Leung v Chief Executive of the Ministry of Business, Innovation and Employment
[2013] NZHC 1158
•17 May 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-2597 [2013] NZHC 1158
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review
BETWEEN FUNG YING LEUNG Plaintiff
ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant
Hearing: 17 May 2013
Counsel: FC Deliu for Plaintiff
AR Longdill for Defendant
Judgment: 17 May 2013
JUDGMENT OF BREWER J
SOLICITORS/COUNSEL
FC Deliu (Auckland) for Plaintiff
Meredith Connell (Auckland) for Respondent
LEUNG V THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT HC AK CIV-2013-404-2597 [17 May 2013]
[1] The applicant seeks an interim order preventing her deportation later tonight.1
The applicant has also filed a statement of claim for judicial review of the decision which was made to deport her. That statement of claim alleges breach of natural justice and Wednesbury unreasonableness.2
[2] The main grounds on which the interim order is sought are as follows:
(a) There is a real contest between the parties and the applicant has a reasonable chance of succeeding in that contest.
I interpolate to observe that that is the formulation which has now received the support of the Court of Appeal in the case of Parmanadan v Minister of Immigration.3
(b) Interim relief is necessary to preserve the position of the applicant.
I interpolate to observe that the position of the applicant is seen by Mr Deliu, who appears for the applicant, to be the position to argue in New Zealand.
(c) The plaintiff would suffer irreparable harm if relief is not granted for which there would be no other adequate remedy available to her at law.
My understanding of Mr Deliu’s submissions is that if the applicant were to be deported then she would not be able to make the arguments she would wish to make were she to remain in
New Zealand.
1 I delivered this judgment orally. In this record of it I have tidied some phrasing, inserted statute and case quotes which I did not read out at the hearing, and added footnotes.
2 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
3 Parmanadan v Minister of Immigration & Anor [2010] NZCA 136.
Factual background
[3] The applicant, Ms Leung, is a Hong Kong national. She is 18 years of age. She entered New Zealand on a student visa on 19 August 2009. Ms Leung was granted further student visas which were valid until 15 August 2011. She applied for a further student visa but this was declined on 18 August 2011. With the expiry of her final interim visa, Ms Leung has been unlawfully in New Zealand since
20 August 2011. She has made no further applications to Immigration New Zealand and has failed to depart.
[4] On 16 May 2013, Ms Leung was located by Immigration New Zealand. She was arrested and interviewed at the Auckland Central Police Station on that day. The affidavit of the responsible immigration officer, Mr Robert Milnes, is to the effect that present at that interview was the applicant, her lawyer, her legal assistant, a Mr Ken Huang, and a Cantonese interpreter. Mr Milnes went through a standard form of interview including a record of personal circumstances. Ms Leung told Mr Milnes, and repeats in her affidavit, that she became an overstayer because when she was 16 she had an abortion here and this resulted in a state of deep depression. However, when she was asked about her health and whether she had any special needs she answered “no”.
[5] The nub of the factual allegations which Mr Deliu submits should found the interlocutory order sought is that subsequently Ms Leung sought time from the immigration officer to put before him a psychological report which she wished to obtain commenting on her state of depression. Further, Amicus Law wanted to make submissions and to receive files and to otherwise do what they could to inform the immigration officer of everything that might be able to be put to him to influence his decision. The immigration officer gave some small amount of time until the next morning, but at 8:34 am this morning made the decision that he was not prepared to release Ms Leung from custody and that she would be deported. The immigration officer was referring to s 313 of the Immigration Act 2009 (“the Act”) which
contains an obligation to put a detained person on the first available flight.4
4 This was the way the obligation was put to me in argument. It is a fair summary in relation to the facts of this case if s 313 (initial period of detention for up to 96 hours without warrant) is read with s 310(b)(ii) (purpose for which arrest and detention powers may be exercised).
[6] This application depends on the interpretation of s 177 of the Act. Either an immigration officer has the almost absolute discretion set out in the section or he does not. If there is a limited discretion then Mr Deliu must get the order he seeks. If the applicant has a right to have consideration of her case postponed while she seeks potentially relevant material then that right was denied her. If, on the other hand, s 177 of the Act does not oblige the immigration officer to allow the applicant that opportunity then it is only a Wednesbury unreasonableness test that might apply. The issues are, of course, interrelated.
[7] Section 177 provides:
177 Deportation order may be cancelled
(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.
(2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.
(3) If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—
(a) may make a decision as he or she thinks fit; and
(b) in doing so, is not under any obligation, whether by implication or otherwise,—
(i) to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207; or
(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.
(4) Whether or not an immigration officer considers cancelling a deportation order,—
(a) he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and
(b) section 23 of the Official Information Act 1982 does not apply in respect of the decision.
(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—
(a) a description of the international obligations; and
(b) the facts about the person's personal circumstances.
[8] I have been referred to a number of cases.5 The only one which really assists the applicant’s argument is the decision of Fogarty J in Ewebiyi v Parr decided on
7 December 2011.6 In that case, Fogarty J had to consider a situation where a father
might be separated from his son. Fogarty J decided that the immigration officer had breached an obligation to give reasons as to the application of the person’s personal circumstances to the identified international obligations of New Zealand. Mr Deliu submits that the same can be said in this case.
[9] A decision, in particular, of Lang J is relied upon for a contrary view by Ms Longdill for the respondent.7 Reliance is also placed on the judgment of Woolford J in Chen.8
[10] Taking now the applicant’s statement of claim, the Wednesbury
unreasonableness pleading is particularised firstly:
The defendant breached natural justice in the first decision by refusing to allow the plaintiff a reasonable period of time in which to provide supporting evidence along with her submission that she ought not be deported and/or in the second decision in not providing reasons for its decision.
[11] I add that this ground of review is bolstered by an affidavit of Tuariki John
Edward Delamere dated 17 May 2013; the point of it being that in the deponent’s
view if an application for a further student visa had been made then the applicant
5 Esekielu v Attorney-General (1993) 6 PRNZ 309; Teng v Minister of Immigration & Anor
HC Auckland CIV-2010-404-8463, 22 December 2010; Ewebiyi v Parr HC Christchurch CIV-
2011-409-2010, 7 December 2011.
6 Ibid.
7 Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773,
29 September 2011.
8 Chen v The Department of Labour HC Auckland CIV-2011-404-7827, 7 December 2011.
would almost certainly have obtained it and that the mere lodging of an application under s 61 of the Act would have avoided the situation that Ms Leung is in today.
[12] On this point, my view is that the clear wording of s 177 excludes a right to a person being deported to require a reasonable period of time in which to provide supporting evidence. That is simply not the scheme of the Act and in my view the threshold of real contest, to which I referred earlier, is not crossed.
[13] The alternative or additional ground relies on Fogarty J’s decision in Ewebiyi; namely, that the immigration officer breached his obligation under s 177 to give reasons. With respect, I prefer and agree with the approach of Lang J in Babulal:
[35] Parliament clearly intended ss 177(4) and (5) to restrict the amount of information that an immigration officer is required to record when making a decision under s 177. That in turn necessarily limits the information available to any court tasked with judicially reviewing the decision. As the decision in the present case demonstrates, the court will have no information regarding the reasoning process the immigration officer has employed when balancing the relevant competing factors that need to be taken into account in making any decision that has regard to New Zealand’s international obligations.
[36] Parliament must be taken to have intended that consequence. It chose to adopt that route, in my view, in order to restrict the level of judicial scrutiny to which decisions under s 177 may be subject. This suggests that, where an immigration officer makes a decision that requires him or her to have regard to New Zealand’s international obligations, Parliament intended the record of the decision to contain sufficient information to allow the decision to be judicially reviewed within a very narrow compass. It accepted that the court must have sufficient information to be able to determine whether the immigration officer who made the decision took into account the international obligations relevant to the particular case. The requirement to record the facts relating to the personal circumstances of the person subject to the deportation order also provides the court with the ability to determine whether the ultimate decision was reasonable in a Wednesbury sense, but no more than that.
[14] The situation which faced Fogarty J was very different from this current situation.
[15] I accept Ms Longdill’s submissions that the personal information which relates to the international obligations identified is set out in the form. Parliament cannot have intended that the personal information be rearranged and put into some sort of narrative giving judicial reasons. The form shows that the immigration
officer carefully recorded the answers of the applicant to the questions relating to her personal circumstances and that having done that he noted the international obligations which were relevant, and then gave his decision. That is sufficient for s 177.9
[16] The next particular pleaded is:
The defendant acted contrary to Wednesbury unreasonableness in failing to take into account the relevant consideration in the first decision that the plaintiff had offered to waive any rights she had under the law to be speedily deported and/or in the second decision mandatory international instruments were not considered.
[17] Mr Deliu’s submission is that it amounted to Wednesbury unreasonableness that the immigration officer based his decision on a choice of putting the applicant on the next available flight or releasing her from custody. There were other alternatives open to him in Mr Deliu’s submission, including allowing the applicant to waive the obligation of speedy deportation so that she would remain voluntarily in custody.
[18] The “mandatory international instruments” point was not pursued.
[19] I do not have to deal with these particulars directly. I would have to decide that no immigration officer in the circumstances of this case could reasonably have concluded that a better alternative to either releasing the applicant from custody or continuing with the deportation was required.
[20] Under the circumstances of this case, I cannot find that no reasonable immigration officer would have done what the immigration officer in this case has done. There are no refugee rights at stake here. There is no danger to the life or freedom of the applicant. This was not a decision where deportation was going to mean some real detriment to the applicant. She is a citizen of Hong Kong. All her family is in Hong Kong. She is an 18 year old girl who has overstayed her visa and
has spent the last 18 months or so illegally resident in New Zealand. All that the
9 It is probably more than sufficient. In Babulal, Lang J considered it sufficient that the immigration officer listed in the form the documents containing the substantive facts upon which he based his decision. See Babulal, [72]-[75].
deportation is doing is returning her to her home in a first world environment. I
cannot say against that background that Wednesbury unreasonableness exists.
[21] Mr Deliu further counts towards Wednesbury unreasonableness his submission that there was an error in fact made by the defendant. That error in fact, as he pleads it, is that the defendant had concluded that the plaintiff had criminal connections and that there was no evidence of that. The factual basis for this pleading comes partly from the affidavit of Mr Milnes and also from material in the file. In paragraph 6 of his affidavit, Mr Milnes deposes that on 25 August 2011
Ms Leung’s wallet was found at an address at which the Police had executed a drugs search warrant. Ms Leung was not present at the address at the time of the search but the occupants of the house were later charged with the importation and possession of Class C drugs. However, the immigration officer was careful in the interview to ask the applicant about that. He recorded her explanation and her denial that she had any complicity at all with those events and the illegal drugs. Again, on that basis I cannot say that the Wednesbury unreasonableness test is met.
[22] Finally, Mr Deliu relies on what he refers to as his innominate ground. His authority for this is Isak v Refugee Status Appeals Authority.10 That was a case in which Asher J had to consider the plight of a Somali national who was declined refugee status in New Zealand. The Refugee Status Appeals Authority upheld the decision but in the course of the judicial review it was made clear that important information had not been put before the Authority. The fault was that of the legal representative of the Somali national. No fault could be found with the Refugee Status Branch or the Authority. Asher J, in granting judicial review, held that it could
be granted on the basis of counsel error where that error had resulted in the Tribunal not having material information or a proper understanding of the material information before it. His Honour held there was a material error when the process was looked at as a whole, and although in the context of an application for judicial review, held that it is not necessary, at least in refugee status cases, to find that the
Tribunal or government body was at fault.
10 Isak v Refugee Status Appeals Authority [2010] NZAR 535.
[23] Mr Deliu, while accepting that Isak is not on all fours with this case, submits that I am not bound by the normal rules of judicial review when error of counsel is a factor. In this case, in her affidavit the applicant deposes that she did make efforts to try to legalise her situation in New Zealand. Attached as exhibit “C” to her affidavit are documents from her immigration files. The applicant says they show that the
lawyer instructed to apply for a new visa “neither ever did anything to help me”.11
[24] Ms Longdill goes through the immigration documents exhibited to the affidavit and submits that there was no apparent lack of industry on the part of the lawyer. Mr Deliu says darkly that at least one of the documents has probably been fabricated to show industry on the part of the lawyer. He had the lawyer present in Court and wished to call him to be cross-examined on these points. However, I decided that there is no point in that. The case of Isak v Refugee Status Appeals Authority is not support, in my view, for an argument that if there has been incompetence of counsel in applying to regularise an overstayer’s position that this affects the ability of an immigration officer under s 177 to make a deportation order.
[25] In Isak, the incompetence or failure referred to went directly to the decision that had to be made by the Refugee Status Appeals Authority. Here it is a much broader submission that Mr Deliu makes. I cannot accept it.
Decision
[26] In summary then I have an application for an interim order to prevent the deportation of the applicant later tonight. I have looked at the statement of claim. I do not accept that there is a real contest between the parties and that the applicant has a respectable chance of succeeding in that contest. My view of the application of s 177 to the facts of this case is that Parliament’s intentions are plain. I do not see anything in the arguments that have been put forward which might persuade a Court
to another view.
11 The affidavit of Mr Delamere is relied on to demonstrate the detriment to the applicant’s position
of inaction by the lawyer.
[27] The application for interim orders is denied.
[28] The respondent is entitled to costs. I award those on a 2B basis.
Brewer J
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