Songmia v Minister of Immigration

[2013] NZHC 3233

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-004158 [2013] NZHC 3233

UNDER  the Judicature Amendment Act 1972

AND  Immigration Act 2009

IN THE MATTER             of an application for judicial review of a decision made in Auckland by the

New Zealand Immigration and Protection

Tribunal

BETWEEN  PRAWIT SONGMIA Applicant

ANDMINISTER OF IMMIGRATION First Respondent

ANDTHE NEW ZEALAND IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent

Hearing:                   3 December 2013

Appearances:           C Curtis for the Applicant

C Fleming for the First Respondent

Second Respondent abides the decision of the Court

Judgment:                4 December 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 4 December 2013 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

SONGMIA v MINISTER OF IMMIGRATION [2013] NZHC 3233 [4 December 2013]

Introduction

[1]      Mr Songmia applies pursuant to s 249 of the Immigration Act 2009 for leave to commence judicial review proceedings in respect of a decision of the Immigration and Protection Tribunal (the Tribunal) dismissing his appeal from an immigration officer’s decision declining his application for residence.  Ms Curtis applied at the hearing to amend the application to include, in the alternative, an application for leave to appeal the decision pursuant to s 245 of the Act.  Ms Fleming did not oppose the application being amended and I granted leave accordingly.

Residence application

[2]      Mr Songmia is a citizen of Thailand and is currently living there.  He applied for residence under the Family (Partnership) category of the immigration instructions certified by the Minister pursuant to s 22 of the Immigration Act 2009.     The application was declined in May 2013.   Mr Songmia accepts that the immigration officer was correct to decline his application because it did not meet the relevant requirements.    This  was  because  his  partner  gained  residence  under  the  same category and previously supported another successful applicant also under this category.  He was therefore ineligible to sponsor Mr Songmia’s application.

Appeal to the Tribunal

[3]      Mr  Songmia  exercised  his  right  to  appeal  against  the  decision  of  the immigration officer under s 187(4) of the Act, which provides:

(4)      The grounds for an appeal under this section are that –

(a)      the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the visa was made; or

(b)      the special circumstances of the applicant are such that consideration of an exception to those residence instructions should  be recommended.

[4]      Section  188(1)(f) of the Act  provides  that  in  determining  an  appeal,  the

Tribunal may:

confirm the decision as having been correct in terms of the residence instructions applicable at the time the visa application was made, but recommend that the special circumstances of the applicant are such as to warrant consideration by the Minister as an exception to those instructions.

[5]      Because the immigration officer made the correct decision, Mr Songmia had to rely solely on s 4(b).  He advanced the following matters as constituting special circumstances:

(a)      it is “special” for a couple to maintain a relationship for as long as Mr Songmia  has  with  his  partner  (since  2003),  despite  significant periods of separation;

(b)there  is  “inherent  unfairness”  in  the  instructions  relating  to  the Family (Partnership)  category  in  Mr  Songmia’s  case  because  he cannot “undo his partner’s relationship history” and change the fact that his partner gained residence status under the partnership category and  has  already  sponsored  another  person  under  this  category. Mr Songmia described this as a “special factor”; and

(c)      it would be unfair to require Mr Songmia’s partner, whose family is in New Zealand and who has a well-established business here, to leave New Zealand in order to pursue his relationship, particularly given same sex couples are not recognised under Thai law.

[6]      The  Tribunal  accepted  that  Mr  Songmia  is  in  a  genuine  and  stable relationship with his partner.  It found that between 2003 and 2007 Mr Songmia saw his partner when he visited Thailand, he lived with him when he was in New Zealand on a visitor’s visa for five months in 2007, and he and his partner lived together for two and a half years from 2009 to 2012 while Mr Songmia was in New Zealand having been granted visitor visas, a student visa and a limited purpose visa.  After these  visas  expired,  Mr  Songmia  remained  in  New  Zealand  unlawfully  from June 2011 until he returned to Thailand in May 2012.

[7]      The Tribunal considered that it was not uncommon for a couple to meet the requirement of  having lived together in a genuine and stable relationship for at least

12 months but not meet other eligibility requirements.   This was therefore not a special circumstance in the sense explained by the Court of Appeal in  Rajan v Minister of Immigration, namely:1

…circumstances that are uncommon, not commonplace, out of the ordinary, abnormal…

[8]      In its decision dated 12 August 2013, the Tribunal noted that Mr Songmia maintains a strong connection with Thailand.   His parents, sister and six year old daughter all live there.   The Tribunal also noted that Mr Songmia does not have regular employment in Thailand and has only worked informally as a home handyman   or   assisting   family   members   in   various   businesses.      Although Mr Songmia  has  now  completed  a  30  hour  Thai  cooking  course,  the  Tribunal concluded that his potential contribution to New Zealand was likely to be modest. While Mr Songmia’s partner does not wish to relocate to Thailand because he has family and a successful restaurant business here, he is able to travel to Thailand whenever he wishes or move there permanently because he is a Thai national, holds dual Thai and New Zealand citizenship and speaks Thai.

[9]      The Tribunal concluded that Mr Songmia’s nexus to New Zealand through his partner and the time he has spent here did not constitute special circumstances, taking into account the limited contribution that he could be expected to make.

Application for leave to commence judicial review proceedings

[10]    Mr Songmia applies for leave to commence judicial review proceedings pursuant to s 249 of the Act.  Section 249 (1C) provides:

In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to –

(a)       whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b)       if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

[11]     Ms  Curtis  accepts  that  the  Tribunal  correctly  stated  the  legal  test  for determining whether special circumstances exist for the purposes of s 187 of the Act. However, she submits that the Tribunal overlooked “two significant and relevant matters:  a  failure  to  consider  the  applicant  (and  partner’s)  homosexuality  and New Zealand’s  duty  to  have  regard  for  its  international  obligations”.     The international obligations Ms Curtis relies on are those in respect of family protected by arts 17 and 23(1) of the International Covenant on Civil and Political Rights (ICCPR).

[12]     Prior  to  the  enactment  of  the  current  s  249,  which  came  into  force  on

19 June 2013, leave was required for an appeal but not for judicial review.   Issues that could have been dealt with by way of appeal were sometimes addressed in applications for judicial review to avoid the need for leave.  This anomaly has been corrected by requiring leave for any application for judicial review as well as for appeals.

[13]     Appeal rights to the Court of Appeal also differ depending on whether the matter is dealt with in the High Court by way of appeal or judicial review. An appeal to the Court of Appeal can be brought as of right from a decision on judicial review but leave is required if the matter has been dealt with by way of appeal.  To address this issue, s 249(1C)(a)  provides that where the issues can be dealt with adequately in an appeal, this is the appropriate route.   The criteria for leave are otherwise the same; leave cannot be given for an appeal or for judicial review unless the issues sought to be raised are of general or public importance or for some other reason

should be submitted to the Court for review.2

[14] Ms Curtis considered that the issues she wishes to raise, as set out at [11] above, could not be corrected in an appeal and this is why she sought leave to commence judicial review proceedings. However, she acknowledged at the hearing that the issues can be addressed in an appeal because the essence of Mr Songmia’s complaint is that the Tribunal did not apply the special circumstances test correctly. Ms Fleming accepts that this would be an error of law amenable to appeal.

[15]     If the matter is to progress, which will depend on whether the other criteria for leave are satisfied, the appropriate course is an appeal, not judicial review.   I therefore dismiss the application for leave to commence judicial review proceedings and turn to consider the alternative application for leave to appeal.

Application for leave to appeal

[16]     This application is made pursuant to s 245 of the Act, which permits appeals to the High Court on questions of law.  Section 245(3) provides:

In determining whether to grant leave to appeal under this section, the court to which the application is made must 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 High Court for its decision.

[17]     Ms Curtis submits that the correct application of the special circumstances test is of general or public importance.  The special circumstances test is a matter of general or public importance.  However, there is no question that the Tribunal stated the test correctly.  The issue is confined to the application of that test in the particular circumstances of this case.   This affects Mr Songmia and his partner but is not a matter of general or public importance.

[18]     Ms Curtis next submits that “the issue of same sex relationships is a special circumstance and is of general or public importance”.  The residence instructions do not discriminate against applicants on the basis of their sexual orientation, nor could they lawfully do so.  The fact that Mr Songmia is in a same sex relationship with a New Zealand citizen had no bearing on the outcome of his residence application or the appeal.  The mere fact that he is in such a relationship could not be advanced as a special circumstance justifying preferential treatment under the Act.

[19]     Ms Curtis contends that same sex relationships are not recognised under Thai law  and  that  this  is  a  special  circumstance  applying  in  Mr  Songmia’s  case. Ms Curtis relies on two emails to support this contention.  The emails were between a third party, whose name has been redacted, and the Royal Thai Embassy and were sent in November 2010.  These emails read as follows:

From:   [name redacted] To:        Consular Section

Sent:    Monday, November 08, 2010 1:10 PM Subject: RE: Civil Union Residence Visa for Thailand Dear Sir/Madam

Thank you for forwarding me the link to the information below.

I have read the information under the Humanitarian section which I believe best suits my position.

However; could you please clarify whether my same sex  New Zealand Civil Union with a Thai national would identify me as the lawful spouse of a Thai national as would be accepted under the Thai and immigration law for the purpose of applying for a resident visa.

Thank you and best wishes.

From:   Consular Section

Sent:    Monday, 8 November 2010 3:24 pm

To:      [Name redacted]

Subject: Re: Civil Union Residence Visa for Thailand

Hi,

The Thai law does not recognise gay couples. Regards,

Consular Section

Royal Thai Embassy

[20]     The  Tribunal  did  not  overlook  these  emails  but,  in  my  view,  correctly concluded that they were irrelevant.  As is clear from the subject reference and the question asked by the unidentified third party, the emails deal with the prospect of an application for a residence visa in Thailand by a person in a same sex civil union in New Zealand.  Neither Mr Songmia nor his partner requires such a visa given that they are both Thai citizens.

[21]     Mr Songmia did not provide any evidence to show that he and his partner would face any particular or unusual difficulty, because of their sexual orientation, were they to decide to live together in Thailand.  The Tribunal, appropriately, did not speculate about this.

[22]     Further, the fact that an applicant is in a country that does not recognise same sex relationships, could not amount to a special circumstance justifying residence here.   Otherwise, a great many people who currently fall outside the scope of the policy set by the Minister through the Immigration instructions would be entitled to residence. This would be discriminatory and contrary to the purposes of the Act.

[23]     Ms Curtis’ final point is that Mr Songmia’s partner’s right to family, assured under the ICCPR, is a special circumstance that was overlooked by the Tribunal. She submits that this is a matter of general or public importance warranting consideration by this Court in an appeal.

[24]     Ms Curtis relies on arts 17 and 23(1) of the ICCPR which provide:

Article 17

1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.  Everyone  has  the  right  to  the  protection  of  the  law  against  such interference or attacks.

…

Article 23(1)

The family is  the  natural and fundamental  group unit of society and is entitled to protection by society and the State.

[25]     These articles do not require the State to give effect to a couple’s choice of place of residence.  This was confirmed by the European Court of Human Rights in respect of the analogous provision, art 8, in the European Covenant on Human Rights.3   This  decision  was  approved  by  the  Court  of  Appeal  in  England  in R (Mahmood) v Secretary of State for the Home Department. Laws LJ referred to this decision and stated:4

In summary, the court expressed the view (as I read the judgment) that the state owes no duty generally to give effect to a couple’s choice of place of residence, and it will be very much up to the state to strike the balance between the requirements of immigration control and the immigrant’s freedom to choose how and where he will enjoy his article 8 rights.  I think

3 Abdulaziz, Cabales and Balkandani v United Kingdom (1985) 7 EHRR 471.

4 R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at 854.

this is entirely unsurprising.  If I were applying article 8 of the Convention directly in this case, I would hold that there was no breach of article 8(1) perpetrated  by the  Secretary of  State,  whose  decision has  by no  means compelled the  applicant and  his  wife to live  apart.   He was entitled to conclude that it would be reasonable for her, and the children, to accompany him to Pakistan.

[26]      I accept  Ms  Fleming’s  submission  that  the Tribunal  did  not  breach  any international obligation in reaching its decision.   Mr Songmia’s contention to the contrary is simply not arguable.

[27]       For the reasons given, the proposed appeal does not raise any issue of general or public importance.   The issues which Mr Songmia wishes to raise in support of his appeal are not arguable.  Leave to appeal must therefore be declined.

Result

[28]     The  application  for  leave  to  commence  judicial  review  proceedings  is declined.

[29]     The alternative application for leave to appeal is also declined.

[30]     The first respondent is entitled to the costs of this proceeding on a 2B basis.

M A Gilbert J