Devi v Immigration and Protection Tribunal
[2015] NZHC 2452
•7 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2015-404-1152 [2015] NZHC 2452
BETWEEN SANITA PRATIKA DEVI
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
MINISTER OF IMMIGRATION Second Respondent
Hearing: 23 September 2015 Counsel:
F C Deliu for Applicant
No appearance by or on behalf of First Respondent
D J Collins for Second RespondentJudgment:
7 October 2015
JUDGMENT OF HEATH J
This judgment was delivered by me on 7 October 2015 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
Counsel:F C Deliu, Auckland
DEVI v IMMIGRATION AND PROTECTION TRIBUNAL [2015] NZHC 2452 [7 October 2015]
The issue
[1] Ms Devi applies for leave to appeal against a decision of the Immigration and Protection Tribunal (the Tribunal), and seeks judicial review of the same decision. A preliminary point has arisen. The question is whether the applications have been filed in time. If the answer were adverse to Ms Devi, the applications must be dismissed.
Background
[2] Ms Devi is a citizen of Fiji. On 17 July 2010, she was granted a working visa to enter New Zealand for two years. An application made in June 2012 for a new visa was declined. Ms Devi’s visa expired on 17 September 2012. A decision was made to deport her to Fiji.
[3] Ms Devi filed a non-resident humanitarian appeal against deportation on 16
October 2012.1 In a decision given on 26 February 2014, the Tribunal dismissed the appeal.2 The decision was sent in a courier pack to Ms Devi’s immigration agent, Ms Moncur, and received by her on 27 February 2014.
[4] At the time the Tribunal’s decision was made:
(a) An application for leave to appeal had to be brought not later than 28 days after the date on which the decision of the Tribunal was “notified” to the party appealing, or within such further time as this Court might allow, on an application made before the expiry of the 28 day period.3
(b) An application for judicial review had to be commenced not later than
28 days after the intended applicant was “notified” of the decision,
1 Given the nature of the issue with which I am dealing, it is unnecessary to explain the grounds on which the appeal was brought.
2 Re Devi [2014] NZIPT 501140 (A M Clayton).
3 Immigration Act 2009, s 245(1).
unless this Court decided, “by reason of special circumstances”, that further time should be allowed.4
[5] If applications for both leave to appeal and judicial review were to be made, the applicant was required to lodge both applications together, and this Court was enjoined to “endeavour to hear both matters together”.5
[6] While Ms Devi has applied for both remedies, she did not file her applications until 26 May 2015, some 15 months after the Tribunal’s decision was given. Ms Devi has remained in New Zealand pending determination of this proceeding.
Applicable law
[7] Rules governing the times within which applications for leave to appeal from, and judicial review of, decisions of the Tribunal could be brought were changed by various provisions in the Immigration Amendment Act 2015 (the 2015 Amendment), which came into force with effect from 7 May 2015. Mr Deliu, for Ms Devi, argues that the post 7 May 2015 provisions apply, on the basis that the earlier provisions were repealed before the applications were filed. Mr Collins, for the Minister of Immigration (the Minister) contends that the pre 7 May 2015 rules apply, being those in force at the time the Tribunal’s decision was given. Which view is correct?
[8] My starting point is cl 17 of Schedule 2 to the Act. That provision regulates the way in which decisions of the Tribunal are to be made and notified to the parties. Clause 17 was not changed by the 2015 Amendment. Clause 17(5) and (6) provides:
17 Decisions of Tribunal
…
(5) The Tribunal must notify, and provide a copy of its decision to, the appellant or affected person and the Minister, the refugee and protection officer, or the chief executive (as the case may be).
4 Ibid, s 247(1).
5 Ibid, s 247(2).
(6) A decision of the Tribunal is final once notified to the appellant or affected person.
(Emphasis added)
[9] As cl 17(5) makes clear, the Tribunal’s obligation (in the context of this case) was to “notify” to Ms Devi and the Minister of its decision, by providing a copy to each. The concept of “notification”, for the purposes of the Act was, at the time the decision was given, set out in s 386 of the pre-7 May 2015 provisions. Relevantly, s 386(3) and (4) provided:
386 Giving notice, service of notice, etc
…
(3) If under this Act any document is to be served on or supplied to any other person, or the person is to be notified of any decision, matter, or other thing, the document must be served on or supplied to the person, or the notification must be given in writing,–
(a) by personal service; or
(b) by registered post addressed to the person at the person’s
New Zealand address; or
(c) by service on the person’s lawyer or agent in accordance
with subsection (4); or
(d) at the address supplied under section 57(2), if it relates to an application for a visa.
(4) If a lawyer or agent represents that he or she is authorised to accept service of any notice or document on behalf of any person, it is sufficient service to deliver the notice or document to the lawyer or agent if he or she signs a memorandum stating that he or she accepts service of the notice or document on behalf of the person.
….
[10] Read together, s 386(3)(c) and (4) confirm that a person in the position of Ms Devi will be validly “notified” if the decision were sent by registered post to a lawyer or agent representing her, who is authorised to (and has signed a memorandum confirming that he or she will) accept service. The term “registered post” is defined by s 4 of the Act to include “any … courier service where delivery to the address is recorded”. So, no issue arises as to mode of service.
[11] Although the courier pack containing the decision was sent to Ms Moncur (Ms Devi’s licensed immigration agent) and there is no dispute that she received it, Mr Deliu submits that service was not effected in accordance with s 386. His contention is that Ms Devi had not authorised either a lawyer or an immigration agent to receive it on her behalf, in compliance with s 386(4) of the Act.6
[12] As a result, Mr Deliu contends that when the 2015 Amendment came into force, time to apply for leave to appeal and judicial review had not started to run, with the consequence that the pre-7 May 2015 provisions were spent. His position was that the repealed provisions ceased to have effect and the time within which the
applications were to be brought began to run under the 2015 Amendment.7
[13] Sections 17(1)(b) and 18 of the Interpretation Act 1999 deal with the effect of repeal of a statutory provision8 on rights that have accrued before repeal became effective. They provide:
17 Effect of repeal generally
(1) The repeal of an enactment does not affect—
…
(b) an existing right, interest, title, immunity, or duty:
…
18 Effect of repeal on enforcement of existing rights
(1) The repeal of an enactment does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty.
(2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of completing the matter or thing or bringing or completing the proceedings that relate to the existing right, interest, title, immunity, or duty.
[14] The combined effect of ss 17(1)(b) and 18 is to preserve any “existing right”
that has accrued prior to the repeal of a statute. In general terms, an “existing right”
6 Set out at para [9] above.
7 Immigration Act 2009, ss 245 and 247 in their current form.
8 Although ss 17(1) and 18 both refer to repeal of “an enactment”, that term is defined in s 29 of the Interpretation Act as meaning “the whole or a portion of an Act or regulations”.
is one that a person is entitled to prosecute at the time of repeal, in contrast with one where a step had to be taken to determine whether a right should or should not be granted.9 An ability to challenge a decision will usually fall outside the scope of s 17(1)(b) and s 18 if there were nothing more than the possibility of a benefit flowing to an applicant from the exercise of a discretion.10
[15] An illustration of the distinction can be found in a decision of the Privy Council, in Director of Public Works v Ho Po Sang.11 The question in that case was whether a lessee of an expired Crown lease had an accrued right to seek a “re- building certificate” after repeal of ss 3A–3E of the Landlord and Tenant Ordinance, (Hong Kong). Delivering the advice of the Privy Council, Lord Morris of Borth-y- Gest said:12
Was the lessee, therefore, possessed on 9 April of a “right” (or privilege) within the meaning of the Interpretation Ordinance? In their Lordships' view, the entitlement of the lessee in the period prior to 9 April to have the petitions and cross-petition considered was not such a “right”. On 9 April the lessee was quite unable to know whether or not he would be given a re- building certificate, and, until the petitions and cross-petition were taken into consideration by the Governor in Council, no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a re-building certificate, even though he may have had grounds for optimism as to his prospects. It is to be observed that, under s 10(e), a repeal is not to affect any investigation, legal proceeding or remedy “in respect of any such right”. The right referred to is the right mentioned in s 10(c), ie, a right acquired or accrued under a repealed enactment. This part of the provisions in para (e) of s 10 does not and cannot operate unless there is a right as contemplated in para (c). It may be, therefore, that, under some repealed enactment, a right has been given but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. On a repeal, the former is preserved by the Interpretation Act. The latter is not. Their Lordships agree with the observation of Blair-Kerr J [in the Court below] that:
It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at
9 Generally, see Burrows and Carter, Statute Law in New Zealand (5th ed LexisNexis Wellington
2015) at 651–657.
10 Official Assignee v NZI Life Superannuation Nominees Ltd [1995] 1 NZLR 684 (HC) at 689, applying Free Lanka Insurance Co Ltd v Runasinghe [1964] AC 541(PC) at 552–553.
11 Director of Public Works v Ho Po Sang [1961] 2 All ER 721 (PC).
12 Ibid, at 731.
the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion.
[16] In Foodstuffs (Auckland) Ltd v Commerce Commission a majority of the Court of Appeal (Gault, Keith and Blanchard JJ) applied ss 17 and 18 to enable Foodstuffs to continue with a challenge to a decision of the Commerce Commission refusing clearance for a proposed acquisition of another chain of supermarkets, but decided that the test that had come into force after the application was made would
apply.13 In essence, the right to challenge the decision had accrued but the basis on
which the challenge would be considered had changed.
[17] The question whether the ability to challenge a decision is or is not a “existing right” preserved by ss 17(1)(b) and 18 is determined by reference to the context in which the alleged “right” is said to exist. So, in Scott v Scott,14 Stevens J took the view that an existing right to seek a partition order under s 140 of the Property Law Act 1952 survived repeal by the Property Law Act 2007, as a result of the application of s 18 of the Interpretation Act.15 But, in Body Corporate 172108 v Manchester Securities Ltd,16 Katz J, obiter, took the view that the Body Corporate did not have a relevant “right” to apply to vary a remediation scheme approved under
s 48 of the Unit Titles Act 1972, following repeal of that Act by the Unit Titles Act
2010.17
[18] Applications for leave to appeal and judicial review may be grounded on alleged errors of law; indeed, that is the only basis on which an application for leave to appeal could succeed.18 If the pre-7 May 2015 provisions did not apply, a
fundamental right to challenge a decision on the basis of a legal error would be lost.
13 Foodstuffs (Auckland) Ltd v Commerce Commission [2002] 1 NZLR 353 (CA) at para [42].
Although the Court of Appeal’s decision was reversed on appeal to the Privy Council (Foodstuffs (Auckland) Ltd v Commerce Commission [2004] 1 NZLR 145 (PC)), the ground on which the appeal was allowed had not been argued in the Court of Appeal and nothing said by Their Lordships cast doubt on the reasoning of the Court of Appeal on this point.
14 Scott v Scott HC Tauranga CIV-2004-470-94, 5 August 2009 at paras [21]–[25] (Stevens J).
15 Ibid, at paras [35]–[37].
16 Body Corporate 172108 v Manchester Securities Ltd (2013) 14 NZCPR 745 (HC).
17 Ibid, at paras [29]–[35].
18 Immigration Act 2009, ss 245 and 247 (in their pre-7 May 2015 form)
In my view, the ability to challenge a decision for legal error is a right that ss 17(1)(b) and 18 is designed to preserve and protect.
[19] The correctness of that conclusion may be tested by considering an alternative hypothesis; namely, that the pre-7 May 2015 provisions had been replaced by provisions that expressly completely removed any right to seek leave to appeal or to bring judicial review proceedings for error of law. In that situation, a person in the position of Ms Devi who had been notified of a decision of the Tribunal on (say) 1 May 2015 would lose the right to appeal or to seek judicial review, even though those rights were extant at the time the decision was given.
[20] Accordingly, I hold that the right to seek leave to appeal and judicial review of the Tribunal’s decision fell within the ambit of the pre-7 May 2015 provisions. As a result, Ms Devi’s applications will have been made out of time unless she was not properly notified of the Tribunal’s decision.
Was Ms Devi properly notified of the Tribunal’s decision?
[21] An appeal on humanitarian grounds to the Tribunal against deportation is brought by filing a prescribed form of notice of appeal.19 Ms Devi signed a declaration at the conclusion of the form in these terms:
Knowing that it is an offence under the Immigration Act 2009 to make a declaration that is false, I declare that the answers in this form are true and correct. I authorise my representative to act on my behalf in all matters with the Tribunal and receive all correspondence and documents relating to my appeal.
(Emphasis added)
[22] Earlier in the prescribed form an appellant is asked: “Where do you want us to send all documents and official notices relating to this appeal?” The optional answers are to (a) a representative identified in the notice of appeal, (b) the appellant at the residential address set out in the notice, or (c) the appellant at another specified physical address. Ms Devi ticked the box which identified her “representative” as
the person to whom documents and official notices should be sent.
19 Ibid, s 225 (in its pre-7 May 2015 form).
[23] In Part 5 of the notice of appeal, information about the appellant’s representative is set out. Ms Moncur was named as Ms Devi’s representative. She is a licensed immigration advisor, who falls within the class of persons who may act as a representative. In signing a declaration (under the heading “Representative’s Information”, in Part 5 of the notice of appeal) Ms Moncur confirmed that she accepted authority to act for the appellant and would accept service of “notice, communications, and other documents on behalf of” her.
[24] The Tribunal’s decision of 26 February 2014 was sent to Ms Moncur by courier, and received by her on 27 February 2015. As receipt of a courier pack containing the decision was appropriate “notice”,20 I find that Ms Devi was served on 27 February 2015 and that the time to seek leave to appeal or judicial review began to run at that time.
[25] Mr Deliu submitted that, for the purposes of s 386(4) of the Act, Ms Moncur had not signed a memorandum stating that she accepted service of the notice or document on behalf of Ms Devi. I do not accept that submission. In my view, Ms Moncur’s declaration that she would do so, in the notice of appeal, is a sufficient memorandum to comply with s 386(4).
[26] To support his contrary proposition, Mr Delieu referred me to Cao v Immigration and Protection Tribunal.21 In that case, Kós J considered a similar issue in respect of a person who entered New Zealand on a student visa in 2009 but subsequently claimed refugee status in May 2012. Mr Cao sought leave to appeal to this Court against the Tribunal’s decision to uphold a refusal to recognise Mr Cao as a refugee.
[27] The Tribunal had given its decision in October 2013 but Mr Cao did not make the appropriate application until 29 November 2013. That was more than 28 days from the time at which the Tribunal’s decision was given. Kós J said:
[8] Section 386(3) and cl 17(5) of sch 2 required the Tribunal to notify the appellant of the decision in one of three relevant ways defined in s 386(3):
20 Immigration Act 2009, s 386(3)(b) and (4), read in conjunction with the definition of “registered
post” in s 4 of that Act. Section 386(3) and (4) is set out at para [9] above.
21 Cao v Immigration and Protection Tribunal [2014] NZHC 259.
personal service, registered post, or service on a lawyer or agent (who then signs a memorandum accepting service). There is no evidence any of these were done. Mr Cao simply received a copy of the decision from his lawyer, who had not signed such a memorandum, on 11 November 2013. It follows that he could have appealed within time on 29 November 2013, when he filed the present application.
(Emphasis added)
[28] A different conclusion was reached by Faire J, in X v The Immigration and Protection Tribunal.22 Distinguishing Kós J’s judgment in Cao on the facts, Faire J said:
[7] In this case, the applicant’s lawyer completed the “Representative Information” section on the applicant’s notice of appeal to the Immigration and Protection Tribunal. He ticked the box next to the statement “I will accept service of notice, communications, and other documents on behalf of the appellant” and signed the form on 10 December 2012. Ms Anne Pereira, case manager for the Immigration and Protection Tribunal, deposes that when the decision of the Tribunal was completed on 16 September 2013, it was given to her for delivery to the parties. She prepared to send the decision by courier, but telephoned Mr Mansouri-Rad and asked whether he wished to pick it up in person instead. Mr Mansouri-Rad came in that day and picked up the decision.
…
[10] In my view s 386(4) applies in this case. The appellant’s lawyer’s signature on the “representative information” section on the notice of appeal to the Immigration Protection Tribunal is a memorandum for the purposes of the subsection and in respect of the Tribunal’s decision. It provides that the lawyer will accept service on behalf of the appellant ….
[29] Mr Deliu submitted that the approach taken by Kós J should be preferred. However, as Faire J observed, Kós J proceeded on the premise that Mr Cao had not been served through a lawyer who had signed a memorandum of a type falling within s 386(4). I agree with Faire J, in X, that the declaration made by Ms Moncur under the heading “Representative Information” in the notice of appeal distinguishes this case from Cao.23
[30] Accordingly, the present applications are well out of time. As Mr Deliu responsibly acknowledged, there are no grounds to support an application to extend
time, even if jurisdiction to make such an order existed.
22 X v The Immigration and Protection Tribunal [2014] NZHC 1647.
23 See para [23] above as to Ms Moncur’s position.
Result
[31] For those reasons, the applications are dismissed.
[32] Counsel asked that costs be reserved. If costs are sought, a memorandum shall be filed and served on or before 16 October 2015, with any reply being filed and served on or before 23 October 2015.
[33] I will deal with costs on the papers, unless a telephone conference is requested by either counsel. If either counsel requests a telephone conference, the Registrar is directed to convene one before me at 9.00am on a date to be fixed by
him or her. No more than 30 minutes shall be allocated for the conference.
P R Heath J
Delivered at 4.00pm on 7 October 2015
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