Singh v The Associate Minister of Immigration [2016] NZHC 1941

Singh v The Associate Minister of Immigration [2016] NZHC 1941 [19 August 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-34[2016] NZHC 1941UNDER the Judicature Amendment Act 1972 andPart 30 of the High Court Rules,Declaratory Judgments Act 1908 and NewZealand Bill of Rights Act 1990IN THE MATTER of an application for judicial review,extraordinary remedies, declaratory reliefand claim for breach of Bill of RightsBETWEEN AMARJIT SINGHPlaintiffAND THE ASSOCIATE MINISTER OFIMMIGRATIONDefendantHearing: 18 August 2016Counsel: FC Deliu for plaintiffMJ Hodge for defendantJudgment: 19 August 2016JUDGMENT OF FAIRE JThis judgment was delivered by me on 19 August 2016 at 4:45 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: McClymont & Associates, Auckland (A McClymont)Meredith Connell, AucklandContentsThe current application .......................................................................................... [2]Background ............................................................................................................ [5]The Minister's letter ............................................................................................. [13]Evidence ............................................................................................................... [14]The judicial review ............................................................................................... [17]Evidence in judicial review proceedings.............................................................. [18]Conclusion............................................................................................................ [35]Orders ................................................................................................................... [36][1] The plaintiff has filed a proceeding in which he seeks an order quashing the decision, dated 15 December 2015, of the Associate Minister of Immigration, Mr Foss, (the Minister) in which the Minister refused to intervene and grant the plaintiff a Visa pursuant to s 61 of the Immigration Act 2009. This proceeding has a fixture for 13 October 2016.The current application[2] The plaintiff has filed an interlocutory application seeking an order that the Minister attend as a witness at the substantive fixture of this proceeding so that he may give evidence for the plaintiff or, in the alternative, be cross-examined on any affidavit evidence he may file.[3] The defendant confirms that the Minister has not and will not file an affidavit in respect of this proceeding. It is therefore necessary to consider the first alternative order sought only.[4] The defendant opposes the application.Background[5] The plaintiff is originally from India. He arrived in New Zealand in 1997 and claimed refugee status. His application for refugee status was declined in 1998. He became unlawfully in New Zealand.[6] In or about 2000, Mr Singh was introduced to an immigration adviser named Kulwant Singh. The adviser told him to change his appearance and submit anapplication for refugee status under a new identity 'Baljit Singh'. Mr Singh was issued a work visa under the false identity. In 2002, the work permit was revoked. The application for refugee status and a request for ministerial intervention for'Baljit Singh' were declined.[7] In or about 2000/2001, Mr Singh formed a relationship with his now ex-wife. Between 2001 and 2011, the couple had four children who are New Zealand citizens. In 2011, the marriage ended and Mr Singh moved in with Ms Sharma, to whom he is now engaged. Ms Sharma is a New Zealand permanent resident.[8] In March 2015, the plaintiff made a request for a visa under s 61 of the Actunder his true name 'Amarjit Singh'. That request was declined by Immigration NewZealand ("INZ") on 15 April 2015.[9] On 22 April 2015, the plaintiff, through lawyers McClymont and Associates, sought a special direction from the Minister pursuant to s 61 of the Act. The request noted that the plaintiff had been refused a visa under s 61 by INZ. The requestsubmitted that there were exceptional circumstances in the plaintiff's case. It set outhis background including that he had previously submitted an application for refugee status under a false identity and that he has four children who are New Zealand citizens.[10] On 30 April 2015, the Minister's office acknowledged receipt of theapplication and stated that the application would be considered as soon as possible but that the Minister was not required to consider the request or provide reasons for his decision.[11] On 6 August 2015, McClymont and Associates, on behalf of the plaintiff, sent an additional letter to the Minister enclosing a Joint Memorandum of Consentrelating to the plaintiff's children. This document had been prepared and was submitted to the Family Court so that orders in terms of it could be made. This was acknowledged as having been received by the Minister's office.[12] On 6 November 2015, an additional letter was sent to the Minister enclosinga copy of the plaintiff's parenting order. This was acknowledged as having beenreceived by the Minister's office.The Minister's letter[13] On 15 December 2015, the Minister declined to intervene. The letter stated:Dear Ramya,Thank you for your representations dated 22 April, 6 August and 6 November 2915 regarding Amarjit Singh.I have carefully considered your representations. I note that in 2000 Mr Singh claimed refugee status in New Zealand using a false identity, and he was granted work permits under this false identity between 2000 and 2002. I also note that a request for ministerial intervention was made on behalf of Mr Singh in 2005 using this false identity. Under section 342(1) of the Immigration Act 2009, it is an offence to provide false and misleading information in support of any application or request for a visa, or any appeal. Also, under section 342(1)(b) it is an offence to supply information to an immigration officer or a refugee and protection officer knowing that it is false or misleading. Immigration New Zealand (INZ) may wish to pursue this matter.I also note that Mr Singh last held a permit in 2002, and despite being advised to make arrangements to depart on multiple occasions, he has remained in New Zealand ever since. I do not condone such flagrantdisregard for New Zealand's immigration laws. I advise that I am notprepared to intervene in this case.Mr Singh is here unlawfully and his case will be referred to INZ'sCompliance Operations for priority enforcement action. I encourage him to depart voluntarily and at his own expense before a deportation order is served He would then be able to apply for a visa offshore, to return to New Zealand, although the outcome of such an application cannot be guaranteed.Evidence[14] The defendant has filed an affidavit of Margaret Hessalina Cantlon who is currently employed by the Ministry of Business, Innovation and Employment in the role of manager, Immigration Resolutions Team at Immigration New Zealand. The affidavit was filed for the purpose of the substantive proceeding. The affidavitclarifies aspects of the plaintiff's immigration history, sets out in a general manner the way in which requests for ministerial intervention are processed, and outlines theway in which the plaintiff's request was processed based on her review of the INZ file.[15] She states that requests for ministerial intervention are received by the Minister's Office. The requests are then triaged and either referred to the Minister personally or to a Delegated Decision Maker. In the plaintiff's case, his request wasreferred to the Minister personally. The request is first forwarded to the Immigration Resolutions Team who reviews the request and prepares a case note, which includes a non-exhaustive list of available options. For administrative convenience, the Immigration Resolutions Ministerial Team will usually prepare draft letters reflecting the different possible decisions that could be made. the Minister is then provided with the case note, the request, supporting documentation, and the draft letters.[16] Ms Cantlon lists the materials that the Minister was supplied with and the process of updating the case note when the supplementary material was received. She states that the Minister was provided with two draft letters, one declining to intervene, and one granting a one year work visa. She says that the Minister signed the letter declining to intervene, which was sent out, and struck a line through the other letter.The judicial review[17] The plaintiff's substantive judicial review claims that:(I) The defendant acted Wednesbury unreasonable when it erred in lawthat the Immigration Act 2009 applied to the plaintiff's allegedoffending in 2000 and/or 2005 as penal statues are not applicable ex post facto and/or the plaintiff's alleged offending was outside thelimitation period;(II) The defendant acted Wednesbury unreasonable when it when it took into account the irrelevant considerations of alleged criminal offending that had not been proven in accordance with law and/or speculation as to what a subordinate law enforcement agency might wish to prosecute and/or conjecture as to possible compliance action and/or a hypothetical visa application that the plaintiff might make;(III) The defendant acted Wednesbury unreasonable when it failed to take into account the relevant considerations of the plaintiff's 6 August2015 and/or 6 November 2015 supplements, as best evidence by the decision and alternative draft decision letters being based on the initial briefing and not the supplementary materials;(IV) The defendant acted Wednesbury unreasonable when it acted in a manner than no reasonable decision maker would by refusing to intervene in circumstances where the plaintiff has lived in New Zealand for almost 20 years, has 4 New Zealand citizen children and is engaged to a New Zealand permanent resident;(V) The defendant erred in fact that "[n]o evidence of a custody battle has been submitted with the representations" and/or "Mr Singhand his ex-partner are currently in the midst of a custody battle for their children. There is no supporting evidence provided in the current submissions. There are no details of the shared custody arrangements Mr Singh has with Ms King, or whether there are anyparenting orders in effect."(VI) The defendant breached the plaintiff's right to natural justice in that the plaintiff was denied a fair and impartial decision maker who inhis reasons for decision focused on everything but the plaintiff'sactual request and/or the irrational scribbling made on the draft decision letter;(VII) The defendant breached the plaintiff's legitimate expectation that it would consider his request in substance but ultimately not doing so.Evidence in judicial review proceedings[18] Generally, evidence on applications for judicial review as a matter of practice is adduced by affidavit unless the judge makes a direction to the contrary under s 10 of the Judicature Amendment Act 1972. That position is reinforced by s 10(2)(f) of the Judicature Amendment Act 1972.[19] Neither counsel have found any case in which a witness has been subpoenaed by the plaintiff in judicial review proceedings. The position in relation to affidavit evidence and whether a right to cross-examine should be permitted was examined by the Court of Appeal in New Zealand Fishing Industry Association v Minister ofAgriculture and Fisheries.1 The principles discussed in that case were considered by Katz J in the one unsuccessful application made seeking an order to subpoena a witness in judicial review proceedings in Deliu v New Zealand Law Society.2[20] In that case, Katz J considered the principles relating to applications to cross- examine deponents of affidavits in judicial review proceedings before considering the extent to which these principles should apply, by analogy, to an application to subpoena the decision maker. She stated, in relation to applications to cross-examine in judicial review that it: is therefore now well established that the relevant test is whether cross- examination is necessary, not whether it is helpful. The requirement that cross-examination be necessary results in leave to cross-examine beinggranted "only on rare occasions when required by the interests of justice".[21] Applying this to the application to subpoena the decision makers, Katz J stated:[16] The authorities are replete with examples of cases where Courts have robustly criticised decision makers for failing to provide an affidavit. However, it has never been suggested, to the best of my knowledge, that the appropriate course in such circumstances would be to subpoena the decision maker to give oral evidence at trial. For example, in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries3 the Court of Appeal heavily criticised the Minister for his failure to provide an affidavit, which was seen as being inconsistent with his duty of candour. However,there was no suggestion that the appropriate "remedy" was tocompel his attendance at trial. Rather, the Court observed that a decision-maker who fails to provide an affidavit risks adverse inferences being drawn in relation to matters of doubt on which he was best placed to give evidence.[17] The Law Society, however, did not suggest that I had no power to grant leave to Mr Deliu to issue subpoenas to Messrs Grieve and Hampton. Rather, argument focussed on whether it was appropriate to do so in all the circumstances of this case applying, by analogy,the "necessary" test from the cross-examination cases. I will therefore approach the issue on that basis.[18] I note, however, that in my view it would only be in an exceptional case that it would ever be appropriate to compel the presence before1 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1998] 1 NZLR 544 (CA).2 Deliu v New Zealand Law Society (Subpoena) [2013] NZHC 2597.3 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries above, n 1.the Court of a decision maker in judicial review proceedings. The"necessary" test should be applied strictly in the subpoena context.The appropriate "remedy" in most cases would be for the Court todraw an adverse inference against the decision maker if there is reliable evidence before the Court that raises significant matters of doubt that the decision maker has elected not to address.[22] I endorse and agree with Katz J's assessment.[23] Mr Deliu has relied upon the case of Kaur v The Ministry of Business, Innovation and Employment.4 In that case, an immigration decision was made by a Delegated Decision Maker. An affidavit was filed by the decision maker and the plaintiff applied to cross-examine the decision maker. The application was granted, in part, by Thomas J who allowed the decision maker to be cross-examined on his" understanding of his powers in relation to character waiver and, in particular, whether he turned his mind to consider whether the plaintiff had a character issue which required a waiver before considering the option of granting a character waiver".5[24] It is therefore necessary to consider the proposed line of questioning. Mr Deliu advises that he wishes to elicit evidence from Mr Foss, the Minister, on the following matters:(a) Did Mr Foss intend in the decision letter to refer to the immigration Act 2009 (as opposed to say the 1987 legislation) and, if so, what section(s) and/or did he turn his mind to any applicable limitation provisions?(b) Did he, in reaching his decision, take into account:(i) the alleged criminal offending that had not been proven in law; and/or(ii) speculation as to what a subordinate law enforcement agency might wish to prosecute; and/or4 Kaur v The Ministry of Business, Innovation and Employment [2016] NZHC 872.5 At [84].(iii) conjecture as to possible compliance action; and/or(iv) a hypothetical visa application that the plaintiff might make?(c) Did Mr Foss take into account the supplementary material supplied by the plaintiff on 6 August and 6 November 2015?(d) What factors caused him to refuse to intervene in circumstances where the plaintiff has lived in New Zealand for almost 20 years, has four New Zealand children and is engaged to a New Zealand permanent resident?(e) What part, if any, of the immigration file did he read in reaching the decision?(f) How current was the file that he read? Was he of the view that no evidence of custody battle was provided or that there were no details of share custody arrangements or that there were no parenting orders?(g) Was the peculiar scribbling made by him and, if so, what is it and why? (I assume this refers to the strike out marks on the draft letter).(h) Did he actually read and/or consider the request lodged by the plaintiff?[25] In order to consider whether the line of questioning above is necessary, I first consider the legislative framework in which the decision was made. Section 61 ofthe Act, at the time that the plaintiff's request was made, provided:61 Grant of visa in special case(1) The Minister may at any time, of the Minister's own volition, grant avisa of any type to a person who—(a) is unlawfully in New Zealand; and(b) is not a person in respect of whom a deportation order is in force.(2) A decision to grant a visa under subsection (1) is in the Minister'sabsolute discretion.[26] Section 11 of the Act provides: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 6 of the Privacy Act 1993) 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.[27] The Court of Appeal in Zhang v The Associate Minister of Immigration statedthat s 11 "gives bleak prospects for judicial review unless Wednesbury unreasonablecan be identified".6 In the same case, the Court says of s 61:76 Zhang v The Associate Minister of Immigration [2016] NZCA 361 at [14].7 At [38]. having regard to the overall structure of the Act, we regard s 61 as reserving to the Executive the traditional power residing in the Executive to make decisions about who may be permitted to stay in New Zealand. There could be many situations where the interests of the State mean that a particular person should be permitted to remain in New Zealand notwithstanding that, absent their particular circumstances, they would be deported. There might, for example, be a national security interest. There might be a personal factor such as an extreme health condition or politicalfactors pertaining to the person's home country that makes deportationobviously wrong. In any event, s 61 preserves to the Executive the absolute discretion to intervene in the deportation process. It precludes formal application, and the legitimate expectations associated with that act.[28] I also note that as stated in Kaur v The Ministry of Business, Innovation and Employment, citing the Court of Appeal:8 in the context of review of a decision under a section of the Act whichprovides that a decision maker does not have to give reasons for the decision, the Court should bear in mind that cross examination for the purpose of eliciting reasons for the decision may undermine the statutory provision.[29] It is difficult to see how the lines of questioning above will be necessary to determine any of the matters at issue in the proceeding. The first line of questioning relates to the Minister's reference to the Immigration Act 2009 which, it is submitted, is an error of law. Mr Deliu submits that cross-examination is required to show beyond doubt which law was applied. I agree with the defendant that it is unnecessary to cross-examine the Minister on this matter. The letter referred to the 2009 Act, whether this amounted to an error of law is a question of law not fact. It is not necessary for the Minister to be cross-examined to determine whether he meant what he said. He said it, and there has been no suggestion that what was said was notwhat he meant. Additionally, as stated above, the appropriate 'remedy' will usuallybe for "the Court to draw an adverse inference against the decision maker if there is reliable evidence before the Court that raises significant matters of doubt that the decision maker has elected not to address".9[30] In regard to the second line of questioning, Mr Deliu seeks to determine whether the Minister took into account irrelevant considerations. The difficulty I8 Kaur v The Ministry of Business, Innovation and Employment, above n 4, at [26], citing Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93.9 Deliu v New Zealand Law Society (Subpoena), above n 2, at [18].have with this submission is that the Minister clearly did take into account that the plaintiff had claimed refugee status under a false identity. In my view, it is not necessary for the Minister to give evidence as to whether he considered something which is written in the letter. The same applies to the following line of questioning relating to whether the Minister took into account the supplementary material. There is evidence available already that the Minister was supplied with the supplementarymaterials and that the case notes were updated. The letter that was sent states "Thankyou for your representations dated 22 April, 6 August and 6 November 2015".[31] Mr Deliu's fourth proposed line of questioning relates to Wednesburyunreasonableness. He wishes to determine from the Minister why he refused tointervene given the circumstances of the plaintiff's case. If Mr Deliu wishes tosubmit to the Court that the decision made by the Minister was not open on the material available to him, this point can be made on the evidence already available. Requiring the Minister to give further reasons for the decision is inappropriate in the statutory context and is further not necessary in order to make the argument.[32] In regard to the 'peculiar scribbling', line of questioning, Mr Deliu submits that the scribbles give rise to a plausible concern that the Minister originally granted the request or did not properly read the letter. He submits that this goes to the breach of natural justice pleading. The affidavit of Ms Cantlon explains why and how draft letters are written. It is not clear how questioning along this line is necessary to determine the matters at issue.[33] The final line of questioning, whether the Minister read the request, relates to the pleading of a breach of natural justice. However, as the Court of Appeal recentlyheld, exercise of absolute discretion under s 61 " precludes formal application, andthe legitimate expectation associated with that act".10 Additionally, there is no factual evidence to support the suggestion that the Minister did not read or consider the request. If the plaintiff wishes to submit that the Minister must not have considered the request because his decision was unreasonable, this can properly be argued as unreasonableness.10 Zhang v The Associate Minister of Immigration, above n 6, at [38].[34] It is also worth noting, as Katz J did in Deliu v New Zealand Law Society (Subpoena)11 that if the plaintiff is successful, Mr Deliu would be calling the Minister to give his evidence in chief and any cross examination would be carried out by the defendant.Conclusion[35] I conclude that the order sought is not appropriate and therefore will not be made. This case, however, has clarified the position of the parties significantly. Counsel were agreed that the appropriate quantum of any costs order that was made on this application should be Category 2 Band B for half a hearing day. Mr Deliu invited the court, however, to record quantum and to direct that the obligation to pay costs should follow the event of the substantive application. There is merit in this submission because the argument before me considerably clarified the position, which will be the subject of argument at the substantive hearing on 13 October 2016. There is plainly an analogy with the position which occurs in summary judgment applications by plaintiffs and which is now enshrined in the Rules in respect of summary judgment applications only by the operation of r 14.83. That rule change followed the observations of the Court of Appeal in NZI Bank Ltd v Philpott.12 In my view, it is appropriate that I fix quantum of costs on this application based on Category 2 Band B with disbursements to be fixed by the Registrar, and leave the final determination of liability for costs to be determined at the substantive fixture on 13 October 2016.Orders[36] I refuse the application. Costs on the application are reserved in line with the comments made in this judgment.____________________JA Faire J11 Deliu v New Zealand Law Society (Subpoena), above n 2, at [33].12 NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA).