Chief Executive of the Ministry of Business, Innovation & Employment v EM
[2018] NZHC 2437
•14 September 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2017-404-2651
CIV-2017-404-2652 [2018] NZHC 2437
UNDER THE Immigration Act 2009, ss 245 and 249 IN THE MATTER OF
Applications for leave to appeal and leave to bring judicial review proceedings
BETWEEN
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
Applicant
AND
EM
First RespondentAND
IMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent (for CIV-2017-404-
2652)
Hearing: 18 April 2018 Appearances:
K G Stephen and H T N Fong for Applicant
J H Cottrell and R L Fletcher for First Respondent
No appearance for Second RespondentJudgment:
14 September 2018
JUDGMENT OF CLARK J
Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment is
4 pm on 14 September 2018
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT v EM [2018] NZHC 2437 [14 September 2018]
Introduction
[1] EM had been subject to a three-year re-entry ban from Australia. When EM applied for a residence visa he was declined by Immigration New Zealand on the ground he had provided false or misleading information when asked whether he had previously been “excluded” from another country.1
[2] EM appealed successfully to the Immigration and Protection Tribunal. The Tribunal concluded EM was not “excluded” from Australia within the meaning of the term in s 15 of the Immigration Act 2009 (the Act) and therefore the Tribunal, which is barred from hearing an appeal where a person had provided misleading information, had jurisdiction to hear the appeal.
[3] But the Chief Executive of the Ministry of Business, Innovation and Employment says the Tribunal did not have jurisdiction to hear EM’s appeal.2 If it did have jurisdiction, the Ministry says the Tribunal erred in its interpretation of a key provision in the Act which renders those who have been excluded from another country ineligible for visa or entry permission into New Zealand.3 The Ministry seeks to appeal the jurisdiction and interpretation points and seeks also to have the interpretation point determined by way of judicial review. It must have the leave of the High Court for both.
[4] This judgment determines:
(i)the Ministry’s application under s 245 of the Act for leave to appeal against the whole of the Tribunal’s decision on the grounds the Tribunal misdirected itself as to its jurisdiction to hear EM’s appeal; and
(ii) the Ministry’s applications pursuant to ss 245 and 249 of the Act for leave to appeal and to bring judicial review proceedings on the grounds the Tribunal misinterpreted the meaning to be given to “excluded” in
1 Immigration New Zealand is a business unit of the Ministry of Business, Innovation and
Employment.
2 In this judgment, for convenience, I refer to the Chief Executive, who is the applicant for leave to appeal, as the Ministry.
3 Immigration Act 2009, s 15(1)(f).
s 15(1)(f) of the Act.
Material facts
[5] On 6 April 2016, EM submitted an Expression of Interest (EOI) in order to be considered for a residence visa in New Zealand. The EOI which EM had to complete included in a “character” section the following question:
B4: Have you ever been:
• excluded
• removed or deportedfrom any country, including New Zealand
…
If you answered ‘yes’ to any of the questions B1 to B6, you are not eligible to submit your expression of interest.
B12: Have you ever been refused entry to any country, including New
Zealand?
…
If you answered ‘yes’ to any questions B7 to B15, you must provide a full explanation about the surrounding circumstances….
[6] EM answered “No” to both questions. He provided a detailed explanation in response to both questions B4 and B12:
At the end of my time in Australia, I overstayed on my visa by just over
2 months. The details of which were as follows: I was trying desperately to find a job that could sponsor me as an Architect so I could stay on and work in the country for longer but I was unable to do so. I was granted a temporary visa on 6 July 2009 - 7 September 2009 to find a job and apply for a work permit to enable me to work again but was unable to find one in time because of the short length of time I had left on the then current visa and the fact that I was not able to start work immediately due to restriction on my visa, not to mention this was the height of the financial crisis and companies were very reluctant to hire new staff until they saw how the recession was going to affect them.
I was given another 30 days to book flights and organise my departure. Unfortunately, the condition on the temporary [visa] I had been granted did not entitle me to work and I had no way of raising the funds for the flight. My family at home are on low income and couldn't help me financially. I did explain this to Immigration but there was nothing further they could do to help. In the end my partner at the time paid for my departing flights on
18 December 2009 and I paid her back at a later date.
The result of me overstaying was a 3 year ban from Australia which is mandatory with any overstay and has long since expired. I have since been granted a temporary holiday visa for Australia and I am now even eligible to
apply for skilled migration visa and residence visa for Australia. So in answer to the question, because I left of my own free will and explained the situation under departure, I do not believe I was ever refused entry, excluded, removed or deported. I just got caught out financially and left myself no option and was given the minimum punishment. I’m not sure if I needed to answer this at this point but again wanted to be 100% honest.
[7] EM’s EOI was selected from the pool and he was invited to apply for residence on 20 April 2016. He lodged his application under the Skilled Migrant category on
10 June 2016. In his application form, he amended his answer to question B4 to “yes”, he had been excluded from Australia in 2009.
[8] Immigration New Zealand declined EM’s residence application because it found he failed to declare he had previously been excluded from Australia. His exclusion meant he was not eligible for a visa or entry permission to enter or be in New Zealand under s 15(1)(f) of the Act.4
[9] EM’s failure to declare the exclusion meant that EM had provided false or misleading information in his EOI. Section 187(2) of the Act bars appeals from a refusal of an immigration officer to grant a residence class visa where the ground for refusal is that the person has submitted false or misleading information or withheld relevant information that was potentially prejudicial to the person.5
[10] EM appealed to the Immigration and Protection Tribunal. The Tribunal allowed his appeal.6 The Tribunal approached the jurisdictional issue raised by s 187(2) by considering whether the appellant had been “excluded” from another country in terms of s 15(1)(f) of the Act. The Tribunal concluded EM had not been so excluded. The Tribunal considered the overall focus of s 15 is “on excluding individuals from New Zealand who have committed serious offences or immigration transgressions …”7 Therefore, EM had not failed to disclose information to Immigration New Zealand. This meant Immigration New Zealand erred in declining
EM’s application. Accordingly, the Tribunal had jurisdiction to hear EM’s appeal.8
4 Section 15(1)(f) provides no visa or entry permission may be granted, and no visa waiver may apply, to any person who has at any time been removed, excluded or deported from another country.
5 Immigration Act, s 187(2)(d)(i).
6 EM (Ireland) [2017] NZIPT 204065.
7 At [89].
8 At [92].
Leave to appeal
The leave requirement
[11] Section 245 of the Act requires a party who wishes to appeal to obtain leave. Section 245 provides:
245 Appeal to High Court on point of law by leave
(1)Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
(3)In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision
[12] Practically speaking s 245 requires:9
… an applicant to identify a seriously arguable question of law which either:
(a)has importance extending beyond the particular case (which is what “general or public importance” entails); or
(b) for some other reason, warrants a decision from the
High Court.
[13] In Machida v Chief Executive of Immigration New Zealand the Court of Appeal observed category (b) — “some other reason” — is open-ended but it agreed with a series of decisions in which the High Court has held it would only be in “an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met”.10
9 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
10 At [8].
The proposed appeal
[14] The Ministry’s application for an order granting leave to appeal rests on the grounds the Tribunal misinterpreted s 187(2)(d)(i) of the Act and misdirected itself in law as to its jurisdiction to hear the appeal.
[15] The Ministry also applied under s 249 of the Act to judicially review the Tribunal in order to obtain a declaration as to the correct interpretation of the phrase “who has, at any time, been … excluded… from another country” in s 15(1)(f) of the Act.
[16] In submissions, however, Mr Stephen, counsel for the Ministry, sought leave to appeal both questions of law. I considered there was no prejudice to the respondent in this adjustment to the Ministry’s approach. Since the application to commence judicial review was filed in October 2017, EM has been on notice of the Ministry’s intention to challenge the Tribunal’s approach to the word “excluded”.
[17] Counsel for EM, Mr Fletcher, submitted leave to appeal should not be granted because:
(a)the questions involved in the appeal are not seriously arguable questions of law;
(b) are not of general or public importance; and
(c)the Tribunal applied its specialist expertise in making the determination, and there is no reason to believe than an appeal would be valuable in this case.
Assessment
[18] For the reasons that follow I am satisfied leave to appeal should be granted in respect of both questions of law.
Jurisdiction question
[19] The jurisdiction question is raised by s 187(2)(d)(i) of the Act which provides:
(2) However, no appeal lies under this Act in respect of—
…
(d)a refusal of the Minister or an immigration officer to grant a residence class visa to a person who has been invited to apply for a visa, if a ground for the refusal is that the Minister or officer determines that the person,—
(i) whether personally or through an agent, in expressing his or her interest in obtaining an invitation to apply for a visa, submitted false or misleading information or withheld relevant information that was potentially prejudicial to the person; or
…
[20] In EM’s case, Immigration New Zealand refused to grant a residence visa to EM as it determined EM had supplied false or misleading information. The Tribunal reached a different view of the facts. It found EM did not submit false or misleading information or withhold relevant information that was potentially prejudicial and this finding led the Tribunal to conclude it had jurisdiction.
[21] In assuming jurisdiction, it is seriously arguable the Tribunal erred in its interpretation and application of s 187(2)(d)(i). In that regard I agree with the submission of counsel for the Ministry: on the plain terms of subs (d) the jurisdictional bar was engaged. There is no dispute that a ground for refusing to grant a residence visa to EM was that Immigration New Zealand determined he had supplied false or misleading information or withheld relevant, prejudicial, information.
[22] The Ministry is concerned at the prospect of the Tribunal assuming jurisdiction on the basis of the Tribunal’s view of the facts as to whether a person supplied false or misleading information or withheld information. It is seriously arguable that such an approach conflicts with s 187(2)(d)(i). Under this provision, it is the Minister or an immigration officer who formulates the relevant ground.
[23] I acknowledge Ms Cottrell’s argument for EM that the Tribunal’s conclusion as to jurisdiction is to be preferred as it is consistent with the New Zealand Bill of Rights Act 1990. But, I consider that argument is appropriately made and assessed in the context of a substantive appeal.
[24] I am satisfied the proposed question of law concerning the scope of the Tribunal’s jurisdiction is a question of general and public importance warranting the grant of leave. Determination of the question whether the Tribunal misinterpreted s 187(2) and misdirected itself as to its jurisdiction has relevance beyond EM. The scope of the Tribunal’s jurisdiction to hear appeals under s 187(2)(d)(i) has potential relevance to any person who is declined a visa following submission of false or misleading information or who withholds relevant information which is prejudicial to that person.
[25] The second question of law raised by the proposed appeal is whether the Tribunal erred in its interpretation of “excluded”. The relevant section is s 15 of the Immigration Act, which provides:
15 Certain convicted or deported persons not eligible for visa or entry permission to enter or be in New Zealand
(1) No visa or entry permission may be granted, and no visa waiver may apply, to any person—
…
(c) who is subject to a period of prohibition on entry to New
Zealand under section 179 or 180; or
(d)who at any time (whether before or after the commencement of this section) has been removed or deported from New Zealand under any enactment; or
(e) who is excluded from New Zealand under any enactment; or
(f)who has, at any time, been removed, excluded, or deported from another country.
[26] Mr Stephen submitted an excluded person is “someone who has been prohibited from applying, or has been made ineligible to apply, for a visa to enter into a country” regardless of the duration of, or reason for, the ineligibility to apply for a visa. The Tribunal’s focus on the meaning of “excluded” under Australian law rather
than New Zealand law is problematic. The Ministry’s case is that the text, context and purpose of the provision support the Ministry’s interpretation and the Tribunal strayed from the orthodox approach to statutory interpretation.
[27] The Departmental briefing to the Select Committee explained the rationale for the provision as carrying forward the effect of the 1987 Act but expanded to include “any travel and entry bans under other statutes”.
[28] Mr Stephen also alluded to policy concerns at play and that the Tribunal’s overly nuanced approach will create difficulties at an operational level as it injects unnecessary discretion into the application of the legislation. As with Ms Cottrell’s submissions about the appeal of the Tribunal’s approach being in its consistency with the New Zealand Bill of Rights Act, this level of detailed analysis is appropriately advanced at the appeal stage.
[29] Ms Cottrell’s view was that the Tribunal’s focus on the meaning of “excluded” under Australian law was an attempt to characterise an immigration process which had taken place in a foreign jurisdiction under the law of that jurisdiction in order to determine whether EM had in fact been excluded from Australia. Ms Cottrell did not agree that the text, context and purpose of s 15(1)(f) of the Act supported the Ministry’s interpretation.
[30] Ms Cottrell relied on Hinton J’s observations in Machida v Chief Executive of Immigration New Zealand in which the applicant for leave challenged the Tribunal’s finding he had been excluded from Australia.11 Her Honour observed:
[67] The Tribunal noted in the background section of its decision that
Mr Machida incurred a three-year exclusion period from Australia. This is not a finding as such. This relies on the decision of Immigration New Zealand. The Tribunal’s role is not to engage with Immigration New Zealand’s findings but to assess the appeal on humanitarian grounds only. It was entitled, in fact not entitled to do otherwise, to rely on Immigration New Zealand’s findings that Mr Machida had been excluded from Australia. Both the Tribunal and this Court on an application for leave to appeal the Tribunal’s decision are inappropriate forums to canvass whether Mr Machida was indeed subject to an exclusion period from Australia. Any challenge to the department’s finding had to be brought by way of judicial review of the decision of Immigration
New Zealand, in respect of which as I have already held, judicial review proceedings were brought too late.
[31] Hinton J’s comments indirectly bear on the jurisdictional question of law raised by the Ministry’s application: whether there is a statutory jurisdictional bar to appeals against an immigration officer’s determination that a person has submitted misleading information. Upon that question I have already signalled my intent to allow the Ministry’s application for leave to appeal.
[32] I am satisfied the Ministry’s interpretation is seriously arguable. The Tribunal, and Immigration New Zealand, differ on the correct approach to “excluded”. The Tribunal’s analysis indicates the meaning of excluded requires to be authoritatively determined after assessment of the detailed arguments which the parties have advanced in support of their respective positions.
[33] The threshold for the grant of leave is reached. The question is of general and public importance. Its meaning has important ramifications for potential applicants for visas in New Zealand. As the Tribunal noted, the higher courts have not squarely addressed the meaning of “excluded” in relation to s 15(1)(f).12 The same point has been raised in Machida. An authoritative statement on the meaning of “excluded” in the context of s 15(1)(f) is overdue.
Proposed judicial review
[34] Judicial review challenges to matters that come within the Tribunal’s jurisdiction are restricted by s 249 of the Immigration Act which provides:
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.
…
(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.
(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.
[35] The Ministry submits the question posed for judicial review cannot be adequately dealt with in an appeal. That is because if leave to appeal is granted and the Tribunal is found to have lacked jurisdiction to hear the appeal, the interpretative question as to s 15(1)(f) will remain unresolved. The Ministry therefore also seeks leave to bring judicial review proceedings to obtain a declaration as to the correct interpretation of the statutory phrase “who has, at any time, been … excluded … from another country”.
[36] For reasons similar to those expressed above in relation to the second question of law on appeal, I consider it is appropriate to grant leave to bring judicial review proceedings.
Result
[37] The applications for leave to appeal and to commence judicial review proceedings are granted.
Karen Clark J
Solicitors:
Crown Law, Wellington for the Applicant
Cottrell Law Ltd, Wellington for First Respondent
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