Steinborn v Minister of Immigration

IN THE COURT OF APPEAL OF NEW ZEALAND

CA226/01

BETWEEN	WERNER STEINBORN
Appellant

AND	THE MINISTER OF IMMIGRATION
Respondent

Hearing:	30 October 2001
Coram:	Blanchard J Ellis J Potter J
Appearances:	C P Browne and K A Harmes for Appellant I C Carter for Respondent
Judgment:	5 November 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Facts

The appellant, Mr Steinborn, a German citizen, entered New Zealand in March 1998 and was granted residency in May 1999 after marrying a New Zealand woman. In July 2000 he was convicted of theft and burglary. On 19 September 2000 he was convicted and discharged on a charge of assaulting his wife from whom he is now separated.
Section 91(1)(a) of the Immigration Act 1987 (the Act) empowers the Minister of Immigration to order the deportation from New Zealand of any holder of a residence permit who is convicted of an offence committed at any time within two years after that person has first been granted a residence permit, where the offence is one for which the Court has power to impose imprisonment for a term of three months or more (as it has in the case of assault). Section 93(1)(b) provides that no deportation order may be made, where the person is convicted but not imprisoned, more than six months after the date of the conviction.
In January 2001 the appellant was interviewed by the New Zealand Immigration Service (NZIS) concerning the assault conviction. NZIS then reported to the Minister who on 14 March signed a deportation order under s91(1)(a). The order was served on the appellant on 22 April 2001.
There were two mistakes in the order. First, it referred to a conviction “in the Kaikohe District”, omitting the word “Court”. However, what was meant was obvious and no point has been taken about that.
Secondly, instead of referring to the appellant’s conviction on 19 September 2000, the order referred to one on 19 September 1999. It is clear nevertheless that Mr Steinborn and lawyers acting for him appreciated at once that an error had been made in stating the year of the conviction and knew, from the 19 September date and from the interview, which conviction was being referred to.
The deportation order drew the appellant’s attention to s104 of the Act under which he had a right of appeal to the Deportation Review Tribunal (the Tribunal):
104     Appeals to Tribunal against deportation orders
(1)       Any person in respect of whom a deportation order is made under section 91 or section 92 of this Act may appeal to the Tribunal for an order quashing the deportation order.
(2)       Every such appeal shall be brought within 21 days after the day on which the order is served in accordance with section 96 of this Act.
The deportation order stated that if the recipient wished to exercise the appeal right he must do so on a form available from a Superintendent of a Prison or a Branch Office of the NZIS. It also stated that he
…must file [the appeal] in the office of the Tribunals Division of the Department for Courts, 5^th floor, District Court Building, Ballance Street, PO Box 5027, Wellington, within 21 days of receiving this Order.
Despite the advice about where an appeal form was available, the deportation order was in fact accompanied by the appropriate one-page appeal form. It seems, however, that the lawyer first consulted by the appellant did not appreciate this fact, for he sent a fax to NZIS requesting appeal forms. NZIS responded by sending him an incorrect set of forms – those appropriate for an application to the Removal Review Authority whose address, appearing in the forms, was 70 The Terrace, Wellington, which also happens to be an office of NZIS.
The first lawyer then decided that he could not handle the matter and referred Mr Steinborn to a second lawyer, Mr Mason. Mr Steinborn gave Mr Mason the deportation order and the correct form together with the incorrect set received from NZIS. Mr Mason telephoned NZIS in Wellington and raised with an official, Mr Reseigh, the form of the deportation order, asking him whether NZIS intended to proceed under what Mr Mason regarded as a defective order. Mr Reseigh said that he would check with the NZIS’s legal advisers. Mr Mason deposed that he later spoke to Mr Reseigh again when it was confirmed that NZIS intended to proceed under the original deportation order. Mr Mason advised Mr Reseigh that his client intended to appeal the order.
Mr Mason then filled in the correct appeal form, stating in it that the grounds of appeal were “as set out in the enclosed appeal document” (the incorrect set). Nothing arises out of the combining of the forms in this way. After arranging for Mr Steinborn to sign them, Mr Mason sent both documents to Wellington by courier on 11 May. Unfortunately, he addressed the envelope to the Department for Courts, 70 The Terrace. Mr Mason appears to have taken that address from the Removal Review Authority forms. He enclosed a cheque payable to that Authority for a filing fee. (No filing fee is payable on a s104 appeal to the Tribunal.)
The package containing the forms was delivered to 70 The Terrace by the courier on 14 May which was the last of the 21 days (allowing for a public holiday on Anzac Day). Someone then arranged for the courier to pick up the package and take it to 5^th Floor, Ballance Street, but it did not arrive there until 15 May, the 22nd day after service of the deportation order. It appears that this was done by NZIS. Mr Mason has deposed that he was not contacted.
The Deportation Review Authority took the view that the appeal was out of time under s104(2) and that it had no discretion to extend time. It declined to hear the appeal.
Meanwhile, on 10 May, NZIS had written to Mr Mason enclosing a “corrected deportation order for your records”. This was a photocopy of the original deportation order in which the date “1999” had been struck out and replaced with “2000.” Alongside that alteration was the Minister’s signature and the date 8 May 2001. In the letter NZIS said:
The deportation order was validly made under s91(1)(a) of the Immigration Act 1987. Unfortunately the deportation order contains a minor typographical error, in that it records the date of Mr Steinborn’s conviction as 19 September 1999 rather than 19 September 2000. Although this error does not affect the validity of the deportation order, it is clearly preferable that the deportation order correctly records the date of Mr Steinborn’s conviction. For this reason the Minister of Immigration has corrected the deportation order. The correction has been made by virtue of s13 of the Interpretation Act 1999.
Mr Steinborn was arrested on 24 August 2001 pursuant to s97 of the Act with the intention of deporting him, but he has obtained an injunction staying that order while the present application, seeking declaratory relief, is determined. He is currently held in a prison.

The High Court judgment

O’Regan J dismissed the application in a judgment delivered on 20 September 2001 in the High Court at Auckland. We deal only with the questions which have been further argued on this appeal. Responding, first, to an argument that the deportation order, by misstating the date of conviction, did not comply with the statutory requirement in s94(b) that the order should contain the ground or grounds on which it was made and was accordingly void, the Judge said that there had been a relatively minor non-compliance and that the potential consequences were not serious because the misstatement of the year of the offence was a manifest error. Mr Steinborn did not appear to have been misled and it could not be said that any prejudice had occurred or was likely to occur. The effect of a deportation order was draconian, which meant that a significant defect should not be treated lightly, but this did not mean, the Judge said, that an obvious and minor error should invalidate the order. Accordingly he found the deportation order valid and effective.
The Minister had accepted in argument before the Judge that the amended copy of the deportation order was not a deportation order since, even if it had been an exercise by the Minister of her power to make an order, it was done more than six months after the date of the conviction on 19 September 2000 and was out of time. The Judge found that the amended deportation order was void and of no effect. He indicated that, if required, he would also have found that the order had not come into effect because it had not been served as required by s96(1), which requires personal service on the person named in the order.
The Judge also found against an argument that the Tribunal had acted unfairly and unconscionably in determining that the appeal was time-barred and was estopped from relying on that determination. He said that the time limit was set by statute and, no matter what action the Tribunal had taken, that action could not vest in the Tribunal a jurisdiction which the Act did not give it. Moreover the estoppel was said to have arisen from a representation made by NZIS – through sending the wrong appeal forms and through certain correspondence with Mr Reseigh. The Judge said that, while there might well be a case for arguing that NZIS was estopped from challenging the jurisdiction of the Tribunal, it did not seem to him that he could go one step further to say that, in the circumstances of such an estoppel, the Tribunal was vested with a statutory discretion to hear an appeal which was out of time, when clearly it did not have such jurisdiction.
The Judge then went on to deal with the argument of which he had already signalled his rejection, namely that the Tribunal does have power to hear an appeal not received during the 21 days. The argument for Mr Steinborn was that s104(2) stated that an appeal should be brought within the 21 day period but said nothing about what would happen if an appeal were brought outside that period. A comparison was made with the stronger language in s63B(4) under which the Removal Review Authority “shall not consider an appeal” unless it is brought within the period specified in that section. But O’Regan J said that, while s104(2) was less explicit than s63(4), he did not believe that there was any difference in substance between the two provisions. He found that the time period in s104(2) was mandatory and did not permit the authority to consider an appeal unless it had been brought within the statutory time period, “regardless of the cause of the delay”.
The Judge accordingly dismissed Mr Steinborn’s application but said that he did so with reluctance.

Whether order complied with s94

Section 94 provides:
94       Certain matters to be specified in deportation order
Every deportation order made under section 91 or section 92 of this Act—
(a)       Shall state the provision pursuant to which it is made; and
(b)       Shall state the ground or grounds on which it is made; and
(c)Shall include notice of the right of appeal conferred by section 104 of this Act and the manner in which that right is to be exercised.
Mr Carter, for the Minister, raised in a cross-appeal the argument that the Judge had been wrong to find even a minor non-compliance with this section because of the mistake in stating the year of the conviction. He submitted that para (b) requires no more than that the order must show which of the various possibilities in s91(1)(a) was actually being relied upon. Section 91(1)(a) provides:
91 Deportation of holders of residence permits following conviction
(a) Is convicted (whether in New Zealand or not) of an offence committed at any time when that person was in New Zealand unlawfully or was the holder of a temporary permit or was exempt under this Act from the requirement to hold a permit, or within 2 years after that person is first granted a residence permit, being an offence for which the Court has power to impose imprisonment for a term of 3 months or more; or

In this case, said counsel, it was sufficient that the notice should indicate that the ground was that Mr Steinborn had been convicted of an offence committed within 2 years after he had been first granted a residence permit (rather than of an offence committed when he was in New Zealand unlawfully or while he was the holder of a temporary permit or was exempt from the requirement to hold a permit). He accepted that it was also necessary for the notice to specify (as it had done) that the offence in question was one for which the Court had power to impose imprisonment for a term of three months or more. Mr Carter said that the person concerned will know the offence they have been convicted of and further particulars are therefore not necessary for the person to know what needs to be appealed against.

We take a different view and, agreeing with the submission of Mr Browne, for the appellant, consider that in a context in which para (a) of s94 requires the stating of the “provision” pursuant to which the deportation order is made (under s91 or 92), the stipulation in para (b) that the “ground or grounds” on which it is made be also stated must require more than mere identification of the particular portion of the section which is applicable. The consequence for an affected individual of the making and service of a deportation order is very severe. That person is liable to be arrested and deported quite swiftly if an appeal is not lodged to the Tribunal under s104. In order to make an appeal the affected person needs to have his or her attention directed to the offence which is the basis for the order. In some instances, of which the present is one, several offences may have been committed. Some may not have involved a maximum penalty of imprisonment of three months or more. The recipient of the notice may have forgotten the date or dates of conviction and may not be aware of the maximum penalties for the offending. He or she may address attention to the wrong offence. We have accordingly concluded that the Minister was required by para (b) to specify in the deportation notice the particular offence which was being relied upon.

Consequence of non-compliance

It does not follow, however, that because there was some degree of non-compliance with s94, the deportation order was necessarily invalid so that the Minister cannot rely upon it. The leading authority, to which O’Regan J referred, is the speech of Lord Hailsham of St. Marylebone LC in London and Clydeside Estates Ltd v Aberdeen District Council [1981] 1 WLR 182, 189. Having earlier (at 186-7) referred to the general principle that, where Parliament prescribes that an authority with compulsory powers should inform the subject of the right to question those powers, the requirement must prima facie be treated as mandatory, his Lordship said:
When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences on himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint.
It was Mr Browne’s argument that in this case the Minister had not specified the offence, but only the conviction and had in fact specified a conviction which had not occurred. He pointed out the consequences of the deportation order and argued that failure adequately to state the ground for the order was a deficiency sufficiently fundamental that the defective order should be treated as having no legal effect.
We do not agree. First, in our view, specification of the conviction can be a means of identifying the offence, provided, of course, that the conviction itself is adequately identified. If Mr Steinborn had been convicted of more than one offence on 19 September, it would have been necessary for the order to specify which was relied upon by the Minister. We add that it would be sound practice, even where there has been only one conviction, for the notice to specify it by reference to the nature of the offence, as well as the date of the conviction. Secondly, the mistake made in this case was so obvious to Mr Steinborn and his legal advisers that they were not at all misled. In fact, an approach was made to NZIS pointing out that there had been a mistake and asking what NZIS was going to do about it.
Mr Browne argued that in two respects there had been prejudice to Mr Steinborn because of the misstatement. He said that in preparing the appeal forms the appellant was without proper guidance about what he had to contest on appeal and, as a result, the appeal actually lodged had addressed the July convictions as well as that in September. But we can see no prejudice in this respect since the July convictions were obviously part of the background which the Tribunal would have to take into account when considering the appeal, even though they did not provide the legal basis for the deportation order. Mr Steinborn could not simply ignore them and expect the Tribunal to do likewise.
The other alleged prejudice was that, it was said, the appellant’s solicitor had to take time to check with the Immigration Service whether it intended to proceed with the deportation of the appellant notwithstanding the error in the order. The argument was that this use of time by the appellant’s solicitor occurred during the 21 day appeal period and contributed to the appeal documents arriving one day late at the Tribunal’s correct address. There is, however, no support for this factual argument in the evidence before the Court. All that the solicitor said was that he telephoned Mr Reseigh of NZIS on that topic and “later” spoke to Mr Reseigh again, receiving confirmation that NZIS intended to proceed under the original deportation order. Mr Mason does not say that any critical delay was caused by the need to make this inquiry.
We therefore agree with O’Regan J that in the circumstances of this case the non-compliance with s94(b) because of the misstatement of the year of the offence is minor and has not rendered the deportation order, as served on 22 April 2001, ineffective.

The effect of the correction to the deportation order

It was submitted for the appellant that, although the attempt to correct the deportation order was of no legal effect because it did not occur until 10 May, and therefore occurred outside the six month period specified in s93(1)(b), it amounted to a revocation by the Minister of her earlier order. But it is clear from the letter of 10 May, read as a whole, that the earlier order is not being withdrawn, merely corrected. The letter actually states that the deportation order was validly made and that the error did not effect its validity. Mr Browne drew attention to the reference in the letter to s13 of the Interpretation Act 1999 which enables a power to be exercised to correct an error or omission in a previous exercise of power. Whilst this reference, by itself, may have suggested that what was occurring was a separate exercise of power, we do not think that the letter can realistically be read as an attempt to make a further deportation order. It is merely a correction of an error in the existing order.

The time limit for appealing

Section 104(2) provides:
(2) Every such appeal shall be brought within 21 days after the day on which the order is served in accordance with section 96 of this Act.
Counsel recognised that certain other provisions within the Immigration Act expressly provide for the ability of a body hearing an appeal (there are four separate appeal bodies constituted under the Act and performing different appeal functions) to have power to extend the time limit. There is no comparable provision applicable to s104 and the Tribunal. But counsel argued that after sundry amendments the Act is not a model of consistency and it does not follow that it is impossible for the Court to imply such a power in the case of an appeal to the Tribunal. Mr Browne accepted that “shall” in subs(2) has the same meaning as “must” in more modern drafting (see for example, ss114P and 129O(3), as introduced in the 1999 amendment to the Act). But he suggested that the 21 day limit is directory rather than mandatory; that the Tribunal had been wrong to consider that it had no power to hear an appeal received outside the time limit. Counsel said that a liberal interpretation was necessary in order to avoid injustice where the consequences of losing an appeal right are severe.
Alternatively, it was submitted that an appeal is “brought” in terms of s104(2) when it is despatched to the Tribunal rather than when it arrives; that the Act does not actually specify how an appeal is to be brought other than a statement in cl 1 of the Third Schedule that the appeal shall be “filed” in the office of the Tribunals Division of the Department for Courts in Wellington (but without specifying a street or office address).
Mr Carter’s response, which we find persuasive, is that there is a statutory intention to determine deportation matters as quickly as practicable and with minimum delay. He pointed out that there is an express discretion in s123 to extend time for appealing from the Tribunal to the High Court, but no equivalent discretion to extend time for filing the original appeal to the Tribunal. The reason for this, counsel suggested, was that a deportation order may not be executed while any appeal under s104 is pending (s106(1)(a)) and that the Minister therefore needs to know with certainty whether or not an appeal is pending in order to be able to determine whether the deportation order may be executed and the person concerned removed from New Zealand. Mr Carter also argued that the meaning of “brought” was clarified by the reference to “filed” in the schedule and that it plainly means filed by delivery to the Tribunals Division.
A consideration of the language used in s104(2) in the context of the statute as a whole leads us to the conclusion that where the legislature intended that the body concerned should have power to extend time, it has expressly conferred such a power. We agree with Mr Carter that there is much significance in the fact that upon a further appeal from the Tribunal to the High Court there is provision for an extension of time. We consider also that the Third Schedule makes it plain that “brought” means “filed” and that accordingly despatch of the appeal papers does not amount to the bringing of an appeal.
Since the hearing our research has revealed two authorities which confirm that view. The first is a judgment of Davison CJ in the unreported decision of In the matter of an appeal by Glenn Robert Martin (High Court Wellington, 6 April 1984, M271/83). That case concerned the predecessor of s104, namely s22C of the Immigration Act 1964, in which subs(2) read:
(2)Every such appeal shall be brought within 28 days after the day on which the order or a copy thereof or written notice of the making thereof…is served on him…

Mr Martin did not lodge his appeal against a deportation order until after the 28 days had expired. The Chief Justice stated that no power was given in the Act to enable the Tribunal to extend the time for appealing and that the Tribunal had no inherent power to do so. He said that an appeal to the Tribunal under s22C was similar in this respect to appeals to the Minister under s20A which were required to be brought within 14 days. Time under s20A had been held not to be extendable. The Chief Justice referred to three High Court decisions to that effect.

Section 20A was the subject of a decision of this Court some two years later in Soto v Minister of Immigration (1986) 2 CRNZ 350. Section 20A(1) read:
(1)Where any person is convicted of any offence referred to in section 20(1) of this Act, except an offence against subsection (1) of section 22A of this Act, he may, within 14 days after the date on which the conviction is entered, request the Minister in writing, setting out the full circumstances on which the request is based, to make an order that the offender be not deported from New Zealand.
Mrs Soto was convicted of an offence referred to in s20(1) of the 1964 Act. Her request to the Minister under s20A(1) did not reach the Minister until one day after the expiry of the 14 day period. The Minister, like the Tribunal in this case, took the view that as a result of the delay he had no jurisdiction to exercise the discretion conferred on him by s20A. Mrs Soto applied for judicial review of that decision. Her application was dismissed by the High Court. In this Court it was submitted for Mrs Soto that a request in writing was made to the Minister when a letter containing it was posted to his office. That argument, which is of course similar to the argument made in relation to the word “brought” in s104(2), was not accepted by the Court. It said that a request would not normally be regarded as made until the letter in which it was made had reached the Minister or his Department. The Post Office could not be regarded as an agent of the Minister.
It does not appear that counsel for Mrs Soto attempted to argue that the Minister had a power to extend time but the Court’s view that he did not appears in the following comment at the conclusion of the principal judgment:
There will be cases of hardship, but this is inevitable in any situation where a time limit is imposed. There are no provisions for waiver or extension of time as is often the case in other legislation. However, the Royal prerogative of mercy is explicitly preserved under this Act to temper the more draconian effects of what seems on its face a very short time limit.
We share that concern about the absence from s104(2) of a power to extend time. The appeal form itself contains only a postal address (although a street address also appears in the deportation order) and appears to be encouraging the use of the post for the lodging of an appeal. There are obvious risks involved if there is a delay in the mail. We note, by way of example, that only in the last few days some postal centres have had to be closed for a period because of the anthrax scare. It would be unfortunate if a right of appeal were to be lost because a correctly addressed notice was not delivered in time because of circumstances arising after it had been posted. However, the wording of s104(2) would require this result.

Estoppel

As formulated by Mr Browne during oral argument in discussion with the Court, the appellant’s case under this heading was that an estoppel arose from a representation by NZIS when, acting as agent of the Tribunal, it issued to the appellant’s lawyer the wrong appeal forms containing the wrong address for the lodging of the appeal. The deportation order indicated that forms could be obtained from a Branch Office of NZIS. It must be taken that the Tribunal had authorised NZIS to issue appeal forms on its behalf. By sending out the wrong forms in response to a request made on behalf of Mr Steinborn, NZIS had misled his lawyer. In doing so NZIS had been acting in the course of its agency for the Tribunal. The appellant had relied upon the forms, as could be seen from the fact that the address given to the courier was the address specified in the Removal Review Authority forms and from the fact that the forms were accompanied by a cheque made out to the Removal Review Authority. Although the correct address is stated in the deportation order, the sending of the wrong forms to the appellant’s lawyer occurred later in time and must have appeared to the lawyer to have overridden the advice given in the deportation order (assuming he noticed that advice).
Mr Carter argued in response that there was insufficient evidence before the Court to lead to the conclusion that there had been a representation. However, there is an affidavit from Mr Steinborn deposing to the fact that on 2 May 2000 he took the deportation order to a solicitor who faxed the Immigration Service and requested the forms that Mr Steinborn would need to appeal it. After these forms were received and that lawyer told him that he was too busy to help with the appeal, Mr Steinborn had taken them with the deportation order to Mr Mason who filled in the appeal forms for him.
We agree with Mr Browne that in the somewhat unusual circumstances of this case, because the Tribunal’s agent for issuing the forms has sent out forms which were misleading in giving the wrong address, the appeal ought to be taken to have been “brought” when the appeal forms were delivered by the courier to that address, i.e. the office of NZIS at 70 The Terrace, Wellington. The Tribunal should not now be permitted to depart from the advice mistakenly given by its agent for this purpose, NZIS, about the form which should be used and, in particular, about where it should be sent within the 21 day period.
We have therefore determined that in the circumstances of this case there was compliance with s104(2) and that the Tribunal has jurisdiction to hear Mr Steinborn’s appeal.

Result

The appeal is allowed and the cross-appeal is dismissed. There will be a declaration that because the Tribunal erred in law in determining that the appeal was out of time the deportation order should not be executed by the Minister pending determination of the appeal by the Tribunal.
The appellant is entitled to costs. Those in the High Court are to be fixed in that Court. We award the appellant the sum of $5,000 for costs of the appeal together with reasonable disbursements, including travel and accommodation expenses of counsel, which are to be fixed by the Registrar if not agreed.

Solicitors:

Russell McVeagh, Auckland for Appellant
Crown Law Office, Wellington

[2001] NZCA 302

5 November 2001