Khurana v Minister of Immigration
[2025] NZHC 470
•11 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2024-404-862
[2025] NZHC 470
UNDER the Judicial Review Procedure Act 2016 BETWEEN
PARAS KHURANA
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 3 March 2025 Appearances:
R Singh and M Ahuja for the applicant
S Jerebine and J McCarthy for the respondent
Judgment:
11 March 2025
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on 11 March 2025 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Bankside Chambers, Auckland
Legal Associates Barristers & Solicitors, Auckland
KHURANA v MINISTER OF IMMIGRATION [2025] NZHC 470 [11 March 2025]
[1] In March 2023, Immigration New Zealand (INZ) served a deportation liability notice (DLN) on Mr Khurana under s 157 of the Immigration Act 2009 (the Act). In May 2023, having reviewed extensive material, including material provided by Mr Khurana, INZ informed him that the deportation would proceed.
[2] Mr Khurana then, in June 2023, requested that the Minister of Immigration intervene. However, in March 2024, the Minister’s delegated decision maker advised that the Minister was not prepared to intervene in this case.
[3] Under s 247 of the Act, judicial review proceedings in respect of any statutory power of decision under the Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision. However, there is an exception if the High Court decides that, by reason of “special circumstances”, an extension of time should be allowed.
[4] Mr Khurana failed to bring judicial review proceedings within 28 days of either the March or May 2023 decisions. He did, however, bring judicial review proceedings in time in respect of the Minister’s decision not to intervene.
[5]In this judgment, I determine Mr Khurana’s:
(a)application for an extension of time to bring judicial review proceedings in relation to the March and May 2023 decisions; and
(b)application for judicial review in relation to the Minister’s decision not to intervene.
Mr Khurana’s work visa
[6] On 27 September 2022, Mr Khurana applied for an accredited employer work visa (work visa) to work as a retail supervisor for Super Shine Botany Ltd in Auckland. He was based in India at the time he made his application.
[7] During processing of his application, INZ requested further information from Mr Khurana. On 21 October 2022, INZ requested evidence of his qualifications and other specifications listed by the employer as the minimum requirements for the job.
[8] In response, on the same date, Mr Khurana submitted a class XII qualification certificate issued by The Central Board of Higher Education, New Delhi (CBHE).
[9] On 26 October 2022, Mr Khurana was granted a three-year work visa to work as a retail supervisor for Super Shine Botany Ltd in Auckland.
[10]On 17 November 2022, Mr Khurana entered New Zealand.
INZ’s March and May 2023 decisions
[11] On 25 November 2022, INZ completed a review of CBHE and identified concerns including the possibility of the qualification, and CBHE, being fraudulent. INZ then took further steps to verify CBHE and concluded it was fraudulent.
[12] On 24 March 2023, INZ informed Mr Khurana that the class XII qualification certificate issued by CBHE was fraudulent and served him with the DLN on the grounds he had supplied false and misleading information. This is what I refer to as the March 2023 decision.
[13] The DLN advised Mr Khurana of his right under s 157(2) of the Act to give “good reason” to INZ, within 14 days, as to why he should not be deported. It also advised him that he had the right to appeal to the Immigration and Protection Tribunal (IPT) on humanitarian grounds within 28 days. He did not file an appeal.
[14] On 6 April 2023, Mr Khurana provided INZ with his “good reasons” why deportation should not proceed. He contended that CBHE is a legitimate education provider that is still active and has a large enrolment, and provided supporting material.
[15] On 19 May 2023, having reviewed material it had obtained, together with the material provide by Mr Khurana, INZ informed him that it remained of the view that
CBHE was a fake, unrecognised and illegitimate institution and that the deportation would proceed. I refer to this as the May 2023 decision.
[16]On 26 May 2023, Mr Khurana’s work visa was cancelled.
The Minister’s refusal to intervene
[17] On 6 June 2023, counsel for Mr Khurana requested ministerial intervention. The request was made by email and asked for the Minister to consider his case to allow him to work in New Zealand and attached seven documents.
[18] On 11 March 2024, the delegated decision maker for the Minister wrote to counsel for Mr Khurana advising that the Minister was not prepared to intervene in the case.
Failure to apply for judicial review within time
[19] Despite the fact INZ’s decisions were made in March and May 2023, Mr Khurana did not seek to challenge either of those decisions (or the decision of the Minister) by filing proceedings in this Court until April 2024. The documents he filed are dated 4 April 2024 and date-stamped 16 April 2024. They were served on the Crown Law Office on 17 April 2024.
[20] The proceedings sought to challenge the March and May 2023 decisions out of time despite the statutory bar in s 247 of the Act. No application for extension of time was made at this time. It was not until September 2024 that Mr Khurana applied for an extension of time.
Official Information Act request
[21] On 22 March 2024, Mr Khurana requested all information held about himself under the Official Information Act 1982 (OIA) and the Privacy Act 2020. On 21 April 2024, the Ministry of Business, Innovation and Employment disclosed the information requested.
Extension of time under s 247
The law
[22] The leading case on “special circumstances” under s 247 is the decision of the Court of Appeal in Rajan v Minister of Immigration.1 The Court discussed the Act’s emphasis on timeliness and said that “the discretion to extend time should not be exercised too readily and very rarely if the delay is long.”2 The Court also indicated that “special circumstances” require circumstances that are uncommon, not commonplace, out of the ordinary and abnormal.3 The Court further held a finding of special circumstances will depend on the length of the delay, the reasons for the delay and (in marginal cases) a brief examination of the merits.4
[23] The High Court has observed that, where there has been a substantial period of delay, virtually no circumstances will be sufficiently “special” to warrant the grant of leave.5 The High Court has also described a delay of 23 days in the context of the 28-day time limit as being “too long”.6 The same was true of a delay of three months.7
[24] In Fernandes v Immigration and Protection Tribunal, the Court of Appeal held that failure by a legal adviser in the circumstances of that case was not a good reason to excuse delay.8
[25] In Rajan, the Court of Appeal held that waiting for release of documents did not amount to special circumstances that warrant further time. The Court considered that the claim, which was general in nature, could have been filed without the documents. Waiting for documents was no excuse for the delay in filing.9
1 Rajan v Minister of Immigration [2004] NZAR 615 (CA).
2 At [24]. See also Ochibulu v Immigration and Protection Tribunal [2022] NZCA 278 at [31].
3 Rajan v Minister of Immigration, above n 1, at [24].
4 At [25]–[30].
5 Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [26], applied in Su v Minister of Immigration [2021] NZHC 2491.
6 Ly v Minister of Immigration HC Auckland CIV-2011-404-1540, 5 May 2011 at [55].
7 Bhasin v Immigration and Protection Tribunal [2018] NZHC 644 at [26].
8 Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544 at [10].
9 Rajan v Minister of Immigration above n 1, at [27].
[26] In BZ (Sri Lanka) v Immigration and Protection Tribunal of Auckland, the High Court held that the applicant’s personal circumstances, including his health issues, were not sufficiently special or uncommon to warrant a six-month extension of time.10
Length of delay
[27] The delay from notification of the May 2023 decision and filing of proceedings in April 2024 was more than 10 months. Counsel for the Minister describes the delay as “extraordinarily long”. I agree with this description. The delay was 10 times the permitted period.
Reasons for the delay
[28] Mr Khurana gives three reasons for the delay. First, he says that he has been diagnosed with depression, is receiving treatment, and has ongoing fragile mental health. He says that, due to his mental health condition, he was unable to comprehend or act on legal options in a timely manner. To support this, Mr Khurana has provided a very short medical certificate from a general practitioner dated 10 September 2024. This states, “He is having Depression because of his deportation orders. He is under treatment for Depression.”
[29] Second, Mr Khurana submits that the delay was justified because the challenge could not have been brought until he received the response to his OIA request. He says that critical evidence only became available through the OIA disclosure. He says that he acted promptly on receipt of the disclosure to bring his judicial review application.
[30] Finally, Mr Khurana says that the delay arose from counsel error. He says incorrect legal advice from his previous immigration adviser resulted in a failure to lodge an appeal in time with the IPT. Mr Khurana submits that this delayed the bringing of the judicial review proceedings.
10 BZ (Sri Lanka) v Immigration and Protection Tribunal of Auckland [2015] NZHC 2883 at [4] and [36]–[37].
Decision
[31] It is clear to me that there are no special circumstances that justify the extreme delay in this case.
[32] The very short medical certificate that Mr Khurana has supplied is entirely inadequate. It does not provide any details regarding Mr Khurana’s depression. There is no indication as to severity or any assessment of the impact on Mr Khurana’s functioning, including his ability to give instructions during the period in which the depression was experienced. The certificate is dated 10 September 2024. It provides no indication as to whether Mr Khurana had depression from May 2023 to April 2024. Nor is there any indication as to what had changed to allow Mr Khurana to provide instructions in April 2024.
[33] Mr Khurana’s claim that delay was caused by the need to wait for the information that was disclosed pursuant to the OIA request does not fit the timeline. As I have noted, he filed his proceedings some time between 4 and 16 April 2024 but the documents were not released until 21 April 2024. This shows that the documents were not in fact needed to make his claim and this could not have been the reason for the delay. In any case, as held in Rajan, waiting for documents was no excuse for the delay in filing. The claim could have been brought in general terms with further particulars provided later once the disclosure was received. Moreover, the OIA request was not made until March 2024. A delay from May 2023 to April 2024 cannot be explained by waiting for documents in circumstances when, for most of the period, the documents had not been requested.
[34] Finally, as I have explained, Mr Khurana says that the delay was caused by his previous counsel failing to lodge an appeal in time with the IPT. However, it is not clear how this led to the delay in applying for judicial review.
The merits
[35] In a case like this, where the delay is extremely long, and the reasons for the delay are weak, there is no need to review the merits. However, for completeness, I will say something about the merits.
[36] The basis on which Mr Khurana wishes to challenge the March and May 2023 decisions appears to be weak. The crux of Mr Khurana’s position seems to be that INZ’s investigation into CBHE was inadequate and that the material that he provided to INZ demonstrates that CBHE is not fraudulent.
[37] However, it appears to me that INZ’s investigation was more than adequate. INZ found detailed evidence suggesting that CBHE is fraudulent. The May 2023 decision lists the evidence in detail. It set out over four pages of summarised research, including review of Indian case law. It noted numerous occasions that Indian State Government sources reported CBHE as a fraudulent institution, including in 2019 when the State Government of Jammu and Kashmir declared CBHE was a “fake institution” and that CBHE’s certificates and examinations were not recognised by any national board or authority.
[38] In contrast, the material that Mr Khurana relies on is far from compelling. Much of it is information provided by CBHE itself. The only third-party information is very out of date and does not advance Mr Khurana’s contention that CBHE is genuine.
Judicial review of the Minister’s decision
The law
[39] Under s 61 of the Act, the Minister may at any time grant a visa to a person who is unlawfully in New Zealand and is not a person in respect of whom a deportation order or removal order is in force. A decision to grant a visa under s 61 is in the Minister’s “absolute discretion”.
[40] The term “absolute discretion” is defined in s 11 of the Act. The section provides that there is no obligation on the decision maker to inquire into the circumstances of the person in question or make any further inquiries in respect of any information in respect of the person. Further, the decision maker is not obliged to give reasons for any decision.
[41] In Zhang v Associate Minister of Immigration, the Court of Appeal confirmed that the availability of judicial review of a decision in the exercise of an absolute discretion is very limited. The Court is limited to examining whether, on the information before the decision maker, the decision could be seen as unreasonable in the Wednesbury sense.11
[42] Mr Khurana claims that the Minister’s decision was unlawful for three reasons. First, the Minister relied on information that was outdated, speculative, unreliable and unverified. Second, the Minister failed to assess verified documents from Mr Khurana. Third, the Minister failed to consider the significant humanitarian impact that deportation would have on Mr Khurana as required by immigration law and international human rights obligations.
[43] None of these grounds form a proper basis for judicial review of the Minister’s decision. All the information relied on by Mr Khurana was provided to the decision maker. Further, as I have explained, the Minister is not required to give reasons. It follows that it is not possible to argue that the Minister took into account irrelevant material, failed to consider relevant material, or did not take account of relevant law.
[44] Mr Khurana has not claimed that the Minister’s decision meets the Wednesbury test for unreasonableness. But, for completeness, I note that the Minister’s decision does not satisfy the Wednesbury test for unreasonableness. There is no indication that the Minister’s decision was irrational or unreasonable.
Result
[45]The application for extension of time under s 247 of the Act is declined.
[46]The judicial review application is dismissed.
[47] The Minister is entitled to costs. Costs are payable for a category 2 proceeding. Band B is appropriate in relation to each step in the proceeding. Reasonable disbursements are also payable.
11 Zhang v Associate Minister of Immigration [2016] NZCA 361, 2016 NZAR 1222 at [23].
Blanchard J
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