Su v Minister of Immigration
[2021] NZHC 3336
•7 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-485-0096
[2021] NZHC 3336
UNDER the Judicial Review Procedure Act 2016 and s 247 of the Immigration Act 2009 IN THE MATTER
of an application for leave to commence judicial review of a Deportation Liability Notice out of time
BETWEEN
XIANG SU
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 24 November 2021 Appearances:
M L Clark for Applicant
B C L Charmley and G M C Sykes
Judgment:
7 December 2021
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 7 December 2021 at 4.45 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Vallant Hooker & Partners, Auckland
Crown Law Office, Wellington
SU v MINISTER OF IMMIGRATION [2021] NZHC 3336 [7 December 2021]
[1] This judgment determines an application by Mr Xiang Su for an order continuing a stay of his appeal to the Immigration and Protection Tribunal (“IPT”), which the IPT has advised it will hear on 16 and 17 February 2022. The application is brought pursuant to the Court of Appeal (Civil) Rules 2005, r 12(3) (“Rules”), and is opposed.
[2] Mr Su seeks continuation of the stay pending the determination of his appeal to the Court of Appeal against a decision of Muir J in September 2021, declining Mr Su’s application for further time to bring an application for judicial review.1
[3] Mr Su lodged his notice of appeal against Muir J’s decision in October 2021. As yet, the Court of Appeal has not allocated a date for hearing the appeal.
Background
[4] Mr Su, originally from China, has lived in New Zealand since 2001. He was granted a residence permit on 11 June 2007.
[5] On 5 May 2017, Mr Su was convicted of possession of methamphetamine for supply, the offending having occurred in July 2015. On 30 May 2017, Gordon J sentenced Mr Su to five years, 10 months’ imprisonment.2
[6] These events rendered Mr Su liable for deportation pursuant to s 161(1)(c) of the Immigration Act 2009 (“Act”), in that he had been convicted of an offence committed within 10 years of his first holding a residence class visa and sentenced to imprisonment for a term of five years or more.
[7] On 11 December 2017, Immigration New Zealand (“INZ”) notified Mr Su he was liable for deportation and invited him to make submissions as to why he should not be deported. Crown counsel advised me that it is INZ’s usual practice to seek submissions from the affected party before issuing a Deportation Liability Notice (“DLN”) under s 171 of the Act. A DLN notifies the recipient that he or she is liable to be deported.
1 Su v Minister of Immigration [2021] NZHC 2491.
2 R v Su [2017] NZHC 1147.
[8] Mr Su made submissions. These, however, were unsuccessful and on 26 March 2018 Mr Su was served with a DLN. The notice advised Mr Su that he had a right to appeal to the IPT on humanitarian grounds. Mr Su lodged his appeal to the IPT on 20 April 2018.3
Sentence appeal
[9] On 30 April 2020, the Court of Appeal quashed Mr Su’s sentence of five years, 10 months’ imprisonment and substituted one of five years’ imprisonment.4 This reduction reflected the Court’s application of its recently issued guideline judgment in Zhang v R and, in particular, Mr Su’s lesser role in the offending of which he was a participant.5
[10] The reduction to five years meant that Mr Su remained liable for deportation, but only just.
[11] In June 2020, Mr Su (or his solicitor) notified INZ that he considered that the DLN was void, as it was premised on a sentence of five years, 10 months’ imprisonment. Initially INZ indicated it agreed with this, but subsequently, in late-June 2020, indicated that it considered the DLN remained valid, as Mr Su was still eligible to be deported, given the sentence of five years.
[12] Mr Su contends that, strictly calculated, his sentence under the Court of Appeal decision would be four years, 11 months, and two weeks’ imprisonment. This would mean he was ineligible to be deported.
[13] In August 2020, Mr Su applied to the Court of Appeal to recall its judgment and substitute that sentence, but the Court declined to do so.6 Mr Su then sought leave to appeal to the Supreme Court. The Supreme Court declined the application on 22 December 2020.7
3 Immigration Act 2009, s 206(1)(c).
4 Su v R [2020] NZCA 128.
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
6 Su v R [2020] NZCA 408.
7 Su v R [2020] NZSC 156.
Proceedings in the High Court
[14] On 15 February 2021, Mr Su filed an application to the High Court for further time to make an application for judicial review of the DLN, on the basis of the reduced sentence and the failure to reconsider Mr Su’s position in light of this reduction.
[15] Any application for review of a statutory power under the Act must be commenced no later than 28 days after notification of the decision unless the High Court decides that, by reason of special circumstances, further time should be allowed.8
[16] Mr Su also sought a stay of his appeal to the IPT, pending determination of his application for leave. Without opposition from the respondent, Grice J ordered that stay on 28 April 2021, which Walker J continued in June 2021 pending determination of the application for further time.
Muir J’s decision
[17] On 22 September 2021, Muir J declined Mr Su’s application for further time.9 The Judge considered the delay extraordinary, unexplained and was not persuaded that special circumstances in the sense required existed. The Judge also expressed doubt about the underlying merits of Mr Su’s proposed challenge to the validity of the DLN.
[18]As I have said, Mr Su has now lodged an appeal against Muir J’s decision.
IPT
[19] Muir J’s judgment brought to an end the previously ordered stay of the appeal to the IPT. The IPT has since advised Mr Su’s appeal will be heard on 16 and 17 February 2022.
[20] The IPT has power to stay its own proceedings and it is aware that Mr Su has appealed against Muir J’s decision. It has declined to stay the appeal, and counsel advise me that it requires a direction from this Court if it is to do so.
8 Immigration Act, s 247(1)(a).
9 Su v Minister of Immigration, above n 1, at [68].
Future course
[21] Absent a stay, the IPT will proceed to hear Mr Su’s appeal in February 2022. If Mr Su succeeds in that appeal, the matter presumably will be at an end. If Mr Su fails, he may within 28 days seek leave from the High Court either to appeal the IPT decision on a question of law, or for judicial review of that decision, or both. Any application for leave that Mr Su makes will be heard in the usual way. Mr Su could not be deported until INZ had served a deportation order, which it could not do whilst Mr Su was exercising his rights to apply for leave or, if leave were granted, whilst his appeal or judicial review were proceeding.
Law
[22]Rule 12(3) of the Rules provides:
12 Stay of proceedings and execution
...
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory application,—
(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b)grant any interim relief.
...
[23] As Ms Sykes, counsel for the respondent, submits, r 12(3)(a) cannot apply in this instance and the application must be treated as one for interim relief under r 12(3)(b), or for continuation of that relief. That said, and again as Ms Sykes submits, the principles applicable to the Court’s determination of an application under either provision are similar. Those applicable to an application under r 12(3)(a) are those in Keung v GBR Investment Ltd and, for interim relief under r 12(3)(b), are those in ENZA Ltd v Apple and Pear Export Permits Committee.10
10 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17; and ENZA Ltd v Apple and Pear Export Permits Committee HC Wellington CP266/00, 18 December 2000.
[24] The Court of Appeal’s summary of the relevant principles in Keung is as follows:11
In determining whether or not to grant a stay, the Court must weigh the factors “in the balance” between the successful litigant's rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”. Factors to be taken into account in this balancing exercise include:
(a)Whether the appeal may be rendered nugatory by the lack of a stay;
(b)The bona fides of the applicant as to the prosecution of the appeal;
(c)Whether the successful party will be injuriously affected by the stay;
(d)The effect on third parties;
(e)The novelty and importance of questions involved;
(f)The public interest in the proceeding; and
(g)The overall balance of convenience.
That list does not include the apparent strength of the appeal but that has been treated as an additional factor.
Submissions
Applicant
[25] Ms Clark’s first submission concerns the nature of Mr Su’s appeal to the IPT. This appeal is against the DLN issued after Mr Su was sentenced in the High Court. That said, plainly the IPT will be aware of the reduced sentence and the reasons for the reduction. On a practical level, Ms Clark advises that getting the appeal ready for hearing will require a considerable amount of work. Ms Clark advises that Mr Su proposes to call four witnesses, all of whom will need to be briefed. Mr Su also proposes to seek a further report from a psychologist, who has already provided at least one report.
[26] Secondly, Ms Clark submits that Mr Su has a position to protect in that, if his appeal to the IPT proceeds but he is unsuccessful, INZ may move to deport him before
11 Keung v GBR Investment Ltd, above n 10, at [11]; citing Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87; and Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9].
the Court of Appeal hears his appeal against Muir J’s decision. If he were to succeed in that appeal, then review proceedings would follow for which Mr Su may not be present in New Zealand.
[27] Deportation would have adverse consequences for Mr Su. Even if he were to succeed in the Court of Appeal, and in any subsequent review proceeding, Mr Su would not be able to return to New Zealand as of right. Also, deportation would mean his return to China where he has not lived for 20 years, would require him to leave his family home and quite possibly his family, including his wife and their child if they were not to relocate with him, and also the career he has now established as a real estate agent.
[28] In short, Mr Su has a more persuasive case to present to INZ as to why he should be permitted to stay in New Zealand, rather than if he is seeking to make a case that he should be permitted to return here.
[29] Thirdly, Ms Clark also submits that Mr Su is prosecuting his appeal bona fide and that there is a real issue to be tried on the merits. Mr Su has paid security for costs in the Court of Appeal and there is no suggestion he is delaying in preparing the information the Court requires to allocate a date for hearing. As to the merits, Ms Clark submits the earliest that Mr Su could have applied for further time was on receipt of the Court of Appeal’s decision on his appeal against sentence on 30 April 2020, and quite possibly later than that.
[30] Ms Clark also submits that there is no prejudice to INZ in a further delay in the IPT hearing, whereas the prejudice to Mr Su is or may be considerable.
Respondent
[31] Ms Sykes first submits that the circumstances prevailing when Grice and Walker JJ stayed the IPT’s proceedings no longer apply, in that the High Court has dismissed Mr Su’s application for further time.
[32] Secondly, the IPT has indicated that it will proceed with hearing Mr Su’s appeal unless directed otherwise by the High Court. As a matter of principle, the jurisdiction
to intervene in the procedure of an inferior court or tribunal is to be exercised sparingly.12 Moreover, the Act expressly requires the IPT to determine an appeal with “all reasonable speed”.13 By February 2022, Mr Su’s appeal to the IPT will have been on foot for almost four years. Ms Sykes submits that granting the stay that is sought would simply be to assist Mr Su in the delay of his deportation.
[33] Thirdly, in her oral submissions, Ms Sykes accepted that there would be a degree of prejudice to Mr Su if he were to be deported before the Court of Appeal determines his appeal. However, Ms Sykes submits that Mr Su’s prospects of success before the Court of Appeal are so remote as to mean this factor should carry little weight.
[34] Accordingly, Ms Sykes submits that the interests of justice lie in declining the stay that Mr Su seeks.
Discussion
[35] Despite the considerable force in Ms Sykes’ submissions, I propose to grant the stay sought. My reasons are these.
[36] First, I accept Ms Sykes’ submission that it is likely to be difficult for Mr Su to persuade the Court of Appeal to differ from Muir J. There is also no doubt that, with a sentence of five years, Mr Su remains liable for deportation. That said, on the information before me, I am not satisfied that the underlying merits of his proposed application for review (if he were to be granted further time) are as hopeless as Ms Sykes submits, albeit with support from Muir J. On the information before me, the significant developments are not only the reduction in Mr Su’s sentence, but also the reasons for that reduction.
[37] Secondly, Ms Sykes is correct that appeals to the IPT should be heard and determined promptly. However, that submission has less force in the circumstances of this case given the already lengthy delay. It is no criticism of counsel for the respondent that they did not object to the earlier stays. There was good reason for
12 Shafik v Makary [2015] NZHC 2194, [2015] NZAR 1596 at [31].
13 Immigration Act, s 222(1).
their position. The consequence has been, however, that the hearing of the appeal to the IPT has already been delayed. I do not know when the Court of Appeal will hear Mr Su’s appeal but I would expect it to be within the next six or so months. If Mr Su fails then that will be the end of his proposed application for review, and the appeal to the IPT can then be heard. However, if the hearing before the IPT proceeds in February 2022 and Mr Su fails, but then succeeds before the Court of Appeal in obtaining further time, the IPT might need to revisit Mr Su’s position at a future date.
[38] Thirdly, I take into account the potential consequences to Mr Su if he were to be deported prior to the Court of Appeal hearing and determining his appeal. These are not determinative but also require some weight. On the other hand, there is no particular prejudice to the respondent if the appeal to the IPT is further delayed for a period.
[39] Fourthly, whilst the delays are regrettable, I am not persuaded that a final resolution of all matters between Mr Su and INZ will be achieved more quickly if the IPT hearing proceeds in February 2022. On the contrary, for the reasons given, I consider the more efficient and expeditious course is likely to be for the appeal to the IPT to be heard after the Court of Appeal has heard and determined Mr Su’s appeal against Muir J’s decision. As can be seen, however, I shall reserve leave to apply in the event of some unanticipated development.
Result
[40] I grant the applicant’s application to continue the stay of appeal 600499 to the Immigration and Protection Tribunal pending further order of this Court or the Court of Appeal.
[41]I reserve leave to apply.
[42]The parties may make brief submissions on costs in the absence of agreement.
Peters J
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