Kumar v Immigration and Protection Tribunal
[2014] NZHC 2670
•30 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-211 [2014] NZHC 2670
BETWEEN VINAL NILESH KUMAR
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
MINISTER OF IMMIGRATION Second Respondent
Hearing: 23 October 2014 Counsel:
M L Clark for Applicant
A R Longdill for First and Second RespondentsJudgment:
30 October 2014
JUDGMENT OF FOGARTY J
This judgment was delivered by me on 30 October 2014 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ................................
Solicitors:
Vallant Hooker, Auckland
Meredith Connell, Auckland
KUMAR v IMMIGRATION AND PROTECTION TRIBUNAL [2014] NZHC 2670 [30 October 2014]
Introduction
[1] This is an application for leave to bring review proceedings against the decision of the Immigration and Protection Tribunal (the Tribunal) made on
3 December 2013 and notified to the applicant on 4 December 2013. It declined
Mr Kumar’s appeal against liability for deportation on humanitarian grounds.
[2] In accordance with ss 245 and 247 of the Immigration Act 2009 (the Act) the appeal needed to have been filed within 28 days of 4 December 2013.
[3] On 6 December, the applicant’s counsel wrote a letter enclosing the decision of the Tribunal which had a covering letter explaining that notice for application for leave to appeal had to be lodged with the Registrar of the High Court and served on the Tribunal within 28 days. The covering letter from the applicant’s counsel did not calculate that date. The letter did not recommend taking an appeal. It ended with this paragraph:
If you and your parents want to meet me to discuss this decision — please call and we can make a time. The decision means that you must return to Fiji and if you ever want to return to New Zealand — you would need to prove that you are no longer an alcoholic. The time to seek to return to New Zealand was at least reduced to three years and not the usual five years.
[4] There was an exchange of e-mails between Mr Kumar’s mother and his counsel. On 17 December his mother sent an e-mail to his solicitor, advising of progress with his alcohol problems. That brought a reply on 18 December by his solicitor beginning with the observation:
the problem is — he has only just now decided to finally do something with his life. I cannot see the Minister agreeing to let him stay so early in his recovery…can he get all this going now — then we could try to petition the Ministry of Immigration with evidence of a job (and a reference), of going to AA of being reconnected with his religion etc.
She then went on to discuss the fees for this and she finished by saying:
I am back in the office on 17 January so perhaps we could look at what evidence he has and if you want to go ahead we could do it then.
[5] Mr Kumar, however, was deported before 17 January, the time for his appeal being calculated without regard to statutory holidays. He was deported on
16 January. In the first decision in this case on 28 August 2014, I held that the reference to 28 days in s 247 of the Act does not exclude weekends or holidays.
[6] In the second decision in this application on 2 October, I held that there had been a partial waiver of solicitor/client privilege by the use of the e-mails that I just discussed. As a result of that, I allowed the Crown to ask further questions of the applicant’s solicitor at the time who has since filed an affidavit in these proceedings. In that affidavit she said:
Given the findings of the (Tribunal) the only realistic option that I could see for Mr Kumar was to petition the Minister of Immigration to exercise his discretion under s 378 Immigration Act 2009.
[7] During January the applicant changed solicitors to the firm of Vallant, Hooker and Partners. This took some time for two reasons. First, he was no longer entitled to legal aid being in Fiji. Second, his family did not have the resources immediately to be able to commit to the financial cost of retaining a firm of specialists. They got organised and later in January retained the firm who filed a statement of claim for judicial review on 5 February 2014.
[8] Section 247(1) of the Act provides:
247 Special provisions relating to judicial review
(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.
[9] Accordingly, the Court has to decide whether by reason of special circumstances further time should be allowed.
[10] Section 249 also applies as it addresses review proceedings in respect of any matter before the Tribunal. Relevantly, ss 249(1A), (1B) and (1C) apply:
249 Restriction on review
(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is
made and the Tribunal issues final determinations on all aspects of the appeal.
(1A) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(1B) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (1A) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
(1C) 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.
(2) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[11] No appeal has been brought against the determination of the Tribunal. It has not been argued before this Court that the review proceedings involve issues that could not be adequately dealt with in the High Court in an appeal against the final determination of the Tribunal.
[12] Therefore, the Crown submitted, s 249(1C)(b) applies and the issues must be by reason of their general and public importance or for any other reason ought to be submitted to the High Court for a review.
[13] The oral argument conveniently divided between the reasons for delay, which are to be examined under s 247(1) and whether the error of law contended was of importance being an application of s 249(1C)(b).
Summary of the parties’ position
[14] As to delay, the applicant argues that this was due to a mistake over the time limit and the need to change solicitor and the problems associated with that. That there were in context material reasons for the delay.
[15] As to issues of general or public importance or any other reason, the submission was that there was a material error of law. The error is said to be found in paragraph [85] of the Tribunal’s decision.
[16] Paragraphs [84], [85] and [86] need to be read to grasp the point:
[84] Accepting, as the Tribunal does, that there will be distress for the appellant’s family members (and the appellant) at being separated, and that it will cause the family financial hardship to support him (ameliorated by the fact that they will not be having to provide him with financial support in New Zealand), the Tribunal also takes into account that it is not in the appellant’s interests to continue the indolent lifestyle he has had to date and that a return to Fiji, where he will be forced to stand on his own feet, will impose on him the opportunity to mature and become independent. Whether he takes that opportunity is up to him.
[85] the Tribunal also takes into account that separation from his family need not be necessarily be permanent. A reduction of the period of ban, as the Tribunal intends to order, will give the appellant the change to apply again to return to this country. As well as meeting any other requirements, he would need, of course, to satisfy Immigration New Zealand that he is deserving of a waiver of the ‘good character’ requirement, which would no doubt include providing convincing evidence of his freedom from alcohol abuse. Any such application would be a matter for Immigration New Zealand and the Tribunal holds out no promises of success. Nevertheless, there would be compassionate reasons for permitting an alcohol-free, non- offending and mature appellant to re-unite with his only immediate family and he will at least have that goal to work towards.
[86] Weighing the offending (long-term and persistent, with significant risk of harm to others and repeated disregard for the law and the Court process) against the compassionate circumstances (notably, the separation of a young man who has been here for two thirds of his life from his immediate family), tempered by the prospect that if he addresses his alcohol abuse and offending he may be able to return here in due course (with no guarantee), the Tribunal finds that it is not unjust or unduly harsh for the appellant to be deported.
[17] The submission of Ms Clark, for the applicant, is that these paragraphs, particularly the last two sentences of paragraph [85], contain a presumption on the part of the Tribunal that after three years the applicant would be able to make an
application to enter New Zealand to Immigration New Zealand with rights of appeal onto the Tribunal, and that those decision makers would have the ability to take into account the reasoning in paragraphs [84], [85] and [86] in the applicant’s favour.
[18] Ms Clark submits that that is a serious error of law as the only application that the applicant could make for re-entry to New Zealand is to the Minister.
[19] The Crown’s position as to delay is to rely upon the decision of the Court of Appeal in Rajan v The Minister of Immigration.1 This decision considered the meaning of special circumstances under the predecessor section, s 146A. Materially in paragraph [24] the Court said:
The section 146A time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajan’s application was filed one month late and thus would require an extension of one third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay.
[20] At that time the time limit was three months. It has now been reduced to one month. Notwithstanding the reduction of time from three months to 28 days, this Court in the decision of Ly v Minister of Immigration2 continues to be guided by the Court of Appeal decision in Rajan.3 I agree with no qualification, but with the observation that delay is a judgment which always depends on context and its
application is likely to be affected when the period of time is shortened from three months to 28 days.
[21] As to error of law, the Crown argued that there was no error of law in the aforesaid paragraph [85] as the legislation allows an application to the Minister and
secondly, if there was an error it was not of general or public importance.
1 Rajan v The Minister of Immigration [2004] NZAR 615
2 Ly Minister of Immigration HC Auckland CIV-2011-404-1540, 5 May 2011.
3 See Whata J’s observation at [32]-[33].
Analysis
Delay
[22] It is most unusual for a Westminster Parliament in the common law tradition to impose by statute a time limit on application for judicial review to Courts of inherent jurisdiction as to government decisions. There is a history of hostile scrutiny of attempts by the legislature to oust the jurisdiction to conduct judicial review by what are called privative clauses.
[23] There has been no such hostile reception to the statutory limits on applications for judicial review on immigration decisions by the New Zealand Courts. One of the reasons for this will be that originally the period was three months, which of itself is consistent with the common law policies that applications for judicial review should be brought promptly. Secondly, a time limit of 28 days is also consistent with rights of appeal and in normal circumstances provides a reasonable period of time to bring judicial review proceedings.
[24] Another reason for placing limits on judicial review is that prior to the use of statutes it has always been a Crown prerogative to control the movement of persons and goods over the borders of a common law country. Of its nature, the question of movement of peoples and trade across borders is a core responsibility of a sovereign power. It also explains why the Immigration Act provides for an application to be made to the appropriate Minister of the Crown to enter New Zealand.
[25] It is plain from the narrative of events that the applicant’s original solicitor had read the decision and understood it as sensibly requiring this young man to go back to his homeland in Fiji to be separated from his immediate family in New Zealand to sort himself out, particularly his alcohol problem. But then, after three years, not five, to indicate that Immigration New Zealand and the Tribunal would receive sympathetically an application to re-enter New Zealand. It is plain that the solicitor assumed, like the Tribunal, that there was such an ability to enter. It is also clear that the solicitor thought that the decision made sense and could not be challenged on its merits.
[26] In short, the applicant’s original solicitor did not identify the error of law now
contended for as the principal reason for special leave.
[27] The sequence of events with the solicitor going overseas and not giving precise advice as to the time limit on appeal is obviously part of the breakdown in the relationship between her and the applicant. It also explains, without blaming anybody, the reason for the applicant and his family seeking to change solicitors. By reason of the deportation the applicant was no longer entitled to legal aid. Plainly he needed competent and skilled counsel to carry the case further. I am happy to accept from Ms Clark, as an Officer of the Court, that there was a natural delay in the family pooling resources in order to be able to meet the costs of these High Court proceedings and this took time. There is no doubt that within about a fortnight of retaining new counsel, these proceedings were issued. No one can suggest any delay on the part of either of the solicitors. This is in marked contrast to one of the cases
relied on by the Crown. In the case of Kesonsung v Minister of Immigration,4 a
s 146A case, Allan J found that the solicitors for the plaintiffs who had had to request information had then had:5
…at least four weeks before the limitation period expired. That left ample time for their counsel to consider the position, obtain instructions, and if so instructed, to launch judicial review proceedings.
[28] It needs to be kept in mind that that is in the context of a three month period.
[29] On the particular facts of this case I am not satisfied that there has been significant delay on the part of the applicant such as to deny him the availability of arguing special circumstances warranting a judicial review in the High Court.
[30] Rather, I think the difficulty in this case is on the question of whether or not the point he wishes to take to the High Court is of general or public importance.
4 Kesonsung v Minister of Immigration HC Auckland CIV-2006-404-1597, 22 September 2006.
5 At [23].
Need for the point to be of general or public importance
[31] The applicant, Mr Kumar, had a history of drink/driving offending. This spanned 2008 2013. By 2011 he had been charged with his fourth excess breath alcohol offence and, not for the first time, of driving while disqualified. In September 2012, he was finally apprehended, brought before the Court and sentenced to nine months imprisonment, with special release conditions. By that time he had also accumulated over $11,000 in fines. He twice breached his release conditions in 2012. In December 2012, he had been interviewed by an immigration officer about his possible liability for deportation. In March 2013, he was charged, for the fifth time, with driving with excess blood alcohol and again charged with driving while disqualified and now with also giving a false identity to the police.
[32] In September 2013, he was served with a deportation liability notice. He then filed an appeal with the Tribunal against liability for deportation. He was then aged
26. He has been in New Zealand since the age of nine. His family rallied round in support of the appeal.
[33] The Tribunal recognised the support of his family but, on the other hand, thought there were good reasons to make this young man stand on his own feet and fend for himself upon return to Fiji.
[34] It took note that at the time of his March 2013 offending, the Minister had in fact decided not to deport him for his fourth drink/driving offence and to suspend his deportation liability when he had been informed the appellant had offended again. It is in this context the Minister than reversed his decision and signed the deportation liability notice.
[35] That is the background behind the [84] – [86] set out above.
[36] Section 179 provides:
179Deported person may not enter New Zealand during period of prohibition on entry
(1) A person 18 years of age or over who is deported from New Zealand may not return to New Zealand, or be granted a visa or entry
permission, during the period of prohibition on entry that applies to the person as set out in the following table:
Why person deported Period of prohibition on entry (calculated from the date of deportation)
Section 155 applies (granted a visa as the result of an administrative error and visa not cancelled) none
Section 154 applies (unlawfully in New Zealand), and person is subject to deportation order and deported not more than 12 months after date on which person became unlawfully in New Zealand 2 years
Section 154 applies (unlawfully in New Zealand), and person is subject to deportation order and deported 12 months or more after date on which person became unlawfully in New Zealand 5 years
Section 154 applies (unlawfully in New Zealand), and person is subject to deportation order, and it is second or subsequent time that person has been unlawfully in New Zealand 5 years
Section 157 applies (sufficient reasons for temporary entry class visa holder to be deported) 5 years
Section 159 applies (breached resident visa conditions) 5 years
Section 156 applies (visa granted on basis of false identity)
permanent prohibition
Section 158 applies (convicted of gaining residence class visa by fraud, forgery, etc) permanent prohibition
Section 160 applies (new information as to character becomes available) permanent prohibition
Section 162 applies (refugee or protection status cancelled for fraud, forgery, etc) permanent prohibition
Section 161 applies (residence class visa holder convicted of specified offence) permanent prohibition
Section 163 applies (certified as person constituting threat or risk to security) permanent prohibition
(2) A person who is unlawfully in New Zealand but leaves New Zealand voluntarily before he or she is served with a deportation order is not subject to any period of prohibition on entry.
[37] With reference to s 179, his solicitor back in December 2013 obviously assumed that the period of prohibition on entry was five years. But, on analysis, Ms Longdill said it was a permanent prohibition, s 161 applying. I notice also, in the
first sentence of [85], the Tribunal takes into account that separation from his family need not necessarily be “permanent”. Section 215 of the Act provides:
215Tribunal may reduce or remove period of prohibited entry under deportation order
(1) On declining an appeal against liability for deportation, the Tribunal may in its absolute discretion order the reduction, or removal altogether, of the period of any prohibition on entry to New Zealand that would otherwise apply under section 179 following the person’s deportation from New Zealand.
(2) A reduction or removal under subsection (1) remains subject to section 180(1), unless the Tribunal otherwise orders.
[38] The Tribunal decision ends with an order reducing the period of prohibition on re-entry:
[104] The appeal being declined, the Tribunal orders, pursuant to section 215(1) of the Act, the reduction of the period of prohibition on entry to New Zealand that would otherwise apply under section 179 following the appellant’s deportation from New Zealand to a period of three years.
[105] Recognising the reality that any future return to New Zealand (if Immigration New Zealand allows it) would likely come at significant cost, including for proof of the appellant’s rehabilitation, and that his parents will very likely have to bear the brunt of those costs, the Tribunal orders, pursuant to section 215(2) of the Act, that the reduction of the period of prohibition is not subject to section 180(1).
[39] Ms Clark, for the applicant, argued, however, that while the Tribunal had the power to reduce the period of permanent prohibition to three years, it erred in the assumption that a subsequent application to enter New Zealand could be made to Immigration New Zealand with a right of appeal to the Tribunal (s 15(1)(b), (c) and (d)). Ms Clark also argued that subparas (c) and (d) applied. Ms Longdill also argued for subs (b).
[40] Ms Clark pointed out that persons prohibited under s 15(1)(c), (d), (e) or (f)
have to make a request for special directions.
[41] The Immigration New Zealand operational manual, in s S2.10 provides for different procedures depending on the different status of prohibited persons requesting visas. In the case of persons prohibited under ss 15.1(c) and (d) (and other paragraphs), the manual requires that the request should be referred to the
processing officer, then s 2.10.5(b):
The Resolutions Branch will then forward the request to the Minister of
Immigration for decision.
[42] If Mr Kumar is a person prohibited under s 15(1)(b), the policy is that an officer with Schedule 1-2 delegations may make a decision to decline or approve the request.6 But any approval of a request for a special direction authorising grant of a resident’s class visa requires the person making the request to be otherwise eligible for the grant of resident class visa under residence instructions.7 Ms Clark also pointed out that, as from 16 May 2012, siblings and adult children do not fall into the family category as potential applicants for entry to join their families. Her essential submission was for Mr Kumar to enter New Zealand, he will need the consent of the Minister.
[43] I am not satisfied that I have heard full argument on the ability or not of Immigration New Zealand and the Tribunal to consider in three years’ time an application by Mr Kumar for entry to New Zealand. I have heard, however, sufficient argument to be satisfied that there is a serious question as to whether such an application can be considered only by the Minister.
[44] If the latter proposition is correct, then the reasoning of the Tribunal warrants, in the circumstances, careful consideration by the High Court on review. For it is likely to be contrary to the scheme of the legislation and to general public law principles for the Tribunal to presume, let alone urge upon a Minister of the Crown, the exercise of a broad discretion, be it under statute or under Crown prerogative.
[45] This issue is of greater interest than this particular case. The Tribunal is an expert body. If there is a serious argument that the expert body does not understand the scheme of the Act and the separation of the decision making powers, that is a
matter of public interest.
6 Immigration New Zealand Operation Manual at s 2.10.10(a).
7 At s 2.10.15(b).
Court granting leave to the applicant to file proceedings by way of judicial review of the decision of the Tribunal for error of law.
[47] There is on the file a much earlier pleading, dated August, which was exhibit D to the affidavit of the applicant as the proposed application for judicial review. In the hearing before me, none of the causes of action pleaded in that amended statement of claim were pursued as special circumstances justifying the judicial review. The first cause of action pleaded that the 28-day period expired on
22 January so that he was deported prior to the expiry. The first decision in these proceedings rejected that argument.
[48] The second cause of action pleaded that there was a failure on the part of the Tribunal in its analysis as to the prospects of the applicant reoffending. This is an argument on the merits, not an argument on the law. There was considerable analysis of the history of his reoffending. Without going into the particulars, the arguments repeatedly argue that the Tribunal failed to “give weight” to certain facts. There is always room to argue that grossly failing to give adequate account to relevant facts could be a reviewable error but not in this context where judicial review is limited to matters of general and public importance.
[49] So that there is no doubt, I declare that the proposed amended statement of claim, exhibit D to the applicant’s affidavit sworn on 5 February 2014, cannot be pursued.
[50] Rather, a new statement of claim needs to be drafted focussing on the point examining whether paragraph [85] of the decision contains an error of law, being the assumption that future applications can be considered and decided by Immigration New Zealand and then on appeal by the Tribunal, against the counter-proposition that they can only be decided by the Minister.
[51] The applicant has succeeded in obtaining special leave but not on the grounds originally pleaded in the draft statement of claim. In the circumstances, costs will lie where they fall in respect of this part of the litigation. The applicant is to file a
this judgment, by 20 November. Thereafter the High Court Rules apply.
2
0
1