Li v Chief Executive of the Ministry of Business, Innovation and Employment
[2017] NZHC 2977
•1 December 2017
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 [2017] NZHC 2977
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 OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent
Hearing: 18 October 2017 Appearances:
R E Harrison QC and J S T Nguy for the applicants
I M G Clarke and E N C Lay for the respondentJudgment:
1 December 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 1 December 2017 at 3 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
LI v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 2977 [1 December 2017]
Summary
[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.
What happened?
The applicants
[3] Mr Zhenyang Li, the first applicant, is 48 years old and a Chinese citizen. He arrived in New Zealand on a work visa in July 2010 under the China Special Work Policy. Since July 2012 he has held a series of work visas under the Work to Residence (Long Term Skill Shortage List) category. Mr Li applied unsuccessfully
for residence in 2014 and 2016. Mr Li’s current work visa (a temporary entry class visa), issued in November 2015, provides he “may only work as Chef for Ideal Fortune Limited in Auckland”. It expires on 24 February 2018.
[4] In January 2011, Mr Li was joined by Ms Ling Xu, his wife the second applicant who is now 48 years old, and their son, Mr Zhen Li the third applicant, then 15 and now 21 years old. Ms Xu has also had a series of work visas. In 2014 she established a company installing air-conditioning and under-floor heating. She is the sole director and shareholder and says she initially operated alone, with part-time assistance from a volunteer apprentice and her son. The company has had a full-time employee since October 2016. Mr Zhen Li is currently on a student visa.
Deportation
[5] On 25 October 2016, each of the applicants were served with a Deportation Liability Notice (DLN) by INZ. Mr Li’s DLN was on the ground he had breached a condition of his work visa by working for Mrs Xu’s company. Mrs Xu’s and Mr Zhen Li’s DLNs were issued on the basis their visas were based on their relationships with Mr Li. The applicants made submissions in response, questioning the basis of the decision.
[6] On 8 December 2016, INZ asked for Mr Li’s comment on additional information that he was working for his wife’s business, installing air conditioning units. On 22 December 2016, Mr Li made submissions to INZ addressing the additional information and stating any assistance he gave his wife by delivering materials to various worksites was done on a voluntary basis to support his wife.
[7] On 22 March 2017 INZ informed the three applicants it did not accept there were good reasons why their deportation should not proceed. The applicants made humanitarian appeals to the Tribunal. A core submission was that INZ did not establish that Mr Li had ever worked for Mrs Xu’s company so his actions did not breach the condition of his visa and the DLNs were unfair.
Tribunal decision
[8] The Tribunal declined the appeals on 17 May 2017. It concluded there were no exceptional circumstances of a humanitarian nature for the applicants either individually or as a family.1 That meant they had failed to meet the requirements of a humanitarian appeal under s 207 of the Act and their appeals were declined. In relation to the applicants’ core submission the Tribunal stated:2
[30] The Tribunal does not have powers of review in respect of whether the basis on which a DLN is issued (under the provisions of s 157 of the Act) was correct or to review Immigration New Zealand’s actions and decisions leading to the service of the DLNs. The appellants’ avenue of challenge in that regard is through an application for judicial review of Immigration New Zealand’s decision. It does not have jurisdiction to review a decision of Immigration New Zealand to issue or maintain a DLN or to decline to grant a temporary visa: L v Removal Review Authority (HC Wellington, CIV-2005-
485-1601, 3 March 2006).
[31] The Tribunal’s jurisdiction on an humanitarian appeal, pursuant to s
207 of the Act, is confined to the assessment of exceptional humanitarian circumstances as set out in the statutory test.
Applications
[9] The applicants now apply for:
(a) leave to appeal the Tribunal determination on whether it is open to the
Tribunal, when determining an appeal on humanitarian grounds:
(i)to consider the legal validity of the ground on which liability for deportation and/or issuance of a DLN is allegedly based; and
(ii) to consider any material shortcomings of the INZ
investigations leading to the conclusion there is sufficient reason to deport or issue a DLN; and
1 Re Xu [2017] NZIPT 502997-999 at [56].
2 At [30]–[31].
(b)leave to apply for judicial review of the legality and fairness of INZ’s investigation whether there was sufficient reason to deport the applicants and/or issue DLNs.
Question 1: Leave to appeal
The law of appeal of Tribunal decisions
[10] Section 245(1) of the Act provides a party to an appeal to the Tribunal, who is “dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law”, is entitled, with the leave of the High Court, to appeal on that question of law. In determining whether to grant leave, s 245(3) requires a court to “have regard” to whether that question “is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision”. The Court of Appeal has stated the “any other reason” limb “would be engaged only in exceptional circumstances involving individual injustice to such an extent that the Court could not countenance the first instance decision standing”.3
[11] There are two sorts of appeal to the Tribunal available in respect of deportation liability. Under s 202, appeal on the facts is available where a visa is granted in error, a visa is held under false identity or because of fraud or forgery, because new information as to character becomes available, or if refugee or protected status is cancelled.4 Such an appeal is not expressed to apply to deportation of holders of interim work visas under s 157, as at issue here.
[12] The appeal sought here would challenge the Tribunal’s interpretation of its jurisdiction on the second sort of appeal. These are humanitarian appeals under ss 206 and 207 of the Act which provide, relevantly:
206 Who may appeal to Tribunal on humanitarian grounds
(1) The following persons may appeal to the Tribunal on humanitarian grounds against their liability for deportation:
3 Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 citing Machida v Chief
Executive, Ministry of Business Innovation & Employment [2016] NZCA 162, [2016] NZAR
662 at [8].4 Immigration Act 2009, ss 144, 156, 158, 159, 160 and 162.
(a) a person liable for deportation under section 154 on the grounds of being unlawfully in New Zealand:
(b) a temporary visa holder or interim visa holder liable for deportation under section 155, 156, or 157:
(c) a resident or permanent resident liable for deportation under section 155, 156, 158, 159, 160, or 161:
(d) a person liable for deportation under section 162.
(2) No person may appeal to the Tribunal on humanitarian grounds—
…
(d) if he or she holds a limited visa and is liable for deportation under section 155, 156, or 157; or
…
207 Grounds for determining humanitarian appeal
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
[13] In three decisions, the High Court has found predecessor versions of s 207 to be limited to considering humanitarian grounds in deciding whether to allow an appeal. In L v Removal Review Authority,5 in respect to revocation of a student visa under a previous version of s 207, Ronald Young J noted the Act only provided one ground of appeal from a decision to revoke such a permit and therefore “[n]o challenge beyond a judicial review in the High Court is therefore permitted to the circumstances which create the unlawful presence of the appellant in New Zealand”.6
In Kartseva v Chief Executive of the Ministry of Business, Innovation and
Employment, Duffy J relied on L in agreeing the Tribunal cannot determine the
5 L v Removal Review Authority HC Wellington, CIV 2005-485-1601, 7 December 2005.
6 At [11].
merits of INZ’s decision on a humanitarian appeal.7 In Machida v Immigration and
Protection Tribunal, Hinton J came to the same conclusion.8
Submissions
[14] Dr Harrison QC, for the applicants, acknowledges that, if the Court finds the proposed questions not seriously arguable, it will refuse leave to appeal. He seeks to argue on appeal that the High Court decision of L v Removal Review Authority was wrongly decided or is no longer good law. He submits it failed to address the concept of “collateral challenge” of unlawful administrative decisions. He submits the essential fairness of the liability for deportation forms part of the overall circumstances for consideration in a humanitarian appeal in terms of the requirements for “exceptional circumstances” or deportation being “unjust or duly harsh” or as part of the “contrary to public interest” inquiry. Dr Harrison also has a “less ambitious argument” that underlying liability can be examined as part of the background facts.
[15] Ms Clarke, for the Crown, submits the Tribunal was bound to follow L v Removal Review Authority, and the other precedents noted above, which were correctly decided in light of the text and scheme of the Act.9 She acknowledges the level of a breach giving rise to deportation liability can be relevant to the public interest inquiry under s 207(1)(b). But she submits the nature of the breach itself cannot be relevant to the humanitarian circumstances inquiry and, therefore, cannot sustain an appeal under s 207. Ms Clarke indicated the Crown would oppose interim relief if it were the subject of an application. She also indicated that no steps towards the applicants’ deportation would be taken until after my decision in this judgment, after which action would be governing by the timings in the Act, including
the 20-day appeal period.
7 Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 97 at [30].
8 Machida v Immigration and Protection Tribunal [2015] NZHC 2649 at [67].
9 Because Dr Harrison took the point, I note Ms Clarke acknowledged the Crown is required to seek leave to exceed the maximum length for interlocutory submissions, which it did not do here. But I do not consider the Crown was appreciably advantaged by using more words than required.
Decision
[16] If the proposition were seriously arguable, there is little doubt the appeal would fulfil the requirement of s 245 of the Act. But I do not consider the “exceptional circumstances of a humanitarian nature”, required for a humanitarian appeal in s 207, extend to the validity of the underlying liability to deportation. Dr Harrison is correct the Supreme Court in Guo stated whether deportation is “unjust or unduly harsh” “is to be assessed in the light of the reasons why the appellant is liable for deportation”.10 But it considered those reasons would be balanced against the consequences of deportation and the primary focus would be on the personal circumstances of the deportee and family.
[17] The use of the term “humanitarian” as the pivotal qualification of the relevant circumstances in s 207(1)(a) supports that. So, most persuasively, does the scheme of the Act, in providing for both humanitarian appeals under s 207, and appeals on liability, for deportation liability for a range of reasons, but not for this category of temporary work visa. This means that, where Parliament intended the reasons for deportation liability to be subject to an appeal, it provided for that explicitly. Where it did not so provide, the compelling inference is it did not so intend. The legislative history does not assist Dr Harrison’s argument. 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.
[18] I do not consider the concept of collateral challenge assists the applicants. A collateral challenge is where the validity of an action or decision is challenged indirectly to determine private law rights.11 That is the not the situation here. Neither does underlying liability to deportation as part of the background facts of the case enable the Tribunal to overturn INZ’s decision on liability.
[19] The Act attaches rights of appeal to the underlying reasons for other sorts of deportations. It does not do so for liability to deportation on grounds of breaching conditions of a temporary work visa. Parliament did not intend to provide such a
right of appeal. I do not consider it is seriously arguable it did. Humanitarian
10 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].
11 P F Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA) at [47]–[49].
appeals do not fill the gap. I consider L v Removal Review Authority was correctly decided. I decline leave to appeal.
[20] But this is not a licence for official unlawfulness, if it exists. Section 18(4) of the Bill of Rights and art 13 of the International Covenant on Civil and Political Rights (ICCPR) implicitly require there to be a means by which the lawfulness of deportation can be challenged. That can be achieved by the supervision of the Court on application for judicial review.
Question 2: Leave to apply for judicial review
The law of judicial review of Immigration decisions
[21] Sections 247 and 249 of the Act affect applications for leave to apply for judicial review. They provide, relevantly:
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—
(a) the High Court decides that, by reason of special circumstances, further time should be allowed; or
(b) leave is required, under section 249(3), before proceedings may be commenced (in which case section 249(4) applies).
…
(3) In this section, statutory power of decision has the same meaning as in section 4 of the Judicial Review Procedure Act 2016.
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
(2) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
(4) An application to the High Court for leave to bring review proceedings must be made—
(a) not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
…
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
(8) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[22] I have previously held there are constitutional and Bill of Rights considerations relevant to applications for leave for judicial review that do not impact applications for leave to appeal in the same way.12
Submissions
[23] Dr Harrison has provided a draft statement of claim for his proposed application for judicial review. It would challenge each INZ decision on liability to deportation and to issue a DLN, for each applicant on grounds of natural justice,
unreasonableness and error of law in relation to the meaning of “work” in the visa as
12 RM v Immigration and Protection Tribunal [2016] NZHC 73 at [39]-[40]; AI (Somalia) v
Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [35].
something wider than employment. If the application for judicial review can proceed, but the appeal cannot, Dr Harrison will seek interim relief pending determination of the judicial review.
[24] Dr Harrison says the application for leave to apply for judicial review is precautionary in case leave is required under s 249(3) or out of time under s 247(1). He submits, if his submissions on leave to appeal are declined as they have been, the review proceedings could not be adequately dealt with in an appeal, under s 249(6)(a), and the issues are of such general or public importance they should be submitted to the Court for review under s 249(6)(b). If s 247 applies because the decision could not be subject to an appeal under s 249, he submits there are special circumstances justifying an extension to the deadline. Those circumstances are that the applicants were not sleeping on their rights but pursuing their humanitarian appeal which, via s 249(2), precluded interim judicial review proceedings. That course was entirely understandable.
[25] Ms Clarke submits the applicants may apply for leave for judicial review under s 249 of the Act. The Crown agrees the subject matter of the judicial review is not capable of being resolved by way of appeal, consistent with the Crown’s position on the appeal. But Ms Clarke submits the proposed review raises no question capable of bona fide and serious argument or that should be submitted to the High Court for review.
Decision
[26] I held above, in relation to the application for leave to appeal, consistent with existing High Court decisions and as submitted by the Crown, that the applicants’ challenge to their underlying liability for deportation cannot be decided in a humanitarian appeal. The Act provides for no other type of appeal. I consider s
249(1) does not apply because the decision may not “be subject to an appeal to the Tribunal under this Act”. Accordingly, s 249 does not restrict the right to apply for judicial review of a decision about underlying liability to deportation where only a humanitarian appeal is available.
[27] It is true a humanitarian appeal could be (and was here) taken. But, as the
Crown submitted, it must have been hopeless in challenging the underlying liability
for deportation. Parliament cannot have intended to restrict the applicants’ right to judicial review under s 27(2) of the Bill of Rights by requiring them to first take a hopeless appeal. Section 6 of the Bill of Rights, the principle of legality and common sense militate strongly against such an interpretation of s 249(1).
[28] Accordingly, s 247 governs the proposed judicial review, as it is of a statutory power of decision under the Act. The applicants are out of time under s 247(1). But they are out of time because they pursued their right of humanitarian appeal, believing (and submitting) that their challenge to underlying liability to deportation could be resolved via that route. I do not consider their right to judicial review should be foreclosed in such circumstances. However, now it is clear that only judicial review is the appropriate route by which to challenge underlying liability in certain circumstances, future such cases will need to be examined on a case-by-case basis and may not deserve such an extension of time.
[29] If, contrary to my conclusion, s 249 applied instead, I would still grant leave to apply for judicial review. I consider the merits of the applicants’ case, in exercising their constitutional right to challenge the exercise of government power by way of judicial review, are seriously arguable. I consider denying them any legal avenue to challenge potential unlawfulness leading to their deportation could constitute individual injustice to such an extent the Court could not countenance the decision standing. Accordingly, I grant leave for the applicants to apply for judicial review along the lines of the draft statement of claim with an extension of time.
Result
[30] I decline the application for leave to appeal. I grant the application for leave to apply for judicial review with an extension of time until 5.00 pm Friday 15
December 2017. I award costs on a 2B basis to the applicants.
..................................................................
Palmer J
Counsel/Solicitors:
Dr R E Harrison QC, Auckland
Jesse & Associates, Auckland
Crown Law, Wellington CI
6
1