Ibrahim v Associate Minister of Immigration HC Wellington CIV-2011-485-1142

[2011] NZHC 1410

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1142

UNDER  The Judicature Amendment Act 1972

IN THE MATTER OF     A review of a decision by the Associate

Minister of Immigration

BETWEEN  DEMYSSA AHMED IBRAHIM Applicant

ANDTHE ASSOCIATE MINISTER OF IMMIGRATION

Respondent

Hearing:         3 October 2011

Counsel:         M S Smith and R L Fletcher for Applicant

I C Carter for Respondent

Judgment:      18 October 2011 at 10:30 AM

I direct the Registrar to endorse this judgment with a delivery time of 10.30am on the 18th day of October 2011.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This is an application by the respondent for security for costs against the applicant  on  this  application  for judicial  review of  a decision  by the Associate Minister of Immigration.

[2]      The applicant lives overseas.   He was initially granted legal aid to pursue these proceedings.  A request was made by counsel for the respondent to the grants officer  to  clarify  the  basis  on  which  legal  aid  was  granted,  in  the  light  of

s 12(1)(a)(iii) of the Legal Services Act 2011, which provides that legal aid may not

IBRAHIM V ASSOCIATE MINISTER OF IMMIGRATION HC WN CIV-2011-485-1142 18 October 2011

be granted in proceedings involving a decision under the Immigration Act 2009 in relation to a person who is not in New Zealand and is not a New Zealand citizen. The grants officer wrote to the applicant’s lawyer advising there was no ability to grant legal aid to the applicant and that the grant of legal aid “is a nullity and therefore void”.

[3]      Mr Smith for the applicant advised the withdrawal of aid is being challenged. I do not consider that it is desirable to defer consideration of this application until the legal aid position is further clarified.   At present legal aid is not in place.   The position will have to be reviewed if subsequently the grant of legal aid is restored. For present purposes, I proceed on the basis that the applicant is not legally aided.

[4]      Counsel for the respondent submits that it is just to order the applicant to pay security for costs (the sum of $5,000 is sought) because:

(a)       The applicant is resident outside New Zealand and has never been to

New Zealand;

(b)      The application for judicial review is statute barred;

(c)      The applicant is not eligible for a residence visa and there is limited scope for review of a decision declining to make an exception for the applicant’s benefit (if the application for review is not statute barred); and

(d)It is not in the interests of justice for the Court to waive the security for costs which is ordinarily to protect respondents faced with difficulties in recovering an award of costs overseas.

[5]      Counsel for the applicant accepts that, as a threshold issue, the applicant is resident out of New Zealand so that r 5.45 of the High Court Rules is engaged.  The focus must therefore be on whether, in the light of the respondent’s submissions (b) to (d), it is “just in all the circumstances” for the Court to order security.

[6]      The background can be briefly stated.  The applicant is a citizen of Ethiopia born in 1976 and still residing in Ethiopia with his 13 year old daughter Bontu.  He is married to Hajera, born in Ethiopia in January 1979.  The couple also had an older son, Bonsa.

[7]      Hajera’s   grandmother   applied   for   New   Zealand   residency   under   the humanitarian category then applicable, in October 2000.  Hajera was included in that application and was interviewed by a representative of the New Zealand Immigration Service (INZ) in December 2003 in Ethiopia.   She signed an application for New Zealand  residence  and  came  to  New  Zealand  with  other  family  members  in October 2004.  She became a New Zealand citizen in September 2008.

[8]      In June 2006 the applicant lodged a residential application under the family partnership category for himself, Bontu and Bonsa.  Hajera was their sponsor.  An interview was arranged for March 2008 but did not take place.  Representations were made through members of Parliament to the Minister about the handling of the residence application.   In June 2009 the application by the applicant, Bontu and Bonsa for residence was declined by INZ on the grounds that the sponsor, Hajera, had declared in her original residence application that she was a dependent child, was  not  married,  and  had  no  biological  or  adopted  children  of  her  own.    In September 2009 an appeal to the Residence Review Board against this decision was declined on the grounds that an exception to policy was not justified.

[9]      The  applicant  made  submissions  to  the  Minister  of  Immigration  raising concerns  as  to  the  way  the  case  had  been  handled.    The  Minister  responded suggesting that the applicant make a separate submission to the Associate Minister of Immigration, who dealt with individual cases.

[10]     In September 2010, the applicant suffered a family tragedy.   The house in which he and his children were living was burnt down.  Bonsa died in the fire and Bontu was injured and severely traumatised by the events.

[11]     In November 2010 the local member of Parliament who was following the case made a submission to the Associate Minister of Immigration. The applicant was

unaware of this submission and had been in the process of preparing his own further submission.  In February 2011 a further more comprehensive submission was made to the Associate Minister for a special direction under s 378 of the Immigration Act

2009 to enable the applicant and Bontu to come to New Zealand and be reunited with Hajera.  That was supplemented by extensive evidence including support letters from Hajera’s GP, psychiatrist and counsellor at Refugees as Survivors.  These had not been presented with the earlier submissions by the MP.  The Associate Minister, in a decision conveyed by letter dated 4 May 2011, declined to intervene.

[12]     The essence of the applicant’s case is that, when the papers for consideration by the Associate Minister were prepared within INZ, the materials provided to the Minister did not include the submissions and new evidence that were provided in February 2011, nor previous historical documentary evidence, including affidavits sworn by Hajera and another person in September 2008 and that those should have been available and been referred to the Minister.  The applicant relied in particular on a police report from Ethiopia confirming the house fire, and other material concerning the effect on the family, including Hajera, of the fire.

[13]     In the applicant’s amended statement of claim, the decision of the Associate Minister which is challenged is a decision conveyed in a letter dated 4 May 2011, that the Associate Minister was not prepared to intervene in the case.  That decision followed   requests   by   the   applicant,   through   his   solicitor   made   on   2   and

16 February 2011 for a special direction under s 378 of the Immigration Act 2009 that the applicant and Bontu be granted residence class visas allowing them to be reunited with Hajera.  The ground of challenge to the decision is that the Associate Minister’s decision making process miscarried on the ground of procedural impropriety, or alternatively that the Court should intervene because of the failure of the briefing memorandum prepared within INZ to fairly and adequately record facts which supported the granting of the application.

[14]     I have no information as to the applicant’s financial position.  I consider that I may properly proceed on the assumption that an order for security of costs is likely to mean that the applicant will be unable to pursue his claims.   I must therefore balance the interests of the applicant, in that he should not lightly be prevented from

pursuing his claim, and of the respondent, that he should not be protected against being drawn into unjustified litigation.  That balancing test was summarised by the Court of Appeal in A S McLaughlin Ltd v MEL Networks Ltd in these terms:[1]

[1] A S McLaughlin Ltd v MEL Networks Ltd (2002) 16 PRNZ 747 (CA) at [15]-[16].

The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the courts for a genuine plaintiff is not lightly to be denied.

Of course, the interests of defendants must also be weighed. They must be protected  against  being  drawn  into  unjustified  litigation,  particularly where it is over-complicated and unnecessarily protracted.

[15]     In  conducting  this  balancing  exercise,  I  proceed  on  the  basis  that  the applicant will be able to make out the factual propositions that he advances in support of his claim.  That is the usual approach on a strike out application, and I consider it appropriate to adopt it here.  Accordingly, the question is whether, assuming the facts as alleged, the claim has so little chance of success that the respondent should be protected from being drawn into it without security for costs.

[16]     Counsel for the respondent notes that the initial application for residence under criteria set by government residence policy was declined on 28 May 2009 and that the statutory right of appeal to the Residence Review Board was exercised, and the appeal dismissed on 30 September 2009.  That decision was not the subject of an appeal to the High Court or of an application for judicial review.  Counsel submits that it is to be treated as final.   He submits that the decision confirms that the applicant is not eligible for the grant of a residence visa under the criteria that is applied to all persons seeking a visa to enter New Zealand.  The representations to the Associate Minister seeking an exception to Government residence’s policy were declined  in  separate  decisions  issued  on  29 April 2009  and  15 December 2010. Counsel submits that there is no statutory right of appeal against either of those decisions, that any challenge by way of judicial review is now time barred, and there

are no special circumstances to warrant an extension of time.

[17]     Counsel for the appellant submits, in response to the submission that the earlier decisions are to be treated as final, that the circumstances have changed, as a consequence of the house fire, and that considerations of fairness dictates that the doctrines of res judicata, issue estoppel and functus officio cannot be applied here.

[18]     The original statement of claim had cast the net rather wider in terms of the matters  which  were sought  to  be challenged.    Challenges  to  matters  taken  into account in  relation to earlier decisions, including the decision of the Residence Review Board, were raised.  In view of the narrowing of the focus in the amended statement of claim, I need not consider these wider allegations.   It is sufficient to observe that there is force in Mr Carter’s submissions that these matters are now beyond  challenge.    For  the matters  in  issue it  is  not  necessary to  consider  the doctrines relating to the finality of litigation to which Mr Smith has referred.  The statutory limits on rights of appeal and review lead to that result.

[19]     If the Associate Minister’s decision now under challenge falls within the scope of a statutory power of decision, that can only be on the basis that it is a decision relating to a residence class visa.  Rights of appeal and review in relation to such decisions are governed by s 187 of the Immigration Act 2009.  Under s 187(2), there is no right of appeal against the Associate Minister’s decision in this case. Review is covered by s 187(8) which provides:

A person may bring review proceedings in a court in respect of a decision in relation to a residence class visa except if the decision is in relation to—

(a)       the refusal or failure to grant a residence class visa to a person outside New Zealand; or

(b)       the  cancellation  of  a  resident  visa  granted  outside  New  Zealand before the holder of the visa first arrives in New Zealand as the holder of the visa.

[20]     That provision applies here.  Review is not available because the applicant is outside New Zealand.  Mr Smith, for the applicant, submits that that provision must be given an interpretation which is consistent with s 27(2) of the New Zealand Bill of Rights Act 1990 (BORA) which provides:

Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public

authority has the right to apply, in accordance with law, for judicial review of that determination.

[21]     The applicant faces a considerable hurdle in establishing that his ability to apply to the Associate Minister for a special direction under s 378 of the Immigration Act 2009 is a right or interest protected or recognised by law.  If that hurdle were surmounted, the applicant would face further hurdles in ss 4 and 5 of BORA.  I do not consider that the argument that s 187(8) should not be applied is sufficiently strong  that  the  respondent  should  be  required  to  meet  the  argument,  without protection for costs.

[22]     Mr Smith submits that the applicant’s judicial review challenge is a factually strong one.  He further submits that there is no formal indication from INZ of steps to cancel Hajera’s citizenship, so that the applicant’s link to New Zealand is not as tenuous as counsel for the respondent submits.  I need not examine that submission in detail.  These considerations cannot overcome the statutory impediment to judicial review of the Associate Minister’s decision.   For these reasons, I consider that, balancing the interest of the applicant in not being deprived of access to the Courts against the interest of the respondent in being protected from being drawn into unjustified litigation, the balance falls in favour of an award of security.

[23]     There will be an order directing that the applicant pay into Court the sum of

$5,000 for security for costs, and that further steps be stayed until payment is made. Leave is reserved to the applicant to apply to vary this order in the event that legal aid is restored.

“A D MacKenzie J”

Solicitors:         Woods Fletcher & Associates, Wellington for Applicant

Crown Law, Wellington for Respondent