Zheng v Chief Executive of the Ministry of Business, Innovation and Employment

[2013] NZHC 1257

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2953 [2013] NZHC 1257

BETWEEN  MAOFENG ZHENG Plaintiff

ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant

Hearing:                   29 May 2013

Counsel:                  F Deliu and Z Chen for the Plaintiff

A Longdill for the Defendant

Judgment:                29 May 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel

Dr F Deliu, Barrister, Auckland

Mr R Zhao (instructing solicitor for the plaintiff), Barrister, Auckland

Ms A Longdill, Meredith Connell, Office of the Crown Solicitor, Auckland

ZHENG v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 1257 [29 May 2013]

[1]      This is an application for an interim injunction as part of an application for judicial  review  of  a  decision  of  an  immigration  officer  under  s 177  of  the Immigration Act 2009 (the Act) not to cancel an order for the deportation of the plaintiff.

[2]      The plaintiff has been illegally in New Zealand since March 2012.  He was arrested on a deportation order yesterday, 28 May 2013.   This morning at approximately 11:00 am the plaintiff had a meeting with an immigration officer who made  a  record  of  personal  circumstances  in  accordance  with  s 177  of  the Act. Present at the time were Mrs Chen and Mr Huang, solicitor and a legal assistant respectively, on behalf of the plaintiff, and an interpreter.  I have been provided with the record of personal circumstances which is a detailed document on the standard form and recording a substantial amount of information.

[3]      Central  to  the  plaintiff’s  representations  to  the  immigration  officer,  and central to the matters that have been put before me by Dr Deliu on the application for an injunction, is the nature of the relationship the plaintiff has with Ms Meng Meng Zheng with whom he has had a relationship since, according to an affidavit from Ms Zheng, May 2011.  The immigration officer interviewed Ms Zheng at around 2:00 pm today and as I understand it that was an interview for approximately an hour.

[4]      In an email timed at 5:06 pm from the immigration officer to Mrs Chen and the plaintiff’s counsel, Dr Deliu, advice was given that Immigration New Zealand had decided to proceed with the plaintiff’s deportation.1

[5]      This application was filed at around 5:00 pm.  The hearing was not able to begin until around 6:00 pm.   Ms Longdill appeared at relatively short notice on behalf of the defendant although she had received earlier advice that this application was going to be made.  I have heard careful submissions from both counsel and it is now 8:00 pm.   The removal from New Zealand is scheduled to occur on a plane leaving for China at 11:00 pm this evening.  Given the significant pressure of time

that arises I intend to record my decision in a distinctly abbreviated form.

1 For purposes of clarity this paragraph has been added to the transcript of the oral judgment.

[6]      I am not persuaded that an interim injunction should be granted.  My reasons follow.

[7]      The grounds that are advanced for the plaintiff are contained with clarity in the statement of claim.  However, I intend to address the issues in a slightly different way.

[8]      Underpinning all of the arguments, in my judgment, is the fundamental contention that, as a consequence of wrong processes or other aspects of the decision making, no adequate regard has been had to information relating to the strength of the relationship between the plaintiff and Ms Zheng.   The short answer to these arguments, which have been presented in different ways, is that these involve matters of a humanitarian nature and questions of a humanitarian nature are not matters which an immigration officer can take into account under s 177.  Those are matters in respect of which the plaintiff had statutory rights which he could have exercised some considerable time ago.  He was notified of these rights.  For whatever reason he did not exercise them.

[9]      A specific complaint is a proposition which is supported by some evidence that, in effect, the plaintiff was misled by the immigration officer.   There is some evidence that the plaintiff’s representatives were advised at the interview at 11:00 o’clock this morning that they had until 11:00 pm to provide further information. But then at 3:00 pm (2:59 pm to be precise in an email) advice was given that any further information would have to be provided by 4:00 pm.  I am not persuaded that this provides grounds for granting the application.  There are two basic reasons.  The information sought to be provided is information relating to humanitarian considerations.  The second is that on the basis of the evidence I am satisfied that the statutory obligations on the immigration officer were met.   In relation to allowing time I note that only 11 days or so ago a similar proposition was put to Brewer J in

the case of Leung v The Chief Executive.2    The Judge said at [12] that in his view

s 177 excludes a right to a person being deported to require a reasonable period of time in which to provide supporting evidence.  I agree with that.  But in addition, on

2 Leung v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC

1158.

the  plaintiff’s  evidence,  I  am  satisfied  to  the  extent  that  I  need  to  be  when considering an interim injunction application, that there was reasonable time.

[10]     A  separate  point  concerns  the  obligation  on  the  immigration  officer  to consider international obligations.  The statutory requirements are in s 177.  Dr Deliu submitted that there has been breach of the statutory obligation in s 177(5). This was directed to what was submitted to be the inadequacy of the statement in the record of personal circumstances relating to international obligations considered by the officer.

Dr Deliu referred me to a decision of Fogarty J in Ewebiyi v Parr.3    In essence the

Judge expressed an opinion that more was required than simply a reference to the international obligations that may have been considered.   A contrary opinion has been expressed by Lang J in Babulal4  and by Brewer J in Leung.5    With respect, I agree with the opinions of Lang J and Brewer J.  Dr Deliu, in that regard, when I indicated in effect that I agreed, reasonably enough reminded me of the test that applies on an application for an interim injunction.  I should perhaps have indicated what that test is a little earlier – or at least the test that I am now applying.  Certainly in immigration cases the enquiry is whether there is a real contest between the

parties and whether the applicant has a reasonable chance of succeeding in that contest.  The opinion of Fogarty J in my judgment is not sufficient to indicate in this context that there is a reasonable chance of success particularly when this is a very focussed issue in the wider context – and I am here taking it back to the underlying argument founded on humanitarian considerations.

[11]     A further ground is that the decision is unreasonable.  I am quite satisfied that it cannot be described as an unreasonable decision on a Wednesbury basis given the

statutory framework.6

3 Ewebiyi v Parr HC Christchurch CIV-2011-409-2010, 7 December 2011.

4 Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773, 29 September

2011.

5 Leung v The Chief Executive of the Ministry of Business, Innovation and Employment, above n 1.

6 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[12]     The remaining consideration that persuades me to decline the application is the second part of the test.   That is, in simple terms, an assessment of adverse consequences for the plaintiff if the application is declined.   I agree with Ms Longdill’s submission that that question is answered by the observations of the Court of Appeal in Parmanadan.7   Ms Longdill referred me to the citation of that authority

and its application by Woolford J in Chen v The Department of Labour.8

[13]     In this rather discursive oral decision I will come back to one or two points. The one argument that initially caused me to pause is the argument that I described to Dr Deliu as the moving of the goalposts; that is, the evidence that the immigration officer changed the time for the supply of further information from 11:00 pm to 4:00 pm.   Notwithstanding the very limited scope for judicial review in respect of decisions made under s 177, the right to seek judicial review remains.  If there was material unfairness to a person facing deportation by being told one thing, and proceeding on the basis of that assurance, and then having that arrangement unilaterally altered in a way which caused real prejudice, that could be a basis for at least granting interim relief.  But I am not persuaded that there is a seriously arguable case of real prejudice in that regard.

[14]     There are two types of information which Dr Deliu submitted the plaintiff was wanting to get before the immigration officer.   The first is evidence of the strength of the relationship between the plaintiff and Ms Zheng.   But there is no material evidence before me that the immigration officer was proceeding on the basis that  there  was  not  a  strong  relationship  between  the  couple.    In  addition,  and although there was no obligation on the immigration officer to do so, as I have earlier indicated he conducted an interview over approximately one hour with Ms Zheng.  This, of course, followed the obviously reasonably long interview with the plaintiff earlier in the morning.  The other type of information that Dr Deliu submits was to have been put before the immigration officer is submissions on behalf of the plaintiff  in  respect  of  international  obligations  that  the  plaintiff’s  solicitor  and

counsel  consider the immigration  officer should  have had  regard to.    I am  not

7 Parmanadan v Minister of Immigration [2010] NZCA 136 at [8]-[11].

8  Chen v The Department of Labour HC Auckland CIV-2011-404-7827, 7 December 2011 at [63]- [64].

persuaded that there was any difficulty for the plaintiff’s representatives to get to the immigration officer any submissions they wished to put before him well before 4:00 pm.

[15]     It is for these reasons that I have concluded that this application for interim relief should be dismissed.  As a consequence the deportation order remains in force on its present terms.

[16]     I have not made any effort to summarise the statutory framework.  What does underpin this decision is the statutory framework.  The rigour of it, at the point that a deportation order has been made and the possibility of the application of s 177 arises, has been made quite clear in numbers of decisions.   These commence under the present  legislative  framework  with  the  decision  of  the  Court  of  Appeal  in

Parmanadan.9    There are probably at this point a substantial number of decisions,

particularly of the High Court, and on applications for urgent interim relief, which do explain the real rigour of the legislation.   The interests to be balanced are well understood.  But the statutory framework also clearly spells out the points at which different types of interest are properly weighed.  I have said these things because it is quite apparent that people who will be adversely affected by this decision are in Court.   But the decision in my judgment flows almost inexorably, if not entirely inexorably, from the statutory framework imposed by Parliament and which the Court is bound to apply.  As I say, it is this statutory framework fully explained in earlier decisions which underpins this decision.

[17]     The defendant seeks costs on a 2B basis and on the general rule that costs follow the event.  Dr Deliu submitted that the costs are likely to be modest because, in essence, the defendant has not had to file any documents other than the notice of opposition and the hearing has taken approximately two-and-a-half hours from 6:00 pm to now, 8:25 pm (although I apprehend Ms Longdill arrived at Court some time shortly after 5:00 pm).  The second point made by Dr Deliu is that the application was not a hopeless one and he referred in particular to the observation I made about the shifting of the goalposts – as I put it – causing me to pause.  This is a case where

I am satisfied that the normal rule should apply and there should be an order for 2B

9 Parmanadan v Minister of Immigration, above n 6.

costs.   If the actual costs are less than scale costs on a 2B basis the defendant is

entitled only to the actual costs, as Ms Longdill acknowledged.

Woodhouse J