Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment
[2016] NZHC 1475
•30 June 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-3158 [2016] NZHC 1475
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of section 207(1) and 249(3) of the
Immigration Act 2009BETWEEN
NADEZDA KARTSEVA Applicant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent
THE IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent
Hearing: 9 June 2016 Counsel:
F C Deliu for Applicant/Respondent
S Jerebine for First Respondent/ApplicantJudgment:
30 June 2016
JUDGMENT OF BREWER J
This judgment was delivered by me on 30 June 2016 at 4:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel: F C Deliu (Auckland) for Applicant
Crown Law (Wellington) for First Respondent
KARTSEVA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 1475 [30 June 2016]
Introduction
[1] Ms Kartseva is a Russian citizen currently living in New Zealand. She would like to stay here. However, on 27 November 2015 the Immigration and Protection Tribunal (“the Tribunal”) decided that there are no exceptional humanitarian circumstances that would make it unjust or unduly harsh for her to be deported from New Zealand.1 Ms Kartseva received notice of the Tribunal’s decision on
30 November 2015.
[2] Ms Kartseva did not accept the decision. On 22 December 2015, her lawyer, Mr Rajendra Chaudhry, filed some documents in this Court which are clearly intended to challenge the Tribunal’s decision. Unfortunately, they show such a want of form and content that the First Respondent (“the Crown”) does not consider that they are fit for purpose. Further, in the Crown’s view, because the statutory 28 days for bringing a proper challenge expired on 5 January 2016, the Tribunal’s decision must stand.
[3] On 28 January 2016, Ms Fleming of the Crown Law Office wrote to
Mr Chaudhry in these terms:
1.I write to you as the representative of the Minister of Immigration in this matter.
2.We have received a copy of your notice of appeal and documents associated with your proposed judicial review of the decision of the Immigration and Protection Tribunal (the Tribunal) in respect of Ms Nadezda Kartseva.
3.The purpose of this letter is to draw your attention to ss 245 and 249 of the Immigration Act 2009. Those sections require leave to be granted before an appeal or judicial review application can be brought. You have not filed applications under either of those sections and you are now out of time to do so.
4.We invite you to consider withdrawing both proceedings. If you do so before we are required to take any steps in the litigation we will not seek costs against your client.
1 Re Kartseva [2015] NZIPT 502502.
[4] Mr Chaudhry tried to rescue the situation by filing further documents in February 2016. The Crown responded by applying for an order that the proceeding be dismissed. This Judgment decides that application.
Issue
[5] The issue for me to determine is whether the documents filed by Mr Chaudhry on 22 December 2015 (“the December documents”) invoked the Court’s judicial review jurisdiction in respect of the Tribunal’s decision.2
The December documents
[6] All the December documents are intituled (relevantly):
UNDER: The Judicature Amendment Act 1972
AND IN THE MATTER OF:
Section 207(1) of the Immigration Act 2009
[7] There are two documents which, taken together, seem to be analogous to a Notice of Proceeding, and there is a Statement of Claim.3 There is also a document titled:
NOTICE OF APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
[8] The document commences:
TAKE NOTICE THAT the Applicant seeks leave of this Honourable Court pursuant to Rule 56CA4 of the High Court Rules to apply for a judicial review of the decision of the Second Respondent, dated 27 November 2015 (decision) and for a further order that the grant of leave shall operate as a stay of the said decision.
2 The documents filed by Mr Chaudhry in February 2016 are irrelevant to this issue because they were filed after the expiry of the 28 day period prescribed by s 249(4)(a) of the Immigration Act
2009.
3 Rule 30.3(1) requires an application for judicial review to be commenced by statement of claim and notice of proceeding in accordance with Part 5. Rule 30.3(2) requires the heading of an
application for review under Part 1 of the Judicature Amendment Act 1972 to state that it is an application for review.
4 There is no Rule 56CA. There used to be a section 56CA of the Judicature Act 1908 which related to judicial review of decisions under the Immigration Act 1987, but it was repealed on
29 November 2010.
[9] In the body of the document, Mr Chaudhry asks the Court to quash the decision of the Tribunal, to award costs and to make any further order for relief as the Court deems fit, just, expedient, necessary and equitable in the circumstances. He relies upon the following grounds:
1. In arriving at its decision the Second Respondent made errors of law in failing to correctly apply and/or failed to apply the provisions of s 207(1) of the Immigration Act 2009.
2. In arriving at its decision the Second Respondent made errors of precedent fact, fundamental errors or findings unsupported by evidence.
3. In arriving at its decision the Second Respondent failed to sufficiently acquaint itself with relevant information and/or failed to properly address the same.
4. In arriving at its decision the Second Respondent failed to have regard to all, and to only, legally relevant considerations and took into account irrelevant considerations.
5. In arriving at its decision the Second Respondent acted unreasonably and/or irrationally and/or in a way which was not open to it.
6. In arriving at its decision the Second Respondent failed to make proper inquiries and failed to give adequate reasons.
[10] The statement of claim is titled:
STATEMENT OF CLAIM (JUDICIAL REVIEW)
[11] The body of this document sets out the surrounding factual circumstances and expands on the grounds of review identified in the document to which I have just referred. It notes relevant paragraphs of the Tribunal’s decision and provides arguments as to why the Tribunal was in error.
Discussion
[12] The Court’s jurisdiction on judicial review of matters within the Tribunal’s jurisdiction is restricted by s 249 of the Immigration Act 2009 (“the Act”). The relevant subsections are:
(4) An application to the High Court for leave to bring review proceedings must be made—
(a) not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5) A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
[13] The documents filed by Mr Chaudhry do not mention s 249, nor do they address the matters to which the Court must have regard pursuant to subs (6).
[14] The Crown’s argument is that it is essential that an application for leave to bring review proceedings against a decision of the Tribunal be made “under” s 249. The submission is that the December documents cannot constitute an application “under” s 249 because:
(a) All of the documents were filed under the Judicature Amendment Act
1972 rather than the Act. It is the latter statute which gives the Court jurisdiction to grant leave to bring judicial review proceedings in respect of a decision of the Tribunal.
(b)None of the documents, including the purported application for leave, refers to s 249 of the Act, which is the relevant provision.
(c) In particular, none of the documents refer to the mandatory grounds for leave in s 249(6) as set out in para [12] above.
[15] The Crown places emphasis on the third of these reasons. It submits that omitting the requirements for an application for leave is more than a matter of form. It amounts to a substantive failing and thus the Court does not have the ability to interpret the documentation in the way proposed by the applicant.
[16] The Crown cites the case of D v Immigration and Protection Tribunal where an applicant sought to challenge a decision of the Tribunal.5 In that case the only documents filed within time were a statement of claim, an affidavit from a solicitor in support of the application for judicial review and a notice of proceeding. Counsel for the applicant first asked the Court to treat the affidavit as an application for leave. Justice Gilbert considered that he had no jurisdiction to do so:
[10] In my view, r 1.9 has no application and cannot cure the failure to apply for leave in time. The affidavit is a sworn statement of evidence; it is neither a “pleading” nor a “procedure”. The affidavit does not contain “defects” or “errors” requiring amendment and falls outside the scope of r 1.9.
[11] The affidavit does not address any of the requirements for leave set out in s 249(6) of the Act, and, even on the most generous view, it cannot be regarded as an application for leave to commence judicial review proceedings. Contrary to Mr Lewis’ submission, neither r 1.9 nor the Court’s inherent jurisdiction permits the Court to “reconstitute” it at such.
[17] It was argued in the alternative that the statement of claim could be amended so that it addressed the requirements of a leave application. The document could then be severed so the two parts would be an application and a statement of claim. Justice Gilbert rejected this argument:6
Mr Lewis’ proposal involves grafting an application for leave onto the statement of claim by amendment and then severing the application from the statement of claim. At that point, the application for leave would “emerge”. The obvious problem with this course is that the application for leave so produced will only then come into being, well outside the statutory time limit.
5 D v Immigration and Protection Tribunal [2015] NZHC 2458, [2015] NZAR 1940.
6 At [12].
[18] In sum, Gilbert J refused to find error where there was none and to artificially create the relevant documentation outside the statutory time limit. With respect, I agree entirely with Gilbert J’s reasoning.
[19] The present case is immediately distinguishable, however, because
Mr Chaudhry has filed an application seeking leave for judicial review.
[20] I consider the present situation to be closer to that in AR (Samoa) v Refugee and Protection Officer.7 The applicants in that case applied under s 245(1) of the Act for leave to appeal, and under s 249 of the Act for leave to bring judicial review proceedings. The applications were deficient:
[3] The present applications suffer from the failure to set out as questions the questions of law concerning which leave is sought. Likewise the intended grounds of review are not specifically identified or particularised. A general proposition, namely the failure to consider (or consider sufficiently or give sufficient weight to) cultural issues is identified, but more is required in order to allow proper consideration of the statutory criteria and also analysis of whether the issues properly arise on the facts.
[21] Nevertheless, Simon France J considered the applications and dismissed them because he did not find that they raised a legal issue that was seriously arguable on the facts.8 He did not refuse to consider the applications because of the failures he identified.
[22] In my view, the Crown’s submissions confuse jurisdiction with a restriction on the exercise of jurisdiction.
[23] The Court’s jurisdiction to review a decision of the Tribunal is conferred primarily by the Judicature Amendment Act 1972.9 Section 249 of the Act does not confer a jurisdiction, it restricts the Court’s judicial review jurisdiction. Restrictions include the requirement to obtain leave to bring review proceedings. Section 249(6) specifies factors to which the Court must have regard in deciding whether to grant
leave.
7 AR (Samoa) v Refugee and Protection Officer [2016] NZHC 1108.
8 At [15].
9 There is no need for me to refer to the “extraordinary remedies” jurisdiction of the common law.
[24] The position can be contrasted with that arising from s 245 of the Act. That section does confer a jurisdiction. It confers the jurisdiction, subject to its terms, to hear and determine an appeal on a question of law arising from a decision of the Tribunal. So, appeals to that jurisdiction are properly termed appeals “under” s 245.10
[25] In the case of s 249, although it is procedurally common to say that an application for leave to bring review proceedings is an application “under” s 249, the term has no substantive meaning. It is simply a reference to the statutory provision which restricts the Court’s jurisdiction to hear applications for judicial review of decisions of the Tribunal.
[26] The documents filed by Mr Chaudhry identify in their intituling the statute that confers the relevant jurisdiction for judicial review (the Judicature Amendment Act 1972) and the statute which restricts access to that jurisdiction (the Immigration Act 2009). As to the latter, the intituling does not refer to s 249 but, irrelevantly, to s 207(1). That is not fatal. It is a matter of form. If necessary it can be corrected.11
[27] The body of the “Notice Of Application For Leave To Apply For Judicial Review” informs the Court and the respondents that leave is sought to apply for judicial review of a decision of the Tribunal. It identifies the decision by date. It gives grounds. I accept, of course, that no lawyer with basic competence in this area would regard this document as being adequate for its purpose. It does not mention s 249 and it does not address the s 249(6) factors which the Court must have regard to in order to determine whether to grant leave. But that can be fixed pursuant to
r 1.9.12
10 And s 245(2) uses that expression.
11 There is ample scope within the Rules to amend documents and non-compliance with rules creates irregularity, not nullity: r 1.5.
12 “(1) The court may, before, at, or after the trial of any proceeding, amend any defects and errors
in the pleadings or procedure in the proceeding, whether or not there is anything in writing to amend, and whether or not the defect or error is that of the party (if any) applying to amend; (2) The court may, at any stage of a proceeding, make, either on its own initiative or on the application of a party to the proceedings, any amendments to any pleading or the procedure in the proceeding that are necessary for determining the real controversy between the parties.”
[28] I agree with Mr Deliu that in a case where a person is clearly attempting to exercise access to the Court to address their immigration status, and makes that attempt within the statutory time limit, it is the substance of the documents filed which must be looked at, not their form. This is not the sort of situation which Gilbert J had to address in D v Immigration and Protection Tribunal. I am not being asked to find error where there was none. Neither am I being asked to artificially create necessary documentation.
[29] It would be preferable, of course, if the application for leave did address the threshold requirements laid out in s 249(6). But a failure to do so does not mean the Court is unable to assess whether those requirements have been met. Something similar appears to have occurred in LMN v Immigration and Protection Tribunal
New Zealand.13 The applicant in that case filed written submissions in which he
failed to identify the questions of law that he contended satisfied the threshold in s 245(3) for granting leave to appeal. Instead, these “had to be gleaned from his submissions”.14 During the hearing, after an exchange between bench and bar, some questions of law were identified and presented in handwritten form. A printed version, largely confirming these questions, was filed shortly after the hearing. It does not appear from the judgment that the applicant directly addressed the threshold requirements of s 245(3). The Court was still able to consider whether the questions of law identified raised questions of general or public importance.
[30] Lastly, it is significant that s 249(6) requires “the court” to have regard to the leave requirements of that provision.15 Counsel should, of course, address these considerations when seeking leave for judicial review. This is the point made by Simon France J in AR (Samoa). But, given that the subsection directs the Court rather than the applicant, a failure to do so cannot be said to render the application for leave a nullity.
[31] My clear view is that Mr Chaudhry’s failure to address the leave requirements of s 249(6) is not fatal to the application. The application has
identified a number of grounds of review. If it is clear to the Court that those
13 LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077.
14 At [22].
15 By way of contrast, s 249(4) refers to the “application” itself.
grounds satisfy s 249(6), then the Court will be in a position to grant leave to apply for judicial review. Mr Chaudhry’s failings do not help the applicant’s case but they are not lethal to it. In any event, r 9.1 gives room to correct deficiencies. Mr Deliu advised me that he has instructions to apply to make necessary amendments if given the chance to do so.
[32] Finally, Ms Jerebine for the Crown told me by way of background of the frustrations felt in the Crown Law Office at the frequent filing of documents in this area which are patently defective but which require response. I sympathise. The Court has to deal with such documents too, and not just in this area. But, particularly in immigration cases, substantive rights are engaged. As a general rule, where time limits have been complied with, and documents are deficient but present and identifiable, then the jurisdiction of the Court is engaged.
Decision
[33] The application is dismissed.
[34] The Crown is to pay costs on a 2B basis.
Brewer J
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