Singh v Chief Executive of the Ministry of Business, Innovation and Employment

[2021] NZHC 1695

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-754

[2021] NZHC 1695

BETWEEN

MANPREET SINGH

Applicant

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Hearing:

7 July 2021

Appearances:

M L Clark for Applicant

S Deng and M Mortimer for Respondent

Judgment:

8 July 2021

JUDGMENT OF LANG J

This judgment was delivered by me on 8 July 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Vallant Hooker & Partners, Auckland Crown Law, Wellington

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 1695 [8 July 2021]

[1]    Mr Singh is an Indian national. He has been residing in New Zealand since 2013 under a series of temporary visas.

[2]    On 25 June 2020 Mr Singh was convicted on a charge of driving with excess breath alcohol. This rendered him liable to deportation under s 157(5) of the Immigration Act 2009 (the Act). On 27 July 2020 the immigration authorities served a deportation liability notice (DLN) on him. This was later reconsidered after Mr Singh sought judicial review of the initial decision to issue the notice.

[3]    After considering submissions advanced by Mr Singh’s counsel, a Compliance Officer employed by the Ministry of Business, Innovation and Employment (the Ministry) made a determination on 14 August 2020 that Mr Singh had not given good reason why deportation should not proceed. In this proceeding Mr Singh seeks judicial review of that decision.

[4]    Mr Singh has applied for discovery of documents held by the Ministry that he believes will assist his cause. The Ministry opposes the application.

The scope of the application

[5]    The Ministry has agreed to provide two of the categories of documents sought by Mr Singh and says that three others do not exist. The following aspects of the application for discovery remain to be determined:

(c)All records of training of an IO [Immigration Officer] as to:

(i)How to determine whether there are Good Reasons to set aside the DLN under section 157 of the IA [Immigration Act] 2009.

(ii)How to determine whether to grant a character waiver under INZ [Immigration New Zealand] Immigration Instructions/Operational Manual.

(iii)How to exercise a discretion under the IA 2009.

…

(e)All records which relate to the following cases [involving a] determination by the IO to give a character waiver or not to issue a DLN or to cancel a DLN under s 157 of the IA 2009:

(i)Singh v Chief Executive of Ministry of Business, Innovation and Employment [2021] NZHC 787;

(ii)Ochibulu v Immigration and Protection Tribunal and Minister of Immigration [2020] NZHC 792;

(iii)Kumar, Sandeep [2020] NZIPT 505031, IY (India) [2020] NZIPT 50474-, NARAYAN, Aklesh [2017] NZIPT 600383.

(f)All records which INZ have made during 2014 to 2021 in which INZ collates cases determined under s 157 of the IA 2009 or the grant of character waiver (“Operational Manual A1”) to assist an IO to make a decision which is fair and consistent with other decisions.

…

(i)All records contained in the website Advice to Immigration Staff ( immigration-system-operates/immigration-instructions/advice-to- immigration-staff) and any relevant Visa Paks articles from the INZ Resource                Library   us/resource-library#t=Visa+Pak&c=&a=&q=&s=dd&I-10  which relates to decisions under s 157 of the IA 2009:

Relevant principles

[6]    The Court has a discretion to order discovery in judicial review proceedings but this is not commonly done because discovery is often unnecessary. The guiding principle is whether discovery is necessary for the fair disposal of the application for judicial review.1

[7]    Documents sought in discovery must be in existence and relevant to issues raised in the proceeding. Furthermore, discovery will only be directed where it is proportionate to the subject matter of the proceeding. This reflects the fact that judicial review is intended to be a comparatively simple means by which to ensure that public powers have been exercised lawfully.2

[8]    The Ministry opposes the application because it contends none of the documents Mr Singh seeks are necessary for the fair disposal of the proceeding. It says Mr Singh will be given all the material held on its file regarding the decision

1      Smith v Attorney-General [2017] NZHC 2810 at [27].

2      BNZ Investments Ltd v Commissioner of Inland Revenue (2007) 23 NZTC 21,078 (HC) at [15].

subject to review. It says that none of the categories of documents he now seeks will assist the Court to determine his application for review of that decision.

Decision

[9]    Mr Singh will allege that the Compliance Officer erred in several ways in finding he had not given good reason why deportation should not proceed. He will contend the decision was unreasonable, that the Compliance Officer erred in law in his interpretation of the term “good reason” used in s 157(2) of the Act, that he failed to take into account relevant considerations and took into account irrelevant considerations.

[10]   I record my view at the outset that the present application is premature. The Ministry has not yet provided Mr Singh with a copy of its file or its evidence in opposition to the application for review. As a result, Mr Singh does not yet know whether there is any documentary record of the process the Compliance Officer followed and what factors he took into account when making the decision that is subject to review. It is difficult to see how Mr Singh can advance a meaningful application for discovery when he has no knowledge of those matters.

Training records

[11]   Mr Singh seeks internal training records held by the Ministry because he says they are necessary to ensure the Compliance Officer was aware of what information was important and to be given weight when he embarked on the decision-making process. Further, Mr Singh contends that, given the significance of decisions that immigration compliance officers make, “it is important to ensure that compliance officers are being adequately trained and are not acting arbitrarily and according to their subject views”.

[12]   This argument is misconceived. First, there is currently no evidence that the Compliance Officer who made the decision in Mr Singh’s case has ever read the materials in question and, if so, when that occurred. Secondly, the Ministry no doubt provides training materials to its staff to assist them to make informed decisions that comply with natural justice requirements as well as the requirements of the Act.

However, the materials have no legal effect. It will be for the Court to determine what factors were relevant in Mr Singh’s case and whether these were taken into account or not. It will also be for the Court to assess whether the determination was unreasonable having regard to the appropriate legal test. Internal training materials issued by the Ministry to its staff are unlikely to inform these issues.

[13]   Furthermore, as counsel for the Ministry points out, a decision made in accordance with the advice given in training materials may nevertheless be vulnerable to review. Similarly, a decision not made in accordance with such advice may still comply with the requirements of natural justice and s 157.

[14]This aspect of the application fails as a result.

Records relating to other cases

[15]   Mr Singh has modified his application under this heading to restrict the scope of discovery sought. He is now content to receive copies of Character Waiver Templates prepared for each of the cases he has named.

[16]   However, as counsel for the respondent points out, none of the decisions at issue in these cases were made under s 157. Rather, they related to visa applications or decisions regarding New Zealand residents. As such, they relate to decisions made in a different factual and legal context.

[17]   It will ultimately be for the Court to decide what assistance is to be gained from the approach taken in character waiver cases. For present purposes, however, I do not consider the material Mr Singh seeks is of sufficient relevance to warrant discovery being ordered.

[18]   In addition, the templates that Mr Singh seeks contain personal information about the applicants in those cases. Obvious privacy issues arise.  More importantly, I accept the Ministry’s submission that decisions made in this context are highly fact specific. This is demonstrated by the factors Mr Singh has listed in his statement of claim as being relevant in his case. The fact that other cases involving broadly similar

facts resulted in a different outcome will not assist the Court to determine whether the factors he lists were relevant to the decision made in his case.

[19]This aspect of the application also fails.

All records created by INZ between 2014 and 2021 relating to cases determined under s 157 of the Act or the grant of character waiver to assist an Immigration Officer to make a decision that is fair and consistent with other decisions

[20]   Mr Singh has also refined the ambit of documents sought under this heading. He now seeks data relating to visa applicants who have sought a character waiver after having been convicted of drink driving offences. He seeks information regarding the breath or blood alcohol readings of such persons together with information regarding any previous convictions they might have.

[21]   Again, I consider this material to be irrelevant. This proceeding does not relate to an application for a visa, in which an applicant may seek a waiver of the requirement to show good character.

[22]   In addition, Mr Singh will contend that the nature and seriousness of the conviction he sustained were but one aspect of the relevant factors the decision maker was required to take into account. Assuming this argument is correct all of the relevant factors in each case would need to be known for other cases to have any comparative value. Standing alone, the data Mr Singh seeks would be of very limited assistance.

[23]   Furthermore, it would be necessary for the Ministry’s staff to conduct a manual review of material held on numerous files to obtain the information Mr Singh seeks because it is not routinely collated. I consider this would be a disproportionate requirement given the lack of relevance such information would have.

[24]This aspect of the application also fails.

Advice to staff displayed on the Ministry’s website

[25]   Discovery of this information is arguably unnecessary because it is already accessible on the Ministry’s website. In addition, it is not known whether the decision

maker in the present case referred to the advice displayed on the internet and, if so, when. Furthermore, for reasons already given, any advice that the Ministry may provide to its staff on the internet is of little assistance in the present context. It will be for the Court to determine whether Mr Singh has established that the procedure used to make the decision fell short of the required standard and/or the decision was unreasonable.

[26]This aspect of the application therefore fails as well

Conclusion

[27]   I decline to order discovery of any of the material Mr Singh seeks. The application is accordingly dismissed.

Costs

[28]   The respondent is the successful party and would ordinarily be entitled to costs on a category 2B basis together with disbursements as fixed by the Registrar. If counsel cannot reach agreement on costs they can file concise memoranda in the usual way and I will determine costs on the papers.

Lang J