Wang v Minister of Immigration
[2013] NZHC 2059
•15 August 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-7116 [2013] NZHC 2059
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
AND
MINISTER OF IMMIGRATION Defendant
Hearing: 31 July 2013 Counsel:
RPG Haines QC for the Plaintiffs
C A Griffin for the DefendantJudgment:
15 August 2013
JUDGMENT OF BROWN J
This judgment was delivered by me on 15 August 2013 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: C Griffin, Crown Law, Wellington
Counsel: RPG Haines QC, Barrister, Auckland
WANG v MINISTER OF IMMIGRATION [2013] NZHC 2059 [15 August 2013]
[1] The issue for determination is a question of jurisdiction which the parties have agreed should be determined on an interlocutory application, namely whether s 249 of the Immigration Act 2009 (in its original form, that is prior to the 2013
Amendment Act) is effective to preclude the plaintiffs’ request that their judicial review be determined prior to the hearing of their appeals lodged with the Immigration Protection Tribunal (IPT) against their liability for deportation.
[2] For the purposes of the hearing a bundle of documents was prepared to provide context to the legal argument. However, as discussed with counsel, I record that the status of that bundle is not evidence as such but was received for information purposes. Consequently the recitation of the factual background which follows is not, and is not intended to be, a finding of fact on any issue at this time.
Background to the issue for determination
[3] The plaintiffs are Chinese citizens who hold New Zealand resident visas having been granted residence permits in January 2006 under the Immigration Act
1987. The first plaintiff was the principal applicant under the business (investor)
category.
[4] By deportation liability notices dated 17 October 2012 the Minister of Immigration determined that the plaintiffs were liable for deportation under s 159(1)(a) of the 2009 Act on the basis that they had materially breached a condition of their residence visas.
[5] The asserted condition was the requirement that the first plaintiff retain
NZ$1 million in an approved investment fund in New Zealand for two years from
8 July 2005. This was a requirement of the Government’s residence policy, then
authorised under s 13D of the 1987 Act.
[6] The requirement was set out in the approval in principle letter dated 9 July
2004 and in the final approval letter dated 10 January 2006 granting the residence permits. The latter expressly advised that failure to meet that requirement could result in revocation of the plaintiffs’ residence. This letter was sent by a courier to the first plaintiff, care of a solicitor who was the first plaintiff’s agent at the time.
However the first plaintiff takes the position that the former New Zealand Immigration Service (“NZIS”) did not obtain from the first plaintiff’s solicitor a memorandum accepting service of the 10 January 2006 letter as required by ss 146(3) and (4) of the 1987 Act and that at all material times the first plaintiff was unaware of the two year investment condition.
[7] Although the first plaintiff duly made the investment, between 30 November
2005 and 16 December 2005, without notifying or seeking approval from NZIS, the first plaintiff withdrew the money from the approved investment fund. No issue arises at this time for determination as to whether the first plaintiff had actual or constructive knowledge of the condition at the time he withdrew his investment fund. NZIS granted the residence permits in January 2006 which was at a point in time when, it would appear, the plaintiffs were no longer eligible for residence under the business (investor) category.
[8] In the statement of claim dated 28 November 2012 the plaintiffs seek judicial review of the deportation liability notices. The plaintiffs allege that the Minister does not have power to make a deportation liability determination under s 159 because the plaintiffs do not hold resident visas subject to the relevant condition.
The plaintiffs contend that:
Theinvestment requirement and the consequences of failure to comply with that requirement were not notified to the plaintiffs by any of the means
permitted by ss 146(3) and (4) of the 1987 Act;
The Immigration Officer thereby failed to comply with the notice
requirement contained in s 18A(4) of the 1987 Act.
[9] Also on 28 November 2012 the plaintiffs lodged appeals against the deportation liability notices with the IPT, both on the facts and on humanitarian grounds.
[10] While a number of points are raised in the statement of defence, the material issue for the purposes of the present application is the first affirmative defence at paragraph 11 which states:
The High Court does not have jurisdiction to hear and determine this application for judicial review until after the plaintiffs’ appeals lodged with the Immigration and Protection Tribunal (IPT) on 28 November 2012 have been heard and determined by the IPT: ss 201-203, 206 and 249 IA 2009.
[11] The plaintiffs counter in their notice of opposition to the current application by saying:
As a statutory tribunal of limited jurisdiction the IPT does not have jurisdiction to determine whether the Minister’s “determination” was unlawful. Nor does the Tribunal have jurisdiction to determine the logically prior issue whether the conditions themselves were intra vires and lawfully imposed on the holder of the visa.
[12] The plaintiffs submit that if their contention is correct (that the IPT has no jurisdiction over the matters pleaded in the statement of claim) all issues relating to s 249 fall away. They further say that it would be wrong for the IPT to insist that the two appeals be heard prior to the determination of their legal challenge in this Court because the IPT would necessarily have to presume as valid the very decision the lawfulness of which is in question.
Section 249
[13] Section 249 in its form relevant to the present matter1 reads:
249 Restriction on review
(1) No review proceedings may be brought in any court in respect of a decision if the decision, or the effect of the decision, may be subject to an appeal to the Tribunal under this Act.
(2) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
1 Section 249 was amended by the Immigration Amendment Act 2013. It is common ground that the former s 249 continues to have effect for the purpose of this proceeding by virtue of s 18(2) of the Interpretation Act 1999.
[14] Hence the dispute between the parties as to whether a review proceeding may be brought turns on the answer to the question: may the decision, sought to be reviewed, be subject to an appeal to the IPT under the Act?
The Minister’s argument: an appeal is available
[15] Ms Griffin first placed emphasis on the broader statutory setting for s 249 including drawing attention to:
(i)A purpose of Part 7 being “to provide comprehensively for the system of appeal and review in respect of decision making” under the Act: s 184(a).
(ii)The existence of “a specialist tribunal to determine appeals and other matters” under the Act: s 184(b).
(iii) The confined role of the higher courts: ss 245 and 246.
(iv)The requirement that appeal and review proceedings against the same IPT decision be lodged together and, where practicable, be heard and determined together by the High Court: s 247.
[16] In consequence it was said that the statutory structure (of which s 249 was said to be a key aspect) was designed to ensure a streamlined process where appeals and challenges to decisions are dealt with expeditiously, both by the High Court and by the IPT, the latter being required, where practicable, to consider together appeals on the facts and appeals on humanitarian grounds and may issue a single decision: ss 203 and 235. A contrast was drawn with what was said to have been the convoluted and time consuming mechanisms which prevailed under the 1987 Act. Indeed it was submitted that s 249 and the scope of the IPT’s jurisdiction was Parliament’s deliberate reaction to such previous mechanisms.
[17] It was argued for the Minister that, by filing their current application for judicial review ahead of the IPT’s determination of the appeals, the plaintiffs were seeking to upset the careful balance and streamlining of the appeal and review rights
in the 2009 Act. The Minister’s contention is that the scope of the plaintiffs’ right to appeal to the IPT on the facts is broad enough to encompass the complaints the plaintiffs make with reference to the asserted condition; namely that the condition said to be breached did not exist because the condition and its consequences were not notified in accordance with ss 18A(4) and 146(3) and (4) of the 1987 Act. The Minister’s argument is that the determination of whether the “conditions” of the visa were met, or substantially met, for the purposes of s 202(d) necessarily includes a prior determination that conditions capable of being met or breached were actually imposed.
[18] However, noting the Tribunal’s recent decision in Re Kumar,2 the Minister contended that whether the IPT has jurisdiction in a particular case will always depend on the nature of the challenge vis à vis the particular statutory context. In particular it was said that it was not necessary in the context of the present proceeding to determine the full extent of the challenges that may fall within the scope of s 202(d).
[19] Finally the Minister emphasised that s 249 is not a privative clause that ousts judicial review in breach of s 27(2) of the New Zealand Bill of Rights Act 1990 (“NZBORA”). Rather it simply delays judicial review until after the determination of the related statutory appeals.
The plaintiffs’ argument: IPT has no jurisdiction over the pleaded matters
[20] Mr Haines QC contended that the Minister’s assertion that the IPT has jurisdiction to engage in what he described as a judicial review-like examination of the lawfulness, reasonableness and fairness of the decision made by the Minister or by Immigration New Zealand is one having enormous doctrinal implications, citing
inter alia Auckland District Court v Attorney-General.3 In short his argument was
that, unlike the High Court, the IPT is not a court of general jurisdiction but rather an inferior tribunal with a limited statutory jurisdiction over a narrow range of immigration matters, as exemplified by the confined nature of the term “appeal on
the facts”.
2 Re Kumar [2012] NZIPT 500546.
3 Auckland District Court v Attorney-General [1993] 2 NZLR 129 at 133 (CA).
[21] “Appeal on the facts” is a term defined in s 4 to mean an appeal against liability for deportation on a ground set out in s 202. Section 202(d) envisages only two grounds for allowing an “on the facts” appeal under s 159, namely:
(i) The conditions of the resident visa were met; or
(ii)The resident has not materially breached the conditions of his or her visa.
[22] Mr Haines drew attention to the fact that the language in s 202(d) is identical to that in s 159(1) except that in the former the propositions are positive whereas in the latter they are negative.
[23] He submitted that the statutory language read in context precluded reading “appeal on the facts” as conferring on the IPT a jurisdiction to engage in an examination of the lawfulness of the Minister’s decision and of the lawfulness of the actions of Immigration New Zealand. But the plaintiffs’ case is that the conditions were not lawfully imposed for the reasons advanced in the statement of claim and that the Minister acted unlawfully when making his determination under s 159(1) because the plaintiffs’ visas were not held subject to requirements imposed under s 18A of the 1987 Act. Consequently if the IPT had no jurisdiction over the pleaded matters then all issues relating to s 249 fall away.
[24] As an alternative argument Mr Haines invoked the saving provision in s 249(2), submitting that s 247 “affects” the ability to bring review proceedings. In essence the argument was that s 247 cannot be read as anything but a provision which implicitly recognises the right to bring review proceedings and it followed that s 249(1)4 does not limit the ability to bring review proceedings.
[25] Finally it was argued that s 249 is not a justifiable limit on s 27(2) of the NZBORA, and s 6 of the NZBORA requires a meaning to be given to s 249 consistent with s 27(2).
Discussion
[26] The plaintiffs’ contention is that the IPT’s jurisdiction (and similarly the jurisdiction of the Minister under s 159(1)) is specific and contained. Their submission stated that the grounds which frame the statutory inquiry (both at first instance by the Minister and on appeal by the IPT) are the same: it is an inquiry into fact. As a statutory tribunal of limited jurisdiction the IPT does not have jurisdiction either to determine whether the conditions were intra vires and lawfully imposed on the holder of the visa or whether the Minister’s “determination” was unlawful, unreasonable or unfair.
[27] I may not have had much difficulty (had I been required to decide) with the proposition that certain matters were beyond the IPT’s jurisdiction: for example, a challenge to the Minister’s determination on the basis of bad faith, irrationality or vires (in the true sense). However I accept Ms Griffin’s caution that it is not necessary in the context of this proceeding to determine the full extent of the challenges that do (or, I would add, do not) fall within the scope of s 202(d).
[28] The issue before me is solely whether the plaintiffs’ challenge to the existence of the asserted condition on the visas (on the grounds that the process for imposition of the conditions was not performed in compliance with the statute) falls within the scope of the IPT’s appellate function under s 202(d). The plaintiffs’ formulation of that challenge is that the conditions were not lawfully imposed, that the Minister’s determination was accordingly unlawful and that such circumstances are not “grounds” stipulated in s 202(d) which can be raised in an “appeal on the facts”. The Minister depicts that challenge as one to the factual existence of a “condition” on a visa and as such a matter properly falling within the scope of the term “condition” in s 202(d).
[29] In Boddington v British Transport Police5 Lord Irvine of Lairg, LC, remarked:
However, in every case it will be necessary to examine the particular statutory context to determine whether a court hearing a criminal or civil
case has jurisdiction to rule on a defence based upon arguments of invalidity of subordinate legislation or administrative Act under it.
[30] Both counsel recognised the importance of the statutory context. Mr Haines, citing Burrows and Carter Statute Law in New Zealand,6 contended that the natural and ordinary meaning of the phrases “on the facts” and “on a ground” must be the starting point of the interpretation exercise together with the statutory context in which they are used.
[31] However, both generally and particularly in view of the purpose provisions cited for the Minister, I consider it important to focus upon both text and purpose as captured in [22] Commerce Commission v Fonterra Co-operative Group Limited:7
It is necessary to bear in mind that s 5 of the Interpretation Act 1999 makes text and purpose the key drivers of statutory interpretation. The meaning of an enactment must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. In determining purpose the Court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial, or other objective of the enactment.
[32] I do not consider that the phrase “appeal on the facts” of itself takes the matter any distance. The definition of that phrase simply directs one to s 202 appeals (in the same manner as the definition of an appeal on humanitarian grounds directs one to s 207). The more pertinent inquiry is whether (and, if so, to what extent) the “grounds” in s 202(d) confine the IPT’s jurisdiction.
[33] I find myself in agreement with Ms Griffin’s analysis of the implications of the statutory scheme. I set out in full para 43.2 of her written submissions for the Minister:
Unlike the statute at issue in R v Wicks, the statutory scheme here points entirely toward a generous interpretation of s 202(d). A key purpose of the
2009 Act is to provide a robust, comprehensive and efficient system of appeal and review. Allowing a simple challenge to the existence of a
condition, turning on compliance with statutory procedures in a given case,
to remove the Tribunal’s jurisdiction to look at that condition would degrade
6 JF Burrows and RL Carter Statute Law in New Zealand (4th ed LexisNexis, Wellington, 2009) at
291.
7 Commerce Commission v Fonterra Co-operative Group Ltd [2007] 3 NZLR 767 (SC).
the otherwise meaningful and substantive jurisdiction of a s 202(d) appeal on facts. It would also delay the otherwise efficient determination of appeals and review, by either delaying the Tribunal appeal (as suggested in the present case) while the review (and any subsequent appeal) is determined, or by requiring simultaneous Tribunal appeals and High Court reviews on the same facts, with the review being determined without the benefit of the Tribunal’s findings of fact. It then prevents streamlined consideration of appeals on facts and humanitarian grounds first by the Tribunal and then subsequently by the High Court, contrary to ss 203 and 247(2).
[34] The plaintiffs contend that the IPT is required to proceed on the assumption that, for the purposes of the plaintiffs’ appeals, the visa conditions were lawfully imposed. In rejecting that contention the Minister points to s 366(1) and argues that a certificate signed by an immigration officer establishes only a rebuttable presumption of truth of the statement. The Minister submits that it is open to the IPT to conclude that a condition said by the Ministry to exist does not in fact exist.
[35] Mr Haines contended that the interpretation urged by the Minister is at odds with long-established jurisdictional boundaries citing the judgment in L v Removal Review Authority8 that it was not possible to raise before the (now disestablished) Removal Review Authority a complaint that a notice of revocation served by Immigration New Zealand was defective.9 However Ms Griffin countered that L and Kalsi were cases where only a humanitarian grounds appeal was available and the Tribunal was limited to considering compassionate factors.
[36] In order to determine under s 202(d)(i) whether a condition of the resident visa was met, the IPT must necessarily have an understanding of what the relevant condition was: the same is true under s 202(d)(ii) with reference to the inquiry whether a condition has or has not been materially breached. Relatedly I accept the Minister’s submission that the determination whether the “conditions” of the visa were met or substantially met for the purposes of s 202(d) necessarily includes a prior determination that conditions capable of being met or breached were actually imposed. To put it slightly differently, an understanding of what the condition required and whether the condition was in fact imposed are matters which are
necessarily within the penumbra of the specific grounds in s 202(d).
8 L v Removal Review Authority HC Wellington CIV-2005-485-1601, 3 March 2006.
9 Kalsi [2013] NZIPT 500519 (18 January 2013) was also cited.
The relationship between ss 247 and 249
[37] Section 249(2) states:
Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
Section 247(1) provides:
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 the High Court decides that, by reason of special circumstances, further time should be allowed.
[38] Observing that there is a degree of untidiness in the drafting of ss 247 and
249, Mr Haines noted that under s 247 a proceeding must be “commenced” not later than 28 days after the date on which the person is notified of the decision, which time period is identical to that during which an appeal must be “lodged”10 with the IPT under s 159. By contrast s 249 employs the terms “brought” and “made” in respect of a proceeding and an appeal respectively.
[39] In consequence the plaintiffs argue that s 249(1) purports to prohibit that which s 247 permits. Mr Haines’ answer to what he described as the apparent impasse between ss 247 and 249 lies in s 249(2). The argument was that s 247 is another provision of the Act that “affects” the ability to bring review proceedings. Consequently s 249(2) is engaged and s 249 is not effective to limit the ability to bring review proceedings.
[40] In response the Minister argued that ss 247 and 249 are consistent. Taken together, it was said, they direct the sequence that is to be followed for challenges to immigration decisions.
[41] In my view the rationalisation is even simpler. Section 247 places a 28 day time limit (subject to extension by the High Court or under subs (4)) for commencing a judicial review proceeding which proceeding is entitled to be brought. If a proceeding is precluded by s 249(1) then the s 247 time limit does not
apply. However if the decision sought to be challenged on review is not one which may be subject to an appeal to the IPT then the s 249(1) restriction does not apply and the 28 days time limit in s 247(1) is operative.
[42] Mr Haines mounted a further argument on the relationship between ss 247 and 249 by reference to the new form of s 249 as amended by the Immigration Amendment Act 2013. He contended that a draconian consequence would follow if the Minister’s interpretation was accepted because the amended s 249 would have all but closed the door on review proceedings in immigration cases. He referred to the requirement in subs (1B) to obtain leave and to the criteria in subs (1C) to which regard is to be had in considering whether to grant leave. Whether or not that should prove to be the outcome, it is not open to this Court to construe the pre-2013 amendment form of s 249 by reference to the subsequent amendments that
Parliament has made: Databank Systems Ltd v Commissioner of Inland Revenue.11
[43] That said, I am not convinced that the apprehended draconian consequence would necessarily follow. Under the amended legislation in the case of a matter to which s 249(1) applies (that is, a decision which may be subject to an appeal to the Tribunal), no judicial review may be brought until after the grant of leave to bring the review proceedings following the appeal (if brought). I suggest that s 247 would be likely to be construed such that the 28 day period ran from the date of the decision granting leave.
[44] Finally with reference to the plaintiffs’ NZBORA argument I am unable to accept that s 249(1) in its original form is not a justifiable limit on s 27(2) of the NZBORA for the reason that s 249(1) is not a privative clause ousting judicial review but it simply delays judicial review until after the determination of the related statutory appeals.
Disposition
[45] I conclude that the issue which this present case raises, namely the question whether the relevant condition was in fact imposed, is one which the IPT has
jurisdiction to determine. Hence s 249(1) in its form relevant to the present matter precludes the plaintiffs’ review proceedings being heard pending the determination of the plaintiffs’ appeals lodged with the IPT.
[46] So far as a formal order is concerned, counsel drew attention to the particular circumstances which prevail in this case. In the event where the plaintiffs’ judicial review proceedings are already on foot but where the legislation has since been amended by the 2013 Amendment Act, counsel agreed that I should proceed to deliver judgment on the question of jurisdiction but defer making any formal orders pending counsel having the opportunity to consider this judgment and to confer and file memoranda as to how the matter might be finally resolved. Consequently I adjourn the application to provide counsel with the opportunity to do so.
[47] The Minister is entitled to costs on the application. My provisional view is that costs should be calculated on a 2B basis but I leave that matter open to be
addressed by the parties in the memoranda to which I have already referred.
Brown J
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