Fang v Ministry of Business, Innovation and Employment
[2017] NZHC 3257
•20 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002453 [2017] NZHC 3257
UNDER the Judicial Review Procedure Act 2016,
Judicature Amendment Act 1972, Part 30 of the High Court Rules, Declaratory Judgments Act 1908 and the New Zealand Bill of Rights Act 1990
IN THE MATTER
of an application for judicial review, extraordinary remedies, interim relief, declaratory remedy and claim for breach of rights
BETWEEN
MINGBO FANG Applicant
AND
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Hearing: 18 December 2017 Counsel:
D Zhang for Applicant
IC Carter for RespondentJudgment:
20 December 2017
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 20 December 2017 at 11 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Amicus Law, Auckland.
Crown Law, Wellington.
FANG v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 3257 [20 December
2017]
The application
[1] On 16 October 2017 Mr Mingbo Fang sought an interim order declaring he should not be deported that night. I dismissed the application.1 Mr Fang immediately went into hiding. His whereabouts remain unknown.
[2] On Mr Fang’s behalf, Mr Zhang seeks an order rescinding my decision under r 7.49 of the High Court Rules 2016. Or leave to appeal to the Court of Appeal.
Mr Carter opposes the application on behalf of the Ministry of Business, Innovation and Employment. It was not served with the 16 October application. More about that later.
Background
[3] Mr Fang came to New Zealand on a student visa, which expired in May 2012.
Mr Fang was to complete an educational course here. He attended for no more than approximately one week. It follows Mr Fang has been in New Zealand unlawfully since the middle of 2012.
[4] In August 2015 a traffic offence resulted in Mr Fang being taken into custody and served with a deportation order. An immigration officer interviewed Mr Fang and his then partner. Following receipt of submissions on behalf of Mr Fang, the officer decided not to cancel the deportation order under s 177 of the Immigration Act 2009. Mr Fang was to be deported on 26 August 2015. Mr Fang brought judicial review proceedings. Mr Fang alleged, among other things, the officer failed to comply with the obligation under s 177(5) of the Act to adequately record “the facts about the person’s personal circumstances”.
[5] Fogarty J granted an interim order preventing Mr Fang’s deportation pending determination of those proceedings.2 Duffy J later heard and dismissed them.3
Mr Fang then appealed to the Court of Appeal. On 21 October 2016 Duffy J granted
1 Fang v Ministry of Business, Innovation and Employment HC Auckland CIV-2017-404-002453,
16 October 2017 (Minute).
2 Fang v Ministry of Business, Innovation and Employment [2015] NZHC 2059.
3 Fang v Ministry of Business, Innovation and Employment [2016] NZHC 1630.
interim relief pending determination of the appeal.4 Mr Fang was not to be removed from New Zealand until 20 working days after the Court of Appeal’s decision.
[6] The appeal was heard on 28 February 2017—by the permanent Court. Two other appeals involving similar circumstances were heard at the same time. Mr Zhang acted for one of the other litigants as well: Mr Dong. The primary issue for the Court concerned the effect of s 177(5) of the Act.
[7] On 19 May 2017 the Court of Appeal held the provision required a discrete record to be made about the potential deportees’ personal circumstances.5 The Court allowed Mr Fang’s appeal. It remitted the case so the immigration officer could comply with her s 177(5) obligation.
[8] The Court of Appeal also dealt with the approach to interim relief in cases of this nature. Mr Zhang invited the Court to overrule a long line of authority which holds the usual effects of deportation will not, ordinarily, be sufficiently harmful to meet the threshold for interim relief. The Court of Appeal declined to do so. It did not accept there was any justification for revisiting what it described as a “now well-established approach”. And, the Court anticipated Mr Fang’s deportation would not preclude substantive relief vis-à-vis judicial review:6
However, the approach in Parmanadan has since been followed by this Court in Nair and recently reiterated in Minhas v An Immigration Officer. We do not accept that there is any justification for revisiting the now well-established approach. The removal of Messrs Fang, Dong and Li from New Zealand can have no bearing on the way in which the respective immigration officers complete their task under s 177(5)(b). Nor will the fact that Messrs Fang, Dong and Li are out of New Zealand affect any entitlement to seek review of the actions of the officers pursuant to the orders for remission.
Accordingly, the interim order staying Mr Dong’s deportation pending the remission back to the relevant immigration officer is set aside.
[9] On 19 June 2017 Duffy J’s interim order expired. The immigration officer completed her obligations under s 177(5). Arrangements were made to deport
Mr Fang on 16 October 2017 at 23:59. Mr Zhang was informed of this on 9 October
4 Fang v Ministry of Business and Employment [2016] NZHC 2617.
5 Fang v Ministry of Business, Innovation and Employment [2017] NZCA 190, [2017] 3 NZLR 316.
6 At [81]–[82] (footnotes omitted).
2017. Mr Fang was required to meet an immigration officer at the airport for deportation. But as observed, he went into hiding.
[10] Mr Fang sought an interim order preventing his deportation late on the afternoon of 16 October 2017, pending further judicial proceedings. The application was brought without notice. Mr Fang’s personal circumstances and those of his wife were advanced as important, and as materially different from those before Duffy J. I dismissed the application for these reasons, which included the observations of the Court of Appeal:7
[1] Mr Fang is scheduled to be deported at midnight. Obviously, time is of the essence. Hence the brevity of this Minute.
[2] At approximately 4.30 this afternoon, Mr Zhang on Mr Fang’s behalf sought an interim order declaring Mr Fang should not be deported. The background is important.
[3] On 28 August 2015 Fogarty J made such an order in anticipation of judicial review proceedings by Mr Fang of the immigration officer’s decision under s 177 of the Immigration Act 2009 refusing to cancel a deportation order. Duffy J heard the judicial review proceeding, which Her Honour dismissed on 21 July 2016. Among other things, the Judge was not persuaded Mr Fang’s personal circumstances precluded deportation. Mr Fang appealed successfully to the Court of Appeal in relation to the extent to which an immigration officer must record international obligations and the person’s personal circumstances in connection with the decision. Mr Fang’s appeal was heard with other cases affected by similar issues. One such case was that of Mr Dong. Mr Dong’s deportation had been stayed by an interim order. More about this shortly. An immigration officer has since concluded the deportation order in relation to Mr Fang should not be cancelled under s 177 of the Immigration Act.
[4] Mr Zhang contends interim relief precluding Mr Fang’s deportation is appropriate because the personal circumstances identified by Fogarty J at [40]–[44] endure, and because Mr Fang now has a daughter and his wife,
Ms Zhao, suffers depression. Mr Zhang also submits it is not clear s 177 has been complied with.
[5] I asked Mr Zhang why the application was filed this afternoon when the deportation notice was served a week ago (Monday, 9 October). Mr Zhang said he was instructed to bring this application on Friday (13 October).
Mr Zhang apologised for not alerting the Registry to the possibility of an application on Friday. He also accepted MBIE could have been—but has not
been—served.
[6] I am unpersuaded interim relief is appropriate in the circumstances, particularly having regard to the background. Mr Fang’s student visa, which
allowed him to be in New Zealand, expired in or about May 2011. And, the personal circumstances identified in connection to Mr Fang are not greatly different from those before Duffy J. When the case reached the Court of Appeal, Brown J for the Court observed:
… (See [8] above)
[7] The key plank of Mr Fang’s application concerns s 177(5). It follows this issue is already settled. And as observed, the personal circumstances in relation to Mr Fang are not greatly different from those prevailing earlier.
[8] The application is dismissed.
Analysis
[11] Rule 7.49 provides:
7.49 Order may be varied or rescinded if shown to be wrong
(1) A party affected by an interlocutory order (whether made on a Judge's own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.
(2) A party may not apply under subclause (1) if the order or decision was made or given—
(a) with the consent of the parties; or
(b) on an interlocutory application for summary judgment under rule 12.4 …
(c) Revoked.
(3) Notice of an application under subclause (1) must be filed and served,— (a) if it is made by a party who was present or represented when the
order was made or the decision given, within 5 working days after
the order was made or the decision was given:
(b) if it is made by a party who was not present and not represented, within 5 working days after receipt by the party of notice of the making of the order or the giving of the decision, and of its terms.
(4) The application does not operate as a stay unless a Judge so orders.
(5) Unless a Judge otherwise directs, the application must be heard by the
Judge who made the order or gave the decision. (6) The Judge may,—
(a) if satisfied that the order or decision is wrong, vary or rescind the order or decision; or
(b) on the Judge's own initiative or on the application of a party, transfer the application to the Court of Appeal.
[12] Although the rule is framed broadly, it and its predecessor—what was then r 264—have been confined to the following situations:
(a) When there was no full argument at the initial hearing.
(b) When some relevant point of evidence was overlooked at that hearing.
(c) A material change of circumstance since then.
(d) Existence of other special circumstances.
[13] The retreat from the broad language of the provision reflects the deep-seated principle an attack upon the correctness of a Court’s decision should be made only to a Court of superior jurisdiction.8
[14] Mr Zhang contended there was no full argument at the hearing before me because it lasted approximately 12 minutes only—I heard Mr Zhang by way of telephone conference. Mr Zhang also contended I did not have the extensive affidavit of Mr Fang before me. The latter can be dealt with immediately. I did.
[15] As to the former, doubt attaches to whether the length of a hearing is co-terminus to whether there was full argument, particularly in a case in which written submissions were filed and read in advance, as they were here. In any event, the essence of Mr Fang’s case was ventilated at the 16 October hearing, the most significant aspects of which were contentions:
(a) Mr Fang’s circumstances had materially changed since the hearing before Duffy J.
(b) Section 177(5) had again not been complied with, at least arguably.
[16] Mr Zhang also contended special circumstances existed as I had misapprehended the basis for interim relief. Mr Zhang submitted interim relief had not been sought primarily under s 177(5), but rather because of the change in
Mr Fang’s personal circumstances: he has since married his girlfriend, they have a child, his wife is now pregnant, and she has suffered depression. I do not accept these arguments: they constitute recapitulation of those made and rejected on 16 October.
[17] Mr Zhang went further. He contended r 7.49 should not be confined to the categories identified above. He submitted a frequently cited decision in relation to the rule—Carter v The Coroner’s Court at Wellington9—involved Crown counsel taking advantage of a litigant in person, with the result the principles identified in that case were without the benefit of full argument. This characterisation is inaccurate. As observed earlier, r 7.49 has long been interpreted narrowly for good reason; Carter represents no more than a crisp and helpful restatement of applicable principle.
[18] Mr Zhang also sought an order transferring the 16 October ruling to the Court of Appeal under the same rule or leave pursuant to s 56(3) of the Senior Courts Act
2016 to appeal to the Court of Appeal. Both were framed on the basis the Court of Appeal was wrong to re-embrace the line of authority identified in Fang in relation to interim relief.
[19] To elaborate, Mr Zhang contended this line of authority failed to appreciate the ramifications of the current Act, which make a person in Mr Fang’s position even more vulnerable if deported pending determination of judicial review proceedings.
Mr Zhang contended it is all but impossible for someone in these circumstances to avoid the travel ban imposed by s 179 of the Act (which in Mr Fang’s case would last five years), and obtain the requisite visa to be in New Zealand lawfully. There are several answers to this contention.
[20] First, it is not for this Court to presuppose error on the part of the Court of
Appeal. The reasons for this are obvious. And, of a constitutional order.
[21] Second, it would be an extraordinary step for this Court to invite the Court of Appeal to revisit a decision in this area only months after that Court’s considered determination of the point through a judgment in its permanent guise.
[22] Third, the underlying argument is untenable. One of the cases affirmed by the Court of Appeal in Fang is Chief Executive of the Ministry of Business, Innovation and Employment v Nair.10 That decision, delivered by Ellen France P (as Her Honour then was), identifies the very points Mr Zhang contends were not appreciated by the Court of Appeal in Fang:11
If interim relief is declined Mr Nair will leave New Zealand. The effect of s 179 of the Act is that he will be prohibited from returning to New Zealand for five years. He would have to conduct his judicial review application from India. If successful on review, the decision under s 177 not to cancel the deportation order will be set aside and an immigration officer will reconsider whether to cancel the order. If the immigration officer decides to cancel the order, the “logical corollary” is likely to be the view there are good grounds for Mr Nair to be granted a residence class visa although Mr Nair would have to make his application for residency from India. The Minister may exercise his discretion under s 182 of the Act to remove the prohibition on entry and to waive deportation costs.
By contrast, if interim relief is maintained Mr Nair would remain in New Zealand unlawfully. In practice, the Minister is likely to grant a visa under s 61 to regularise his position in the interim. Mr Nair would still then need to seek a visa.
When the consequences of deportation before Mr Nair’s judicial review application is determined are analysed in this way, it is apparent that none of the consequences identified by Duffy J meet the threshold for interim relief. Rather, they reflect the usual statutory consequences of deportation.
Ms Hansen accepts that these particular circumstances reflect the norm but she relies on the uncertainty and dislocation involved. However, on the analysis in Parmanadan, such consequences absent further evidence are insufficient to warrant interim relief.
[23] Fourth, it was apparent at the hearing Mr Zhang sees this area of law as unfinished business—at best. However, Mr Fang should not be used as a vehicle for
counsel’s frustration at the state of law as recently affirmed by a higher Court.
10 Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA
248, [2016] NZAR 836.
11 At [22]–[24] (footnotes omitted).
Misuse of curial process?
[24] Mr Carter contended even if a basis for rescinding the 16 October ruling was identified, I should not take that step because of the way in which Mr Zhang and
Mr Fang had approached that application. Mr Carter noted r 7.49 affords the Court a discretion. He contended discretionary relief may not be granted if the applicant has misused the Court’s processes, citing Martin v Ryan.12 No determination of this submission is required, for, as discussed above, the application is without merit. However, I remain troubled about the way in which relief was sought on 16 October. I record why.
[25] First, no clear explanation has ever been provided as to why the respondent was not served with the application. At the original hearing, Mr Zhang acknowledged the respondent could have been, but was not. Context underscores the significance of this breach of natural justice.
[26] Mr Fang and the respondent have long contested his eligibility to remain in New Zealand. The case has been before the Courts for some time—and reached the Court of Appeal. Mr Zhang has dealt frequently with both the Crown Law Office and the Crown Solicitor’s Office, as counsel for the Ministry of Business, Innovation and Employment. Mr Zhang said he received instructions to seek interim relief on Friday,
13 October 2017. It would not have been difficult for Mr Zhang to alert that day either Crown Law or Meredith Connell of the anticipated application. And, Mr Zhang should have served one or other on a Pickwick basis so the respondent could be heard on
16 October. He did not.
[27] In the absence of an unequivocal explanation for non-service—which I sought at both hearings—I conclude Mr Zhang elected not to serve the respondent in the hope of achieving forensic advantage for his client.
[28] Second, it is elementary an applicant for without notice relief must identify matters which may be contrary to the applicant’s case. This did not occur: the papers
12 Martin v Ryan [1990] 2 NZLR 209 (HC).
did not identify as salient [81] and [82] of the judgment of the Court of Appeal. Rather, it fell to me to raise both with Mr Zhang at the teleconference.
[29] Third and relatedly, the papers as originally filed did not include a memorandum of counsel. Through the Registry, I advised Mr Zhang I would not consider the papers in the absence of a memorandum. However, when filed, the memorandum did not identify the aspects above.
[30] Fourth, the papers did not include the decision of the immigration officer in relation to which interim relief was sought. Exigent circumstances cannot explain the omission, as an affidavit with hundreds of pages of annexures was filed in support of the application. And, Mr Fang knew of his anticipated deportation on Monday,
9 October 2017.
[31] Fifth, the irony of Mr Fang’s election to take the law into his own hands (by breaching his release conditions from 16 October) while simultaneously seeking its protection should not go unrecorded.
[32] In short, employment of the without notice procedure for the 16 October application was a misuse of curial process.
Result
[33] The application is dismissed. Mr Carter foreshadowed an application for increased or indemnity costs. I will deal with costs on the papers; submissions must not exceed five pages:
(a) Mr Carter is to file and serve his by 5 pm, Friday 9 February 2018.
(b) Mr Zhang is to file and serve his by 5 pm, Friday 16 February 2018.
……………………………..
Downs J
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4
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