Chief Executive of the Ministry of Business, Innovation and Employment v Nair
[2016] NZCA 248
•10 June 2016 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA144/2016 [2016] NZCA 248 |
| BETWEEN | CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT |
| AND | MILAN SANKUNNY NAIR |
| Hearing: | 17 May 2016 |
Court: | Ellen France P, Randerson and Miller JJ |
Counsel: | M Hodge and K Lawson-Bradshaw for Appellant |
Judgment: | 10 June 2016 at 2 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed. The interim order preventing the respondent’s deportation is set aside.
BNo order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France P)
Introduction
This is an appeal by the Chief Executive of the Ministry of Business, Innovation and Employment against a decision of Duffy J to grant interim relief.[1] The decision restrains the Chief Executive from deporting Mr Nair from New Zealand to India until the High Court determines Mr Nair’s judicial review of the decision made by an immigration officer under s 177 of the Immigration Act 2009 (the 2009 Act) not to cancel the deportation order.
[1]Nair v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 345 [the High Court judgment].
The Judge found the consequences of deporting Mr Nair in the interim would be so adverse to his interests they met the threshold for interim relief to preserve his current status.[2] Duffy J also found Mr Nair had a respectable chance of succeeding on judicial review.[3] On appeal, the Chief Executive challenges the correctness of these conclusions.[4]
Background
[2]At [28].
[3]At [59].
[4]Mr Nair’s counsel was given leave to withdraw prior to the hearing. Mr Nair did not arrange alternative counsel. Ms Hansen was appointed as counsel to assist the Court.
There is no dispute as to the factual narrative which is set out by Duffy J.[5]
Facts
[5]The High Court judgment, above n 1, at [3]–[11].
Mr Nair came to New Zealand on a student visa in 2009. He obtained a second student visa in June 2011. That visa expired on 30 October 2011 so, from 1 November 2011, Mr Nair was unlawfully present in New Zealand.
In August 2014, Mr Nair met Jacinta Clarke. They entered into a de facto relationship in November 2014. Ms Clarke had a child from a previous relationship, L. Ms Clarke’s previous husband, the father of L, was deported to India in 2014. It is understood he still lives in India. In September 2015, Mr Nair and Ms Clarke had a child, M. Both L, now aged 20 months, and M, now aged nine months, have health difficulties.
Mr Nair took no steps to regularise his immigration status until he made a request for a visa under s 61 of the 2009 Act in January 2016. Mr Nair was served with a deportation order on 27 January 2016. Mr Nair was then advised by Immigration New Zealand on 28 January that his request under s 61 for a visa would not be considered. That was because, having been served with a deportation order, Mr Nair was ineligible for consideration under s 61. As he had been unlawfully in New Zealand for more than 42 days, Mr Nair was not entitled to appeal against the deportation order.[6]
The immigration decision in issue
[6]Immigration Act 2009, s 154(2).
The decision not to cancel Mr Nair’s deportation order under s 177 of the 2009 Act was made by James Casson, an immigration officer. Mr Casson interviewed Mr Nair, reviewed the notes of an interview with Ms Clarke, and reviewed documents provided by Mr Nair and Ms Clarke including medical records relating to L and M. Mr Casson also reviewed some research on the availability of medical care in the region of India to which Mr Nair would return were he deported. On 3 February 2016, Mr Casson decided not to cancel the deportation order.
The decision records the facts about Mr Nair’s personal circumstances and the further information provided to Mr Casson. It is noted that Mr Nair’s circumstances engage New Zealand’s international obligations. Mr Casson records he had regard to particular articles in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of the Child. Mr Casson says in the decision that he has considered Mr Nair’s personal circumstances and the applicable international obligations. The decision also notes that Mr Casson is not obliged to provide reasons for the decision by virtue of s 177(4)(a) of the 2009 Act. The decision is that deportation should proceed.
The High Court proceedings
Mr Nair filed a statement of claim seeking judicial review on 5 February 2016. The application for interim relief was filed on 10 February 2016. The interim relief application was heard on 22 February 2016 and judgment delivered on 3 March 2016. The substantive judicial review proceeding has a hearing date of 29 June 2016.
There is no dispute as to the questions Duffy J had to decide in determining whether to grant interim relief. Those questions are, first, whether the adverse consequences of deportation before the judicial review application is determined are such it is necessary to preserve his status in the interim and, secondly, whether there is a respectable case for judicial review.[7] As we have foreshadowed, the issue on appeal is the correctness of the Judge’s approach to these two questions.
A position to preserve?
[7]Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430; and Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC) at 313.
In reaching the conclusion the consequences of deportation were so adverse to Mr Nair as to necessitate interim relief, Duffy J identified three matters. First, the Judge said that reconsideration of the decision not to cancel the deportation order would require a fresh consideration of Mr Nair’s circumstances but he would be disadvantaged if he had been deported prior to that reconsideration. Secondly, Duffy J said Mr Nair’s future would “effectively” be determined by the initial decision not to cancel his deportation order. That is because cancellation of the deportation order following a successful judicial review would not afford Mr Nair a right to re-enter New Zealand. Finally, the Judge observed, Mr Nair may not be able to afford the return travel to New Zealand.
The relevant principles
The first two consequences identified by the Judge largely reflect her finding that the position under the 2009 Act in relevant respects is different from that under the Immigration Act 1987 (the 1987 Act). In particular, Duffy J interpreted s 58(4) of the 1987 Act as allowing a person in Mr Nair’s position to re-enter New Zealand as of right.[8] The Judge said there was no equivalent to s 58(4) in the 2009 Act.[9] The significance of this finding is that it meant the Judge treated Mr Nair’s case as different from that of the unsuccessful applicant in Parmanadan v Minister of Immigration.[10] In that case, the Court dismissed an application for an interim order to prevent Mr Parmanadan’s removal from New Zealand.
[8]Section 58(4) provided that “In the case of a person who has already been removed from or has left New Zealand, an immigration officer … may cancel a removal order … .”
[9]The High Court judgment, above n 1, at [20].
[10]Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424.
It was common ground before us that s 58(4) did not mean that a person in Mr Nair’s position had a right to re-enter New Zealand following cancellation of what is now referred to as a deportation order. The misunderstanding about the effect of the subsection may have arisen from the observation in Parmanadan that:[11]
… once it is appreciated that the corollary of the cancellation of a removal order under s 58 will be a grant of permission to reside in New Zealand, the need for an interim order in cases such as the present might be thought to fall away, at least in large measure.
[11]At [9].
However, the Court was making the point that the logical “corollary” of the decision to cancel may be the grant of permission to re-enter New Zealand, not that there was a right to re-enter upon cancellation. As William Young P stated:
[10] To be more specific, the corollary of an ultimately successful challenge by the appellant to his removal will be a grant of permission to reside in New Zealand. In other words, the end point of the whole process (which may include reconsideration of his case by an immigration officer) will be either the appellant’s removal, or him being permitted to stay in New Zealand. Armed with such permission, the appellant, even if removed in the meantime, will be able to return to New Zealand. So allowing him to be removed would not compromise his legal rights should his challenge to removal be ultimately successful.
The effect of Parmanadan is that the usual, statutory, effects of deportation will not generally be sufficiently adverse to meet the threshold for interim relief. The Court made it clear “there may be particular adverse consequences of a proposed removal which might warrant the making of an interim order”.[12] But, William Young P continued:[13]
the likelihood of such adverse consequences should be established by evidence and assessed in the context of both a legislative scheme under which the overstayer is necessarily illegally in New Zealand is under a legal duty to leave[14] (subject to a right of “appeal” to the Removal Review Authority on humanitarian grounds),[15] and also a legislative policy under which those who break the rules are not to be advantaged over those who comply.[16]
[12]At [11].
[13]At [11].
[14]Immigration Act 1987, s 45. See also ss 4 and 34.
[15]Section 47.
[16]As expressed in the Long Titles to the Immigration Amendment Acts 1991 and 1999.
We are satisfied there is no basis not to continue to apply Parmanadan.[17] Indeed, the 2009 Act reinforces the Parmanadan approach. We say that because the 2009 Act emphasises the personal responsibility on persons in Mr Nair’s position.
[17]The approach in Parmanadan was applied by analogy in Fernandes v Immigration and Protection Tribunal because the appellant’s ability to return to New Zealand was similarly preserved by the possibility of later, favourable, exercise of ministerial power: Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544 at [40]–[43].
The starting point is the stated purpose of the 2009 Act, namely, to “manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”.[18] Section 3(2)(e)(ii) also provides that to achieve this purpose the Act establishes an immigration system that:
includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—
…
(ii)prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, …
[18]Immigration Act 2009, s 3(1).
Section 177 is found in pt 6 of the 2009 Act dealing with deportation. The purpose of pt 6 is:[19]
to support the integrity of New Zealand’s immigration system and the security of New Zealand by providing for the deportation of certain persons from New Zealand.
[19]Section 153(1).
The next point to note is that there is an obligation on persons other than New Zealand citizens to ensure that they are on a valid visa at all times whilst in New Zealand.[20] A person who does not hold a valid visa is obliged to leave New Zealand.[21] Once a person unlawfully in New Zealand has either not exercised their right of appeal within a 42-day period or the appeal has been unsuccessful the person may be served with a deportation order.[22]
[20]Section 14.
[21]Section 18(1).
[22]Immigration Act 2009, s 175.
It is also relevant that the 2009 Act imposes strict time limits for statutory appeals to the Immigration and Protection Tribunal.[23] Further, review proceedings can only be brought if the Immigration and Protection Tribunal has issued final determinations.[24] There is a time limit on bringing review proceedings generally.[25]
[23]For example, under s 154(2) of the Immigration Act 2009 humanitarian appeals must be brought within 42 days of a person becoming unlawfully in New Zealand; under s 161(2) appeals against deportation of criminal offenders must be brought within 28 working days; and under s 194(2) appeals against decisions concerning refugee or protection status must be brought within 10 working days.
[24]Immigration Act 2009, s 249.
[25]Section 247.
Finally, s 179 of the Act provides for different periods of prohibition on entry depending on the circumstances. For example, the period of prohibition on entry is reduced where the individual unlawfully in New Zealand leaves voluntarily prior to the making of a deportation order. By contrast, under the 1987 Act prohibition was linked to the removal order.[26]
The present case
[26]Generally, until the expiry of five years from removal: Immigration Act 1987, s 57.
If interim relief is declined Mr Nair will leave New Zealand. The effect of s 179 of the Act is that he will be prohibited from returning to New Zealand for five years. He would have to conduct his judicial review application from India.[27] If successful on review, the decision under s 177 not to cancel the deportation order will be set aside and an immigration officer will reconsider whether to cancel the order. If the immigration officer decides to cancel the order, the “logical corollary” is likely to be the view there are good grounds for Mr Nair to be granted a residence class visa although Mr Nair would have to make his application for residency from India.[28] The Minister may exercise his discretion under s 182 of the Act to remove the prohibition on entry and to waive deportation costs.[29]
[27]We were advised Mr Nair is legally represented.
[28]The 2009 Act contemplates this course.
[29]Immigration Act 2009, s 180.
By contrast, if interim relief is maintained Mr Nair would remain in New Zealand unlawfully. In practice, the Minister is likely to grant a visa under s 61 to regularise his position in the interim. Mr Nair would still then need to seek a visa.
When the consequences of deportation before Mr Nair’s judicial review application is determined are analysed in this way, it is apparent that none of the consequences identified by Duffy J meet the threshold for interim relief. Rather, they reflect the usual statutory consequences of deportation. Ms Hansen accepts that these particular circumstances reflect the norm but she relies on the uncertainty and dislocation involved. However, on the analysis in Parmanadan, such consequences absent further evidence are insufficient to warrant interim relief.
The only question remaining is whether this position is affected by the children’s situation. We address this aspect under the heading of whether the Judge was right to conclude there was a respectable case for judicial review.
A respectable case for judicial review
The statement of claim before the High Court pleaded that the decision not to cancel the deportation order was unreasonable and that the appellant failed to properly assess the impact on Mr Nair’s New Zealand citizen partner and children as required by s 177 of the 2009 Act.
Section 177 provides as follows:
Deportation order may be cancelled
(1)An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.
(2)Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand’s international obligations.
(3)If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—
(a) may make a decision as he or she thinks fit; and
(b) in doing so, is not under any obligation, whether by implication or otherwise,—
(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or
(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.
(4)Whether or not an immigration officer considers cancelling a deportation order,—
(a) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and
(ab)privacy principle 6 (which relates to access to personal information and is set out in section 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application; and
(b)section 23 of the Official Information Act 1982 does not apply in respect of the decision.
(5)However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—
(a)a description of the international obligations; and
(b)the facts about the person’s personal circumstances.
The phrase “absolute discretion” in s 177(1) is defined in the Act to mean:[30]
[30]Immigration Act 2009, s 11(1).
(a)the matter or decision may not be applied for; and
(b)if a person purports to apply …, there is no obligation on the decision maker to—
(i)consider the purported application; or
(ii)inquire into the circumstances of the person or any other person; or
(iii)make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and
(c)whether the purported application is considered or not,—
(i)the decision maker is not obliged to give reasons …
…
The High Court decision
In determining there was a respectable case for judicial review, Duffy J took the view that s 177(3)(b)(ii), which provides there is no obligation on the immigration officer to make inquiries in deciding whether or not to cancel a deportation order, operated separately from the requirement to have regard to any relevant international obligations in s 177(3).[31] Section 177(3)(b)(ii) was accordingly not relevant in this case. Duffy J said that to have regard to the relevant international obligations, the immigration officer had to identify relevant facts about the availability of healthcare in the relevant region of India.[32] As the information obtained was insufficient to address that issue, the decision not to cancel the order was not a reasonable one.[33]
The approach to s 177
[31]The High Court judgment, above n 1, at [51].
[32]At [51]–[52].
[33]At [53] and [59].
It is apparent from the statutory scheme in general, from the specific wording of s 177 and from the legislative history that s 177 provides something of a “last ditch” opportunity to have a deportation order cancelled.[34] It is also apparent that while the immigration officer is required to turn his or her mind to (“have regard to”) any relevant international obligations no particular test need be applied[35] and the immigration officer “need not attach particular weight to any given international obligation”.[36] Finally, it follows that the scope for judicial review of the decision not to cancel a deportation order is limited.
[34]Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 at [14]. Leave to appeal to the Supreme Court was declined: Singh v The Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZSC 39.
[35]Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 34, at [18].
[36]Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37, [2014] 2 NZLR 662 at [36].
On the latter point, in Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment this Court endorsed the observations made in two High Court decisions as to the limited nature of judicial review of decisions under s 177.[37] The first of these decisions was that of Lang J who stated in Babulal v Chief Executive, Department of Labour that:[38]
where an immigration officer makes a decision that requires him or her to have regard to New Zealand’s international obligations, Parliament intended the record of the decision to contain sufficient information to allow the decision to be judicially reviewed within a very narrow compass. It accepted that the court must have sufficient information to be able to determine whether the immigration officer who made the decision took into account the international obligations relevant to the particular case.
[37]Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 34, at [44]–[45].
[38]Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29 September 2011 at [29].
Secondly, the Court in Singh referred to Nair v The Chief Executive of the Department of Labour, in which Woodhouse J said that an immigration officer making a decision under s 177, although required to have regard to any relevant international obligations, was not obliged “to give effect to international obligations in some particular way, or at all”.[39]
[39]Nair v The Chief Executive of the Department of Labour [2013] NZHC 358 at [31].
It is helpful to briefly record the relevant legislative history supporting this approach. The legislative history indicates, first, that the general purpose of the Bill which became the 2009 Act was to ensure compliance with immigration-related international obligations in a more transparent way.[40]
[40]Immigration Bill 2007 (132–1) (explanatory note) at 1 and see 2.
Secondly, s 177 was inserted (as cl 165A) by a supplementary order paper following the select committee recommendation that the Bill should include a provision for cancellation of a deportation order.[41] The supplementary order paper explains the wording of s 177 was a response to the judgment of the Supreme Court in Ye v Minister of Immigration, which was delivered after the select committee stage and second reading of the Bill.[42] The supplementary order paper in Committee included two clauses responding to that decision. One was cl 165A, which became s 177; the other was cl 432, which amended s 58 of the 1987 Act.
[41]Immigration Bill 2007 (132–2) (select committee report) at 20–21; and Supplementary Order Paper 2009 (32) Immigration Bill 2007 (132–2).
[42]Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
The explanatory note to the paper discusses these changes:[43]
… new clauses 165A and 432 are inserted, to ensure that certain decisions (for example, decisions about whether or not a person liable for deportation (or removal under the Immigration Act 1987) from New Zealand should be deported (or removed)) are decisions made by immigration officers implementing the practical elements of the final stage of removal of the person and do not require any test or any particular test. In particular, immigration officers are not required to apply the test set out in section 47(3) of the Immigration Act 1987 or in clause 186 of the Bill, as the case may be, when considering cancellation of a removal order or a deportation order. At this stage, the essential legal issue is whether the person is in New Zealand unlawfully. These amendments overturn the future effect of most of the key findings (including the findings that required immigration officers to apply the humanitarian appeal test and imposed duties of inquiry on them) in the recent Supreme Court decisions Ye v Minister of Immigration; Qiu v Minister of Immigration [2009] NZSC 76, and Huang v Minister of Immigration [2009] NZSC 76, and Huang v Minister of Immigration [2009] NZSC 77, all judgments being delivered on 20 July 2009. The amendments, however, do not affect the position of the litigants in those decisions.
[43]Supplementary Order Paper 2009 (32) Immigration Bill 2007 (132–2) (explanatory note) at 105.
The note further records that cl 165A(1) gave effect to the select committee recommendation for an amendment allowing cancellation of a deportation order.[44] The amendments were agreed to and the final version of the Bill inserted cls 165A and 432.[45]
[44]At 104.
[45]Immigration Bill 2007 (132–3).
In terms of the scope of judicial review under s 177, it is relevant also that there is no particular requirement in the relevant international instruments for consideration of these obligations at a final stage. Instead, the instruments include general requirements for appropriate review, consultation or determination processes.[46] The decision made under s 177 comes at the end of a range of processes providing opportunities for review and appeal.
Application to Mr Nair’s case
[46]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), arts 2(3) and 13; Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990), arts 4 and 9(2); Convention relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951, entered into force 22 April 1954), art 32.
In the present case, it was not open to the Judge to conclude that the immigration officer had not turned his mind to Mr Nair’s personal circumstances in compliance with s 177. Both children have medical issues but we agree with the appellant’s submission that the Judge’s conclusion on this point is only reached by elevating these considerations above all others. That is to require a particular test and s 177 does not impose such a requirement.
The latest information about L’s health is set out in a letter of 19 January 2016 from a consultant paediatrician, Dr Silvia Croker, at Whakatane Hospital. Essentially, L presented with an increasing head circumference and scrotal swelling. An MRI for his brain and an ultrasound for his scrotum have been scheduled.
A letter of the same date from Dr Croker relating to M records he was born prematurely and has had reflux problems for which he has been prescribed a different formula, Pepti Junior. The introduction of the new formula has led to a “dramatic improvement” in his feeding.
In terms of L, the need for an MRI and an ultrasound may delay his departure and therefore that of Ms Clarke and M to India. In relation to M, as the appellant submits, there is no evidence to suggest it will not be possible to obtain the formula he needs by prescription in India or over the internet. The evidence is Ms Clarke and the children will follow Mr Nair to India should he be deported. Ms Clarke told the immigration officer that Mr Nair’s parents would organise their tickets but she needed first to organise passports for herself and the children. In the circumstances, the immigration officer was entitled to conclude the medical concerns for the children were outweighed by other considerations relating to the integrity of the immigration system.
The only remaining issue is whether the fact the immigration officer made some inquiries of his own alters the position. We do not consider it does. There was no obligation to do so, reflecting the concept of personal responsibility central to the 2009 Act. Further, as a result of the inquiries, we know broadly what the position would be, that is, the health care available is variable. We also know Mr Nair’s parents live in Gujarat in India where Mr Nair grew up and that is where he would return. Before coming to New Zealand Mr Nair was supported by his parents. His mother is a midwife and school teacher and his father is an office worker. Both are professional people who, on the evidence available, are supportive of the family.
In these circumstances, we see no basis for the conclusion that there was a respectable case for judicial review.
For completeness, we note the statement of claim was amended subsequently to add a ground based on abuse of process. It is claimed that the appellant incorrectly used information as to Mr Nair’s address obtained from his application under s 61 of the 2009 Act to serve the deportation order. Because of the timing of the amendment, this aspect of the claim was not addressed by Duffy J.
We need only record that the appellant says the facts on this point are contested. The evidence will be that Mr Nair’s address was obtained as a result of a police stop on 24 December 2015. Further, the appellant submits s 14(2)(d) of the Act is relevant to this claim because the section makes it clear the fact a visa application has been made does not inhibit deportation procedures.
There is nothing in this ground to change our assessment of the necessity to preserve Mr Nair’s position in the interim. This ground can be pursued along with the others from outside New Zealand.
Result
The appeal is allowed. The interim order preventing the respondent’s deportation is set aside. No order as to costs.
Solicitors:
Meredith Connell, Auckland for Appellant
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