CF v Attorney-General sued on behalf of the Minister of Immigration
[2016] NZHC 918
•6 May 2016
NOTE: THE CONFIDENTIALITY OF THE NAME AND IDENTIFYING PARTICULARS OF THE APPLICANTS AND OF THEIR CLAIM AND STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-437 [2016] NZHC 918
UNDER The Judicature Amendment Act 1972, Part 30 of the
High Court and sections 245 and 247 of the
Immigration Act 2009BETWEEN
CF Plaintiff
AND
THE ATTORNEY-GENERAL SUED ON BEHALF OF THE MINISTER OF IMMIGRATION
First Respondent
IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent
CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Third Respondent
Hearing: On the papers Counsel
R Hooker and E Davis for appellant
D Soper and N Fong for first and third respondentsJudgment:
6 May 2016
JUDGMENT OF KATZ J
This judgment was delivered by me on 6 May 2016 at 4:30pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Vallant Hooker & Partners, Auckland
Crown Law, Wellington
CF v ATTORNEY-GENERAL SUED ON BEHALF OF THE MINISTER OF IMMIGRATION & ORS [2016] NZHC 918 [6 May 2016]
INTRODUCTION
[1] The applicant, CF, seeks leave to judicially review a decision of the Immigration and Protection Tribunal which upheld a decision of Immigration New Zealand declining to grant him residence.
[2] At a case management conference on 5 April 2016, counsel for CF sought an order that the respondents provide discovery. I declined to make such an order. CF has now filed an application under r 7.49 of the High Court Rules seeking that I review and vary my decision not to order discovery (“variation application’). CF submits that it is appropriate to revisit my original decision on the basis that it was made in chambers, the issue was not fully argued, and the ultimate decision was wrong.
[3] The respondents submit that the original decision was correct and should not be interfered with.
Background
[4] CF, a refugee, applied for residence under the refugee and protection category. Immigration New Zealand declined his application, on the basis that he did not meet the character requirements for residence stipulated in Immigration New Zealand Instruction A5.30 (“Instructions”) because he had formerly been employed by the Iranian state prison authority.
[5] CF appealed to the Tribunal, which confirmed Immigration New Zealand’s decision. It communicated its decision to CF on 5 November 2015. The Tribunal considered, however, that there were special circumstances warranting consideration by the Minister of Immigration, as an exception to Instructions. CF was accordingly informed that the Minister would now decide whether to grant him a residence visa, as an exception to Instructions.
[6] On 19 January 2016 the Associate Minister of Immigration declined to grant residence to CF. That decision was communicated to CF on 9 February 2016. CF then applied to this Court, on 8 March 2016, for leave to judicially review the
Tribunal’s decision under s 249 of the Immigration Act 2009. CF’s primary ground of review is that the Tribunal erred in law in considering that the Instructions applied to applicants for residence who are recognised refugees under the 1951 Refugee Convention (“Convention refugees”).1 In addition, it also appears that CF (if granted leave) intends to argue that his former role within the Iranian State Prison Organisation does not breach the character requirements of the Instructions and/or
does not pose a risk to New Zealand’s international reputation.
[7] The application for leave came before me on 5 April 2016. CF’s memorandum for the case management conference sought a timetable direction that “the respondents … provide discovery by 29 April 2016”. There was no formal application for discovery, no description provided of the documents that were sought, and no explanation as to why discovery was appropriate, given that leave had not yet been granted to bring proceedings.
[8] The issue of discovery was only touched upon briefly at the case management conference. I accepted the respondents’ submission, however, that an order for discovery would be premature. My Minute of 5 April 2016 records that:
[7] The applicant sought an order that the respondents provide discovery by
29 April 2016. Given that the jurisdictional issues and the leave applications have yet to be determined, any order for discovery would be premature.
Discovery will only be appropriate (if at all) if and when leave is granted to
pursue the judicial review proceedings.
[9] In CF’s variation application he seeks an order for discovery of the following
materials, pursuant to s 10(2)(i) of the Judicature Amendment Act 1972:
(a) briefing documents regarding the assessment of residence claims by Convention refugees, Iranians, or applicants who may be a risk to New Zealand’s international reputation;
(b) deliberative materials available to the Tribunal related to the Iranian
Prison Authority;
1 Convention relating to the Status of Refugees 189 UNTC 137 (signed 28 July 1951, entered into force 22 April 1954).
(c) all relevant material considered by the Tribunal in relation to whether the applicant may be a risk to New Zealand’s international reputation; and
(d)discussion or policy documents pertaining to the development of the relevant Instructions.
[10] The key issues I must determine in order to decide whether it is appropriate to reverse my original decision not to order discovery are:
(a) Do I have jurisdiction to review my original decision not to order discovery?
(b)Do I have jurisdiction to order discovery prior to leave being granted to bring review proceedings?
(c) Are the documents sought by CF relevant and necessary to the determination of one or more of the issues raised by the leave application, namely:
(i) whether the leave application was brought within time;
(ii)whether the issues raised by the proposed judicial review proceedings could be adequately dealt with on appeal; and
(iii)whether the issues raised by the proposed judicial review proceedings are of general or public importance.
[11] I will consider each issue in turn.
Do I have jurisdiction to review my original decision not to order discovery?
[12] Rule 7.49 of the High Court Rules relevantly provides:
7.49 Order may be varied or rescinded if shown to be wrong
(1) A party affected by an interlocutory order (whether made on a Judge’s own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or
decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.
…
(6) The Judge may,—
(a) if satisfied that the order or decision is wrong, vary or rescind the order or decision; or
(b) on the Judge’s own initiative or on the application of a party, transfer the
application to the Court of Appeal.
[13] Review is therefore only available where there is an interlocutory order, or a decision given on an interlocutory application, and a right of appeal from that order or decision.2 Counsel for the respondents submitted that the Court may not have jurisdiction to review its order under r 7.49, on the basis that the refusal of discovery was neither an interlocutory order nor was it appealable. The respondents were, however, willing to concede the issue for present purposes.
[14] Although the matter was dealt with fairly informally at the case management conference, I am satisfied that, in effect, an interlocutory order refusing discovery was made and that such an order is appealable.
[15] In this case the original decision was made in Chambers and the issue of discovery was not fully argued. I am therefore satisfied that it is appropriate to review my original decision, in light of the much more comprehensive submissions that have now been made.
Do I have jurisdiction to order discovery prior to leave being granted to bring proceedings?
[16] The present case is somewhat unusual in that CF is seeking an order that the respondents provide discovery prior to him even obtaining leave to bring proceedings. Counsel did not refer me to any authority where a discovery order has
previously been made in such circumstances.
2 Wrightson NMA Ltd v McConnell [1989] 2 NZLR 77 (HC).
[17] Section 10 of the Judicature Amendment Act 1972, however, confers wide powers on a Judge to give directions at a case management conference under the Act, in relation to “any application or intended application for review”. This includes the power to require any party to make discovery of documents. I am therefore satisfied that I have the necessary jurisdiction to order discovery, if I believe such a course is appropriate in all the circumstances.
[18] A discovery order prior to leave being granted to bring judicial review proceedings is likely to be relatively rare, however. Even when judicial review proceedings are on foot, discovery will not be ordered routinely, but is a matter of discretion for the Court on a case-by-case basis, having regard to the circumstances of the case, the issues raised, and the context in which the judicial review challenge
is made.3 The generally accepted test is that stated by Hammond J in Wellington
International Airport Ltd v Commerce Commission:4
[40] ... “Discovery” is confined to what is in issue on the pleadings. Documents are relevant if they may (not “must”) either advance the parties own case, or damage the opponents case, or if alternatively they would lead to a course of inquiry which would do so. It is sometimes said that a document is discoverable if it “throws light” on the case. The scope of discovery is therefore generally determined by a liberal construction of the pleadings.
[41] Secondly, assuming that something is relevant in the sense I have just indicated, the Court nevertheless has a discretion. “Relevance alone, though a necessary ingredient, does not provide an automatic sufficient test for ordering discovery” (Science Research Council v Nasse [1980] AC1029 at 1067 per Lord Wilberforce; approved of in that respect by our Court of Appeal in Brierly Investments Limited v Lion Corporation Limited [1987]
1 NZLR 600).
[42] Thirdly, however it is cast … the critical test is whether discovery is
“necessary” for disposing fairly of the proceedings.
[43] Fourthly, in the specific context of judicial review, there is in terms no significant difference between the way the High Court rules are cast (incorporating as they do a discretion) and s 10 of the Judicature Amendment Act 1972. Nevertheless, the respective contexts of “regular” civil proceedings, and judicial review, need to be borne in mind. What I have termed regular civil proceedings generally progress in a somewhat stately fashion, often over extended periods of time, and routinely with extended
3 Keenan v Attorney General [2014] NZHC 1649 at [9].
4 Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02,
25 July 2002; cf Northland Environmental Protection Society Incorporated v Chief Executive of the Ministry for Primary Industries [2016] NZHC 406 at [6]-[10].
discovery and interrogatories. In contrast, judicial review proceedings (as here) are often brought as a matter of urgency to test the lawfulness of the exercise of a public power. It is probably not going too far to say that judicial review routinely involves “last ditch” proceedings, when other measures have failed.
[44] Judges have a general responsibility today to supervise proceedings…And Judges in the difficult area of judicial review in significant public interest litigation…have an even greater responsibility to see that issues are narrowed, and that only what is truly required is laid before the court…To put this another way, what is “necessary” has to be understood in the modern context of judicial review.
[45] Fifthly, if my appreciation is correct, it follows that the question which has to be asked in this instance, is this: can this court fairly and effectively adjudicate upon the issues raised on these pleadings, next week, without the additional material which is sought by this application for discovery?
[19] In this case, however, leave has not yet been granted to bring proceedings. Accordingly the potential relevance of any documents must be assessed against the backdrop of the fairly narrow issues that fall for determination in the leave application, rather than the broader issues that will fall for determination in the substantive proceedings (if leave is granted).
[20] The ability to judicially review decisions of the Tribunal is narrow, reflecting a deliberate intention on the part of Parliament to restrict the availability of judicial review in an immigration context.5 Section 249 of the Immigration Act sets out the circumstances in which judicial review may be available in respect of the Tribunal’s decision. It relevantly provides:
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
…
(3) Review proceedings may … only be brought in respect of a decision [of the Tribunal] … 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.
5 Songmia v Ministry of Immigration [2013] NZHC 3233 at [12]; SK v Immigration and Protection Tribunal [2015] NZCA 26, [2015] NZAR 335 at [13]; K v Immigration and Protection Tribunal [2014] NZCA 585 at [2]; RM v Immigration and Protection Tribunal [2016] NZHC 735 at [41].
(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.
…
(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.
[21] Accordingly, in an application for leave to bring judicial review proceedings against a decision of the Tribunal under s 249, the Court’s assessment is limited. In this case, based on the wording of the statute, CF’s leave application itself, and the relevant case law, the key issues before the Court on the leave application will likely be:
(a) whether the application for leave was brought not later than 28 days
after the date on which the Tribunal’s decision was made; and
(b) if so, whether leave should be granted having regard to:
(i)whether the review proceedings would involve issues that could not be adequately dealt with upon appeal; and
(ii)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.6
6 The applicant does not advance “any other reason” in terms of s 249(6)(b).
[22] The test for leave on the basis of “general or public importance or for any other reason” is similar to the test for leave for a second appeal under s 67 of the Judicature Act 1908, namely that there is some question of law or fact capable of bona fide and serious argument in a case involving some interest, public and private, of sufficient importance to outweigh the cost and delay of the further appeal.7 In general the test has been interpreted fairly narrowly, so that even errors of law, if they have no effect beyond the applicant, have not been considered sufficient.8
Further, individual injustice is rarely sufficient for the Court to grant leave.9
(I note, however, that Palmer J, in his carefully reasoned analysis in RM v Immigration and Protection Tribunal, has suggested that the approach taken by the Courts to date on this issue has been unduly narrow).10
[23] A limited merits assessment is sometimes required in the context of considering whether there is “any other reason” to grant leave to bring judicial review proceedings. I note, however, that CF’s application for leave does not advance “any other reason” for a grant of leave, but rather relies on the “general and public importance” requirement.
Are the documents sought relevant to the leave application?
[24] CF seeks discovery of the following documents:
(a) briefing documents regarding the assessment of residence claims by recognised refugees, Iranians, or applicants who may be a risk to New Zealand’s international reputation;
(b) deliberative materials available to the Tribunal related to the Iranian
Prison Authority;
7 Guo v Minister of Immigration [2014] NZCA 513 at [11]; Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
8 LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [2] and
[33]-[34].
9 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19]. Both LMN and Taafi were applied to the judicial review context by Faire J in SK v Immigration and Protection Tribunal [2014] NZHC 2693.
10 RM v Immigration and Protection Tribunal [2016] NZHC 735.
(c) all relevant material considered by the Tribunal in relation to whether the applicant may be a risk to New Zealand’s international reputation; and
(d)discussion or policy documents pertaining to the development of the relevant Instructions.
[25] The key issue before me is whether discovery of such documents is relevant and necessary in order for the Court to be able to fairly and effectively adjudicate the issues I have identified at [21] above.
Are the documents relevant to whether the leave application was brought within time?
[26] The application for leave to review was filed more than 28 days after the Tribunal released its decision, but within 28 days of the Minister declining to grant residence to CF, as an exception to Instructions. CF intends to argue that the 28 day period for filing an application for leave runs from the date of the Minister’s decision, as only then was the Tribunal’s decision final or complete.
[27] Counsel for CF did not suggest that the documents sought are relevant to determining whether the leave application was brought within time. Rather, he submitted that, if it is held that the application was brought out of time, the Court will need to look not only at the length of the delay but also the merits of the application in order to determine whether “special circumstances” justify an extension of time.
[28] In my view, however, this submission is flawed. Sections 247(1)(b) and
249(4) apply in the context of an application for leave to bring judicial review
proceedings against the Tribunal’s decision. Section 247(1) provides:
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).
…
[29] Section 249(4) provides that applications for further time must be made within the 28 day period. In this case, however, the application for leave to bring judicial review proceedings and the application for leave to extend time were filed on the same day, 9 March 2016. If that date was within the 28 day period then the leave application was filed within time. If it was not, then the application for an extension of time will also have been made outside the permitted 28 day period. In either event there appears to be no scope for a “special circumstances” assessment in terms of s 247(1)(a).
Are the documents sought relevant to determining whether the issues in the judicial review proceedings could be adequately dealt with on appeal?
[30] The issues for determination in the judicial review proceedings are those set out in the draft statement of claim. To the extent that there currently appear to be some drafting deficiencies or inconsistencies in that document, regard may possibly also be had to the application for leave to bring judicial review proceedings.
[31] CF has also filed an application for leave to appeal the Tribunal’s decision. The issues intended to be raised on appeal are set out in that application (which appears to be virtually identical to the application for leave to bring judicial review proceedings).
[32] The extent to which the relevant issues are the same or different will depend on a careful analysis of the relevant documents and will be a matter for legal submission. No discovery is required for these purposes. Counsel for CF did not suggest otherwise.
Are the documents sought relevant to determining whether the issues raised by the proposed judicial review proceedings are of general or public importance?
[33] If the Court hearing the leave application is satisfied that the application was filed within time, and raises issues that could not be raised on appeal, it would then be necessary for the Court to decide whether the issues raised by the proposed proceedings are of general or public importance.
[34] As I have noted above, CF’s primary ground of review is that the Tribunal erred in law in considering that the Instructions applied to applicants for residence who are Convention refugees. His other possible review ground, which is currently not very clearly articulated, appears to raise factual issues relating to the extent of his former role within the Iranian State Prison Organisation. The first issue, however, appears to be the key focus of the proposed judicial review proceedings and it is likely that if any issue raised by CF were to surmount the threshold of general or public importance it would be that one, given its potentially wide application.
[35] Will the documents sought assist the Court to decide the importance of the issue of whether the Instructions apply to applications for residence by Convention refugees? In my view, they will not.
[36] CF submitted that the decision of Woodhouse J in Northland Environmental Protection Society Incorporated v Chief Executive of the Ministry for Primary Industries, was analogous. In that case the general knowledge of Ministry officers about the true nature of swamp kauri being exported was considered
relevant and discoverable.11 However, in that case the level of knowledge was of
central relevance to the grounds of review (particularly unreasonableness). Further, discovery was ordered for the purposes of the substantive judicial review proceeding, and the decisions challenged were a Minister’s rather than a
quasi-judicial Tribunal’s (where detailed reasons have been provided).
11 Northland Environmental Protection Society Incorporated v Chief Executive of the Ministry for
Primary Industries, above n 5.
[37] CF will need to establish that it is bona fide and seriously arguable that the Tribunal has made an error of law in applying the Instructions to Convention Refugees, and that the issue is one of general or public importance. Whether or not the Instructions can or should be applied to Convention Refugees is a legal issue that will require close analysis of the Instructions themselves and the relevant legislative framework (and possibly case law) against the backdrop of New Zealand’s international obligations, as set out in the 1951 Convention. If it is seriously arguable that the Instructions do not (or should not) apply to Convention Refugees, then it will probably not be difficult to persuade the Court that the issue is one of general or public importance, given that it would potentially affect all Convention refugees who apply for residence in New Zealand.
[38] Discovery of documents such as briefing documents regarding the assessment of residence claims in other cases, or the deliberative materials of the Tribunal relating to CF in particular, will not assist the Court to decide whether this particular issue is of general or public importance. Even at the substantive hearing stage, whether or not the Tribunal has made an error law would normally be analysed without reference to any background deliberative material. It is rare for discovery to
be ordered in respect of deliberative materials.12 The decision of a judicial or quasi-
judicial Tribunal will usually speak for itself. In special circumstances discovery may be justified, but generally only where the deliberative process is itself attacked – such as where there are allegations of bias.13 That is not the case here.
Result
[39] The application that I vary my decision of 5 April 2016, and order discovery against the respondents, is declined.
12 Comalco New Zealand Ltd v Broadcasting Standards Authority [1995] 3 NZLR 469; ENZA Ltd v
Apple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA) at [21]-[24].
13 ENZA Ltd v Apple and Pear Export Permits Committee, above n 13, at [24]. Air New Zealand
Ltd v Commerce Commission [2004] 3 NZLR 550 at [33].
[40] Costs are reserved, to be determined together with any costs issues arising out
of the application for leave to bring judicial review proceedings.
Katz J
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