Singh (Kulbir) v An Immigration Officer
[2016] NZCA 435
•12 September 2016 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA395/2016 [2016] NZCA 435 |
| BETWEEN | KULBIR SINGH MINHAS AND NAVJOT KAUR |
| AND | AN IMMIGRATION OFFICER THE ATTORNEY-GENERAL SUED ON BEHALF OF THE MINISTER OF IMMIGRATION |
| Hearing: | 23 August 2016 |
Court: | Kós P, Winkelmann and Brown JJ |
Counsel: | R J Hooker for Appellants |
Judgment: | 12 September 2016 at 3.00 pm |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellants must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
The appellants are Indian citizens who have been residing unlawfully in New Zealand since April 2004. They have three children. The eldest and youngest children (the two children) are also unlawfully in New Zealand but the appellants’ second child is a New Zealand citizen by virtue of her birth.[1] The appellants and the two children were served with deportation orders in September 2013. An immigration officer declined to cancel the deportation orders under s 177 of the Immigration Act 2009 (the 2009 Act). An application for review of the immigration officer’s decision was dismissed by Brewer J.[2] An appeal to this Court was also dismissed[3] and leave to appeal to the Supreme Court was refused.[4]
[1]The eldest child was born in India in 2001 and is an Indian citizen. The middle child was born in 2004 in New Zealand and is a New Zealand citizen. The youngest child was born in New Zealand in 2006 but, by virtue of an amendment to s 6 of the Citizenship Act 1977, is an Indian rather than New Zealand citizen.
[2]Singh v Chief Executive, Ministry of Business, Innovation and Employment [2014] NZHC 1916, [2014] NZAR 1068.
[3]Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93.
[4]Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZSC 39.
Having exhausted their legal remedies in New Zealand the appellants and their three children filed a petition being Communication No 2769/2016 (the Communication) with the United Nations Human Rights Committee (UNHRC) on 20 May 2016. They requested the UNHRC to investigate and rule upon their claim that the New Zealand government has violated or breached rights afforded to them under the International Covenant on Civil and Political Rights (ICCPR).[5]
[5]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), arts 2, 17, 23 and 24.
A request to the immigration officer to defer the deportation in view of the request to the UNHRC was declined on 1 June 2016. On 17 June the immigration officer declined a further request made on the grounds of a report provided by a clinical psychologist concerning the psychological impact of deportation on the three children.
The appellants issued a proceeding in the High Court on 16 June 2016 seeking an order that they not be deported from New Zealand until such time as the UNHRC issued a determination in respect of their communication. The application for interim declaratory orders was dismissed by Lang J on 2 August 2016.[6]
[6]Singh v An Immigration Officer [2016] NZHC 1778 [High Court judgment].
On appeal the appellants contend that the Judge:
(a)erroneously applied interim injunction principles[7] to their application which was in the nature of an application for stay pending appeal; and
(b)erroneously rejected their application for interim relief on review for the reason that no reviewable decisions were made.
The claim as pleaded
[7]The principles being those set out in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142.
The first cause of action in the High Court asserted a right at common law that the appellants’ right to petition the UNHRC not be negated by executive action. It was further asserted that s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA) guarantees to the appellants a right to justice, including the right to have their petition determined by the UNHRC without interference from the respondents. They claimed that their proposed deportation would be a breach of the rights under the ICCPR said to be fundamental to a petition before the UNHRC, render their petition nugatory and cause them irreparable harm. Accordingly, they sought an order that the immigration officer would not take any steps to deport the appellants and the two children until such time as the UNHRC determined the Communication.
The following final relief was sought:
ADeclaring that an immigration officer shall not take any steps deporting KULBIR SINGH MINHAS born 6 February 1962, NAVJOT KAUR born 18 May 1980, SUMEET SINGH MINHAS born 21 February 2001 and SUKHPREET SINGH MINHAS born 11 November 2006 from New Zealand until such time as the UNHRC in Geneva established by the Optional Protocol to the ICCPR and to which New Zealand is a signatory and is bound by its rulings has determined the petition which has been lodged by KULBIR SINGH MINHAS, NAVJOT KAUR, SUMEET SINGH MINHAS, AMANPREET KAUR and SUKHPREET SINGH MINHAS on 20 May 2016, the petition being accepted by the UNHRC on 23 May 2016 and is being served on the State, the petition being Communication No. 2769/2016.
The second cause of action was an application for judicial review of the “decisions” of the immigration officer on 1 and 17 June 2016 declining to defer deportation. It was asserted that the immigration officer failed to:
(a)apply and have due regard to relevant matters in the Communication and the supporting evidence; and
(b)have due regard to the policy of Immigration New Zealand (INZ) that where a decision of INZ is subject to review by a higher tribunal or body such as the Ombudsman, INZ will await the outcome of the review of the higher body before taking any further steps consequent to the INZ decision being reviewed.
In addition to an order reviewing and setting aside the Immigration Officer’s decisions, the appellants sought an order similar to that in the first cause of action, save that it was proposed that the stay should remain in force until the Minister determined the immigration status of the appellants and the two children in accordance with the UNHRC decision.
The claim for interim relief
The first interim declaratory order sought was essentially the same as Order A above. The terms of the second interim declaratory order stated:
In The Alternative
(b)An interim order that an immigration officer shall take no steps deporting KULBIR SINGH MINHAS born 6 February 1962, NAVJOT KAUR born 18 May 1980, SUMEET SINGH MINHAS born 21 February 2001 and SUKHPREET SINGH MINHAS born 11 November 2006 (together the “Petitioners”) until such time as the Court undertakes a Review under Judicature Amendment 1972 of:
(i)The immigration officer’s decision dated 1 June 2016 to limit his consideration of the petition before the UNHRC being Communication No. 2769/2016 to “reviewing the petition and determining to proceed with deportation”; and
(ii)The immigration officer’s decision of 17 June 2016 to proceed with deportation; and
(iii)The prospective decision by the Second Respondent and/or the immigration officer following the decision of the State in response to the decision of the UNHRC on the petition being Communication No. 2769/2016.
The challenge to the High Court judgment
The High Court’s reasoning
Observing that under the first cause of action the appellants sought an injunction in the exercise of the Court’s inherent jurisdiction, Lang J stated that in order to obtain interim relief in respect of that cause of action the appellants had to satisfy the three prerequisites for an interim injunction stated in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd.[8]On the issue of a serious issue to be tried the Judge recognised the necessity to distinguish between the proceeding itself and the Communication before the UNHRC, noting that the Court could not venture an opinion in relation to the latter, particularly given that the stance to be taken by the New Zealand Government in relation to its admissibility and merits was not yet known. After reviewing several factors Lang J concluded that that aspect of the claim did not reach the threshold of establishing a serious issue to be tried.[9] He further found that the balance of convenience lay firmly against the granting of an injunction and he considered that overall justice was likely to be met by the same result.[10]
[8]High Court judgment, above n 6, at [22].
[9]At [38]–[40].
[10]At [48].
Recognising that interim relief under the second cause of action was governed by s 8 of the Judicature Amendment Act 1972, Lang J observed that interim orders in the judicial review context would generally only be made where they are required to preserve the plaintiff’s position and to prevent the plaintiff from being unfairly prejudiced pending determination of the judicial review proceeding.[11] He identified five allegations in the second cause of action but concluded that none of them raised a serious issue to be tried. For that reason the Judge did not consider it was necessary to consider the balance of convenience but said that, had it been necessary to do so, the balance would have fallen firmly in favour of the respondents for the reasons given in relation to the first cause of action.[12]
The grounds of appeal
[11]At [55] citing Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).
[12]At [66].
The appellants’ first ground of appeal alleges an error of law in the approach the Court adopted, namely by determining the matter as an application for an interim injunction. Rather, the issue for the High Court was said to be whether the Communication with the UNHRC was a “right of appeal” to which the ordinary principles of a stay pending the determination of an appeal should be applied.
As to the second ground of appeal, no complaint was directed to the Court’s mode of approach to the interim relief application but rather the appellants’ challenge the finding that there was no decision amenable to review. That finding was said to be wrong because:
(a)the decision to proceed with deportation was a statutory decision amenable to review and needed to take into account the new information including the psychologist’s report; and
(b)there were prospective decisions which were amenable to review, namely the prospective decision in response by the respondents to the Communication.
When pressed in the course of argument on the source of the relevant statutory power of decision, Mr Hooker placed reliance on s 178 of the 2009 Act which specifies when a deportation order may be executed.
Before addressing these grounds of appeal it is convenient to first conduct a brief review of the relevant statutory history and certain key authorities.
Material legislative history
The Immigration Act 1987 (the 1987 Act) did not contain explicit reference to New Zealand’s international obligations. The first reference to such obligations was in the Immigration Amendment Act 1999,[13] the statement of purpose for which provided:
An Act to—
(a)Improve the effectiveness of the removal regime for persons unlawfully in New Zealand by streamlining the procedures involved, so ensuring—
(i) A higher level of compliance with immigration laws; and
(ii)That persons who do not comply with immigration procedures and rules are not advantaged in comparison with persons who do comply; and
(b)Create a statutory framework for determining refugee status under the Refugee Convention …
[13]Section 40 introduced pt 6A to the Immigration Act 1987, providing a statutory basis for the system by which New Zealand meets its obligations under the United Nations Convention relating to the Status of Refugees.
That reference to a streamlining of procedures reflected, among other things, a revision of the process for removing people unlawfully in New Zealand and the imposition of constraints on review proceedings in s 146A of the 1987 Act.
The scenario of a person unlawfully in New Zealand seeking in judicial review proceedings to prevent removal under the 1987 Act in reliance on New Zealand-born children was subsequently considered in several cases, culminating in the decisions of the Supreme Court in Ye v Minister of Immigration[14] and Huang v Minister of Immigration.[15]In Ye the Court stated that the 1987 Act should be interpreted in a way that is consistent with New Zealand’s obligation to observe the requirements of applicable international instruments and in the particular circumstances of that case the requirements of the United Nations Convention on the Rights of the Child.[16] The Court said:
[28] In summary, the position reached to this point is as follows. Immigration officers making the discretionary decision envisaged by s 54 of the Act whether to make a removal order, must, to the extent practicable at that stage, consider whether the s 47(3) criteria apply to the case. If they do, the discretion should be exercised against making a removal order. The grant of a permit either under s 35A or some other appropriate mechanism will then be appropriate to regularise the overstayer’s continued presence in New Zealand. A less extensive examination is required if the case has already been through the RRA [Removal Review Authority] appeal process.
[29] An officer is not obliged to consider a request that a removal order be cancelled under s 58. But the officer must, when and to the extent s 47(3) issues have not already been addressed, consider cancellation via the humanitarian interview process or otherwise, and, if the officer finds the s 47(3) criteria are established, the officer should likewise not proceed with removal.
[14]Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
[15]Huang v Minister of Immigration [2009] NZSC 77, [2010] 1 NZLR 135.
[16]Ye v Minister of Immigration, above n 14, at [24].
Section 58 of the 1987 Act was promptly amended by the addition of subss (5)–(8): Two points may be noted. First, as this Court observed in Parmanadan v Minister of Immigration, the amendment to s 58 (carried over to s 177 of the 2009 Act) represented a sharp legislative rejection of the necessity to apply the s 47(3) test[17] at the s 58 stage of the process.[18] The circumstances are conveniently recorded in Chief Executive of the Ministry of Business, Innovation and Employment v Nair:[19]
[34] … s 177 was inserted (as cl 165A) by a supplementary order paper following the select committee recommendation that the Bill should include a provision for cancellation of a deportation order. The supplementary order paper explains the wording of s 177 was a response to the judgment of the Supreme Court in Ye v Minister of Immigration, which was delivered after the select committee stage and second reading of the Bill. The supplementary order paper in Committee included two clauses responding to that decision. One was cl 165A, which became s 177; the other was cl 432, which amended s 58 of the 1987 Act.
[35] The explanatory note to the paper discusses these changes:
… new clauses 165A and 432 are inserted, to ensure that certain decisions (for example, decisions about whether or not a person liable for deportation (or removal under the Immigration Act 1987) from New Zealand should be deported (or removed)) are decisions made by immigration officers implementing the practical elements of the final stage of removal of the person and do not require any test or any particular test. In particular, immigration officers are not required to apply the test set out in section 47(3) of the Immigration Act 1987 or in clause 186 of the Bill, as the case may be, when considering cancellation of a removal order or a deportation order. At this stage, the essential legal issue is whether the person is in New Zealand unlawfully. These amendments overturn the future effect of most of the key findings (including the findings that required immigration officers to apply the humanitarian appeal test and imposed duties of inquiry on them) in the recent Supreme Court decisions Ye v Minister of Immigration; Qiu v Minister of Immigration [2009] NZSC 76, and Huang v Minister of Immigration [2009] NZSC 77, all judgments being delivered on 20 July 2009. The amendments, however, do not affect the position of the litigants in those decisions.
[17]Requiring a consideration of whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand.
[18]Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424 at [7].
[19]Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA 248, [2016] NZAR 836 (footnotes omitted).
Secondly, the amendment introduced New Zealand’s relevant international obligations as a matter to be considered with reference to a proposed cancellation of a deportation order. Noting that a decision made under s 177 comes at the end of a range of processes providing opportunities for review and appeal, this Court in Nair described s 177 in this way:
[30] It is apparent from the statutory scheme in general, from the specific wording of s 177 and from the legislative history that s 177 provides something of a “last ditch” opportunity to have a deportation order cancelled. It is also apparent that while the immigration officer is required to turn his or her mind to (“have regard to”) any relevant international obligations no particular test need be applied and the immigration officer “need not attach particular weight to any given international obligation”. Finally, it follows that the scope for judicial review of the decision not to cancel a deportation order is limited.
(Footnotes omitted)
Relevant to the appellants’ emphasis on the Communication as amounting to an “appeal” and to the reliance placed on s 178 of the 2009 Act, it is pertinent to also draw attention to the specific statement of purpose in pt 6 of the 2009 Act addressing deportation:
153 Purpose of Part
(1) The purpose of this Part is to support the integrity of New Zealand’s immigration system and the security of New Zealand by providing for the deportation of certain persons from New Zealand.
(2) To this end, this Part—
(a) specifies when a person is liable for deportation; and
(b)specifies how that liability must be communicated to the person; and
(c) sets out the consequences of the liability for the person; and
(d) specifies the only situations in which an appeal right exists in respect of that liability; and
(e) provides for the person’s deportation to be executed without the need for further inquiries if no appeal is made or an appeal is unsuccessful.
First ground of appeal — a stay pending “appeal”
While Mr Hooker properly acknowledged that NZBORA does not recognise a right to family life,[20] the appellants invoke s 27 in aid of their first ground of appeal. Although there was no suggestion that the appellants had suffered some breach of natural justice in the processes they have already pursued, it was submitted that the actual exercise of deportation must be subject to the appellants’ right “to justice” which, it was said, included preserving the rights of what was described as “the appeal to the UNHRC”.
[20]Such a right was expressly rejected by this Court in M v Minister of Immigration [2012] NZCA 489, [2013] 2 NZLR 1 at [20].
Reliance was placed on the description by the Privy Council of the right asserted in Thomas v Baptiste:[21]
It is the general right accorded to all litigants not to have the outcome of any pending appellate or other legal process pre-empted by executive action. This general right is not created by the [American] Convention [on Human Rights]; it is accorded by the common law and affirmed by section 4(a) of the Constitution. The applicants are not seeking to enforce the terms of an unincorporated treaty, but a provision of the domestic law of Trinidad and Tobago contained in the Constitution. By ratifying a treaty which provides for individual access to an international body, the government made that process for the time being part of the domestic criminal justice system and thereby temporarily at least extended the scope of the due process clause in the Constitution.
[21]Thomas v Baptiste [2000] 2 AC 1 (PC) at 23.
Appeal is a process whereby an original determination is escalated within a hierarchy of courts. A decision of a higher court supplants the lower court’s decision. The appellate function is telescopic in nature.[22]
[22]Housen v Nikolaisen [2002] 2 SCR 235 at [14].
Save for private bodies,[23] a right of appeal is conferred by statute. As the judgment of Glesson CJ, Gummow and Kirby JJ in the High Court of Australia stated in Fox v Percy:[24]
Appeal is not, as such, a common law procedure. It is a creature of statute.
[23]The rights of members of private organisations will usually be contract-based.
[24]Fox v Percy (2003) 214 CLR 118 at 124.
While one stated purpose of NZBORA was to affirm New Zealand’s commitment to the ICCPR, the entitlement of individuals to petition the UNHRC has not been incorporated in New Zealand immigration statute law (or NZBORA) so as in effect to confer a right of appeal from the decision of the Supreme Court.
The 2009 Act is detailed and precise legislation which was plainly intended to limit and circumscribe appeal rights in relation to the statutory processes which apply to persons unlawfully in New Zealand. Section 153(2)(d) is particularly pertinent in emphasising that pt 6 specifies the only situations in which an appeal right exists in respect of a person’s liability for deportation.[25]
[25]At [22] above.
Consequently we do not consider that Mr Hooker’s endeavour to recharacterise the interim declaratory relief sought in respect of the first pleaded cause of action as a stay pending an “appeal” in the form of the Communication to the UNHRC avails the appellants.
Even proceeding on the assumption that, in its inherent jurisdiction, the High Court has the power to grant interim declaratory relief on the basis that a petition to the UNHRC is analogous to an appeal, such a power is discretionary.[26] For the reasons stated below in the context of interim relief we would have declined to exercise such a discretion in favour of granting interim relief in this case.
Second ground of appeal — s 8 interim relief
[26]See Taylor v Attorney-General [1975] 2 NZLR 675 (CA) at 680; I H Jacob “The Inherent Jurisdiction of the Court” (1970) Current Legal Problems 23 at 24; and M S Dockray “The Inherent Jurisdiction to Regulate Civil Proceedings” (1997) 113 LQR 120 at 128.
The High Court judgment applied a Klissers methodology, finding that there was no serious issue to be tried because of the lack of a reviewable decision and rendering it unnecessary to address the balance of convenience. Accordingly, the focus of the appellants’ challenge was directed to the conclusion that the immigration officer’s refusals to defer deportation were not reviewable decisions.
Interim relief of the nature sought in this case is appropriately considered as an application under s 8 of the Judicature Amendment Act to be determined in accordance with the established principles most recently recorded in Nair.[27] The Court asks first whether the adverse consequences of deportation before the judicial review application is determined are such that it is necessary to preserve the appellants’ position in the interim and, secondly, whether there is a respectable case for judicial review. We doubt the utility in a public law context of the Klissers principles which evolved to address the competing interests of private litigants pending trial and for whom the adequacy of damages is a primary consideration.[28]
[27]Chief Executive of the Ministry of Business, Innovation and Employment v Nair, above n 19, at [10].
[28]The adequacy of damages for a plaintiff was described by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) at 408 as “the governing principle”.
Accordingly, the first step is to ask whether the adverse consequences of deportation before the judicial review application is determined are such that it is necessary to preserve the appellants’ position in the interim.
In Parmanadan the Court acknowledged that there may be particular adverse consequences of a proposed removal that might warrant the making of an interim order, stating:[29]
… But the likelihood of such adverse consequences should be established by evidence and assessed in the context of both a legislative scheme under which the overstayer is necessarily illegally in New Zealand and is under a legal duty to leave (subject to a right of “appeal” to the Removal Review Authority on humanitarian grounds), and also a legislative policy under which those who break the rules are not to be advantaged over those who comply.
[29]Parmanadan v Minister of Immigration, above n 18, at [11] (footnotes omitted).
Nevertheless, as this Court in Nair recognised, the effect of Parmanadan was that the usual statutory effects of deportation will not generally be sufficiently adverse to meet the threshold for interim relief. The Court said:[30]
We are satisfied there is no basis not to continue to apply Parmanadan. Indeed, the 2009 Act reinforces the Parmanadan approach. We say that because the 2009 Act emphasises the personal responsibility on persons in Mr Nair’s position.
[30]Chief Executive of the Ministry of Business, Innovation and Employment v Nair, above n 19, at [16] (footnotes omitted).
In our view there is nothing in the nature of the process which has been commenced with the UNHRC that distinguishes the appellants’ position from the circumstances in Parmanadan and Nair.
Here, the appellants’ entitlement to petition the UNHRC is not “negated” by the execution of the deportation orders which have been unsuccessfully challenged. That process before the UNHRC will continue irrespective of whether the appellants are deported from New Zealand. The appellants’ real complaint is not that their entitlement to petition the UNHRC is defeated but rather that the consequence of deportation would be that they are unable to continue to reside in New Zealand in the interim period pending the determination of the petition.
Similarly, even assuming that the right conferred by s 27(2) of NZBORA to apply for judicial review could be construed as applying to the Communication to the UNHRC, we have difficulty with the proposition that the execution of the deportation order could amount to an “interference” by the respondents with such a right of determination.
There is no suggestion that the Government does not intend to engage in the UNHRC process either at all or in a manner which would in some way impair the process. Rather the assented “interference” concerns the effect of the implementation of the deportation order on the appellants’ place of residence for the duration of the UNHRC process.
In our view, the situation has parallels with that described in Nair:[31]
If interim relief is declined Mr Nair will leave New Zealand. … He would have to conduct his judicial review application from India. If successful on review, the decision under s 177 not to cancel the deportation order will be set aside and an immigration officer will reconsider whether to cancel the order. If the immigration officer decides to cancel the order, the “logical corollary” is likely to be the view there are good grounds for Mr Nair to be granted a residence class visa although Mr Nair would have to make his application for residency from India. The Minister may exercise his discretion under s 182 of the Act to remove the prohibition on entry and to waive deportation costs.
[31]Chief Executive of the Ministry of Business, Innovation and Employment v Nair, above n 19, at [22] (footnotes omitted).
Mr Hooker placed significant reliance on the consequences for the three children of the execution of the deportation orders, particularly by reference to the psychologist’s report prepared to accompany the petition to the UNHRC.
While the report analysed in a thorough way the adverse effects for the children, supported by several expressions of clinical opinion, the overall tenor of the report did not materially add to the case previously made on the s 177 issue.
In reaching the decisions not to cancel the four deportation orders in October 2013, the immigration officer had had the benefit of two sets of submissions from the appellants’ solicitor. These submissions emphasised the implications of the deportation order for the appellants’ second child, both in terms of her situation in India and the consequences for her if she remained in New Zealand and was separated from her parents and two siblings. The decisions explicitly recognised that the circumstances engaged New Zealand’s international obligations, identifying, among others, the obligations imposed by arts 17, 23 and 24 of the ICCPR.
Further, as the Supreme Court observed in declining leave to appeal:[32]
[3] The applicants’ underlying challenge to deportation seems to be largely premised on the contention that prejudice to the child who is a New Zealand citizen (in the sense that the deportation of her parents and siblings will not be in her best interests) is a trumping consideration. The immigration officer did not accept that it was. There is nothing particularly surprising about that or any other aspect of the decisions of the immigration officer.
[32]Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 4.
The immigration officer had the benefit of considering the psychologist’s report before refusing the second request to defer the deportations on 17 June 2016. The letter advising Mr Hooker and the appellants of that refusal recorded the view that the Communication did not raise any new information but relied fundamentally on the same grounds raised unsuccessfully in the earlier round of litigation.
While, as Mr Hooker submitted, the effects on the three children of the deportation of the four family members is self-evident and, we accept, regrettable, in our view it is not of such a nature or different from other similar cases so as to constitute the particular adverse consequences envisaged in Parmanadan.[33]
[33]Parmanadan v Minister of Immigration, above n 18, at [11].
In light of that conclusion it is not necessary to address the second question whether there is a respectable case for judicial review. However, for completeness, we mention it briefly. The appellants endeavoured to advance their case by reference to an alleged statutory power of decision under s 178 of the 2009 Act and a “prospective” decision of the Government in response to any views or recommendations that the UNHRC may express.
With reference to the former, we note that an application for review based on the proposition that the “decision” to execute a deportation order under s 178 would amount to a reviewable decision would involve the acceptance of the right to a further layer of legal challenge beyond s 177, which was described in Nair as something of a “last ditch” opportunity.[34]
[34]Chief Executive of the Ministry of Business, Innovation and Employment v Nair, above n 19, at [30].
So far as the latter is concerned, there is a question whether such a “prospective” and necessarily unknown decision at a date well into the future could amount to a proposed or purported exercise of a statutory power within s 4(1) of the Judicature Amendment Act, even assuming that a response of the State to a view or recommendation from the UNHRC otherwise amounted to a reviewable decision. Accordingly, had it been necessary to decide, we doubt that the appellants could have established a respectable case for judicial review.
Result
The appeal is dismissed.
The respondent seeks costs relying on this Court’s decision in Chief Executive of the Department of Labour v Taito.[35] Given that the appellants are not legally aided and that Mr Singh Minhas filed an undertaking as to damages in support of the application for interim orders, we consider that it is appropriate to award costs. The appellants are to pay the respondent costs for a standard appeal on a band A basis and usual disbursements.
[35]Chief Executive of the Department of Labour v Taito CA225/04, 19 September 2006.
Solicitors:
Vallant Hooker & Partners, Auckland for Appellants
Crown Law Office, Wellington for Respondents
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