Rupal v Immigration and Protection Tribunal
[2018] NZHC 422
•14 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-2210
[2018] NZHC 422
UNDER the Judical Review Procedure Act 2016 and Immigration Act 2009 IN THE MATTER
of an application for leave to bring judicial review proceedings under section 249 of the Immigration Act 2009
BETWEEN
RAMANDEEP KAUR RUPAL
First Applicant
DEEPAK HANDA
Second ApplicantAND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
MINISTER OF IMMIGRATION
Second Respondent
Hearing: 23 February 2018 Appearances:
R Singh and A Ayoub for the Applicants S Earl for the Second Respondent
Judgment:
14 March 2018
JUDGMENT OF GORDON J
This judgment was delivered by me on 14 March 2018 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland
Legal Associates, Papatoetoe, Auckland
RUPAL v IMMIGRATION AND PROTECTION TRIBUNAL [2018] NZHC 422 [14 March 2018]
Introduction
[1] Ramandeep Rupal and Deepak Handa are citizens of India. They are in a de facto relationship which commenced after they met each other in New Zealand.
[2] Ms Rupal and Mr Handa became liable for deportation pursuant to s 157(1) of the Immigration Act 2009 (the Act). Following an investigation, Immigration New Zealand (INZ) issued deportation liability notices (DLNs) to both Ms Rupal and Mr Handa on 29 May 2017.
[3] They both then brought humanitarian appeals before the Immigration and Protection Tribunal (the Tribunal).1 On 4 September 2017, the Immigration and Protection Tribunal dismissed their appeals (the decision).2
[4] Ms Rupal and Mr Handa have brought an application dated 28 September 2017 seeking an order granting them leave to commence judicial review proceedings in respect of the decision by the Tribunal dismissing their appeals.
[5]The second respondent opposes the application.
Factual background
Ms Rupal
[6] Ms Rupal, who is a qualified registered nurse, was born in India in the early 1990s. At the time of the decision, she was aged 26. Her parents and two siblings still live in India. She came to New Zealand in June 2014 on a student visa valid until July 2015.
[7] In 2015, Ms Rupal was granted a work visa. She remains on a current work visa valid until August 2018.
[8] In July 2016, Ms Rupal applied for a graduate work experience visa on the basis of a job offer as a Residential Care Officer for the Kiwi Family Group in the
1 Immigration Act 2009, s 157(4).
2 Re Rupal and Handa [2017] NZIPT 503380 and 503383.
Taranaki region. Eventually, and after reconsideration following an initial declining of her application, INZ granted Ms Rupal a temporary work visa in August 2016.
[9] The visa was granted subject to conditions under s 52 of the Act. Ms Rupal was only permitted to work for the Kiwi Family Group in Taranaki and only as a Residential Care Officer.
[10] However, Ms Rupal, while commencing work in New Plymouth, signed a contract as a Health Care Assistant which was not the role for which she was granted a visa. Ms Rupal says she was coerced into doing so. She says she was threatened that if she did not transfer to Auckland in this role, her employment would be terminated. Her employer would then call INZ and she would be removed from New Zealand. Regardless, it was a breach of the conditions of her visa. She did not tell INZ.
[11] In February 2017, Ms Rupal’s employment was terminated following a change of ownership of the business. That same month she applied for a partnership-based temporary visa based on the employment of her partner, Mr Handa. She stated in her application that their de facto relationship had begun approximately eight months earlier.
[12]The Tribunal summarised INZ’s determination as follows:3
[2] … Immigration New Zealand (INZ) has determined that she has breached the conditions under which her work visa was granted because she was working in a role and city that were not permitted by the conditions upon which her temporary work visa had been granted. Further, she had failed to declare this work in her application for a work visa on the basis of her relationship with the de facto husband …
Mr Handa
[13] Mr Handa was born in India in the mid-1980s. At the time of the decision, he was aged 33. Mr Handa’s parents and younger brother still live in India. He came to New Zealand in June 2014 as the holder of a student visa valid until July 2015.
3 Re Rupal and Handa, above n 2.
[14] In July 2016, INZ issued Mr Handa a work visa on the basis of an offer of employment to work for an employer as an IT support technician. He also remains on a current work visa valid until 2 July 2018.
[15]The Tribunal summarised INZ’s determination as follows:
[2] … In respect of [Mr Handa], INZ determined that the employment for which his temporary work visa was granted has never existed.
[16] In respect of the DLNs, the Tribunal stated as follows:
[18] On 29 May 2017, the de facto husband was served with a Deportation Liability Notice on the basis that the offer of employment upon which he had received his temporary work visa on 2 July 2016 did not and had never existed.
[19] On the same day, the de facto wife was also served with a Deportation Liability Notice on the basis that she had breached the conditions upon which she had been granted a work visa. An additional ground was that she had failed to declare relevant information in her partnership work visa application form by concealing that she had been working as a healthcare assistant in a city other than that specified in her work visa.
The Tribunal’s decision
[17] Broadly stated, the grounds of appeal before the Tribunal were that Ms Rupal and Mr Handa were victims of migrant exploitation and as such should not be liable for deportation.
[18] The Tribunal stated the details of the grounds of appeal based on the notices of appeal and submissions. In relation to Ms Rupal, it stated the grounds as follows:
[23]In respect of the de facto wife, the grounds of appeal are as follows:
(a)The de facto wife is a qualified registered nurse from India who came to New Zealand on a student visa to study health service management. She applied for a position as a residential care officer in a New Zealand city through a licensed immigration adviser and, after the interview, was offered a position in another New Zealand city and signed an employment agreement to this effect. Since that time, the de facto wife had been the victim of exploitation by her employer as she was forced to work in a lower position and in another city, facing immediate dismissal if she did not comply. As a migrant, it was very difficult and she felt under duress to do what the employer was asking her to do. Additionally, the de facto wife was under the impression that the healthcare
assistant role was of a short-term nature and she would soon be able to work as a residential care assistant in the place specified in her work visa.
(b)When she finally received news in February 2017 that her employment had been terminated, as the employer had been taken over by a new company and did not wish to retain the existing staff, the appellant was shocked. She consulted a friend and learned that she had to apply for another visa. It was for this reason that she applied for a work visa on the basis of her partnership with the de facto husband.
(c)The de facto wife did not intentionally mean to mislead INZ in respect of her employment when she made her partnership work visa application. She assumed that she needed to write what had been recorded on her work visa. In any event, her employment had no relevance to her application under this category of instructions which was focussed simply on the applicant being in a genuine, stable and ongoing committed relationship. The de facto wife had not concealed “relevant information” for the purposes of section 157 and 158, as defined in section 58(5). Her employment was not a relevant fact “for the purposes of section 58(3) of the Act”. She relied on the advice of a friend and her understanding that the company had been sold, and applied for a work visa because she was in a genuine, stable and ongoing partnership with her de facto husband.
(d)The de facto wife is “deeply remorseful” for not being able to stand up to her employer, informing INZ and seeking help. Deportation would become unjustifiably burdensome. She had not committed any criminal offence and was not a threat to the New Zealand economy.
[24] In support of the de facto wife’s appeal, counsel has produced a character reference from her Member of Parliament and statements from three former co-workers as to how this appellant was treated by her former employer. Also provided on 13 July 2017 has been a CD containing recordings of conversations between the de facto wife and representatives of her previous employer.
[19] In respect of Mr Handa, the Tribunal said:
[25]The grounds of appeal in relation to the de facto husband are as follows:
(a)The de facto husband had been victimised and exploited by his former employer, who forced him to pay $15,000 to start the company which was to be returned to him once he was granted a work visa and began working for the company. However, the employer never gave the de facto husband any work or repaid the money. The employer also borrowed a further sum in excess of $5,000. Frustrated with the lack of opportunity, the de facto husband tried unsuccessfully to find
other IT jobs so he could lodge a variation of conditions. The de facto husband therefore had been the victim of migrant exploitation and victimisation.
(b)The de facto husband was only young, 23 years of age, and this circumstance had been very distressing to him. The appellant was remorseful. Deportation would be disproportionate compared to his breach of his work conditions. He had been victimised by his employer. He would not be a threat to the New Zealand economy. He had already paid approximately $30,000 study fees contributing to the New Zealand economy and would be able to find work. He is an IT professional with much to offer the country.
[26] In support of his appeal the de facto husband provided a copy of a letter dated 15 February 2017 sent to INZ detailing the nature of his relationship with his partner, photographs showing the appellants enjoying life together and a copy of a joint bank account statement.
[20] Ultimately, the Tribunal dismissed the appeals on the basis that the statutory test in s 207(1)(a) of the Act was not made out.4 There were no exceptional circumstances of a humanitarian nature:
[34] Assessing the circumstances of the appellants, the Tribunal is not satisfied that either the de facto husband or de facto wife has met the high threshold required for exceptional circumstances of a humanitarian nature.
[21] As a result, the Tribunal did not consider the subsequent element in s 207(1)(b).
Application for leave to commence judicial review proceedings
[22] Ms Rupal and Mr Handa have filed an application seeking leave to commence judicial review of the decision by the Tribunal dismissing their humanitarian appeals. Leave is sought on the bases of two proposed questions of law which are stated in the application as follows:
(a)Did IPT err in law in not applying relevant law properly in assessing the applicants’ applications?
(b)Did INZ IPT take into account all relevant information in reaching their decision on the applicants’ appeals?
[23] The grounds are stated as follows:
4 At [35].
(a)The question of law is one where for any other reason ought to be submitted to the High Court for its decision as it is in the interests of justice; and
(b)The question of law is arguable.
[24] In both written and oral submissions, however, while addressing the decision, the main focus of counsel for Ms Rupal and Mr Handa was on the underlying decision of INZ to issue the DLNs. I address that issue later in this judgment.
[25] The second respondent opposes the application in relation to the decision on the basis that the issues raised could be adequately dealt with in an appeal, that none of the proposed grounds of review are seriously arguable and were all appropriately considered by the Tribunal, and the issues raised in the application are not, 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.
[26] I note that the application (incorrectly) relies on s 4(1) of the Judicature Amendment Act 1972 and r 30.3 of the High Court Rules. I will treat it as having been made under s 249 of the Act.
Applications for leave to bring judicial review proceedings – principles
[27] I first set out the general principles in relation to applications for leave to bring judicial review proceedings. I will then apply them to this case.
Section 249
[28]Section 249 of the Act relevantly 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.
…
(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.
…
[29] The approach to leave applications is reasonably well-settled.
[30] The first mandatory criterion for the Court to consider is whether the issues raised could be adequately dealt with on appeal. The statutory framework is a clear direction from Parliament that appeal, not judicial review, is the primary mechanism by which to challenge a Tribunal decision where possible.5
[31] In Allada v Immigration and Protection Tribunal, Asher J stated that while s 249 does not prohibit the High Court granting leave in a proceeding which involves issues that could have been dealt with on appeal, or which are not of general or public importance, this “would be a rare circumstance given the emphasis on these two criteria”.6
5 Songmia v Minister of Immigration [2013] NZHC 3233 at [12]-[13].
6 Allada v Immigration and Protection Tribunal [2014] NZHC 953 at [32].
“General or public importance”
[32] Earlier decisions of this Court have emphasised that the introduction of leave requirements in both ss 245 and 249 of the Act indicate a deliberate intention to limit the scope of judicial review from decisions of the Tribunal.7 As Faire J commented:8
[6] The requirement that issues justifying a judicial review or an appeal are those which, by reason of their general or public importance or for any other reasons, ought to be submitted to the High Court by definition narrow the grounds that justify the granting of leave. I adopt the statement of principle in LMN v Immigration and Protection Tribunal New Zealand:
The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus, factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” for his appeal to be submitted to this Court for determination.
[7] While Duffy J was discussing s 245(3) in relation to appeals, the language used is the same as that in s 249(1C)(b) and her Honour's comments are equally applicable to that subsection, once the gateway of s 249(1C)(a) is passed.
(Citations omitted)
[33] If the application has little or no prospect of success, it follows that the issues are of limited general or public importance and this points towards not granting leave.9 In other words, the issue which is said to be one of general or public importance must be seriously arguable.
7 SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5]; Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [52].
8 SK v Immigration and Protection Tribunal, above n 7.
9 Allada v Immigration and Protection Tribunal, above n 6, at [36].
“Any other reason”
[34] Section 249(6)(b) allows for a residual category where leave may be granted “for any other reason”. It is this residual category that is referred to in the application for leave filed by Ms Rupal and Mr Handa.
[35] Section 245(3) also contains the “any other reason” limb. The test under that section is settled. It is only engaged in “exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing”.10
[36] The wording of s 249(6)(b) is materially the same as s 245(3). There are decisions of this Court which have taken the same approach under s 249(6)(b), adopting the test for s 245(3).11 However, there are recent decisions of this Court which have adopted a more expansive approach to the residual category in the review context.
[37] In RM v Immigration and Protection Tribunal, Palmer J disagreed that the “any other reason” ground was limited to exceptional cases in both ss 245 and 249.12 The Judge commented that the “any other reason” limb “preserves judicial flexibility in the considerations relevant to granting leave”.13 But, even allowing for a more expansive approach, Palmer J was of the view that leave should still only be granted in appropriate cases:
[51] In most circumstances, these constitutional considerations may not make a difference to the result of considering applications for leave to bring judicial review … A case where a ground of judicial review is clearly available will get leave and the Bill of Rights endorses that. And, where the issues can be dealt with adequately in an appeal, s 249(6) suggests “that is the appropriate route”, and the Bill of Rights does not suggest otherwise. But in marginal cases, it is important to bear in mind that the leave decision is one which impacts the fundamental right to judicial review, that is protected by the Bill of Rights and the constitutional function of judicial review. That might make a difference to the leave decision, as it does to my approach to the leave decision compared with that of Duffy J.
10 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19](c).
11 See, for example, Songmia v Minister of Immigration, above n 5, at [13]; SK v Immigration and Protection Tribunal, above n 7, at [4]-[7].
12 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [37].
13 At [35].
(Citations omitted)
[38] A number of subsequent High Court decisions have followed this approach.14
[39] In Machida v Chief Executive of Immigration New Zealand, the Court of Appeal referred to the “any other reason” ground in s 245(3):15
[8] In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(a)has importance extending beyond the particular case (which is what “general or public importance” entails); or
(b)for some other reason, warrants a decision from the High Court.
Although category (b) is open ended, we agree with a series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.
(Citations omitted)
[40] In that case, the Court was approving the test referred to at [35] above.
However, as Woodhouse J explained in Kumar v Minister of Immigration:16
[39] … It is unclear whether the Court of Appeal intended its statement as to the scope of “any other reason” to be applicable to all grounds on which leave might be sought, or only to those applying in Taafi. Taafi was concerned only with an application under s 245 and, as the Judge put it, the grounds for leave were “based wholly upon criticisms of factual findings” of the Tribunal. The Judge outlined the “triple hurdle” faced by an applicant contending that there has been an error of law in a finding of fact.
[40] The scope of the “any other reason” category does not appear to have been argued in Machida. The words “any other reason”, as used in s 245(3) and s 249(6)(b), must have the same general meaning and scope. But the application of the words will be affected, and perhaps substantially, by the nature of the issue the applicant seeks to advance. This is likely to apply, in particular, under s 249, because of the wide range of matters covered by judicial review, compared with a contention under s 245 that a finding of fact amounted to an error of law. As Palmer J observed in RM v Immigration and Protection Tribunal, the Ministry of Justice advised the Attorney-General, that the wording of the amendment clause leading to s 239(6) was consistent with the Bill of Rights, because under the amendment “the Courts have a wide
14 Kumar v Minister of Immigration [2016] NZHC 1593 at [37]; BY v Refugee and Protection Officer
[2016] NZHC 2244 at [39].
15 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.
16 Kumar v Minister of Immigration, above n 14.
discretion to grant leave for judicial review where it is a matter of ‘general or public importance or any other reason” …
[41] Although the words “or any other reason” in s 239(6)(b) are not constrained in any express way by the text, and at least on the basis of the advice from the Ministry a wide discretion was contemplated, there is a preliminary consideration under s 249(6)(a) which does impose a substantial limit on applications for judicial review. This is the need to establish that the proposed issues on review could not adequately be dealt with by appeal. Because of this provision, and stated in general terms, the applicant would not be entitled to bring a review proceeding, and irrespective of whether the applicant had also sought leave to appeal, if the proposed grounds for review alleged errors of law. The preliminary hurdle in s 249(6)(a) is therefore likely to exclude from leave to bring a judicial proceeding many, and perhaps all, of the cases founded on illegality. This may apply to many cases for leave that are brought under s 249.
(Citations omitted)
[41] In refusing leave to appeal in Kumar, the Court of Appeal commented:17
[7] Finally we turn to the fourth ground advanced by Mr Kumar. The decision of this Court in Machida v Chief Executive, Ministry of Business, Innovation and Employment concerns the meaning of the “any other reason” limb of s 245(3) — in the context of appeals. The Court held that that limb would be engaged only in exceptional circumstances involving individual injustice to such an extent that the Court could not countenance the first instance decision standing. There has been some discussion in the High Court as to whether the same principles apply in the case of judicial review under s 249(6)(b) of the Act. Ms Charmley submits that the same test applies under each limb, and those High Court authorities suggesting that a different position may pertain are wrong and unsupported by authority. We do not consider this an appropriate case to resolve that argument. That is because Mr Kumar has not demonstrated to us any substantive ground of judicial review with a prospect of success such as to make the last question other than moot.
(Citations omitted)
[42] Therefore, it is clear that the scope of the phrase “any other reason” in s 249(6)(b) is unsettled. As will become apparent, it is unnecessary to comment on it further in the context of this application. The result would be the same whichever approach is applied.
[43]I turn first to the enquiry under s 249(6)(a).
17 Kumar v Minister of Immigration [2016] NZCA 492.
Can the issues be adequately dealt with in an appeal?
[44] As noted in [22] above, in their application for leave to review the decision, Ms Rupal and Mr Handa propose a question of law as the primary ground of review. However, that ground of review was not advanced in the written submissions for Ms Rupal and Mr Handa, nor was it articulated in counsel’s oral submissions.
[45] The substance of the argument on behalf of Ms Rupal and Mr Handa is that the Tribunal failed to consider all relevant circumstances, in particular that Ms Rupal and Mr Handa were the victims of migrant exploitation.
[46] Accordingly, no arguable question of law arises.18 Therefore, the issues could not be adequately dealt with in an appeal under s 245 of the Act.
[47] I now turn to consider whether the issues raised by Ms Rupal and Mr Handa, are, by reason of their general or public importance, or for any other reason, issues that ought to be submitted to the Court for review.19
Section 207
[48] Section 207 of the Act sets out the grounds for a humanitarian appeal and relevantly provides:
207 Grounds for determining humanitarian appeal
(1)The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a)there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b)it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
(2)In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal
18 Section 249(6)(a).
19 Section 249(6)(b).
must have regard to any submissions of a victim made in accordance with section 208.
[49] The Supreme Court in Ye v Minister of Immigration held that it was necessary to undertake a sequential approach to the statutory framework:20
(a) There must be:
(i)Exceptional circumstances (a “high threshold necessarily involving questions of fact and degree”);21
(ii)Of a humanitarian nature;
(iii)That would make it unjust or unduly harsh for a person to be deported from New Zealand;
(b)The Tribunal must then be satisfied that it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
[50] If the Tribunal is satisfied that there are no exceptional circumstances as set out in (a)(i) above, there is no need to consider the public interest limb of the statutory test.22
[51] The test has been held to be a “difficult one to meet”23 and “deliberately set at a high level”.24 As to “unjust or unduly harsh”, the Supreme Court in Ye said:
[35] The qualification of the word “harsh”, by the word “unduly”, recognises that there may be some degree of harshness in removing an overstayer from New Zealand. In particular some degree of harshness may be involved where the removal affects New Zealand citizen children. But the statutory test is couched on the basis of undue harshness. Undue in this context means that the harshness goes beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s immigration system. That is why a generic concern on that account is not enough to outweigh fulfilment of the first criterion in s 47(3).
…
20 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [30]. The Supreme Court was considering s 47(3) of the Immigration Act 1987 which is materially the same as s 207.
21 Patel v Removal Review Authority [2000] NZAR 200 (CA) at 204.
22 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [157].
23 Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [150].
24 Ye v Minister of Immigration, above n 20, at [32].
[37] One further point should be mentioned. The link between “exceptional circumstances of a humanitarian nature” and “unjust or unduly harsh” provided by the words “that would make it” can be read in two ways. The first is to hold that the presence of the relevant exceptional circumstances necessarily demonstrates injustice or undue harshness with no further assessment being required. On this basis the words “that would make it” mean that the necessary injustice or undue harshness derives from the very fact of there being exceptional circumstances. The second reading involves an assessment of whether the exceptional circumstances found to exist make it unjust or unduly harsh to remove the person. On this view that consequence does not necessarily flow from the existence of exceptional circumstances of a humanitarian nature.
[38] We consider the second reading is to be preferred as more appropriately serving the statutory purpose. Whether the particular exceptional circumstances give rise to the necessary injustice or undue harshness is a matter for the assessment of the decision-maker. It will depend on how compelling or persuasive the exceptional circumstances are. Had the first meaning been intended there need only have been reference to exceptional circumstances of a humanitarian nature. The presence of such circumstances would have fulfilled the first criterion without reference to injustice or undue harshness. Those concepts must have been intended to contribute to the overall test and would effectively be written out if the first meaning were adopted.
[52] The Supreme Court then commented separately in Guo v Minister of Immigration:25
[9] The language of s 207(1) (and similar language in other provisions relating to deportation and removal) has received considerable attention in the courts. It has been held that the expression “unjust or unduly harsh” is composite in nature and that the Tribunal need not inquire separately as to whether deportation would be (a) unjust or (b) unduly harsh. Whether deportation would be “unjust or unduly harsh” is to be assessed in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation. The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected by that person’s deportation.
(Citations omitted)
[53] In my view, the Tribunal followed the correct approach under s 207. After setting out s 207(1)(a) and (b), the Tribunal correctly said:
25 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248.
[21] The Supreme Court stated that three ingredients had to be established in the first limb of section 47(3) of the former Immigration Act 1987, the almost identical predecessor to section 207(1): (i) exceptional circumstances;
(ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The circumstances “must be well outside the normal run of circumstances” and while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”, Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].
[54] The Tribunal then applied that test. I do not accept the submission made on behalf of Ms Rupal and Mr Handa that the Tribunal did not take into account the evidence they provided in relation to exploitation as migrant workers.
[55] In relation to Ms Rupal, the Tribunal summarised the grounds of appeal in reasonable detail in [23] and [24] of the decision as set out in [18] of this judgment. The Tribunal similarly summarised the grounds of appeal in relation to Mr Handa in reasonable detail in [25] and [26] of the decision as set out in [19] of this judgment.
[56] The Tribunal then made a careful assessment applying the statutory test, which included an assessment of the credibility of their claims to have been victims of migrant exploitation:
[28] Both of the appellants raise allegations that they have been the victim of exploitation by their employers. However, the Tribunal notes that the allegations were raised only after INZ had begun to investigate why the de facto wife was in breach of her conditions. While the de facto wife provided an account of her problems to INZ, the de facto husband elected not to provide any account to the INZ officers.
[29] While the Tribunal notes that the de facto wife has provided some evidence to support her claims, the Tribunal is not in a position to investigate the allegations made by the appellants about employer exploitation. These assertions are properly for INZ to investigate, not the Tribunal, and do not amount to an exceptional circumstance of a humanitarian nature. In this regard, the Tribunal also notes that INZ offered the appellants a potential solution, in the form of giving them each a limited purpose visa to enable INZ to carry out investigations into the complaints that had been made once satisfied their complaints were credible. This option was not accepted by the appellants.
[57] In my view, it is plain on the face of the decision that the Tribunal did in fact have regard to Ms Rupal’s and Mr Handa’s submissions about having been victims of migrant exploitation.
[58] The Tribunal correctly noted at [29] of the decision that it was not for the Tribunal to investigate the allegations. I accept the submissions made on behalf of the second respondent that the Tribunal was correct to have reservations about the credibility of those allegations for the reasons it sets out in [28] and [29] of the decision.
[59] Notwithstanding the credibility assessment, Ms Rupal’s and Mr Handa’s circumstances, when taken cumulatively for each of them, did not amount to exceptional circumstances of a humanitarian nature. While there was a submission of migrant exploitation, the evidence before the Tribunal raised a number of matters that counted against there being exceptional circumstances of a humanitarian nature. In that regard, the Tribunal commented:
[32] However, each of the appellants has been in New Zealand only for a relatively short period of time. Their respective families remain living in India, where their principal nexus remains. There is no suggestion they would not have the support of their respective families as they seek to readjust to life in India. Both the appellants have qualifications gained here and in India which will enable them to have access to the Indian labour market.
[60] The Tribunal then correctly referred to the high threshold for finding exceptional circumstances and correctly found that the test simply was not met:
[33] Looked at cumulatively, the appellants’ circumstances may well cause them both disappointment and they may well feel aggrieved at the way they have been treated by their employers. However, as already noted, these do not constitute exceptional circumstances of a humanitarian nature. The High Court has held that the stringent statutory test of “exceptional circumstances of a humanitarian nature” cannot be equated with “compassionate factors”, circumstances that are more than simply “routine”, or “genuinely concerning circumstance”. The High Court has noted “the high threshold for a finding of exceptional circumstances of a humanitarian nature” – see Minister of Immigration v Jooste [2014] NZHC 2882 at [45].
[61] In his oral submissions on behalf of Ms Rupal and Mr Handa, Mr Singh submitted that if Ms Rupal and Mr Handa were deported to India, they would not be able to live together as a couple as they have been doing in New Zealand, unless and until they were married. He submitted that would be unduly harsh. It is not clear whether there was evidence in this regard before the Tribunal. But even had there been such evidence, it would not have elevated the circumstances so as to reach the threshold of exceptional circumstances.
[62] Having determined that exceptional circumstances did not exist, the Tribunal did not err in then not considering the second limb of the test under s 207(1)(b). It was not necessary for it to do so.
[63] It is not seriously arguable that the Tribunal erred in its assessment of the totality of Ms Rupal’s and Mr Handa’s circumstances, in finding that there are not exceptional circumstances of a humanitarian nature for either of them.
[64]It follows that there is no issue of general or public importance.
[65] Nor is the “‘any other reason” limb satisfied. This is not “an exceptional case, involving individual injustice to such an extent that the Court simply could not countenance the [Tribunal’s] decision standing”.26 Even adopting the more expansive approach in RM v Immigration and Protection Tribunal,27 this is not a marginal case.
[66] Nor was it an error in that the Tribunal did not consider the validity of INZ’s decision to issue the DLNs. Exceptional circumstances of a humanitarian nature required for a humanitarian appeal under s 207 do not extend to the validity of the underlying liability to deportation.28
Review of INZ decision
[67] INZ served DLNs on Ms Rupal and Mr Handa on 29 May 2017. Ms Rupal and Mr Handa have not sought leave under s 249 to judicially review the determination that there is sufficient reason to deport them. Nor has a statement of claim been filed under s 247 seeking judicial review of INZ’s determination.
[68] However, as noted in [23] above, in his written and oral submissions, Mr Singh addressed the validity of the underlying INZ decisions. Mr Ayoub also addressed the Court orally on this issue on behalf of Ms Rupal and Mr Handa.
26 Taafi v Minister of Immigration, above n 10, at [19](c).
27 RM v Immigration and Protection Tribunal, above n 12.
28 Li v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2977 at [16] and [26].
[69] There are conflicting judgments of this Court on the correct approach to be taken in cases where an applicant wishes to challenge an underlying INZ decision resulting in a person becoming liable for deportation.29 The divergence of view centres on the proper interpretation of s 249 and whether a humanitarian appeal must be brought in the Tribunal before seeking leave to judicially review the underlying decision. If s 249 does not apply to such cases, then judicial review is available as of right under s 247.
[70] Mr Ayoub urged the Court to follow the approach adopted by Palmer J in Li v Chief Executive of the Ministry of Business, Innovation and Employment.30 In that case, the applicant held a temporary work visa which permitted him to work only in a specified job. INZ considered he was in breach of that work visa by working for his wife’s air conditioning company. Consequently, INZ decided that he, his wife and son were liable to deportation. The applicants brought a humanitarian appeal, unsuccessfully, before the Tribunal. They then sought leave in the High Court to appeal the Tribunal decision pursuant to s 245 of the Act and also applied for leave to apply for judicial review of the underlying INZ decision.
[71] Palmer J held that s 249 does not restrict the right to apply for judicial review of a decision about underlying liability to deportation where only a humanitarian appeal is available.31
[72] Palmer J, therefore, held that s 247 of the Act governed the proposed judicial review and granted an extension of time to file judicial review proceedings.32
[73] In this case, at no stage has an application for leave been filed, or proceedings filed, seeking judicial review of INZ’s decision to issue the DLNs. Ms Rupal and Mr Handa are now out of time to do so. Under s 249(4)(a), an application must be made not later than 28 days after the date of the Tribunal’s determination. Section 249(4)(b)
29 Li v Chief Executive of the Ministry of Business, Innovation and Employment, above n 28; Liu v Immigration New Zealand [2014] NZHC 195.
30 Li v Chief Executive of the Ministry of Business, Innovation and Employment, above n 28.
31 At [26].
32 At [28].
provides that the High Court may grant an extension provided an application for such extension is made before the expiry of the 28-day period. That has not happened here.
[74] If, on the other hand, s 247 is the correct section, Ms Rupal and Mr Handa were required to commence proceedings no later than 28 days after the date they were notified of INZ’s decision. That notification was on 29 May 2017, almost nine months ago.
[75] Section 247(1)(a) enables the Court to extend the timeframe “by reason of special circumstances”.
[76] As to the meaning of “special circumstances”, I have regard to earlier judgments of this Court which were summarised in C v Immigration and Protection Tribunal:33
[22] Despite being decided in respect of the predecessor provision, Rajan v Minister of Immigration (Rajan) remains the leading authority on the meaning of “special circumstances” in s 247(1) of the Act. In Rajan the Court of Appeal held that special circumstances are to be interpreted in light of the Act’s emphasis on timeliness:
… Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s 146A [the predecessor to s 247(1)] time limit for the filing of judicial review proceedings must be interpreted in that context.
[23] The policy reasons for the imposition of such strict time limits were explained by Priestley J in Xie v Minister of Immigration:
… Given the very broad supervisory powers which [the Judicature Amendment Act 1972] confers on the High Court, it makes sense that judicial review proceedings should be tightly controlled from a temporal point of view. Particularly is this the case in situations where perhaps proceedings would impede or delay removal from New Zealand of people unlawfully residing here.
… the policy of s 146A is clearly designed to place tight temporal constraints on judicial review being used as a mechanism to slow up removal procedures.
33 C v Immigration and Protection Tribunal [2015] NZHC 3253 at [22]-[24]; citing Rajan v Minister of Immigration [2004] NZAR 615 (CA) and Xie v Minister of Immigration HC Auckland CIV- 2008-404-2401, 25 July 2008.
[24] Rajan provides a framework for deciding whether “special circumstances” exist by reference to the following three factors:
(a)the length of the delay;
(b)the reason for the delay; and
(c)(in marginal cases) a brief examination of the merits.
[77] I accept the submission from counsel for the second respondent that no special circumstances exist here. There has been no explanation as to why Ms Rupal and Mr Handa have not, at any stage, applied to the Court to review the INZ decision and there has been a lengthy delay when viewed against the statutory timeframe.
[78] It is not, therefore, necessary for this Court to make a decision on whether to adopt the approach in Li or Liu v Immigration New Zealand.34 Even if the Li approach is correct, there are no special circumstances.
[79] I consider that this case is distinguishable from the recent judgment of Muir J in Kaur v Minister of Immigration.35 In that case, the reason for the delay was counsel’s error in filing the application for leave to appeal. Muir J stated:
[23] The respondent argues that counsel error does not amount to a special circumstance sufficient to animate the jurisdiction. Mr Stephen relies on Fernandes v The Immigration and Protection Tribunal for the proposition that any failure by a legal adviser to file an appeal is not, of itself, good reason to excuse delay. I consider that case distinguishable from the present however in that Fernandes’ counsel filed nothing within the relevant timeframe nor even indicated to the respondent that review proceedings were contemplated. In this case, counsel did attempt to appeal in the correct timeframe, albeit that in doing so they invoked an incorrect procedure. The respondent was fully appraised of the substantive grounds of review within the relevant time period.
(Citations omitted)
[80] The circumstances are quite different in this case. As noted in [77] above, there has been no explanation as to why Ms Rupal and Mr Handa have not at any stage applied to the Court in relation to INZ’s decision and there has also been a lengthy delay.
34 Liu v Immigration New Zealand, above n 29.
35 Kaur v Minister of Immigration [2018] NZHC 138.
[81] This is not a marginal case requiring the merits to be examined. If s 247 applies, there are no special circumstances justifying an extension of time to commence judicial review proceedings in relation to the decision of INZ to issue DLNs for Ms Rupal and Mr Handa.
Conclusion
[82] The application for leave to bring judicial review proceedings in relation to the decision of the Tribunal is dismissed.
Costs
[83] Costs are reserved. My initial view is that costs on a 2B basis would be appropriate. I encourage the parties to agree costs and file a joint memorandum.
[84] If agreement cannot be reached, the second respondent is to file and serve a memorandum by 6 April 2018. The applicants are to respond by 16 April 2018. Memoranda should not exceed five pages.
Gordon J
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