Singh v Chief Executive of the Ministry of Business, Innovation and Employment
[2022] NZHC 3040
•21 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-194
[2022] NZHC 3040
UNDER Section 20 of the Judicial Review Procedure Act 2016 and section 56 of the Senior Courts Act 2016 IN THE MATTER
of an application for leave to appeal to the Court of Appeal under section 249B of the Immigration Act 2009
BETWEEN
RANJIT SINGH
Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
First RespondentIMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent
Hearing: 10 November 2022 Appearances:
M Clark for Applicant
E Dowse and E Cameron for First Respondent Second Respondent abides the decision of the Court
Judgment:
21 November 2022
JUDGMENT OF GORDON J
This judgment was delivered by me
on 21 November 2022 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Law, Wellington Counsel: Vallant Hooker & Partners, Auckland
SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2022] NZHC 3040 [21 November 2022]
[1] On 12 April 2022 I gave a decision (the substantive decision)1 refusing the application of Ranjit Singh for judicial review of a decision by the Immigration and Protection Tribunal (Tribunal) dismissing an appeal against liability for deportation.2
[2]Mr Singh now applies for leave to appeal my decision to the Court of Appeal.
[3] The application for leave is opposed by the first respondent, the Chief Executive of the Ministry for Business, Innovation and Employment (the Chief Executive). The second respondent, the Immigration and Protection Tribunal (the Tribunal), abided the decision of the Court in the substantive hearing; accordingly, the Tribunal does not make submissions on this application for leave to appeal.
Background
[4] Mr Singh’s immigration history and that of his family, the Tribunal’s decision, the statutory context, the parties’ positions, and the reasons for the decision are fully set out in the substantive decision, which should be read in conjunction with this decision. I do not propose to repeat or summarise that content here save for the following thumbnail sketch.
[5] Mr Singh applied to this Court for leave to challenge the decision of the Tribunal refusing his humanitarian appeal on the basis he had a (claimed) legitimate expectation that the immigration file of his wife, Sukhjit Kaur, and his two children (additional information) would be requested and considered by the Tribunal; and the failure by the Tribunal to request those files had a material effect on his appeal.
[6] This Court granted leave. However, shortly before the initial hearing date, counsel for the Chief Executive became aware that the relevant parts of the files for Ms Kaur and the two children had in fact been provided to the Tribunal. Although they had not been requested by the Tribunal they had been sent to the Tribunal by an Immigration New Zealand (INZ) officer, whose role is to collate files for the Tribunal. They were sent of his own volition.
1 Singh v The Chief Executive of the Ministry of Business, Innovation and Employment [2022] NZHC 738.
2 Singh v Immigration and Protection Tribunal [2020] NZIPT 504794.
[7] Counsel for the Chief Executive advised Ms Clark, counsel for Mr Singh, and the hearing in this Court proceeded at a later date. The INZ officer swore an affidavit in which he deposed that he had forwarded the relevant parts of the files of Ms Kaur and the two children to the Tribunal. He also said that he later responded to a request from the Case Manager at the Tribunal asking for an update not only for Mr Singh but also for Ms Kaur and the two children.
[8] On review I found that there could be no legitimate expectation as pleaded. But even if there had been, the additional information was considered by the Tribunal. The proceeding was therefore moot. I further held that if I was wrong on these points, any failure to consider the additional information was not material.
[9] Mr Singh seeks leave to appeal the two latter points and raises four proposed questions of law.
Legal principles
Leave test: Immigration Act 2009
[10] Mr Singh applies for leave to appeal under s 249B of the Immigration Act 2009 (the Act) and s 56 of the Senior Courts Act 2016.
[11] In determining whether to grant leave under s 249B, the Court must have regard to whether the issue involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal.3 In referring to s 249B the Court of Appeal in Patel v Immigration and Protection Tribunal said:4
[17] In order to obtain leave to appeal to this Court, Ms Patel must satisfy us that the proposed appeals raise some question capable of bona fide and serious argument involving some interest of sufficient importance to outweigh the cost and delay of a further appeal.
[12] The test for whether a question reaches the threshold of “general or public importance” was discussed by the Court of Appeal in Minister of Immigration v
3 Immigration Act 2009, s 249B(3).
4 Patel v Immigration and Protection Tribunal [2019] NZCA 607 (footnote omitted).
Jooste.5 The Court stated the test is similar to that applying to second appeals to that Court under s 67 of the Judicature Act 1908, as was discussed by the Blanchard J in Waller v Hider:6
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
[13] Leave to appeal for “any other reason” is only justified if exceptional circumstances exist “involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing …”7
[14] Ms Clark accepts there is a high threshold for establishing that an issue is one of general or public importance, or that for any other reason is one that should be submitted to the Court of Appeal.
When errors of fact can become errors of law
[15] An ultimate conclusion of a fact-finding body can sometimes be so insupportable as to amount to an error of law. However, that will only be the position in cases “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”.8 The Supreme Court has also emphasised that an appellant seeking to assert there was no evidence for a finding faces a very high hurdle.9
5 Minister of Immigration v Jooste [2014] NZCA 23 at [5].
6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
7 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
8 Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 (SC) at [26], where the Supreme Court endorsed the words of Lord Radcliffe in Edwards v Bairstow [1956] AC 14 (UKHL) at 36.
9 Bryson v Three Foot Six Ltd, above n 8, at [27]. See also Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19] where Kós J, applying those principles in an immigration context, referred to the “triple hurdle” an applicant faces when seeking to challenge the Tribunal’s actual findings.
Proposed questions on which leave to appeal is sought
[16]Mr Singh seeks leave to appeal on the following questions of law:
(1)Did the High Court err in law in finding that the principle that a decision maker has considered information that was explicitly before them applied in circumstances where the Tribunal did not request the files for Ms Kaur and the children?
(2)Did the High Court err in law that an affidavit of the Tribunal decision maker was not required to confirm he had considered the files of Ms Kaur and the children in circumstances where:
(i) The Tribunal did not request the files.
(ii) The [INZ] liaison officer included the AMS notes [for Ms Kaur and the children] pre-emptively and of his own volition.
(iii) There was nothing provided by the liaison officer that brought to the attention of the Tribunal that the summary tables and full AMS notes for Ms Kaur and the children had been provided.
(iv) There is no explanation given as to who wrote on the post-it tabs later found on the summary tables and full AMS notes for Ms Kaur and the children and when the writing was added.
(v) The AMS notes for Ms Kaur and the children were included in the bundle at the back of the AMS material for the Applicant, well over 800 pages.
(vi) The Tribunal’s decision expressly refers to having considered the INZ files for the Applicant in relation to his visa applications.
(vii) The Tribunal’s decision does not expressly record or reflect that the Tribunal decision maker had received and considered the files of Ms Kaur and/or the children.
(viii) At the time that the application for leave to bring review proceedings was heard on 28 July 2021, the hearing proceeded on the basis that the Tribunal had not requested, or received, the files for Ms Kaur and the children.
(ix) The substantive judicial review proceedings proceeded until a very late point in time when it was discovered that the files for Ms Kaur and the children had in fact been provided by the First Respondent to the Tribunal.
(3)Did the High Court err in fact such as to constitute an error of law in finding that the Tribunal decision maker did refer to the INZ files of Ms Kaur and the children.
(4)Did the High Court err in fact such as to constitute an error of law in finding that the failure of the Tribunal decision maker to refer to the INZ files was not material to the decision.
Discussion
First and second questions
[17]The first and second proposed questions of law are related.
Presumption
[18] The first question Mr Singh proposes is: whether the Court erred in law when applying the principle that a decision-maker is presumed to have considered information that was explicitly before him or her in the circumstances of this case.10
[19] Ms Clark submits the presumption cannot apply in circumstances where the Tribunal did not request the additional material: it was included pre-emptively; it was included at the back of a large bundle; and the decision of the Tribunal does not expressly record it was considered.
[20] I accept Ms Dowse’s submission that this question is not seriously arguable: all the presumption requires is evidence that the relevant information was received by the decision-maker. Mr Singh does not dispute that the Tribunal received the additional information.
[21]Further, the following factors favoured the application of the presumption:
(a)The Tribunal case manager made an inquiry prior to the Tribunal decision requesting updating information not only for Mr Singh but also his wife and children;
(b)The inference could be drawn that handwritten post-it notes saying “SPOUSE”, “Child 1” and “Child 2”, identifying the location of the additional information in the file,11 had been written by someone at the
10 Singh v The Chief Executive of the Ministry of Business, Innovation and Employment, above n 1, at [100]; citing Shi v Chief Executive, Ministry of Business, Innovation and Employment [2014] NZHC 1217 at [44].
11 The INZ liaison officer said it was likely he added blank post it notes to separate the information for the different family members when he prepared the files for the Tribunal as that was his usual practise. But he said the writing on the post-it notes was not his.
Tribunal for the purpose of drawing the Tribunal’s attention to information about Mr Singh’s wife and children; and
(c)The Tribunal referred to the substance of the relevant matters in the decision.
[22] These are essentially findings of fact which the Court was entitled to make. They provided a sufficient basis to apply the presumption. Whether the presumption applies is a question of fact specific to each case.
Affidavit
[23] Mr Singh proposes as the second question: whether the Court erred in law when finding that the Tribunal decision-maker was not required to file an affidavit to confirm he had considered the files in the circumstances of this case.
[24] Ms Clark submits that the Court should have required a confirmatory affidavit from the Tribunal before finding that the Tribunal had considered the additional material. Further, the Court ought to have drawn an adverse inference from the absence of affidavit evidence from the Tribunal, following the principle in Ithaca (Custodians) Ltd v Perry Corp.12
[25]I do not consider this is seriously arguable:
(a)The Tribunal is a specialist body with expertise in immigration and deportation matters, and the judgment of the Tribunal is the record of its decision. The decision-maker cannot be expected in every case on appeal to provide affidavits further clarifying the decision-making process and what was or was not considered;
(b)The affidavit of the INZ officer confirmed that the additional information was provided by INZ to the Tribunal. Mr Singh accepts
12 Ithaca (Custodians) Ltd v Perry Corp [2004] 1 NZLR 731 at [153].
that is the case. He does not dispute what the Tribunal received, only what was considered; and
(c)In any event, there is no requirement to draw an adverse inference. Whether a court applies the inference is a matter for the court in light of the factual circumstances of any given case.
[26] Ms Clark relies on Ochibulu v Immigration and Protection Tribunal (decided after the substantive decision).13 In that case, the appellant claimed the Tribunal had the full file, while he did not. The Court of Appeal sought a response from the Tribunal, which supplied an affidavit. Ms Clark relies on the following statement by the Court of Appeal:14
[43] At the hearing, we made it clear that we did not consider it appropriate for the Court to have to speculate (or take a purely forensic approach) about what the Tribunal did or did not have before it. We were entitled to look to the Tribunal, the first respondent, for clarification, rather than having to grope in the dark. We therefore issued a minute requiring response from the Tribunal as to the allegation — made primarily in an affidavit by Mrs Ochibulu — that the Tribunal had the full file.
[27] I agree with Ms Dowse that Ochibulu is distinguishable. In that case there was no affidavit confirming what file the Tribunal had received. In the present case the affidavit from the INZ liaison officer confirms what was sent to the Tribunal. Mr Singh accepts that the Tribunal received the file. In this case Mr Singh does not dispute what the Tribunal received, only what the Tribunal considered. And the presumption applies as discussed above.
[28] For these reasons, I find that the first and second questions are not seriously arguable.
[29] Although my decision rests on the above reasons, I note for completeness that it was drawn to my attention in submissions at this hearing that at an earlier stage counsel for Mr Singh had withdrawn a request for a direction from the Court that the Tribunal file an affidavit in this Court. After it had emerged that the INZ liaison officer
13 Ochibulu v Immigration and Protection Tribunal [2022] NZCA 278.
14 At [43] (footnote omitted).
had forwarded the additional information and after counsel for Mr Singh was advised accordingly, by memorandum of counsel dated 11 August 2021 Mr Singh sought directions from this Court: that the Tribunal decision-maker file an affidavit addressing whether he had received and reviewed the additional material; and that the Case Manager at the Tribunal file an affidavit addressing the questions of whether she was aware she had received the files for Ms Kaur and the children and whether she had made the Tribunal aware this had been received and formed part of the file. By minute dated 11 August 2021 a Judge of this Court directed the parties to file submissions on these requests.
[30] However, by memorandum dated 15 August 2021 counsel for Mr Singh advised that Mr Singh “no longer seeks the above direction as the information sought is addressed in the existing statement of defence that has been filed by the first respondent”. It is somewhat inconsistent for Mr Singh to subsequently argue on review and now in his application for leave to appeal that an affidavit should have been provided by the Tribunal.
Third question
[31] Mr Singh proposes the following question: whether the Court erred in fact – such as to constitute an error of law – in finding that the Tribunal did refer to the additional information.
[32] In considering the first and second questions, I have already concluded that this Court did not err when finding that the Tribunal considered the additional material. The Tribunal referred to the substance of the three matters which Mr Singh considered relevant to his appeal.15 The Tribunal was not required to expressly refer to the INZ files for Ms Kaur and the children, as Mr Singh’s third question implies. This question is not seriously arguable. There is no error of fact, least of all one which would constitute an error of law.
15 Singh v The Chief Executive of the Ministry of Business, Innovation and Employment, above n 1, at [102(d)].
Fourth question
[33] Mr Singh proposes the following question: whether the Court erred in fact – such as to constitute an error of law – in its alternative finding that any alleged failure of the Tribunal to refer to the additional information was not material to the decision.
[34] Ms Clark submits that the Tribunal’s assessment of certain matters was necessarily incomplete without consideration of the additional information. In particular, Ms Clark submits a full appreciation of Mr Singh’s wife’s pathway to residency and the likely impact of Mr Singh’s deportation on the children would have made a material difference to the Tribunal’s decision.
[35]I accept Ms Dowse’s submission that this question is not seriously arguable.
[36] The Court was entitled to find that the additional information was not material to the outcome because:
(a)The progression of Ms Kaur’s 2015 residency application did not indicate that any successful application would have succeeded; as a specialist body, the Tribunal would have been well aware of this factor;16
(b)The children’s educational history in New Zealand was summarised in Mr Singh’s submissions; the information in the INZ file would only have supplied further detail;17 and
(c)The degree of family support Mr Singh was able to provide was set out in Mr Singh’s submissions; it is a matter of common sense that a second parent would provide some support; the children were 15 and 16 years old at the time and were capable of some level of independence.18
16 At [118]–[121].
17 At [122]–[123].
18 At [124]–[126].
[37] In addition, I accept Ms Dowse’s submission that the following factors were also relevant to an assessment of whether or not any failure to refer to the additional information was material to the result:
(a)The Tribunal’s finding that the family had remained in New Zealand on temporary visas without entitlement to, or legitimate expectation of, ongoing immigration status in this country, was valid and irrefutable; future visa applications are inherently uncertain;
(b)The additional material was peripheral to the central considerations; the onus is on the appellant to establish their case as they are usually in the best position to identify any adverse consequences of deportation; Mr Singh provided all the essential information on his family and their immigration status;
(c)The Chief Executive is required to provide ‘baseline’ material only; any further information is provided on a discretionary basis; and
(d)A pathway to residence does not constitute an exceptional circumstance.
[38]For the above reasons, I find that the fourth question is not seriously arguable.
Threshold for leave
[39] As none of the issues identified by Mr Singh raise seriously arguable questions, the threshold for leave is not met.
[40] Additionally, I accept Ms Dowse’s submission that none of the questions has wider application beyond Mr Singh’s particular case.
[41] The first question concerns whether the presumption principle applied in the particular circumstances of Mr Singh’s case. Similarly, question two asks whether the Court should have required an affidavit from the Tribunal given the particular nexus of factors which Mr Singh asserts. Questions three and four concern factual findings
about the Tribunal’s decision-making process in Mr Singh’s particular case, and the extent to which information about his wife’s previous immigration application and his children’s ages and educational needs was considered.
[42]None of these matters are questions of law or principle.
[43] Ms Clark also raises what is effectively a new matter/question of law in her submissions. She submits it is a matter of public importance to ensure the Tribunal is following the correct procedure when considering appeals. She further submits that procedural variation occurs, despite the guidelines set out in the Practice Note that applied in this case. In particular, she says the INZ officer provided the information to the Tribunal in the absence of an official request and failed to draw the information to the Tribunal’s attention.
[44] In response, Ms Dowse submits that s 226(3) of the Act appears to authorise an INZ officer to provide additional information to the Tribunal in circumstances where it is not requested by the Tribunal.
[45] The statutory context governing the obligations of the parties, including the relationship between the Act and the Practice Note, is set out in detail the substantive decision.19 As I noted in the substantive decision, the onus is on an appellant to establish their case and provide relevant supporting information; the Chief Executive must provide baseline information (as defined in the substantive decision); and the Tribunal may request further information but is not obliged to do so. Nothing in the statutory context prohibits an INZ officer from pre-emptively providing further information.
[46] It is also questionable as to whether there is jurisdiction under s 249B to grant leave to appeal on a ground for which leave was not granted in this Court and accordingly is not the subject of a judgment of this Court.20
19 At [35]–[44] and [59]–[80].
20 Hu v Immigration and Protection Tribunal (No 2) [2017] NZHC 1247 at [28].
[47] Finally, and in any event, regardless of the procedure followed, the Tribunal did receive the relevant information. The issue is academic for the purposes of this appeal.
Summary
[48] For all the above reasons I find that the leave threshold is not met as none of the questions posed by Mr Singh are seriously arguable. First, the Court was entitled to presume the Tribunal had considered all information before it. Second, the Court was not obliged to require an affidavit from the Tribunal and there was therefore no basis for drawing an adverse inference from the absence of such evidence. Third, the Tribunal did consider the additional information. Fourth, even if the Tribunal did not consider the additional information, this could not have made a material difference to the decision (as discussed in the substantive decision).
[49] If I am wrong, and any of the four questions are seriously arguable, I find that the threshold question of general or public importance is not met, and there is no other exceptional reason to grant leave.
Result
[50] The application for leave to appeal the decision of this Court in Singh v The Chief Executive of the Ministry of Business, Innovation and Employment [2022] NZHC 738 to the Court of Appeal is refused.
Costs
[51] As the successful party, the Chief Executive is prima facie entitled to costs. Following the substantive decision the parties were able to agree costs and a joint memorandum was filed. I expect the parties should also be able to agree costs on this application. A joint memorandum should be filed within 15 working days of the date of this judgment.
[52] If the parties are not able to agree costs, the Chief Executive is to file a memorandum within five days of the date of the joint memorandum. Mr Singh is to
file and serve his memorandum within five days of service of the Chief Executive’s memorandum.
[53] Memoranda are not to exceed three pages excluding any attachments. I will determine costs on the papers.
Gordon J
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