Li v Chief Executive, Ministry of Business, Innovation and Employment
[2018] NZHC 1171
•23 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1198
CIV-2017-404-1200 [2018] NZHC 1171
UNDER Sections 245, 249 of the Immigration Act 2009 IN THE MATTER OF
applications for leave to appeal and leave to apply for judicial review to the High Court against a determination of the Immigration and Protection Tribunal
BETWEEN
ZHENYANG LI
First Applicant
LING XU
Second ApplicantZHEN LI
Third ApplicantAND
CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Respondent
Hearing: 17 April 2018 Appearances:
R E Harrison QC for the Applicants
I C Carter and I M G Clarke for the Respondent
Judgment:
23 May 2018
JUDGMENT NO 2 OF PALMER J
This judgment is delivered by me on 23 May 2018 at 4.00 pm
pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
LI v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 1171 [23 May 2018]
Summary
[1] In an earlier judgment in these proceedings, I held Mr Li and the other applicants could apply for judicial review under s 247 of the Immigration Act 2009 and did not require leave under s 249.1 The Crown applies for leave to appeal that interlocutory decision under s 56(3) of the Senior Courts Act 2016 (the Act). I consider an application to appeal an interlocutory decision under s 56(3) is likely to be granted where: (a) there is good reason to consider it before, or separately to, the substantive appeal; and (b) it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal. Mootness generally weighs against leave being granted but there may be exceptions where it does not.
[2] The issue at stake for the Crown here is a significant question of public law. It is capable of bona fide and serious argument and there is good reason to consider it before, or at least separately to, any substantive appeal. The question may be moot between these parties but it is not moot between the Crown and other parties. It is a question of law on which there is conflicting High Court authority, it is highly likely to come before the courts again and it should be considered by an appellate court. I grant leave to appeal. It is up to the Court of Appeal to consider whether to appoint a contradictor or to make a pre-hearing costs order, if necessary.
The proceeding to date
[3]In a judgment in these two proceedings issued on 1 December 2017:
(a)I declined Mr Li and the other applicants leave to appeal a decision of the Immigration and Protection Tribunal (IPT) to the High Court (the appeal decision).
(b)I held Mr Li and the other applicants did not require leave to apply to the High Court for judicial review, but indicated I would have granted leave regardless (the judicial review decision).
1 Li v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2977, [2018] NZAR 265.
[4]My summary of these decisions was as follows:
[1] Immigration New Zealand (INZ) decided Mr Zhenyang Li is liable to deportation because it considers he breached the conditions of his work visa by “working” for his wife’s air conditioning company. If so, his wife and son are also liable to deportation. He says he was only helping his wife out, and was not employed by, or “working” for, her company. The Immigration and Protection Tribunal (the Tribunal) considered it had no jurisdiction to decide his underlying liability for deportation in a humanitarian appeal. No other sort of appeal is available. Mr Li seeks leave to appeal the IPT’s decision and to apply for judicial review of the INZ’s decision.
[2] The focus of a humanitarian appeal, for all the sorts of deportation for which it is available, is on the humanitarian consequences of deportation, assuming the reasons for deportation are legally valid. The Tribunal does not have jurisdiction on a humanitarian appeal to determine the validity of underlying liability to deportation. I do not consider it is seriously arguable it does, so I decline leave to appeal. But Parliament cannot have intended to restrict the applicants’ right to judicial review under s 27(2) of the New Zealand Bill of Rights Act 1990 (Bill of Rights) by requiring them to first take a hopeless appeal before applying for leave to apply for judicial review. Section 6 of the Bill of Rights, the principle of legality and common sense militate strongly against such an interpretation of s 249(1) of the Immigration Act 2009 (the Act). Accordingly, s 249 does not apply and judicial review of INZ decisions on liability for deportation is available under s 247 without leave being required. I grant the application for leave to apply for judicial review with an extended deadline of 5.00 pm Friday 15 December 2017.
[5] In respect of the appeal decision, Mr Li is currently seeking leave, from the Court of Appeal, to appeal the IPT decision to the High Court. That will be heard by the Court of Appeal on 28 May 2018.
[6] In respect of the judicial review decision, the Crown seeks leave from the High Court to appeal to the Court of Appeal. Leave is sought only in respect of my decision that s 249 of the Immigration Act 2009 does not apply and leave to apply for judicial review is available under s 247 as of right, if its deadline is met.
The legal test for leave to appeal interlocutory High Court decisions
[7] Section 20 of the Judicial Review Procedure Act 2016 provides “any party who is dissatisfied with any interlocutory or final order made in respect of an application may appeal to the Court of Appeal in accordance with section 56 of the Senior Courts Act 2016”.
[8] Section 56(3) of the Act provides no appeal lies from any interlocutory decision of the High Court unless the High Court grants leave to appeal to the Court of Appeal. Under s 56(5), the Court of Appeal can also grant leave if the High Court refuses it.
[9] The legal test for leave to appeal interlocutory decisions of the High Court is not set out in the Act. There are only a few judicial decisions on it as yet. It is helpful to understand the context in which the Act was passed.
Previous case law
[10] In Siemer v Heron, the majority of the Supreme Court made relevant observations about the previous law.2 The Court traversed a number of decisions of the Court of Appeal about the limits of appeal of interlocutory decisions which it observed “struggled to articulate a consistent approach”.3 The key point of interpretation in most of those cases was framed in terms of which categories of decisions or rulings fell within the “judgment, decree or order” appealable as of right under s 66 of the Judicature Act 1908. The Supreme Court:
(a)observed it was understandable the Court of Appeal, as a very busy Court, had endeavoured to read down the words of the statute, impliedly to “avoid being burdened with multiple and possibly unnecessary appeals arising from one piece of litigation” but the Supreme Court considered putting interlocutory decisions into various classes had not “led to a stable jurisprudence”;4
(b)held s 66 conferred an appeal as of right against interlocutory decisions of all kinds made in the High Court unless there was some other legal restriction,5 and stated it was not for the Supreme Court to say whether this position should be modified by the legislature or rules or orders;6
2 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 30 (but see William Young J’s dissent at [44], persuasively deploying legislative history).
3 At [19]–[29].
4 At [30]
5 At [31].
6 At [32].
(c)nevertheless observed the Court of Appeal may decline to hear interlocutory appeals in advance of trial if it considers “they may be overtaken by the trial (or hearing) or that the appellant is unlikely to be prejudiced by such a postponement”, and there is an established practice that interlocutory rulings can be reviewed upon a substantive appeal if they remain material;7
(d)stated “where an interlocutory decision which is the subject of an appeal would be dispositive of the case either in law or as a practical matter”, the Court of Appeal would ordinarily hear and determine it before the substantive issue is addressed by the High Court;8 and
(e)distinguished original interlocutory decisions made by the High Court from the regime for second appeals in the former s 67 that was subject to the “screening process” of leave.9
Section 56 of the Senior Courts Act 2016
[11] Section 56 of the Act, which defines the jurisdiction of the Court of Appeal with effect from 1 March 2017, provides:
56 Jurisdiction
(1)The Court of Appeal may hear and determine appeals—
(a)from a judgment, decree, or order of the High Court:
(b)under the Criminal Procedure Act 2011:
(c)from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.
(2)Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20
7 At [32].
8 At [34].
9 At [34].
working days after the date of that order or decision or within any further time that the High Court may allow.
(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—
(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or
(b)granting summary judgment.
(5)If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.
(6)If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.
[12] The purpose clause in the Act and its scheme do not elucidate the purpose of section 56(3). Neither does the legislative history. But the Supreme Court’s decision in Siemer can be regarded as important context for the enactment of s 56. That decision was issued in November 2011. The Bill that became the Act was introduced in November 2013.
[13]The text of the provision itself contains some clues as to its meaning:
(a)Section 56(1)(a) retains the former s 66’s provision for appeals to the Court of Appeal from a “judgment, decree, or order” of the High Court.
(b)But appeals of “any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding”, are now subject to the requirement of leave to appeal given by the High Court under s 56(3) or the Court of Appeal under s 56(5) (except for strike outs, dismissals or summary judgments under s 56(4)).
(c)Section 56(6) maintains a version of the Supreme Court’s point in Siemer v Heron that arguments about interlocutory decisions can be raised in the substantive appeal, at least where leave to appeal the interlocutory decision is refused.
Current case law
[14] Only four judgments appear to bear on the interpretation of s 56(3). In Western Joinery Ltd v Commissioner of Inland Revenue, Associate Judge Bell considered cases under former s 71A of the District Courts Act 1947 offered guidance.10 In A v Minister of Internal Affairs, Dobson J considered s 56(3) did not apply.11 If it did, he accepted the following considerations had some relevance: a high threshold for granting leave; an (arguable) error of law or fact would be generally insufficient; and delay.12 But he considered the fundamental importance of the subject of the interlocutory decision to the outcome of the substantive judicial review was sufficient for leave to be granted.13
[15] In Finewood Upholstery Ltd v Vaughan, Fitzgerald J accepted the approach to applications for leave to appeal interlocutory orders under the (now discontinued Commercial List) may be of utility.14 In granting leave to appeal a refusal to grant an interim injunction, Fitzgerald J considered:15
[13] The requirement for leave to appeal should serve as a “filtering mechanism”, to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.
[14] Ultimately, and taking into account those considerations set out [in A v Minister of Internal Affairs], the court hearing an application for leave to appeal from an interlocutory order will need to stand back and assess, in a pragmatic and realistic way, whether the interests of justice are served by granting leave to appeal.
[16] Fitzgerald J considered the grounds of appeal advanced were not frivolous or vexatious, there was limited appellate authority on points at issue and the injunction was of significant importance to the appellant, which outweighed the delay of an appeal.16
10 Western Joinery Ltd v Commissioner of Inland Revenue [2017] NZHC 3297.
11 A v Minister of Internal Affairs [2017] NZHC 887.
12 At [10] and [11].
13 At [9], [10] and [12].
14 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679, applied by: Precinct Properties Holdings Ltd v OMV New Zealand Ltd [2017] NZHC 3230; The Malthouse Ltd v Rangatira Ltd [2017] NZHC 3063.
15 At [13]–[14].
16 At [15].
[17] In Moir v IHC New Zealand Inc the Court of Appeal considered its approach to granting leave to appeal against an interlocutory decision of the High Court under s 56(5).17 Because the particular decision at issue was essentially an application for leave to bring a second appeal, it applied the jurisprudence relevant to former s 67 of the Judicature Act 1908:18
By analogy with decisions under s 67 of the Judicature Act 1908, the forerunner to s 56, we consider leave should not be granted unless the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the appeal. Moreover, leave should not be granted unless the proposed appeal has some reasonable prospect of success.19 That requires consideration of the merits of the proposed appeal.
The test for leave to appeal
[18] The Court of Appeal’s decision in Moir was concerned with a second appeal and looked for guidance to the former s 67 of the Judicature Act. As the Supreme Court in Siemer made clear, that was a different appeal regime than appeal of all other interlocutory decisions under the former s 66. The decision here would not be a second appeal. But granting leave to appeal an interlocutory decision that is not a second appeal will be likely to be in the interests of justice where that higher test, summarised by the Court of Appeal in Moir, is met.
[19] Counsel for both sides here accept the Court should apply the test set out in Finewood Upholstery Ltd. I agree with Fitzgerald J the requirement for leave to appeal interlocutory decisions should filter out appeals on unmeritorious grounds and insignificant points. This is consistent with Dobson J’s emphasis on the importance of the decision at stake in A v Minister of Internal Affairs.
[20] I consider the wider purpose behind s 56(3) is to lessen tactical delays and enhance the efficiency of the administration of justice. The text of s 56 can be considered to reflect the Supreme Court’s rejection in Siemer of different classes of interlocutory decisions,20 as well as its emphasis on a discretion to decline to hear
17 Moir v IHC New Zealand Inc [2018] NZCA 130 at [6].
18 At [6].
19 Snee v Snee (1999) 13 PRNZ 609 (CA) at [15], Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
20 At [30].
interlocutory appeals. Its identified reasons for declining or accepting such appeals, in the court’s discretion, are instructive.
[21] Pulling all these strands together, I consider the text, purpose, context and case law of s 56 suggests an application to appeal an interlocutory decision under s 56(3) is likely to be granted if:
(a)the appeal is not likely to be overtaken by the substantive hearing or cannot otherwise be considered as effectively in the context of an appeal of the substantive decision; or
(b)the appellant is likely to be prejudiced by a postponement to the substantive appeal; or
(c) the appeal may be dispositive of the case in law or as a practical matter; and
(d)the arguments in the appeal are capable of bona fide and serious argument; and
(e)the issue on appeal concerns a decision of sufficient significance to the parties or a question of law or general principle of sufficient importance as to outweigh the cost and delay of the appeal.
[22] More pithily, perhaps, an application to appeal an interlocutory decision under s 56(3) is likely to be granted where: (a) there is good reason to consider it before, or separately to, the substantive appeal; and (b) it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal.
The effect of mootness
[23] Dr Harrison QC’s primary argument against leave being granted here is that the question would be moot between the parties.
[24] The Supreme Court considered the effect of mootness on leave to appeal in Gordon-Smith v R.21 As McGrath J for the Court observed, New Zealand courts have traditionally not heard an appeal where there is no matter remaining in controversy and requiring decision.22 However, citing United Kingdom authority, the Supreme Court held mootness does not deprive a court of jurisdiction to hear an appeal and a court “may exercise its discretion and hear an appeal on a moot question” in circumstances warranting an exception to the traditional approach.23 That may be where an issue involves a public authority as to a question of public law, but is not confined to public law issues; leave may also be granted in other areas where there is an issue of general and public importance.24 A cautious approach must be taken.25 But the question there was not fact dependent. The Court considered the concern to develop the law in the context of live controversies was met “if the question arising in a moot case is one of significant public importance which is highly likely to come before the court again at some point”.26 And it considered, there, the Court would not be intruding into an area more appropriately left to legislation by granting leave.27
[25] It may seem odd that the High Court can determine the Court of Appeal must hear a moot case. But that is the consequence of s 56(3) empowering the High Court to give leave to appeal. And mootness need not complicate the task. Mootness is simply one of the dimensions which affects whether leave to appeal should be granted. It generally weighs against leave being granted but there may be exceptions where it does not. The Gordon-Smith decision demonstrates that. So do High Court judgments considering (and declining) applications for leave to appeal to the Court of Appeal in moot ACC cases.28 In terms of the framework of the test identified above, mootness can usually be expected to go particularly to whether there is good reason to consider the appeal of the interlocutory decision separately to any substantive appeal and whether it relates to a sufficiently important issue.
21 Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721.
22 At [14].
23 At [16].
24 At [17] and [21].
25 At [22].
26 At [24].
27 At [28].
28 Studman v Accident Compensation Corp [2014] NZHC 574 at [11]; Crothers v Accident Compensation Corp [2017] NZHC 1952 at [57].
Submissions
[26] Here, Mr Carter, for the Crown, submits there are now conflicting High Court authorities on the relationship between ss 247 and 249, between Li and Liu v Immigration New Zealand, which creates legal uncertainty.29 He submits there is sufficient general or public interest in the correct approach to s 249 being resolved for leave to be granted even if the issue is moot in the present case. Mr Carter submits granting leave will not lead to additional significant delay because the Court of Appeal would be statutorily required to determine it as a priority fixture. He opposes the Crown covering the applicants’ costs and submits it would be for the Court of Appeal to consider whether an amicus should be appointed, if leave is granted.
[27] Dr Harrison QC, for the applicants, submits the proposed appeal is moot. He says the Crown submission of a desperate need for resolution of the law sits strangely with the Crown not raising the issue in Singh v Chief Executive, Ministry of Business Innovation and Employment.30 Mr Harrison accepts there appears to be a conflict of authority at High Court level which will need to be resolved at some stage. But he submits the default position is leave ought not be granted, because the issue is moot between the parties, and this is not a case where the residual discretion to permit a moot appeal should be exercised. He also says his clients have no incentive to be involved in any appeal. He submits, if leave is granted, it should be on condition that the Crown indemnify the applicants for their legal fees and disbursements or fund a contradictor. Dr Harrison advised he would be prepared to act as contradictor if invited to do so and submitted the strictures against appointment of amicus in the criminal context do not necessarily apply here.31 He seeks costs for the application irrespective of the outcome.
Decision on leave to appeal
[28] I accept Dr Harrison’s submission the Crown’s proposed appeal is moot between the parties for two reasons. First, the Crown does not challenge the alternative reason why the Li judgment granted leave for judicial review: that the
29 Liu v Immigration New Zealand [2014] NZHC 195.
30 Singh v Chief Executive, Ministry of Business Innovation and Employment [2018] NZHC 673.
31 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392.
threshold for leave for judicial review under s 249 was satisfied. The Crown’s notice of application for leave to appeal seeks only to set aside the High Court judgment “in part to the extent that it held that a substantive application for judicial review could be commenced without leave, subject only [to] the exercise of the ‘special circumstances’ discretion allowing further time beyond 28 days”. So, even if the Crown succeeds in its appeal of the judicial review leave decision, the applicants will still be able to pursue their judicial review under s 249. Second, the applicants did exactly what the Crown submits they should have done, by first bringing a humanitarian appeal to the Tribunal. So the competing interpretations of s 249 will have no effect on the outcome of the applicants’ judicial review. But this does not determine the question of whether leave to appeal should be granted.
[29] I accept the Crown’s submission there is a conflict between Li and Liu in relation to the scope of s 249(1) and its relationship with s 247. Therefore, although I would naturally not agree with it, there is a bona fide and serious argument available there was an error of law in Li. In Liu, Fogarty J considered s 249 does not oust judicial review so it cannot be classified as a privative clause attracting “hostile judicial interpretation”.32 He also considered the High Court should not judge whether the requirement of an appeal to the Tribunal in the first instance is inefficient, even where the appeal would be hopeless.33 In Li, I considered Parliament, in enacting s 249:34
… cannot have intended to restrict the applicants’ right to judicial review under s 27(2) of the [New Zealand Bill of Rights Act 1990] by requiring them to first take a hopeless appeal before applying for leave to apply for judicial review. Section 6 of the Bill of Rights, the principle of legality and common sense militate strongly against such an interpretation of s 249(1).
[30] I also accept the Crown’s submission the conflict creates uncertainty in the law about the correct procedure for applying for judicial review of immigration decisions concerning deportation liability. Is judicial review of decisions underlying deportation available as of right under s 247 (subject to the statutory deadline) or is leave required under s 249? Dr Harrison is correct that the Crown had not argued s 249 applied in similar circumstances in a subsequent interim judgment in Singh v Chief Executive,
32 Liu v Immigration New Zealand, above note 29, at [16]–[20] and [23].
33 At [20]–[21].
34 At [27]
Ministry of Business Innovation and Employment.35 But it was not required to do so and it might have done so since. In any case, a Crown decision to adopt a different stance in a different case does not detract from the public interest in resolving the legal uncertainty. There is clearly public interest in applicants, the Crown and the courts knowing the legal course of action required when potential deportees wish to challenge official decisions underlying a decision to deport them.
[31] Furthermore, the hearing of any substantive appeal could only awkwardly address the question of whether leave for that appeal should have been granted or not. The focus of a substantive appeal of the eventual judicial review application would be on the substantive issues at stake, not on whether judicial review was available under s 247 rather than under s 249. The point of the Crown’s application for leave to appeal was to avoid a judicial review as of right in this and like cases. This point stands alone from the substantive result of the judicial review and any appeal of it. Indeed, if the Crown wins the substantive judicial review it may not be able to ensure there is any substantive appeal. The Crown may well be prejudiced by failure to grant leave to appeal the judicial review decision. There is good reason to consider this appeal before, or at least separately from, any ultimate appeal being heard.
[32] So, as opposed to most moot questions, perhaps, the issue at stake for the Crown here is a significant question of public law. It is capable of bona fide and serious argument and there is good reason to consider it before, or at least separately to, any substantive appeal. The question may be moot between these parties but it is not moot between the Crown and other parties. It is highly likely to come before the courts again and it should be considered by an appellate court. The issue is essentially a legal one, which has been determined to conflicting effect by the High Court. No further factual evidence is required, though that does not rule out evidence in the nature of a Brandeis brief. I consider the public interest in clarifying this legal issue of public importance outweighs the courts’ general reluctance to give advisory opinions in moot cases and outweighs the cost and delay of appeal.
35 Singh v Chief Executive, Ministry of Business Innovation and Employment, above note 30.
[33] If the Court of Appeal grants leave to appeal the appeal decision, which bears some but not a determinative relationship to the judicial review decision, it can consider those issues together. If it does not, the appeal can proceed in the High Court.
[34] There is force in Dr Harrison’s submission that the applicants may have no incentive to be involved in the appeal of the judicial review decision. If I were hearing the appeal I would be inclined to invite Dr Harrison to act as contradictor, by way of appointment as amicus curiae,36 or to make a pre-hearing costs order.37 However, that aspect of the conduct of the appeal, in the Court of Appeal, must be in that Court’s purview to determine. It may be influenced by whether the appeal decision is also appealed or not. Further, it is premature in that the applicants have not yet decided they will not be involved; Dr Harrison only indicated his advice would be they need not. Dr Harrison can raise that with the Court of Appeal, if necessary.
[35] Finally, at the time of the judicial review hearing the Crown indicated no steps towards the applicants’ deportation would be taken until after that decision, when action would be governed by the timings in the Act.38 Neither counsel at the recent hearing suggested leave to appeal would pose a risk to the applicants’ interests in that regard. If it would, it can be the subject of an application for a stay, if necessary.
Result
[36] I grant the Crown leave to appeal the judicial review decision. Given the Crown’s success, but the mootness of the appeal, costs will lie where they fall.
Counsel/Solicitors:
………………………….
Palmer J
Dr R E Harrison QC, Auckland I C Carter, Barrister, Wellington
Jesse & Associates, Auckland Crown Law, Wellington
36 Solicitor-General v Alice [2007] 1 NZLR 655 (CA) at [17]; Re Solicitor-General’s Reference (No 1 of 2016) [2016] NZCA 417, [2017] 2 NZLR 1 at [7]; Canterbury Regional Council v Attorney- General [2009] NZAR 611 (HC) at [61].
37 Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 167 at [17]–[21].
38 Li v Chief Executive of the Ministry of Business, Innovation and Employment, above note 1, at [15].
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