Taylor v Minister of Immigration
[2022] NZHC 657
•1 April 2022
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTNER AND CHILDREN OF THE APPLICANT. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CIV-2021-485-727
[2022] NZHC 657
UNDER the Immigration Act 2009 and the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for extension of time to file an application for judicial review
BETWEEN
NEMESIO NAULU TAYLOR
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing (by AVL): 16 March 2022 Counsel:
M D McGhie and J Vallipuram for the Applicant I M G Clarke for the Respondent
Judgment:
1 April 2022
JUDGMENT OF GWYN J
Introduction
[1] The applicant, Mr Nemesio Taylor, seeks an extension of time under s 247(1) of the Immigration Act 2009 (the Act) to commence his application for judicial review of a decision of the Associate Minister of Immigration declining to intervene in Mr Taylor’s case.
[2] Mr Taylor is a citizen of Fiji. He is in a stable and genuine relationship with Ms S, who is a New Zealand citizen. They have a son, N, who was born in 2020.
TAYLOR v MINISTER OF IMMIGRATION [2022] NZHC 657 [1 April 2022]
They are expecting another child in mid-2022. Mr Taylor has other family in New Zealand. His aunt and her family have lived in New Zealand for six years and his uncle and his family have lived in New Zealand for more than 10 years and are New Zealand citizens.
[3] Mr Taylor first came to New Zealand on 11 June 2015 on an Essential Skills work visa, to work in the forestry industry. Mr Taylor was granted a further Essential Skills work visa on 20 July 2016 (until 10 June 2017).
[4] Mr Taylor’s visa expired on 29 May 2017 and he became liable for deportation. Mr Taylor then requested a work visa under s 61 of the Act and was granted a 12- month work visa, from 3 August 2017.
[5] On 26 July 2018, Mr Taylor applied for a further Essential Skills work visa (with a new employer). He was granted a visa for one year, on 23 August 2018, to work as a forest establishment and silvicultural worker.
[6] On 23 August 2019, Mr Taylor’s work visa expired and he became liable for deportation for a second time. At that time, Mr Taylor did not appeal against his liability for deportation or seek to regularise his visa status.
[7] In 2020, Mr Taylor consulted a lawyer who advised him he needed a new passport before any visa application could be made, his passport having been stolen on 23 June 2019.
[8] In 2020, Mr Taylor applied for a new Fijian passport, which he received on 13 October 2020.
[9] On 18 December 2020, Mr Taylor sought a work visa under s 61 of the Act. On 9 February 2021, a Senior Immigration Officer declined to grant Mr Taylor a visa under s 61.
[10] On 18 March 2021, Mr Taylor sought Ministerial intervention, seeking an open work visa as an exception to instructions.
[11] On 27 September 2021, the Associate Minister advised Mr Taylor that he declined to intervene (the decision letter).
[12] It is relevant to note at this point that Mr Taylor has three convictions: on 2 March 2017 for operating a vehicle carelessly and having excess breath alcohol; on 17 January 2018 for drink driving; and on 18 July 2019 for what the Crown says was failing to comply with a prohibition on driving while disqualified, and the applicant says was driving without a licence.
This application
[13] The Act provides a 28-day time limit for filing an application for review of a statutory power of decision. On 16 November 2021, Mr Taylor filed in the High Court a Statement of Claim for Review, Notice of Proceeding and an Application for Leave to Extend Time.
[14] It is the latter application – an application under s 247(1) of the Act for an extension of time to bring judicial review proceedings – that is before me.
[15]Section 247 provides:
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—
(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 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.
Calculation of the delay
[16] While there is no issue that Mr Taylor did not bring his application for review within the statutory 28-day period, there is a dispute between the parties about the
calculation of that period, which is relevant to the length of the delay which is, in turn a factor for the Court when it comes to consider whether there are “special circumstances” under s 247 (1)(a) of the Act.
[17] The parties’ submissions on the question of calculation were developed in memoranda filed after the hearing.
[18] The parties are agreed that s 386A(5), which deems a particular date as the date of receipt of a document or letter, does not apply here as the actual date on which Mr Taylor received the decision letter (27 September 2021) is known. That is the date to be used as the start of the timeframe under s 247.
[19] The parties disagree as to whether s 6 of the Act applies to the calculation of the 28-day period. The relevant part of s 6 provides:
6 How periods of time to be calculated
(1)A period of time prescribed in this Act for the making of an application under the Act must be calculated excluding any day that is—
(a)a public holiday or a Department holiday determined by the chief executive; and
(b)not a Saturday or Sunday.
[20] If s 6 applies, the timeframe is measured in “working days” as Mr McGhie submits. If s 6 does not apply, the calculation is in “days”, as Ms Clarke submits. Ms Clarke says the proposed application for judicial review is not “an application under the Act”, in terms of s 6, therefore time is calculated without reference to s 6. The respondent submits that the preliminary application for further time would also fall outside of s 6. If that application had been brought as an originating application (which it was not) in accordance with Part 19 of the High Court Rules, it would not be under the Act and s 6 still would not apply.
[21] Because s 6 does not apply, the respondent says, the calculation of both the 28- day period for filing an application for judicial review and also the subsequent period of delay includes weekends and public holidays. On that basis, the time limit for filing judicial review proceedings expired on 25 October 2021. Mr Taylor filed his proceedings 22 days later, on 16 November 2021.
[22] The respondent relies on Kumar v Immigration Protection Tribunal,1 where the applicant submitted that reference to 28 days in s 247 of the Act is 28 working days, by reason of the application of s 6 of the Act. Justice Fogarty relied on M R v Refugee Status Appeals Authority2 to conclude that s 6 did not apply. In M R Wylie J was considering the predecessor provisions. He said:
[44] … Section 2(2) refers to the making of an application, or the lodging of an appeal, not being an appeal to the High Court. The Act provides in a number of contexts for the making of applications and the lodging of appeals. Clearly time periods provided by the Immigration Act for the making of applications, or for the lodging of appeals under that Act, are caught by s 2(2).
However, an application for review is not an application made under the Immigration Act. Rather, it is brought pursuant to the provisions of the Judicature Amendment Act 1972.
(emphasis added).
[23] Justice Wylie took support for that view from the definition of “review proceedings”, referred to in s 146A and defined in s 2(2) of the 1987 Act, by reference to the Judicature Amendment Act 1972.3 That definition is carried over into s 6 of the 2009 Act, with the reference updated to the Judicial Review Procedure Act 2016.
[24] In response, Mr McGhie refers to the Court of Appeal decision in Ochibulu v Immigration and Protection Tribunal,4 where the Court of Appeal considered an application for an extension of time under s 247 of the Act to commence a judicial review of the Minister’s decision to reactivate Mr Ochibulu’s liability for deportation. There, the Court of Appeal said:5
We consider that an application under s 247(1) of the Immigration Act for an extension of time to bring judicial review proceedings is best characterised as an originating application. It is not an interlocutory application in some other proceeding: no other proceeding is on foot, and depending on the outcome of the s 247 application, no other proceeding may ever be on foot. It is a stand- alone application, in which the (primary, and probably only) relief sought is an extension of time to bring judicial review proceedings. If the s 247 application succeeds, it will then be open to the applicant to commence their proposed judicial review proceedings – which will be separate civil
1 Kumar v Immigration Protection Tribunal [2014] NZHC 2056 at [4].
2 M R v Refugee Status Appeals Authority [2008] NZAR 655 at [44]. The Immigration Act 1987 applied. Sections 146A and 2, respectively, were the provisions equivalent to s 247 and s 6 in the current Act.
3 M R above, n 2. at [45(a)].
4 Ochibulu v Immigration and Protection Tribunal [2021] NZCA 269.
5 At [23].
proceedings, seeking different relief. If the s 247 application is unsuccessful, that is an end of the matter – the applicant has not obtained the relief they sought, and there will be no further proceedings.
[25] The Court also said,6 “nor… is an extension of time ancillary to the relief sought in the proceeding commenced by the originating application: it is the relief sought in that proceeding”. The Court said it follows that the most appropriate procedural mechanism for applying for an extension of time under s 247(1) will generally be to file an originating application under Part 19 of the High Court Rules 2016.7
[26] Ms Clarke distinguishes Ochibulu on the basis that the Court there was not considering the basis of the application from the perspective of s 6 of the Act. Rather, it was determining the discrete point of whether an application for leave was an originating application (a stand-alone application) or whether it was an interlocutory application (a preliminary step in the primary judicial review proceeding). Ms Clarke says the Ochibulu decision is therefore of limited relevance in this case.
Discussion
[27] I agree it is necessary to distinguish between the two applications (or potential applications): an application for extension of time to file judicial review proceedings and a substantive application for judicial review.
[28] It seems to me that the application under s 247 for an extension of time is “an application under the Act” for the purpose of s 6. The Court of Appeal’s decision in Ochibulu concerns the characterisation of such an application. It clarified that a s 247 application is not an interlocutory application in some other proceeding; it is a stand- alone application.
[29] Although it is not directly relevant in this case, I do not agree with the submission that s 6 would not apply in respect of an originating application, because such an application is made in accordance with Part 19 of the High Court Rules and not under the Act. The purpose of Part 19 of the High Court Rules is to provide a
6 At [27].
7 At [24].
mechanism for a range of applications which need to be made to the Court under specified statutory provisions (or, in the interests of justice, other statutory provisions).8 Part 19 is not a substitute for the relevant substantive legislation, it is simply a convenient procedural mechanism.
[30] But, ultimately, I do not think it assists the applicant that a s 247 application is “an application under the Act”.
[31] While the application for leave is made under s 247, the task for the Court is to determine the calculation of time for making a substantive application for judicial review and the length of the delay in the particular case. That substantive application is plainly an application made under the Judicial Review Procedure Act 2016, rather than the Act. In my view, s 6 of the Act does not apply to that calculation. I acknowledge that in Su v Minister of Immigration Muir J said, 9 “I tend to the view that the matter is governed by the Act, for the reason that the application for leave is made pursuant to s 247(1)(a)”, but it appears that the Judge did not have full submissions from the parties on this point.
[32] In this case, Mr Taylor filed both an application for extension of time and a substantive judicial review application, on 16 November 2021. The calculation of the period from the date of receipt of the decision letter (23 September 2021) and the making of the application on a “days” basis is 22 days; on a “working days” basis it is seven days.
Submissions for the applicant
“Special circumstances”
[33] Section 247 of the Act requires the existence of “special circumstances” in order for the Court to grant an extension of time.
[34] The reasons for the delay which are said to constitute special circumstances in this case are that:
8 Manchester Securities Ltd v Body Corporate [2015] NZCA 29 at [15].
9 Su v Minister of Immigration, [2021] NZHC 2491 at [21].
(a)Mr Taylor lost his Fijian passport in June 2019 and was not able to obtain a new passport until October 2020. It was only at that point that he was able to apply for a temporary visa under s 61 of the Act.
(b)The Associate Minister, in his decision letter of 23 September 2021, did not state there was a right of review nor that there was a time limit to exercise that right.
(c)Mr Taylor was not able to access proper legal assistance, including expertise in judicial review, in the Whanganui area within 28 days. Although Mr Taylor had previously engaged the services of lawyers in Whanganui, they were not available due to their inexperience in judicial review and/or not being approved legal aid providers.
(d)Because of Mr Taylor’s lack of familiarity with legal processes, and the Covid-19 lockdowns, he had very little opportunity to seek representation outside of Whanganui after receiving the Associate Minister’s response in September 2021.
(e)Mr Taylor was a migrant worker. English is his second language and he has worked mainly with other Fijians during his time in New Zealand, so his English has shown little improvement. That, and his economic position (he had been unable to work for some time and was, on the face of it, ineligible for legal aid)10 created an additional barrier to accessing legal assistance within the 28-day time limit.
(f)The interests of Mr Taylor’s children, who would be separated from their father if the decision stands, are also relevant. Mr McGhie says the Court may have regard to this factor. He refers to the comment of the Court of Appeal in Rajan that “[t]he Legislature has not limited the factors that can be taken into account in assessing whether there are special circumstances for [s 146A] purposes.” 11
10 Legal Services Act 2011, s 12.
11 Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [28].
[35] Mr Taylor submits that the reasons for the delay must be balanced against the period of the delay. The reasons for the delay are strong and the delay considerably shorter than in some other cases.12
[36] On balance, Mr Taylor says that the delay in applying to review the Minister’s decision does not prejudice the respondent but will have devastating consequences for him and his family.
The merits
[37] In relation to the merits of his judicial review application (if an extension of time is granted), Mr Taylor says:
(a)The Associate Minister did not, or did not adequately, consider New Zealand’s international obligations, particularly under the United Nations Convention on the Rights of the Child.
(b)The Associate Minister did not record the reasons for his decision. Mr McGhie says he was required to do so under section A23.10 of the Immigration Instructions (the Instructions).
(c)The Associate Minister did not consider the detailed reasons Mr Taylor had provided for his inability to extend his work visa before it expired. This was because of his lost passport; he was not able to make an application until he had obtained a new passport. Rather, the Associate Minister relied on the official notes made in February 2021 which said that one of the main reasons for refusal of a visa was that Mr Taylor did not provide details and information as to his reasons for his unlawful status. This was contrary to A1.5 of the Instructions and indicated a bias, contrary to Instruction A1.10.
12 For example, in Ochibulu v Immigration and Protection Tribunal [2020] NZHC 792 at [35] and [60], where there was a delay of three and a half years, but the Court nevertheless went on to examine the merits of the case.
(d)Other cases of a similar kind have treated applicants with driving convictions more leniently than Mr Taylor was treated. He had no convictions from 2019 until his application to the Minister in March 2021.
(e)The decision letter did not advise Mr Taylor that he had a right of judicial review and the time limit for seeking a review.
(f)The decision was in breach of the general requirement of fairness.
Submissions for the respondent
“Special circumstances”
[38] Ms Clarke for the Crown emphasised that the scheme of the Act and the authorities under the Act and the predecessor Immigration Act 1987 strongly point to a limited tolerance for delay. Special circumstances are to be interpreted in light of the emphasis in the Act on timeliness.13 There are strong policy reasons why Courts are reluctant to countenance delay and insist on compliance with statutory timeframes, not least in the immigration context.14 Delay impacts upon the orderly and efficient administration of the immigration system. If the requirement for timely applications is not appropriately reinforced, those unlawfully residing in New Zealand would be incentivised to undermine the deportation process by delaying applications.15
[39] The respondent says that here the delay in making the application is long. Ms Clarke points to Rajan16 where the length of delay is considered both in terms of total time elapsed and as a percentage of how that time relates to the time limit for bringing review proceedings. Previous decisions have generally treated a delay as long, or very long, where it is similar to, or longer than, the prescribed time period itself.17 Here, a delay of 22 days requires a compelling explanation, together with
13 Rajan, above n 11, at [24].
14 Bhasin v Immigration and Protection Tribunal and Anor [2018] NZHC 644 at [29].
15 JS v Immigration and Protection Tribunal [2015] NZHC 2832, [2016] NZAR 111 at [25].
16 Rajan above n 11, at [24].
17 Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-133, 9 June 2009 at [26].
merit in the substantive application for review, before the Court should grant further time.18
[40] In that respect, Ms Clarke says that the reasons for delay are not strong. While they are circumstances with which one may have sympathy, they are not circumstances that would be unusual or out of the ordinary for people in this situation. Rather, they fall within what could be described as “commonplace”.
[41] In particular, the Crown notes that limited access to legal aid lawyers is not something unique to Mr Taylor.19 Many people in Mr Taylor’s position do not have English as a first language or have knowledge of legal processes. Nor would it be unusual to be on a low income or live in a small town with a limited pool of lawyers.
[42] Further, the Minister is not obliged to advise of statutory time limits for judicial review in decision letters of this type and it is not general practice to do so. For that reason, Mr Taylor is not disadvantaged compared to others in his position. Ignorance of statutory timeframes will not usually be an excuse for a delay in filing.20
[43] The Covid-19 restrictions in Auckland cannot reasonably be said to have affected Mr Taylor’s ability to instruct a lawyer in Whanganui or anywhere else. At the relevant time, Whanganui was in level 2 of the Covid-19 alert level system and Mr Taylor would not have been prevented from engaging a lawyer. There is no evidence that Mr Taylor actually sought representation from anyone other than Mr McGhie or Ms Vallipuram.
[44] Finally, the Crown says that the absence of legal representation does not, of itself, provide reason for filing out of time. Mr Taylor could himself have filed documents in the High Court to protect his position.
18 JS v Immigration and Protection Tribunal, above n 15, at [25].
19 Zanzoul v Removal Review Authority, above n 17, at [35].
20 Bhasin, above n 14, at [28]; Xie v Minister of Immigration HC Auckland CIV-2008-404-2401, 25 July 2008 at [27].
The merits
[45] The Crown says that the merits of Mr Taylor’s judicial review application should not automatically be considered in this application for further time.21 In any event, this is not a marginal case, the merits are weak and do not justify the grant of further time.
Scope of judicial review
[46] The respondent emphasised that the Court’s jurisdiction on a review of a s 61 absolute discretion is very limited.22 The Court is limited to examining whether, on the information before the decision-maker, the decision could be seen as unreasonable in the Wednesbury sense. At the s 61 stage, it is entirely up to the Executive (through the Minister) to decide whether or not to grant a visa.23 There is no obligation under s 61 to take any specific matter into account.24 The decision-maker is not required to apply any particular test or consider or give effect to any international obligation.25 The weighting of various considerations is for the decision-maker alone (absent Wednesbury unreasonableness).
[47] The decision-maker is not required to inquire into the circumstances of a person applying or make further inquiries in respect of any information provided by or in respect of a person applying.
[48] The interests of citizen children is only a factor, but not the primary consideration; the best interests of the child do not take priority over all other considerations.
[49] The Associate Minister was exercising a bare absolute discretion under s 61 of the Act. Section 61 precludes formal application and the legitimate expectations associated with that Act. There are no specified procedural requirements for decisions made under s 61. In particular, there is no requirement that the Minister record any
21 Zanzoul v Removal Review Authority, above n 17, at [38]; JS v Immigration and Protection Tribunal, above n 15, at [33]-[34].
22 Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222.
23 At [31].
24 Devi v Minister of Immigration [2017] NZHC 728 at [21] and [29].
25 Dean v Associate Minister of Immigration [2019] NZCA 343, [2019] NZAR 1989 at [56].
reasons for his or her decision26 and the absence of reported reasons does not amount to a reviewable error.
[50] Immigration Instruction A23.10 is directed at the Immigration Officers, not the Minister. It does not oblige the Minister to record reasons.
The decision was reasonable
[51]The Associate Minister had before him:
(a)Mr Taylor’s application dated 18 March 2021;
(b)a case note prepared by the Immigration New Zealand Ministerial Team;
(c)the decision record for Mr Taylor’s December 2020 s 61 visa request;
(d)the latest Police check for Mr Taylor; and
(e)the relevant immigration Instructions.
[52] The Crown says that N’s interests were placed prominently before the Associate Minister. Mr Taylor’s own representations referred directly to N’s interests and specifically to the international instruments on which he now relies. In addition, the case note prepared by Immigration New Zealand referred to international obligations in respect of children. The Associate Minister in his decision letter confirmed he had carefully considered Mr Taylor’s representations and the only reasonable inference available is that the Associate Minister did take N’s interests into account.27
[53] It was a matter for the Associate Minister’s judgement as to how all the various considerations were weighted. On the basis of the material before him, the Associate Minister was entitled to make the decision he did. It cannot be said that
26 Section 11(c) of the Act.
27 Psamino v Minister of Immigration [2012] NZHC 4 at [23].
there was only one answer available on the application, notwithstanding the familial ties that Mr Taylor now has to New Zealand. The decision to decline his request cannot be described as one so unreasonable that no reasonable Minister could have made it.28
[54] The Crown notes in particular that Mr Taylor is unlawfully in New Zealand, for the second time. He took no steps to regularise his status for more than a year after becoming unlawful the second time. He has remained in New Zealand and had a child knowing he was unlawfully in New Zealand.
[55] Mr Taylor did not disclose all his convictions in his various applications.29 That is a breach of Mr Taylor’s duty of disclosure and would have been sufficient grounds for the Minister to decline to grant an application for a visa.
[56] The Associate Minister was not bound by the decisions of his predecessors to grant a visa to Mr Taylor. In any event, the previous visa had been granted without Immigration New Zealand having had the benefit of all relevant information, because of Mr Taylor’s failure to disclose his convictions.
[57] Deportation will inevitably involve an element of harshness and emotional upset, often requiring separation from family and friends. However, in itself, this is not sufficient to found a claim of unreasonableness.
[58] In summary, the Crown says Mr Taylor cannot establish that there are special circumstances and, even if this was a marginal case (the Crown says it is not), the merits are weak and a grant of further time is not justified.
28 Singh v Associate Minister of Immigration [2016] NZHC 2888 at [24].
29 The convictions are referred to at [12] above. Mr Taylor did not disclose any of his convictions in his applications of 29 May 2017 and 26 July 2018. He disclosed a conviction in his request of 18 December 2020 but failed to declare three other convictions.
Discussion
“Special circumstances”
[59] The leading authority on the meaning of special circumstances is the Court of Appeal’s decision in Rajan. 30 While that case was decided under the 1987 Act, it has been held that it “clearly provides guidance in the immigration context, and specifically on the question of special circumstances.”31
[60]In Rajan the Court of Appeal said:32
The term “special circumstances” is a commonly used phrase in the New Zealand statute book. It requires circumstances that are uncommon, not commonplace, out of the ordinary, abnormal… Whether there are special circumstances justifying an extension of time must be assessed in the context of legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s 146A time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans’ application was filed one month late and thus would require an extension of one third of the time limit. In the context of the Immigration Act, this cannot necessarily be seen as a short delay.
[61] In Ly v Minister of Immigration,33 Whata J indicated that an evident policy of the Act is that immigrants unlawfully resident will be dealt with speedily, in accordance with strict statutorily proscribed procedures.
[62] The reasons for such strict time limits in the immigration context were explained by Priestley J in Xie v Minister of Immigration, in the following terms:34
… Given the very broad supervisory powers which [the Judicature Amendment Act 1972] confers on the High Court, it makes sense that judicial review proceedings should be tightly controlled from a temporal point of view. Particularly is this the case in situations where perhaps proceedings would impede or delay removal from New Zealand of people unlawfully residing here.
… the policy of s 146A is clearly designed to place tight temporal constraints on judicial review being used as a mechanism to slow up removal procedurals.
30 Rajan, above n 11, at [24].
31 Ly v Minister of Immigration Auckland High Court CIV-2011-404-001540, 5 May 2011 at [32].
32 Rajan, above n 11, at [24].
33 Ly v Minister of Immigration, above n 31, at [18].
34 Xie v Minister of Immigration, above n 20, at [24] and [35].
[63] Rajan provides a framework for deciding whether “special circumstances” exist, by reference to the following three factors:35
(a)the length of delay;
(b)the reason for the delay; and
(c)in marginal cases, a brief examination of the merits.
Length of delay
[64] Each case must be regarded as fact and context specific. In Rajan the Court of Appeal said, “…the discretion to extend time should not be exercised too readily and very rarely if the delay is long”.36 After a review of the authorities, Muir J noted in JS v IPT that lengthy delay was typically fatal to an application for the grant of further time.37
[65] In assessing whether a delay is to be regarded as “long” the Courts have typically considered the delay as a fraction or multiple of the relevant time limit. In Zanzoul v Removal Review Authority and Department of Labour, Dobson J commented that: “Generally delays for greater than the period permitted… tend to be characterised as “long” or “very long” tending to support a conclusion that leave should be declined.”38
[66] Applications for leave to proceed out of time were refused in Rajan (delay of one month in the context of a three month time limit); Zanzoul (a “substantial” delay of almost eight months in the context of a three month time limit); and Ly v Minister of Immigration (a delay of 23 days in the context of a 28 day time limit, described as “too long”).
[67] In Ochibulu v IPT, the applicant applied for leave to commence judicial review proceedings three and a half years out of time. Justice Fitzgerald in the High Court
35 Rajan, above n 11, at [24]-[30].
36 At [24].
37 JS v Immigration and Protection Tribunal, above n 15, at [22].
38 Zanzoul v Removal Review Authority and Department of Labour, above n 17, at [26].
concluded that, on the facts, there was no real explanation for the delay,39 but nevertheless went on to a limited examination of the merits of the proposed application for a judicial review.
[68] In JS v Immigration and Protection Tribunal,40 the delay was four months. In that case, Muir J found that the length of delay would require him to be satisfied both that there was a compelling explanation for the delay and that there was merit in the substantive application for review, before granting leave under s 247(1).41 He was not satisfied on either count.
[69] As I have noted, the calculation of the delay is either 22 days or seven days, depending on whether s 6 of the Act applies. On either calculation, the delay is not “very long” as characterised in other cases and is less than the 28-day statutory period. It is not determinative of the “special circumstances” assessment.
Reasons for delay
[70] I consider each of the reasons advanced by Mr Taylor for the delay, as outlined at [34] above.
[71] The first matter (at [34(a)]) relating to Mr Taylor’s loss of his passport is relevant to the second stage of the enquiry.
[72] The factors at (c) and (d) of [34] are essentially the same. Mr Taylor says there was no one readily available to him in Whanganui who could take his instructions and was experienced in judicial review and an approved legal aid provider. Mr Taylor was advised by Ms Vallipuram, who made the 18 March 2021 request to the Associate Minister on Mr Taylor’s behalf. At the time of making the request, Ms Vallipuram was at Community Legal Advice in Whanganui. Although the Associate Minister’s letter of 23 September 2021 was addressed to Ms Vallipuram, by that time, she was no longer at Community Legal Advice.
39 Ochibulu v Immigration and Protection Tribunal [2020] NZHC 792 at [56] and [59].
40 JS v Immigration and Protection Tribunal, above n 15.
41 At [25].
[73] The respondent says that nevertheless, Mr Taylor could himself have filed something simply to hold the position, while he did obtain legal advice. However, that is linked to the factor at [34(b)] above. The decision letter did not state that there was a right of review or a time limit to exercise that right. The Minister was not obliged to advise Mr Taylor of that, but it does not sit easily to say that nevertheless Mr Taylor should have taken some holding steps to preserve the position while seeking legal advice, when he did not know there was a time limit.
[74] Although Whanganui was not in Covid lockdown at the relevant time, nevertheless I do not underestimate the impact of the environment created by the Covid pandemic and its general restrictions, particularly for someone in Mr Taylor’s position.
[75] The “ignorance of the law is no excuse” principle has little application here.42 The fact that an ordinary member of the public (in this case, someone with a relatively limited command of the English language) would not know of the arcane process of judicial review cannot be equated with ignorance of the law being advanced as an excuse for committing an offence against the criminal law.
[76] Mr McGhie says that the interests of Mr Taylor’s children (both N and the unborn baby) are also relevant to the special circumstances assessment. In Ly v Minister of Immigration,43 Whata J considered the question whether the meaning of “special circumstances” is informed by international obligations. Whata J said:44
Intuitively, I find it difficult to comprehend that Parliament would not consider the interests of the child to be relevant in the context of s 247, while at the same time making it a mandatory relevant consideration under s 177. Nevertheless I do not propose to decide the point; I have simply proceeded on the basis that the rights of the child are relevant so as to fully ventilate the applicant’s application.
[77] I adopt that view. Here, the evidence from Mr Taylor’s partner, Ms S, is that she is a New Zealand citizen who has lived her whole life in New Zealand. Her parents are separated and she has lived with her European mother and not her Fijian father.
42 For a contrary view, see Bhasin v Immigration and Protection Tribunal, above n 14.
43 Ly v Minister of Immigration, above n 31, at [38].
44 At [38].
She cannot speak Fijian and could not make the adjustment to village life in Fiji. In addition, Mr Taylor’s evidence is that his two children could not properly live in the village he comes from, with the limited health and education facilities on offer in Fiji.
[78] Ms Clarke points to cases that indicate that limited English language, financial difficulties, and the lack of availability of legal aid cannot be described as unusual or out of the ordinary but are, rather, within what could be described as “commonplace”. As the Minister is not obliged to advise of statutory time limits for judicial review in decision letters of this type, and it is not general practice to do so, Mr Taylor is not disadvantaged compared to others in his position.
[79] The requirement in Rajan is to identify circumstances that are “uncommon, not commonplace, out of the ordinary, abnormal”. Implicitly, it is other applicants in a similar position for whom the conditions must be uncommon. Plainly, many if not most applicants under the Act will be unaware of their full legal rights, be in compromised economic circumstances and have English as a second language. The unfortunate effect of the Rajan test is to penalise disadvantaged applicants for their vulnerability.
[80] The impact of having to operate in a culture not one’s own, and in a second language, is significant. Mr McGhie referred the Court to a September 2021 New Zealand Law Society survey of all lawyers to assess the current state of access to justice in Aotearoa New Zealand. The results of the survey were published in LawTalk.45 The Pacific perspective on access to justice is articulated by South Auckland-based barrister Panama Le’au’anae, who said he sees many people coming from the Pacific Islands with English as a second language struggling to understand the nuances of New Zealand society. In Mr Le’au’anae’s view, communication is a critical issue for many people going through the justice system: English is typically a second language and defendants from Pasifika backgrounds often need considerable care and diligence to ensure they properly access justice.
[81] I accept that taken singly, the factors relied on by Mr Taylor would not constitute “special circumstances”. However, in this case, Mr Taylor’s limited
45 LawTalk, Issue 948, Summer 2021.
English, his lack of familiarity with legal processes, the unavailability of legal assistance – particularly in relation to a judicial review application – in Whanganui, during Covid times, and his financial position (he had no income and, in the absence of a visa, was not eligible for legal aid) must be viewed cumulatively.
[82] In conclusion, I am persuaded that the totality of the reasons for the delay, together with the length of the delay, mean that the “special circumstances” threshold is met, albeit by a relatively narrow margin.
Merits of the claim
[83] Given my finding as to special circumstances, I have gone on to consider the merits of the proposed judicial review application.
[84]In Rajan, the Court of Appeal held:46
Brief examination of the merits may in some cases be called for…
Examination of the merits could tip the balance in a marginal case. For example where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. We doubt, however, that even very strong merits could ever justify an extension if (as here) there is no proper excuse for a delay in filing…
[85]In Zanzoul, the High Court said:47
The merits… should not automatically be considered when assessing a grant of leave, and only in a marginal case will the perceived strength of the merits tip the scales in favour of granting leave.
Scope of judicial review
[86] Mr Taylor seeks to judicially review the Associate Minister’s decision under s 61 of the Act which provides:
(2)A decision to grant a visa under subs (1) is in the Minister’s absolute discretion.
[87]Section 11, in turn, sets out the meaning of “absolute discretion”. It provides:
46 Rajan, above n 11, at [29]-[30].
47 Zanzoul, above n 17, at [38].
11 Meaning of absolute discretion of the decision maker
(1)If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that—
(a)the matter or decision may not be applied for; and
(b)if a person purports to apply for the matter or decision, there is no obligation on the decision maker to—
(i)consider the purported application; or
(ii)inquire into the circumstances of the person or any other person; or
(iii)make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and
(c)whether the purported application is considered or not,—
(i)the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and
(ia) privacy principle 6 (which relates to access to personal information and is set out in section 22 of the Privacy Act 2020) does not apply to any reasons for any decision relating to the purported application; and
(ii)section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application.
(2)Subsection (1)(c)(ia) applies to any decision made in relation to a purported application, whether the decision was made before or after the commencement of that subsection.
[88] Zhang v Associate Minister of Immigration48 remains the leading decision in relation to the scope of judicial review. There, the Court of Appeal, noting that the Minister was exercising an absolute discretion, pursuant to s 61 of the Act, said:49
… the availability of judicial review as a remedy is very limited. Effectively, the Court is limited to examining whether, on the information available to [the Minister], his decision could be seen as unreasonable in the Wednesbury sense.
[89] It is clear that the Associate Minister had no obligation to record his reasons.50 I accept that Immigration Instruction A23.10 has no application to the Minister, it being directed at Immigration Officers. It does not oblige the Minister to record reasons. Nor does the absence of recorded reasons amount to a reviewable error.51
48 Zhang v Associate Minister of Immigration, above n 22.
49 At [23].
50 Singh v Associate Minister of Immigration [2018] NZHC 44 at [44].
51 Zhang v Associate Minister of Immigration, above n 22, at [25].
The s 61 discretion is, as the Crown submits, a bare absolute discretion. Section 61 precludes formal application and the expectations that go with the act of applying.
There are no specified procedural requirements for decisions made under s 61.52
[90] Nor is the Associate Minister’s decision letter a Deportation Liability Notice, and therefore, none of the procedural requirements of s 171 of the Act apply.
[91] The Associate Minister was entitled to take into account that Mr Taylor was and is unlawfully in New Zealand and this is the second time his position has become unlawful. The Senior Immigration Officer’s decision of 9 February 2021 to decline Mr Taylor’s application for a visa did not refer to the fact that Mr Taylor’s Fijian passport had been stolen and he had been advised he could not make a further visa application until he received a new one. The decision said “…he [Mr Taylor] has not provided an explanation for why he has remained unlawfully in NZ since the expiry of his work visa in 08/2019.” However, the stolen passport is referred to twice in the case note prepared by Immigration New Zealand for the Associate Minister. Both references note the submission that the absence of a passport left Mr Taylor unable to apply for a further visa. This was clearly a matter before the Associate Minister although he does not refer to it in the decision letter.
[92] Mr Taylor had failed in his various visa applications/requests to disclose all of his convictions, in breach of his duty of disclosure. If Mr Taylor had been applying for a visa, this would have been sufficient grounds for the Minister to decline to grant the visa. As the Crown submitted, the fact that another decision-maker has previously exercised their discretion to waive requirements does not indicate that all reasonable decision-makers would necessarily do so. The Associate Minister’s decision was not unreasonable on that basis alone.53
52 Contrast, for example, s 177 of the Act which is also an absolute discretion but is procedurally more prescriptive and constraining.
53 Devi v Minister of Immigration, above n 24, at [27].
[93] Mr Taylor’s right to apply for judicial review under the Bill of Rights Act is still protected despite its regulation through procedural mechanisms such as time limits.54
[94] In particular, I note that the interests of N were placed before the Associate Minister, both by way of Mr Taylor’s own representations, which refer directly to N, and to the international instruments on which Mr Taylor relies. In addition, the case note prepared by Immigration New Zealand which was before the Associate Minister referred to international obligations in respect of children. The Associate Minister in his 23 September 2021 letter confirmed that he had carefully considered Mr Taylor’s representations. There is no basis on which an inference could be drawn that the Associate Minister did not read and consider this material and take N’s interests into account.
[95] Having regard to the material that the Associate Minister had before him, I conclude that his decision not to intervene was not unreasonable in a Wednesbury sense. Ultimately, it was a matter for the Associate Minister’s judgement how he weighed the various considerations.
[96] It might be that a different Minister, or this Court, might have reached a different conclusion based on the information supplied to the Associate Minister, but the result cannot be described as irrational so as to give rise to a reviewable error.
[97] I acknowledge that the effect of that finding is harsh. If Mr Taylor is required to leave New Zealand and return to Fiji that will have significant, adverse consequences for him and for his family. Those consequences are potentially permanent, unless Mr Taylor were to depart New Zealand voluntarily before a deportation order is served on him and make a successful application for a visa from offshore, based on his relationship with Ms S.55
54 Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council [2015] NZCA 612, [2016] 2 NZLR 437 at [77], cited in Ochibulu v Immigration and Protection Tribunal, above n 39, at [83].
55 I am grateful for the Crown’s acknowledgment that Immigration New Zealand will not deport Mr Taylor in advance of this decision being issued. I also note that Immigration New Zealand does not give any guarantee that such an application would be successful.
[98] However, on the facts before me I am not satisfied that there is legal merit in the application for review and I must decline the applicant’s application for leave pursuant to s 247(1) of the Act to file review proceedings out of time.
Costs
[99]Mr Taylor is legally aided. There is no award of costs.
Gwyn J
Solicitors:
Crown Law Office, Wellington Ruapehu Law, Whanganui
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