Kumar v Immigration and Protection Tribunal
[2018] NZHC 342
•7 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002240
[2018] NZHC 342
UNDER Immigration Act 2009, s 247 BETWEEN
SHAWN EDWARD KUMAR
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENTSecond Respondent
Hearing: 2 March 2018 Appearances:
Applicant in Person
N Fong for Second Respondent
Judgment:
7 March 2018
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 7 March 2018 at 3.00 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar
Date……………………….
KUMAR v IMMIGRATION AND PROTECTION TRIBUNAL & OR [2018] NZHC 342 [7 March 2018]
Introduction
[1] The immediate issue in this case is whether the Immigration and Protection Tribunal is obliged to accept for filing a purported appeal by a person whose visa, which was granted under s 216(1) of the Immigration Act 2009 (the Act), has expired.
[2] On 29 June 2017, the plaintiff, Shawn Kumar, became unlawfully in New Zealand following the expiry of his temporary entry class visa granted pursuant tos 216(1) of the Act. On 5 September 2017, Mr Kumar sought to lodge an appeal against his liability for deportation on humanitarian grounds. The Immigration and Protection Tribunal refused to accept Mr Kumar’s appeal for filing on the basis that it was outside the time permitted by s 154(2) of the Act. Mr Kumar had applied for judicial review of that decision.
[3] Mr Kumar appeared in person in support of his application. He appears not to have had the benefit of legal advice. Nevertheless, he produced written submissions, which he supplemented orally. The main ground he advanced was that under s 154(4) he had 42 days from the declinature of his work visa application on 28 July 2017 to appeal against the decision and his purported appeal was within that time frame.
[4] Mr Kumar also submitted that as he had applied for a work visa before the temporary class entry visa expired, he should therefore have been granted a further temporary visa pending determination of that application. There is no provision in the Immigration Act to support this assertion and I do not need to consider it further.
[5] Mr Kumar also pointed out that Immigration New Zealand (INZ) had accepted an appeal filed by his wife on the same day as the appeal he sought to file and that there was no reason for the difference in treatment. He produced the documents relating to Mrs Kumar’s appeal. Mr Fong, for the Chief Executive, had not previously seen these and knew nothing of Mrs Kumar’s appeal. Having made some inquiries during a brief adjournment, Mr Fong did indicate that there might be an explanation. But this issue cannot be one that impacts on Mr Kumar’s rights for the purposes of this judicial review.
[6] For the reasons that follow I find that Mr Kumar’s application cannot succeed. The result is that he is unlawfully in New Zealand and has no available rights of appeal. I do, however, record that Mr Kumar’s personal circumstances are very difficult as a result of his wife’s ill-health. It is a situation that naturally evokes a sympathetic response. The legal answer to the issue before the Court does not assist him. However, Mr Fong indicated that once a legal answer to the issue had been obtained a further interview would be conducted with Mr Kumar at which his personal circumstances would be fully considered, possibly with a view to considering the cancellation of any deportation order, under s 177 of the Act.
Background
[7] Mr Kumar and his wife are Fijian citizens. They came here in 2011 with their three daughters. Mr Kumar initially obtained a student visa and subsequently a work visa and worked as a chef. He made two unsuccessful residence applications. They were refused as a result of Mr Kumar’s initial failure to disclose three dishonesty convictions (two of which were relatively minor and dated back to his youth).
[8] Mr Kumar made a further unsuccessful application to renew his work visa. When his temporary entry class visa expired on 23 December 20161 he became unlawfully in New Zealand on 24 December 2016,2 and liable to deportation.
[9] Mr Kumar appealed on humanitarian grounds under ss 206 and 207 of the Act. In a decision dated 27 March 2017, the Immigration and Protection Tribunal dismissed Mr Kumar’s appeal but made an order under s 216(1)(b) of the Act that he be granted a three-month temporary (work) visa to enable him to get his affairs in order.3 Pursuant to that visa Mr Kumar could remain in New Zealand lawfully until 27 June 2017.
[10] Likewise, Mr Kumar’s wife, who was also unlawfully in New Zealand, appealed unsuccessfully on humanitarian grounds and was granted a three-month temporary visa under s 216(1)(b) that permitted her to remain in New Zealand until 29 June 2017.
1 Immigration Act 2009, s 63.
2 Immigration Act 2009, s 69.
3 Re Kumar [2017] NZIPT 5403127-28.
[11]Immigration New Zealand wrote to Mr Kumar on 10 April 2017 saying:
Thank you for your application for a work visa – Replace. We received your application on 27 March 2017.
…
I am pleased to tell you that we have approved your application for a New Zealand work visa.
…
Your work visa includes travel conditions which allow you to re-enter New Zealand as many times as you like until 27 June 2017.
…
[12] Mr Kumar produced this letter for the first time at the hearing. It had not been included in the affidavit filed on behalf of the Chief Executive for the purposes of the judicial review hearing. I allowed Mr Fong time to seek instructions on it and there was no objection to its production. It seems more likely than not that the letter was intended to constitute the grant of the temporary entry class visa ordered by the Tribunal, although, confusingly, it does not refer to the Tribunal’s order.
[13] On 19 June 2017, shortly before the expiry of the temporary visa granted pursuant to s 216(1)(b) of the Act, Mr Kumar applied for a work visa. INZ had not responded to that application by 27 June 2017, which was the date specified as being the expiry date of the temporary visa granted pursuant to s 216(1)(b). As a result, Mr Kumar became unlawfully in New Zealand for the second time on 28 June 2017.4
[14] On 28 July 2017,INZ declined the work visa application that had been made on 19 June 2017.
[15] On 5 September 2017, Mr Kumar sought to lodge an appeal against deportation on humanitarian grounds. INZ refused to accept the appeal for filing on the ground that Mr Kumar had no right of appeal. That refusal is the decision under challenge.
4 Immigration Act 2009, ss 9 and 63.
Judicial review
A right of appeal?
[16]Sections 154 and 216 of the Act govern Mr Kumar’s situation.
[17]Section 154 relevantly provides that:
(1)A person unlawfully in New Zealand is liable for deportation.
(2)A person unlawfully in New Zealand may, not later than 42 days after first becoming unlawfully in New Zealand, appeal on humanitarian grounds against his or her liability for deportation.
(3)Subsection (2) applies if (4) or (5) applies.
(4)If the person is unlawfully in New Zealand following an unsuccessful reconsideration under section 185 of a decision to decline his or her visa application, the person may appeal on humanitarian grounds against his or her liability for deportation not later than 42 days after the later of –
(a)the day on which the person became unlawfully in New Zealand; or
(b)the day on which the person received confirmation of the decision to decline his or her visa application.
(5)A person is not entitled to an appeal under subsection (2) if –
…
(b)the person has already had an opportunity (whether exercised or not) to appeal against his or her liability for deportation.
[18] Mr Kumar argued that s 154(4) applied and allowed him 42 days from the date that the visa application he made on 19 June 2017 was determined, which was 28 July 2017. However, s 154(4) does not apply to Mr Kumar’s situation. Section 154(4) applies only where the decision sought to be appealed was the “reconsideration” of a decision to decline an application for a further temporary visa made under s 185(3) of the Act.
[19] There are two other insuperable hurdles for Mr Kumar. First, Mr Kumar’s situation falls within s 154(2) and (5)(b) of the Act. Under s 154(2) an appeal can only be brought by a person unlawfully in New Zealand on humanitarian grounds within
42 days of the person “first becoming unlawfully in New Zealand”. Mr Kumar was first unlawfully in New Zealand in December 2016. Even if time had run from 29 June 2017, the second occasion when he became unlawfully in New Zealand,Mr Kumar would still be out of time to bring an appeal. The Immigration and Protection Tribunal Regulations 2010 make it clear that Mr Kumer was not entitled to file his further purported appeal and nor was the Tribunal entitled to receive it. Regulation 4(1)(e) requires any notice of appeal to the Tribunal to be “lodged with the Tribunal in accordance with the applicable practice note”. Clause 3.2 of the Practice Note provides that “[a]n appeal is not properly made until it has been received by the Tribunal … within the time for lodgement”5 and “the Tribunal does not have jurisdiction to accept a deportation (non-resident) appeal which is lodged out of time.”6
[20] Under s 154(5)(b), there is no right of appeal under s 154(2) once a person has had an opportunity to exercise an appeal. That this is the undoubted effect is made clear by s 206(2) which provides, inter alia, that:
No person may appeal to the Tribunal on humanitarian grounds –
…
(b) If he or she is a person to whom s … 154(5) applies.
[21] The effect of ss 154(5) and 206(2)(b) is that because Mr Kumar had exercised a right of appeal on humanitarian grounds in March 2017, he has no further right of appeal on that ground.
[22] The second insuperable hurdle, on which the Chief Executive primarily relies, is that s 216, pursuant to which Mr Kumar obtained the temporary entry class visa in March 2017, expressly precludes any further appeal against liability for deportation. Section 216 allows the Tribunal to order the grant of a temporary entry class visa for a period not exceeding 12 months for the very limited purposes of enabling the appellant to get his or her affairs in order. It provides:
5 Practice Note 4/2015 (Deportation – Non-Resident), 8 June 2015 at cl 3.2.
6 Clause 3.6 (emphasis in the original).
(1)On declining an appeal against liability for deportation, if the Tribunal considers it necessary to enable the appellant to remain in New Zealand for the purposes of getting his or her affairs in order, it may order –
…
(b) That a temporary entry class visa valid for a period of not exceeding 12 months, commencing on the date of the Tribunal’s decision, be granted to the appellant.
(2)If the Tribunal orders the grant of a visa under subsection 1(b), no further appeal against liability for deportation may be brought by the holder upon the expiry of the visa or upon the holder earlier becoming liable for deportation.
(emphasis added)
[23] The limited nature of the power in s 216 is evident from the wording of the section and also from the fact that a person seeking an order under s 216(1) will, by that stage, have exhausted all other rights of review and appeal, including the right of appeal on humanitarian grounds under s 207. An order under s 216(1) is a last resort.7 The effect of s 216(2) is that Mr Kumar had no further right of appeal against liability for deportation once the visa granted pursuant to s 216(1) had expired.
[24]In summary, Mr Kumar first became unlawfully in New Zealand on
24 December 2016 when his temporary entry class visa expired.8 He became unlawfully in New Zealand for a second time on 29 June 2017. At that point, he had no further right of appeal of any kind. Further, the Tribunal was not permitted to receive any purported appeal for filing.
Two other issues
[25] Mr Kumar raised two other issues. There is no evidential basis for them, though I did allow Mr Kumar to explain the position to me.
[26] The first is that Mr Kumar maintains that on or about 19 June 2017 he was told by a staff member at INZ that he was entitled to apply for an extension of his temporary
7 Chief Executive of the Ministry of Business, Innovation & Employment v Singh [2018] NZHC 272.
8 Immigration Act 2009, s 9(2)(b) provides that a person becomes unlawfully in New Zealand “on the day after the date on which the person’s visa expired”.
entry class visa. He sought to produce a CD of a recording of this telephone conversation, which I did not allow. Mr Kumar’s statutory rights cannot, of course, be affected by any advice given by INZ, even if wrong. But two questions arise that might warrant further consideration by the parties.
[27] One question is that, if Mr Kumar was incorrectly advised by INZ as to his rights, has that fact caused him to be in New Zealand unlawfully and liable to deportation (with the possible implications of that status) when he might otherwise have departed voluntarily? The other question is that, although s 216(2) precludes a further appeal against liability for deportation, is there anything to preclude a person granted a temporary visa under s 216(1) from applying to extend it? In relation to the latter question, Mr Fong suggested that Mr Kumar might have been (or might still be) able to apply under s 61 of the Act.
Result
[28]The application for judicial review is dismissed.
[29] The Chief Executive indicated that she would be seeking costs. That issue may be addressed by memorandum filed within 14 days and Mr Kumar may respond within a further 14 days.
P Courtney J
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