LI v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 2977

LI v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2017] NZHC 2977 [1 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-1198CIV-2017-404-1200[2017] NZHC 2977UNDER Sections 245, 249 of the Immigration Act2009IN THE MATTER OF Applications for leave to appeal and leaveto apply for judicial review to the HighCourt against a determination of theImmigration and Protection TribunalBETWEEN ZHENYANG LIFirst ApplicantLING XUSecond ApplicantZHEN LIThird ApplicantAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentHearing: 18 October 2017Appearances: R E Harrison QC and J S T Nguy for the applicantsI M G Clarke and E N C Lay for the respondentJudgment: 1 December 2017JUDGMENT OF PALMER JThis judgment is delivered by me on 1 December 2017 at 3 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSummary[1] Immigration New Zealand (INZ) decided Mr Zhenyang Li is liable todeportation because it considers he breached the conditions of his work visa by"working" for his wife's air conditioning company. If so, his wife and son are alsoliable to deportation. He says he was only helping his wife out, and was notemployed by, or "working" for, her company. The Immigration and ProtectionTribunal (the Tribunal) considered it had no jurisdiction to decide his underlyingliability for deportation in a humanitarian appeal. No other sort of appeal isavailable. Mr Li seeks leave to appeal the IPT's decision and to apply for judicialreview of the INZ's decision.[2] The focus of a humanitarian appeal, for all the sorts of deportation for whichit is available, is on the humanitarian consequences of deportation, assuming thereasons for deportation are legally valid. The Tribunal does not have jurisdiction ona humanitarian appeal to determine the validity of underlying liability to deportation.I do not consider it is seriously arguable it does, so I decline leave to appeal. ButParliament cannot have intended to restrict the applicants' right to judicial reviewunder s 27(2) of the New Zealand Bill of Rights Act 1990 (Bill of Rights) byrequiring them to first take a hopeless appeal before applying for leave to apply forjudicial review. Section 6 of the Bill of Rights, the principle of legality and commonsense militate strongly against such an interpretation of s 249(1) of the ImmigrationAct 2009 (the Act). Accordingly, s 249 does not apply and judicial review of INZdecisions on liability for deportation is available under s 247 without leave beingrequired. I grant the application for leave to apply for judicial review with anextended deadline of 5.00 pm Friday 15 December 2017.What happened?The applicants[3] Mr Zhenyang Li, the first applicant, is 48 years old and a Chinese citizen. Hearrived in New Zealand on a work visa in July 2010 under the China Special WorkPolicy. Since July 2012 he has held a series of work visas under the Work toResidence (Long Term Skill Shortage List) category. Mr Li applied unsuccessfullyfor residence in 2014 and 2016. Mr Li's current work visa (a temporary entry classvisa), issued in November 2015, provides he "may only work as Chef for IdealFortune Limited in Auckland". It expires on 24 February 2018.[4] In January 2011, Mr Li was joined by Ms Ling Xu, his wife the secondapplicant who is now 48 years old, and their son, Mr Zhen Li the third applicant,then 15 and now 21 years old. Ms Xu has also had a series of work visas. In 2014she established a company installing air-conditioning and under-floor heating. She isthe sole director and shareholder and says she initially operated alone, with part-timeassistance from a volunteer apprentice and her son. The company has had a full-timeemployee since October 2016. Mr Zhen Li is currently on a student visa.Deportation[5] On 25 October 2016, each of the applicants were served with a DeportationLiability Notice (DLN) by INZ. Mr Li's DLN was on the ground he had breached acondition of his work visa by working for Mrs Xu's company. Mrs Xu's and MrZhen Li's DLNs were issued on the basis their visas were based on theirrelationships with Mr Li. The applicants made submissions in response, questioningthe basis of the decision.[6] On 8 December 2016, INZ asked for Mr Li's comment on additionalinformation that he was working for his wife's business, installing air conditioningunits. On 22 December 2016, Mr Li made submissions to INZ addressing theadditional information and stating any assistance he gave his wife by deliveringmaterials to various worksites was done on a voluntary basis to support his wife.[7] On 22 March 2017 INZ informed the three applicants it did not accept therewere good reasons why their deportation should not proceed. The applicants madehumanitarian appeals to the Tribunal. A core submission was that INZ did notestablish that Mr Li had ever worked for Mrs Xu's company so his actions did notbreach the condition of his visa and the DLNs were unfair.Tribunal decision[8] The Tribunal declined the appeals on 17 May 2017. It concluded there wereno exceptional circumstances of a humanitarian nature for the applicants eitherindividually or as a family.1 That meant they had failed to meet the requirements ofa humanitarian appeal under s 207 of the Act and their appeals were declined. Inrelation to the applicants' core submission the Tribunal stated:2[30] The Tribunal does not have powers of review in respect of whetherthe basis on which a DLN is issued (under the provisions of s 157 of the Act)was correct or to review Immigration New Zealand's actions and decisionsleading to the service of the DLNs. The appellants' avenue of challenge inthat regard is through an application for judicial review of Immigration NewZealand's decision. It does not have jurisdiction to review a decision ofImmigration New Zealand to issue or maintain a DLN or to decline to granta temporary visa: L v Removal Review Authority (HC Wellington, CIV-2005-485-1601, 3 March 2006).[31] The Tribunal's jurisdiction on an humanitarian appeal, pursuant to s207 of the Act, is confined to the assessment of exceptional humanitariancircumstances as set out in the statutory test.Applications[9] The applicants now apply for:(a) leave to appeal the Tribunal determination on whether it is open to theTribunal, when determining an appeal on humanitarian grounds:(i) to consider the legal validity of the ground on which liabilityfor deportation and/or issuance of a DLN is allegedly based;and(ii) to consider any material shortcomings of the INZinvestigations leading to the conclusion there is sufficientreason to deport or issue a DLN; and1 Re Xu [2017] NZIPT 502997-999 at [56].2 At [30]–[31].(b) leave to apply for judicial review of the legality and fairness of INZ'sinvestigation whether there was sufficient reason to deport theapplicants and/or issue DLNs.Question 1: Leave to appealThe law of appeal of Tribunal decisions[10] Section 245(1) of the Act provides a party to an appeal to the Tribunal, who is"dissatisfied with any determination of the Tribunal in the proceedings as beingerroneous in point of law", is entitled, with the leave of the High Court, to appeal onthat question of law. In determining whether to grant leave, s 245(3) requires a courtto "have regard" to whether that question "is one that by reason of its general orpublic importance or for any other reason ought to be submitted to the High Courtfor its decision". The Court of Appeal has stated the "any other reason" limb"would be engaged only in exceptional circumstances involving individual injusticeto such an extent that the Court could not countenance the first instance decisionstanding".3[11] There are two sorts of appeal to the Tribunal available in respect ofdeportation liability. Under s 202, appeal on the facts is available where a visa isgranted in error, a visa is held under false identity or because of fraud or forgery,because new information as to character becomes available, or if refugee orprotected status is cancelled.4 Such an appeal is not expressed to apply todeportation of holders of interim work visas under s 157, as at issue here.[12] The appeal sought here would challenge the Tribunal's interpretation of itsjurisdiction on the second sort of appeal. These are humanitarian appeals underss 206 and 207 of the Act which provide, relevantly:206 Who may appeal to Tribunal on humanitarian grounds(1) The following persons may appeal to the Tribunal on humanitariangrounds against their liability for deportation:3 Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 citing Machida v ChiefExecutive, Ministry of Business Innovation & Employment [2016] NZCA 162, [2016] NZAR662 at [8].4 Immigration Act 2009, ss 144, 156, 158, 159, 160 and 162.(a) a person liable for deportation under section 154 on the groundsof being unlawfully in New Zealand:(b) a temporary visa holder or interim visa holder liable fordeportation under section 155, 156, or 157:(c) a resident or permanent resident liable for deportation undersection 155, 156, 158, 159, 160, or 161:(d) a person liable for deportation under section 162.(2) No person may appeal to the Tribunal on humanitarian grounds—(d) if he or she holds a limited visa and is liable for deportationunder section 155, 156, or 157; or207 Grounds for determining humanitarian appeal(1) The Tribunal must allow an appeal against liability for deportation onhumanitarian grounds only where it is satisfied that—(a) there are exceptional circumstances of a humanitarian naturethat would make it unjust or unduly harsh for the appellant to bedeported from New Zealand; and(b) it would not in all the circumstances be contrary to the publicinterest to allow the appellant to remain in New Zealand.[13] In three decisions, the High Court has found predecessor versions of s 207 tobe limited to considering humanitarian grounds in deciding whether to allow anappeal. In L v Removal Review Authority,5 in respect to revocation of a student visaunder a previous version of s 207, Ronald Young J noted the Act only provided oneground of appeal from a decision to revoke such a permit and therefore "[n]ochallenge beyond a judicial review in the High Court is therefore permitted to thecircumstances which create the unlawful presence of the appellant in New Zealand".6In Kartseva v Chief Executive of the Ministry of Business, Innovation andEmployment, Duffy J relied on L in agreeing the Tribunal cannot determine the5 L v Removal Review Authority HC Wellington, CIV 2005-485-1601, 7 December 2005.6 At [11].merits of INZ's decision on a humanitarian appeal.7 In Machida v Immigration andProtection Tribunal, Hinton J came to the same conclusion.8Submissions[14] Dr Harrison QC, for the applicants, acknowledges that, if the Court finds theproposed questions not seriously arguable, it will refuse leave to appeal. He seeks toargue on appeal that the High Court decision of L v Removal Review Authority waswrongly decided or is no longer good law. He submits it failed to address theconcept of "collateral challenge" of unlawful administrative decisions. He submitsthe essential fairness of the liability for deportation forms part of the overallcircumstances for consideration in a humanitarian appeal in terms of therequirements for "exceptional circumstances" or deportation being "unjust or dulyharsh" or as part of the "contrary to public interest" inquiry. Dr Harrison also has a"less ambitious argument" that underlying liability can be examined as part of thebackground facts.[15] Ms Clarke, for the Crown, submits the Tribunal was bound to follow L vRemoval Review Authority, and the other precedents noted above, which werecorrectly decided in light of the text and scheme of the Act.9 She acknowledges thelevel of a breach giving rise to deportation liability can be relevant to the publicinterest inquiry under s 207(1)(b). But she submits the nature of the breach itselfcannot be relevant to the humanitarian circumstances inquiry and, therefore, cannotsustain an appeal under s 207. Ms Clarke indicated the Crown would oppose interimrelief if it were the subject of an application. She also indicated that no stepstowards the applicants' deportation would be taken until after my decision in thisjudgment, after which action would be governing by the timings in the Act, includingthe 20-day appeal period.7 Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment [2017]NZHC 97 at [30].8 Machida v Immigration and Protection Tribunal [2015] NZHC 2649 at [67].9 Because Dr Harrison took the point, I note Ms Clarke acknowledged the Crown is required toseek leave to exceed the maximum length for interlocutory submissions, which it did not dohere. But I do not consider the Crown was appreciably advantaged by using more words thanrequired.Decision[16] If the proposition were seriously arguable, there is little doubt the appealwould fulfil the requirement of s 245 of the Act. But I do not consider the"exceptional circumstances of a humanitarian nature", required for a humanitarianappeal in s 207, extend to the validity of the underlying liability to deportation. DrHarrison is correct the Supreme Court in Guo stated whether deportation is "unjustor unduly harsh" "is to be assessed in the light of the reasons why the appellant isliable for deportation".10 But it considered those reasons would be balanced againstthe consequences of deportation and the primary focus would be on the personalcircumstances of the deportee and family.[17] The use of the term "humanitarian" as the pivotal qualification of the relevantcircumstances in s 207(1)(a) supports that. So, most persuasively, does the schemeof the Act, in providing for both humanitarian appeals under s 207, and appeals onliability, for deportation liability for a range of reasons, but not for this category oftemporary work visa. This means that, where Parliament intended the reasons fordeportation liability to be subject to an appeal, it provided for that explicitly. Whereit did not so provide, the compelling inference is it did not so intend. The legislativehistory does not assist Dr Harrison's argument. The focus of a humanitarian appeal,for all the sorts of deportation for which it is available, is on the humanitarianconsequences of deportation, assuming the reasons for deportation are legally valid.[18] I do not consider the concept of collateral challenge assists the applicants. Acollateral challenge is where the validity of an action or decision is challengedindirectly to determine private law rights.11 That is the not the situation here.Neither does underlying liability to deportation as part of the background facts of thecase enable the Tribunal to overturn INZ's decision on liability.[19] The Act attaches rights of appeal to the underlying reasons for other sorts ofdeportations. It does not do so for liability to deportation on grounds of breachingconditions of a temporary work visa. Parliament did not intend to provide such aright of appeal. I do not consider it is seriously arguable it did. Humanitarian10 Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [9].11 P F Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA) at [47]–[49].appeals do not fill the gap. I consider L v Removal Review Authority was correctlydecided. I decline leave to appeal.[20] But this is not a licence for official unlawfulness, if it exists. Section 18(4) ofthe Bill of Rights and art 13 of the International Covenant on Civil and PoliticalRights (ICCPR) implicitly require there to be a means by which the lawfulness ofdeportation can be challenged. That can be achieved by the supervision of the Courton application for judicial review.Question 2: Leave to apply for judicial reviewThe law of judicial review of Immigration decisions[21] Sections 247 and 249 of the Act affect applications for leave to apply forjudicial review. They provide, relevantly:247 Special provisions relating to judicial review(1) Any review proceedings in respect of a statutory power of decisionarising out of or under this Act must be commenced not later than 28days after the date on which the person concerned is notified of thedecision, unless—(a) the High Court decides that, by reason of special circumstances,further time should be allowed; or(b) leave is required, under section 249(3), before proceedings maybe commenced (in which case section 249(4) applies).(3) In this section, statutory power of decision has the same meaning asin section 4 of the Judicial Review Procedure Act 2016.249 Restriction on judicial review of matters within Tribunal'sjurisdiction(1) No review proceedings may be brought in any court in respect of adecision where the decision (or the effect of the decision) may besubject to an appeal to the Tribunal under this Act unless an appeal ismade and the Tribunal issues final determinations on all aspects of theappeal.(2) No review proceedings may be brought in any court in respect of anymatter before the Tribunal unless the Tribunal has issued finaldeterminations in respect of the matter.(3) Review proceedings may then only be brought in respect of a decisionor matter described in subsection (1) or (2) if the High Court hasgranted leave to bring the proceedings or, if the High Court hasrefused to do so, the Court of Appeal has granted leave.(4) An application to the High Court for leave to bring reviewproceedings must be made—(a) not later than 28 days after the date on which the Tribunal'sdetermination in respect of the decision or matter to which thereview proceedings relate is notified to the person bringing theproceedings; or(b) within such further time as the High Court may allow onapplication made before the expiry of that 28-day period.(6) In determining whether to grant leave for the purposes of this section,the court to which the application for leave is made must have regardto—(a) whether review proceedings would involve issues that could notbe adequately dealt with in an appeal against the finaldetermination of the Tribunal; and(b) if paragraph (a) applies, whether those issues are, by reason oftheir general or public importance or for any other reason,issues that ought to be submitted to the High Court for review.(7) A court that grants leave under subsection (3) to bring reviewproceedings must state the issue or issues to be determined in theproceedings.(8) Nothing in this section limits any other provision of this Act thataffects or restricts the ability to bring review proceedings.[22] I have previously held there are constitutional and Bill of Rightsconsiderations relevant to applications for leave for judicial review that do notimpact applications for leave to appeal in the same way.12Submissions[23] Dr Harrison has provided a draft statement of claim for his proposedapplication for judicial review. It would challenge each INZ decision on liability todeportation and to issue a DLN, for each applicant on grounds of natural justice,unreasonableness and error of law in relation to the meaning of "work" in the visa as12 RM v Immigration and Protection Tribunal [2016] NZHC 73 at [39]-[40]; AI (Somalia) vImmigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [35].something wider than employment. If the application for judicial review canproceed, but the appeal cannot, Dr Harrison will seek interim relief pendingdetermination of the judicial review.[24] Dr Harrison says the application for leave to apply for judicial review isprecautionary in case leave is required under s 249(3) or out of time under s 247(1).He submits, if his submissions on leave to appeal are declined as they have been, thereview proceedings could not be adequately dealt with in an appeal, unders 249(6)(a), and the issues are of such general or public importance they should besubmitted to the Court for review under s 249(6)(b). If s 247 applies because thedecision could not be subject to an appeal under s 249, he submits there are specialcircumstances justifying an extension to the deadline. Those circumstances are thatthe applicants were not sleeping on their rights but pursuing their humanitarianappeal which, via s 249(2), precluded interim judicial review proceedings. Thatcourse was entirely understandable.[25] Ms Clarke submits the applicants may apply for leave for judicial reviewunder s 249 of the Act. The Crown agrees the subject matter of the judicial review isnot capable of being resolved by way of appeal, consistent with the Crown's positionon the appeal. But Ms Clarke submits the proposed review raises no questioncapable of bona fide and serious argument or that should be submitted to the HighCourt for review.Decision[26] I held above, in relation to the application for leave to appeal, consistent withexisting High Court decisions and as submitted by the Crown, that the applicants'challenge to their underlying liability for deportation cannot be decided in ahumanitarian appeal. The Act provides for no other type of appeal. I consider s249(1) does not apply because the decision may not "be subject to an appeal to theTribunal under this Act". Accordingly, s 249 does not restrict the right to apply forjudicial review of a decision about underlying liability to deportation where only ahumanitarian appeal is available.[27] It is true a humanitarian appeal could be (and was here) taken. But, as theCrown submitted, it must have been hopeless in challenging the underlying liabilityfor deportation. Parliament cannot have intended to restrict the applicants' right tojudicial review under s 27(2) of the Bill of Rights by requiring them to first take ahopeless appeal. Section 6 of the Bill of Rights, the principle of legality andcommon sense militate strongly against such an interpretation of s 249(1).[28] Accordingly, s 247 governs the proposed judicial review, as it is of a statutorypower of decision under the Act. The applicants are out of time under s 247(1). Butthey are out of time because they pursued their right of humanitarian appeal,believing (and submitting) that their challenge to underlying liability to deportationcould be resolved via that route. I do not consider their right to judicial reviewshould be foreclosed in such circumstances. However, now it is clear that onlyjudicial review is the appropriate route by which to challenge underlying liability incertain circumstances, future such cases will need to be examined on a case-by-casebasis and may not deserve such an extension of time.[29] If, contrary to my conclusion, s 249 applied instead, I would still grant leaveto apply for judicial review. I consider the merits of the applicants' case, inexercising their constitutional right to challenge the exercise of government powerby way of judicial review, are seriously arguable. I consider denying them any legalavenue to challenge potential unlawfulness leading to their deportation couldconstitute individual injustice to such an extent the Court could not countenance thedecision standing. Accordingly, I grant leave for the applicants to apply for judicialreview along the lines of the draft statement of claim with an extension of time.Result[30] I decline the application for leave to appeal. I grant the application for leaveto apply for judicial review with an extension of time until 5.00 pm Friday 15December 2017. I award costs on a 2B basis to the applicants...................................................................Palmer JCounsel/Solicitors:Dr R E Harrison QC, AucklandJesse & Associates, AucklandCrown Law, Wellington CI