D v Immigration and Protection Tribunal
[2015] NZHC 2458
•8 October 2015
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HER CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-001315 [2015] NZHC 2458
UNDER the Judicature Amendment Act 1908 IN THE MATTER
of an application for judicial review of a decision under s 194 of the Immigration Act 2009
BETWEEN
D Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND
First Respondent
THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Second Respondent
Hearing: 16 September 2015 Appearances:
J R S Lewis for Applicant
C Fleming for Second RespondentJudgment:
8 October 2015
JUDGMENT OF GILBERT J
This judgment is delivered by me on 8 October 2015 at 2.30 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
D v IMMIGRATION & PROTECTION TRIBUNAL NZ & ANOR [2015] NZHC 2458 [8 October 2015]
Introduction
[1] Ms D, a Fijian citizen, arrived in New Zealand on a visitor visa in 2009. She applied for the grant of refugee status in September 2013 but this was declined in January 2014. The Immigration and Protection Tribunal dismissed Ms D’s appeal and notified her of its decision on 12 May 2015.
[2] Ms D wishes to seek judicial review of the Tribunal’s decision. The present judicial review proceeding was accordingly filed in this Court on 9 June 2015. However, Ms D’s solicitors overlooked the requirement under s 249 of the Immigration Act 2009 to seek leave before filing the proceeding. In terms of s 249(4), an application for leave must be made not later than 28 days after the Tribunal’s decision is notified to the person bringing the proceeding. The 28 day period expired on 10 June 2015, before her solicitors discovered the error.
[3] The second respondent contends that this oversight is fatal because there is no jurisdiction to consider an application for leave made outside the 28 day period unless an application to extend the time limit has been made before expiry of the time limit. The Second Respondent therefore appears under protest to jurisdiction and applies for an order that the proceeding be dismissed pursuant to r 5.49 of the High Court Rules. Ms D cross applies for “out of time leave” to bring judicial proceedings. This application is brought in reliance on r 1.9 of the High Court Rules which enables the Court to amend defects or errors in pleadings or procedure.
Statutory requirement for leave
[4] Section 249 of the Act 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.
(2) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
(4) An application to the High Court for leave to bring review proceedings must be made –
(a) not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5) A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to –
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
(8) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[5] This provision is quite clear. Proceedings seeking judicial review of a Tribunal’s decision cannot be brought without leave and the application for leave must be made no later than 28 days after notification of the Tribunal’s decision. Unless an application for an extension of time is filed within the time limit, the Court has no power to extend the time limit or to consider an application for leave filed outside it. It follows that the Court cannot entertain Ms D’s application for “out of time leave” to bring judicial review proceedings.
[6] Mr Lewis seeks to overcome this difficulty by contending that this is a procedural error that can be corrected by treating one or more of the documents that
were filed in time as an application for leave to commence judicial review proceedings and by allowing the documents to be amended under r 1.9 of the High Court Rules or in the exercise of the inherent jurisdiction of the Court. Alternatively, Mr Lewis submits that the Court has jurisdiction under s 247 of the Act to grant an extension of time and there are special circumstances in this case that would justify it doing so.
Can the Court treat any of the documents filed on 9 June 2015 as an application for leave to commence judicial review proceedings?
[7] The only documents filed within time were the statement of claim, an affidavit from a solicitor in support of the application for judicial review and a notice of proceeding. Mr Lewis’ primary position is that the affidavit can be treated as the application for leave.
The affidavit
[8] The affidavit was sworn by Nicole Mitchell, a solicitor employed by Ms D’s solicitors, Patel Nand Legal. In her affidavit, Ms Mitchell briefly relates the circumstances of Ms D’s arrival in New Zealand and her subsequent unsuccessful application for refugee status. Ms Mitchell annexes a copy of the Tribunal’s decision dismissing Ms D’s appeal against this decision, an affidavit completed by Ms D on
27 January 2015 that was provided to the Tribunal, and a copy of the written submissions presented to the Tribunal on Ms D’s behalf. Ms Mitchell states in her affidavit that oral submissions were also made at the hearing and that a transcript of these has been requested.
[9] Mr Lewis submits that, given the Court’s broad powers of amendment under r 1.9, it may be possible to “reconstitute [the affidavit] as an application for review”. Rule 1.9 states:
1.9 Amendment of defects and errors
(1) The court may, before, at or after the trial of any proceeding, amend any defects and errors in the pleadings or procedure in the proceeding, whether or not there is anything in writing to amend, and whether or not the defect or error is that of the party (if any) applying to amend.
(2) The court may, at any stage of a proceeding, make, either on its own initiative or on the application of a party to the proceedings, any amendments to any pleading or the procedure in the proceeding that are necessary for determining the real controversy between the parties.
(3) All amendments under subclause (1) or (2) may be made with or without costs and on any terms the court thinks just.
…
[10] In my view, r 1.9 has no application and cannot cure the failure to apply for leave in time. The affidavit is a sworn statement of evidence; it is neither a “pleading” nor a “procedure”. The affidavit does not contain “defects” or “errors” requiring amendment and falls outside the scope of r 1.9.
[11] The affidavit does not address any of the requirements for leave set out in s 249(6) of the Act, and, even on the most generous view, it cannot be regarded as an application for leave to commence judicial review proceedings. Contrary to Mr Lewis’ submission, neither r 1.9 nor the Court’s inherent jurisdiction permits the Court to ‘reconstitute’ it as such.
The statement of claim
[12] Mr Lewis’ alternative submission is that the statement of claim could be amended so that it addresses the requirements of a leave application and then “severed in two and emerge from the one document as an application and statement of claim”. Implicit in this submission is an acknowledgement that the statement of claim filed on 9 June 2015 cannot be treated as an application for leave. That is plainly correct. Mr Lewis’ proposal involves grafting an application for leave onto the statement of claim by amendment and then severing the application from the statement of claim. At that point, the application for leave would “emerge”. The obvious problem with this course is that the application for leave so produced will only then come into being, well outside the statutory time limit.
Does s 247 of the Act apply?
[13] Because s 249(8) of the Act provides that nothing in that section limits any other provision of the Act that affects or restricts the ability to bring review
proceedings, Mr Lewis submits that s 247 can be invoked in this case. Section 247 states:
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 leave is required, under section 249(3), before proceedings may be commenced (in which case section
249(4) applies).
…
[14] Mr Lewis submits that although s 249(4) creates a strict mandatory time limit, this must be subject to the Court’s power to extend time under s 247(1)(a). He submits that any conflict between these provisions should be resolved in favour of Ms D, taking into account the scheme and purpose of the legislation interpreted in the light of the United Nations Convention Relating to the Status of Refugees 1951 to which New Zealand is a party.
[15] Mr Lewis relies particularly on para 1 of art 33:
Article 33. Prohibition of expulsion or return (“refoulement”)
1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
[16] Mr Lewis argues that, adopting a purposive interpretation of the Act in the context of New Zealand’s international law obligations, s 247(1)(a) can be read as operative even in circumstances where s 249(4) applies.
[17] I do not accept Mr Lewis’ interpretation. Section 247 is a provision of general application wherever judicial review is sought of a statutory power of decision arising out of or under the Act. It provides that the proceedings must be commenced not later than 28 days after the person affected is notified of the
decision. There are only two exceptions. The first, under s 247(1)(a), is where the High Court decides that further time should be allowed because of special circumstances. The second is where leave is required under s 249(3), as is the case here. In that case, the time for commencement of the proceedings is governed by s 249(4). This is clear from s 247(1)(b) itself. I cannot see any conflict between ss 247 and 249. Section 249 is the governing provision in the present case.
Conclusion
[18] Parliament’s clear intention is that, in circumstances such as the present, leave must be sought before judicial review proceedings are commenced. That did not happen because of oversight. The time limit is strict. The Court does not have power to extend it unless an application for an extension of time is applied for within the time limit. Despite his careful and ingenious submissions, Parliament’s intention cannot be defeated by the simple expedients proposed by Mr Lewis. Because leave was not applied for and no extension of the time limit was sought within the 28 day period, the Court has no jurisdiction to determine the present proceeding and it must be dismissed.
Result
[19] The application for out of time leave to apply for judicial review is dismissed.
[20] The Second Respondent’s application is granted. The proceeding is dismissed.
[21] The Second Respondent is entitled to costs of the proceeding calculated on a
2B basis.
M A Gilbert J
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