Singh v Minister of Immigration

[2013] NZHC 2229

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1982 [2013] NZHC 2229

IN THE MATTER

of an intended appeal from a decision of the Immigration and Protection Tribunal

BETWEEN

AVINASH SINGH

Appellant

AND

THE MINISTER OF IMMIGRATION

Respondent

CIV-2013-404-1983

IN THE MATTER

of an application for judicial review of a decision of the Immigration and Protection Tribunal

BETWEEN

AVINASH SINGH

Plaintiff

AND

THE IMMIGRATION AND PROTECTION TRIBUNAL

First Defendant

THE MINISTER OF IMMIGRATION
Second Defendant

Hearing:

28 August 2013

Appearances:

S McKenna and J Donald for Appellant/Plaintiff

A Longdill for Respondent/First and Second Defendant

Judgment:

29 August 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

29 August 2013 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SINGH v THE MINISTER OF IMMIGRATION [2013] NZHC 2229 [29 August 2013]

Solicitors:

Grantham Law, Taupo

Meredith Connell, Crown Solicitors, Auckland

Introduction

[1] On 22 February 2013 the Immigration and Protection Tribunal (“the Tribunal”) confirmed a decision of an immigration officer to decline an application made by the appellant1 for residence. The Tribunal considered that the decision was correct in terms of the applicable residence instructions. The Tribunal  further rejected a contention made by Mr Singh that special circumstances existed which warranted consideration by the Minister of Immigration (“the Minister”) as an exception to the residence instructions under s 188(1)(f) of the Immigration Act 2009 (“the Act”).

[2] Mr Singh accepts that the Tribunal’s finding that the immigration officer correctly declined his application for residence, but challenges the Tribunal’s refusal to exercise its power under s 188(1)(f) of the Immigration Act 2009 to recommend that his special circumstances are such as to warrant consideration by the Minister of Immigration as an exception to applicable residence instructions.2 Mr Singh also claims that the Tribunal failed to apply the correct legal test to determine whether his circumstances are special, and that it failed to consider relevant matters. The special circumstance Mr Singh relies on is his New Zealand-born son, and the detrimental

effect it will have on his son if he is required to leave New Zealand.

[3] Mr Singh has commenced both an application for review and made  an application for leave to appeal under s 245 of the Act. The application for leave is opposed by the respondent on the basis that no question of general or public importance is raised by the intended appeal. Given the filing of the application for review the preferable course to follow is to address the substantive issues raised and deal with the question of leave as a consequential issue.

Background facts

[4] Mr Singh is a 33 year old citizen of Fiji. He first came to New Zealand in the early 1990s to attend secondary school.  After finishing school, he returned to Fiji.

1       Mr Singh is both an appellant and a plaintiff in the two proceedings dealt with in this judgment. I refer to him as “the appellant” when not using his name.

2       Under  s  23  of  the  Immigration Act,  the  Minister  of  Immigration  must  classify  residence instructions.

In early 2003, Mr Singh was engaged to be married to a New Zealand citizen. He applied for New Zealand residence under the Family (Partnership) category in August 2003. However, his wife withdrew her sponsorship in April 2004 and he was declined residence.

[5]    Mr Singh married again in April 2005, also to a New Zealand citizen.  He and his wife moved from Fiji to New Zealand in June 2005, Mr Singh entering on a one- year work visa, which was later extended for a further two years. His wife sponsored his second application for residency, made on 7 December 2005, and in March 2006, the couple had a son. However, Mr Singh and his wife separated in April 2008, and his wife withdrew sponsorship.

[6]  Mr Singh then obtained a further extension of his work visa enabling him to stay in New Zealand until 1 October 2009. Just a few days before expiry of that visa, Mr Singh applied again for residency, this time sponsored by another new partner. Immigration New Zealand (“INZ”) investigated that relationship, and formed the view that it was not genuine. On that basis, Mr Singh’s application for residency was declined by letter dated 19 July 2011. Mr Singh appealed that decision to the Tribunal on the ground that it was not correct in terms of the applicable residence instructions or, if correct, his special circumstances are such that an exception to those instructions should be considered.

The Tribunal’s decision

[7]  The Tribunal determined that the decision to decline Mr Singh’s application was correct. As noted, this decision is not challenged by Mr Singh and it need not be further discussed.

[8] In respect of Mr Singh’s claim that his special circumstances warranted consideration of an exception being made, the Tribunal stated the law as follows:3

Whether an appellant has special circumstances will depend on the particular facts of each case. The Tribunal balances all relevant factors in each case to determine whether the appellant’s circumstances, when considered cumulatively, are special.  Special circumstances are “circumstances that are

3       Re Singh [2013] NZIPT 200739 at [46].

uncommon, not commonplace, out of the ordinary, abnormal”; Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J.

[9] After outlining Mr Singh’s personal information  and  the  relationship  he claimed existed with his sponsor, the Tribunal discussed the fact that it is required, pursuant to art 3 of the United Nations Convention on the Rights of the Child (UNCROC) to have regard to the best interests of Mr Singh’s child as a primary consideration, citing Ye v Minister of Immigration.4 The Tribunal also noted that parenting orders in respect of Mr Singh’s son were varied in October 2010, with an interim order made placing Mr Singh’s son in the day to day care of his mother, and allowing Mr Singh regular unsupervised contact every weekend on Saturdays and

Sundays. This order was to be reviewed in April 2013.

[10]  The Tribunal accepted that Mr Singh has a strong bond with his son, which he wished to maintain by remaining in New Zealand, and noted that Mr Singh was concerned that if he did not reside in New Zealand he would not be able to comply

with the interim parenting order. Discussing these special circumstances, the Tribunal said:5

The Tribunal takes into account as a primary consideration the interests of the appellant’s son. While he is presently in the day-to-day care of his mother, he enjoys a close relationship with his father. The son’s interests are best served by him maintaining an ongoing relationship with both his parents. 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. Immigration New Zealand records indicate that he has been there on five occasions as an infant. It has not been demonstrated that the son’s mother would prevent him from seeing his father in the future.

[11] The Tribunal then referred to a concern raised by Mr Singh that if he left New Zealand he would be prosecuted for not complying with the interim parenting order. The Tribunal said that his concern was misconceived. The Tribunal noted that Mr Singh’s asserted relationship had been found not to be genuine, that he had lived in New Zealand for seven years (without a current visa for a significant portion of that

4       Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24].

5 At [59].

time), and that he had not demonstrated any particular skill-set or qualification that could contribute to the New Zealand economy. The Tribunal further noted that, other than his son, Mr Singh’s immediate family no longer reside in Fiji. His family have been supporting him, and the Tribunal considered that they were likely to continue to support him financially, if necessary, if he were to return to Fiji. The Tribunal concluded that cumulatively, Mr Singh’s circumstances did not amount to special circumstances warranting consideration by the Minister of an exception to residence instructions.

[12]     The appeal was dismissed. Submissions on appeal Appellant’s submissions

[13] Mr McKenna, for Mr Singh, submitted first that the Tribunal failed to apply the correct legal test to determine whether his circumstances are special for the purposes of s 188(1)(f). He argued that the best interests of the child are a primary consideration under art 3(1) of UNCROC, and that art 9(1) of that Convention makes it clear that the best interests of the child are that the child not be separated from his or her parents. In order to satisfy New Zealand’s international obligations, therefore, Mr McKenna maintained that it is necessary to consider the detriment caused by

separation of a child from his or her parent and weigh this against competing public interest concerns.6

[14] Whilst other factors must be taken into account, and the weight they are to be accorded is a matter for immigration officers (and the Tribunal on appeal), the requirement that the best interests of the child must be considered as a primary consideration.7    He  argued  that  “special  circumstances”  for  the  purposes  of s 188(1)(f) of the Act must exist when other public interest considerations do not outweigh the detriment to a child which would flow from declining an application

for residency, removal of a parent from New Zealand and consequent separation of

6       Relying on Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 569 (CA).

7       Relying on Huang v Minister of Immigration [2009] NZCA 377, [2009] 2 NZLR 700.

parent and child. Such other considerations would include the State’s legitimate interest in censuring criminal behaviour, or controlling health expenditure.

[15] Mr McKenna argued that in determining whether there are special circumstances, in cases where a child would be left behind if a parent’s residency application were declined, the Tribunal should have applied a less onerous test than it had when it relied on Rajan v Minister of Immigration8 to require Mr Singh to demonstrate circumstances that were “uncommon, not commonplace, out of the ordinary, abnormal”.  Mr McKenna submitted that this was not appropriate in a case

of this kind.

[16] Applying this approach to the present case, Mr McKenna submitted that the Tribunal was wrong to find that there were no special circumstances because the detriment caused to Mr Singh’s child could be mitigated by other means. These means of mitigation were speculative and reliant on the child’s mother’s co- operation. The Tribunal had failed to carry out the balancing exercise required, with no public interest considerations identified to weigh against allowing Mr Singh to remain in New Zealand. Further, he argued that the Tribunal had failed to consider Mr Singh’s circumstances “as a whole”: the fact of Mr Singh having a child in New Zealand had been considered in relative isolation, without regard to his relationship

with the child’s mother and the difficulties he faced maintaining a relationship with his child after separation.9

[17]  On this basis Mr McKenna contended that the decision of the Tribunal should be quashed and the matter remitted to the Tribunal for directions that “a weighing up exercise is required”.

Respondent’s submissions

[18] The respondent submits that that no reviewable error or error of law has been identified. It says that the Tribunal correctly identified the test for whether circumstances are “special”, as outlined in Rajan, and if a lower threshold was adopted, the phrase would be robbed of any useful meaning.  The Tribunal correctly

8       Rajan v Minister of Immigration [2004] NZAR 615 (CA).

9       There is no evidence in the record relating to these matters.

balanced all relevant factors and assessed cumulatively whether the circumstances were special. Further, the Tribunal expressly acknowledged that the best interests of the child are a primary consideration and had dealt appropriately with that issue.

[19] Ms Longdill submitted that the appellant was essentially questioning the weight that the Tribunal had given to the interest of the child as part of its overall evaluative judgment. She submitted, in reliance on Taafi v Minister of Immigration10 that that was inappropriate in the context of the statutory regime which enabled appeals to the High Court by leave, but only in relation to points of law.  Overall she

contended that the appellant was attempting to challenge  factual  determinations made by the Tribunal without being able to point to any relevant error of law.

Discussion

[20] Under the Act, New Zealand citizens may enter and be in New Zealand at any time.11 That is a right that arises by virtue of citizenship. Other persons 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”.12 Decisions about whether to grant an application for a residence class visa are made by the Minister or an Immigration Officer and 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.13

[21] Where an application for a residence class visa is declined by an Immigration Officer, there is a right of appeal to the Tribunal.14 Mr Singh exercised that right in the present case. In determining an appeal in relation to a residence class visa decision the Tribunal can either confirm or reverse the decision15 and in doing so must apply the residence instructions. In some cases, it may refer the matter back for a new determination. Another alternative is that set out in s 188(1)(f), which enables

10      Taafi v Minister of Immigration HC Napier CIV-2011-441-471, 28 November 2011.

11      Section 13.

12      Section 71.

13      Section 72.

14      Section 187(1)(a)(i).

15      Section 188(1)(a) to (c).

the Tribunal to confirm the decision under appeal as having been correct in terms of the residence instructions, but to recommend that:

the special circumstances of the applicant warrant consideration by the Minister as an exception to those instructions.

[22] As has been noted, Mr Singh does not seek to appeal against (or review) the determination of the Tribunal that his visa application should be declined on the basis that it did not comply with the residence instructions. Rather, he seeks to challenge the determination that his special circumstances did not warrant consideration by the Minister as an exception to the residence instructions.

[23]   The decision of the Court of Appeal in Rajan16 was made under a provision in the Immigration Act 1987 governing the circumstances in which the High Court might extend the time for the issue of judicial review proceedings. Under s 146A of the 1987 Act the Court could decide to allow further time if it considered that appropriate “by reason of special circumstances”. That provision is procedural in nature and is not a substantive provision such as that in s 188(1)(f) of the 2009 Act.

[24] Nevertheless, what was said about the phrase “special circumstances” can reasonably be treated as of general application. The Court observed:17

The term “special circumstances” is a commonly used phrase in the New Zealand statute book. It requires circumstances that are uncommon, not commonplace, out of the ordinary, abnormal — see Cortez Investments Ltd v Olperhert & Collins [1984] 2 NZLR 434 in which this Court considered the meaning of special circumstances in the context of s 151 of the Law Practitioners Act 1972. Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved.

[25] Cortez Investments Ltd18 was a case decided under s 151 of the Law Practitioners Act 1982 which dealt with solicitors’ bills of costs and provided that where a bill had previously been revised the Court should make an order for the reference of the bill for revision “except in special circumstances”.   Woodhouse P

16      Above n 8.

17 Above n 8, at [24].

18      Cortez Investments Ltd v Olperhert & Collins [1984] 2 NZLR 434 (CA).

wrote that the policy underlying the Act was to ensure that legal charges were fair and reasonable.  He held that:19

A liberal enactment of this kind deserves and is intended to be given an appropriately liberal interpretation and one which reflect contemporary attitude to such matters. In no way would it be wise to lay down principles or embark on definitions which could only fetter the discretion of the Court but simply as one way of looking at the test of special circumstances in the present statutory context I think it would be met where aspects of the facts seemed to indicate a problem which had relatively unusual features while reasonably deserving at the same time relief of the kind contemplated by the provision.

[26] In the same case Richardson J quoted observations made by Lopes LJ in Re Norman20 to the effect that the words “special circumstances” are “wide, comprehensive and flexible words”.21 He considered that synonyms such as “unusual”, “out of the ordinary run”, “uncommon”, “abnormal”, and “striking” conveyed  the  same  flavour,  but  really  added  nothing  except  to  emphasise  that

“special” is something less than extraordinary or unique.22 McMullin J emphasised that what constitutes “special circumstances” has to be considered in the particular statutory context in which the words are used.23

[27] I note further that the relevant meaning of “special” given in the Oxford English Dictionary24 is “exceptional in character, quality or degree”. Plainly, what is required is a contextual consideration of the meaning of the words “special circumstances” used in s 188(1)(f) of the Act.

[28]  Although Mr McKenna submitted that the Tribunal had been wrong to rely on the meaning given to the phrase in Rajan, he did not refer to any other authority in support of his proposition that a different meaning should apply. I am not persuaded that the Tribunal was in error in the approach it took.

[29]    The most important observation as to the context in which the words are used is that paragraph (f) of the subsection is dealing with an exception to the general run

19      At 437.

20      Re Norman (1886) 16 QBD 673, 677.

21      At 439.

22      At 439.

23      At 441.

24      On line edition < cases involving residence class visa applications. The primary consideration in relation to such applications is whether they comply or do not comply with the residence instructions. It is apparent from the scheme of the Act that the instructions are a most important statement of the rules that are to apply to the grant or refusal of applications for residence class visas. They are obviously a key means by which the Act’s purpose is to be achieved.

[30]   Section 4(1) provides that the purpose of the Act is to “manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”. Section 4(2)(a) provides that to achieve that purpose, the Act establishes an immigration system that requires persons who are not New Zealand citizens to hold a visa to travel to and stay in New Zealand. Importantly, s 4(2)(b) speaks of the system established by the Act as one which:

(b)provides for the development of immigration instructions (which set rules and criteria for the grant of visas and entry permission) to meet objectives determined by the Minister, which may include objectives such as —

(i)contributing   to   the   New   Zealand   workforce   through facilitating access to skills and labour; and

(ii)supporting families; …

[31] The residence instructions are “immigration instructions” within the contemplation of this provision. It is clear that they have the central role in determining who may or may not enter and stay in New Zealand. There is nothing in these various provisions to which I have referred which suggests that the meaning of “special circumstances” in s 188(1)(f) should have a meaning other than that given that expression in Rajan, Cortez Investments Ltd and in the dictionary definition to which I have referred. The fact that the provision itself makes reference to circumstances warranting consideration as “an exception” to the instructions leads to the same conclusion. The consequence of that is that in order to establish error of law in the present case it would be necessary for Mr Singh to demonstrate that the Tribunal had wrongly failed to recognise that his circumstances were uncommon, out of the ordinary, or abnormal.

[32] Mr McKenna endeavoured to establish that the Tribunal erred on the basis that Mr Singh had a son who was a New Zealand citizen and there were no “countervailing considerations” such as would justify a decision that he not be allowed to remain in New Zealand. By that he intended to refer to matters such as a criminal record or needs for health care which might require the allocation of significant resources to meet his needs. The difficulty with an argument advanced on those lines is that it effectively sets the residence instructions to one side.

[33] The residence instructions were not placed before me. However,  it  is axiomatic that Mr Singh did not qualify for a visa under the instructions and he has not advanced an argument that he did in this Court. Rather, his argument is that the Tribunal should have recommended that his special circumstances warranted consideration by the Minister as an exception, on the basis of his son being a New Zealand citizen who will remain here with his mother and because of the claim that there are no countervailing considerations In my view, if accepted, the argument advanced would run the risk of creating a potentially large class of persons entitled to residence class visas on a basis not spelled out in the instructions. This would be contrary to the notion, inherent in the statutory provisions, that persons not qualified for residence under the instructions, can nevertheless be considered in special circumstances justifying an exception.

[34]     I do not consider that approach is tenable considering either the words used in s 188(1)(f), their context, or the role that paragraph has in the statutory scheme.

[35]   As noted, Mr McKenna made submissions based on the decision of the Court of Appeal in Ye v Minister of Immigration.25 He referred in particular to the judgment of Glazebrook J at [124]-[129] where the Judge was discussing the right of the State to exclude or expel non-citizens where the person subject to removal has a child who is a New Zealand citizen. However, as I read it, the discussion in the passages to which Mr McKenna referred, was in relation to cases where the child would be removed with the parents. That is not the case here where the child will remain in New Zealand with his mother. The same appears to be the case in relation

25      Above n 6.

to [184] and the following paragraphs of the judgment to which Mr McKenna also referred.

[36] In any event, the controlling authority now is the decision of the Supreme Court in Ye v Minister of Immigration.26 In that case, the Court confirmed the Court of Appeal’s decision that the best interests of the child must be “a primary consideration” (rather than the primary consideration) in accordance with art 3(1) of UNCROC. The Court also said:

[25]   It is appropriate, in the light of New Zealand’s obligations under art 3(1), to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes. The words “a primary consideration” in art 3(1) do not denote how this consideration ranks against any other relevant consideration such as the public interest. The child’s interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test.

[37] The Court went on to refer to the humanitarian interview procedure developed under the Immigration Act 1987, undertaken either before a removal order was made or executed by physical removal noting that it had been developed to reflect the obligation to observe art 3(1) and humanitarian concerns generally. The 2009 Act now provides for appeals against liability for deportation on humanitarian grounds at ss 206-216 of the Act. These provisions, however, are not relevant here.

[38] It is plain that the Tribunal was well aware of the need to take into account the interests of Mr Singh’s son. This can be demonstrated by reference to the following:

(a)By letter dated 7 November 2012 the Tribunal wrote to the appellant to enable him to provide further information about his relationship with his son.  It took this step, notwithstanding the fact that under s 226(1) it is the responsibility of an appellant to establish his case or claim and to ensure that all information, evidence and submissions

26      Above n 4.

that  he  wishes  to  have  considered  in  support  of  the  appeal  are provided to the Tribunal.

(b)This resulted in the receipt by the Tribunal of further submissions, a letter from Mr Singh’s counsel who had represented him in Family Court proceedings, information from his son’s school, and video footage and photographs of the appellant with his son. As noted in its decision27 the Tribunal considered all of this information.

(c)In considering the issue of whether there were relevant special circumstances, the Tribunal addressed the personal information that it had in relation to Mr Singh, his employment situation and means of support, his family circumstances and state of health.28

(d)It then observed: 29

The Tribunal is required, pursuant to Article 3 of the United Nations Convention on the Rights of the Child (UNCROC), to have regard to the best interests of the appellant’s child as a primary consideration; Ye v Minister of Immigration [2010] 1 NZLR 104 at [24].

(e)This was followed by a discussion of the parenting orders made in the Family Court, and mention of the facts that the boy is in the day to day care of his mother and that the appellant is allowed unsupervised contact with him every weekend. The Tribunal found that Mr Singh had a strong bond with the boy, was attentive to his son’s needs and involved  with  his  schooling.    It  noted  that  they  regularly  went

swimming together and that the Mr Singh took him to his temple and to Hindu language classes.30

(f)The Tribunal then noted claims by Mr Singh on the appeal that he was required by the parenting order to remain in New Zealand and could be prosecuted for breaching it if he left New Zealand, and that he had

27 At [44].

28      At [47]-[50].

29 At [52].

30      At [53]-[54].

a preference to remain in New Zealand so that he could maintain a close bond with his son.31

[39] It is clear from this that the relevant issues about Mr Singh’s son were referred to by the Tribunal. This was underlined when, after referring to concerns raised that by INZ that the appellant had provided false and misleading information about his relationship with the sponsor, the Tribunal began its discussion of the issue of “special circumstances” with the words:

The Tribunal takes into account as a primary consideration the interests of the appellant’s son.

[40] The Tribunal then proceeded to discuss the care of the son, his relationship with the appellant, the fact that his best interests would be served by maintaining an ongoing relationship with both parents, the fact that the relationship would be disrupted if the appellant were not able to remain in New Zealand. Nevertheless it considered that the separation need not be permanent and its effects could be mitigated. It noted that there was no evidence that the mother would prevent the son from seeing his father in the future, and pointed out that the fear of prosecution was misconceived.

[41] It then turned to the appellant’s personal circumstances, noting that he has lived in New Zealand for over seven years, for a significant time without a current visa; concluded that he had no skills that would contribute to the New Zealand economy; and found that family support of him would be likely to continue were he to return to Fiji.  It expressed the conclusion that:32

Considered cumulatively, the Tribunal finds that the appellant’s circumstances do not amount to special circumstances to warrant consideration by the Minister of Immigration of an exception to residence instructions.

[42] This approach can only have been in error if the fact that Mr Singh had a son who was New Zealand citizen was a controlling consideration sufficient to establish special circumstances.  For reasons already discussed, I do not consider that to be the

31      At [55]-[56].

32 At [63].

case. To accede to that argument would effectively create a new class of person able to claim entitlement to a residence class visa, and this would not be a valid application of s 188(1)(f) of the Act.

[43] Otherwise, the Tribunal considered what was relevant, considered nothing irrelevant and made a decision which could not be impeached as irrational  or affected by any other administrative law error. It is not enough to say that a different conclusion could have been reached: the appellant must demonstrate that the Tribunal erred in law. The arguments advanced do not do so.

Result

[44] I have dealt with the matter on the merits. Ms Longdill was concerned to argue that the intended appeal did not raise a question of law of general or public importance sufficient to justify an appeal to this Court, in terms of s 245(3) of the Act. However, the fact that I have also had to deal with an application for review raising the same issues makes it unnecessary to decide that point.

[45] In the circumstances, I consider the practical course to follow is to allow the application for leave pro forma, but dismiss the appeal.  I make orders accordingly.

[46]     The application for judicial review is also dismissed.

[47] If there is any issue as to costs that cannot be resolved between the parties I will receive memoranda from counsel, by the respondent within 10 working days and by the appellant within a further 10 working days.