Ochibulu v Immigration and Protection Tribunal
[2022] NZCA 278
•30 June 2022 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA266/2020 [2022] NZCA 278 |
| BETWEEN | HYACINTH DEMUS OCHIBULU |
| AND | IMMIGRATION AND PROTECTION TRIBUNAL |
| Hearing: | 27 October 2021 (further submissions received 24 November and 10 December 2021) |
Court: | Kós P, Brown and Goddard JJ |
Counsel: | R J Hooker for Appellant |
Judgment: | 30 June 2022 at 11 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe application for leave to review is dismissed.
CThe appellant must pay the second respondent costs for a standard appeal on a band A basis with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
Introduction
Mr Ochibulu, a Nigerian citizen, faces deportation as a consequence of his conviction in 2015 for importing and for possessing methamphetamine for supply (for which he was sentenced to more than 15 years’ imprisonment). Earlier convictions for driving offences had rendered him liable to deportation, but the Minister of Immigration had suspended deportation, conditionally. At about the same time, Mr Ochibulu lodged an appeal with the Immigration and Protection Tribunal based on humanitarian grounds. The appeal was deferred in light of the suspension.
After Mr Ochibulu’s serious drug offending, the then-Minister reactivated his liability for deportation. This in turn effectively reactivated his humanitarian appeal to the Tribunal. In May 2019, the Tribunal declined Mr Ochibulu’s appeal.[1] In June 2019, Mr Ochibulu applied for judicial review of the Tribunal’s decision and in November 2019, he also sought to review the Minister’s reactivation decision.
[1]Ochibulu v Minister of Immigration [2019] NZIPT 500449.
Under s 247(1) of the Immigration Act 2009, an application for judicial review of a Minister’s decision is required to be filed not later than 28 days after the date the applicant is notified of the decision, unless “the High Court decides that, by reason of special circumstances, further time should be allowed”. Mr Ochibulu applied to the High Court for leave under s 247 to commence an out of time judicial review of the Minister’s reactivation decision.
Under s 249(3) of the Act, leave is required to apply for judicial review of the Tribunal’s decision. Mr Ochibulu applied to the High Court for leave to bring judicial review proceedings in relation to the Tribunal’s decision. The Minister opposed both applications.
In April 2020, Fitzgerald J delivered a judgment declining the ss 247 and 249 applications.[2] Mr Ochibulu sought to appeal both elements of the decision. In an earlier judgment, we held his challenge to the s 249 element should proceed before this Court not as an appeal, but as an application under s 249(3) for leave to bring judicial review proceedings in the High Court.[3]
Background
[2]Ochibulu v Immigration and Protection Tribunal [2020] NZHC 792 [Judgment appealed].
[3]Ochibulu v Immigration and Protection Tribunal [2021] NZCA 269 at [10] and [41].
Mr Ochibulu met his wife, a New Zealand citizen, in South Korea. They married there in 2007. Mr Ochibulu came to New Zealand in 2008 and was granted a residence visa in 2009. He and his wife have four children, all born here and all holding New Zealand citizenship.
In August 2010, Mr Ochibulu was convicted of driving whilst disqualified, sentenced to 200 hours’ community work and disqualified from driving for 12 months. This was his third such offence. As a result, he became liable for deportation under s 161 of the Act.
In May 2011, Immigration New Zealand produced a report for the Minister to assist him in deciding whether he should cancel or suspend Mr Ochibulu’s deportation liability. In July 2011, the Minister suspended Mr Ochibulu’s deportation liability for five years, conditional among other things on him not being convicted of any offence during the suspension period. Due compliance would result in cancellation of the deportation notice. The letter further stated that if Mr Ochibulu did not comply, his deportation liability “may be reactivated”, that he would not have any new appeal rights and would have to leave New Zealand within 28 days of receiving a reactivated deportation notice.
In August 2011, Mr Ochibulu filed a notice of appeal with the Tribunal. It, however, determined that the appeal hearing should be deferred until either the expiry of the suspension period or reactivation of liability for deportation upon a breach of a condition.
In April 2015, Mr Ochibulu was convicted on two charges of importing methamphetamine (1.127 kg in quantity) and two charges of possessing methamphetamine for supply. These offences were committed in late 2013. He was sentenced to 15 years, 10 months’ imprisonment.[4]
[4]R v Iwu [2015] NZHC 1438 at [76].
In August 2015, Mr Ochibulu received a letter from Immigration New Zealand stating:
The Minister … now needs to determine whether you have failed to meet your suspension condition imposed on 12 July 2011.
Before a case is put to the Minister … I am inviting you to provide comments on your situation. …
…
If the Minister … determines that you have breached your suspension conditions, he or she will sign a deportation liability reactivation notice which will be served on you. There are no appeal rights …
In September 2015, Mr Ochibulu wrote to the Minister:
I would like to take this opportunity to respond and make my submission regarding the 2 conditions listed in your letter.
(1)I maintain I'm not the main offender on this offence I committed. I only allowed my address to be used without knowing the person is using it for drug importation. He only told me he is going to use it to bring in culture clothes to sell to Nigerians here in New Zealand. I didn't realise I would breach my immigration condition.
(2)I have committed to my wife by legally marrying her. She is a New Zealand citizen with my 4 children. It's my desire to reside in New Zealand to remain with my family. I do not wish to leave my family stranded in New Zealand.
St Joseph and St Joachim Catholic Church are willing to support me and my family. Two of my children are attending St Joseph's School there and they are doing good.
I have successfully completed my Parental Relationship course twice, and I'm looking forward to learning more.
Mrs Ochibulu also wrote to the Minister a letter which set out in some detail her husband’s remorse and efforts to achieve rehabilitation, the family’s economic distress, and their reliance on food parcels and parish aid. Supporting letters attesting to Mr Ochibulu’s character were provided from other family members and his parish priest.
Mr Ochibulu’s explanation is difficult to reconcile with Thomas J’s factual findings, recorded in her sentencing remarks:[5]
[17] The second importation through the mail system was via a package from Cameroon addressed to Tracey Hapokingi of 10 Temuri Place, Auckland. The package contained two handbags. Hidden under the hard bases inside the bags was 640 grams of methamphetamine.
[18] Tracey Hapokingi is the name of Mr Ocbibulu's partner and 10 Temuri Place is the address of her relatives.
[19] Text messages had been sent by Mr Iwu and Mr Okpara containing the same address details to phone numbers in Nigeria, Malaysia and to each other. Mr Iwu provided two different Nigerian phone numbers with the details for the package. A member of the overseas syndicate in Malaysia sent messages to Mr Iwu with the same address details and the parcel’s tracking number.
[20] A controlled delivery of this package took place on 5 December 2013. Mr Ochibulu uplifted the parcel from 10 Temuri Place. He took it back to his home address. He phoned Mr Okpara, who went to Mr Ochibulu's address. Mr lwu arrived on a flight to Auckland on the same day and was arrested at the airport. In his jacket pocket was a set of digital scales of the type used to deal methamphetamine. Residue of methamphetamine was on the scales.
[21] As the Police entered Mr Ochibulu's home address, he had his hands in one of the bags and Mr Okpara was located trying to climb out of the window[.]
…
[65] You were involved in both importations because you provided those above you in the hierarchy with address details. That is more than a custodial role. Your role was vital because it was you who was entrusted with the delivery and pick-up of the drugs, which is a crucial part of the enterprise. Although I accept that you did not necessarily want to be actively involved, the reality is that you became actively involved.
[66] In any event, I agree that your role was something more than a catcher because not only did you get your “hands dirty” by performing the physical task of uplifting the parcel but you were also in the background involved in the organisational aspect as well. That is evidenced by the fact that you participated in some phone calls with the overseas syndicate, which demonstrates your role as part of a bigger and organised aspect of the offending.
[5]Footnote omitted.
On 10 February 2016, the Minister decided to reactivate deportation following consideration of a report from Immigration New Zealand.[6] The decision was served on Mr Ochibulu on 23 February 2016.
[6]The power to do so is found in s 172(3)(a) of the Immigration Act 2009.
Reactivation of deportation led to the reactivation of Mr Ochibulu’s appeal. On 11 March 2019, the Tribunal directed that the hearing of Mr Ochibulu’s appeal take place on 8 May 2019. On 22 March 2019, Mr Ochibulu requested a copy of his full file from Immigration New Zealand. According to Mrs Ochibulu’s affidavit, a partly redacted file was delivered on 9 May 2019, a day after the hearing.
Mrs Ochibulu also claims that the full file had been provided to the Tribunal, and to counsel for the Minister, prior to the hearing. It is not altogether clear what factual basis Mrs Ochibulu had to make these particular assertions. Mr Hooker, counsel for Mr Ochibulu, however, placed some reliance on them at the hearing before us.
On 17 May 2019, the Tribunal dismissed Mr Ochibulu’s appeal.[7] The Tribunal was not satisfied that there were “exceptional circumstances of a humanitarian nature” in Mr Ochibulu’s case requiring non-deportation, under s 207(1)(a) of the Act; deportation was not “unjust or unduly harsh”.[8] However, it did order removal of the period of prohibition on re-entry into New Zealand, to enable him to return to visit his family.[9]
[7]Ochibulu v Minister of Immigration, above n 1.
[8]At [74].
[9]At [78]–[80]. The Tribunal’s power to remove the prohibition lay in s 215(1).
Mr Ochibulu then applied on 10 October 2019 to the High Court for leave to review the Tribunal’s decision under s 249 of the Act. Mr Ochibulu then also applied on 21 November 2019 for leave to review the Minister’s 2016 deportation reactivation decision.
Both Mr Ochibulu’s applications were dismissed by Fitzgerald J on 23 April 2020.[10] We will summarise that judgment in due course.
Appeal — s 247
[10]Judgment appealed, above n 2.
Mr Ochibulu applied to the High Court for an extension of time under s 247 to commence judicial review of the Minister’s reactivation decision. In full, s 247 provides:
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).
(2) [Repealed]
(3) In this section, statutory power of decision has the same meaning as in section 4 of the Judicial Review Procedure Act 2016.
(4) Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.
Judgment appealed
The Judge held that the delay in applying for judicial review in this case was “very lengthy”.[11] There was also, she said, “no real explanation for the delay”.[12] Mr Ochibulu’s explanation that there was “‘no value’ in bringing judicial review proceedings prior to the outcome of the humanitarian appeal” suggested “an active choice … not to pursue judicial review” of the Minister’s reactivation decision.[13] But “a litigation choice or strategy to pursue other forms of relief over judicial review” did not “amount to ‘special circumstances’”.[14] To the extent that Mr Ochibulu was “unaware of the right” to pursue judicial review, ignorance of that opportunity did not amount to “special circumstances”.[15] To the extent the submission was made that the content of the reactivation notice, referencing rights of appeal, “‘pointed’ the applicant down the route of an appeal rather than judicial review”, the answer was s 171 of the Act, which specified what must be contained in a deportation liability notice, including information on the right of appeal.[16] As the Judge put it, “[a] statutorily compliant notice cannot therefore ‘wrongly’ point an individual down the track of the right of appeal”.[17]
[11]At [55].
[12]At [56].
[13]At [56].
[14]At [56].
[15]At [57], citing Bhasin v Immigration and Protection Tribunal [2018] NZHC 644 at [28].
[16]At [58].
[17]At [58].
The Judge then went on to consider the merits of the proposed judicial review, albeit she found this was not a marginal case in which those could “tip the balance” in the sense discussed by this Court in Rajan v Minister of Immigration.[18] The complaint about a breach of natural justice turned on an argument that Mr Ochibulu was not told that the Minister would have his criminal history or Thomas J’s 2015 sentencing notes before him when considering whether to reactivate deportation liability. He submitted that had he known the Minister would have the full conviction history report, he would have addressed all his offending in his letter, and not just the 2013 drug offending. Secondly, had he known the sentencing notes would be before the Minister, he would not have suggested in his letter — quoted at [12] above — that he did not know his address would be used in connection with importing drugs. The Judge, however, considered that Immigration New Zealand was not required to list every item of information that might be put before the Minister in deciding whether to reactive liability for deportation.[19] The Judge said it would be “self-evident the Minister would have before him the basis upon which deportation had arisen” — that is, the earlier convictions.[20] It was artificial to suggest the letter from Immigration New Zealand “conveyed that only that the fact of conviction and sentence would be before the Minister”.[21] The Judge went on to say:[22]
… Moreover, to the extent the suggested prejudice is that the lack of knowledge led the applicant to make misleading statements about his offending, I have some doubt this would amount to qualifying prejudice.
[18]At [59]. See Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [30].
[19]At [61].
[20]At [64].
[21]At [65].
[22]At [65].
The second aspect of the application for judicial review concerned an allegation that the Minister failed to exercise the discretion required of him when making the reactivation decision. The Minister’s letter referred to Mr Ochibulu’s conviction and sentence and then said “[y]our deportation liability is therefore now reactivated”. The submission made was that the use of the word “therefore” was “conclusive evidence that it was the mere fact of conviction and sentence which gave rise to the [r]eactivation [d]ecision, rather than the separate exercise of discretion”.[23] In addition, a complaint was made as to a lack of expression of the grounds on which deportation liability had been reactivated, and a statement of “all the reasons” why the Minister had reactivated that liability.[24]
[23]At [39].
[24]At [40].
The Judge was not persuaded of either argument. The “sole ground on which deportation liability was reactivated was the applicant’s further offending”.[25] The contemporaneous record explained how the reactivation decision was made, and whether the Minister exercised discretion.[26] The report to the Minister made it clear that the Minister was to exercise a discretion.[27] It referred specifically to Mr Ochibulu and his wife’s submissions. It directed the Minister to weigh their children’s best interests as a primary consideration against other relevant considerations. The section of the report headed “Record of Decision” contained two options. The fact the Minister chose one of those two options was consistent with the exercise of discretion.[28]
[25]At [70].
[26]At [76].
[27]At [78].
[28]At [78].
The Judge concluded that the length of the delay was great, there was no compelling reason behind it and the merits of the application for review were not strong. Accordingly, no “special circumstances” existed to justify granting leave to apply out of time. [29] The application was dismissed.[30]
Submissions
[29]At [84].
[30]At [85].
For Mr Ochibulu, Mr Hooker submits that “special circumstances” warranting the grant of leave exist because his client was never told the Minister reserved a discretion to choose not to reactivate his deportation liability. Instead, Mr Ochibulu claims he was told that reactivation would inevitably follow from the fact of his conviction. The relevant documentation provided evidence that no discretion was exercised, contrary to s 172(3) of the Act. Mr Ochibulu was not given an opportunity to address the options available to the Minister and which one the Minister ought to have chosen. He could therefore not be expected to have any knowledge of a possible legal remedy, and it was this that resulted in the delay. Accordingly, Mr Hooker submits the High Court erred in finding the Minister had exercised a discretion in making the reactivation decision, and by finding there were no “special circumstances” to justify leave being granted.
Mr Hooker submits the merits of the proposed judicial review proceeding also weigh in favour of granting leave. He identifies as the key issue the fact he was not given a chance to comment on the information before the Minister when the Minister was making the reactivation decision, as he did not know what materials the Minister would rely upon. These materials included Mr Ochibulu’s complete criminal history, which contains a list of 12 convictions over the period between 2009 and 2012, and the sentencing notes from the High Court in respect of Mr Ochibulu’s 2013 drug‑related offences.
Mr Hooker also submits reasons should have been given as to why deportation liability was suspended in the first place, and further that these reasons should have been made available to the Minister when considering reactivation. In the absence of these reasons, the Minister could not meaningfully assess whether the seriousness of the breach of the suspension condition would or might preclude him from reactivating deportation liability.
Finally, Mr Hooker submits his client’s application for an extension of time must be considered against the rights he loses as a result of the Minister’s decision, which include his rights to live and work in New Zealand. He argues that a higher standard of judicial review is required in situations where ministerial decisions affect or remove rights, and that this weighs in favour of leave being granted.
Discussion
The discretion in s 247(a) may be extended by reason only of “special circumstances”. That expression in context is explained by this Court’s decision in Rajan v Minister of Immigration, where it was held that that finding will depend on the length of delay, the reasons for delay and (in marginal cases) a brief examination of the merits.[31] The scheme of the statute is to constrain judicial review in the context of deportation proceedings, where there is a right of appeal to the Tribunal under the Act. The legislation provides timeframes. Judicial review should not be used as a mechanism to subvert the statutory scheme except in clear cases of abuse of power. This is not such a case. This Court has also spoken against undue delay through belated litigation in the immigration context in Fernandes v Immigration and Protection Tribunal.[32]
[31]Rajan v Minister of Immigration, above n 18, at [24]–[30].
[32]Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544 at [8].
It appears arguable that the delay may not in fact be as long as the Judge found it to be (and indeed as Mr Hooker accepted it was). The 28-day time limit in s 247(1) is subject to s 249(3), and thereby to s 249(1) — requiring (1) an appeal to the Tribunal by way of prerequisite and, then, (2) “final determinations [by the Tribunal] on all aspects of the appeal”.[33] If that provision was applicable here (and we make no finding thereon in the absence of argument), Mr Ochibulu was out of time on 15 June 2019, and his delay was of the order of five months. Regardless of that potential improvement in position, the fact he was out of time at all requires this Court to undertake a provisional merits assessment. It is on that assessment that Mr Ochibulu fails comprehensively.
[33]Section 249 is set out at [37] below.
We are not persuaded that the letter inviting comments misled Mr Ochibulu as to his right to make submissions to persuade the Minister to exercise the discretion not to reactivate deportation. We cannot read the correspondence sent by Mr Ochibulu, Mrs Ochibulu and other family members as being anything other than submissions made to the Minister, to persuade him not to reactivate deportation. They could serve no other purpose. Mrs Ochibulu, for instance, asked the Minister to allow her husband to stay, and that “rather than signing a deportation liability reactivation notice”, requested “another 5 year suspension period” be imposed once her husband left prison.
Secondly, for the reasons given by the Judge, we agree that the record indicates the exercise of discretion by the Minister (when the report is also taken into account). As the Judge noted, the report to the Minister made it clear that the Minister was to exercise a discretion. It noted early on that, should the Minister “determine” Mr Ochibulu had failed to comply with suspension conditions, the Minister “may” reactivate his liability for deportation. The determinative contrast is patent. It referred specifically to Mr Ochibulu and his wife’s submissions. It directed the Minister to weigh the children’s best interests as a primary consideration against any other relevant considerations. The section of the report headed “Record of Decision” contained two options, stated as being “[p]ossible options”, one involving reactivation and the other not. That, together with the Minister’s selection, was consistent with the exercise of discretion. In his affidavit, the then-Minister set out carefully the process he would have adopted. It is clear he appreciated a decision as to reactivation involved a discretion.
Thirdly, we agree also with the Judge that Immigration New Zealand was not required to indicate that the Minister would consider Mr Ochibulu’s criminal history and the sentencing notes. Indeed, we think the suggestion that he might not do so makes no sense. Mr Hooker could not point to any provision or authority requiring Immigration New Zealand to specify what matters the Minister might consider. Plainly the Minister might be expected to consider the offending which gave rise to the original liability to be deported, together with the subsequent offending which constituted the breach of the conditions imposed by the Minister. Were he to have done otherwise, he would have been justly condemned. The proposition the Minister proceed half-informed as to these matters does not appeal. Nor does the proposition that, in effect, Mr Ochibulu should have been given some warning about this matter so that he might not mislead the Minister in submissions he filed by making statements inconsistent with the content of the sentencing notes.
If Mr Ochibulu could point on the merits to a clear abuse of power by the Minister, the delay might perhaps be put to one side. But he cannot do so. And so, it cannot be.
Application — s 249
Section 249 requires leave of the High Court (or of this Court) before a decision of the Tribunal may be reviewed. In full, it provides:
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.
(5) A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(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.
Judgment appealed
The Judge dealt with a number of submissions on this heading, but we confine ourselves here to the primary ground, which became the sole ground before us.
After summarising the Tribunal decision and the submissions, and noting the “unfortunate” absence of evidence from the Tribunal as to what Immigration New Zealand files it had before it, the Judge considered she had to proceed on the basis it was “seriously arguable” that the Tribunal had before it Mr Ochibulu’s “full file”, that is, the complete Immigration New Zealand file, whereas Mr Ochibulu did not.[34]
[34]Judgment appealed, above n 2, at [119]–[120].
Despite that provisional conclusion, the Judge considered no breach of natural justice arose here because the statutory framework permitted information asymmetry, so long as the Tribunal met the requirements of s 230, requiring, among other things, disclosure of prejudicial (or potentially prejudicial) material that the Tribunal intended to take into account.[35] The Judge proceeded on the basis the Tribunal was aware of that obligation, and the decision contained no suggestion it had not been honoured.[36]
Submissions
[35]At [122] and [127]–[130].
[36]At [129]–[130].
The argument before us concentrated exclusively on the breach of natural justice ground. Mr Ochibulu says a copy of his full immigration file was provided to the Minister, and that (when eventually it was obtained by him) it (1) contained documents he did not have and (2) was partly redacted. He says the Tribunal had this file, and that compromised his fair hearing rights.
This being an application for leave, Mr Ochibulu submits he can establish a case that is reasonably arguable before the High Court. The proposed judicial review proceedings raise the issue of whether it is a breach of natural justice for the Tribunal to have and consider Mr Ochibulu’s full file in circumstances where the file had not been provided to him or where parts of it have been redacted.
Discussion
At the hearing, we made it clear that we did not consider it appropriate for the Court to have to speculate (or take a purely forensic approach) about what the Tribunal did or did not have before it. We were entitled to look to the Tribunal, the first respondent, for clarification, rather than having to grope in the dark. We therefore issued a minute requiring response from the Tribunal as to the allegation — made primarily in an affidavit by Mrs Ochibulu — that the Tribunal had the full file.[37]
[37]Ochibulu v Immigration and Protection Tribunal CA266/2020, 28 October 2021.
In consequence we received an affidavit from Charles Treadwell, Acting Chair of the Tribunal. After setting out the Tribunal’s usual procedures, and checks that have been made, Mr Treadwell (as he then was) confirms the Tribunal was in possession of the usual Ministerial bundle, a copy of which had been sent to Mr Ochibulu’s counsel on 10 April 2019. The only other document, beyond that bundle and submissions and documents served by the parties, was the 2015 sentencing notes, obtained directly under s 228 of the Act. These notes were provided to Mr Ochibulu’s counsel prior to the hearing. Mr Treadwell confirms the physical record bears out these assertions.
In an affidavit in reply, Mr Ochibulu now says he is not sure if the Tribunal had the full file, but if it did, the hearing would be an unfair one because of the particular content of that file.
We decline to continue to speculate. Mr Treadwell’s affidavit is clear, to the effect that the Tribunal had nothing beyond what was in the parties’ joint possession. The foundation for the allegation of a breach of natural justice, entirely obscure from the outset, is now tenuous to the point that the requirements of s 249(6) cannot be met.
First, as to s 249(6)(a), the allegation could and should have been advanced by an application for leave to appeal on a point of law.[38] Secondly, the factual foundation underpinning the allegation of a breach of natural justice is now too tenuous for it to pass the second gateway, under s 249(6)(b). The absence of a demonstrable factual foundation means the allegation — barely now an “issue” — is not one which, by reason of its “general or public importance or for any other reason”, ought to be submitted to the High Court for review.
[38]Section 245(1). Mr Ochibulu is out of time to appeal under that provision and there is no statutory power to enlarge.
While we sympathise with Mrs Ochibulu and her children, the statutory scheme is clear and must take its course.
Result
The appeal is dismissed.
The application for leave to review is dismissed.
The appellant must pay the second respondent costs for a standard appeal on a band A basis with usual disbursements.
Solicitors:
Vallant Hooker & Partners, Auckland for Appellant
Crown Law Office, Wellington for Second Respondent
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