MBIE v NAVNEET SINGH [2017] NZHC 1724

MBIE v NAVNEET SINGH [2017] NZHC 1724 [25 July 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-003172[2017] NZHC 1724IN THE MATTER OF s 245 of the Immigration Act 2009BETWEEN THE CHIEF EXECUTIVE, MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTApplicantAND NAVNEET SINGH (THE APPELLANTIN A DETERMINATION OF THEIMMIGRATION AND PROTECTIONTRIBUNAL [2016] NZIPT 502942)RespondentHearing: 27 June 2017Appearances: B Charmley for the ApplicantS Mount as Amicus CuriaeJudgment: 25 July 2017JUDGMENT OF HINTON JThis judgment was delivered by me on 25 July 2017 at 2.15 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/Solicitors:Crown Law, WellingtonS J Mount, Barrister, Auckland[1] Mr Singh is a citizen of India. He is liable for deportation. The Immigration and Protection Tribunal declined his appeal against liability for deportation, but granted him a temporary entry class visa "for the purposes of getting his affairs inorder" under s 216(1)(b) of the Immigration Act 2009.1[2] The Chief Executive applies for leave to appeal the decision of the Tribunal regarding the temporary entry class visa. The proposed issue is over the meaning and extent of "getting affairs in order".Background[3] In March 2015, Mr Singh came to New Zealand and was granted a student visa, valid to April 2016. He completed a National Diploma in Business (Level 5) in April 2016.[4] On 27 April 2016, Mr Singh applied for a further student visa to study towards a National Diploma in Business (Level 6). He was granted an interim visa which allowed him to stay and study in New Zealand. He paid the course fees and commenced the programme.[5] However, on 8 June 2016 Immigration New Zealand (INZ) raised concernsregarding Mr Singh's character. They received information that his previous studentvisa application had included fraudulent bank documents. Mr Singh had provided a financial sponsor and a bank statement, but the sponsor and account were not used to pay his tuition fees.[6] On 16 September 2016, INZ declined Mr Singh's application for a furtherstudent visa. It was not satisfied he met the character requirements under the immigration instructions.[7] Mr Singh became unlawfully present in New Zealand on 18 September 2016 at which point he ceased attending his course.1 Re Singh [2016] NZIPT 502942.[8] Mr Singh then appealed his liability for deportation under s 207 of the Immigration Act 2009 (the Act). That section provides that the Immigration and Protection Tribunal (the Tribunal):(1) must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.[9] The Tribunal dismissed Mr Singh's appeal. Mr Singh had argued that his circumstances were exceptional because his agent provided the fraudulent bank documents. He provided evidence that his fees and expenses were in fact paid by his family. He also argued that he and his family had invested time and money for him to study in New Zealand. The Tribunal recognised that these were circumstances that could cause disappointment and distress, but did not consider they could be categorised as exceptional.[10] The Tribunal went on to direct, pursuant to s 216(1)(b) of the Act, that Mr Singh be granted a student visa, valid for eight months, commencing on the date of the decision. The reason stated for the grant of the visa was to allow Mr Singh the opportunity to complete the remaining diploma course in which he was enrolled, prior to leaving New Zealand.Application for leave[11] The relevant leave provision is s 245 of the Act which provides:245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.[12] In its practical application, s 245 requires an applicant to identify: 2(a) a question of law;(b) that is capable of serious argument; and(c) that has importance extending beyond the particular case, or for some other reason warrants a decision from the High Court.Proposed ground of appeal[13] The question on which the Chief Executive seeks leave is as follows:Did the Tribunal misinterpret, and consequently misdirect itself, as to the scope of its power under s 216(1)(b) of the Act?AnalysisQuestion of law[14] There is no doubt that the question raised by the Chief Executive is a question of law, being a question as to the interpretation of a statutory provision.Seriously arguable[15] The Chief Executive submits it is seriously arguable that the Tribunal misinterpreted and consequently misdirected itself as to the scope of its power under s 216(1)(b).[16] Section 216 provides:2 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].216 Tribunal may make order delaying deportation if appeal unsuccessful(1) On declining an appeal against liability for deportation, if the Tribunal considers it necessary to enable the appellant to remain in New Zealand for the purposes of getting his or her affairs in order, it may order—(a) that the deportation of the appellant be delayed for a period notexceeding 12 months, commencing on the date of the Tribunal'sdecision; or(b) that a temporary entry class visa, valid for a period not exceeding12 months, commencing on the date of the Tribunal's decision, begranted to the appellant.(2) If the Tribunal orders the grant of a visa under subsection (1)(b), no further appeal against liability for deportation may be brought by the holder upon the expiry of the visa or upon the holder earlier becoming liable for deportation.[Emphasis added][17] The phrase "getting his or her affairs in order" has apparently not yet been considered and defined by this Court.[18] The Chief Executive accepts that "getting affairs in order" is a relatively broad expression, but says it is palpably outside the ambit of s 216(1)(b) to grant the very relief the Tribunal has just declined on the s 207 appeal, which it says is what the Tribunal did here. It says this is tantamount to the Tribunal applying a lesser testthan the strict "exceptional circumstances" requirement of s 207, or the Tribunal using s 216(1)(b) as a de facto appeal from INZ's decision to decline a student visa. The Chief Executive points out that the statute does not expressly create any such right of appeal.[19] As to the correct meaning of the phrase "getting affairs in order", the Chief Executive draws on a Select Committee Report which relevantly states as follows:3Tribunal may make orders on allowing appeal against liability for deportation3 Immigration Bill 2008 132-2 (Select Committee Report) at 23.While the Tribunal could make orders under clause 188 when an appeal was successful, there is no specific provision in the bill for deportation to be delayed if the appeal is unsuccessful.Such a delay would allow an unsuccessful appellant time to tidy his or her affairs before departure from New Zealand. Some might need time to resign from their employment, and make arrangements for returning, and removing their belongings, to their home countries.We therefore recommend new clause 192A be inserted to allow the Tribunal to make an order delaying deportation if it considers it necessary, where an appeal against liability for deportation is not successful.[Emphasis added][20] The Chief Executive says the examples given of tidying affairs would not include completing a course which was the subject of the visa grant in the first place.[21] Mr Mount, appointed as amicus to ensure I have the benefit of balanced argument, submitted there may be no "seriously arguable" question here.[22] He points out that the Tribunal has a discretion to grant a further visa for up to 12 months under s 216(1)(b) and it allowed eight months in circumstances where Mr Singh had successfully completed more than half his programme and paid the course fees for the remainder. In practical terms, Mr Mount submitted, deporting Mr Singh would have left his affairs in disorder.[23] Mr Mount says the Tribunal's decision was a fact-specific assessment in accordance with a broad discretion. He says it would not be desirable to add any judicial gloss or limitation to the words of the statute and there was nothing in s 216 that limited the type of visa the Tribunal might allow. He says in cases such as thepresent, getting one's affairs in order may require the continuation of the same class of visa. Finally, Mr Mount says there is nothing in the Tribunal's decision to indicateit created an extra appeal right that does not exist under the Act or that it acted for any purpose other than to allow Mr Singh to depart in an orderly manner.[24] These are all valid and well-made points. But I am nonetheless persuaded there is a serious question to be argued on the basis of the Chief Executive'ssubmissions.[25] It is seriously arguable whether, on the face of the order alone, it fits within"getting affairs in order". It is also not clear from the Tribunal's decision that theyhave applied the test of "getting affairs in order". Having concluded there were no"exceptional circumstances", and immediately before making the direction under s 216, the Tribunal says:4Without in any way minimising the seriousness of the supply of false information in his application, the Tribunal accepts that the appellant may well not have been aware of this, and that the necessary financial support has in fact been available to the appellant for his studies.[26] This language could suggest the Tribunal was in effect applying a lesser standard under s 207 when allowing the eight-month temporary entry class visa. Then, in making the order under s 216, the Tribunal says:5The reason for the grant of this visa is to allow the appellant the opportunity to complete the remaining diploma course in which he is enrolled, prior to leaving New Zealand.[27] The Tribunal does not refer to "getting affairs in order" or explain howcompleting the course over eight months fell into the category of getting affairs in order.[28] I find the appeal involves a question of law that is capable of serious argument.Question of general importance[29] In terms of the final hurdle for granting leave, the Chief Executive says that the proposed question of law is of general importance. Although Mr Mount's written submissions argued to the contrary, in the course of oral submissions, he accepted that there is a question of law of general importance.[30] I agree. The question raised on the appeal clearly extends beyond this particular case. I am advised that the s 216 power is used frequently and that on a number of previous occasions, the Tribunal has used the power in a very broad way. Mr Mount said that was accepted.4 Re Singh, above n 1, at [22].5 At [26].[31] I note two examples that are similar to the present. In Re Singh,6 INZ declined an application for a student visa because, as in the present case, fraudulent bank documents were provided. The Tribunal then granted a student visa for six months to enable the applicant in that case to complete the remainder of his course. Similarly, in Re Dalal,7 INZ declined the student's application on the basis he did not have sufficient funds to maintain himself while studying. Again, the Tribunalgranted the appellant a student visa (valid for three months) to "allow the appellantthe opportunity to complete the diploma course in which he is enrolled".8[32] This particular power is not only used frequently in a wide variety of cases, but as noted earlier, has apparently not been considered by the High Court before. Accordingly, the scope of the power under s 216(1)(b) is an issue of wider public importance that requires clarification.Conclusion[33] The applicant has therefore satisfied me that the requirements of s 245 of the Act have been met. Leave to appeal is granted on the following question:Did the Tribunal misinterpret, and consequently misdirect itself, as to the scope of its power under s 216(1)(b) of the Immigration Act 2009?[34] I make no order as to costs. As this is in the nature of a test case, the applicant does not seek costs.[35] Mr Mount's costs as amicus will be met in the first instance by the Registrar from the Crown fund. Whether those costs will ultimately be a charge on the Crown6 Re Singh [2016] NZIPT 502833.7 Re Dalal [2016] NZIPT 502825.8 At [24].fund or payable by the applicant by order under s 99A(1)(b) of the Judicature Act 1908 can be determined following the hearing of the appeal. Mr Mount'sappointment continues for purposes of the appeal.-------------------------------------------Hinton J