Zhang v Immigration and Protection Tribunal

[2013] NZHC 1573

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-004097 [2013] NZHC 1573

UNDER  the Judicature Amendment Act 1972 and the Immigration Act 2009

IN THE MATTER OF       an application for leave to appeal under

s 246 of the Immigration Act 2009 against the judgment of the High Court dated

17 April 2013

BETWEEN  HAO ZHANG Plaintiff

ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL First Defendant

ANDTHE MINISTER OF IMMIGRATION Second Defendant

Hearing:                   25 June 2013

Appearances:           A J Ellis for the Plaintiff

A R Longdill for the Defendants

Judgment:                27 June 2013

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 27 June 2013 at 2.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     A J Ellis, Wellington

Solicitors:    Crown Law, Wellington

ZHANG v IMMIGRATION AND PROTECTION TRIBUNAL and ANOR [2013] NZHC 1573 [27 June 2013]

[1]      Following Mr Zhang’s conviction for the offence of conspiring to import pseudoephedrine, he became subject to a deportation order made by the Minister of Immigration.   He appealed unsuccessfully to the Immigration Protection Tribunal (the Tribunal).    He  then  advanced  an  appeal  to  this  Court  under  s  245  of  the Immigration Act 2009 against the Tribunal’s decision and he also brought a contemporaneous judicial review proceeding of the same decision.   On 17 April

2013 I delivered a decision which dealt with the appeal under s 245 and the judicial review proceeding.   The outcome was successful for Mr Zhang; I found that the Tribunal had made an error of law and so the matter was sent back to the Tribunal for fresh consideration.  The Minister of Immigration took steps to appeal against my decision.  The Minister is entitled to appeal against the judicial review proceeding as of right and he has done so.  But to appeal to the Court of Appeal against a decision of this Court under s 246 of the Immigration Act requires leave of this Court.  The Minister sought leave and his application was opposed by Mr Zhang.  After hearing from the parties, I granted leave to appeal.  I now provide my reasons for doing so.

[2]      Section 246 of the Immigration Act 2009 states:

246     Appeal to Court of Appeal on point of law by leave

(1)       Any party to an appeal under section 245 who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the Court of Appeal.  Section 66 of the Judicature Act 1908 applies to any such appeal.

(2)       In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public important or for any other reason ought to be submitted to the Court of Appeal for its decision.

…

Thus, to appeal under s 246, the Minister must identify an error of law in the determination under appeal.  During the course of the hearing, the Minister modified the errors of law that he identified in the determination. They now are:

1.1Holding   that   the   Immigration   and   Protection   Tribunal   gave inadequate reasons for its decision dated 21 June 2012 in Zhang v Minister of Immigration [2012] NZIPT 5000078 (the IPT decision).

1.2Determining the appeal from the IPT decision, in breach of natural justice, on a ground (inadequate reasons) that was not:

1.2.1    the subject of the grant of leave to appeal;

1.2.2    identified as an issue in case management memoranda;

1.2.3relied on by the appellant in the High Court in its written submission filed in advance of the hearing.

1.3      Directing   that   a    differently   constituted   Tribunal   reconsider

Mr Zhang’s case.

[3]      The Minister submitted that the errors of law that he has identified raise questions of law of general or public importance in terms of s 246.  The first error concerns the obligation of the Tribunal to give adequate reasons.   The second concerns  the  scope  of  this  Court’s  authority,  if  any,  to  find  the  Tribunal  has committed an error of law when the error concerned has not formed part of the “pleading” and other pre-appeal notification.

[4]      The other ground on which the Minister advanced his case was that s 246 permits the grant of leave to appeal for “any other reason”.  The Minister submitted that this provision vests the Court with a broad discretion.  Here, the Minister relied on the fact that the determination of this Court is already under appeal to the Court of Appeal via the appeal against the decision in the judicial review proceeding.  He argued that it would be wrong for what is essentially the same determination to be before the Court of Appeal as of right for the judicial review, but not before that Court as regards the appeal.   Further, he pointed out that for the appeal not to be before that Court would be detrimental to the public interest as it opens up the possibility of the Court of Appeal finding in his favour, but with the appeal determined in this Court remaining in Mr Zhang’s favour.

[5]      Mr Zhang opposed the grant of leave to appeal.  He argued that the errors of law identified by the Minister contained mixed questions of fact and law.  There was merit to this argument, however, the Minister resolved it by modifying the errors of law to remove any factual character.

[6]      Mr Zhang argued that it was always open to a court to correct an error of law and that a court has a duty to determine cases according to the law whether on

clearly articulated grounds or not.  In this regard, he referred to the Privy Council’s

decision in Latimer v Commissioner of Inland Revenue [2004] UKPC 13, [2004] 3

NZLR 157.  This argument goes to the merits of the Minister’s appeal, rather than to

whether it raises an error of law.

[7]      Mr Zhang also contended that the identified errors of law were case specific and did not raise questions of public or general importance.  I think that he is right. The law of adequacy of reasons in general and in the field of immigration law is well developed.  I do not consider that the determination of this Court in Zhang raises any new or novel point of law in this respect.  Whether the legal principles relevant to this topic were wrongly applied in Mr Zhang’s case is a different question which cannot without more be elevated to a question of public or general importance.  I am not satisfied that the Minister has identified something additional that raises this question to the level of being of general or public importance.   The question of whether a court is free to find an error of law has been committed, even if the error is not  clearly  articulated,  is  a  question  that  raises  issues  of  general  or  public importance, though I think that this question has already been resolved by appellate courts.

[8]      It  follows  that  I accepted  Mr  Zhang’s  argument  that  the strength  of  the Minister’s case did not support the grant of leave to appeal.  However, the matter did not end here.

[9]      Mr Zhang argued that there was no harm in the judicial review proceeding being appealed to the Court of Appeal, but not the appeal under the Immigration Act. I did not agree.   I considered that there was a strong public interest in both proceedings being before the Court of Appeal.  It would be a nonsense if the appeal in the judicial review proceeding were to succeed, but the determination of this Court on the appeal under s 245 remained extant simply because the appeal was not before the Court of Appeal.  It is for this reason that I was satisfied the Minister’s application should be allowed.

[10]     The present circumstances suggest a procedural tangle whereby the entire proceedings on which this Court has made its determination do not have a clear

straightforward pathway to the Court of Appeal.  On one view, this can be seen to be the result of a gap in the legislation.   The Immigration Act is relatively new.   It specifically addresses the prospect of someone like Mr Zhang both appealing and judicially reviewing a decision of the Tribunal.   In those circumstances, the Act expressly provides that the two proceedings are to be heard together.  Section 247(2) of the Act provides:

247     Special provisions relating to judicial review

…

(2)       Where a person intends to both appeal against a decision of the Tribunal under this Act and bring review proceedings in respect of that same decision,—

(a)       the person must lodge both the application for appeal and the application for judicial review together; and

(b)       the  High  Court  must  endeavour  to  hear  both  matters together, unless it considers it impracticable in the particular circumstances of the case to do so.

[11]   Despite  the Act  expressly  providing  for  the  manner  in  which contemporaneous appeal and judicial review proceedings are to be heard in this Court, it has provided an appellate pathway beyond this Court, which appears to pay no  regard  to  the  fact  that  appeals  to  the  Court  of  Appeal  in  judicial  review proceedings can be brought as of right, whereas further appeals under the Act require leave to appeal.  In circumstances where there are clearly gaps in new legislation, the Court must do what it can to fill the gap in order to make the legislation workable: see Northern Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530 (HC and CA).

[12]     Section 246 authorises a grant of leave to appeal “for any other reason”. Even though I did not think the points of law put forward by the Minister identified questions of general or public importance, I was satisfied that there were strong reasons that favoured placing the Minister’s appeal before the Court of Appeal. Thus, I considered that it was open to me to grant the application for leave to appeal.

[13]     Alternatively, another way of viewing s 246 is to read the inclusion of the phrase “for any other reason” as demonstrating an intent on Parliament to vest the

Court determining the leave application with sufficient discretionary authority to allow it to deal with circumstances like the present.  Read in this way, rather than there being a gap in the legislation, Parliament can be understood to have provided in a general way for the Court to deal with the type of procedural tangle that the present circumstances display.

Duffy J