Zealand Bill of Rights Act 1990 (NZBORA),11 Palmer J held that Mr Li could seek a review of the legality and fairness of INZ’s decision into whether there was sufficient reason to issue the deportation liability notices, and he granted an extension of time for such a review to be brought.

[38]      It is clear from Palmer J’s decision, which did not make specific reference to Rajan and other cases on what constitutes “special circumstances” under s 247(1), that a key consideration was Palmer J’s conclusion that the merits of the Lis’ case were seriously arguable.

[39]      Li is a very different case from Mr Bhasin’s. As I discuss below, there is no jurisdictional bar to the basis on which Mr Bhasin wishes to challenge the Tribunal’s decision to decline his humanitarian appeal.12 Accordingly, the NZBORA considerations, namely, that persons whose rights have been affected by a determination of a tribunal have a right to judicial review of that determination, do not arise in the same way in this case as they did in Li.

[40]      Moreover, it not apparent to me that Mr Bhasin’s case for review of the INZ decision is as arguable as Palmer J held the INZ decision to be in Li.

[41]      Mr  Ayoub  contended  that  INZ’s  suspicions  about  the  genuineness  of  Mr Bhasin’s relationship with Ms Kaub were not reasonable, bearing in mind that they had been a couple, albeit undeclared for some time, and that they had subsequently married. He said that INZ had not considered all of the available and relevant evidence in making their assessment and, in particular, had not considered the photographs that Mr Bhasin had submitted as evidence of the genuineness of the relationship. He said

11     Section 27(2) of the New Zealand Bill of Rights Act 1990 provides:

Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

12     See below at [49]–[52].

that in these respects INZ had failed to comply with their responsibilities under the INZ Operational Manual to act on the principles of fairness and natural justice when deciding an application.

[42]      Ms Conway disputed these contentions and took me through the documents bearing on the INZ’s decision. Ms Conway highlighted how those documents related to the later declared commencement of the relationship between Mr Bhasin and Ms Kaur, what the documents disclosed about what Mr Bhasin and Ms Kaur has said about their relationship status in their various interactions with INZ, when and how Mr Bhasin and Ms Kaur had disclosed their relationship to their families, and when and how their families had reacted. Ms Conway submitted that the various discrepancies in this information were a sufficient basis for INZ to doubt that the relationship was genuine and stable and to decline the application, bearing in mind the importance placed on credibility in the INZ Operational Manual. Ms Conway also argued that INZ was in a much better position than the Court to reach conclusions on the veracity and credibility of the claims made by Mr Bhasin and Ms Kaur and said that Mr Ayoub’s essential complaint on behalf of Mr Bhasin was that Mr Bhasin disagreed with INZ’s conclusions – which is not a matter for consideration in an application for a review.

[43]      Ms Conway conceded that the INZ Officer had made one factual error in her assessment of the evidence and that it was not apparent from the Officer’s report that the photographs supplied by Mr Bhasin had been taken into account as they should have been. She submitted, however, that the error and the possible omission had not been material to the decision which had been based on an assessment of the credibility of the claim that Mr Bhasin and Ms Kaur were in a genuine and stable relationship.

[44]      There is much force in Ms Conway’s submissions, which Mr Ayoub, to his credit, did not seriously contest. For that reason, I will not go through the detail of the evidence on the INZ decision. From my review of the evidence, and bearing in mind the counsel of Glazebrook J in Rajan that it is not appropriate in the context of an application for an extension of time for the full merits of the proposed review to be

argued,13 I am satisfied that there was an adequate basis on which INZ could have concluded that the relationship between Mr Bhasin and Ms Kaur was not genuine and stable, even if it is possible that the opposite conclusion might also have been reached.

[45]      Some of the delays in acknowledging the relationship and the discrepancies in the information provided may be explicable by reference to the fact that Mr Bhasin and Ms Kaur were reluctant to acknowledge their relationship in any context until their families had been informed and had indicated their acceptance. Even so, it is surprising that they were not more forthcoming in acknowledging and explaining their relationship to INZ, given that they would have been aware that the veracity and credibility of their statements would be likely to be scrutinised in the context of a partner-visa application.

[46]      From my brief review of the merits of Mr Bhasin’s challenge to the INZ decision, therefore, I cannot say that the decision to decline Mr Bhasin’s application was not one that an Immigration Officer, properly informed and having appropriately considered the evidence, could not have reached. For that reason, and in the absence of any seriously argued procedural deficiency with the INZ decision, I do not consider that the merits of Mr Bhasin’s proposed review are strong.

[47]      Accordingly, even if there were a balance to tip in the Rajan sense, I do not consider there is a case for granting an extension of time for Mr Bhasin to bring review proceedings to challenge the INZ decision.

Application for leave to review Tribunal’s decision under s 249

[48]      Mr Ayoub referred me to the Supreme Court’s decision in Ye v Minister of Immigration14 which he and Ms Conway agreed is the leading authority on the approach to be taken by the Tribunal when applying the test set out in s 207 for considering Mr Bhasin’s humanitarian appeal. Mr Ayoub submitted that, in terms of that test, the Tribunal had failed to consider whether it would be unjust or unduly harsh to require Mr Bhasin to return to India when he has married Mr Kaur and where

13     Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [28].

14     Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.

Ms Kaur has the right not only to remain in New Zealand under her current visa but also to apply for further visas and perhaps to obtain residence. He said it would be unjust and unduly hard and contrary to the public interest, to separate the couple and, in effect, to force Ms Kaur to choose between remaining in New Zealand without her husband and returning to India.

[49]        Before I can address the substance of Mr Bhasin’s challenge to the Tribunal’s decision, however, I must be satisfied that the requirements of s 249(6) are met. Under that section, in determining whether to grant leave to bring review proceedings of a Tribunal decision the Court must have regard to:

(a)Whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the Tribunal’s final determination; and

(b)If so, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

[50]Ms Conway said that both questions should be answered in the negative.

[51]      The two questions which Mr Bhasin raised concerning the Tribunal’s decision, as stated in his application for leave to bring review proceedings, were:

(a)Whether the Tribunal had erred in law in not applying the relevant law properly in assessing Mr Bhasin’s application; and

(b)Whether the Tribunal had taken into account relevant evidence and discounted relevant information in reaching its decision.

[52]      Both are clearly questions of law that could be addressed adequately in an appeal against the Tribunal’s determination. It follows that Mr Bhasin cannot meet the first requirement for the granting of leave under s 249(6)(a). Strictly, therefore, it is not necessary to consider whether he can meet the second requirement in s 249(6)(b) since s 249(6)(b) is expressed as being conditional on s 249(6)(a) applying.

[53]However, for completeness, I will also address that limb.

[54]      The first question of law that Mr Ayoub for Mr Bhasin says is of general and public importance is the interpretation and application of s 207(1)(a) of the Act. Section 207(1) provides:

207     Grounds for determining humanitarian appeal

(1)The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

(a)there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b)it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

[55]       Mr Ayoub contends that the Tribunal erred when it held that because it was not satisfied there were “exceptional circumstances of a humanitarian nature” it did not need to go on to consider whether it would be unduly harsh for Mr Bhasin to be deported.   Mr  Ayoub   says  the  Tribunal  was  obliged  to  consider  both  parts  of s 207(1)(a).

[56]      As Ms Conway submitted, and as also held by Woodhouse J in Panchal v Minister of Immigration15 that issue has been conclusively resolved by the Court of Appeal in Wu v Minister of Immigration.16 In that case, the Court recalled the Supreme Court’s decision in Ye in which Tipping J for the majority confirmed that the test now incorporated in s 207(1)(a) has three ingredients: 17

(a)exceptional circumstances;

(b)of a humanitarian nature;

15     Panchal v Minister of Immigration [2017] NZHC 2080 at [37].

16     Wu v Minister of Immigration [2016] NZCA 511; [2016] NZAR 1667.

17     Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].

(c)that would make it unjust or unduly harsh for the person to be removed from New Zealand.

In Wu, Harrison J held that a failure to satisfy the Tribunal on the first of the three elements (i.e. exceptional circumstances) spelled the end of the applicant’s appeal.18

[57]      Accordingly, the law on this point is settled and Mr Bhasin’s application does not raise any question of general or public importance in this regard.

[58]      The same conclusion applies to the second ground raised by Mr Bhasin, namely whether the Tribunal properly assessed the evidence before it. By its nature, how a Tribunal assesses the evidence in a particular case is unlikely to give rise to a question of general or public importance. In the present case, the Tribunal had regard to all the evidence before it, including letters from the parents of Mr Bhasin and    Ms Khan as well as evidence concerning the couple’s living arrangements. The difficulty for Mr Bhasin was that the Tribunal was not satisfied that the evidence of the couple’s relationship and the impact on that relationship if Mr Bhasin were required to return to India gave rise to exceptional circumstances of a humanitarian nature.

[59]The Tribunal expressed its conclusion as follows:19

[31] The Tribunal appreciates that the appellant and  his  partner  will be disappointed and distressed that the appellant must depart New Zealand. It has also considered the appellant’s relationship and the desire of his partner to continue in her work. However, any separation that may occur in the interests of the partner remaining here during the validity of her work visa ned only be temporary, and the couple are well capable of living together in their home country. Considered cumulatively, the appellant’s circumstances do not reach the high threshold required to establish exceptional humanitarian circumstances.

[60]       I can find no fault in the way the Tribunal assessed the evidence or in the conclusion it reached. Certainly, I can see nothing in the Tribunal’s decision to indicate that the way in which it considered the evidence before it gives rise to an issue

18     Wu v Minister of Immigration [2016] NZCA 511; [2016] NZAR 1667 at [10].

19     Bhasin v Minister of Immigration [2017] IPT 503393.

which, because of its general or public importance or for any other reason, ought to be submitted to the High Court for review.

Result

[61]I decline Mr Bhasin’s applications:

(a)For an extension of time to bring review proceedings in respect of the INZ decision to decline his application for a partnership-based temporary visa;

(b)To review a decision by the Immigration and Protection Tribunal declining his  appeal  against  his  liability  for  deportation  from New Zealand on humanitarian grounds.

Costs

[62]      In her written submissions, Ms Conway sought costs and reasonable disbursements on a 2B basis if I should find in favour of the Chief Executive. Mr Ayoub did not address me on the issue.

[63]      In the normal course, costs follow the event so I award costs and reasonable disbursements on a 2B basis to the Chief Executive as sought.

[64]      However, I reserve leave to Mr Bhasin to file a memorandum if he wishes, by 30 April 2018. I reserve leave to the Chief Executive to reply by 7 May 2018. Memoranda should be no longer than four pages.

van Bohemen J