Chief Executive of the Ministry of Business, Innovation and Employment v Singh
[2018] NZHC 272
•28 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-003172
[2018] NZHC 272
UNDER the Immigration Act 2009, s 245 BETWEEN
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT OF WELLINGTON
Appellant
AND
NAVNEET SINGH
Respondent
Hearing: 8 December 2017 Appearances:
K G Stephen for Appellant
S J M Mount QC for Respondent
Judgment:
28 February 2018
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 28 February 2018 at 3.30 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date…………………….
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v SINGH [2018] NZHC 272 [28 February 2018]
Introduction
[1] This appeal concerns the meaning of s 216(1)(b) of the Immigration Act 2009, which permits the Immigration and Protection Tribunal (IPT), upon declining an appeal against deportation, to grant a temporary entry class visa for up to 12 months “if the Tribunal considers it necessary to enable the appellant to remain in New Zealand for the purposes of getting his or her affairs in order”.
[2] In 2016, the IPT made an order under s 216(1)(b) that Navneet Singh, who was liable for deportation, be granted a temporary entry class visa valid for eight months for the purposes of allowing him to complete the course of study in which he was enrolled. The Chief Executive obtained leave to appeal the decision on the following question of law:1
Did the Tribunal misinterpret, and consequently misdirect itself, as to the scope of its power under s 216(1)(b) of the Immigration Act 2009?
[3] The specific ground of appeal is that the IPT misinterpreted s 216(1)(b) and misdirected itself in law as to the scope of its power by incorrectly purporting to grant the appellant a student visa, in circumstances where the appellant’s unlawful status and liability for deportation stemmed from a decision of Immigration New Zealand (INZ) declining to grant the appellant a student visa by reason of fraud, leading to a result that is:
(a)contrary to the policy and scheme of the Act;
(b)tantamount to the IPT improperly considering the merits of INZ’s decision to decline the appellant’s student visa application, beyond the IPT’s power in an “exceptional circumstances appeal under s 207;
(c)tantamount to the IPT creating a de facto right of appeal from INZ’s decision to decline a student visa when the statute does not expressly create any such right of appeal; and is
(d)beyond the IPT’s power to grant a temporary entry class visa under s 216(1)(b) where “… necessary to enable the appellant to remain in
1 Chief Executive, Ministry of Business, Innovation and Employment v Singh [2017] NZHC 1724.
New Zealand for the purposes of getting his or her affairs in order…”. (emphasis added).
[4] The eight-month visa granted to Mr Singh by the IPT has now expired. Nevertheless, the question of law remains of general and public importance. I was advised from the bar that Mr Singh did not, in fact, complete the course of study but remains in New Zealand. However, Mr Singh was not represented at the hearing and Mr Mount QC appeared as amicus curiae. I record my thanks for his assistance.
Background
[5] Mr Singh arrived in New Zealand in March 2015 and was granted a student visa valid to April 2016. He completed a National Diploma in Business, Level 5, in April 2016.
[6] On 27 April 2016, Mr Singh applied for a further student visa to study towards a National Diploma in Business, Level 6. He was granted an interim visa which allowed him to remain and study in New Zealand while his application was processed. He paid the course fees and commenced the programme.
[7] On 8 June 2016, INZ raised concerns that Mr Singh’s student visa application had included bank documents that were fraudulent. On 16 September 2016, Mr Singh’s application for a further student visa was declined on the ground that he did not meet the character requirements. As a result, on 18 September 2016, Mr Singh became unlawfully in New Zealand.
[8] The Immigration Act specifically precludes a general right of appeal to the IPT against an INZ decision.2 There is, however, a right of appeal to the IPT on humanitarian grounds under s 207. The IPT must allow such an appeal where 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 it would not be contrary to the public interest to allow the appellant to remain in New Zealand.
[9] Mr Singh appealed under s 207 on the grounds that he was unaware of the fraudulent bank documents, which were submitted by his agent, that his family had
2 Immigration Act 2009, ss 185(5) and 186.
made a substantial investment in supporting his coming to New Zealand to study and that he had already paid the fees for the level 6 course which he had attended until his visa expired. The IPT dismissed Mr Singh’s humanitarian appeal, finding that deportation would cause Mr Singh and his family disappointment and distress but that these circumstances did not meet the high threshold required for an appeal on humanitarian grounds.3
[10] The IPT then went on to order that Mr Singh be granted a temporary entry class visa under s 216(1)(b), valid for eight months, for the purposes of allowing him to complete his course. Its reasoning was:4
Nevertheless, in view of the fact that the appellant has successfully completed half of his programme, has paid the course fees for and attended part of the remaining programme, and that this programme has a limited period to run, the Tribunal will direct the grant of a student visa for eight months. Without in any way minimising the seriousness of the supply of false information in his application, the Tribunal accepts that the appellant may well not have been aware of this, and that the necessary financial support has in fact been available to the appellant for his studies. Should the course not be completed within the next eight months, he may apply to Immigration New Zealand for a further student visa. It will then be up to Immigration New Zealand to decide on any such application, and the Tribunal cannot give any guarantees in this respect.
Appeal
Failure to consider the threshold question
[11]Section 216 of the Immigration Act relevantly provides:
(1)On declining an appeal against liability for deportation, if the Tribunal considers it necessary to enable the appellant to remain in New Zealand for the purposes of getting his or her affairs in order, it may order —
…
(b) that a temporary entry class visa, valid for a period not exceeding 12 months, commencing on the date of the Tribunal’s decision, be granted to the appellant.
(2)If the Tribunal orders the grant of a visa under subsection (1)(b), no further appeal against liability for deportation may be brought by the holder upon the expiry of the visa or upon the holder earlier becoming liable for deportation.
(emphasis added)
3 Re Singh [2016] NZIPT 502942 at [20]–[21].
4 At [22].
[12] The wording of s 216(1), albeit somewhat clumsy, makes it clear that the threshold question is whether it is necessary for the appellant to remain in New Zealand for the purposes of getting his or her affairs in order. It carries the implication that it will not always be necessary to remain in New Zealand to get one’s affairs in order and that there may be affairs to put in order that can be attended to from overseas. Indeed, given the widespread use of electronic communications it is likely that many things can be attended to from overseas. In this case, of course, the necessity of remaining in New Zealand was not in issue; there was never a suggestion that Mr Singh could complete the course remotely. So the central issue is whether completing the course fell within the ambit of “getting his or her affairs in order”.
[13] The IPT’s decision made no specific reference to this issue and did not specifically consider the meaning of the phrase. Self-evidently, it considered that the three factors it identified (Mr Singh had completed half the programme, paid for the second course and undertaken part of the second course) were to be regarded as justifying treating completion of the course as falling within the ambit of “affairs” to be got in order. But these factors do not, in themselves, indicate the IPT’s reasons for treating completion of the course as part of Mr Singh’s “affairs” for the purposes of s 216(1). In the absence of any explicit reasoning I am unable to reach any conclusion as to how the IPT interpreted the phrase “getting his or her affairs in order”.
[14] For this reason, I do not accept Mr Mount’s submission that this case is properly approached as one in which the IPT adopted an interpretation that was available to it, thereby precluding interference by this Court on the ground that a different interpretation was also available unless the decision is aberrant or irrational.5 As a result this Court should consider the matter afresh.
The meaning of “getting his or her affairs in order”
[15]Mr Stephen, for the Chief Executive, submitted that, properly interpreted, the
phrase “getting his or her affairs in order” conveyed that the visa must be needed to
5 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [54]–[57]; Equus Trust v Christchurch City Council [2017] NZCA 200 at [7].
enable the person (and/or dependents) to do something that is, at least in part, for the purpose of leaving the country. Section 216(1) should therefore be interpreted as requiring some link between getting one’s affairs in order and delaying deportation. He pointed out that this interpretation is consistent with the explanation for the power given by the Select Committee at the time of passage of the legislation:6
Such a delay would allow an unsuccessful appellant time to tidy his or her affairs before departure from New Zealand. Some might need time to resign from their employment, and make arrangements for returning, and removing their belongings, to their home countries.
[16] Mr Mount advanced a wider interpretation. He submitted that s 216(1) contemplated a broader discretion that would permit an unsuccessful appellant to put his or her affairs, of whatever kind, in an orderly state before departing the country. The affairs in question need not be required to facilitate departure. He argued that this broader interpretation was consistent with the plain meaning of the statute, the statutory context and the purposes and policy of the statute, and that only slight weight should be given to the select committee’s comments.
[17] The phrases “to get one’s affairs in order” and its synonym, to “put one’s affairs in order” have not been the subject of previous judicial considerations. They are common vernacular expressions that, broadly, mean to organise one’s personal, financial or legal affairs in anticipation of some event or change. They are commonly used in connection with preparing for death or for an impending change in status that is either permanent or long-term. Because of the variety of circumstances confronting people, what constitutes “affairs” must depend on the nature of the circumstances; a person facing imprisonment will have different matters to attend to compared with a person suffering a terminal illness. A person planning to travel for an extended period has different considerations from someone moving overseas permanently. Whilst the phrases could be used in a wider sense of putting one’s general personal affairs in an orderly state, this would be a less common use; the ordinary meaning of this expression is associated with some impending change in one’s circumstances.
[18]
I consider that the phrase is properly interpreted in accordance with the way it is commonly understood, which is the narrower approach contended for by6 Immigration Bill 2008 (132-2) (Select Committee Report) at 23.
Mr Stephen. I accept his submission that the narrower interpretation is consistent with the purpose of the Immigration Act generally and s 216(1) in particular. The purpose of the Immigration Act is “to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”.7 It is relevant that the possibility of an order under s 216(1) arises only once deportation is inevitable. A person seeking an order under s 216(1) will have exhausted all available rights of review and appeal, including an appeal on humanitarian grounds. An order under s 216(1) is a last resort. Even if a visa were granted under s 216(1), deportation is inevitable within 12 months (that being the maximum time that deportation can be delayed under s 216(1)(b)). The appellant’s extreme situation must, inevitably, colour the meaning of “getting his or her affairs in order”; it is not a matter of attending to matters out of desire but out of necessity, in the face of impending deportation.
[19] I do not consider that the maximum period of 12 months by which deportation can be delayed under s 216(1) gives any indication as to how the phrase is to be interpreted. Mr Mount argued that it was inconsistent with Mr Stephen’s argument because most immediate travel-related purposes are capable of being arranged with a few months at most. In my view, that time frame does no more than recognise that whether a particular matter is properly regarded as falling within the ambit of s 216(1) is a fact-specific question and allowance needs to be made for a variety of circumstances. A person who has been living in New Zealand for many years may have complex needs in terms of ordering his or her affairs, including the sale of a house, the winding up of a business or making new arrangements for family members.
[20] Although I do not consider it necessary that the “affairs” to be put in order be ones that will actually facilitate departure, the scope of activities that constitute affairs for the purposes of s 216(1) must necessarily be coloured by the circumstances I have described. In my opinion, the phrase “getting his or her affairs in order” means organising those personal, legal or financial matters that, by reason of personal need or obligation (legal or moral) must be attended to so that
7 Immigration Act 2009, s 3(1).
deportation will not leave the individual concerned, or those associated with him or her, disadvantaged.
[21] I doubt that embarking on a new course of action, or endeavouring to complete a project that is in its early stages will fall into this expression. A difference is to be drawn between that which must be done and that which the appellant would like to do. I acknowledge that there are cases in which orders have been made under s 216(1) which have treated the phrase as wider than I have described and where the objective appears to be primarily to soften the impact of an order for deportation. In Ram v Minister of Immigration, for example, the IPT made an order under s 216(1) that allowed a Fijian citizen suffering from alcoholism, who had been a New Zealand resident for five years, and living in New Zealand for eight, to remain to undertake an alcohol programme, notwithstanding that he had undergone previous programmes unsuccessfully in the past.8 This might be viewed as a compassionate response to ease the effect of deportation rather than putting the appellant’s affairs in order. Generally, however, cases decided by the IPT, whilst showing a variety of circumstances, reflect the difference between matters that can fairly be viewed as necessarily in order to allow the appellant to leave the country with his or her personal obligations in order, and those that the appellant would simply prefer to attend to.
[22] In some cases the orders under s 216, made by the IPT, were directly connected with an appellant’s deportation, such as being made for the purpose of arranging their travel9 or making financial arrangements to ease the transition.10 Those not directly connected with departure nevertheless usually show a consistent theme of allowing the appellant to complete some unfinished undertaking that can fairly be viewed as being part of winding up life in New Zealand or preparing for returning overseas, such as participation in legal proceedings that they had either brought or had been brought against them, or tidying up business affairs.11 In Re
8 Ram v Minister of Immigration [2016] NZIPT 600167.
9 Re AI (Cameroon) [2016] NZIPT 502361.
10 Re BK (South Africa) [2016] NZIPT 502853.
11 Re Low [2016] NZIPT 502932; Re Peixoto de Alcantara [2017] NZIPT 600322; Re Singh [2017] NZIPT 50991. See also Re Skelly [2012] NZIPT 500559.
AG, for example, the appellant was permitted to conclude a course of psychotherapy to ensure her psychological safety upon leaving New Zealand.12
[23] There have been cases in which the appellant has been permitted to stay in order to support their child to complete a school year. In cases where the “affairs” to be put in order are, strictly, those of a child, especially a New Zealand citizen child, the IPT has properly viewed them as, effectively, the affairs of the parent, given the protection granted to children under art 3.1 of the Convention on the Rights of the Child13 and the rights affirmed by the New Zealand courts.14 In Re Choi and Re Tang, the appellants were permitted to stay so their dependent children could finish the school term or year.15 In Nacis v Minister of Immigration an applicant whose dependent son had only two terms remaining in his final school year was permitted to stay to assist and support him.16 In Saofa’I, the appellant was allowed to stay for three months to allow his daughter, who was a New Zealand citizen but who would have to leave the country with him, to complete the school year.17
[24] The case of an adult student is less common and more difficult. It cannot be said that completion of study would never be an affair that necessitates completion. But, given the statutory context discussed, study is not usually regarded as something that one has to complete in terms of readying oneself for an impending and permanent change such as deportation.
[25] In Re Almoka, an order was made permitting an adult student to stay for three months to complete the “brief remaining part” of the language course he was undertaking, though he was not able to remain for long enough to complete the whole of his intended course of study, with the result that he lost the benefit of a scholarship.18 This suggests consideration of the amount of time required to complete a course of study relative to the time already devoted to it. For example, an individual who requires a very short amount of time to complete a course or sit
12 Re AG (United States) [2016] NZIPT 502876.
13 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
14 Puli’uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA); O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at [32].
15 Re Choi and Han [2016] NZIPT 502553, 502555; Re Tang [2016] NZIPT 502870.
16 Nacis v Minister of Immigration [2016] NZIPT 600211.
17 Saofa’I [2016] NZIPT 600309.
18 Re Almoka [2017] NZIPT 502990 at [27].
exams on a course to which he or she has already devoted a lengthy period would more readily show that completion was part of “getting their affairs in order” than a student whose course was short or who had not devoted a long period to it already. The nature of the course may also be relevant. It must be a question of degree to be assessed case by case.
[26] In this case, Mr Singh was less than five months into his one-year course of study. The delay in deportation was not so much giving him, in the colloquial sense, the chance to “finish off” his study, but rather to undertake the substantial part of it, which still lay ahead. Further, by the time of the IPT’s grant, Mr Singh had been in New Zealand for only 16 months. The temporary visa granted by the IPT that permitted him to remain for eight months therefore amounted to half the time he had already spent in New Zealand.
[27] Looked at against the statutory context and Mr Singh’s personal circumstances, it cannot be said that completing a course of which less than half had been undertaken can truly be said to be part of Mr Singh’s affairs that had to be put in order.
Did the Tribunal err by, in effect, creating an appeal right that does not exist under the Act?
[28] Mr Stephen submits that the power the IPT holds under s 216 cannot be exercised in a way that thwarts the statutory scheme.19 As already noted, there was no general right of appeal against INZ’s decision to decline Mr Singh’s application for a further visa and Mr Singh’s only right of appeal (on humanitarian grounds under s 207) had failed. Mr Stephen argued that, in these circumstances, the IPT’s decision granting the visa to enable Mr Singh to finish his studies had the effect of granting him a visa for the very purpose that INZ had already rejected.
[29]
I do not see that the mere fact that an order under s 216 would have the same practical outcome as a visa granted at first instance necessarily precludes the order being made. That possible outcome is the result of the different considerations at the respective stages of the process. I do not consider that, in itself, such an outcome would thwart the legislation by effectively creating a new right of appeal. The19 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [44].
legislature clearly intended that short-term visas of up to a year could be granted for the purpose of the appellant getting their affairs in order. It would undermine that section if one could not get their affairs in order simply because other matters, such as in the present case Mr Singh’s business course, could be resolved which were the subject of the initial visa application.
[30] However, that would only be the case if s 216 was properly applied. Given my conclusion as to the interpretation of s 216(1), the order here did undermine the statutory scheme of the Immigration Act, as it, in effect, operated as a challenge to the underlying INZ decision as the s 216 test was not followed.
Result
[31]The appeal is allowed.
[32]The IPT’s order made under s 216(1) of the Immigration Act 2009 is set
aside.
[33] In the application for leave to appeal, the Chief Executive indicated that no costs would be sought in the event of the appeal being allowed, given that it is in the nature of a test case. I therefore make no order as to costs. Mr Mount’s costs will, however, be met in the usual way.
P Courtney J
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