Dennis v Chief Executive of the Ministry of Business, Innovation and Employment

[2018] NZHC 2169

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-607

[2018] NZHC 2169

UNDER

the Judicial Review Procedure Act 2016, Part 30 of the High Court Rules, the Immigration Act 2009

IN THE MATTER

of a visa and deportation decision

BETWEEN

RICHARD DESMOND DENNIS

Applicant

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT

Respondent

Hearing:	15 August 2018
Appearances:	A G Speed and B E Colville for the Applicant J T Parry for the Respondent
Judgment:	23 August 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 23 August 2018 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Counsel/Solicitors:

Andrew Speed, Barrister, Auckland Briar Colville, Barrister, Auckland Meredith Connell, Auckland

DENNIS v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 2169 [23 August 2018]

Summary

[1]    Mr Des Dennis is from the United Kingdom and has lived in New Zealand since 2006. In 2017, he was convicted of serious family violence offences against two women and imprisoned. Immigration New Zealand (INZ) served him with a deportation order on 22 June 2017 and declined his application for a work visa on    7 September 2017. Under s  247  of  the  Immigration Act  2009  (the Act)  he  had 28 working days from the date of being notified of each decision to bring judicial review proceedings.   Mr Dennis took no steps to challenge these decisions until     10 April 2018. He says his lawyer failed to advise him he could. Now he applies to extend the period within which he may apply for judicial review.

[2]    There has been a very lengthy delay here and very weak reasons for it. Nevertheless, I would be tempted to grant the extension if strong grounds for judicial review were combined with a realistic prospect of effective relief. Upholding the right to judicial review, in order to ensure consideration of the best interests of two children who are innocent of wrongdoing, may constitute special circumstances by reason of which extension may be justified. But while there appears to be reasonably strong grounds for judicial review, there are very low prospects of effective substantive relief. And the Crown intends to consider the interests of the children through an alternative decision-making route that does not depend on judicial review anyway. These circumstances, combined with the very lengthy delay and very weak reasons for it, are not special enough to justify extending the deadline for judicial review. Accordingly, I decline the application for an extension.

What happened?

Mr Dennis

[3]    Mr Dennis is a 51-year-old citizen of the United Kingdom of Caribbean descent. He moved to New Zealand in 2006. He is sole director of three companies. Since April 2011, he has been living with his fiancée, Ms Nadine Sorrensen, a New Zealand citizen. Ms Sorrensen attests to them being in a loving and long-term committed relationship.

[4]    With another woman, he has a son now aged 13 in New Zealand. In October 2008, he was convicted of male assaults female and assault with intent to injure. In 2010 the Family Court made parenting orders by consent despite allegations of serious violence.1 Mr Dennis shared custody of his son until mid-2016. A third woman says, and he accepts, he also has a daughter aged three in New Zealand.

Immigration status and criminal charges

[5]    Since 2011, Mr Dennis has been in New Zealand on partnership work visas based on his relationship with Ms Sorrensen. Mr Owen Martell was his immigration lawyer from 2008 until recently. In June 2016, before Mr Dennis’s work visa expired, Mr Martell arranged for Mr Dennis to apply for a further work visa and a resident visa based  on  his  relationship  with  Ms  Sorrensen.  The  letter  to  INZ  emphasised  Mr Dennis’s son and his relationship with Ms Sorrensen. On 26 July 2016, INZ granted Mr Dennis a temporary six-month visa to maintain his status while the applications  were  being  considered.    Mr  Dennis’s   interim  visa  expired  on     15 December 2016.

[6]    The same day, 15 December 2016, Mr Dennis was arrested by police in relation to complaints by the mothers of his two children. He was charged with nine charges of male assaults female and one charge each of assault with a blunt instrument, injuring with intent to injure, threatening to kill or do grievous bodily harm, indecent assault and kidnapping. He was granted bail on 10 January 2017.

[7]In April 2017 Mr Martell had email exchanges with INZ:

(a)On 6 April 2017, Mr Martell asked INZ why Mr Dennis should be served with the deportation order given his visa application had not been decided, even though his interim visa had expired. He asked INZ to wait until the criminal proceedings were concluded but acknowledged if he were convicted “there is probably a reasonable basis for a deportation order”.

1      CK v RDD FC Auckland Fam-2009-004-002701, 11 August 2010.

(b)On 10 April 2017, INZ responded by email reiterating Mr Dennis was unlawfully in New Zealand, his resident visa application was suspended under s 169(3),2 and INZ was not prevented from serving a deportation order on him, though “[i]n practical terms his Court matters must run their course and we will await those”.

(c)On 18 April 2017, Mr Martell wrote to INZ to say he had advised    Mr Dennis he would likely be served a deportation order and asked for an assurance he would not be held in custody as a result of that. The next day INZ said he would not be taken into immigration custody pending the criminal prosecution.

[8]    On 2 June 2017, INZ advised Mr Dennis may not meet the good character requirements of a work visa due to his charges and previous convictions. On 12 June 2017, Mr Martell responded. Mr Dennis and Ms Sorrenson say they understood from Mr Martell no decision regarding immigration would be made until there was an outcome in the criminal proceedings.

[9]    On 22 June 2017 INZ served a deportation order on Mr Dennis saying he was liable for deportation under s 154 of the Act because he was unlawfully in New Zealand.3 INZ also said he had the opportunity to provide information about his personal circumstances and, if they were relevant to New Zealand’s international obligations, INZ would be required to consider cancelling the order. Mr Dennis says he did not realise the order’s significance, and Mr Martell did not advise him he would be served with it nor that there was a time period to challenge it.

[10]   In a letter of 24 July 2017 INZ explained its concerns about the charges against Mr Dennis and invited him to make submissions about whether a visa should nevertheless be granted in accordance with a special direction under s 17(1)(a). He made submissions.

2      Section 163(3) provides, while a person is liable for deportation, the processing of any application for a visa of a different class or type to that currently held must be suspended.

3      Mr Dennis says the deportation order was served on 22 June 2017. Ms Sorrenson says it was served on 17 June 2017. I accept it was served on 22 June 2017, as noted by Mr Dennis on the order. The immigration officer also dated his signature with that date.

[11]   On 7 September 2017, INZ declined Mr Dennis’s application for a work visa on partnership grounds, because he did not meet the character requirements. INZ also attached its decision refusing to grant him a special direction. The decision did not mention Mr Dennis’s children though it assessed him as having a tangible emotional tie to New Zealand through his partner and time spent in New Zealand. INZ did not consider that outweighed the concerns regarding his character, based on the charges against him. The letter also stated Mr Dennis had been unlawfully in New Zealand from 15 June 2016 (though it was 15 December 2016) and was liable for deportation. Mr Dennis says he had not seen the letter at the time and thought his application would be granted.

[12]   Mr Dennis pleaded guilty to a number of the charges on 11 September 2017 and was sentenced to 22 months’ imprisonment on 7 November 2017. The charges to which he pleaded guilty are not entirely clear to me. The High Court judgment of his sentence appeal indicates they were: male assaults female and injuring with intent to injure in 2006; assault with a weapon in 2009; indecent assault and male assaults female in 2011; male assaults female in 2012; male assaults female in 2013; and male assaults female and disorderly behaviour in 2014.4 The High Court declined the appeal on the basis the domestic violence was serious enough to justify imprisonment. The Crown has confirmed in further submissions Mr Dennis’s release date will be 3 October 2018.

Challenge to immigration decisions

[13]   On 15 March 2017, Mr Dennis’s new lawyer, Mr Mark Ryan, provided further information for INZ to consider whether to cancel the deportation order under s 177 of the Act. He drew attention to Mr Dennis’s children. On 7 May 2018, INZ responded that Mr Dennis was unlawfully in New Zealand from the expiry of his interim visa on 15 December 2017 so his residence application was suspended under s 169(3) of the Act. It noted the matters raised about Mr Dennis’s personal circumstances would be added to his file to be considered nearer the time of his release. It also noted, as a result of his sentence, Mr Dennis was subject to s 15(1)(b)

4      Dennis v Police [2018] NZHC 886.

of the Act, which provides no visa may be granted to anyone who has been sentenced to imprisonment of 12 months or more in the preceding 10 years.

[14]   On 10 April 2018, Mr Dennis applied for judicial review of the decisions to issue the deportation order and decline the work visa. On 16 May 2018, the Crown pointed out the application was outside the statutory deadline. On 28 May 2018 Mr Dennis applied for an extension of time.

[15]   During the hearing, Mr Parry sought to rely on a Provision of Advice to Courts document in relation to Mr Dennis’s sentencing. Mr Speed objected on the basis he had not had had an opportunity to take instructions or respond to it. I declined to hear of it.

[16]   At the end of the hearing on 15 August 2018 Mr Speed, for Mr Dennis, made an oral application for interim relief preventing Mr Dennis’s deportation before my decision is issued, so as not to render his application for an extension nugatory. I granted leave to Mr Parry to seek instructions and file a memorandum in response within three working days. The memorandum opposes interim relief on the grounds it would interfere with a decision to be taken before Mr Dennis’s release, about whether to cancel the deportation order under s 177, and the threshold for interim relief requires adverse effects are more than the usual statutory effects of deportation.5

Law of extending the deadline for judicial review of immigration decisions

[17]Section 247(1) of the Act states, relevantly:

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

…

5      Citing Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA 248, [2016] NZAR 836; Fang v Ministry of Business, Innovation and Employment [2017] NZCA 190, [2017] 3 NZLR 316.

[18]   In RM v Immigration and Protection Tribunal I said, in relation to the time limit on judicial review in s 249 of the Act:6

The High Court has recognised that s 249 reflects a deliberate intention by Parliament to restrict the availability of judicial review, as indicated by its title. The Court of Appeal has, briefly, expressed a similar view. And that must be correct. And there are good reasons why, in an immigration context, judicial review proceedings can be a problem for immigration authorities. Judicial review can be a means by which even those with hopeless claims can try to slow down decision-making in order to delay the inevitable order that deports them. And there is little incentive on the deportable not to do that.

[19]   In Rajan v Minister of Immigration the Court of Appeal observed “the term ‘special circumstances’ is a commonly used phrase [and] … requires circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”, which must be assessed in the context of the legislation involved and:7

The s 146A [predecessor to s 247] time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is too long. The Rajans’ application was filed one month late and thus would require an extension of a third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay.

[20]   The Court of Appeal in Rajan also examined the reasons for delay and a brief examination of the merits of the review application. It rejected the Crown submission that the merits of the review proceedings are not relevant except where the case is clearly hopeless, while pointing out judicial review proceedings should not be argued fully where a question of leave arises. It stated:8

Brief examination of the merits may in some cases be called for. Even with a strong excuse for the delay, however, if the review proceedings were hopeless, this would suggest that the s 146A discretion should not be exercised.

…

Examination of the merits could tip the balance in a marginal case. For example, where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. We doubt, however, that even very strong merits could ever justify an extension if (as here) there is no proper excuse for the delay in filing. In any event, on

6      RM v Immigration and Protection Tribunal [2016] NZHC 735 at [41] (footnotes omitted). And see [48]–[49] regarding the effect of the Bill of Rights on interpretation of limits on judicial review, including (at [49]) time limits.

7      Rajan v Minister of Immigration [2004] NZAR 15 (CA) at [24].

8      At [29]–[30].

close examination, the merits of the Rajans’ judicial review application are weak …

[21]   The following cases are relevant to granting of extensions and suggest any excuse for delay will be a primary consideration, though the merits of the judicial review will also be relevant:

(a)In Fernandes v Immigration and Protection Tribunal the Court of Appeal held failure by a legal adviser, in the circumstances of that case, was not a good reason to excuse delay.9

(b)In E v Ministry of Business, Innovation and Employment, Hinton J granted an extension after a delay of 11 to 15 days because the applicant first filed an appeal in the Tribunal, in accordance with mistaken advice from the Refugee and Protection Officer, and the merits were strong.10

(c)In AR v Refugee and Protection Officer, Edwards J considered an application for extension 14 days out of time, where an application had been filed within time but in the wrong form, was at the margin.11 But she considered the application for judicial review could not succeed on its merits so dismissed the application for extension.12

(d)In Li v Ministry of Business, Innovation and Employment, I granted an extension where the applicants were out of time because they pursued an appeal right that turned out not to be available to them.13

(e)In Kaur v Minister of Immigration Muir J granted an extension, considering an application 17 days out of time was minimal because an application had been filed within time but it was in the wrong form.14

9      Fernandes v Immigration v Protection Tribunal [2014] NZCA 52, [2014] NZAR 544.

10     E v Ministry of Business, Innovation and Employment [2016] NZHC 2599.

11     AR v Refugee and Protection Officer [2016] NZHC 2916 at [37].

12 At [52].

13     Li v Ministry of Business, Innovation and Employment [2017] NZHC 2977, [2018] NZAR 265 at [28].

14     Kaur v Minister of Immigration [2018] NZHC 138.

(f)In Singh v Chief Executive, Ministry of Business, Innovation and Employment, I granted a lengthy extension on the basis of the special circumstance that the Crown had provided an assurance no steps would be taken to deport the applicant pending the outcome of the review and then objected to the Court’s jurisdiction on the basis of s 247.15

[22]   The Court of Appeal’s statements in Rajan, that the discretion to extend time “should not be exercised too readily and very rarely if the delay is too long”, undoubtedly also applies to s 247(1) as the successor to the provision the Court was interpreting. So does its observation that, even with a strong excuse for delay, a hopeless case on the merits would suggest the discretion to grant an extension should not be granted.

[23]   I am not so sure about the Court of Appeal’s obiter doubt that even very strong merits could ever justify an extension if there is no proper excuse for delay. I also agree with Hinton J in E that the Court of Appeal in Fernandes “were not laying down a rule that counsel error would never excuse delay”.16 Each case will turn on its own circumstances. Hinton J considered counsel error went some way as an explanation, and in those circumstances it was unreasonable for the applicant to be penalised for counsel’s mistake.17

[24]   As Mr Parry for the Crown accepted, where there is an utterly compelling case of judicial review on the merits justifying substantive relief, a court would be slow to deny an applicant their right to judicial review, even if there had been a long delay due to ignorance or counsel error. The right to apply for judicial review in accordance with law is guaranteed by s 27(2) of the New Zealand Bill of Rights Act 1990 (Bill of Rights). In interpreting the meaning of “special circumstances”, the courts are required to prefer a meaning consistent with the rights and freedoms in the Bill of Rights. In deciding on applications for extensions, the courts are required to comply with the Bill of Rights.

15     Singh v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 673, [2018] NZAR 463.

16     E v Ministry of Business, Innovation and Employment, above n 10 at [30].

17 At [33].

Should the deadline be extended here?

Submissions

[25]   Mr Speed, for Mr Dennis, accepts the delay was long and the general principle is failure by a legal adviser to file an appeal is not a good reason to excuse delay. But he submits the unique distinguishing feature of this case is Mr Dennis was either subject to bail conditions or imprisoned during the period of delay. He submits the risk of a miscarriage of justice in this case was sufficient to constitute “special circumstances”. He submits INZ failed to take into account Mr Dennis’s children in New Zealand, is a company director and shareholder and the effect on his fiancée. In particular, he submits the failure to take into account the children in refusing to grant a special direction is a breach of New Zealand’s obligations under arts 9, 12 and 18 of the United Nations Convention on the Rights of the Child (UNCROC). He also submits Mr Dennis should have been granted a limited visa under s 83(2).

[26]   Mr Parry, for the Crown, submitted there has been an exceptionally lengthy delay which should not be excused on the basis of counsel error. He submitted that means the merits do not need to be considered which, in any event, are not strong enough to justify an extension of time. He submits judicial review proceedings are not necessary because a better result could potentially be achieved by Mr Dennis applying to cancel the deportation order under s 177.

Decision

[27]   Here, the delay was very lengthy on any account: 265 and 188 days after the deadlines in respect of the deportation order and visa refusal respectively.

[28]   The reasons for delay are very weak. There was no attempt to challenge either decision. Mr Dennis says he did not realise the significance of the deportation order and Mr Martell did not advise him of a time limit to challenge it. But there is no evidence from Mr Martell who, by all accounts, is an experienced immigration lawyer. And his emails in April 2017 clearly demonstrate he was aware of the significance of such an order, as well as the likelihood there would be a reasonable basis for one if Mr Dennis was convicted, as he was. Mr Dennis says he was not advised by Mr Martell

he would be served with a deportation order or that there was a time period to challenge it.18 But the first of those assertions is contradicted by Mr Martell’s contemporaneous email to INZ on 18 April 2017 that he had so advised Mr Dennis.

[29]   Although Mr Speed submits Mr Dennis was on bail or in prison, he was on bail for most of 2017 and only imprisoned from December 2017. He was accordingly on bail for the entirety of both 28-day periods following service of the deportation order on 22 June 2017 and the refusal of the work visa on 7 September 2017. I do not accept this significantly hampered his ability to correspond with counsel about filing in time.

[30]   On its face, there looks to be reasonably strong merit to the argument INZ did not consider the interests of either of Mr Dennis’s children. They were not mentioned in either decision letter even though INZ had received submissions about them. Yet UNCROC and New Zealand law requires their interests be taken into account. Mr Parry conceded it is arguable that may constitute an error of law under judicial review.

[31]   However, Mr Parry is correct in submitting Mr Dennis cannot be granted a visa due to his convictions and sentence of imprisonment, under s 15(1)(b) of the Act. So even if a court were to quash the visa refusal decision and require it be reconsidered after judicial review, that decision would remain the same. For that reason, a court would be very unlikely to grant such relief. Whether or not Mr Dennis could have been granted a limited visa under s 83(2) when his charges were still pending, he is not now eligible for one. In assessing the merits of a potential application for judicial review the courts will have regard to the realistic potential for effective relief, not just whether there was reviewable error. I consider a court would be very unlikely to grant effective substantive relief on judicial review by Mr Dennis. And without a visa, even if he were successful in overturning the deportation order, he would still be in New Zealand unlawfully and subject to deportation at any time.

[32]   Mr Dennis’s only hope would be that a special direction, which lies within INZ’s absolute discretion under s 17(3), would have a different result than the special direction that was made in September 2017. The differences would be that INZ would consider the best interests of Mr Dennis’s children but would also know Mr Dennis

18     Affidavit of Mr Des Dennis of 31 July 2018 at [48] and [51].

had pleaded guilty to and been convicted and imprisoned for serious criminal offences of family violence. I cannot know the outcome of such a decision. But a special direction review under s 17(3) does not result from judicial review. It is entirely discretionary and could be considered whether or not there is a judicial review.

[33]   There is another alternative available to Mr Dennis, as Mr Parry identifies on behalf of the Crown. Under s 177, if Mr Dennis provides personal information relevant to New Zealand’s international obligations to an immigration officer, the officer will be required to consider cancelling the deportation order. This could include the interests of Mr Dennis’s children. The Crown’s further submissions indicate the Crown intends to make such a decision prior to Mr Dennis’s release.

[34]   There has been a very lengthy delay here and very weak reasons for it. Nevertheless, I would be tempted to grant the extension if strong grounds for judicial review were combined with a realistic prospect of effective relief. Upholding the right to judicial review, in order to ensure consideration of the best interests of two children who are innocent of wrongdoing, may constitute special circumstances by reason of which extension may be justified. But while there appears to be reasonably strong grounds for judicial review, there are very low prospects of effective substantive relief. And the Crown intends to consider the interests of the children through an alternative decision-making route that does not depend on judicial review anyway. These circumstances, combined with the very lengthy delay and very weak reasons for it, are not special enough to justify extending the deadline for judicial review.

Results

[35]   I decline Mr Dennis’s application for an extension of his deadline to apply for judicial review.

Palmer J