LI v CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 1610

LI v CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 1610 [18 July 2016]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2016-419-000071[2016] NZHC 1610UNDER the Judicature Amendment Act 1972,Part 30 of the High Court Rules, theDeclaratory Judgments Act 1908 andNew Zealand Bill of Rights Act 1990IN THE MATTER of an application for judicial review,extraordinary remedies, interim relief,declaratory remedy and claim for breachof rightsBETWEEN BAOGANG LIApplicantAND CHIEF EXECUTIVE OF MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 10 June 2016Counsel: F C Deliu for ApplicantM P Hardy for RespondentJudgment: 18 July 2016JUDGMENT OF ASHER JThis judgment was delivered by me on Monday, 18 July 2016 at 11 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:F C Deliu, Auckland.Meredith Connell, Auckland.Introduction[1] The applicant Baogang Li is a citizen of the People's Republic of China andunlawfully in New Zealand. He arrived in New Zealand in July 2009 and has held various temporary visas from that point, the last of which expired on 20 December 2014. It is common ground that he is presently liable for deportation. On 29 February 2016 Mr Li was located by immigration officers working unlawfully on a building site. This was the second time immigration officers had located himworking unlawfully. He was detained by the respondent (Immigration New Zealand)for the purposes of executing a deportation order.[2] Mr Li has issued these proceedings, pleading that the continuation ofdeportation processes, and refusal to consider cancellation of the deportation order,and the "denial of a humanitarian interview of him and his partner" are not lawful.He seeks declarations and orders of prohibition and mandamus which will have theeffect of preventing his deportation until he and his partner have a humanitarianinterview.Background[3] Mr Li was lawfully in New Zealand in September 2014, through varioustemporary visas issued since his arrival in New Zealand in 2009. On 4 September2014, an immigration officer determined on delegation from the Minister that therewas sufficient reason to deport him, because his circumstances no longer met therules or criteria under which his visa had been granted. The notice was served on thebasis that the circumstances of the grant of his earlier temporary visa no longerexisted, namely his partnership with Qianxia Wang. This was his previous partner,and their relationship had ended. He was then, Immigration New Zealand claims,served with a deportation liability notice.[4] Mr Li requested a review of that deportation liability. Section 157(2) of theImmigration Act 2009 (the Act) granted Mr Li the ability to "give good reason whydeportation should not proceed," within 14 days from the date of the notice. Thatreview request was considered and declined on 24 October 2014.[5] Following the expiry of the period in which he could appeal his deportation liability under s 157(4) of the Act, the Ministry alleges that an immigration officerserved Mr Li with a deportation order under s 175 of the Act. Mr Li's previous visaexpired on 20 December 2014. From that point on he was unlawfully in New Zealand.[6] However, Mr Li remained in New Zealand and did not contact ImmigrationNew Zealand. Over a year later on 29 February 2016 he was located by immigrationofficers working on a building site. On that day Mr Li's lawyer advised ImmigrationNew Zealand that s 177(2)(3) and (5) of the Act applied, and demanded ahumanitarian interview. This is an interview which I am told by Mr Hardy for theChief Executive of the Ministry is now known as a "record of personalcircumstances interview". It has in prior cases been referred to as a "humanitarianinterview", and I will continue with that terminology. On 1 March 2016Immigration New Zealand refused to grant such an interview. They did so on thebasis that the process outlined in s 177 of the Act did not apply in Mr Li's case.[7] In essence Mr Li puts forward two grounds in support of his presentapplication. First, he asserts that the immigration officer's refusal to considercancelling the deportation order under s 177 was unlawful, and that a humanitarianinterview should have been conducted. The second ground is that neither thedeportation liability notice nor the deportation order that led to the detention ofMr Li and the intention of Immigration New Zealand to deport him, were properlyserved in accordance with the provisions of the Act.[8] I deal first with the service issues, because if Mr Li was not validly servedwith either notice, then Immigration New Zealand accepts that relief should begranted to Mr Li.ServiceIntroduction[9] Prior to 7 May 2015, s 386 of the Act set out the statutory requirements as to service. Section 386(3) provided:386 Giving notice, service of notice, etc(3) If under this Act any document is to be served on or supplied to any other person, or the person is to be notified of any decision, matter, or other thing, the document must be served on or supplied to the person, or the notification must be given in writing,—(a) by personal service; or(b) by registered post addressed to the person at the person's New Zealand address; or(c) by service on the person's lawyer or agent in accordance with subsection (4); or(d) at the address supplied under section 57(2), if it relates to an application for a visa.[10] Section 387(1)(a) provided, also prior to 7 May 2015:387 New Zealand address(1) In this Act, New Zealand address, in relation to a person who holds a visa and is in New Zealand, means the last known of the following addresses:(a) the address for the time being nominated by the person under section 57(2), if that address is within New Zealand:[11] Section 57(2) at that time read:57 Applications for visas(2) The applicant must specify in the application a physical address to which any communication relating to the application, or to which advice of any visa that may be granted pursuant to the application, may be sent, or at which any notice may be served under this Act.[12] Returning to s 386, it referred to the issue of proof of service specifically ats 386(5):386 Giving notice, service of notice, etc(5) If under this Act any notice or other document is to be given to, served on, or supplied to the holder of any temporary entry class visa, or any person who is, or is believed to be, unlawfully in New Zealand, byregistered post addressed to that person's New Zealand address, thenotice or other document is treated as having been given to, served on, or received by the person 7 days after the date on which it was posted.[13] In essence, Mr Deliu submits that neither the deportation liability notice nor the deportation order, both of which had to be served, were correctly served. Mr Deliu says that Mr Li was not served at his specified address, with the effect ofinvalidating the deportation.[14] It is common ground between Mr Deliu and Mr Hardy that a failure to serveeither notice will mean that Mr Li cannot be deported. This is because first, inrelation to the deportation order, under s 175(1) it is provided that a deportation ordermay be served on a person "who has been served with a deportation liability notice"and that person has either no right of appeal, or has chosen not to exercise their rightof appeal.1 If Mr Li had not been validly served with a deportation liability notice hecould not be served with a deportation order. Second in relation to the deportationliability notice, under s 170(1) of the Act as at 4 September 2014 a deportationliability notice "must be served on a person liable for deportation if it is intended toexecute the deportation of the person".[15] In my assessment s 386(5) applies and not s 386(6). Mr Li had a temporaryvisa.The evidence of service[16] Mr Li in his affidavit of 12 May 2016 confirmed that he received thedeportation liability notice in early September 2014 by email, but he did not recallever receiving a physical copy. The notice was sent in early September 2014 and hehad moved from the address originally given in his application for a visa of85 Hudson Street, Hamilton in February 2014. He moved from there to an address at29 North Ridge Drive, Rototuna. He denied ever receiving any notice of thedeportation order.1 Immigration Act 2009 (as in force from 29 November 2010 to 6 May 2015), s 175(1)(a)–(f) set out the specific requirements.[17] It is necessary, therefore, to consider whether both notices were validlyserved. I have received detailed submissions on the topic, where the facts andrelevant sections have been closely dissected by counsel.[18] Mr Deliu argued that Immigration New Zealand had to prove service, and tobe shown to have strictly complied with the statutory process. This is not so in thisjudicial review proceeding. Mr Li is the challenger, seeking to invoke anextraordinary legal process to stop a lawful process. Mr Deliu has relied on criminalauthorities relating to service, but in those cases the onus is on the Crown, and to astandard beyond reasonable doubt. It is not correct for an applicant to approach ajudicial review application from a perspective of putting the decision-maker to proof.[19] The starting point in judicial review proceedings is that the applicant has theonus of making out the factual bases for the order sought.2 The standard is thebalance of probabilities.3 In the context of service of a document, Mr Li cannotleave it to Immigration New Zealand to prove service; the onus is on him to prove onthe balance of probabilities that he was not served in terms of the Act.Service of the deportation liability notice[20] It is necessary first to review the facts disclosed in the affidavits. In additionto the affidavit of Mr Li, there is an affidavit from an immigration officer,Karen McGilvary.[21] At the time the deportation liability notice was drafted in September 2014, the latest application from Mr Li that Immigration New Zealand had on its file washis application for a partnership-based temporary visa application, dated12 December 2013, approximately nine months earlier. At the time this applicationwas prepared Mr Li had been living with his then wife at Hudson Street. It showedunder the section "B1" that his residential address was 85 Hudson Street, Hamilton,New Zealand. At the place marked "B3" headed "name and address for2 Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA) at 276; Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2006] UKPC 49, [2007] 2 NZLR 80 at [56]; Edwards v Onehunga High School Board [1974] 2 NZLR 238 (CA) at 243 - 244.3 New Zealand Fishing Industry Association Inc v Moyle HC Wellington CP649/87, 11 August 1988 at 48.communication about this application" the "as below" box was ticked and there wasa stamp which read as follows:MARK LEE BARRISTER AND SOLICITOR MARK LEE LAWYERS PO BOX 105-534 AUCKLANDmarkleelawyers@hotmail.comPH: (09) 303 2922 FAX: (09) 3031933[22] When, on 4 September 2014 Ms McGilvary went to arrange service of thedeportation liability notice, she used the address of 85 Hudson Street, Hamilton. Shedeposed that she sent the notice both by Courier Post and email. She used the85 Hudson Street, Hamilton, address because it was the physical address Mr Li hadprovided in his application and it was the last known address of Mr Li at the time.[23] Ms McGilvary did not immediately receive a receipt from Courier Post, butobtained one after service was challenged by Mr Li.[24] The package with the tracking number she had used, was numberSA575064547NZ. It had been noted in the records of Courier Post as "scanneddelivered". Courier Post records showed that someone had signed a receipt for thedocument. The courier driver had recorded that the person who signed for thedocument was a "B Li". On the same day Ms McGilvary had sent to Mr Li a copyof the deportation liability notice by email.[25] Mr Deliu argued that if Immigration New Zealand was relying on service by"registered post" it had not sent the deportation liability notice to the correct address.It is necessary to examine this submission more closely.[26] Section 386(3)(b) requires this type of service to be "by registered postaddressed to the person at the person's New Zealand address". Mr Deliu argued thatit was not addressed to the person's New Zealand address, because the place shownat B3 in the application form on the last extant document on the file of ImmigrationNew Zealand was not the address at Hudson Street, but rather the solicitor's PO Boxnumber address. He pointed to the definition of "New Zealand address" at s 387.The relevant section, s 387(1)(a), provided:387 New Zealand address(1) In this Act, New Zealand address, in relation to a person who holds a visa and is in New Zealand, means the last known of the following addresses:(a) the address for the time being nominated by the person under section 57(2), if that address is within New Zealand:[27] Section 57(2) provided:57 Applications for visas(2) The applicant must specify in the application a physical address to which any communication relating to the application, or to which advice of any visa that may be granted pursuant to the application, may be sent, or at which any notice may be served under this Act.[28] The effect of these provisions is that that the address provided as the address for communications in the visa application can be the address for service for subsequent notices and orders. Mr Deliu argued that on this basis, that to be valid, the address for service had to be the solicitor's address as that was the address underthe "B3" heading to which any communication relating to the application had to besent. The Hudson Street address was not under this heading, but was just shown as aresidential address. Mr Deliu argued that consequently there could be no serviceunder the Act by sending the notice to the Hudson Street address.[29] Despite the care with which Mr Deliu developed this argument, I do notaccept it as correct. In interpreting the various sections concerning service I do notadopt an overly technical approach. I respectfully agree with the thrust of whatSimon France J says in Rao v Minister of Immigration:4In the end one must come back to the apparent purpose of the provisions. At the general level that aim seems to be to prescribe a method that can be relied upon to achieve notice being given; at the more specific level it seems to be to provide a methodology that allows a deeming provision to take effect, so that time will run. It is important to recall that the particular statutory method has no intrinsic value or significance. It is not an end in itself but is purely functional. Other methods could have been chosen, and indeed email suffices. It seems difficult to infer there is any magic or4 Rao v Minister of Immigration [2015] NZHC 2669, [2015] NZAR 1925 at [23].intrinsic importance in the method. Rather, the key issue is when service is either achieved or deemed to be achieved.[30] The words of s 386(5) show that the concern in respect of service is thesending of the document, rather than the observation of a technical process. Timeruns from the date of posting, not from the date of receipt, which is assumed, unlessthe intended recipient proves otherwise.[31] Under s 386(3)(b) documents and notices had to be served on "the person'sNew Zealand address". "New Zealand address" defined at s 387(1)(a) was the lastknown address "nominated by the person under s 57(2)". Under s 57(2), theapplicant must specify a physical address to which any communication could be sentfor the purposes of the visa application, but that section also provided that "anynotice may be served under this Act" to that physical address. The solicitor's postoffice box was clearly shown as the address for communications. However, in termsof the relevant statutory provisions that was not a physical address and thus not anappropriate address for communication.[32] I do not consider a post office box a physical address. I accept that a postoffice box is a physical thing. There is an actual box in contrast, say, to an electronicaddress. However, the intention of specifying a physical address appears to be thatthere is an address at which the intended recipient can physically receive thedocument either personally or through the person's lawyer. Electronic service is notincluded, and there is no reference in s 386 to service by post office box. The HighCourt Rules at 5.44 show a distinction between an address for service and a postoffice box address, and rr 6.5 and 6.6 are entitled respectively "Service at address forservice" and "Service by means of post office box, document exchange, fax oremail". It can be seen from these Rules that a distinction has been drawn generallybetween post office boxes and addresses for service. Against this background itseems to me that if service on a post office box was to be regarded as sufficient,s 386 would have said so.[33] The only physical address that was provided by Mr Li was that of 85 HudsonStreet, Hamilton, New Zealand. That was the address used for service by registeredpost. Section 57(2), requires the applicant to specify a physical address to which anycommunication could be sent. I see no basis for limiting that address to the addressshown in the communications section of the form, if the address provided is not aphysical address. It seems to me if there is no address specified there as a physicaladdress for communication, a New Zealand address shown as the applicant's addresselsewhere on the form can suffice.[34] Thus, in my view sending the notice to the only physical address shown onthe last received form provided by Mr Li was sufficient. However, it must still havebeen shown that there was service by registered post. Registered post is defined ins 4 as including "any postal or courier service where delivery to the address isrecorded".[35] I do not see this as requiring proof of delivery to the address in the sense ofan affidavit from a person who deposes that delivery at the address was affected.The two requirements seem to me to be the use of a courier service and a recordingof delivery to the address.[36] Ms McGilvary shows in her affidavit that she sent the document by registeredpost in the sense that she did so using a postal or courier service. She receivedinformation from the courier company recording delivery to the address.Specifically she received an email from the courier company stating that a packageaddressed to Mr Li at 85 Hudson Street and bearing the number SA575064547NZhad been "scanned, delivered on 9 September 2014 at 7:52 signed by B Li". In myassessment this notification from the courier company is a record of delivery to theaddress. The number she had used to send the document corresponded to thenumber on the package that was delivered.[37] The fact is, of course, that Mr Li did get the deportation liability notice andindeed applied to review it. He acknowledges receiving it by email. There is noformal provision for service by email, but this factor is relevant in a way I will referto later.[38] Thus, my conclusion on service is that there was service by registered post ofthe deportation liability notice on Mr Li. Mr Li has not shown, under s 386(6), thatthe notice was not given, served or received by him.[39] If s 386(5) did not apply and s 386(6) applied, there is a presumption ofdelivery after a document has been posted, unless the person can prove thatotherwise than through fault on their part, the notice was not given, served orreceived. If Mr Li had not received it, it was through his fault in not providing aphysical address in the communications section, and not keeping the residentialaddress he had provided up-to-date when he changed that address. Thus Mr Li hasfailed to prove a lack of fault.[40] Even if I did not consider there had been service in terms of the deportationliability notice, and had concluded that Mr Li had not been properly served, I wouldnot have been inclined to have granted him relief. This is because in relation to thedeportation liability notice his complaint is purely technical. He actually becameaware of the notice when it was issued, and took the appropriate steps to challenge it.His position in relation to service lacks any substantive merit. He has not beenprejudiced in any way. I do not see therefore why a failing to comply with sometechnical requirements of the Act should become an unearned windfall for a personin Mr Li's position.[41] Mr Deliu also submitted that if there was no physical address provided, thenit might well be that there had to be service under s 386(3)(a) or (d). For the reasonsI have already set out, service by registered post was sufficient and personal servicewas not required. Service on Mr Li's lawyer was not possible given that only a postoffice box had been provided. Section 386(4) provides that if a lawyer representsthat he or she is authorised to accept service, it is only sufficient service if thatlawyer signs a memorandum stating that service of the notice is accepted on behalfof the person. Obviously this cannot happen when only a post office box address isprovided. Section 386(3)(d) also cannot apply because the notice in question did notrelate to "an application for a visa".The deportation notice[42] Mr Li deposed that he did not receive the deportation order, and challengedthe fact of service of the deportation order. By the time the deportation order wasserved, Immigration New Zealand had received a new application from Mr Li. Theform had changed slightly by this time. He did not, at B3, the place for putting anaddress for communications about the application, show his lawyer's address or puta stamp. Rather he ticked the box indicating that it was the address provided in theB2 part of the form directly above that was his address for communication. This wasan address at 29 North Ridge Drive, Rototuna, Hamilton. He also provided a postoffice box number.[43] Unlike the position in relation to the deportation liability notice, there was no alternative address that Mr Deliu argued was the appropriate address for service. Heaccepted that 29 North Ridge Drive, Rototuna was the correct address. However, hedid not accept that there had been service under the Act to that address, and indeedargued strongly to the contrary. He argued that there was no record of service asrequired.[44] The evidence of Ms McGilvary shows that she prepared a package forCourier Post under the number SA657793992NZ. She put the documents into aCourier Post envelope and filled in Mr Li's recipient details showing the address at29 North Ridge Drive, Rototuna, Hamilton. She made a note about her actions inher case management system. She placed the sealed courier envelope in thecollection box for Courier Post. Then when service was queried, she receivedconfirmation from a general investigator at Courier Post that the package with thatsame tracking number had been scanned delivered. Courier Post provided her with acopy of the information it had on file which included an image indicating receipt ofthat package on 13 November 2014 at 7:22:05 am. It showed the name of therecipient as Baogang Li and a scanned signature. She also emailed the notice toMr Li on the same day (it is to be noted that email address was the same used to sendthe deportation liability notice that Mr Li acknowledged he received).[45] Thus there is a record before the Court showing service of the deportationnotice at that address. While the actual receipt from Courier Post does not state theaddress on it, the fact that the number of the package which Ms McGilvary deposeshad the address on it is the same as the number on the package delivered, it can beinferred that it is the same package delivered to that address. This is furtherconfirmed by the fact that it is stated on the record that the name of the recipient wasBaogang Li. I put to one side the scribble shown on the scan of the receipt by someperson, as there is no evidence showing that was put there by Mr Li or that it has anyresemblance to his signature.[46] I am satisfied therefore that there is the required record of delivery to theaddress at 29 North Ridge Drive, Rototuna, Hamilton.[47] Mr Li has failed by a considerable margin to prove under s 386(6) thatthrough no fault of his own the document had not been given, served or received byhim. Although he deposes he did not receive it, he gives no detail as to why hewould not have in fact received a document delivered to the address which he hadprovided, and at which he was living at the time. He has offered no explanation alsowhy he did not receive the document when it was sent to him by email.[48] In the circumstances, knowing he had failed in his application to review thedeportation liability notice some weeks prior to the service of the order, hisdisappearance from the view of Immigration New Zealand for the next year wouldindicate a wish to avoid the inevitable. He knew through the failure of his review ofthe deportation liability notice that the next step was deportation. I infer that hisfailure to contact Immigration New Zealand through 2015 was not because he hadnot been served, but because he did not wish to be deported.[49] If in fact I was wrong and there had not been adequate service, I would still not grant relief. Error by the decisionmaker does not bind a Court to grant relief injudicial review.5 For the reasons that I have set out, there is every reason to believethat the courier package was delivered to Mr Li's address. There is every reason to5 Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408 at [48], and Tauber v Commissioner ofInland Revenue [2012] NZCA 411, [2012] 3 NZLR 549 at [90]–[91].believe that he would have received the email copy that was sent to him. He avoidedall contact with Immigration New Zealand from around that time and only came tothe attention of Immigration New Zealand again when he was found working on abuilding site. In his attempt to now argue he should be allowed to stay, he attemptsto raise matters that arose after he had failed in his application to review thedeportation liability notice despite knowing that deportation was inevitable. For thereasons set out below, I consider the fact that while unlawfully in New Zealand, hehas formed a new relationship is not a sufficiently relevant change. The inevitabilityof the outcome, Mr Li's contribution to any error, and the delay in raising thequestion of service all mean that Mr Li's position is so lacking in substantive meritthat I would decline relief.Did the immigration officer act lawfully in refusing to consider cancellation ofthe deportation?[50] Mr Deliu submitted that there was a legal obligation created by s 177 onImmigration New Zealand to give a humanitarian interview to Mr Li before he wasdeported. He argued that arose under s 177, and also that the right existedindependently of s 177. Mr Hardy for Immigration New Zealand submitted thats 177 did not apply to Mr Li and in any event he had no right to a humanitarianinterview. These are diametrically opposed submissions and it is necessary toconsider them in the context of the Act.[51] The purpose of the Act is to manage immigration in a way that balances thenational interest as determined by the Crown and the rights of individuals.6 Part 6 ofthe Act provides for deportation, and I refer to it later.[52] A number of other provisions in the Act provide specifically for deportationliability of a person lawfully in New Zealand. Section 157, a section to which I willreturn, is one of those sections. In contrast, s 154 is a general provision:154 Deportation liability if person unlawfully in New Zealand(1) A person unlawfully in New Zealand is liable for deportation.6 Immigration Act 2009, s 3(1).(2) A person unlawfully in New Zealand may, not later than 42 days after first becoming unlawfully in New Zealand, appeal on humanitarian grounds against his or her liability for deportation.[53] The section provides for a humanitarian interview 42 days after a person firstbecomes unlawfully in New Zealand, and in other circumstances in s 154(4).[54] Section 177 provides:177 Deportation order may be cancelled(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.[55] The section then goes on to set out the provisions relating to a humanitarianinterview. It does not set out a detailed procedure. At s 177(5) it is provided:(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—(a) a description of the international obligations; and(b) the facts about the person's personal circumstances.[56] This position can be contrasted with the situation provided for in s 157, which deals with the deportation liability of a person with a temporary class visa. There is provision for review,7 or an appeal.8[57] The first question to be considered is one of statutory interpretation.Mr Deliu argues that s 177(1) is to be read as applying to a person in Mr Li'ssituation, because Mr Li is a person to whom s 154 applies, despite his liability fordeportation arising under s 157. He is presently unlawfully in New Zealand andliable for deportation, the words used in s 154(1). Therefore he has a right to ahumanitarian interview. Effectively then, his submission is that in addition to thereview or appeal rights that Mr Li had when he received the deportation notice under7 Immigration Act 2009, s 157(2).8 Immigration Act 2009, s 157(4).s 157, he now also has a right to a humanitarian interview under s 154 arisingbecause he chose to continue to stay in New Zealand unlawfully.[58] Mr Hardy submits that although the words of s 154 might allow for such aninterpretation, that is not a natural meaning of s 177(1), and s 177 applies only to adeportation order that is issued on the basis that someone is liable for deportationbecause they are unlawfully in New Zealand. Thus, to take Mr Li's example, itwould only apply where s 154 was the section relied on for the deportation order. AsMr Li was not liable for deportation under s 154, but under s 157, the review andappeal provisions relating to that section applied.[59] It is necessary to consider the competing submissions in the immediatecontext of the Act. There are distinct pathways to deportation set out in the Act. Thes 157 pathway involves a process where there is a right to review and appeal. Itwould seem unlikely that Parliament intended a person who had already received adeportation notice under s 157 and had or had not exercised the rights available toreview or appeal, to then on receipt of a deportation order (assuming any review orappeal was unsuccessful) be able to have an immediate further review of his or herposition by a humanitarian review under s 177. That would be a cumbersomeprocedure which duplicates Mr Li's rights.[60] It would also in my view be contrary to the stated purpose of the Act. Section 153 of the Act provides:153 Purpose of Part(1) The purpose of this Part is to support the integrity of New Zealand's immigration system and the security of New Zealand by providing for the deportation of certain persons from New Zealand.(2) To this end, this Part—(a) specifies when a person is liable for deportation; and(b) specifies how that liability must be communicated to the person; and(c) sets out the consequences of the liability for the person; and(d) specifies the only situations in which an appeal right exists in respect of that liability; and(e) provides for the person's deportation to be executed without theneed for further inquiries if no appeal is made or an appeal is unsuccessful.[61] This section at (d) indicates that the Part specifies the "only" availableprovisions for appeal, and at (e) that the outcome of an appeal should be final, withdeportation to follow if unsuccessful. These purposes seem inconsistent with aperson who is to be deported under s 157, with concomitant rights to a review orappeal procedure, then having a second opportunity under s 177 to traverse issuesthat are likely to be the same or similar, or arising because of further unlawfulresidence. The reference in s 177(2) to s 154 should, in my view, be read as setting alimit on the persons to whom s 177 applies. The discretion in s 177(1) is to beexercised only in respect of persons to whom s 154 exclusively applies and notpersons who are liable for deportation under other sections, for instance s 157. Icannot see why Parliament would have bothered to add the words "served on aperson to whom s 154 applies" if they did not wish to limit the persons to whom thesection applied. The words create a distinction between those liable to deportationunder s 154, and those liable to deportation under other sections such as s 157.[62] Mr Deliu argued that there is, in any event, a separate right to a humanitarianinterview created at common law for a person liable to deportation. He relied on theSupreme Court decision Ye v Ministry of Immigration,9 following Tavita v Ministerof Immigration.10 He relied in particular on the statement of the Court of Appeal inSingh v Minister of Immigration:11An humanitarian interview is not a statutory process. Consequent upon thisCourt's judgment in Tavita and Minister of Immigration [1994] 2 NZLR 257it was introduced to ensure that New Zealand's international obligationswere taken into account.[63] I do not agree that these cases identify a right that exists outside of the Act toa humanitarian interview. While a humanitarian interview is not a statutory processin a sense that its procedure is set out by a statute, the power that creates the right to9 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.10 Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).11 Singh v Minister of Immigration [2011] NZCA 532 at [11] at fn 4.it is statutory. The power derives from s 177. Thus, in Ye v Minister of Immigrationthe Chief Justice observed:12Where there may have been no consideration of humanitarian criteria at an earlier stage or where the circumstances earlier considered (by the Removal Review Authority or by the Minister of Immigration) have changed, it would be an unaccountable gap in the legislation to deny any consideration of those humanitarian circumstances.[64] She went on to refer to the section that is now s 177. Tipping J also referred to the consideration of humanitarian issues in the context of the power in thepredecessor to s 177.13[65] Nor do I accept that it is necessary to construe s 177 as applying to thedeportation of a person under s 154, because of New Zealand's internationalobligations. When someone is to be deported under s 157, New Zealand'sinternational obligations and indeed the specific humanitarian considerations arerecognised within the provision of the statutory review and appeal process.[66] Mr Deliu submitted that this is unfair, because in this case Mr Li has lived inNew Zealand for a further 16 months since he had the right of review or appeal, andhas in fact formed a new relationship which, if s 177 does not apply, cannot now betaken into account. That may be so but this is only because he has stayed on in NewZealand unlawfully and chosen this path. By his own admission he was aware thathis review against the deportation notice had been unsuccessful. He decidednevertheless to stay on in New Zealand. He cannot now call in aid his own actionswhile unlawfully in New Zealand, to claim a right to a second review. In doing sohe would be taking advantage of his own wrong. It cannot have been the intention ofParliament that a person could generate further rights of objection by staying onunlawfully in New Zealand and taking actions as if a permanent resident and here tostay.[67] I am satisfied therefore that the scheme of the Act means that the process applying to deportation under s 157 is distinct and separate from the processapplying to deportation under s 154. The Act does not envisage a situation where a12 Ye v Minister of Immigration, above n 10, at [5].13 Ye v Minister of Immigration, above n 10, at [13].person may accumulate further rights of review by staying on in New Zealandunlawfully after exhausting or not utilising other review or appeal rights. It wouldbe quite wrong if someone could defy a deportation order and thereby generatefurther rights of objection by remaining in New Zealand after, to their knowledge,their presence in New Zealand was unlawful. That would damage the integrity ofNew Zealand's immigration system.Interim relief pending any possible appeal[68] In the course of the hearing and in the submissions that have followed I havereceived full memoranda on the question of interim relief should the plaintiff fail.Mr Deliu on behalf of Mr Li seeks such interim relief pending the determination ofan appeal from this decision. He relies on the decision of Huang v Minister ofImmigration and Fang v Ministry of Business, Innovation and Employment.14 Hemakes the point that Mr Li is currently enjoying relief following a decision byHeath J,15 which granted him interim relief pending the determination of this case.[69] In that interim decision Heath J had noted that the issue was whether Mr Liwas served with a deportation order as required by statute. He observed there wasno evidence that a deportation order was served to an address that Mr Li had notifiedin a visa application. He stated:16While there is evidence of a courier containing a deportation order havingbeen sent by an immigration officer, there is no record of delivery inevidence before me. Indeed, there is evidence put forward, to which counselfor Mr Li has referred, that the courier company cannot provide any trackinginformation to demonstrate whether the courier was delivered to the relevantaddress.[70] He considered there was a real contest as to whether service was properlyeffected and was prepared to declare in the interim that the Chief Executive oughtnot to take any steps pending further order of the Court.14 Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 and Fang v Ministry ofBusiness, Innovation and Employment [2015] NZHC 2059.15 Li v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 660.16 At [7].[71] Mr Hardy submitted that I was bound by the recent Court of Appeal decisionof Chief Executive of the Ministry of Business, Innovation and Employment v Nair.17He contended that to grant interim orders the Court must be satisfied that interimorders are necessary to preserve the position of the applicant and that there is arespectable chance of success in the substantive judicial review, or in this case in theappeal. He submitted that neither were established.[72] In Nair the applicant had been unlawfully in New Zealand for some years. He had entered into a de facto relationship. He had a child with his de facto partner that was aged nine months and had health difficulties. While unlawfully in NewZealand he had been served with a deportation order and the decision was made notto cancel Mr Nair's deportation order under s 177 of the 2009 Act. The Court ofAppeal set aside an interim order that had been made preventing Mr Nair'sdeportation pending determination of the judicial review proceedings. It was heldfollowing Parmanadan v Minister of Immigration that the usual statutory effect ofdeportation will not generally be sufficiently adverse to meet the threshold forinterim relief.18 There may be particular adverse consequences, but these wouldhave to be established by evidence assessed in the context of both the legislativescheme and the legislative policy of the Act.19 The Court in Nair noted that whensomeone is deported from New Zealand they are subject to a prohibition under s 179of the Act during which they cannot enter New Zealand.[73] The effect of declining interim orders was that Mr Nair would have had toleave New Zealand and conduct his judicial review application from India. Ifsuccessful he could have applied for residency from India and the Minister couldhave exercised the discretion to remove the prohibition on entry. This wascontrasted with the position if interim relief was granted, which was that Mr Nairwould remain in New Zealand unlawfully. It was held that the threshold for interimrelief was not crossed.2017 Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA 248.18 Chief Executive of the Ministry of Business, Innovation and Employment v Nair, above n 17, at [15] citing Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424.19 Parmanadan v Minister of Immigration, above n 18, at [11].20 At [22]–[25].[74] Although there is some difference in the facts, in my view the sameconsiderations that arose in Nair arose in this case. Mr Li has been unlawfully inNew Zealand and aware that he was liable for deportation since December 2014. Hemade no efforts to regularise his immigration status until he was apprehended byimmigration officers.[75] If he has to leave New Zealand he will be able to pursue the appeal from overseas. If successful on the appeal he would be in the same position as Mr Nair would have been, and he could apply for a visa from overseas and the Minister might exercise his discretion to remove his prohibition on entry. I accept that Mr Li if he isnow deported, is deprived of a humanitarian interview. But he will be able to raisethe issues he would have raised then, in a renewed application. If he had beensuccessful on the service point there would be no prohibition on entry because theprohibition period in s 179(1) applies only where someone has been deported fromNew Zealand within the meaning of s 10(3) of the Act. As I have already observed,a person can only have been deported if the deportation order has been served. IfMr Li had been successful the deportation order will not have been served.[76] In contrast, if I grant interim orders as sought, Mr Li's unlawful stay inNew Zealand will continue until the appeal is heard and determined. The position will become more complex. It can be observed that he and his partner will suffer more if they stay longer and then Mr Li has to leave.[77] I do not consider that interim orders are necessary to preserve Mr Li'sposition. His goal is residence in New Zealand. His application will not be renderednugatory, in that through a further application he could pursue his return toNew Zealand.[78] As to the second limb of the test, whether there is a respectable chance of success, I note that there is a difference now between the position before me and theposition before Heath J when he granted interim relief. I now have had a much fulleraccount of the details of service than he did, and I have had evidence of delivery as Ihave recorded. I am satisfied that the service requirements were fulfilled on the basisof a significant body of evidence. I reject the s 177 argument as legally incorrect asMr Li has had a full opportunity to challenge the deportation liability notice. I havedrawn the inference that Mr Li was deliberately avoiding contact with ImmigrationNew Zealand. Given the lack of any intrinsic merit in Mr Li's position, and thefactual circumstances I have already outlined, it is my assessment that an appealwould not have a realistic chance of success.[79] Thus Mr Li's application for interim relief fails both in not showing thatinterim orders are necessary to preserve his position, or that his appeal has areasonable chance of success. Accordingly I decline interim relief.Result[80] The applicant's claim against the respondent is dismissed.[81] I decline to grant interim relief.Costs[82] If the defendant seeks costs it should file a submission within 21 days, andthe plaintiff to reply within a further 14 days...Asher J