Singh v Chief Executive of the Ministry of Business, Innovation and Employment
[2021] NZHC 2471
•20 September 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000754
[2021] NZHC 2471
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review under Part 1 of the Judicial Review Procedure Act 2016
AND IN THE MATTER
of a decision made under section 157 of the Immigration Act 2009
BETWEEN
MANPREET SINGH
Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Respondent
Hearing: 20 September 2021 (by VMR) Appearances:
R J Hooker for Applicant
M J Mortimer-Wang and S Perera for Respondent
Judgment:
20 September 2021
Reasons:
20 September 2021
REASONS FOR JUDGMENT OF VENNING J APPLICATION FOR REHEARING/ADJOURNMENT
This judgment was delivered by me on 20 September 2021 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Vallant Hooker & Partners, Auckland
Crown Law Office, Wellington
SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 2471 [20 September 2021]
Introduction
[1] The applicant Mr Singh faces deportation from New Zealand. He has brought judicial review proceedings seeking to review the decision to issue him with a deportation notice. The judicial review hearing is scheduled for hearing on 29 September 2021.
[2] In a decision delivered on 9 September 2021 Moore J dismissed an application by Mr Singh to vacate the fixture.1 Mr Singh asks this Court to review that decision and to rehear the application.
Orders/directions
[3] At the conclusion of the hearing this morning I advised counsel the application was in part successful. I granted leave to amend the claim if leave was necessary and adjourned the fixture date from 29 September to 7 October 2021.
[4]I also made amended timetable directions as follows:
(a)the respondent is to file and serve a statement of defence to the amended claim, which is already before the Court, by 24 September 2021;
(b)by the same date, 24 September 2021, the respondent is to file and serve any affidavit evidence;
(c)the applicant is to file and serve any affidavit evidence in reply and his submissions in support of the applicant’s substantive case by 1 October 2021;
(d)the respondent is to file and serve the respondent’s submissions in response by 5 October 2021;
1 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2349.
(e)the substantive application for judicial review will be heard on 7 October 2021 at 10.00 am.
Costs
[5] I reserved the issue of costs. Even though the applicant had succeeded in part, I reserved costs to follow the outcome as the amendment to the timetable was principally because of the applicant’s failure to comply with existing timetable directions.
[6]I advised counsel that my reasons would issue later. These are the reasons.
Background
[7] Mr Singh is a temporary entry class visa holder. He was initially granted a student visa. Later he was granted a temporary work visa. As such he is subject to the provisions of s 157 of the Immigration Act 2009. In particular, he is liable for deportation if the Minister or his or her delegate considers there is sufficient reason for deportation. Sufficient reason under s 157(5) includes, but is not limited to, conviction for a criminal offence.
[8] In June 2020 Mr Singh was convicted for a drink driving offence. The immigration authorities served a deportation notice on him on 27 July 2020. Mr Singh challenged the decision. The decision to issue the deportation notice was upheld by a duly authorised immigration officer in a decision dated 14 August 2020. Mr Singh then issued judicial review proceedings.
[9] Those proceedings were resolved by agreement on the basis that the defendant would reconsider the matter afresh.
[10] On 15 March 2021 a different immigration officer determined that Mr Singh’s deportation should proceed. On 21 April 2021 Mr Singh then issued these further judicial review proceedings.
[11] On 8 July 2021 Lang J declined an application Mr Singh had made for discovery.2 On the previous day, Lang J had issued a minute allocating the fixture for the judicial review proceedings on 29 September 2021. He also made timetable directions. Lang J had directed that affidavits in support of the application were to be filed by 7 August 2021, and those in opposition by 21 August 2021. Reply affidavits were to be filed by 28 August 2021. Submissions in support and in opposition were to be filed by 15 and 22 September 2021 respectively.
[12] Instead of complying with the timetable directions, Mr Singh then applied, on 30 July 2021, for leave to appeal Lang J's decision declining to make the discovery orders. Lang J declined that application.
[13] On 4 August 2021 Mr Singh sought to vacate the fixture scheduled for 29 September 2021. On 17 August 2021, Lang J declined to vacate the fixture.
[14] On 1 September 2021 Mr Singh then filed an application, again seeking to vacate the fixture. On 9 September 2021 Moore J delivered an on the papers judgment declining Mr Singh’s application to vacate the fixture.3
[15] On 13 September 2021, Mr Hooker then filed a further application on behalf of Mr Singh, seeking a rehearing of the application to vacate the fixture. He submitted that the application should be considered by a different judge. On 15 September 2021 Moore J directed that the application for rehearing was to be set down and heard before a different judge. I have conducted that rehearing and heard submissions from Mr Hooker and from counsel, Mr Mortimer-Wang and Ms Perera, for the respondent, who opposes the application.
Jurisdiction
[16] The application for rehearing is made under the High Court Rules 2016, r 7.49. Rule 7.49 provides that a party affected by an interlocutory order may apply to the Court to vary or rescind the order if they consider the order or decision to be wrong.
2 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 1695.
3 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 1.
Mr Singh has brought his application within the time required under rule 7.49(3)(b). Further, in his minute of 15 September Moore J directed the application be heard by another judge.4 If satisfied that the order or decision is wrong, I have jurisdiction to vary or rescind the decision.5
[17] There are two preliminary points. Rule 7.52 provides that a party who fails on an interlocutory application must not apply again for the same or a similar order without first obtaining the leave of a judge. Leave may only be granted in special circumstances. Although Mr Singh's first application to vacate the fixture was made by memorandum it was treated by the Court as an application and Lang J delivered a decision on it. In doing so, the Judge treated the request for the adjournment as a formal application to vacate the fixture. The application before Moore J was effectively Mr Singh's second application to vacate the fixture. It was made without leave being obtained under r 7.52. On that basis, it is arguable that there was no jurisdiction to bring the second application which was dismissed by Moore J.
[18] However, as the respondent did not take the point and engaged with the application, I propose to deal with the present application on its merits rather than dismiss it on a jurisdictional point.
[19] The second point is the statutory context of this application. Mr Singh’s application to vacate the fixture is to be considered in the context of Parliament’s intention as expressed in the provisions of the Immigration Act. Section 247 of the Immigration Act provides a strict time limit for commencing judicial review proceedings. Section 250(b) directs the Court to hear and determine an application for review (such as Mr Singh's) as if granted a priority fixture. Parliament's intent is clear. It is that applications for judicial review under the Immigration Act will be afforded priority and heard promptly. Mr Singh’s application for adjournment is to be considered in that context.
4 HCR 7.49(5).
5 HCR 7.49(6).
Application
[20] In support of the application for rehearing Mr Hooker raised several points. They can be summarised under three broad heads as:
(a)Moore J was incorrect to rule that leave was required to file an amended statement of claim and to decline leave to file it. If the amended claim is accepted for filing it will need to be responded to. There will not be sufficient time to address the consequential pleading and evidential issues before the scheduled fixture.
(b)Mr Singh intends to seek leave to appeal Lang J’s ruling dismissing his application for discovery. The substantive fixture should not proceed until that appeal is heard.
(c)The respondent disclosed its full file on 17 July 2021. The Auckland lockdown has prevented Mr Singh, who is an essential worker, from preparing his affidavit. He says he does not have the skills or ability to consider the extensive material disclosed by the respondent with his counsel. Mr Singh filed two affidavits in support of his application which was dismissed by Moore J and a further affidavit in support of this application in which he sets out his position and his response to that judgment. Mr Hooker submits the Judge was wrong to dismiss the practical difficulties Mr Singh faced. It was Mr Singh’s fundamental right to properly meet and discuss his case with counsel.
The proposed amended pleading
[21] Like Moore J I deal first with the issue of the proposed amended statement of claim. The original statement of claim in this proceeding challenged the decision of 15 March 2021 that the deportation was to continue. It alleged error of law; that the decision maker failed to take account of relevant considerations and considered irrelevant considerations; and that the decision was unreasonable. All are well understood as grounds for judicial review.
[22] In the proposed amended statement of claim Mr Singh seeks to add an additional cause of action. He alleges that the respondent breached the terms upon which the first proceedings were settled. He says that the new cause of action was only known to the applicant after disclosure of the Immigration New Zealand file on 17 July 2021 and pleads the settlement agreement was:
[t]hat the decision under s157 would be made by a different IO [Immigration Officer] than had made the decision of 14 August 2020. The decision would be made by a person with no prior involvement in the Applicant’s case at a different branch to the one that handled the decision dated 14 August 2020. The new decision maker would be given the information [Mr Singh] originally submitted under s 157(2), but [Mr Singh] would be able to submit any updating information and/or submissions within 7 days of the court directing reconsideration.
[23] Mr Singh alleges that in breach of the agreement the Immigration Officer had the police file before him and considered and was also influenced by material from the first application. He seeks a declaration that the decision of 15 March 2021 was made in breach of the settlement agreement and an order setting the decision.
[24] The respondent denies that breach and has attached emails to his memorandum in opposition to the current application which confirm the Immigration Officer was directed to confine his consideration to the information provided to Immigration New Zealand for the GRR (good reasons review) and any updating information provided to him. He was directed to exclude from his consideration the information in relation to the previous decision.
[25] Moore J took the view that r 7.7 of the HCR applied and that leave was required for the amended claim to be filed as the date for close of pleadings had passed.6 The Judge was not inclined to exercise his discretion to grant leave. Moore J considered that there was nothing to suggest that the Immigration Officer had acted otherwise than in accordance with the direction to consider the material which pre-dated the first decision. Moore J also considered that, even if leave were granted, the respondent would not need very much time to respond so there would be no need to vacate the fixture even if leave had been granted.
6 HCR 7.7.
[26] In support of the current application Mr Hooker has submitted the rules relating to close of pleading do not apply to judicial review proceedings. He referred the Court to a decision of Cooke J in Ngāti Tama ki Te Waipounamu Trust v Tasman District Council where the Judge observed:7
[17] … Under s 9(7) of the Judicature Amendment Act 1972, an application for judicial review was to be “in accordance with rules of Court”, which was sometimes taken to be a reference to the High Court Rules in totality. Under the Judicial Review Procedure Act, it may be that not all High Court Rules have automatic application. The Judicial Review Procedure Act appears to say more clearly which rules apply. In particular, s 8(2) of the Judicial Review Procedure Act applies Part 5 of the High Court Rules in relation to the commencement and filing of an application for judicial review, and s 10(3) provides Part 5 applies to the filing of a defence. There is no equivalent of s 9(7) of the Judicature Amendment Act to brings in all the other rules. Questions of procedure are regulated by the case management conference contemplated by s 13, which encompasses the orders that the Court can make under s 14(1). …
[27] Part 30 of the HCR and particularly r 30.3 confirms an application for judicial review is to be commenced by statement of claim and notice of proceeding. Section
13 of the Judicial Review Procedure Act 2016 provides for case management conferences within such proceedings. Those provisions do not necessarily preclude the operation of the other High Court Rules. Their purpose has been said to confirm the desired nature of judicial review as “a relatively simple, untechnical and prompt approach”.8
[28] Cooke J made the same observation shortly after the paragraph Mr Hooker relies on. He said:
[18] Whilst it is not clear that this was a deliberate change, the authors of McGechan on Procedure have noted it, stating that the provisions of the Act would be expected to prevail over the High Court Rules if there was a conflict.
[8] This interpretation means that the relevant High Court Rules may apply, but subject to the Court's control under ss 13 and 14.
[19] This approach seems to me to be the preferable one. It is consistent with the general approach to judicial review procedure, and with the view expressed in earlier Court of Appeal decisions that the former s 10 (now ss
13 and 14) was to some extent intended to be a procedural code for judicial review. It allows judicial review proceeding to be managed in the appropriate
7 Ngāti Tama ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166.
8 New Zealand Institute of Chartered Accountants v Chartered Institute of Management Accountants [2015] NZHC 818, [2015] 3 NZLR 692.
way given what the case involves. The control is important to achieving the “simple, untechnical and prompt” approach to review.
[29] The short point is that the intent of the legislation and rules is that judicial review is to be a relatively simple process. Procedural complexities which can bedevil an ordinary civil proceeding should be avoided. Unfortunately that objective has not been met in the present case. In my judgment, the general High Court Rules will apply, but subject to any necessary amendments to meet the need for simplicity of procedure in judicial review proceedings. It follows there is no reason why the requirement for leave to take a further step after the setting down date should not also apply to judicial review proceedings.
[30] However, it is unnecessary to make a formal ruling on the point as in this case the matter can be dealt with practically. The amended pleading raises a short point which Mr Mortimer-Wang confirmed can be responded to shortly. For that reason I grant leave to the applicant to file the amended claim on terms. The terms are compliance with the timetable order of the Court.
[31]I then address the substantive application which is for vacation of the fixture.
The discovery issue
[32] Mr Hooker has now confirmed that an application has been made to the Court of Appeal for leave to appeal the decision of Lang J regarding discovery.9
[33] I do not consider that application for leave to appeal to be a reason to adjourn the substantive fixture scheduled for hearing in this Court. Leave may or may not be granted by the Court of Appeal. The requirement for leave is important. Leave will only be granted where the significance of the arguable error of fact or law is important.10 The intent behind the amendment to the Senior Courts Act 2016 and the inclusion of the requirement for leave was to avoid unnecessary delays in the progress of substantive proceedings. Such reasoning is a fortiori in the case of judicial review proceedings.
9 Apparently on Sunday, 19 September 2021.
10 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].
[34] Further, Mr Hooker is under a misapprehension when he submits that Lang J accepted that he had applied the incorrect legal test. As Mr Mortimer-Wang submitted, Lang J’s decision is clear in its terms. In declining leave to appeal the Judge stated:11
I do not see how it can seriously be argued that I applied the wrong test, or reached the wrong decision, when the ultimate reason for the application being declined was lack of relevance.
That was not an acknowledgement by the Judge that he had applied the wrong test as Mr Hooker suggested.
[35] Mr Hooker and the applicant place emphasis on the issue of the phrase GRR which is now understood to refer to a good reasons review. But the applicant has been aware of that for some time. As Mr Treadaway deposed in his affidavit of 24 June 2021:
I understand Mr Singh is seeking judicial review of a decision made by an immigration officer dated 15 March 2021, determining that Mr Singh’s deportation liability remains. This type of decision is commonly referred to as a “good reasons review” or GRR.
[36] The statutory language is “sufficient reason”. The consideration required under s 157(2) of the Immigration Act inevitably requires consideration of whether there are good reasons as to why deportation should not proceed. The Court will have the relevant decision before it. The judicial review will be determined on whether the errors of law and other causes of action in relation to the review claim are made out. Further discovery on this point is not required.
[37] Mr Hooker sought to argue that the emails recently attached to counsel’s memorandum in reply underlined the need for discovery as they had not been included with the Immigration New Zealand file. However, I agree with Mr Mortimer-Wang’s submission that only documents relevant to the pleaded claim are discoverable. The emails were not relevant before the amended claim raising the new claim was accepted for filing.
11 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2308 at [5].
Practical considerations
[38] Mr Hooker next submitted that Mr Singh had had inadequate time to prepare for the hearing, particularly because of the constraints under lockdown. That submissions lacks merit. Lang J’s directions required substantive affidavits in support to be filed by 7 August 2021. Mr Singh failed to comply with that direction. If he had complied with the direction the difficulties which he now says arise as a consequence of the lockdown would not have occurred.
[39] The Immigration New Zealand file was disclosed on 17 July. While there were a substantial number of documents, as Mr Mortimer-Wang submitted, a significant portion of the file was information that had been previously provided by Mr Singh or his counsel to Immigration New Zealand.
[40] Further, despite the lockdown Mr Singh has been able to file three affidavits in support of his various interlocutory applications on 3, 6 and 13 September. He has also filed an affidavit on 19 September 2021 in support of his application for leave to appeal to the Court of Appeal. If the same attention had been given to addressing the substantive issues this case would have been ready for hearing on 29 September 2021.
[41] Mr Singh also suggests as a further reason to support the adjournment that he is not able to review the documents with counsel as he lacks the relevant skills or ability to review the documents. The Court notes that his student visa was granted to enable him to undertake tertiary study namely a National Diploma in Business (Level
5) at the Cornell Institute of Business and Technology. Mr Singh was subsequently granted a further visa to undertake the National Diploma in Business (Level 6). He currently works as a warehouse manager. He should have sufficient ability to consider the documents, to the extent necessary.
[42] In any event the application for judicial review will largely be dealt with on the basis of counsels’ submissions and the documentation which counsel can review rather than any evidence that Mr Singh may wish to give to support the challenge to the decision.
Result
[43] For those reasons the applicant fails to satisfy the Court Moore J was wrong to dismiss his application to vacate the fixture.
[44] However, I accept that the practical position is that there is now insufficient time to ready the case for hearing on 29 September 2021. The position is unsatisfactory. It has been created by the applicant. It is not acceptable that by his own default and failure to comply with timetable directions of the Court Mr Singh has created the situation where the Court is effectively forced to adjourn the fixture.
[45] After discussion with counsel I confirm that the Court is able to accommodate a fixture the following week, on Thursday, 7 October 2021. For that reason, rather than the merits of the current application, I have determined to amend the existing timetable orders to ensure the substantive fixture proceeds on that day. I make it clear however that if the applicant fails to comply with the directions at [4] above, the Court will determine the application on the basis of the material before it, including any submissions filed by the respondent.
Venning J
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