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

[2021] NZHC 787

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-000194

[2021] NZHC 787

UNDER

the Judicial Review Procedure Act 2016

UNDER

Sections 247 and 249 of the Immigration Act 2009

IN THE MATTER OF

a decision of the Immigration and Protection Tribunal, being [2020] NZIPT 504794 dated

14 January 2020

BETWEEN

RANJIT SINGH

Applicant

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

First Respondent

IMMIGRATION AND PROTECTION TRIBUNAL

Second Respondent

Hearing:

28 July 2020

Appearances:

M Clark for Applicant

K Stephen and E Cameron for First Respondent

Judgment:

14 April 2021

JUDGMENT OF DUFFY J

This judgment was delivered by me on 14 April 2021 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

SINGH v MBIE & IMMIGRATION & PROTECTION TRIBUNAL [2021] NZHC 787 [14 April 2021]

[1]                 The applicant, Ranjit Singh, seeks leave to bring proceedings in judicial review against the decision of the Immigration and Protection Review Tribunal (the Tribunal) delivered on 14 January 2020.1 The application is opposed by the first respondent, the Chief Executive of the Ministry of Business, Innovation and Employment (the Chief Executive). The second respondent, the Tribunal, abides the decision of this Court.

Background

[2]                 Mr Singh is unlawfully in New Zealand and is therefore liable to be deported.2 The last visa permitting him to be in New Zealand expired in 2019. Mr Singh has a number of driving convictions: driving with an excess breath alcohol in 2014 and 2015; driving a vehicle contrary to a zero-alcohol licence and refusing a request to supply a blood sample in 2018. Immigration New Zealand (INZ) granted him character waivers for the earlier convictions, which allowed him to remain in New Zealand. However, on the third conviction the character waiver was refused. Consequently, his application to renew his work visa in 2019 was declined.

[3]                 Mr Singh is an Indian national who first arrived in New Zealand with his wife Sukhjit Kaur in 2008. Between 2008 and 2018 Mr Singh and Ms Kaur have obtained temporary visas of different classes upon the expiry of each former visa. Ms Kaur gained various horticulture qualifications in order to upgrade her visa to an essential work skills visa. This visa was renewed in 2019, and it is now due to expire on 17 July 2022.

[4]                 Until renewal of Mr Singh’s visa was declined in 2019 his visa ran in tandem with Ms Kaur’s. Between November 2014 and May 2015 their two children (also Indian nationals) obtained student visas and lived with their parents in New Zealand. For a period between 2015 and 2016 they returned to India as Ms Kaur and Mr Singh’s income did not meet the threshold required to support their children’s student visas. The children then returned to New Zealand in 2016 under student visas and have remained in the country pursuant to those visas since then. Their visas also expire on 17 July 2022.

1      Immigration Act 2009, s 249: sets out requirements for leave to bring judicial review proceedings against a determination of the Immigration and Protection Review Tribunal.

2      Immigration Act, s 154.

[5]                 On 24 October 2019 Immigration New Zealand declined Mr Singh’s request for reconsideration of the decision on his application.

[6]                 On 11 November 2019 Mr Singh appealed his deportation liability to the Tribunal on humanitarian grounds. On 14 January 2020 the appeal was dismissed.

The Tribunal’s decision

[7]                 The question before the Tribunal was whether Mr Singh’s settlement in New Zealand with his family, and the best interests of his children, gave rise to exceptional humanitarian circumstances that would make it unjust or unduly harsh to be deported from New Zealand.3

[8]                 The Tribunal accepted that Mr Singh’s circumstances would cause him, his wife and their children disappointment and emotional upset. However, the Tribunal found that Mr Singh’s circumstances did not meet the high threshold required for exceptional circumstances of a humanitarian nature.4 Accordingly, the Tribunal declined the appeal.5

[9]The Tribunal had regard to the following considerations:6

(a)Mr Singh and Ms Kaur had lived in New Zealand for a significant period of time (11 and a half years) and have formed connections in this country;

(b)Mr Singh, his wife and their children entered and remained in New Zealand on temporary visas, without entitlement to or legitimate expectation of ongoing immigration status here;

(c)Mr Singh’s visa had expired over three months ago and the visas of his wife and children were to expire in two and a half years’ time without any guarantee of renewal;

3      Re Singh [2020] NZIPT 504794.

4      At [26] and [27].

5      At [28] – [30].

6      At [18] – [25].

(d)Mr Singh and Ms Kaur have no significant family nexus to New Zealand and their contribution through their work is not well beyond the norm;

(e)Mr Singh retains a strong nexus to India and is well familiar with the language, culture and lifestyle there;

(f)Mr Singh’s departure from New Zealand will cause difficulty for Ms Kaur and the children. They will have to choose whether to accompany him or remain in New Zealand:

(g)The nature of Mr Singh’s offending and his response to it are not exceptional humanitarian circumstances;

(h)Mr Singh’s departure from New Zealand will cause disruption to his children’s lives and loss; and

(i)If the children return to India with Mr Singh, they will be returning to their home country where they completed their early schooling and where their close family members live.

Relevant law

[10]              Mr Singh is not entitled to bring judicial review proceedings against the Tribunal’s decision as of right. Section 249(3) of the Immigration Act 2009 (the Act) provides that an applicant may only commence judicial review proceedings where the High Court grants leave to do so. For leave to be granted the appeal must raise some question of fact or law that is:7

(a)seriously arguable;

7      See Kumar v Minister of Immigration [2016] NZHC 1593 at [34]-[35] where Woodhouse J adopted the test set out in Waller v Hider [1998] 1 NZLR 412 (CA) at 413 to address the threshold under s 67 of the Judicature Act 1908: “The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal”.

(b)could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(c)is, by reason of its general or public importance or for any other reason, an issue that ought to be submitted to the High Court for review.

[11]              To meet these criteria the issues raised by the applicant must “go beyond the particular circumstances of the applicant”, or “raise an issue that suggests existing law should be revisited by the Court”.8 Where “any other reason” is invoked, the application for leave will only apply in “an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing”.9

Applicant’s position

[12]              Mr Singh contends leave to judicially review the Tribunal’s decision should be granted because the Tribunal did not adequately consider: (a) the best interests of the children; and (b) Ms Kaur’s circumstances. Further the Tribunal failed to request INZ files relating to Ms Kaur; and failed to consider the possibility of granting Mr Singh a temporary visa.

[13]              Ms Clark, on behalf of Mr Singh, submits the Tribunal gave no more than superficial consideration to the effect or consequence of Mr Singh’s deportation on his children. Further the Tribunal’s analysis did not conform with Hu v Immigration and Protection Tribunal which requires a rigorous analysis of each of the children’s individual interests.10 Ms Clark submits that the Tribunal fell short because there was no analysis of the impact of Mr Singh’s deportation on the children’s education, and how difficult it may be for them to reintegrate on their return to India and complete their education.

8      LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32].

9      Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] NZAR 662 at [7] – [8].

10     Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508.

[14]              Ms Clark further submits that there was no meaningful consideration of the circumstances that would eventuate if the children were to remain in New Zealand with Ms Kaur, including how Ms Kaur would care for the children emotionally, financially and practically.11

[15]              Ultimately, Ms Clark argues that the Tribunal failed to ask the correct question as the case law makes it clear that it must assess the impact of Mr Singh’s deportation on his wife and children.  Accordingly  the Tribunal  should  have  asked  whether Mr Singh should be deported in light of the best interests of his children, with those interests being a primary consideration.

[16]              Ms Clark also contends that the Tribunal adopted a procedurally unfair approach. The Tribunal in its decision stated that Mr Singh and his family had no legitimate expectation of ongoing immigration status in New Zealand However, the Tribunal did not identify how it approached this consideration and what facts would constitute a legitimate expectation. Pursuant to s 226 of the Act Ms Clark submits that the INZ files for Ms Kaur and the children were relevant to the appeal before the Tribunal, particularly in relation to the point that his family had a pathway to residence in New Zealand. As Ms Kaur’s file was not before the Tribunal it lacked necessary information which was relevant to its decision. Ms Clark submits that had the Tribunal reviewed Ms Kaur’s file it would have led to a different finding regarding the family’s legitimate expectation of remaining in New Zealand.

[17]              Ms Clark further submits that by failing to undertake a proper assessment of the children’s circumstances, and by failing to obtain the INZ files for Ms Kaur and the children, the Tribunal failed to consider the possibility of granting Mr Singh a temporary visa pursuant to s 216 of the Act, thus delaying his deportation from New Zealand.

11 In making this submission Ms Clark relies on O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 which referred to the Supreme Court decision in Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 which identified that the best interests of the child included questions as to who would be caring for the child, in what circumstances and what difficulties might be encountered.

[18]              Ms Clark then submits that it is appropriate to grant leave because the Tribunal has committed a breach of the United Nations Convention on the Rights of the Child by failing to properly consider and analyse the best interests of the children. This breach meets the high threshold set by s 249. Further, this failure as a matter of course must be of public importance. Similarly, it is also a matter of public importance to ensure that the Tribunal is following the correct procedure when considering appeals, and that the breach of s 226 of the Act requires a correction of the Tribunal’s practice.

[19]              In the alternative, Ms Clark submits that ensuring that the Tribunal make fair and proper findings on the evidence provided, and ensuring people faced with deportation proceedings have their hearing carried out in a procedurally fair manner will fit within “any other reason” per s 249.

Respondent’s submissions

[20]              Mr Stephen, on behalf of the Chief Executive, submits that Mr Singh cannot overcome the threshold in s 249 as he has not raised a seriously arguable question of law or issue. Regarding Mr Singh’s submission that the Tribunal failed to adequately consider the best interests of the children, Mr Stephen argues that the Tribunal was entitled to determine that a return to schooling in India would not be overly difficult given the children had received schooling in India previously. Further, any analysis beyond this was not required as Mr Singh did not identify any differences between the education systems in New Zealand and India before the Tribunal, and the Tribunal did not have a duty to inquire into these matters any further.12

[21]              Regarding Mr Singh’s submission that the circumstances of Ms Kaur ought to have been analysed closely as they impact on  the best interests of the children,     Mr Stephen accepts that consideration should always be given to affected immediate family members of a potential deportee on appeal. However, Mr Stephen argues that in this case the Tribunal did consider Ms Kaur’s circumstances, but simply determined that Ms Kaur could maintain contact with Mr Singh by long distance means.

12 See Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217 at [42] where the Court of Appeal held that s 228 of the Act was “perfectly clear” in providing that the Tribunal may seek information from any source but “is not obliged to seek any information … further to those provided by the appellant … and may determine the appeal or matter only on the basis of the information… provided by those persons”.

Moreover, Mr Stephen submits that although Ms Kaur’s financial and emotional capability to care for her children may be relevant, Mr Singh did not identify any substantial evidence or engage in any discussion on this issue before the Tribunal, and that again the Tribunal was under no obligation to inquire further. In short, without further evidence presented by Mr Singh,  the  Tribunal  was  entitled  to  find  that Mr Singh’s deportation would not reach the high threshold of “exceptional circumstances of a humanitarian nature”.

[22]              Mr Stephen submits that the Tribunal was under no obligation to request Ms Kaur’s Immigration New Zealand files The relevant practice note, at 6C2, defines which files the Chief Executive must provide to the Tribunal pursuant to s 226 of the Act, and these are limited to “any temporary visa file and/or residence file, and records and electronic notes held by Immigration New Zealand concerning the appellant”. Mr Stephen says that the Tribunal was only required to have a copy of files belonging to the appellant, Mr Singh. Practice Note 6C2 then states that “if the Tribunal requires other files or documents, including those held in the name of other family members, it will seek such files or documents pursuant to [6C3]”. Mr Stephen says that Mr Singh has failed to refer to 6C3 which states that “the Tribunal may require the Chief Executive to seek and provide information, but no party may request the Tribunal to exercise this power”. Accordingly, there was the Tribunal was under no obligation to seek Ms Kaur’s files.

[23]              In any case, Mr Stephen says that even if the Tribunal did not have Ms Kaur’s file, they did have a copy of a letter addressed to Ms Kaur which stated that she had the future option of applying for residence in New Zealand under the Skilled Migrant Category. Based on this letter and the history of temporary visas granted to Mr Singh’s family, the Tribunal was entitled to conclude that the opportunity to apply for a residence visa did not create a legitimate expectation of ongoing immigration status in New Zealand.

[24]              Mr Stephen also submits that the Tribunal did not err in declining to delay  Mr Singh’s deportation pursuant to s 216 of the Act to allow him to get his affairs in order. The Tribunal’s power under s 216 is entirely discretionary; therefore, the Tribunal cannot fail to consider exercising this power.

[25]              Overall, with regard to the above submissions, Mr Stephen submits that the issues raised by Mr Singh are personal to him and do not amount to a matter of public importance, nor do they fall into the “any other reason” category that would warrant the granting of leave. Accordingly, leave to bring proceedings should be declined.

Analysis

[26]              The application for leave to bring judicial review proceedings essentially raises the following key concerns:

(a)Was the Tribunal required to request a copy of Ms Kaur’s immigration file, and if so, should it have done so;

(b)Did the Tribunal address the best interests of Mr Singh’s children sufficiently, including the extent to which Ms Kaur’s circumstances as a solo parent in New Zealand would impact their interests; and

(c)Did the Tribunal err in declining to grant Mr Singh a temporary visa?

[27]              The first two concerns overlap. Whether the Tribunal should have obtained a copy of Ms Kaur’s immigration file (the first concern) is only relevant insofar as it would provide helpful information relevant to the Tribunal’s determination of the best interests of the children and how they and Ms Kaur would be affected by Mr Singh’s deportation (the second concern). In this respect it is important to note that the appeal was solely in relation to Mr Singh. His wife holds a visa that permits her to live and work in New Zealand until 17 July 2022 and the children each hold a student visa that permits them to live and study in this country until 17 July 2022. His deportation will mean a breakup of the family unit if his wife and children do not accompany him to India. Whether this breakup would be temporary (until at the latest the expiry of the current visas of the wife and children) or permanent (should Mr Singh’s wife obtain a residence visa which permits her and the children to remain in New Zealand permanently) is an additional issue of concern.

Ms Kaur’s Immigration file

[28]              The starting point is the “procedures for appeals and matters” in the Immigration Act which relevantly provide as follows:

226 Proceedings on appeal or matter

(1)It is the responsibility of an appellant or affected person to establish his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.

(2)Where an appeal is lodged, -

(a)    …

(b)    The chief executive must, in the time allowed by the Tribunal for the purpose, lodge with the Tribunal any file relevant to the appeal or matter that is held by the Department.

228  Information Tribunal may consider

(1)When considering an appeal or a matter, the Tribunal may seek information from any source.

(2)However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant or the affected person and the Minister, the chief executive, or a refugee and protection officer (as the case may be), and may determine the appeal or matter only on the basis of the information, evidence, and submissions provided by those persons.

229  Tribunal may require chief executive to provide information

(1) The Tribunal may require the chief executive to seek and provide information relevant to an appeal or matter, and the chief executive must comply, to the extent practicable, with such a requirement.

…

(3)No party to the appeal or matter may request the Tribunal to exercise its powers under this section.

[29]              The above provisions clearly place the onus on appellants to provide the Tribunal with all relevant information to advance their appeals. However, in addition to those provisions there are also the Tribunal’s practice notes. PN 4/2019 is relevant here as follows:

6C.     INFORMATION     AND     EVIDENCE     PROVIDED     BY IMMIGRATION NEW ZEALAND

…

[6C.2] Where an appeal is lodged, the chief executive must, in the time allowed by the Tribunal, lodge with the Tribunal any relevant files – (section 226(2)(b)). The relevant files include any temporary visa file and/or residence file, and records and electronic notes held by Immigration New Zealand concerning the appellant, where they are disclosable. If the Tribunal requires other files or documents, including those held in the name of other family members, it will seek such files or documents, pursuant to [6C.3]

(emphasis added)

[6C.3] The Tribunal may require the chief executive to seek and provide information, but no party may request the Tribunal to exercise this power – (section 229).

[30]              Mr Singh contends that pursuant to s 226(2) and PN 4/2019 Ms Kaur’s immigration New Zealand file was a file “relevant to the appeal” and was therefore required to be lodged with the Tribunal by the Chief Executive. In support of this submission Mr Singh relies on Practice Note 4/2019 at 6C2 and 6C3.

[31]              Mr Singh essentially argues that 6C2 implicitly creates a legitimate expectation that where other files or documents, including those held in the name of other family members, are reasonably required before the Tribunal can decide an appeal, it will seek such files or documents, pursuant to 6C3.

[32]              6C2 simply recognises the Tribunal’s discretionary authority to seek the files of other persons. However, when discretionary authority is vested in persons exercising statutory powers this authority is invariably subject to a requirement that it be exercised reasonably.13 To read such authority otherwise would be to contemplate that Parliament would tolerate such persons acting arbitrarily, or according to their own subjective views of whatever else might be required. Therefore, 6C2 arguably creates a legitimate expectation that where it appears reasonably necessary for the

13 That discretionary authority is generally subject to being exercised reasonably and to promote the policy and objectives of the legislation is well settled: See Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 [HL] cited in Mackenzie District Council v Electrocorp [1992] 3 NZLR 41.

Tribunal to require the files of other family members to be made available to it, this step will be taken.

[33]              This interpretation of 62C is arguably reinforced by the presence of 6C3. Together with s 229, the wording of 6C3 specifically precludes an appellant from requesting the Tribunal to obtain this type of information. Because appellants cannot make such requests themselves, they rely on the expectation created by 6C2 and 6C3, that when it is reasonably necessary the Tribunal will require such information to be provided to it.

[34]              Mr Stephen argues that the presence of 6C3 signals that there was no obligation for the Tribunal to obtain Ms Kaur’s files and therefore there can be no complaint that no such request was made. However, I doubt Parliament intended the Tribunal to exercise its power under 6C3 free of any limitation or supervision by this Court. The requirement that discretionary authority is to be exercised reasonably is typically one of the ways in which this Court exercises its supervisory jurisdiction over those who exercise statutory discretions.

[35]              Moreover, the Immigration Act makes specific provision for some powers provided therein to be exercised in the “absolute discretion” of the decision-maker, as defined in s 11. The inclusion of statutory powers that can be exercised at the absolute discretion of the decision-maker is unusual. Despite the inclusion of this extraordinary power in the Immigration Act, Parliament has not extended it to ss 226, 228 and 229. Nor do I consider it open to the Tribunal by Practice Notes to vest itself with absolute discretions.

[36]              This raises two seriously arguable questions. First, whether the Tribunal’s discretion to require further files and information pursuant to PNs 6C2 and 6C3 creates a legitimate expectation that it will exercise this discretion whenever it is reasonable for it to do so. The answer to this question is of general public importance because it will be relevant to every exercise of the discretions in 6C2 and 6C3. It is important that the scope of this discretion is identified, and that the Tribunal’s decision-making

properly complies with legal requirements for the discretion’s exercise. It follows that in principle I am satisfied this question warrants leave to grant judicial review. 14

[37]              Second, whether it is arguable in this case that the Tribunal would require the files of Ms Kaur. In principle, the Tribunal could be reasonably expected to require the files if they were relevant to the Tribunal’s assessment of the impact of Mr Singh’s deportation on the best interests of his children.  The impact of the deportation on  Mr Singh and his wife is of secondary importance. The interests of the children have a higher status under international obligations to which this country is a signatory. This is where the overlap between the first and second identified concerns comes into play.

The best interests of the children

[38]              Mr Stephen does not dispute that the Tribunal was required to consider the best interests of Mr Singh’s children in determining his appeal. Nor does he dispute that Ms Kaur’s circumstances were relevant to this assessment. What is disputed is whether the depth of the analysis undertaken by the Tribunal was sufficient for the purpose.

[39]              Mr Singh contends that the Tribunal only engaged in a superficial analysis of his children’s best interests when concluding that his departure would cause disruption and loss in his children’s lives. Ms Clark provided evidence in support of the application which shows that Mr Singh’s wages contributed to Ms Kaur’s ability to support the children on her essential work skills visa. The Tribunal recognised that Mr Singh had obtained his work visa with Ms Kaur’s support. As the holder of an essential skills work visa she was the family member with the greatest eligibility for a visa. INZ official documents in evidence show that there is a minimum income threshold level for a work visa holder to support dependent children. If the income goes below that threshold the parent/s and children may be liable to be deported. The INZ files in evidence show that Ms Kaur’s personal income was below the requisite

14 In terms of whether the general requirements of legitimate breach of expectations giving rise to a remedy in judicial review I am satisfied that the elements identified in Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [123] – [127] are arguably satisfied here.

threshold to support visas for the couple’s children. It follows that Ms Kaur and the children’s ability to remain in New Zealand until 2022 may be significantly affected by Mr Singh’s departure from this country. Thus, relevant information contained in Ms Kaur’s file was not available to the Tribunal. This is confirmed by the Tribunal’s omission to make any reference to the issue and the Tribunal’s assertion that the children and Ms Kaur can remain in New Zealand until their current visas expire in 2022.15 Thus the Tribunal’s ability to make a proper assessment of the best interests of the children was obstructed by insufficient information on how their father’s deportation might affect them. This is a fundamental issue that goes to inform whether various inadequacies in the decision-making process are present. Ms Clark’s arguments in this regard are premature. They cannot be evaluated properly until it is established whether Ms Kaur’s file should have been before the Tribunal.

[40]              Accordingly, I am satisfied that Mr Singh’s submissions raise legal questions of general or public importance that are relevant to the outcome of the Tribunal’s decision in this case. Leave to judicially review the decision on this basis is granted. It will be necessary once those questions are determined to then assess their impact in light of the arguments Ms Clark makes about the Tribunal’s decision.

[41]              Whether the Tribunal should have considered granting Mr Singh a temporary visa is a question restricted to the circumstances of this case. The argument is that had Mr Singh been granted a temporary visa there would have been time for the family to organise their affairs in a way that reduced the detrimental impact of his deportation on all of them. For example, the deportation could have been delayed until the children completed their education in New Zealand. Whether a temporary visa should be granted is something that will typically turn on the specific facts of each case. Absent evidence of arbitrariness or procedural flaws that take the decision-making beyond the circumstances of the subject family it is difficult to see how this type of concern would meet the test for leave under s 249. I am satisfied that this issue does not qualify for leave.

15 At [25].

Result

[42]              Leave is granted to judicially review the Tribunal’s decision on the following questions:

(a)whether there is a legitimate expectation the Tribunal will — on appropriate occasions where it is reasonable to do so — ask to view the INZ files of family members of an appellant; and if so whether that expectation was met here;

(b)if the expectation was not met, whether that affected the outcome of Mr Singh’s appeal.

[43]The parties have leave to file memoranda on costs.

Duffy J

Solicitors/Counsel:

Vallant Hooker & Partners, Auckland Crown Law, Wellington