CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v SINGH [2018] NZHC 272

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v SINGH[2018] NZHC 272 [28 February 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-003172[2018] NZHC 272UNDER the Immigration Act 2009, s 245BETWEEN CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENT OFWELLINGTONAppellantAND NAVNEET SINGHRespondentHearing: 8 December 2017Appearances: K G Stephen for AppellantS J M Mount QC for RespondentJudgment: 28 February 2018JUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 28 February 2018 at 3.30 pmpursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate.Introduction[1] This appeal concerns the meaning of s 216(1)(b) of the Immigration Act2009, which permits the Immigration and Protection Tribunal (IPT), upon decliningan appeal against deportation, to grant a temporary entry class visa for up to 12months "if the Tribunal considers it necessary to enable the appellant to remain inNew Zealand for the purposes of getting his or her affairs in order".[2] In 2016, the IPT made an order under s 216(1)(b) that Navneet Singh, whowas liable for deportation, be granted a temporary entry class visa valid for eightmonths for the purposes of allowing him to complete the course of study in which hewas enrolled. The Chief Executive obtained leave to appeal the decision on thefollowing question of law:1Did the Tribunal misinterpret, and consequently misdirect itself, as to thescope of its power under s 216(1)(b) of the Immigration Act 2009?[3] The specific ground of appeal is that the IPT misinterpreted s 216(1)(b) andmisdirected itself in law as to the scope of its power by incorrectly purporting togrant the appellant a student visa, in circumstances where the appellant's unlawfulstatus and liability for deportation stemmed from a decision of Immigration NewZealand (INZ) declining to grant the appellant a student visa by reason of fraud,leading to a result that is:(a) contrary to the policy and scheme of the Act;(b) tantamount to the IPT improperly considering the merits of INZ'sdecision to decline the appellant's student visa application, beyond theIPT's power in an "exceptional circumstances appeal under s 207;(c) tantamount to the IPT creating a de facto right of appeal from INZ'sdecision to decline a student visa when the statute does not expresslycreate any such right of appeal; and is(d) beyond the IPT's power to grant a temporary entry class visa unders 216(1)(b) where " necessary to enable the appellant to remain in1 Chief Executive, Ministry of Business, Innovation and Employment v Singh [2017] NZHC 1724.New Zealand for the purposes of getting his or her affairs inorder". (emphasis added).[4] The eight-month visa granted to Mr Singh by the IPT has now expired.Nevertheless, the question of law remains of general and public importance. I wasadvised from the bar that Mr Singh did not, in fact, complete the course of study butremains in New Zealand. However, Mr Singh was not represented at the hearing andMr Mount QC appeared as amicus curiae. I record my thanks for his assistance.Background[5] Mr Singh arrived in New Zealand in March 2015 and was granted a studentvisa valid to April 2016. He completed a National Diploma in Business, Level 5, inApril 2016.[6] On 27 April 2016, Mr Singh applied for a further student visa to studytowards a National Diploma in Business, Level 6. He was granted an interim visawhich allowed him to remain and study in New Zealand while his application wasprocessed. He paid the course fees and commenced the programme.[7] On 8 June 2016, INZ raised concerns that Mr Singh's student visa applicationhad included bank documents that were fraudulent. On 16 September 2016,Mr Singh's application for a further student visa was declined on the ground that hedid not meet the character requirements. As a result, on 18 September 2016,Mr Singh became unlawfully in New Zealand.[8] The Immigration Act specifically precludes a general right of appeal to theIPT against an INZ decision.2 There is, however, a right of appeal to the IPT onhumanitarian grounds under s 207. The IPT must allow such an appeal where thereare exceptional circumstances of a humanitarian nature that would make it unjust orunduly harsh for the appellant to be deported from New Zealand, and it would not becontrary to the public interest to allow the appellant to remain in New Zealand.[9] Mr Singh appealed under s 207 on the grounds that he was unaware of thefraudulent bank documents, which were submitted by his agent, that his family had2 Immigration Act 2009, ss 185(5) and 186.made a substantial investment in supporting his coming to New Zealand to study andthat he had already paid the fees for the level 6 course which he had attended untilhis visa expired. The IPT dismissed Mr Singh's humanitarian appeal, finding thatdeportation would cause Mr Singh and his family disappointment and distress butthat these circumstances did not meet the high threshold required for an appeal onhumanitarian grounds.3[10] The IPT then went on to order that Mr Singh be granted a temporary entryclass visa under s 216(1)(b), valid for eight months, for the purposes of allowing himto complete his course. Its reasoning was:4Nevertheless, in view of the fact that the appellant has successfullycompleted half of his programme, has paid the course fees for and attendedpart of the remaining programme, and that this programme has a limitedperiod to run, the Tribunal will direct the grant of a student visa for eightmonths. Without in any way minimising the seriousness of the supply offalse information in his application, the Tribunal accepts that the appellantmay well not have been aware of this, and that the necessary financialsupport has in fact been available to the appellant for his studies. Should thecourse not be completed within the next eight months, he may apply toImmigration New Zealand for a further student visa. It will then be up toImmigration New Zealand to decide on any such application, and theTribunal cannot give any guarantees in this respect.AppealFailure to consider the threshold question[11] Section 216 of the Immigration Act relevantly provides:(1) On declining an appeal against liability for deportation, if theTribunal considers it necessary to enable the appellant to remain inNew Zealand for the purposes of getting his or her affairs in order, itmay order —(b) that a temporary entry class visa, valid for a period notexceeding 12 months, commencing on the date of theTribunal's decision, be granted to the appellant.(2) If the Tribunal orders the grant of a visa under subsection (1)(b), nofurther appeal against liability for deportation may be brought by theholder upon the expiry of the visa or upon the holder earlierbecoming liable for deportation.(emphasis added)3 Re Singh [2016] NZIPT 502942 at [20]–[21].4 At [22].[12] The wording of s 216(1), albeit somewhat clumsy, makes it clear that thethreshold question is whether it is necessary for the appellant to remain in NewZealand for the purposes of getting his or her affairs in order. It carries theimplication that it will not always be necessary to remain in New Zealand to getone's affairs in order and that there may be affairs to put in order that can be attendedto from overseas. Indeed, given the widespread use of electronic communications itis likely that many things can be attended to from overseas. In this case, of course,the necessity of remaining in New Zealand was not in issue; there was never asuggestion that Mr Singh could complete the course remotely. So the central issue iswhether completing the course fell within the ambit of "getting his or her affairs inorder".[13] The IPT's decision made no specific reference to this issue and did notspecifically consider the meaning of the phrase. Self-evidently, it considered that thethree factors it identified (Mr Singh had completed half the programme, paid for thesecond course and undertaken part of the second course) were to be regarded asjustifying treating completion of the course as falling within the ambit of "affairs" tobe got in order. But these factors do not, in themselves, indicate the IPT's reasonsfor treating completion of the course as part of Mr Singh's "affairs" for the purposesof s 216(1). In the absence of any explicit reasoning I am unable to reach anyconclusion as to how the IPT interpreted the phrase "getting his or her affairs inorder".[14] For this reason, I do not accept Mr Mount's submission that this case isproperly approached as one in which the IPT adopted an interpretation that wasavailable to it, thereby precluding interference by this Court on the ground that adifferent interpretation was also available unless the decision is aberrant orirrational.5 As a result this Court should consider the matter afresh.The meaning of "getting his or her affairs in order"[15] Mr Stephen, for the Chief Executive, submitted that, properly interpreted, thephrase "getting his or her affairs in order" conveyed that the visa must be needed to5 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153at [54]–[57]; Equus Trust v Christchurch City Council [2017] NZCA 200 at [7].enable the person (and/or dependents) to do something that is, at least in part, for thepurpose of leaving the country. Section 216(1) should therefore be interpreted asrequiring some link between getting one's affairs in order and delaying deportation.He pointed out that this interpretation is consistent with the explanation for thepower given by the Select Committee at the time of passage of the legislation:6Such a delay would allow an unsuccessful appellant time to tidy his or heraffairs before departure from New Zealand. Some might need time to resignfrom their employment, and make arrangements for returning, and removingtheir belongings, to their home countries.[16] Mr Mount advanced a wider interpretation. He submitted that s 216(1)contemplated a broader discretion that would permit an unsuccessful appellant to puthis or her affairs, of whatever kind, in an orderly state before departing the country.The affairs in question need not be required to facilitate departure. He argued thatthis broader interpretation was consistent with the plain meaning of the statute, thestatutory context and the purposes and policy of the statute, and that only slightweight should be given to the select committee's comments.[17] The phrases "to get one's affairs in order" and its synonym, to "put one'saffairs in order" have not been the subject of previous judicial considerations. Theyare common vernacular expressions that, broadly, mean to organise one's personal,financial or legal affairs in anticipation of some event or change. They arecommonly used in connection with preparing for death or for an impending changein status that is either permanent or long-term. Because of the variety ofcircumstances confronting people, what constitutes "affairs" must depend on thenature of the circumstances; a person facing imprisonment will have differentmatters to attend to compared with a person suffering a terminal illness. A personplanning to travel for an extended period has different considerations from someonemoving overseas permanently. Whilst the phrases could be used in a wider sense ofputting one's general personal affairs in an orderly state, this would be a lesscommon use; the ordinary meaning of this expression is associated with someimpending change in one's circumstances.[18] I consider that the phrase is properly interpreted in accordance with the way itis commonly understood, which is the narrower approach contended for by6 Immigration Bill 2008 (132-2) (Select Committee Report) at 23.Mr Stephen. I accept his submission that the narrower interpretation is consistentwith the purpose of the Immigration Act generally and s 216(1) in particular. Thepurpose of the Immigration Act is "to manage immigration in a way that balances thenational interest, as determined by the Crown, and the rights of individuals".7 It isrelevant that the possibility of an order under s 216(1) arises only once deportation isinevitable. A person seeking an order under s 216(1) will have exhausted allavailable rights of review and appeal, including an appeal on humanitarian grounds.An order under s 216(1) is a last resort. Even if a visa were granted under s 216(1),deportation is inevitable within 12 months (that being the maximum time thatdeportation can be delayed under s 216(1)(b)). The appellant's extreme situationmust, inevitably, colour the meaning of "getting his or her affairs in order"; it is not amatter of attending to matters out of desire but out of necessity, in the face ofimpending deportation.[19] I do not consider that the maximum period of 12 months by whichdeportation can be delayed under s 216(1) gives any indication as to how the phraseis to be interpreted. Mr Mount argued that it was inconsistent with Mr Stephen'sargument because most immediate travel-related purposes are capable of beingarranged with a few months at most. In my view, that time frame does no more thanrecognise that whether a particular matter is properly regarded as falling within theambit of s 216(1) is a fact-specific question and allowance needs to be made for avariety of circumstances. A person who has been living in New Zealand for manyyears may have complex needs in terms of ordering his or her affairs, including thesale of a house, the winding up of a business or making new arrangements for familymembers.[20] Although I do not consider it necessary that the "affairs" to be put in order beones that will actually facilitate departure, the scope of activities that constituteaffairs for the purposes of s 216(1) must necessarily be coloured by thecircumstances I have described. In my opinion, the phrase "getting his or her affairsin order" means organising those personal, legal or financial matters that, by reasonof personal need or obligation (legal or moral) must be attended to so that7 Immigration Act 2009, s 3(1).deportation will not leave the individual concerned, or those associated with him orher, disadvantaged.[21] I doubt that embarking on a new course of action, or endeavouring tocomplete a project that is in its early stages will fall into this expression. Adifference is to be drawn between that which must be done and that which theappellant would like to do. I acknowledge that there are cases in which orders havebeen made under s 216(1) which have treated the phrase as wider than I havedescribed and where the objective appears to be primarily to soften the impact of anorder for deportation. In Ram v Minister of Immigration, for example, the IPT madean order under s 216(1) that allowed a Fijian citizen suffering from alcoholism, whohad been a New Zealand resident for five years, and living in New Zealand for eight,to remain to undertake an alcohol programme, notwithstanding that he hadundergone previous programmes unsuccessfully in the past.8 This might be viewedas a compassionate response to ease the effect of deportation rather than putting theappellant's affairs in order. Generally, however, cases decided by the IPT, whilstshowing a variety of circumstances, reflect the difference between matters that canfairly be viewed as necessarily in order to allow the appellant to leave the countrywith his or her personal obligations in order, and those that the appellant wouldsimply prefer to attend to.[22] In some cases the orders under s 216, made by the IPT, were directlyconnected with an appellant's deportation, such as being made for the purpose ofarranging their travel9 or making financial arrangements to ease the transition.10Those not directly connected with departure nevertheless usually show a consistenttheme of allowing the appellant to complete some unfinished undertaking that canfairly be viewed as being part of winding up life in New Zealand or preparing forreturning overseas, such as participation in legal proceedings that they had eitherbrought or had been brought against them, or tidying up business affairs.11 In Re8 Ram v Minister of Immigration [2016] NZIPT 600167.9 Re AI (Cameroon) [2016] NZIPT 502361.10 Re BK (South Africa) [2016] NZIPT 502853.11 Re Low [2016] NZIPT 502932; Re Peixoto de Alcantara [2017] NZIPT 600322; Re Singh [2017]NZIPT 50991. See also Re Skelly [2012] NZIPT 500559.AG, for example, the appellant was permitted to conclude a course of psychotherapyto ensure her psychological safety upon leaving New Zealand.12[23] There have been cases in which the appellant has been permitted to stay inorder to support their child to complete a school year. In cases where the "affairs" tobe put in order are, strictly, those of a child, especially a New Zealand citizen child,the IPT has properly viewed them as, effectively, the affairs of the parent, given theprotection granted to children under art 3.1 of the Convention on the Rights of theChild13 and the rights affirmed by the New Zealand courts.14 In Re Choi and ReTang, the appellants were permitted to stay so their dependent children could finishthe school term or year.15 In Nacis v Minister of Immigration an applicant whosedependent son had only two terms remaining in his final school year was permittedto stay to assist and support him.16 In Saofa'I, the appellant was allowed to stay forthree months to allow his daughter, who was a New Zealand citizen but who wouldhave to leave the country with him, to complete the school year.17[24] The case of an adult student is less common and more difficult. It cannot besaid that completion of study would never be an affair that necessitates completion.But, given the statutory context discussed, study is not usually regarded assomething that one has to complete in terms of readying oneself for an impendingand permanent change such as deportation.[25] In Re Almoka, an order was made permitting an adult student to stay for threemonths to complete the "brief remaining part" of the language course he wasundertaking, though he was not able to remain for long enough to complete thewhole of his intended course of study, with the result that he lost the benefit of ascholarship.18 This suggests consideration of the amount of time required tocomplete a course of study relative to the time already devoted to it. For example,an individual who requires a very short amount of time to complete a course or sit12 Re AG (United States) [2016] NZIPT 502876.13 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature20 November 1989, entered into force 2 September 1990).14 Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA); O'Brien v Immigration andProtection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at [32].15 Re Choi and Han [2016] NZIPT 502553, 502555; Re Tang [2016] NZIPT 502870.16 Nacis v Minister of Immigration [2016] NZIPT 600211.17 Saofa'I [2016] NZIPT 600309.18 Re Almoka [2017] NZIPT 502990 at [27].exams on a course to which he or she has already devoted a lengthy period wouldmore readily show that completion was part of "getting their affairs in order" than astudent whose course was short or who had not devoted a long period to it already.The nature of the course may also be relevant. It must be a question of degree to beassessed case by case.[26] In this case, Mr Singh was less than five months into his one-year course ofstudy. The delay in deportation was not so much giving him, in the colloquial sense,the chance to "finish off" his study, but rather to undertake the substantial part of it,which still lay ahead. Further, by the time of the IPT's grant, Mr Singh had been inNew Zealand for only 16 months. The temporary visa granted by the IPT thatpermitted him to remain for eight months therefore amounted to half the time he hadalready spent in New Zealand.[27] Looked at against the statutory context and Mr Singh's personalcircumstances, it cannot be said that completing a course of which less than half hadbeen undertaken can truly be said to be part of Mr Singh's affairs that had to be putin order.Did the Tribunal err by, in effect, creating an appeal right that does not exist underthe Act?[28] Mr Stephen submits that the power the IPT holds under s 216 cannot beexercised in a way that thwarts the statutory scheme.19 As already noted, there wasno general right of appeal against INZ's decision to decline Mr Singh's applicationfor a further visa and Mr Singh's only right of appeal (on humanitarian groundsunder s 207) had failed. Mr Stephen argued that, in these circumstances, the IPT'sdecision granting the visa to enable Mr Singh to finish his studies had the effect ofgranting him a visa for the very purpose that INZ had already rejected.[29] I do not see that the mere fact that an order under s 216 would have the samepractical outcome as a visa granted at first instance necessarily precludes the orderbeing made. That possible outcome is the result of the different considerations at therespective stages of the process. I do not consider that, in itself, such an outcomewould thwart the legislation by effectively creating a new right of appeal. The19 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [44].legislature clearly intended that short-term visas of up to a year could be granted forthe purpose of the appellant getting their affairs in order. It would undermine thatsection if one could not get their affairs in order simply because other matters, suchas in the present case Mr Singh's business course, could be resolved which were thesubject of the initial visa application.[30] However, that would only be the case if s 216 was properly applied. Givenmy conclusion as to the interpretation of s 216(1), the order here did undermine thestatutory scheme of the Immigration Act, as it, in effect, operated as a challenge tothe underlying INZ decision as the s 216 test was not followed.Result[31] The appeal is allowed.[32] The IPT's order made under s 216(1) of the Immigration Act 2009 is setaside.[33] In the application for leave to appeal, the Chief Executive indicated that nocosts would be sought in the event of the appeal being allowed, given that it is in thenature of a test case. I therefore make no order as to costs. Mr Mount's costs will,however, be met in the usual way.____________________P Courtney J