Singh v Immigration and Protection Tribunal

[2014] NZHC 868

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1982 [2014] NZHC 868

BETWEEN

AVINASH SINGH

Applicant

AND

THE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent

THE MINISTER OF IMMIGRATION Second Respondent

Hearing:	30 April 2014
Appearances:	Applicant in Person R Savage for Defendant
Judgment:	30 April 2014

JUDGMENT OF COOPER J

Solicitors:

Meredith Connell Auckland

Copy to:

A Singh, 1/36 Harding Avenue, Mt Wellington, Auckland

SINGH v THE IMMIGRATION AND PROTECTION TRIBUNAL [2014] NZHC 868 [30 April 2014]

[1]      The applicant, Mr Singh, has filed an application for leave to appeal to the

Court of Appeal on a point of law under s 246 of the Immigration Act 2009 (the Act).

[2]      He originally filed an application for judicial review and an application for leave to appeal under s 245 of the Act in relation to a decision of the Immigration and Protection Tribunal (the Tribunal) dated 22 February 2013.

[3]      The Tribunal had confirmed a decision of an Immigration Officer to decline the applicant’s residence application.  The Tribunal also rejected his contention that special circumstances existed that warranted consideration by the Minister of Immigration as an exception to the residence instructions under s 188(1)(f) of the Act.  The only issue which was pursued before me was as to the appropriateness of the refusal to recommend special circumstances to the Minister.

[4]      Both the application for leave to appeal and the application for review were heard by me on 28 August 2013.  On the following day I delivered a judgment in which I granted the application for leave to appeal under s 245 of the Act, but dismissed the appeal.  I also declined the application for review.1

[5]      As I noted in my decision, persons who are not New Zealand citizens can only enter and remain in New Zealand pursuant to a visa.   The Act provides for various classes of visa.  One such class is the “residence class visa”.  Decisions made on applications for residence class visas are made by the Minister or by an Immigration Officer and they must be made in terms of the Residence Instructions applicable at the time the application is made.   Any discretion exercised must be made in terms of those instructions.

[6]      Where an application for a residence class visa is declined there is a right of appeal to the Tribunal and that right was exercised by Mr Singh in the present case. In determining an appeal in relation to a residence class visa decision the Tribunal is empowered  to confirm  or reverse the decision, but in doing so must  apply the residence instructions.   In some cases the matter can be referred back for a new

determination, but another alternative, relevant here, arises under s 188(1)(f) which

1      Singh v The Minister of Immigration [2013] NZHC 2229.

enables the Tribunal to confirm the decision under appeal as having been correct in terms of the residence instructions, but to recommend at the same time that the “special circumstances” of the applicant warrant consideration by the Minister as an exception to those instructions.

[7]      The applicant in his present application for leave to appeal to the Court of Appeal focuses on issues concerning his ability to have access on an ongoing basis to  his  child,  who  currently  resides  with  the  applicant’s   former  partner  in New Zealand.   The issue raised is whether Mr Singh would be able to have any realistic continuing contact with his son if he were not in New Zealand.

[8]      It is said that the proceedings to this point have been affected by counsel error inasmuch as the inability of the child to visit the applicant if he is residing in Fiji were not properly raised before the Tribunal.  In this respect it is relevant to note that in paragraph [39] of its decision the Tribunal noted:

Clearly  there  will  be  some  disruption  to  the  relationship  between  the appellant and his son if the appellant is not able to remain in New Zealand. However, any separation between father and son need not be permanent and can be managed.  They can keep in contact with each other via telephone, letters and the internet.  Subject to funds and his mother’s consent the son would be able to visit his father in Fiji.

[9]      Mr Singh complains that it is most unlikely that the son would be able to visit him  in  Fiji,  that  that  was  a matter  on  which  the Tribunal  did  not  have proper evidence and in respect of which it did not itself make any proper inquiry so as to justify the statement being made.   He has referred as part of his argument to an observation that I made in a footnote to paragraph [16] of my judgment, that difficulties the applicant had faced in maintaining a relationship with his child after separation were not the subject of evidence in the record.

[10]     Ms Savage has pointed out that on 7 November 2012 the Tribunal wrote to the applicant on the basis that he could provide further information about his relationship with his son.  The applicant responded by providing further submissions, a letter from his counsel in the Family Court, school certificates of the son, letters from the son’s school principal and video footage and photographs of the applicant

with his son;  all those matters were referred to in paragraph [44] of the Tribunal’s

decision.

[11]     Consequently, there was clear opportunity for the applicant to have raised the issue that he now seeks to pursue, in the processes that were followed before the Tribunal.  The difficulty that he now has to confront is that under s 246(2) of the Act in determining whether to grant leave to appeal I need to have regard to whether the question of law 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 for its decision.

[12]     In his submissions in support of the present application the applicant has identified potential questions of law as follows.  In paragraph 43 of his submissions he said:

Based on the present facts of the case and the decision of the tribunal on the question of law that is of public importance is whether the tribunal could insert its own facts or evidence without allowing the applicant a right to be heard?  Whether the Tribunal’s decision without any evidence is a breach of natural justice?  Whether [the] child [as] a primary consideration was taken into consideration when the tribunal gave its decision especially separation from his father that would be permanent?

[13]     I do not consider that any of those questions raise questions which justify a further  appeal  in  terms  of  the  statutory  considerations  of  s 246(2)  of  the Act. Broadly speaking I consider the questions raise matters that may be described as mixed questions of fact and law.  But they can also be characterised as raising issues about the application of reasonably settled law to the particular facts of this case. Whether in the circumstances the Tribunal allowed the applicant a right to be heard is hardly a question of law, but to the extent it is the record plainly shows that he was granted a right to be heard and, in particular, on the very issue of his relationship with the child and continuing arrangements that were to apply in respect of access. To ask whether the Tribunal’s decision was made without any evidence is a breach of natural justice is really not a question which properly arises on the facts of this case. The Tribunal dealt with all the facts that were brought before it by the parties and can hardly be criticised as having breached natural justice for that reason.

[14]     The final question whether the child was taken into account as a primary consideration when the Tribunal gave its decision, since separation from the father would be permanent is a question couched in a way that is also dependent on a conclusion that separation between Mr Singh and his son would be permanent.  But that is a factual issue and not a question which qualifies for further consideration under s 246(2) of the Act.  Nor do I think on these facts there is any “other reason” within the purview of the section that ought to be submitted to the Court of Appeal for its decision.

[15]     In all the circumstances I have determined that the appropriate course is to refuse leave to appeal to the Court of Appeal.