Dhindsa v Secretary of Labour
[2012] NZCA 282
•27 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA340/2012 [2012] NZCA 282 |
| BETWEEN GURPREET SINGH DHINDSA |
| AND THE SECRETARY OF LABOUR |
| AND THE MINISTER OF IMMIGRATION |
| Hearing: 12 June 2012 |
| Court: O'Regan P, Arnold and Ellen France JJ |
| Counsel: F Deliu for Appellant |
| Judgment: 12 June 2012 |
| Reasons: 27 June 2012 |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThere is no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Arnold J)
Introduction
The appellant, Mr Dhindsa, was to be deported to India on a flight leaving New Zealand early on the afternoon of Tuesday 12 June 2012. On the morning of 12 June he filed an appeal against an oral decision of Gendall J given earlier that day.[1] In that decision, Gendall J declined Mr Dhindsa’s application for an interim order under s 8 of the Judicature Amendment Act 1972 preventing his deportation until his judicial review proceedings challenging several decisions leading to the deportation could be heard.
[1] Dhindsa v Secretary of Labour HC Auckland CIV-2012-404-3202, 12 June 2012.
Mr Dhindsa sought an urgent hearing of his appeal. We convened as a matter of urgency and, after hearing and considering brief arguments, determined that the appeal should be dismissed. We issued a results judgment to that effect.[2] We now give reasons for that judgment.
[2] Dhindsa v Secretary of Labour [2012] NZCA 244.
We should say at the outset that, given the urgency, we did not have a Case on Appeal or even Gendall J’s judgment, which was still being typed. Accordingly, we made our decision on the basis of the facts as they were put to us by counsel. We now have Gendall J’s judgment and the affidavit material put before the Judge. They are consistent with our understanding of the factual background on the basis of counsel’s submissions.
Background
Mr Dhindsa was originally admitted to New Zealand in May 2007 under a student permit. After the expiry of that permit, he was permitted to stay in New Zealand for a period under two further permits. However, he has been in New Zealand unlawfully since 20 April 2010. In March 2012 he married a New Zealand citizen, who is expecting their first child in July 2012.
Mr Dhindsa was served with deportation papers on 31 May 2012. He underwent a humanitarian review interview with an immigration officer. The immigration officer then interviewed Mr Dhindsa’s wife and, on the basis of what she said, re-interviewed Mr Dhindsa. In the course of being re-interviewed, Mr Dhindsa acknowledged that he had lied to the immigration officer during the initial interview.
The immigration officer decided that the deportation order should not be cancelled. He was aware that Mr Dhindsa had just married and that he and his wife were expecting a child in July 2012, but he considered that the United Nations Convention on the Rights of the Child (UNCROC) was not engaged as the child was not yet born. He did, however, have regard to the right to family life as protected under the International Covenant on Civil and Political Rights (ICCPR).[3]
[3] International Covenant on Civil and Political Rights, arts 17 and 23.
Another immigration officer then reviewed and confirmed that decision. Following that, Mr Dhindsa asked the Minister of Immigration to quash the deportation order. He provided full submissions to the Minister. Having received advice from her officials, including advice as to New Zealand’s international obligations in respect of the right to family life, the Minister refused to quash the order. She did, however, cancel the requirement that Mr Dhindsa wait five years before applying for permission to return to New Zealand. Accordingly, if deported, he would be free to apply to return to New Zealand immediately.
Mr Dhindsa then issued judicial review proceedings challenging the decisions of the immigration officers and the Minister.
Basis for appeal
Mr Deliu argued that the immigration officers and the Minister had either made a mistake of fact in proceeding on the basis that Mr Dhindsa did not have a child or made a mistake of law in taking the view that UNCROC did not apply to an unborn child. Mr Deliu mentioned several cases as supporting the latter proposition and has, since the hearing, provided us with the references to these. They are Re Baby P (An unborn child),[4] Removal Appeal no. 46958[5] and Meleson v Minister of Immigration.[6] Mr Deliu submitted that Gendall J was wrong to find that these arguments had no reasonable prospect of success in the substantive review proceedings, and also submitted that the Judge had not given adequate reasons for his decision.
Evaluation
[4] Re Baby P (An unborn child) [1995] NZFLR 577 (FC).
[5] Removal Appeal no. 46958 RRA Wellington, 10 December 2008.
[6] Meleson v Minister of Immigration DRT Auckland DRT40/2008, 11 September 2008.
In Minister of Fisheries v Antons Trawling Co Ltd the Supreme Court set out the approach to be taken to applications for interim orders under s 8 of the Judicature Amendment Act.[7] The Court said:
[3] Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.
In the immigration context, this Court has said that relief should not be granted under s 8 unless the applicant establishes “he has at least a respectable chance of success in relation to his challenge to his proposed removal”.[8]
[7] Minister of Fisheries v Antons Trawling Co Ltd [2007] NZSC 101, (2007) 18 PRNZ 754.
[8] Parmanadan v Minister of Immigration [2010] NZCA 136 at [3], [2010] NZAR 424.
A humanitarian review deals with the personal circumstances of the relevant person. The immigration officials and the Minister were all aware that Mr Dhindsa was married to a New Zealand citizen and that his wife was expecting a child in July 2012. All took into account the right to family life protected by the ICCPR. In particular, the officials’ paper to the Minister contained the following:
Family
One of Mr Dhindsa’s sisters was granted residence in December 2011 and his other sister holds a work visa as the partner of a worker. Mr Dhindsa is in a relationship with a New Zealand citizen and they are due to have a child in July 2012.
International Obligations
Where a deportation is pending the State must consider Mr Dhindsa’s rights and the rights of his family, in this case his New Zealand citizen child who is soon to be born, under the ICCPR. See especially the extracts attached, tagged F.
Extracts from the ICCPR and from UNCROC were attached to the paper.
However, it is said that the officials and the Minister erred in not treating the unborn child as falling within the terms of UNCROC. We make two points about that.
First, as Gendall J pointed out, art 1 of UNCROC defines a child to mean “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”, which suggests that children must be born to fall within its terms. That said, we acknowledge that Courts have in some contexts held that the word “child” is apt to cover an unborn child, at least one within a few weeks of birth. So:
(a)In Re Baby P (An unborn child) Judge Inglis QC treated an unborn child, due to born within a week or two, as a “child” for the purposes of the Children, Young Persons, and Their Families Act 1989.[9] The Judge made a declaration that the child was in need of care and protection under the Act.
(b)Similarly, in Re an Unborn Child, Heath J concluded that the word “child” in the Guardianship Act 1968 included an unborn child.[10] The Judge referred to New Zealand’s international obligations in reaching this view.
[9] Re Baby P (An unborn child) above n 3.
[10] Re an Unborn Child [2003] 1 NZLR 115 (HC) especially at [61]–[63].
In other contexts, however, New Zealand Courts have taken the approach that an unborn child is not a “human being” or “person”, by reference to the common law “born alive” rule.[11] The issue is, therefore, heavily contextual.
[11]See the discussion in Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA) and Abortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246, [2012] 1 NZLR 176 at [56]–[59]. See also Right to Life New Zealand Inc v Abortion Supervisory Committee [2011] NZSC 97 (leave decision).
In light of the next point, we think it unnecessary that we attempt to resolve whether, and to what extent, UNCROC might be interpreted to apply to unborn children in the present context.
The second and more important point is that both the immigration officials and the Minister knew that Mr Dhindsa has a wife who is about to have a child and considered New Zealand’s international obligations in relation to family life in exercising their discretion. In our view, at least in the circumstances of this case, the fact that the interests of the family were taken into account is what ultimately matters, not whether that was done in the context of the ICCPR or of UNCROC. These family interests were, presumably, what led the Minister to waive the usual requirement that Mr Dhindsa wait for five years after deportation before applying to return to New Zealand. We do not see that more explicit consideration under UNCROC could have produced a different outcome.
For these reasons, we dismissed the appeal.
Decision
The appeal is dismissed. There is no order as to costs.
Solicitors:
Amicus Lawyers, Auckland for Appellant
Meredith Connell, Auckland for Respondents
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