Fang v Ministry of Business, Innovation and Employment

[2016] NZHC 2617

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-1971 [2016] NZHC 2617

UNDER

the Judicature Amendment Act 1972, Part

30 of the High Court Rules, the 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

MING BO FANG Plaintiff

AND

THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT Defendant

Hearing:	21 October 2016
Counsel:	F C Deliu for Plaintiff M J Hodge for Defendant
Judgment:	21 October 2016
Reasons:	2 November 2016

REASONS JUDGMENT OF DUFFY J

This reasons for judgment was delivered by me on 2 November 2016 at midday pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland

Dr F C Deliu, Justitia Chambers, Auckland

FANG v THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2016] NZHC 2617 [21

October 2016]

[1]      The plaintiff, Ming Bo Fang, was unsuccessful in his application to judicially review the defendant (“review proceeding”).1   He has appealed against the dismissal of his judicial review to the Court of Appeal.   Pending the determination of the appeal he sought interim relief to prevent his removal from New Zealand, which was opposed by the defendant.

[2]      On 21 October 2016 I heard and granted the application for interim relief. My reasons now follow.

[3]      Rule  12(3)(b)  of  the  Court  of Appeal  (Civil)  Rules  2005  recognises  the inherent jurisdiction of this court to grant interim relief pending an appeal against its decision. Thus, I have jurisdiction to grant Mr Fang the relief that he sought.

[4]      Mr Fang’s judicial review is one of three judicial reviews that are subject to appeal.  The other two judicial reviews were determined by Davidson J2 and Davison J3 respectively. They took a different view of the law from me.

[5]      In the review proceeding, I concluded that the Court of Appeal’s decision in Singh v Chief Executive, Ministry of Business, Innovation and Employment required me to dismiss Mr Fang’s  ground of judicial review challenging the defendant’s decision for failure to provide reasons.4   However, I also expressed the view that, had I not found myself so bound by Singh, I would have taken a different approach that would have led to me allowing the judicial review on that ground.  In Dong v Chief Executive of the Ministry of Business, Innovation and Employment and Li v Ministry of Business, Innovation and Employment respectively Davidson J and Davison J

concluded, on what I understand to be the same factual circumstances that were present in Fang, that Singh did not bind them.  This led to those Judges allowing the

judicial reviews before them. The defendant has appealed against those decisions.

1      See Fang v The Ministry of Business, Innovation and Employment [2016] NZHC 1630.

2      Dong v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC

1468, [2016] 3 NZLR 357.

3      Li v Ministry of Business, Innovation and Employment [2016] NZHC 1788.

4      Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93.

[6]      Since two Judges of this court have taken a different view of Singh than I did in Fang, I consider it only right and proper for me to acknowledge that I might have erred in my conclusions regarding the correct application of that case.  My own view of the requirement for reasons in s 177(5) of the Immigration Act 2009 coincides with the views expressed by the Judges in Dong and Li. As I noted in Fang, I would have taken the same approach had I not considered I was bound by Singh. For these reasons I am satisfied that Mr Fang has a seriously arguable case for the granting of interim relief to preserve his position pending the disposition of his appeal.

[7]      I also consider that the balance of convenience favours the granting of relief. Were it not for my (possibly incorrect) findings regarding the application of Singh, Mr Fang would be in the same position as the plaintiffs in Dong and Li.  I consider that procedural fairness requires me to place Mr Fang in the same position as that enjoyed by the successful plaintiffs.   Further, this will ensure that Mr Fang is not disadvantaged by any error on my part.

[8]      I am indebted to both counsel for the helpful and responsible stance they took in the hearing of this application.