Nguyen v Minister of Immigration
[2014] NZHC 2524
•15 October 2014 at 12 noon
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2014-404-002582 [2014] NZHC 2524
UNDER the Judicature Amendment Act 1972 BETWEEN
HUY QUOC NGUYEN Applicant
AND
THE MINISTER OF IMMIGRATION First Respondent
AIDEN GAVIN ROLLS Second Respondent
Hearing: 14 October 2014 Appearances:
JST Nguy for Applicant
A R Longdill for RespondentJudgment:
15 October 2014 at 12 noon
(RESERVED) JUDGMENT OF ANDREWS J
This judgment is delivered by me on 15 October 2014 at 12 noon pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
NGUYEN v THE MINISTER OF IMMIGRATION & ANOR [2014] NZHC 2524 [15 October 2014]
Introduction
[1] The applicant, Mr Nguyen, has filed a proceeding seeking judicial review of the decision by the Minister of Immigration declining his request for a special direction to cancel an order that Mr Nguyen be deported, made on 28 July 2010 (“the deportation order”). Mr Nguyen has applied for an interim order under s 8 of the Judicature Amendment Act 1972, restraining the execution of the deportation order pending conclusion of the application for judicial review.
[2] The application is opposed.
Background
[3] Mr Nguyen was born in Vietnam in 1975. His family left Vietnam as refugees in 1989 and went to Hong Kong. In 1997, he and his parents were returned to Vietnam. Mr Nguyen’s older brother migrated to Ukraine, and his older sister was granted refugee status in New Zealand. She sponsored Mr Nguyen and his parents for entry to New Zealand. Mr Nguyen arrived in New Zealand in November 2000.
[4] The deportation order was made as a result of Mr Nguyen’s criminal convictions. On 9 August 2005, Mr Nguyen was convicted in the District Court at Manukau on a charge of operating a vehicle carelessly. On 11 September 2007, Mr Nguyen was convicted in this Court on charges of unlawfully possessing a firearm, carrying a restricted weapon, and possessing methamphetamine and amphetamine for supply. He was sentenced to imprisonment for three years and four months. On 12 October 2007, Mr Nguyen was convicted in the District Court at Auckland on a charge of receiving stolen property.
[5] On 18 February 2009, Mr Nguyen was convicted in this Court on charges of possessing methamphetamine and amphetamines for supply, and selling ecstasy. On those charges, he was sentenced to imprisonment for five years.
[6] The deportation order was served on Mr Nguyen on 7 September 2010, and since that date, he has been, and remains, liable for deportation under ss 313 and 432 of the Immigration Act 2009 (“the Act”), on the grounds that he is subject to a
deportation order under the provisions of s 91(1)(d) of the Immigration Act 1987
(“the 1987 Act”).
[7] On 6 October 2010, Mr Nguyen appealed to the Deportation Review Tribunal. His appeal was dismissed in a decision issued on 8 March 2012. He applied to this Court for leave to appeal and his application was dismissed in the judgment of Peters J delivered on 8 October 2012.1
[8] On 28 March 2013, Mr Nguyen made a representation to the Minister of Immigration, requesting that he intervene and cancel his liability for deportation. The request was denied in a letter from the Minister dated 7 May 2013.
[9] Mr Nguyen was arrested and detained pending deportation, on 28 August
2014. On 1 October 2014, Mr Nguyen made a further representation to the Minister of Immigration, requesting that he intervene and cancel his liability for deportation. On the same day, Mr Nguyen filed this proceeding for judicial review, and the application for an interim order. On 6 October 2014, the Minister of Immigration advised that he was not willing to intervene in Mr Nguyen’s deportation.
[10] I was advised at the hearing of the application for an interim order that, although Mr Nguyen had refused to apply for a Vietnamese passport (his previous passport having expired) Immigration New Zealand had been able to arrange for emergency travel documents to be issued, and (subject to arranging for a Police escort) it is expected that Mr Nguyen could be deported by Friday of this week.
Grounds for judicial review and for interim order
[11] Mr Nguy submitted that the three main grounds on which judicial review is sought are the following:
(a) Apparent bias and lack of independence, in that it is alleged that the Minister had declined Mr Nguyen’s earlier request for a special direction, in 2013. Mr Nguy submitted that the request for a special
direction is in essence a form of appeal and the fact that it had been
1 Huy Quoc Nguyen v Minister of Immigration [2012] NZHC 2608.
considered by the same Minister showed a lack of independence in the appeal process, which is a clear violation of the rules of natural justice and therefore procedurally unfair.
(b)It is alleged that the fact that the Minister responded to the request for a special direction within three working days demonstrated that it had been given within an unreasonably short timeframe, and thus had not been adequately considered.
(c) It is alleged that the Minister did not make a fully informed decision, as he was not provided with all relevant information on which to base his decision.
[12] An interim order is sought on the grounds that it is necessary to preserve Mr Nguyen’s position in continuing to pursue the application for judicial review, and that he has a respectable chance of succeeding in that application.
Relevant statutory provisions
[13] Section 8 of the Judicature Amendment Act 1972 provides, as relevant:
8 Interim orders
(1) …, at any time before the final determination of an application for
review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order …
[14] In the context of applications for interim orders to restrain the exercise of a deportation order, the threshold set out by Hammond J in Esekielu v Attorney- General is as follows:2
It seems to me therefore, that whilst the applicant should not be required to demonstrate a very strong probability of success on the merits, the kind of matters that that individual must establish in support of a claim to interlocutory relief must be more than a showing that the question is not merely trivial. I would have thought both that there must be a real contest between the parties, and that the applicant has a respectable chance of succeeding in that contest.
2 Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC) at 313.
[15] The Esekielu test has been routinely adopted by the courts when considering applications for interim orders in the immigration context.3
[16] Under s 172 of the Act, the Minister of Immigration may cancel or suspend liability for deportation. As relevant, s 172 provides:
172 Minister may cancel or suspend liability for deportation
(1) The Minister may at any time, by written notice, cancel a person’s
liability for deportation.
(2) The Minister may at any time, by written notice, suspend a residence
class visa holder’s liability for deportation—
(a) for a period not exceeding five years; and
(b) subject to the visa holder complying with any conditions stated in the notice.
…
(5) The decision to cancel or suspend a person’s liability for deportation
is in the absolute discretion of the Minister.
…
[17] Mr Nguyen’s application for a special direction was made under s 378 of the
Act which provides, as relevant:
378 Special direction
(1) The Minister may give to the Chief Executive or any other
immigration officer, either in writing or orally, a special direction, in relation to any matter for which such a direction is contemplated by any provision of this Act or Regulations made under this Act, in respect of—
(a) any person, visa, or document; or
…
(8) The decision whether to grant a special direction is in the absolute discretion of the Minister.
…
[18] The meaning of “absolute discretion” is set out in s 11 of the Act:
11 Meaning of absolute discretion of the decision maker
If a provision of this Act provides that a matter or decision is in the absolute
discretion of the decision maker concerned, it means that—
(a) The matter or decision may not be applied for; and
(b) If a person purports to apply for the matter or decision, there is no obligation on the decision maker to—
3 See Singh v Minister of Immigration [2009] NZCA 50 and Parmanadan v Minister of
Immigration [2010] NZCA 136, [2010] NZAR 424.
(i) consider the purported application; or
(ii) inquire into the circumstances of the person or any other person; or
(iii) make any further inquiries in respect of any information
provided by, or in respect of, the person or any other person;
and
(c) Whether the purported application is considered or not—
(i) the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and
(ii) section 27 of this Act and section 23 of the Official
Information Act 1982 do not apply in respect of the purported application.
[19] In Yure v Bentley, in the context of s 130 of the 1987 Act (the predecessor to s 378 of the Act) Chambers J said:4
It is clear from the scheme of the Act that the power conferred on the Minister is primarily intended for those situations where all else has failed from a prospective immigrant’s point of view. The Minister retains a residual power to do something for someone notwithstanding the fact that the recipient has not managed to persuade any immigration officer or immigration tribunal or his or her case. It is, with respect, thoroughly sensible for parliament to have vested such a residual power in the Minister.
[20] Chambers J went on to note that because the power given to the Minister is exceptional, Parliament has strictly limited their scope for judicial review.5 His Honour referred to a number of other High Court decisions where it was held:
(a) Parliament had clearly indicated in this area that “issues relating to immigration are fundamentally for the executive arm of government”, and that unless there was clear and cogent evidence that the ministerial exercise had been unlawful, the court lacked jurisdiction to intervene.6
(b) A person seeking a special declaration under the predecessor to s 378
has very limited rights. The Minister’s discretion is “very much a
discretionary policy decision coming usually at the very end, or even
4 Yure v Bentley HC Auckland M1530-PL01, 8 November 2001 at [10].
5 At [11].
6 Singh v Minister of Immigration HC Auckland M1321/95, 18 July 1996 at p 7-8.
outside, of any legal process, and to a large extent outside judicial review.7
(c) The Minister’s power is “virtually unreviewable” and in the light of “the high policy content of immigration decisions” the courts will not intervene “in the absence of clear and cogent evidence that the exercise [of the power] has been unlawful”.8
[21] Similar comments have been made more recently, in the judgments of Stevens J in Kesonsung v Minister of Immigration,9 Venning J in Prasad v Minister of Immigration,10 and Woolford J in Pesamino v Minister of Immigration.11 It is clear, as Mr Nguy accepted on behalf of Mr Nguyen, that an applicant for judicial review of a Minister’s decision in respect of a request for a special direction faces a very difficult task. As Stevens J observed in Kesonsung, the Court should be
reluctant to intervene in a decision with such high policy content unless compelling grounds exist for doing so, or there is clear and cogent evidence establishing the decision to be unlawful.12
Does Mr Nguyen have a respectable chance of succeeding in his application for judicial review?
(a) Apparent bias
[22] As noted earlier, the Minister declined Mr Nguyen’s first request for a special direction, made in May 2013. Mr Nguyen’s first allegation is that the Minister was unfairly biased against him, as a result of having assessed and declined the earlier request. He further alleges that it was open to the Minister to have the request
assessed by the Associate Minister of Immigration.13
7 Singh v The Chief Executive of the Department of Labour (1997) 12 PRNZ 428 (HC) at 433.
8 Liuliu v The Minister of Immigration HC Wellington CP304/96, 26 August 1997 at pp 9 and 14.
9 Kesonsung v Minister of Immigration HC Auckland CIV-2006-404-1597, 9 November 2006 at
[19]–[20].
10 Prasad v Minister of Immigration HC Auckland CIV-2011-404-3958, 4 July 2011 at [25]–[26].
11 Pesamino v Minister of Immigration [2012] NZHC 4 at [14].
12 Kesonsung, above n 9 at [26].
[23] I am not persuaded that this allegation has a respectable chance of succeeding. First, I accept Ms Longdill’s submission that Mr Nguyen has little or no chance of succeeding in an allegation that the fact that the Minister made an adverse decision some 17 months earlier is in and of itself grounds to infer apparent bias.
[24] Secondly, as is evident from the delegations to the Associate Minister of Immigration provided to the Court, consideration of a request for a special direction is outside the scope of the delegations to the Associate Minister. The delegations document states:
5I reserve the right to consider individual cases in all categories outlined above. I will retain responsibility for individual decisions on deportation of residence class visa holder cases. …
[25] Thirdly, while (pursuant to s 7 of the Constitution Act 1986) it was possible that the request for a special direction could have been considered by another Minister, if a decision to decline a request is accepted as apparent bias per se, a person fighting deportation could, by lodging a series of requests, engage in “forum [Minister] shopping” to delay deportation.
(b) Did the Minister give inadequate consideration to the request?
[26] Mr Nguyen alleges that the fact that the Minister responded to the request for a special direction within three days demonstrates, when compared with the period of some five weeks before his earlier request was responded to, that the later request was not adequately assessed.14 This is particularly so, it was submitted, in the light of the new matters referred to in the later request.
[27] This allegation needs to be put in context. Mr Nguyen filed his application for judicial review (seeking an order setting aside the deportation order) and for an interim order on 1 October 2014, the same day that he lodged his request for a special direction. The judicial review application was called for mention in this Court on Thursday 2 October, and adjourned for one week to await the Minister’s decision. Accordingly, while Mr Nguyen’s counsel should not be criticised for taking urgent steps in his client’s interests, the fact is that the Minister was, by virtue
of the direction in the judicial review proceeding, required to give priority consideration to the request.
[28] Further, Mr Nguyen is in custody. This is a further reason for his request for a special direction to be given priority consideration.
[29] In any event, I am not persuaded that Mr Nguyen has a respectable chance of succeeding on this allegation. Notwithstanding the prompt response to the request, there is nothing alleged, or evident from the documents provided to me, that supports the allegation that the Minister could not reasonably have considered the request within three working days. It must also be borne in mind that pursuant to s 11 of the Act, the Minister was not obliged to consider the request, at all.
(c) Was the Minister provided with full information?
[30] The Minister had before him a nine page document comprising Mr Nguy’s representations on behalf of Mr Nguyen (together with supporting documents), and a five page case note prepared by Immigration New Zealand concerning the request for a special direction. The latter document had attached to it a number of other documents, including Mr Nguyen’s conviction history, his previous immigration history, and relevant legislation.
[31] Mr Nguyen alleges that potentially all relevant information was not put before the Minister.15 Mr Nguy submitted that the Minister was not advised that he had the option (pursuant to s 182 of the Act) to remove or reduce the period of a prohibition on re-entry to New Zealand, and that neither Mr Nguyen’s new relationship and New Zealand born child, nor his recent diagnosis as suffering from hepatitis C were noted as relevant issues.
[32] As with the previous two matters, I am not persuaded that Mr Nguyen has a respectable chance of succeeding on this allegation. First, all of the topics referred to by Mr Nguyen are referred to both in the representations to the Minister, and in the case note. The Minister was provided with copies of relevant legislation, including
s 182. It cannot be said that the Minister was not fully informed as to all relevant issues.
(d) Conclusion
[33] I conclude, therefore, that Mr Nguyen has not satisfied me that he has a respectable chance of establishing clear and cogent evidence that the Minister of Immigration’s exercise of his power to intervene under s 378 of the Act was unlawful. In the circumstances, there are no grounds on which the interim orders he seeks can be made.
Result
[34] The application for an interim order is dismissed.
Andrews J
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