Sroubek v Minister of Immigration
[2023] NZHC 2717
•28 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-55
[2023] NZHC 2717
UNDER the Judicial Review Procedure Act 2016 AND
the Immigration Act 2009
BETWEEN
KAREL SROUBEK
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Continued …
Hearing: 21 June 2023 Appearances:
BJR Keith and RL Fletcher for the Applicant
SM Earl and MJ Mortimer-Wang for the Respondent
Judgment:
28 September 2023
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 28 September 2023 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Woods Fletcher, Wellington
Meredith Connell, Auckland
To: B Keith, Wellington
SROUBEK v MINISTER OF IMMIGRATION [2023] NZHC 2717 [28 September 2023]
CIV-2023-404-380
UNDER the Immigration Act 2009
IN THE MATTER of an appeal from the decision of the
Immigration and Protection Tribunal in
Sroubek [2022] NZIPT 600569
BETWEEN KAREL SROUBEK
Appellant
AND MINISTER OF IMMIGRATION
Respondent
Introduction
[1] Karel Sroubrek has been the subject of various immigration deportation decisions since 2018, and subsequent appeals by him to the Immigration and Protection Tribunal (the Tribunal). Relevant to this judgment, these steps culminated in:
(a)a decision of the Tribunal dated 21 June 2022 dismissing Mr Sroubek’s facts appeal against his liability for deportation (the Facts Appeal Decision);1 and
(b)a decision of the Tribunal dated 8 December 2022 dismissing Mr Sroubek’s humanitarian appeal against his liability for deportation (the Humanitarian Appeal Decision).2
[2]I will collectively refer to these two appeals as the Tribunal’s Decisions.
[3] Mr Sroubek now seeks to challenge his liability for deportation in this Court. Following receipt of the Humanitarian Appeal Decision, he filed an application under s 249 of the Immigration Act 2009 (the Act) for leave to commence judicial review proceedings in respect of the 27 November 2018 decision of the Minister of Immigration which made Mr Sroubek liable for deportation (the Minister’s Decision). Mr Sroubek also filed an application under s 245 of the Act for leave to appeal against the Tribunal’s Decisions on certain questions of law.
[4]Two preliminary jurisdictional issues arise from Mr Sroubek’s applications:
(a)First, which statutory “pathway” to judicial review applies to Mr Sroubek: s 247 or s 249 of the Act. As noted, Mr Sroubek’s application for leave to commence judicial review proceedings was filed pursuant to s 249 of the Act. The Minister says that the proper pathway to judicial review in this case is an application under s 247. If that is right, Mr Sroubek is out of time to commence judicial review
1 Re Sroubek [2022] NZIPT 600569 [Facts Appeal Decision].
2 Re Sroubek [2022] NZIPT 600569A [Humanitarian Appeal Decision].
proceedings under s 247 and will need leave of the Court to do so. I will refer to this as the “ss 247/249 issue”.
(b)Second, whether Mr Sroubek’s application for leave to appeal against the Tribunal’s Decisions encompasses both the Humanitarian Appeal Decision and the Facts Appeal Decision. This is relevant because if the application for leave to appeal does not encompass the Facts Appeal Decision, then Mr Sroubek is out of time to apply for leave to appeal against that decision. I will refer to this as the “s 245 scope issue”.
[5] This judgment determines these two jurisdictional points. I record at the outset my gratitude to both parties for the careful and comprehensive written and oral submissions they provided.
Background
[6] While the detailed background to Mr Sroubek’s immigration history is not directly relevant to the issues I must determine, it is helpful to briefly summarise it to put those issues in their broader context.
[7] Mr Sroubek obtained criminal convictions for violence in his original home jurisdiction, the Czech Republic. He then came to New Zealand under a false identity
—using the name Jan Antolik. Mr Sroubek obtained a series of permits and visas in New Zealand under his Antolik visa, including a residence permit in 2008, which later became a residence class visa under the Act. The fact he was using a false identity was later discovered. In 2016, Mr Sroubek was convicted and imprisoned for serious drug offending committed in New Zealand.
[8] The events described in the preceding paragraph made Mr Sroubek liable for deportation. In 2018, the Minister of Immigration made two decisions:
(a)First, on 19 September 2018 he cancelled Mr Sroubek’s liability for deportation and set out a path by which Mr Sroubek could be granted a residence class visa to stay in New Zealand.
(b)Second, on 27 November 2018 he made Mr Sroubek liable for deportation on a different ground; namely that his visa had been granted because of an administrative error (that is, the Minister’s Decision). A key aspect of Mr Sroubek’s challenge to the Minister’s Decision is that in making that decision (or as his counsel, Mr Keith put it, purporting to make that decision), the Minister improperly bowed to public pressure arising as a result of the earlier 19 September decision.
[9] The Minister’s Decision was made pursuant to s 155 of the Act. As noted, the Minister determined that Mr Sroubek held the Antolik visa as a result of administrative error.3 This was on the basis that Mr Sroubek was an “excluded person” because of his criminal convictions.4 The Minister determined that Mr Sroubek could not have legally been granted a visa (unless via a special direction)—meaning that the grant of the visa was an administrative error.
[10] The Act conferred on Mr Sroubek various pathways to challenge the Minister’s Decision, including two rights of appeal:
(a)an appeal on the facts under s 201(1)(a); and
(b)a humanitarian appeal under s 206(1)(b).
[11]Mr Sroubek unsuccessfully pursued both of these appeals:
(a)On 21 June 2022, the Tribunal dismissed Mr Sroubek’s facts appeal (giving rise to the Facts Appeal Decision).5 It held it did not have jurisdiction to consider Mr Sroubek’s procedural challenges to the Minister’s decision making. It further found that Mr Sroubek held a visa in a false identity and was an excluded person. It accordingly concluded that the Minister had been right to determine that Mr Sroubek’s visa had been granted as a result of an administrative error, and thus upheld Mr Sroubek’s liability for deportation.
3 Immigration Act 2009, s 155(1)(a). Administrative error is defined in s 8.
4 Immigration Act, ss 8(1)(b) and 15(1)(a).
5 Facts Appeal Decision, above n 1.
(b)On 8 December 2022, the Tribunal dismissed Mr Sroubek’s humanitarian appeal (giving rise to the Humanitarian Appeal Decision).6 The Tribunal found that the 19 years Mr Sroubek had spent in New Zealand and the resulting ties he had developed here gave rise to exceptional circumstances of a humanitarian nature. However, the Tribunal concluded that it would not be unjust or unduly harsh to deport Mr Sroubek because of his convictions and the concealment of his convictions in the Czech Republic in order to stay in New Zealand.
[12] Following receipt of the Humanitarian Appeal Decision, Mr Sroubek brought the two current proceedings:
(a)CIV-2022-404-55: an application under s 249 of the Act for leave to commence judicial review proceedings in respect of the Minister’s Decision; and
(b)CIV-2022-404-380: an application under s 245 of the Act for leave to appeal against the Tribunal’s Decisions.
[13] I turn now to address the two jurisdictional issues summarised at [4] above. The s 245 scope issue is, in my view, relatively straightforward and I will deal with it first, before turning to the ss 247/249 issue.
The s 245 scope issue
Legal principles
[14] When a person becomes liable for deportation and wants to challenge that state of affairs, the Act prescribes the circumstances in which appeals may be filed with the Tribunal:
(a)s 201 sets out who may appeal against liability for deportation on the facts; and
6 Humanitarian Appeal Decision, above n 2.
(b)s 206 sets out who may appeal against liability for deportation on humanitarian grounds.
[15] Section 203 of the Act is relevant when a person wishes to appeal to the Tribunal against liability for deportation on both the facts and humanitarian grounds.7 It provides:
203 Process when entitlement to appeal on facts and humanitarian grounds
(1)A person who is entitled to and wishes to appeal both on the facts and on humanitarian grounds must lodge both appeals together within the relevant time limits.
(2)Where practicable, the Tribunal must consider both appeals together, but—
(a)must first consider the appeal on the facts; and
(b) may dispense with its consideration of the humanitarian appeal if the appellant’s appeal on the facts is successful.
This section is subject to sections 194(6) and 195(7).
[16] In accordance with s 203, Mr Sroubek’s facts and humanitarian appeals were heard by a single Tribunal panel.
[17] Section 235 of the Act provides that “[i]n any proceedings in which more than 1 appeal or matter is heard together, the Tribunal may issue a single decision in respect of the appeals or matters.” This is a permissive provision. Accordingly, while it was open to the Tribunal to issue a single decision on Mr Sroubek’s facts and humanitarian appeals, it did not do so. Instead, it issued the Facts Appeal Decision, and then the Humanitarian Appeal Decision some months later.
[18] Section 245 of the Act sets out when a person may appeal to this Court against decisions made by the Tribunal. It relevantly provides:
245 Appeal to High Court on point of law by leave
(1)Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied
7 As noted earlier, Mr Sroubek pursued both avenues.
with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
(1A) A decision by the Court of Appeal to refuse leave to appeal to the High Court is final.
(2)An application to the High Court under this section for leave to appeal must be made—
(a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
…
[19] As can be seen from s 245(2)(b), there is no scope to extend the 28-day time period in s 245(2)(a) unless an application for an extension of time is made within that 28-day period.
[20] As noted earlier, Mr Sroubek’s position is that his application for leave to appeal that was filed in January 2023 properly encompasses both the Tribunal’s Decisions, such that his application for leave to appeal against both decisions was filed within time.
Mr Sroubek’s submissions
[21] Mr Sroubek’s amended draft notice of appeal (if leave is given) describes the Tribunal’s decision which he wishes to appeal against as being “given in two parts”; the first on 21 June 2022 and the second on 8 December 2022.
[22] Consistent with this, Mr Keith argues that properly interpreted, s 245(2), and in particular the words “the decision of the Tribunal to which the appeal relates”, refers to the proceedings taken before the Tribunal as a whole. He submits that this is consistent with s 203’s directive that an appellant to the Tribunal lodge both a facts and humanitarian appeal together and that where practicable, the Tribunal must consider both appeals together. Mr Keith also emphasises that s 203(2) provides that the Tribunal must consider the “factual ground” (to use Mr Keith’s terminology) first,
and that if that is upheld, it may dispense with the “humanitarian ground” (again adopting Mr Keith’s terminology). Against this backdrop, Mr Keith submits that both the factual and humanitarian challenges to liability of deportation are “connected parts of the one proceeding.”
[23] Mr Keith submits that this approach is consistent with what he describes as the “streamlined” approach envisaged by the appeal and judicial review provisions of the Act, such as not permitting review proceedings while appeal proceedings before the Tribunal are pending. Mr Keith notes that the approach to the interpretation of s 245(2) of the Act advanced on behalf of Mr Sroubek also:
(a)Avoids disruption to proceedings before the Tribunal by an intervening leave application on a facts appeal decision, especially if that application is granted by the High Court. Mr Keith submits that in those cases, the parties and the Tribunal would need to put the ongoing Tribunal proceedings on hold, and if the High Court appeal was not successful, recommence the Tribunal proceedings potentially some considerable time later, with the potential need for updating evidence and a new Tribunal panel.
(b)Avoids the need to file a potentially needless application for leave to appeal against a facts appeal decision, given the appellant (before the Tribunal) may yet be successful on his or her humanitarian appeal.
The Minister’s submissions
[24] Ms Earl, counsel for the Minister, submits that a facts appeal and a humanitarian appeal, while often heard together by the Tribunal pursuant to s 203, are distinctly two separate appeals. She notes that the appeals arise from different sections of the Act and it is simply a matter of procedure, not substance, that they are often heard together. Ms Earl refers to the text of s 203 as supportive of this approach, which expressly refers to “both appeals”. Ms Earl further refers to s 235 of the Act, noting that where one or more appeals are heard together the Tribunal may issue “a single decision in respect of the appeals”, but is not required to do so, meaning that separate decisions can be issued on the appeals. In those circumstances, Ms Earl submits that
the plain and clear language of s 245(2) requires any application for leave to appeal to be filed within 28 days of each separate decision, rather than an applicant waiting until the Tribunal issues a decision on the last appeal.
[25] Ms Earl further submits that the approach advanced by the Minister is supported by High Court authority, namely Singh v Chief Executive of the Ministry of Business, Innovation and Employment. In that case, Hinton J addressed an in-time s 245 application challenging a Tribunal decision on a residence appeal but dismissed another s 245 application by the same applicant against a humanitarian appeal on the basis that it was out of time.8
[26] Ms Earl finally notes that the 28-day window cannot come as a surprise to Mr Sroubek. In the cover letter addressed to his (then) counsel which accompanied the Tribunal’s Facts Appeal Decision, Mr Sroubek was advised that an application for leave to appeal needed to be lodged within a 28-day period.
Discussion
[27] While accepting that in some cases it may be more practicable for the filing of an application for leave to appeal against a facts appeal decision of the Tribunal to await the outcome of any humanitarian appeal, I have concluded that the plain words of the relevant statutory provisions preclude the interpretation advanced by Mr Sroubek.
[28] As Ms Earl submits, a facts appeal and a humanitarian appeal are two distinct appeals, arising from two different provisions of the Act—ss 201 and 206. Reflecting this, the basis upon which the Tribunal may allow each appeal is also quite different and different considerations will be engaged. In this case, the facts appeal required the Tribunal to determine whether Mr Sroubek’s original visa “was not granted as a result of an administrative error”.9 The humanitarian appeal required the Tribunal to determine whether there were “exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh” for Mr Sroubek to be deported from New
8 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 2337, [2017] NZAR 722 at [51]–[56].
9 Immigration Act, s 202(a).
Zealand, and if so, whether “it would not in all the circumstances be contrary to the public interest” to allow him to remain in New Zealand.10 Section 203 also recognises that a facts and humanitarian appeal are substantively two separate appeals by expressly referring to “both appeals”—despite mandating that as a matter of procedure, they are to be filed together and, where practicable, heard together. They are not, therefore, two separate “grounds” of appeal in same proceeding as suggested in Mr Keith’s submissions.
[29] Section 235 is also consistent with the two appeals being substantively separate. Inherent in this provision is the concept of two (or more) separate appeals being heard together, with the statute permitting the Tribunal to issue a single decision on both appeals, though not mandating that it do so. Consistent with this, unless a single decision on both appeals is issued by the Tribunal, a later in time decision on a humanitarian appeal cannot, for the purposes of s 245(2), also be the “decision” on a facts appeal determined by the Tribunal at an earlier point in time. In those circumstances, the “decision” on the facts appeal will, by definition, have been made and delivered by the Tribunal earlier, thus triggering the 28-day period pursuant to s 245(2) of the Act.11
[30] In summary, pursuant to s 245(2), any application for leave to appeal must be filed no later than 28 days after the date “the decision of the Tribunal to which the appeal relates” was notified to the applicant. Notification of the Tribunal’s decision is the trigger for the 28-day period starting to run. The Facts Appeal Decision was a separate decision made by the Tribunal on Mr Sroubek’s facts appeal. The Tribunal’s decision was notified to Mr Sroubek (via his then counsel) on 21 June 2022. The 28 days started to run from that date. The later Humanitarian Appeal Decision was not the Tribunal’s “decision” on Mr Sroubek’s facts appeal. Mr Sroubek’s application for leave to appeal against the Facts Appeal Decision was accordingly filed out of time.
10 Section 207(1).
11 An alternative approach the Tribunal might adopt is to issue separate decisions on each appeal, albeit delivered on the same day, as appears to have been the case in Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n [8], at [40].
[31] For completeness, and while I have accepted that in some cases it may be more practicable to await the outcome of a (yet to be determined) humanitarian appeal before filing an application for leave to appeal against a facts appeal decision by the Tribunal, I am not persuaded that the practical difficulties or disruption will always be as significant as Mr Keith suggests. Instead, this Court will no doubt consider on a case-by-case basis whether it makes sense to stay the determination of an application for leave to appeal against a facts appeal decision of the Tribunal. Alternatively, the Tribunal may consider staying a humanitarian appeal in the event of an application for leave to appeal its facts appeal decision. The likely timing of the various decisions involved will no doubt be relevant. Ultimately, any practical issues arising from the application of s 245(2) in cases where the Tribunal issues an earlier decision on a facts appeal while there is a pending humanitarian appeal is a matter for legislative amendment, if required, rather than this Court adopting a strained interpretation of the plain words of s 245(2).
The ss 247/249 issue
Mr Sroubek’s proposed grounds of review
[32] These are contained in Mr Sroubek’s amended statement of claim dated 8 March 2023. Four causes of action are pleaded:
(a)The first is framed as “Illegality”. The core aspect of this cause of action is that the Minister could not lawfully exercise the power under s 155(1)(a) of the Act given he had already exercised that power in cancelling Mr Sroubek’s liability for deportation. As Ms Earl submits, this is a “res judicata/functus officio” type argument.
(b)The second cause of action is headed “irrelevant considerations/improper purpose”. Mr Sroubek alleges that the Minister took into account irrelevant considerations (material said to be “new”, but which was either not new or was irrelevant), and in making his November 2018 decision, the Minister did so for the purpose of addressing public criticism of his September 2018 decision.
(c)The third cause of action is said to be for breach of natural justice. However, the essence of this cause of action appears to be one of alleged pre-determination of the Minister’s Decision.
(d)The fourth and final cause of action is headed, “Inconsistency with the International Covenant on Civil and Political Rights” (ICCPR). It is somewhat difficult to assess the true complaint made in this cause of action, but it reiterates aspects of the first cause of action and appears to allege that the Minister failed to take into account mandatory relevant considerations, namely Mr Sroubek’s rights under the ICCPR.
Relevant statutory provisions
[33] The Act provides a tightly prescribed regime in which a person found to be liable for deportation can challenge that state of affairs. In particular, challenges by way of appeal (to the Tribunal and then to the High Court) and by way of judicial review are strictly prescribed, being subject to time limits and/or leave requirements. In the case of judicial review, the explanatory note to the Immigration Amendment Bill 2012 described the overall process as follows:12
The Bill also streamlines review proceedings for any matters coming before the Immigration and Protection Tribunal by—
·specifying that review proceedings cannot generally be taken on matters being dealt with by the Immigration and Protection Tribunal until it has made a final decision on all relevant matters; and
·providing that judicial proceedings can only be filed by leave of the High Court.
[34]The two key provisions of the Act concerning judicial review are ss 247 and
249. Section 247 is the primary provision and provides as follows:
247 Special provisions relating to judicial review
(1)Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless—
12 Immigration Amendment Bill 2012 (16-1) (explanatory note) at 2.
(a) the High Court decides that, by reason of special circumstances, further time should be allowed; or
(b) leave is required, under section 249(3), before proceedings may may be commenced (in which case section 249(4) applies).
(2)[Repealed]
(3)In this section, statutory power of decision has the same meaning as in section 4 of the Judicial Review Procedure Act 2016.
(4)Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.
[35]Section 249 provides:
249 Restriction on judicial review of matters within Tribunal’s jurisdiction
(1)No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
(2)No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3)Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
(4)An application to the High Court for leave to bring review proceedings must be made—
(a) not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5)A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(6)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.
(7)A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
(8)Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[36] The proper approach to s 249(1) is of central importance to the ss 247/249 issue.13 In summary terms (the parties’ submissions are addressed in more detail later):
(a)the Minister says that s 249(1) was not triggered in Mr Sroubek’s case, at least in respect of those aspects of his challenge to the Minister’s Decision which fall outside the Tribunal’s jurisdiction and thus could never be the subject of an appeal to it. On that basis, leave to commence review proceedings (in respect of those aspects of Mr Sroubek’s challenge) was not required under s 249(3), meaning in turn that s 247(1)(b) was not triggered. This meant Mr Sroubek was entitled to commence review proceedings in relation to the Minister’s Decision, though had to do so within 28 days of notification. Given Mr Sroubek did not commence his review proceedings within that time period, he will only be permitted to do so if the Court determines that by reason of special circumstances, further time ought to be allowed (s 247(a)).
(b)Mr Sroubek says that the Minister’s Decision and the effects of that decision were, both in terms of statutory entitlement and factually, subject to an appeal under the Act, namely a facts appeal and a humanitarian appeal. On this basis, s 249(1) was triggered, even if some of the grounds of Mr Sroubek’s facts appeal were declined by the Tribunal on the basis it had no jurisdiction to deal with them. As a
13 Section 249(2) is not relevant in the present case: that subsection relates to “matters” before the Tribunal. “Matters” are defined in s 183 of the Act and are essentially first instance applications to the Tribunal.
result, s 247(1)(b) applies, and s 249(3) is therefore the statutory provision which controls Mr Sroubek’s right to pursue review proceedings before this Court. Under this pathway to judicial review, Mr Sroubek’s application for leave to commence review proceedings was brought within time.
[37]I turn now to the authorities relevant to the ss 247/249 issue.
Relevant authorities
[38] I was referred to three key authorities: Liu v Immigration New Zealand,14 Li v Chief Executive of the Ministry of Business, Innovation and Employment15 (both decisions of this Court), and the Supreme Court’s decision in H v Refugee and Protection Officer.16
[39] In Liu, Ms Liu was liable for deportation. She wished to challenge that and commenced judicial review proceedings in this Court. In response, the Crown applied to strike out the proceedings on the basis that the decision (or the effects of the decision) which rendered Ms Liu liable for deportation was one in respect of which a humanitarian appeal could be filed. On that basis, the Crown argued that given Ms Liu had not filed an appeal, she was prohibited from commencing judicial review proceedings by s 249(1) of the Act. Ms Liu emphasised that her complaint was about Immigration New Zealand’s (INZ’s) decision-making, and that any humanitarian appeal would be “utterly fruitless”.17 Given the nature of her challenge to INZ’s decision-making, she argued that she was permitted to bring judicial review proceedings directly pursuant to s 247 and was not required to wait for a hopeless humanitarian appeal to be completed.
[40] Fogarty J agreed with the Crown. First, he did not consider s 249 to be a privative provision (designed to exclude judicial review of an executive decision)
14 Liu v Immigration New Zealand [2014] NZHC 195.
15 Li v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2977, [2018] NZAR 265.
16 H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433.
17 At [12].
which would have otherwise warranted “hostile judicial interpretation”.18 Rather, he considered that s 249 merely deferred the remedy of judicial review until a statutory appeal or review takes place.19 He went on to state:
[20] There is no doubt that s 249 in its present form does not oust judicial review. It is correctly entitled “Restriction on review”. It imposes a requirement to first make an appeal to the Tribunal. This Court should not judge whether the requirement of an appeal to the Tribunal in the first instance is inefficient. Efficiency of a statutory provision is not a concern of a Court. Efficiency is the concern of executive government, entrusted with funds provided by taxpayers. The inefficient use of such funds is a question of political judgment. There is no presumption that statutory provisions should be interpreted so that they are fiscally efficient.
[21] This may be a case where a judgment is made that a humanitarian appeal would be hopeless. But there are many cases in which the success or not of a humanitarian appeal with be uncertain. There is nothing in s 249 where Parliament intends that a person subject to a deportation notice should form a judgment as to whether or not a humanitarian ground appeal will succeed or not. To allow s 249 to be interpreted so that a personal judgment that an appeal on humanitarian grounds would not succeed allows an appeal not to be lodged and the party to proceed to judicial review, would severely underpin the clear policy and purpose of 2 249, and is not justified by the text.
[22] There is nothing to have stopped the applicant in this case from filing in the Tribunal an appeal on humanitarian grounds, acknowledging that in the context they did not exist and were a formality only to enable the Tribunal to issue a final determination on the appeal, and so clear the way for an application to the High Court for leave to bring judicial review proceedings under s 249(1B). Requiring that an appeal be made to the Tribunal is not a significant barrier to access to the remedy of judicial review.
[41] The Minster accepts that the outcome in Liu supports Mr Sroubek’s approach to the ss 247/249 issue.
[42] A similar issue was considered by Palmer J in Li. INZ had determined that Mr Li was liable for deportation because he had breached the conditions of his work visa. He wished to challenge the legality and fairness of the decision-making that made him liable for deportation. The only appeal available to Mr Li was a humanitarian appeal. Mr Li took a humanitarian appeal to the Tribunal which was dismissed, the Tribunal finding that there were no exceptional circumstances of a humanitarian nature for the purposes of s 207 of the Act. In relation to what Palmer J
18 At [16].
19 At [17].
described as Mr Li’s “core submission”,20 the Tribunal held it had no jurisdiction to determine those matters which would need to be the subject of an application for judicial review.
[43] In the High Court, it was not seriously in dispute that the challenge Mr Li intended to bring against INZ’s decision-making could not be determined through a humanitarian appeal. In that context, Palmer J described such an appeal as “hopeless”,21 in the sense of the Tribunal being unable jurisdictionally to determine the challenge being made. He stated:
[26] I held above, in relation to the application for leave to appeal, consistent with existing High Court decisions and as submitted by the Crown, that the applicants’ challenge to their underlying liability for deportation cannot be decided in a humanitarian appeal. The Act provides for no other type of appeal. I consider s 249(1) does not apply because the decision may not “be subject to an appeal to the Tribunal under this Act”. Accordingly, s 249 does not restrict the right to apply for judicial review of a decision about underlying liability to deportation where only a humanitarian appeal is available.
[27] It is true a humanitarian appeal could be (and was here) taken. But, as the Crown submitted, it must have been hopeless in challenging the underlying liability for deportation. Parliament cannot have intended to restrict the applicants’ right to judicial review under s 27(2) of the Bill of Rights by requiring them to first take a hopeless appeal. Section 6 of the Bill of Rights, the principle of legality and common sense militate strongly against such an interpretation of s 249(1).
[28] Accordingly, s 247 governs the proposed judicial review, as it is of a statutory power of decision under the Act. The applicants are out of time under s 247(1). But they are out of time because they pursued their right of humanitarian appeal, believing (and submitting) that their challenge to underlying liability to deportation could be resolved via that route. I do not consider their right to judicial review should be foreclosed in such circumstances. However, now it is clear that only judicial review is the appropriate route by which to challenge underlying liability in certain circumstances, future such cases will need to be examined on a case-by-case basis and may not deserve such an extension of time.
[44] It does not appear that Palmer J was referred to Fogarty J’s decision in Liu. However, the Crown subsequently sought leave to appeal Palmer J’s decision to the Court of Appeal on the basis of the conflicting approaches taken in Liu and Li. Although the issue was by then moot between the parties, Palmer J granted leave to
20 At [8].
21 At [27].
appeal on the basis of the conflicting High Court authorities.22 Ms Earl advises that the Crown subsequently discontinued its appeal in Li, on the basis that the issue for determination was effectively resolved by the Supreme Court’s intervening decision in H.
[45] Turning to H, in that case Mr H had made a refugee claim. An interview was scheduled with a refugee and protection officer (RPO), but Mr H became unwell and could not attend. He provided a medical certificate to the RPO which was rejected. The RPO accordingly determined Mr H’s refugee claim without hearing from him.
[46] Mr H then commenced proceedings in this Court for judicial review of the RPO’s decision-making process. He alleged a breach of natural justice. The crux of his complaint was that through the RPO’s actions, he had been deprived the “two- stage” process of independent review of his claim for refugee status; first by the RPO and then if required, by way of a de novo appeal before the Tribunal. The Crown argued that s 249(1) applied, given Mr H had a right of appeal to the Tribunal against the RPO decision and such an appeal could cure any breach of natural justice given it would determine Mr H’s refugee claim on a de novo basis.
[47] The Supreme Court accepted Mr H’s arguments. It held that in the circumstances of Mr H’s case, s 249(1) not only deferred his claim for judicial review until after an appeal had been heard and determined by the Tribunal, but effectively precluded judicial review of the RPO’s decision-making process in practical terms.23 That was because once the de novo appeal had been heard and determined by the Tribunal, the focus of any review proceedings would inevitably be on the Tribunal’s decision (not the RPO’s decision), meaning leave to commence judicial review proceedings pursuant to s 249(3) was unlikely.24 And even if leave were granted, a court would be unlikely to remit the matter back to the RPO to make a fresh merits assessment when the Tribunal had dismissed the claim on appeal (or even if remitted
22 Li v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 1171, [2018] 1 NZAR 1134.
23 At [59].
24 At [60].
to the RPO, they would be unlikely to determine the matter inconsistently with the Tribunal’s decision).25
[48]In this context, the Court stated:
[62] That leads us to conclude that, although s 249 provides for the deferral of judicial review of the Refugee and Protection Officer’s decision, the reality is that, in practice, it operates to preclude judicial review of the Refugee and Protection Officer’s decision. For this reason we treat s 249 as, in effect, a privative provision.
[49]The Court went on to state:
[63] Given the constitutional importance of judicial review, reinforced as it is by s 27(2) of the Bill of Rights Act, the courts approach privative clauses cautiously and in particular will give anxious consideration to their interpretation and application. As noted in the reasons of the majority in Tannadyce Investments Ltd v Commissioner of Inland Revenue, judges should be slow to conclude that an ouster provision precludes applications to the High Court for judicial review alleging unlawfulness of any kind. That caution is appropriate in this case. What is required is a construction of s 249 that recognises Parliament’s intention to prevent duplicative proceedings but also preserves the ability of the Court to supervise the exercise of public power and prevent injustice occurring when a statutory process fails because the decision-maker acts unlawfully and an injustice results.
(Footnote omitted)
[50] The Court concluded that the de novo appeal process could not remedy the issue which arose in that case, namely the “deprivation of first instance determination as required by the statute…”.26 This was because:
[74] If the Refugee and Protection Officer had accepted the medical certificate, that would have meant that the appellant did have two opportunities to substantiate his claim, each involving an assessment of his credibility. The fact that there are circumstances in which no interview will occur does not alter the fact that, in the present case, it would have occurred and, through no fault of his own, the appellant has been deprived of that opportunity. The only way in which that expectation can be restored to the appellant is by an order directing the Refugee and Protection Officer to conduct the process lawfully. The Tribunal is not able to provide that remedy.
[75] As is apparent from the extract from the Refugee and Protection Officer’s decision quoted above, the decision in this case stated that the appellant was not recognised as a refugee. But the Refugee and Protection Officer recognised that, in the absence of an interview, it could not be
25 At [61].
26 At [78].
determined whether or not the appellant was a refugee. Although the conclusion of the Refugee and Protection Officer’s decision begins with the words “Having considered all the information available to the Refugee Status Branch regarding [the appellant’s] claim to refugee and protection status”, there is nothing in the decision recording the Refugee and Protection Officer’s views on that material. In particular there is no evaluation of the personal statement of the appellant, which outlined the basis on which his claim was made. Thus, although in form a decision to refuse to recognise the appellant as a refugee, the decision was, in substance, a refusal to consider the appellant’s claim because the appellant had “failed” to attend the scheduled interview.
[76] In the absence of any privative provision, the appropriate response from a court on judicial review would be an order in the nature of mandamus requiring the Refugee and Protection Officer to consider the application as the Act requires, after providing an opportunity for the appellant to have an interview.
[77] The process for consideration of a claim for recognition as a refugee miscarried in the present case. The result was a decision that was, in substance, a refusal to engage with the intended statutory process, based on an incorrect application of s 149(4). The appeal process does not correct this deprivation of the process set up by the legislation.
[78] In those circumstances, the privative clause does not prevent the Court from exercising its supervisory jurisdiction to ensure that the requirements of the Act are met and the applicant’s claim is considered lawfully. Since the decision of the Court of Appeal in Bulk Gas Users Group v Attorney-General, it has been settled law that a privative provision does not necessarily prevent scrutiny of a decision based on an error of law on the part of the decision- maker that is otherwise reviewable. The Court may strike out review proceedings where the Court is satisfied that the available appeal rights provide a more appropriate pathway to a remedy than might otherwise have been sought in the review proceedings. But for the reasons given, the deprivation of first instance determination as required by the statute could not be remedied by the alternative pathway of appeal in the present case.
(Footnotes omitted)
The Minister’s submissions
[51] Against this backdrop, Ms Earl submits that, while at first blush “there is something to be said” for Mr Sroubek’s approach to s 249(1), the decisions in Li and H are determinative of the ss 247/249 issue in this case—the Supreme Court’s decision being binding on me.
[52] Ms Earl acknowledges that as decisions such as Liu demonstrate, the Crown had historically agreed with Mr Sroubek’s approach. She also acknowledges that the text of s 249(1) tends to support that position. However, she submits that together, Li
and H now apply a “rights consistent” meaning to s 249(1) that requires the words of the section to be interpreted as “where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal [and where the Tribunal has jurisdiction to determine the issue]”. Ms Earl submits that this turns on whether the issue an applicant wants to raise could not be remedied by the alternative pathway of appeal, and thus whether the appeal pathway allows for direct consideration and determination of the error alleged. If the argument an applicant wants to make can only be addressed in judicial review, then s 249(1) will not act as a prohibition.
[53] Ms Earl submits that each of Mr Sroubek’s proposed grounds of judicial review are quintessential review grounds which the Tribunal has no jurisdiction to determine
—as the Tribunal in fact concluded. On this basis, none of them could be remedied by the appeal pathway with the result that it was open to Mr Sroubek to advance his application for judicial review under s 247 immediately upon receipt of the Minister’s Decision, rather than waiting until his appeals before the Tribunal were completed. Ms Earl submits that this approach:
(a)is consistent with the heading of s 249, referring to appeals or matters “within the Tribunal’s jurisdiction”;
(b)best gives effect to the right guaranteed under s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA) to apply, in accordance with law, for judicial review;
(c)is consistent with the purpose of the Act “to manage immigration in a way that balances the national interest, as determined by the Crown, with the rights of individuals”;27
(d)is efficient, in that it does not require an applicant to first bring an appeal in respect of a matter that cannot be determined by way of appeal;
27 Immigration Act, s 3(1).
(e)still gives effect to Parliament’s intention that where the matter can appropriately be dealt with by way of appeal, judicial review proceedings are prohibited pending determination of the appeal. Duplicative proceedings are thus avoided;
(f)is not unduly complex, as it will require an applicant only to consider whether the proposed ground of challenge can be dealt with on appeal, or ought to be brought by judicial review, rather than assessing whether a proposed appeal (within the Tribunal’s jurisdiction) is “hopeless” from a merits perspective; and
(g)allows grounds of judicial review—that cannot be determined by the Tribunal—to be heard promptly, rather than waiting potentially for many years to be heard, as this case demonstrates.28
[54] The Minister accordingly seeks a ruling that Mr Sroubek’s purported application for judicial review was not precluded by s 249(1), and that whether his application can proceed falls to be determined under s 247(1).
Mr Sroubek’s submissions
[55] Mr Keith emphasises what he submits are the plain and clear words of s 249(1). Both the Minister’s Decision, and its effects, were subject to statutory rights of appeal—both of which he pursued. As such, the “[Minister’s [D]ecision (or the effects of the decision) may be subject to an appeal to the Tribunal”, meaning that s 249(1) was triggered. Mr Sroubek properly waited until his appeals were determined before seeking leave to commence judicial review proceedings.
[56] Mr Keith submits that the Minister’s approach adds a “gloss” to s 249 which cannot be accommodated by its plain and clear language. Noting that s 249(1) refers to both “the decision” and “the effects of the decision”, he submits that had the Tribunal upheld Mr Sroubek’s appeal or appeals, the Tribunal would have had
28 The Minister’s Decision was made in 2018, but following the s 249(1) pathway, the application for leave to commence judicial review proceedings not able to be made until after December 2022, following the Humanitarin Appeal Decision.
jurisdiction to set aside deportation liability and thus to reverse “the effects” of the Minister’s Decision. In those circumstances, no judicial review proceedings would have been required. Conversely, Mr Keith submits that the Minister’s approach is inconsistent with the clear statutory intent to streamline challenges to immigration decisions, by sequencing appeals to the Tribunal first, following which judicial review may not be necessary or if so, may proceed only with leave of the Court. Mr Keith submits that under the Minister’s approach, it would have been necessary for Mr Sroubek to pursue both judicial review proceedings under s 247 and his appeal proceedings before the Tribunal. This duplication of proceedings is not what is envisaged by the statutory scheme.
[57] Mr Keith further submits that Li and H are not determinative of the ss 247/249 issue in this case, let alone binding on me. He distinguishes them on the basis that in those cases, the only remedy available to the appellants was judicial review, the appeal proceedings being “irrelevant” or “ineffectual” to remedy the conduct complained of. As Mr Keith put it at the hearing, while those decisions may put a gloss on s 249(1), it is a very thin gloss to reflect that the only challenge being raised in those cases was not capable of being dealt with by the Tribunal. In contrast, while some of the grounds advanced by Mr Sroubek on his facts appeal fell outside the Tribunal’s jurisdiction, other grounds fell within its jurisdiction and were substantively addressed and determined by it.29 He also had a meritorious humanitarian appeal, even though it was ultimately unsuccessful.30 In this way, Mr Keith says Mr Sroubek’s Tribunal proceedings cannot be described as “hopeless”, irrelevant, or inherently ineffectual. And had the appeal or appeals been upheld, then no judicial review proceedings would be needed. Mr Keith submits that this is all consistent with the streamlined approach to challenges envisaged by the Act, and in particular that where appeals are available to the Tribunal, those appeals should be progressed first.
Discussion
[58] In light of the text of s 249(1), I consider there to be some force in the approach advocated for by Mr Keith on the facts of this case. However I have ultimately reached
29 In particular, whether Mr Sroubek’s visa had been granted as the result of an administrative error.
30 On which Mr Sroubek was partially successful, but overall failed.
the conclusion that the Minister’s approach to s 249(1) is correct and is supported by the decisions in Li and H.
[59] First, it is clear from Li and H that the mere existence of a statutory right of appeal (or appeals) from the decision in question, or the effects of the decision, does not mean that s 249(1) applies. This is despite the relatively clear statutory words that it is whether the decision itself (or the effects of the decision) may be subject to an appeal to the Tribunal that triggers the application of s 249(1). I accordingly read Li and H as adding a “gloss” to s 249(1), of there needing to be an available appeal to the Tribunal that may deliver effective relief in response to the challenge being made before s 249(1) will prevent (or defer) an application for judicial review. Or to put the point another way, if the Tribunal does not have the jurisdiction or power to deal with the issue being put before it, that is not the type of “appeal” envisaged by s 249(1). To be clear, however, that does not involve an assessment of the substantive merits of the proposed appeal, as appears to have been contemplated by Fogarty J in Liu. Rather what will be relevant, as was implicit in Palmer J’s adoption of the concept of a “hopeless” appeal, is an assessment of the appropriate forum in which the particular challenge can and therefore ought to be made. This would be based on a jurisdictional assessment.
[60] That is the type of assessment already called for by s 249(6)(a), and made without apparent difficulty in Wang v Minister of Immigration.31 In that case, Brown J was required to determine whether the subject matter of the plaintiffs’ claim for judicial review, commenced before the High Court under s 247, fell within the Tribunal’s jurisdiction on a facts appeal under s 202 and was thereby prohibited by s 249(1).32 Brown J held that the challenges brought in the judicial review proceedings fell within the scope of s 202. He observed, however, that he “may not have had much difficulty (had [he] been required to decide) with the proposition that certain matters were beyond the [Tribunal’s] jurisdiction: for example, a challenge to the Minister’s determination on the basis of bad faith, irrationality or vires (in the true sense).”33
31 Wang v Minister of Immigration [2013] NZHC 2059.
32 The plaintiffs had also commenced facts and humanitarian appeals before the Tribunal.
33 At [27].
[61] Second, there are in my view some “hints” in the text of s 249 itself that it is only intended to act as a bar to or deferral of judicial review when the Tribunal can determine the ground or grounds of challenge being made:
(a)First, the heading of the statutory section, namely “Restriction on judicial review of matters within Tribunal’s jurisdiction” (emphasis added). A heading may be taken into account when interpreting statutory text.34 Section 249’s heading is consistent with s 249(1) only operating as a bar to judicial review of matters that fall within the Tribunal’s jurisdiction.35
(b)Second, the words in s 249(1) “and the Tribunal issues final determinations on all aspects of the appeal” (emphasis added). It seems likely that Parliament would have intended the Tribunal’s “determination” to involve substantive consideration of and decision on all aspects of the appeal, rather than, for example, simply concluding it had no jurisdiction to determine the appeal or any aspect of it. To put the point another way, it is arguable that declining jurisdiction to hear and determine an appeal is not a “final determination” of the appeal for the purposes of s 249(1).
[62] I accept these points are not in any way determinative, but they tend to support the approach summarised at [59] to [60] above.
[63] Third, I do not consider that Li and H can be distinguished simply on the basis that the challenges made in those cases could only be dealt with by way of judicial review. In other words, that they did not involve a “mixed bag” of challenges— involving challenges which were capable of being resolved by way of appeal and some that were not. In both cases, as in Mr Sroubek’s case, there was right of appeal to the Tribunal against the statutory decision in issue (or the effect of it). It was the fact that the challenge being made could not adequately be dealt with on appeal that was the
34 Legislation Act 2019, s 10(4).
35 Prior to amendment in 2015, the heading to s 249 was simply “Restriction on judicial review”. There is nothing in the Parliamentary materials shedding any light on the reason for the change to the heading.
important factor. I do not see why the position ought to be materially different simply because there is a “mixed bag” of challenges. It such cases there is an opportunity for a meaningful appeal to the Tribunal on some issues, and it will be able to issue a substantive determination on those issues. But if the Tribunal will never be able to substantively determine some of the challenges (because of its jurisdictional limits), why should scrutiny of those challenges by the Court be deferred for potentially many years and, importantly, be funnelled into a relatively strict test for leave? I expand on these matters below. But for completeness, in Li, the applicants did put up a substantive case on their humanitarian appeal,36 and the Tribunal substantively engaged with that before issuing a decision.37 It was therefore not a case where the only challenge being advanced was one that fell outside the Tribunal’s jurisdiction.
[64] Fourth, and most importantly, the right to apply for judicial review is a fundamental right enshrined in s 27(2) of NZBORA. On Mr Keith’s approach, where an applicant’s challenge to a decision comprises a “mixed bag” of judicial review and appeal grounds, an applicant is forced to delay his or her application for judicial review even where it is abundantly clear from the outset that the review grounds cannot be dealt with by the Tribunal.38 This is contrary to the intent evident in s 247 that judicial review of statutory decisions under the Act are dealt with promptly, with applications required to be filed with the Court within 28 days of notification of the decision.
[65] In addition to delay, once the Tribunal has determined the appeals, the applicant for judicial review must then obtain the Court’s leave to file an application for judicial review, when under s 247 an application may be filed as of right (albeit within the prescribed 28 days). The fact that the subject matter of the judicial review was not capable of being resolved by appeal is no guarantee of leave being granted. While Palmer J indicated in Li that if s 249(1) had applied he would have granted leave, that will not necessarily be the outcome in all cases. The Crown in Li opposed leave being granted—despite the challenge being unable to be determined on appeal in the
36 Re CL (China) [2017] NZIPT 502997–999 at [22(d)–(g)].
37 At [37]–[60].
38 I note that in the present case, Mr Sroubek’s counsel at the time of the facts appeal before the Tribunal expressed reservations as to whether the Tribunal had jurisdiction to consider the lawfulness of the Minister’s Decision, and effectively conceded as much at the hearing; Facts Appeal Decision, above n [1], at [49] and [72].
Tribunal.39 If leave is not granted, judicial review of the decision will have been precluded by an appeal process which could never have dealt with the subject matter of the judicial review in the first place; in other words, by a “hopeless” appeal on that point. I agree with Palmer J in Li that ss 27(2) and 6 of NZBORA, the principle of legality and common sense militate against such an interpretation of s 249(1). This is particularly so given, absent the requirement to take a “hopeless” appeal on the judicial review ground(s), the applicant would have been entitled to commence review proceedings under s 247 (subject only to the 28-day time limit).
[66] I accept that on the Minister’s approach, there is the prospect of having extant judicial review proceedings before the High Court (pursuant to s 247) and parallel appeal proceedings before the Tribunal (pursuant to ss 202 or 206), and one or other may have to be stayed. But that is neither unusual nor unworkable in this area. Ms Earl’s proposition was that the Tribunal proceedings would probably be stayed, given the judicial review proceedings would examine the very lawfulness of the decision which is the subject of the appeal. And the approach advocated for by Mr Keith is not necessarily straightforward either. In cases where it is clear that the challenge to the decision is only capable of being determined on judicial review but there is a statutory right of appeal, the applicant would need to take an appeal to the Tribunal known to be hopeless (in a jurisdictional sense) in order to “clear the decks” for the review proceedings (as discussed by Fogarty J in Liu).40 As Palmer J accepted, that hardly seems efficient or likely to have been intended by Parliament. In the case of “mixed bag” challenges, the position is admittedly a little less stark, but the delay and risk to being able to bring review proceedings discussed earlier nevertheless arises. And as this case highlights, that delay can be significant indeed, with judicial review of the Minster’s Decision of 2018 only now reaching this Court—if leave is granted—some five years later.
[67] For these reasons, I conclude that s 249(1) did not prevent Mr Sroubek from commencing his review proceedings.
39 Li v Chief Executive of the Ministry of Business, Innovation and Employment, above n [22], at [25].
40 See [40] above.
Result
[68] On the s 245 scope issue, I have concluded that Mr Sroubek’s leave application cannot and does not extend to the Facts Appeal Decision. Mr Sroubek will need to file an amended leave application which relates only to the Humanitarian Appeal Decision. The Minister should then file a notice of opposition to that application.
[69] On the ss 247/249 issue, I have accepted the Minister’s approach to the interpretation of s 249(1) of the Act. The appropriate pathway to judicial review in this case is accordingly s 247(1).
[70] Rather than make formal directions or timetable orders in respect of the above, the matter is to be placed in the next available judicial review list for that purpose.
[71] The parties did not address costs in their submissions. If costs are sought and cannot be agreed, the party seeking costs is to file a memorandum within 10 working days of this judgment, with the other party filing a memorandum in response within a further five working days. No memorandum is to be longer than five pages in length. I will thereafter determine costs on the papers.
Fitzgerald J
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