SINGH v THE IMMIGRATION AND PROTECTION TRIBUNAL CA270/2014 [2014] NZCA 434 [4 September 2014]

SINGH v THE IMMIGRATION AND PROTECTION TRIBUNAL CA270/2014 [2014] NZCA 434 [4 September 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA270/2014[2014] NZCA 434BETWEEN AVINASH SINGHApplicantAND THE IMMIGRATION ANDPROTECTION TRIBUNALFirst RespondentTHE MINISTER OF IMMIGRATIONSecond RespondentHearing: 25 August 2014Court: O'Regan P, Ellen France and Miller JJCounsel: Applicant in personA R Longdill and R E Savage for RespondentsJudgment: 4 September 2014 at 2.15 pmJUDGMENT OF THE COURTA The application for special leave to appeal against the High Court's decision in relation to the applicant's appeal against the decision of theImmigration and Protection Tribunal is dismissed.B The application for an extension of time to appeal against the High Court decision in relation to the applicant's application for judicialreview of the decision of the Immigration and Protection Tribunal is dismissed.C No award of costs is made.____________________________________________________________________REASONS OF THE COURT(Given by O'Regan P)Introduction[1] The applicant, Mr Singh, seeks special leave to appeal against a decision of the High Court dealing with an appeal against a decision of the first respondent, the Immigration and Protection Tribunal (the Tribunal).1 Leave is required under s 246 of the Immigration Act 2009 (the 2009 Act). Under that section, the test for the granting of leave is whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to this Court for decision. Mr Singh seeks special leave from this Court because Cooper J declined leave to appeal.2[2] Cooper J's substantive decision also dealt with an application by Mr Singhfor judicial review of the decision of the tribunal. Under the law as it stood at the relevant time, leave to commence the judicial review proceeding was not required. Cooper J dismissed the application. Mr Singh had a right of appeal to this Court against that decision, without the need to obtain the leave of either the High Court or this Court, but failed to file his notice of appeal within the statutory time limit. He now wishes to appeal and seeks an extension of time in which to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.[3] Before addressing these two applications, we briefly set out the background.Background[4] Mr Singh applied for a residence class visa, but his application was declined by an immigration officer. He appealed to the Tribunal, which confirmed that the decision of the immigration officer was correct in terms of the applicable residenceinstructions. The Tribunal also rejected Mr Singh's contention that specialcircumstances existed which warranted consideration by the Minister of Immigration as an exception to the residence instructions under s 188(1)(f) of the 2009 Act.1 Singh v Minister of Immigration [2013] NZHC 2229, [2013] NZAR 1257.2 Singh v Immigration and Protection Tribunal [2014] NZHC 868.[5] Mr Singh wished to challenge the latter finding of the Tribunal, and soughtboth leave to appeal to the High Court and judicial review of the Tribunal's decision.Cooper J granted leave to appeal but dismissed the appeal and also dismissed the application for judicial review. Mr Singh then sought leave to appeal to this Court under s 246 of the 2009 Act. Cooper J found that there was no question of law fulfilling the criteria set out in s 246(2) of the 2009 Act and therefore declined leave to appeal.Application for special leave to appeal[6] We deal first with the application for special leave to appeal.[7] In his written submissions, Mr Singh advanced three questions which he said were questions of law in respect of which leave should be granted. In part his application focused on the decision of the Tribunal rather than the Court. Omitting references to the Tribunal, the grounds are:(a) Whether the High Court took into account the welfare of his son (a New Zealand citizen) as a primary consideration. The focus of thispoint is Mr Singh's contention that, if Mr Singh were to be required toreturn to Fiji, the separation between him and his son would be permanent.(b) Whether the High Court erred in finding there were no special circumstances when it stated that separation between Mr Singh and his son would not be permanent.(c) Whether Cooper J erred when he gave his decision "without any evidence before [him]".[8] Dealing with each of these grounds in the order raised above, we find:(a) The High Court did adequately consider the welfare of Mr Singh's sonas a primary consideration. In his substantive decision, Cooper J referred to the strong bond between Mr Singh and his son. He quotedthe Tribunal's consideration of the interests of the son as a "primary consideration" and concluded on a reasoned basis that the Tribunal "was well aware of the need to take into account the interests ofMr Singh's son".3 No point of law demanding the attention of this Court arises.(b) We do not consider the question of whether the Court assumed theapplicant's son would be able to visit him in Fiji is a point of law, which takes it outside the ambit of s 246. Contrary to the applicant'ssubmission, Cooper J did not assume that the applicant's son would beable to visit him in Fiji. So there is no point of law and no error.(c) Nor is there any basis to the contention that Cooper J decided the matter without evidence before him. This ground of appeal relates to the allegation by Mr Singh that the Tribunal and the Court found, without evidence, that the separation of his son from him would not be permanent in the event he was required to return to Fiji. There is no substance in this point. If Mr Singh intended to argue that the Judge decided the appeal itself without evidence, it is clear from a reading of the decision that is not the case. There is no appeal point, let alone a point of law, arising.[9] In addition to the three points highlighted above, Mr Singh sought to raise another point, arising from a recent decision of the Family Court in relation to parenting responsibilities for his son. Mr Singh pointed out that the decision of the Family Court gave him substantial responsibility for the parenting of his son, and provided that his son would be living with him for 85 per cent of the time. He said this was a substantial change from the position that existed at the time of the Tribunal and High Court decisions, and that leave to appeal should be given on the basis of this change of circumstances.[10] Counsel for the respondents, Ms Longdill, resisted this. She said this was not a ground of appeal in terms of s 246, but rather ought to be raised by Mr Singh as a3 Singh, above n 1, at [38].change of circumstances before the immigration officer under s 61 of the 2009 Act or with the Minister under s 378 of the 2009 Act. That is the appropriate avenue for dealing with the change of circumstances. We agree with Ms Longdill that change of circumstances cannot be a basis for appeal, which is limited to errors of law made by the body appealed from. The change of circumstances is, by definition, not indicative of any error on the part of the High Court.[11] We dismiss the application for leave to appeal.Application for extension of time to appeal against judicial review decision[12] Mr Singh's notice of appeal against the decision of the High Court on hisjudicial review application is almost eight months out of time. His explanation for the delay is that he thought his then counsel had appealed against both the appeal and judicial review aspects of the High Court decision, and only became aware of the fact that the application filed in this Court sought leave to appeal against the appeal decision, but did not address the judicial review decision.[13] This is not a strong case for an extension of time. Time limits are included in the 2009 Act for good reason, and ought to be complied with.[14] In addition, the proposed grounds of the appeal against the judicial review decision are essentially the same as those which would be raised in an appeal to this Court if leave to appeal had been given. We have already found that those grounds lack merit or, in the case of the change of circumstances, are inappropriately raised in an appeal context. As noted earlier, the 2009 Act provides another avenue for raising the change in circumstances resulting from the Family Court decision.[15] None of the grounds which Mr Singh proposes to raise in relation to the judicial review appeal has merit. In those circumstances it is not appropriate to grant an extension of time.44 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [22].Result[16] We dismiss both the application for leave to appeal against the High Courtdecision in relation to Mr Singh's appeal and the application for extension of time toappeal against the judicial review aspect of the High Court decision.Costs[17] No application for costs was made and we make no award.Solicitors:Crown Law Office, Wellington for Respondent