Li v Chief Executive of the Ministry of Business, Innovation and Employment

[2016] NZHC 660

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2016-419-71 [2016] NZHC 660

BETWEEN

BAOGANG LI

Plaintiff

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant

Hearing:	12 April 2016
Counsel:	F C Deliu for Plaintiff M Hardy for Defendant
Judgment:	12 April 2016

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Richard Zhou, Auckland Meredith Connell, Auckland Counsel:

F C Deliu, Auckland

LI v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 660 [12 April 2016]

[1]      Mr Baogang Li is a citizen of the Peoples’ Republic of China.   The Chief Executive of the Ministry of Business Innovation and Employment (the Chief Executive) asserts that a deportation order has been served on him and that he is now liable for deportation from New Zealand.  Mr Li seeks an interim order, under s 8 of the Judicature Amendment Act 1972, to prevent the Chief Executive from removing him from New Zealand, pending consideration by immigration officials of humanitarian factors Mr Li wishes to raise.

[2]      Section 8 of the Judicature Amendment Act 1972 enables the Court to make an order prohibiting any respondent to an application for review from taking any further action that is, or would be, consequential on the exercise of a statutory power. In this case, the statutory power is to deport.  The Court must be of opinion that it is “necessary”  for an  interim  order to  be made  for the purpose of preserving  the position of an applicant.  The relevant test was set out by Hammond J in Esekielu v

Attorney-General,1 in which the Judge held there must be “a real contest between the

parties and an applicant must have a respectable chance of succeeding in that contest

before an interim order should be made”.

[3]      Mr Deliu, for Mr Li, put forward two arguments in support of the application. The first was based on the need for the Chief Executive to comply with the process set out in s 177 of the Immigration Act 2009 (the Act) before making a decision to deport Mr Li.  That process has become known as a “humanitarian interview”.  It is designed  to  consider  personal  factors  relating  to  the  person  whom  the  Chief Executive seeks to deport in light of international obligations owed by the New Zealand Government.

[4]      The  Chief  Executive  joined  issue  on  that  point  by  contending  that  the provision under which Mr Li was to be deported was not one to which s 177 of the Act relates.   Mr Deliu, on the other hand, submitted that the process under s 177

should apply irrespective of the basis on which deportation was to be effected.

1      Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC) at 313.

[5]      It  is  not  necessary  for  me  to  resolve  that  issue,  even  to  the  point  of determining whether there is a respectable chance of success on the part of Mr Li on that issue. My decision to make an interim order turns on the question of service.

[6]      The issue is whether Mr Li was served with a deportation order as required by statute.  There is evidence that a deportation order was sent to an address that Mr Li had notified in a visa application.   The relevant order was dated 12 November

2014.  The mode of service was by courier pack.  That mode purported to comply with s 386(3)(b) of the Act which permits service “by registered post addressed to the person at the person’s New Zealand address”.   The definition of the term “registered post” in s 4 of the Act:

includes  any  postal  or  courier  service  where  delivery  to  the  address  is recorded.

(emphasis added).

[7]      While there is evidence of a courier containing a deportation order having been sent by an immigration officer, there is no record of delivery in evidence before me.  Indeed, there is evidence put forward, to which counsel for Mr Li has referred, that the courier company cannot provide any tracking information to demonstrate whether the courier was delivered to the relevant address.

[8]      In my view, there is a real contest between the parties as to whether service has   been   properly   effected   upon   Mr   Li   in   accordance   with   the   statutory requirements.  The fact that the statute permits more relaxed forms of service than is required in other cases (for example, those that allow only personal service) emphasises the need for proper proof of delivery when a person’s ability to stay in New Zealand is in issue.  I say no more about the merits of the issue.  They will be for the presiding Judge to determine on the hearing of the substantive application.

[9]      For those reasons, I declare that the Chief Executive ought not to take any steps to give effect to the deportation order dated 12 November 2014 that is alleged to have been served on Mr Li.  That order will enure pending further order of the Court.

[10]     It is open to the Chief Executive to take advice on whether to apply to set aside or revoke that order, in the event that compelling evidence is available to demonstrate delivery of the notice by courier to the relevant address.  That decision would need to be made in the context of the timetable I am about to make which will enable a hearing on the substantive judicial review application on 10 June 2016.

[11]     Now that an interim order has been made, in this case on the limited point as to service, the remaining issues raised by Mr Deliu in argument about the need for a humanitarian interview2 continue to be live for the purposes of that hearing.

[12]     I  make  the  following  timetabling  orders  in  respect  of  the  substantive application for judicial review:

(a)      Any amended Statement of Claim shall be filed and served on or before 26 April 2016.

(b)A Statement of Defence to the extant Statement of Claim shall be filed and served on or before 3 May 2016.

(c)      Any affidavit evidence on behalf of Mr Li shall be filed and served on or before 9 May 2016.  Affidavit evidence filed to date by Mr Li shall form part of the evidence on the substantive application.

(d)Affidavit evidence on behalf of the Chief Executive shall be filed and served on or before 16 May 2016.  Likewise, affidavits that have been filed on the interim application will be regarded as evidence on the substantive application.

(e)      Any affidavit evidence in reply from Mr Li shall be filed and served on or before 23 May 2016.

(f)      Mr Deliu, on behalf of Mr Li, shall file and serve a bundle of all relevant documents to be considered by the presiding Judge at the

2      See paras [3] and [4] above.

substantive hearing.   That shall be filed and served on or before 23

May 2016.

(g)Written submissions in support of the application shall be filed and served on or before 30 May 2016.

(h)Written submissions in opposition to the application shall be filed and served on or before 6 June 2016.

[13]     The hearing is allocated one day, to commence at 10am on 10 June 2016.

[14]     I  do  not  need  to  reserve  leave  in  respect  of  any  application  the  Chief Executive may make in respect of the present interim order.  Any application that is made will stand or fall on its own merits.

[15]     I reserve the question of costs.  Because I have dealt with the application on the basis of a service point to which Mr Li did not expressly respond in an affidavit, I consider  that  costs  should  be  determined  by  the  Judge  hearing  the  substantive

application once a decision on that has been delivered.

P R Heath J