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

[2019] NZHC 1621

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-854

[2019] NZHC 1621

UNDER

The Judicial Review Procedure Act 2016 and the Judicature Amendment Act 1972

IN THE MATTER

of a decision under the Immigration Act 2009

BETWEEN

KOJI MACHIDA

Plaintiff

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT

Respondent

Hearing:

11 July 2019

Appearances:

G Aulakh for Plaintiff

C Paterson and E Mok for Respondent

Judgment:

12 July 2019

JUDGMENT OF LANG J

[on application for interim relief]

This judgment was delivered by me on 12 July 2019 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

MACHIDA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2019] NZHC 1621 [12 July 2019]

[1]                 Mr Machida arrived in New Zealand as a visitor in 2003. His wife joined him in November 2005. Since that time Mr and Mrs Machida have lived and worked in New Zealand under a variety of permits and work visas. Mr Machida filed the present proceeding after Immigration New Zealand (INZ) declined to grant their request for a new work visa on 9 April 2019.

[2]                 A substantive fixture has been allocated for 16 September 2019. Mr Machida now seeks interim relief pending determination of his application for judicial review of the decision declining to issue the work visa.

Background

[3]                 By 20 March 2018 Mr and Machida were liable for deportation because their latest requests for a work visa had been declined. They then lodged appeals against their liability for deportation on humanitarian grounds with the Immigration Protection Tribunal (IPT). On 1 August 2018, the IPT declined these appeals on the basis that Mr and Mrs Machida could not point to exceptional circumstances of a humanitarian nature. The IPT ordered that they were to be granted work visas for a four month period under s 216 of the Immigration Act 2009 so they could finalise their affairs before departing from New Zealand. These visas expired on 27 December 2018.

[4]                 Prior to the expiry of the work visas Mr Machida lodged an application for a further work visa. This was declined on 9 April 2019. By that date Mr and Mrs Machida had been unlawfully in New Zealand since 27 December 2018, being the date on which the visas granted by the IPT had expired.

[5]                 Mr Machida filed this proceeding on 7 May 2019. He seeks an order setting aside the decision declining to grant him and his wife a work visa and orders requiring the immigration authorities to reconsider their application.

The application for interim relief

[6]                 INZ has now given an undertaking that it will not take any further steps to deport Mr and Mrs Machida until the outcome of the present proceeding is known. Mr and Mrs Machida are not satisfied with this arrangement. Mr Machida asks the Court to make orders under s 15(2)(c) of the Judicial Review Procedure Act 2016 (the JRPA), which relevantly provides as follows:

15       Interim orders

(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.

(2)The interim orders referred to in subsection (1) are interim orders—

…

(c)declaring that any licence that has been revoked or suspended  in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.

…

[7]Section 4 of the JRPA defines the term “licence” as follows:

licence includes any permit, warrant, authorisation, registration, certificate, approval, or similar form of authority required by law

[8]                 Mr Aulakh submits that s 15(2)(c) permits the Court to make an order that the visa issued by the IPT is to remain in force pending determination of the present proceeding. He seeks an order in those terms to protect his clients’ position until the present proceeding has been finally determined.

Decision

[9]                 I proceed for present purposes on the basis that the definition of “licence” in  s 4 of the JRPA is sufficiently wide to include visas and other types of authority to remain in New Zealand that may be issued under the Immigration Act 2009.

[10]             I do not consider, however, that s 15(2)(c) of the JRPA provides the Court with the jurisdiction to make the order Mr Machida seeks. The visa that the IPT issued was not “revoked or suspended in the exercise of any statutory power”. Rather, it expired on 27 December 2018 because it came to the end of the term for which it had been issued. The only other ground on which the Court may make an interim order extending a licence is where the licence in question “will expire by the passing of time before the final determination of the application for judicial review is made”. The licence in the present case had already expired approximately five months before the present proceeding was filed. Section 15(2)(c) does not give the Court the power to extend a licence or visa that has already expired. I therefore do not consider the section permits the Court to make the order Mr Machida seeks.

[11]             Even if jurisdiction had existed, however, I would not have made the order Mr Machido seeks. As the wording of s 15(1) makes clear, interim orders may be made where they are necessary “to preserve the position of the applicant”. I take this as meaning an order must be necessary to maintain the existing state of affairs.

[12]             Where a licence is in force when a proceeding is filed, s 15(2)(c) permits an interim order to be made to preserve that position if the licence will expire before the proceeding is determined. Any order purporting to declare that an expired visa is to continue to remain in force would go well beyond preserving the position of the applicant. It would place the applicant in a much better position than he or she was in before the proceeding was filed. It would therefore produce a result more advantageous to the applicant than the section appears to contemplate.

[13]             In addition, Mr Machido’s position is now adequately protected or preserved by the undertaking given by INZ. This prevents any further steps from being taken to deport Mr and Mrs Machido until the present proceeding has been finally determined. The undertaking therefore provides the applicant with the same level of comfort as an interim order would do.

Result

[14]The application for interim relief is dismissed.

Costs

[15]             At this stage I reserve costs on the present application. They are to be fixed when the substantive application has been determined.

Lang J

Solicitors:

Gurbrinder Aulakh, Auckland Crown Solicitor, Auckland