Kumar v Immigration and Protection Tribunal - [2014] NZHC 2056

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-00211 [2014] NZHC 2056

BETWEEN
VINAL NILESH KUMAR

Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

MINISTER OF IMMIGRATION Second Respondent

Hearing: 27 August 2014

Counsel:

M Clark for Applicant
A Longdill and O Klaassen for Second Respondent

Judgment:

28 August 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 28 August 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 2056 [28 August 2014]

Introduction

[1] The applicant has applied for leave to apply judicial review proceedings. It is normally not necessary to apply for leave to commence judicial review proceedings. A statutory restriction has been imposed in the Immigration Act 2009, s 247 which 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.

(2) Where a person intends to both appeal against a decision of the Tribunal under this Act and bring review proceedings in respect of that same decision,—

(a) the person must lodge both the application for appeal and the application for judicial review together; and

(b) the High Court must endeavour to hear both matters together, unless it considers it impracticable in the particular circumstances of the case to do so.

(3) In this section, statutory power of decision has the same meaning as in section 3 of the Judicature Amendment Act 1972.

(4) Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.

[2] The application for judicial review was filed later than 28 days after

4 December, upon which date the applicant was notified of a decision of the Immigration and Protection Tribunal declining the applicant’s appeal against liability for deportation on humanitarian grounds. Notice of application for leave to file judicial review proceedings was lodged on 5 February 2014. This is more than 28 days from 4 December 2013.

[3] Mr Kumar was served with the deportation order, consequent upon the decision of the Tribunal, on 15 January and deported to Fiji on 16 January.

[4] The applicant argues in this proceeding that reference to 28 days in s 247 is

28 working days by reason of the application of s 6 of the Immigration Act which provides:

6 How periods of time to be calculated

(1) A period of time prescribed in this Act for the making of an application under the Act must be calculated excluding any day that is—

(a) a public holiday or a Department holiday determined by the chief executive; and

(b) not a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2056
Decision Date: 28 August 2014

CaseChat Overview and Summary

Vinal Nilesh Kumar applied for leave to commence judicial review proceedings against the Immigration and Protection Tribunal and the Minister of Immigration. Kumar sought to challenge the Tribunal’s decision to decline his appeal against deportation on humanitarian grounds. The Tribunal’s decision was notified to Kumar on 4 December 2013, and Kumar’s application for leave to commence judicial review was filed on 5 February 2014, well beyond the 28-day period specified in section 247 of the Immigration Act 2009. Kumar argued that the 28-day period should be calculated as 28 working days, pursuant to section 6 of the same Act. The Court was required to determine whether the 28-day period in section 247(1) should be calculated pursuant to the requirements of section 6 of the Immigration Act, and if not, whether the Court should allow the application to proceed on the basis of special circumstances.

The Court held that section 6 does not apply to the calculation of the 28-day period in section 247(1) of the Immigration Act. The Court agreed with the Crown's argument that section 6 only applies to periods of time prescribed in the Act for the making of an application or the lodging of an appeal under the Act, and not to the application for leave to commence judicial review proceedings. The Court also noted that judicial review is the exercise of the inherent jurisdiction of the High Court to maintain the rule of law, and that section 247 does not attempt to set a time limit on the application for judicial review, reserving to the High Court the ability to receive an application for judicial review after 28 days in special circumstances. The Court therefore held that the application for review was outside the 28-day period provided in section 247(1) of the 2009 Act, and that the second question arises as to whether the High Court will decide that, by reason of special circumstances, further time should be allowed.

The Court ordered that Kumar has ten working days from the release of the judgment to file any affidavits in support of a special circumstances argument, and that the second respondent has a further ten working days to file affidavits in reply. The applicant has a further five working days to file an affidavit in reply to the reply affidavit, if that is necessary. The Registry will then set the case down for hearing before the Court for half a day.

Orders