Kumar v Immigration and Protection Tribunal

[2014] NZHC 2404

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-00211 [2014] NZHC 2404

BETWEEN

VINAL NILESH KUMAR

Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

MINISTER OF IMMIGRATION Second Respondent

Hearing:	2 October 2014
Counsel:	M Clark for Applicant A Longdill for Second Respondent
Judgment:	2 October 2014

JUDGMENT (NO 2) OF FOGARTY J

This judgment was delivered by me on 2 October 2014 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Vallant Hooker & Partners, Auckland

Meredith Connell, Auckland

KUMAR v IMMIGRATION AND PROTECTION TRIBUNAL [2014] NZHC 2404 [2 October 2014]

[1]      Mr Kumar was deported to Fiji on 16 January 2014.  He has applied for leave to bring judicial review proceedings of that decision.

[2]      In  a judgment  dated 28 August  2014,  the Court  held  that  the preceding obligation to obtain leave under s 247 of the Immigration Act 2009 fell to be decided “by reason of special circumstances” because the application itself had not been commenced within the 28 days after the day on which he had been notified of the deportation decision.

[3]      The hearing as to whether or not there are special circumstances is set down for 23 October 2014.

[4]      As a preliminary to that hearing, Mr Kumar’s mother has sworn an affidavit which has been filed in these proceedings.  That affidavit details the chain of events after release of the deportation decision on 3 December 2013.  It includes a partial waiver of solicitor/client privilege by attaching the email correspondence between Mr Kumar’s then counsel, Ms Curtis, and Mr Kumar’s mother, Mrs Nalini Kumar.

[5]      In that affidavit, there is disclosed a letter by Ms Curtis to Mr Kumar, dated

6 December 2013.  In para 6 of that letter she invites her client to:

If you and your parents want to meet me to discuss this decision – please call and we can make a time.  The decision means you must return to Fiji and if you ever want to return to New Zealand – you would need to prove 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.

[6]      The second respondent wants to enquire of Ms Curtis as to whether that invitation was taken up and, if so, what advice she gave.

[7]      I am  satisfied  that  there has  been  a partial  waiver of the solicitor/client privilege.   The partial waiver can be defined as the advice given by Ms Curtis to Mr Kumar’s  mother  as  to  the  merits  of  his  case  as  it  was  presented  to  the Immigration and Protection Tribunal.

[8]      The invitation in para 6 falls within the same subject matter.   Therefore I consider that if her invitation was taken up and she gave some advice as a response, that falls within the waiver.

[9]      Accordingly:

(a)       Leave is granted for the second respondent, with the participation of counsel for the applicant, to ask Ms Curtis whether:

(i)Her invitation to her client in her letter of 6 December 2013, para 6, was taken up, by a meeting, or by a call, or by any other contact, and, if so;

(ii)      What advice Ms Curtis gave to Mr Kumar or to his mother.

(b)To place these questions in context, Ms Curtis is to be provided with: (i)       The judgment of this Court of 28 August 2014; and

(ii)      The affidavit of Ms Nalini Kumar, sworn 10 September 2014. (c)      Costs are reserved.