Singh v Chief Executive, Ministry of Business Innovation and Employment

[2018] NZHC 673

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-202 [2018] NZHC 673

BETWEEN  PAVNEET SINGH

Plaintiff

ANDCHIEF EXECUTIVE, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT

Defendant

Hearing:                   11 April 2018 Appearances:       G S Aulakh for the Plaintiff

H T N Fong for the Defendant

Judgment:                13 April 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 13 April 2018 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

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Registrar / Deputy Registrar

Solicitors/Counsel: Gurbrinder Aulakh, Auckland Crown Law, Wellington

SINGH v CHIEF EXECUTIVE, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2018] NZHC 673 [13 April 2018]

The proceeding

[1]                 Immigration New Zealand issued Mr Pavneet Singh with a deportation liability notice on 7 June 2017 and a Deportation Order on 1 November 2017. Mr Singh, the applicant, filed judicial review proceedings challenging those decisions. He pleads he was not in breach of his visa condition by not working for his  employer. He pleads he was not given an adequate opportunity and time to respond to the allegations contained in the deportation liability notice, as he was undergoing compulsory mental health treatment at the time.

[2]                 On 16 February 2018, Mr Singh applied for an interim stay of deportation, pending the judicial review. In a joint memorandum of the same date, counsel for both parties advised the Crown had “provided an assurance that no steps to deport the applicant will be taken, pending the outcome of the review proceeding”.

[3]Adjournments of further calls of the proceeding were sought and granted:

(a)In the same memorandum of 16 February 2018, the parties jointly sought adjournment of the matter until mid-March 2018, to consider their positions, which was granted by van Bohemen J.

(b)On 21 March 2018, at the call of the matter in the duty list, both parties jointly sought adjournment for a further week to enable the Crown to further consider its position to enable discussions about possible alternative resolutions. Mr Fong also repeated the Crown’s assurance. The request was granted by Davison J.

(c)Later in the afternoon of 21 March 2018, after the list call, the Crown filed a further memorandum requesting a one week extension of time for filing the statement of defence, for the same reason. This request does not appear to have been dealt with.

(d)On 27 March 2018, both parties requested a further one week adjournment to enable discussions about possible alternative resolutions and “a one-week extension of time for the respondent to

file her statement of defence”, until Thursday 5 April 2018. Those requests were granted by Peters J who ordered the matter be called in the Duty Judge list on 11 April 2018.

The parties’ positions

The Crown’s position

[4]                 The Crown did not file its statement of defence by the deadline it had sought of Thursday 5 April 2018. Instead, on Friday 6 April 2018, the Crown filed a memorandum advising settlement discussions had concluded unsuccessfully and objecting that Mr Singh’s application for judicial review was not filed within the 28 days of the decision specified by s 247 of the Immigration Act 2009 (the Act). The Crown filed a notice of appearance under protest to the jurisdiction of the Court under r 5.49 of the High Court Rules 2016. It now seeks timetabling orders for Mr Singh to apply for an extension of time, which it will oppose, and deferral of filing a statement of defence until 10 working days after determination of that application.

[5]                 The proceeding was called in Wednesday’s duty list. Mr Fong, for  the Crown, submits the Court has no jurisdiction to consider the substantive judicial review proceedings until the court has extended the time for doing so under s 247. He states the Crown had not filed its statement of defence because counsel had been focussed on settlement discussions.  He states, with the benefit of additional time,  the Crown now considers there is a jurisdictional hurdle. Mr Fong also submits the Immigration Act 2009 circumscribes the Court’s inherent jurisdiction of judicial review.

Mr Singh’s position

[6]                 Mr Aulakh, for Mr Singh, submits the Crown should be directed to file its statement of defence and the timing issue could be one of the matters it raises in that statement. He points out the irony of the Crown complaining about Mr Singh being out of time when it is out of time in filing its statement of defence. Mr Aulakh submits legislative intent does not authorise the giving away of good principles of administration and the abuse of power. He submits the Court has a constitutional

duty to uphold the rule of law. He submits the judicial review involves a challenge to the vires of regulations under s 247(4)).

[7]                 Mr Aulakh submits there are special circumstances justifying an extension of time for Mr Singh. He says Mr Singh did not have the opportunity to seek legal advice during his mental health treatment. His criminal legal aid lawyer in relation  to the criminal matter had handed back some of the relevant documents in January 2018. Finally, Mr Aulakh states Mr Singh would prefer an interim order by the  Court to preserve his position, though he accepts the Crown’s undertaking would be honoured so formal orders are not necessary.

Protest to jurisdiction

[8]                 Under r 5.49, “a defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement of defence and instead of so doing, file and serve an appearance stating the defendant’s objection and the grounds of it”. The Supreme Court has made clear that it is not to be interpreted overly narrowly.1

[9]                 Here, however, the Crown did not file and serve its appearance under protest to jurisdiction “within the time allowed for filing a statement of defence”. It filed its appearance under protest after that period, which had been extended at its own request. Accordingly, the Rules do not permit the Crown to file its appearance under protest to jurisdiction instead of filing a statement of defence.

[10]              If the Crown had validly filed its appearance under protest, it would have faced difficulties if challenged. The Crown would have had to argue that a statutory deadline, which can be extended by the Court, deprives the Court of statutory jurisdiction and implicitly deprives the Court of its inherent jurisdiction to supervise the abuse of power by executive government through the law of judicial review.  Such an argument runs contrary to the principle of legality and the doctrine of the rule of law.

1      See Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94; [2013] 1 NZLR 804 at [25]–[26].

[11]              Under s 14(2)(d) of the Judicial Review Procedure Act 2016, I direct the Crown to file its statement of defence within five working days of the date of this judgment.

Extension of time

[12]              The exception to the 28-day deadline for commencing review proceedings under s 247 of the Act is where “the High Court decides that, by reason of special circumstances, further time should be allowed”. As the Crown submits, the Court of Appeal in Rajan v Minister of Immigration determined special circumstances are “uncommon, not commonplace, out of the ordinary, abnormal”.2

[13]              Here, the Crown has undertaken “no steps to deport the applicant will be taken, pending the outcome of the review proceeding”. I make an interim  declaration to that effect under s 15(3)(b)(i) of the Judicial Review Procedure Act 2016: the Crown ought not take any steps to deport the applicant, pending the final determination of the judicial review proceeding.

[14]              Consistent with his right to judicial review under s 27 of the New Zealand Bill of Rights Act 1990, Mr Singh is legitimately entitled to expect the Crown’s undertaking, and now the Court’s order, to affirm to his right to have his proceeding determined on the merits, rather than on a technicality. I consider, by reason of these special circumstances, the further time Mr Singh took to commence his judicial review should be allowed.

Next steps

[15]              By noon Friday 27 April 2018, the parties are to prepare a joint memorandum of counsel proposing the timetabling of the steps required to hearing. The proceeding will be called in the next judicial review list after that.

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Palmer J

2      Rajan v Minister of Immigration [2004] NZAR 615 (CA), affirmed in Dahiya v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZCA 546 at [11].