Fabella v Ministry of Business, Innovation and Employment

[2017] NZHC 1539

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2017-404-1133 [2017] NZHC 1539

BETWEEN

ADRIAN GABRIEL GADO FABELLA

First Plaintiff

MARY JOY MALAGUIT FABELLA Second Plaintiff

DOTTY MEDIA LIMITED Third Plaintiff

AND

MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Defendant

MINISTER OF IMMIGRATION Second Defendant

Hearing:	5 July 2017
Counsel:	R M Mansfield and S L Cogan for Plaintiffs M J Hodge and M J Mortimer for Defendants
Judgment:	5 July 2017

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Anderson Creagh Lai Ltd, Auckland Meredith Connell, Auckland Counsel:

R M Mansfield, Auckland

S L Cogan, Auckland

FABELLA v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 1539 [5 July

2017]

[1]      Mr and Mrs Fabella have applied for an extension of time to file a judicial review proceeding.   That application is made under s 247 of the Immigration Act

2009.   If that application were granted, they seek to challenge a decision by Immigration New Zealand1 not to renew work visas held by them.  Until recently, Mr and Mrs Fabella have been residing in New Zealand legitimately under such visas.

[2]      Shortly before the time at which the visas were to expire, Mr and Mrs Fabella instructed a lawyer to apply for renewal.  Difficulties arose.  The lawyer says that he relied on information contained on Immigration New Zealand’s website which did not make clear the need for the position held by Mr Fabella to be advertised before a decision could be given.   The purpose of advertisement is to test the market to ascertain whether any New Zealand residents were able to perform the employment role undertaken by him.

[3]      Immigration New Zealand does not accept that the lawyer could have been misled (in any material way) into filing an incomplete application based on the content of the website.   It has not been necessary for me to consider this issue, having regard to the way in which the proceeding will be resolved.2   Accordingly, I express no opinion on the question one way or another.

[4]      Mr and Mrs Fabella also seek an interim order which would have the effect of preventing  their  deportation  pending  a  review  of  Immigration  New  Zealand’s decision not to renew work visas.  Although the application to extend time would ordinarily need to be determined first, counsel for both Mr and Mrs Fabella and Immigration New Zealand accept that one of the causes of action in the proposed judicial review proceeding is not out of time.  The substantive issues raised on the interim relief application are capable of being dealt with on the basis of that cause of action. As a result, it has proved unnecessary to consider the extension of time issue.

[5]      Following some discussions between counsel and myself at the start of the hearing, Mr Hodge, for Immigration New Zealand, indicated he was prepared to take

1      The defendants in this proceeding are the Ministry of Business, Innovation and Employment (of which Immigration New Zealand is part) and the Minister for Immigration.  For convenience, I refer to them collectively as Immigration New Zealand.

2      See paras [7]–[9] below.

instructions on whether steps could be taken to avoid the need to determine the interim relief application, and to have the substantive application for a work visa considered on its merits.  I had put forward that view on a pragmatic basis, indicating that I was prepared to hear legal argument further, if necessary.  Given the narrow compass of the issue, it appeared to me that it may be better for all concerned to have the issue resolved on the merits.

[6]      Mr Hodge has taken instructions.  As a result, he and Mr Mansfield, for Mr and Mrs Fabella, have agreed a position which will protect Mr and Mrs Fabella’s rights meantime, and enable Immigration New Zealand to consider the visa application on its merits appropriately.

[7]      I record the agreed position as follows:

(a)      Mr and Mrs Fabella will be issued a temporary work visa, for a period of one month. That will be done under s 61 of the Immigration Act.

(b)Immigration New Zealand undertakes not to take steps to deport Mr and Mrs Fabella pending the grant of that one month visa.

(c)      Mr and Mrs Fabella will file a fresh application for a work visa, together with supporting documentation, as soon as practicable.  That material will then be considered by Immigration New Zealand, and a decision made on the merits.

[8]      I congratulate counsel on reaching a pragmatic solution to the issues raised.

[9]      I  make  an  order  dismissing  the  application  for  interim  relief,  and  the substantive proceeding itself.  No order as to costs.

P R Heath J