Leao v Auckland City Council
[2014] NZHC 2036
•28 August 2014
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 RespondentJudgment:
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 Saturday or Sunday.
(2) A period of time prescribed in this Act for the lodging of an appeal to the Tribunal must be calculated excluding—
(a) any day that is—
(i) a public holiday or a Department holiday determined by the chief executive; and
(ii) not a Saturday or Sunday; or
(b) if the Department is not the department referred to in clause
5 of Schedule 2, any day that is a public holiday and not a
Saturday or Sunday, and—
(i) any day in the period beginning on 25 December in a year and ending on 2 January in the following year; and
(ii) if 1 January falls on a Friday, the following Monday;
and
(iii) if 1 January falls on a Saturday or a Sunday, the following Monday and Tuesday; and
(iv) if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday.
(3) Subsections (1) and (2) do not apply for the purposes of calculating working days under section 194(2) or 195(3).
[5] The Minister of Immigration responds, arguing that s 6 does not apply to notice of an application for leave to file judicial proceedings as that is not the making of an application under the Act. That it was the clear intention of Parliament that 28 days not be qualified by public holidays, departmental holidays nor a Saturday or a Sunday.
[6] Rather, the Crown submits that s 247 applies and the application is out of time and can only survive if the High Court decides, by reason of special circumstances, that further time should be allowed.
[7] If the second part of s 247(1) applies and there needs to be special circumstances, the applicant argues, with an affidavit of his father in support, that he always intended to apply to appeal, and make an application for judicial review. He had discussed the result of the decision with his then counsel Ms Curtis in December and arranged to meet her after return from an overseas trip on 16 January.
[8] Inferentially, he is arguing that Ms Curtis gave incorrect advice as to the amount of time he had before commencing any application for judicial review.
[9] In the course of oral argument, it was identified that the affidavit filed in support of special circumstances did not adequately disclose the advice that had been received from Ms Curtis. By agreement with counsel, I decided that I would deliver two judgments, the first on the application of s 247 and the calculation of 28 days, working or not, and the second on special circumstances, in the event that I decide in favour of the Crown of his construction of s 247. There would be a second hearing on special circumstances.
Does the 28 day period in s 247(1) be calculated pursuant to the requirements of s 6 of the same Act?
[10] Counsel for the applicant submitted that by being deported on 16 January, he was deported prior to the expiry of the 28 day time period allowed in ss 247 and 245 for, respectively, applications for judicial review and appeal to the High Court on a point of law by leave. Section 247(1) and (2) are relevant and are set out at [1] above.
[11] Counsel argues that s 6 apply to both of those provisions. Counsel relies on s 6(1).1
1 See [4].
[12] Counsel did not particularly seek to argue that an appeal to the High Court on a point of law by leave was an application under the Act.
[13] Rather, however, she argued that the application for leave to commence review was an application under the Act. She relied on a distinction between the current wording of s 247(1) and the wording of its predecessor, s 146A of the Immigration Act 1987, which provide:
146ASpecial provisions relating to judicial review of decisions under this Act
(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced within 3 months after the date of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.
(2) Where a person has both—
(a) Appealed against a decision of [[the Board or]] an Authority or the
Tribunal under any of sections 115, 115A, and 117; and
(b) Brought review proceedings in respect of that same decision,—
the High Court is to 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. (Emphasis added.)
[14] Counsel drew a distinction between the phrasing in s 247(2)(a) which refers to “the application for judicial review” with the equivalent subs 146A(2)(b) brought review proceedings in respect of the same decision”.
[15] She argued that the changed wording in s 247(2)(b) is significant and introduces the concept of an application for judicial review under the Immigration Act, as distinct from an application for judicial review under the Judicature Amendment Act.
[16] I disagree. A judicial review can be commenced by application under the Judicature Amendment Act 1972 or by commencing common law proceedings for the writs of certiorari, prohibition, mandamus or declaration. In fact, almost all judicial review proceedings are commenced by way of an application under the Judicature Amendment Act 1972. There is no distinct remedy of a judicial review under the Immigration Act.
[17] This reasoning is similar to that of Wylie J in MR v Refugee Status Appeals
Authority:2
[44] ... Section 2(2) refers to the making of an application, or the lodging of an appeal, not being an appeal to the High Court. The Act provides in a number of contexts for the making of applications and the lodging of appeals. Clearly time periods provided by the Immigration Act for the making of applications, or for the lodging of appeals under that Act, are caught by s (2)(2). However an application for review is not an application made under the Immigration Act. Rather it is brought pursuant to the provisions of the Judicature amendment Act 1972.
[18] Judicial review is the exercise of the inherent jurisdiction of the High Court to maintain the rule of law and, in particular, to require that all government powers are exercised according to law. Consistent with the inherent jurisdiction, it may also be noted that s 247 does not attempt to set a time limit on the application for judicial review. As it reserves to the High Court the ability to receive an application for judicial review after 28 days in special circumstances.
[19] This is a slightly unusual provision but accords with the general policy of the common law that applications for judicial review should be brought promptly.
[20] In general support of the Crown’s interpretation, Ms Longdill points out that the Act deliberately and variously distinguishes between time limits computed consequentially by days and time limits which take into account public holidays and other non-working days.
[21] I am satisfied that the Crown’s argument is correct, s 6 does not apply. I
agree with Wylie J’s analysis under the predecessor statute, which is not materially
different.
2 MR v Refugee Status Appeals Authority [2008] NZAR 655 at [44].
[22] The result is that the application for review commenced on 5 February, is more than 28 days from 4 December and therefore is outside the 28 period provided in s 247(1) of the 2009 Act. Accordingly, the second question arises as to whether the High Court will decide that, by reason of special circumstances, further time should be allowed.
[23] As discussed with counsel, the applicant has ten working days from the release of this judgment to file any affidavits in support of a special circumstances argument.
[24] The second respondent has a further ten working days to file affidavits in reply.
[25] The applicant has a further five working days to file an affidavit in reply to the reply affidavit, if that is necessary.
[26] The Registry will then set the case down for hearing before me for half a day.
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