Patel v Ministry of Business, Innovation and Employment

[2021] NZHC 2385

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-238

[2021] NZHC 2385

UNDER THE

Judicial Review Procedure Act 2016 High Court Rules 2016 Part 30 Declaratory Judgement Act 1908

BETWEEN

RUSHIRAJ VIBHAKAR PATEL

Applicant

AND

MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Date of Hearing:

29 July 2021

Appearances:

N King for the Applicant

T Witten-Sage and M Mortimer for the Respondent

Date of Minute:

13 September 2021

JUDGMENT OF POWELL J

This judgment was delivered by me on 13 September 2021 at 2 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

PATEL v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 2385 [13 September 2021]

[1]        The applicant, Rushiraj Patel, seeks to review two decisions of Immigration New Zealand (“INZ”):

a)the 13 February 2017 rejection of Mr Patel’s residence visa application for lodgement (“the residence decision”); and

b)the 19 September 2019 notification that Mr Patel remained liable for deportation and which resulted in the automatic cancellation of his work visa (“the deportation decision”).

[2]        Mr Patel requires leave to commence the proceedings because they were filed outside the 28-day time limit imposed by the Immigration Act 2009 (“the Act”).1 There is no dispute the application to review the residence decision was filed some three years and 11 months out of time, while the deportation decision is approximately one year and four months outside the time limit prescribed.

[3]        Pursuant to s 247(1)(a) of the Act, the time limit can only be extended if “the High Court decides that, by reason of special circumstances, further time should be allowed”. There is no dispute that s 247(1)(a) imposes a high threshold, with extremely limited tolerance for delay.

[4]        The leading authority on what may constitute special circumstances as a basis for extending time for judicial review of immigration decisions is the decision of the Court of Appeal in Rajan v Minister of Immigration.2 The relevant factors requiring assessment were identified as the length of the delay and the reasons for it and, in marginal cases, a brief examination of the merits.

[5]        In this case, Mr Patel not only acknowledges the lengthy delay, but also accepts that the reasons given for the delay in his affidavit (including lack of knowledge of the decisions, his reliance on an immigration consultant and the fact that he was not advised by INZ that he could file judicial reviews) are not sufficient to amount to special circumstances. Accordingly, those reasons were not relied upon by his

1      Immigration Act 2009, s 247(1).

2      Rajan v Minister of Immigration [2004] NZAR 615 (CA).

counsel, Mr King, in the hearing before me. On the contrary, the sole substantive ground advanced on behalf of Mr Patel was an argument that there was some sort of gap in the legislation resulting from the application of s 64(1)(ab) of the Act, which provides that a visa is cancelled:

on the day after the first date on which a deportation order may be served on the person under s 175A [of the Act]…

[6]        Mr King submitted there was some significance in the fact that Mr Patel’s visa could apparently have been cancelled regardless of whether or not a deportation order was ever served upon him, and this constituted a matter of law of such importance that leave should be granted to extend the time for filing of the proceedings.

Discussion

[7]With respect to Mr King, the argument advanced is misconceived.

[8]        Leaving aside for the moment the purported merits of this argument, the relevant authorities make it clear that regardless of the merits of the proposed judicial review proceedings a long delay will typically disqualify an applicant from obtaining an extension.3 As the Court of Appeal noted in Rajan:4

… the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans’ application was filed one month late and thus would require an extension of one third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay.

[9]        Similar comments were echoed in all of the other cases cited before me, with no case identified that remotely came close to the delays in this case.

[10]      When this is coupled with the lack of any justifiable reason for the delay identified by Mr Patel, it is clear that there can be no basis for extending the time as sought. As noted, Mr Patel appropriately acknowledged none of the matters he identified came close to meeting the definition of “special circumstances” identified

3      See for example Rajan, above n 2, at [24], Kesonsung v Minister of Immigration HC Auckland CIV-2006-404-1597, 22 September 2006 at [35] and Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [26].

4      Rajan, above n 2, at [24].

in Rajan, being circumstances that are “uncommon, not commonplace, out of the ordinary, abnormal”.5

[11]      Given the length of the delay and the lack of any appropriate reason to explain it, there is no basis for examining the merits in this case. As the Court explained in Rajan:6

Brief examination of the merits may in some cases be called for. Even with a strong excuse for the delay, however, if the review proceedings were hopeless, this would suggest that the … discretion should not be exercised…

…

Examination of the merits could tip the balance in a marginal case. For example where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. We doubt, however, that even very strong merits could ever justify an extension if (as here) there is no proper excuse for the delay in filing…

(Emphasis added)

[12]      While this is sufficient to determine the application, there is in any event no substance to the issue identified by Mr King. Specifically, s 64(1) of the Act provides that a visa is automatically cancelled in a number of circumstances including (as in Mr Patel’s case) as provided in s 64(1)(ab): “on the day after the first date on which a deportation order may be served on the person under s 175A”. The point at which a deportation order may be served is clearly defined in s 175A. In Mr Patel’s case, it arose pursuant to s 175A(1)(b) where, if a person has provided submissions as to “good reason why deportation should not proceed, and the person to whom the submissions are provided determines the deportation should continue, [it is] the day after the person is notified of that deportation”.

[13]      Mr Patel had been served with a deportation liability notice on 12 June 2019. Pursuant to s 157(2) of the Act, Mr Patel had the right to review his deportation, which he exercised by way of a letter dated 20 June 2019. Following a further exchange of correspondence, INZ wrote to Mr Patel on 19 September 2019 confirming its position

5      Rajan, above n 2, at [24]. See also JS v Immigration and Protection Tribunal [2016] NZ AR 111 at [26].

6      Rajan, above n 2, at [29] and [30].

that there were no “good reasons why deportation should not proceed”. Given that position, a deportation order could therefore be issued from 20 September 2019 and, as a result, pursuant to s 64(1)(ab) of the Act Mr Patel’s visa was accordingly cancelled from 21 September 2019. It therefore follows that for the purposes of the cancellation of Mr Patel’s visa whether he was in fact served with a deportation notice is entirely irrelevant, and certainly does not give rise to any basis for extending time for the judicial review proceedings.7

Decision

[14]The application to extend time is dismissed.

[15]      Should the respondent Ministry seek costs, a memorandum is to be filed within two weeks of the date of this judgment. Any response on behalf of Mr Patel is to be filed within a further two weeks, following which I will determine the issue on the papers.

Powell J

7      For completeness, I note that even if this was not the case, the legal issue identified was not relevant to the residence decision in any event. Mr Patel’s residence visa application was rejected for lodgement in February 2017 simply because he only had a temporary work visa at that time.