Wang v Minister of Immigration - [2013] NZHC 2563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7116 [2013] NZHC 2563

UNDER The Judicature Amendment Act 1972

IN THE MATTER OF The Immigration Act 2009

BETWEEN HONG WANG First Plaintiff

LAN XIAO Second Plaintiff
SHIYU WANG Third Plaintiff

ANDMINISTER OF IMMIGRATION Defendant

Hearing: 31 July 2013
Memoranda filed 30 August 2013, 13 September 2013 and
18 September 2013

Counsel: J McBride for the Plaintiffs
C A Griffin for the Defendant

Judgment: 2 October 2013

JUDGMENT (NO 2) OF BROWN J

This judgment was delivered by me on 2 October 2013 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Law, Wellington
Winston Wang & Associates, Newmarket, Auckland

Counsel: J A McBride, Wellesley Street, Auckland 1141
RPG Haines QC, Barrister, Auckland

WANG v MINISTER OF IMMIGRATION [2013] NZHC 2563 [2 October 2013]

[1] The plaintiffs filed a judicial review proceeding which they sought to have heard in advance of their appeal to the Immigration and Protection Tribunal (“IPT”) on the ground that the IPT did not have jurisdiction to entertain the matter the subject of the judicial review. The Crown contended that the IPT did have jurisdiction and that s 249(1) therefore applied with the consequence that the High Court did not have jurisdiction to hear the judicial review until after the plaintiffs’ appeals had been heard and determined by the IPT.

[2] In my judgment of 15 August 2013 I held that s 249(1) precluded the plaintiffs’ review proceedings being heard pending the determination of the plaintiffs’ appeals lodged with the IPT. Counsel had agreed that I should defer making any formal orders pending receipt of memoranda as to how the matter might be finally resolved. Counsel for the defendant and the plaintiffs have now filed memoranda as to remedy and costs.

Remedy

[3] The defendant seeks an order that the review proceeding should be dismissed for want of jurisdiction. The Minister submits that if s 249(1) applies then review proceedings cannot be brought in any court until after the conclusion of the IPT appeal and that there was therefore no jurisdiction for the plaintiffs to file the judicial review proceedings on 28 November 2012. With reference to the amendments to s 249 in 2013, in particular the insertion of a leave requirement, the Minister submits that the fact of those amendments does not provide a principled basis to adjourn rather than dismiss the proceeding. The Minister submits:

(a) The fact that s 249 is an ordering provision, now subject to a leave requirement, rather than an absolute privative clause, does not warrant a different approach;

(b)An adjournment would preserve an advantage for the plaintiffs to which they were not entitled on 28 November 2012 or after
19 June 2013 when the leave requirement came into force; and

(c) Dismissal does not give rise to an unfair advantage to the Minister or an unfair disadvantage to the plaintiffs. The Minister is equally the subject of the leave requirement as at 19…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wang v Minister of Immigration

Details

AGLC: Wang v Minister of Immigration [2013] NZHC 2563
Case: [2013] NZHC 2563
Decision Date: 2 October 2013

CaseChat Overview and Summary

This case involves a judicial review proceeding brought by Hong Wang, Lan Xiao, and Shiyu Wang against the Minister of Immigration. The plaintiffs sought to have the matter heard before their appeal to the Immigration and Protection Tribunal (IPT) on the basis that the IPT did not have jurisdiction to entertain the matter. The Crown contended that the IPT did have jurisdiction, and that section 249(1) precluded the High Court from hearing the judicial review until after the plaintiffs' appeals had been heard and determined by the IPT.

The court held that section 249(1) precluded the plaintiffs' review proceedings being heard pending the determination of the plaintiffs' appeals lodged with the IPT. The court found that the IPT did have jurisdiction to hear the matter and that the plaintiffs' judicial review proceedings were filed prematurely. The court dismissed the proceedings for want of jurisdiction, which was a misnomer as the court found it had jurisdiction but was precluded from hearing the matter at that time. The court also found that the matter was not of sufficient public interest to warrant a reduction in the costs awarded to the defendant.

The plaintiffs sought to stay the proceedings rather than dismiss them, arguing that there was no prejudice to the defendant if the proceeding remained on foot but stayed. However, the court found that to accommodate the plaintiffs' request would involve potential inconsistency of treatment of persons affected by the Immigration Act 2009. The court found that the plaintiffs' position was not fairly categorised in terms of substantial prejudice and disadvantage, and that the course which they invited the court to take was inappropriate in terms of the statutory scheme. The court also found that the matter was not of sufficient public interest to warrant a reduction in the costs awarded to the defendant.

Orders