CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v NAIR [2016] NZCA 248

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v NAIR[2016] NZCA 248 [10 June 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA144/2016[2016] NZCA 248BETWEEN CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTAppellantAND MILAN SANKUNNY NAIRRespondentHearing: 17 May 2016Court: Ellen France P, Randerson and Miller JJCounsel: M Hodge and K Lawson-Bradshaw for AppellantL Hansen as counsel assistingJudgment: 10 June 2016 at 2 pmJUDGMENT OF THE COURTA The appeal is allowed. The interim order preventing the respondent'sdeportation is set aside.B No order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France P)Introduction[1] This is an appeal by the Chief Executive of the Ministry of Business,Innovation and Employment against a decision of Duffy J to grant interim relief.1 Thedecision restrains the Chief Executive from deporting Mr Nair from New Zealand toIndia until the High Court determines Mr Nair's judicial review of the decision madeby an immigration officer under s 177 of the Immigration Act 2009 (the 2009 Act) notto cancel the deportation order.[2] The Judge found the consequences of deporting Mr Nair in the interim wouldbe so adverse to his interests they met the threshold for interim relief to preserve hiscurrent status.2 Duffy J also found Mr Nair had a respectable chance of succeeding onjudicial review.3 On appeal, the Chief Executive challenges the correctness of theseconclusions.4Background[3] There is no dispute as to the factual narrative which is set out by Duffy J.5Facts[4] Mr Nair came to New Zealand on a student visa in 2009. He obtained a secondstudent visa in June 2011. That visa expired on 30 October 2011 so, from 1 November2011, Mr Nair was unlawfully present in New Zealand.[5] In August 2014, Mr Nair met Jacinta Clarke. They entered into a de factorelationship in November 2014. Ms Clarke had a child from a previous relationship,L. Ms Clarke's previous husband, the father of L, was deported to India in 2014. It isunderstood he still lives in India. In September 2015, Mr Nair and Ms Clarke had achild, M. Both L, now aged 20 months, and M, now aged nine months, have healthdifficulties.1 Nair v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 345[the High Court judgment].2 At [28].3 At [59].4 Mr Nair's counsel was given leave to withdraw prior to the hearing. Mr Nair did not arrangealternative counsel. Ms Hansen was appointed as counsel to assist the Court.5 The High Court judgment, above n 1, at [3]–[11].[6] Mr Nair took no steps to regularise his immigration status until he made arequest for a visa under s 61 of the 2009 Act in January 2016. Mr Nair was servedwith a deportation order on 27 January 2016. Mr Nair was then advised byImmigration New Zealand on 28 January that his request under s 61 for a visa wouldnot be considered. That was because, having been served with a deportation order, MrNair was ineligible for consideration under s 61. As he had been unlawfully in NewZealand for more than 42 days, Mr Nair was not entitled to appeal against thedeportation order.6The immigration decision in issue[7] The decision not to cancel Mr Nair's deportation order under s 177 of the 2009Act was made by James Casson, an immigration officer. Mr Casson interviewed MrNair, reviewed the notes of an interview with Ms Clarke, and reviewed documentsprovided by Mr Nair and Ms Clarke including medical records relating to L and M.Mr Casson also reviewed some research on the availability of medical care in theregion of India to which Mr Nair would return were he deported. On 3 February 2016,Mr Casson decided not to cancel the deportation order.[8] The decision records the facts about Mr Nair's personal circumstances and thefurther information provided to Mr Casson. It is noted that Mr Nair's circumstancesengage New Zealand's international obligations. Mr Casson records he had regard toparticular articles in the International Covenant on Civil and Political Rights, theInternational Covenant on Economic, Social and Cultural Rights and theUnited Nations Convention on the Rights of the Child. Mr Casson says in the decisionthat he has considered Mr Nair's personal circumstances and the applicableinternational obligations. The decision also notes that Mr Casson is not obliged toprovide reasons for the decision by virtue of s 177(4)(a) of the 2009 Act. The decisionis that deportation should proceed.6 Immigration Act 2009, s 154(2).The High Court proceedings[9] Mr Nair filed a statement of claim seeking judicial review on 5 February 2016.The application for interim relief was filed on 10 February 2016. The interim reliefapplication was heard on 22 February 2016 and judgment delivered on 3 March 2016.The substantive judicial review proceeding has a hearing date of 29 June 2016.[10] There is no dispute as to the questions Duffy J had to decide in determiningwhether to grant interim relief. Those questions are, first, whether the adverseconsequences of deportation before the judicial review application is determined aresuch it is necessary to preserve his status in the interim and, secondly, whether thereis a respectable case for judicial review.7 As we have foreshadowed, the issue onappeal is the correctness of the Judge's approach to these two questions.A position to preserve?[11] In reaching the conclusion the consequences of deportation were so adverse toMr Nair as to necessitate interim relief, Duffy J identified three matters. First, theJudge said that reconsideration of the decision not to cancel the deportation orderwould require a fresh consideration of Mr Nair's circumstances but he would bedisadvantaged if he had been deported prior to that reconsideration. Secondly, Duffy Jsaid Mr Nair's future would "effectively" be determined by the initial decision not tocancel his deportation order. That is because cancellation of the deportation orderfollowing a successful judicial review would not afford Mr Nair a right to re-enterNew Zealand. Finally, the Judge observed, Mr Nair may not be able to afford thereturn travel to New Zealand.The relevant principles[12] The first two consequences identified by the Judge largely reflect her findingthat the position under the 2009 Act in relevant respects is different from that underthe Immigration Act 1987 (the 1987 Act). In particular, Duffy J interpreted s 58(4) ofthe 1987 Act as allowing a person in Mr Nair's position to re-enter New Zealand as of7 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430; andEsekielu v Attorney-General (1993) 6 PRNZ 309 (HC) at 313.right.8 The Judge said there was no equivalent to s 58(4) in the 2009 Act.9 Thesignificance of this finding is that it meant the Judge treated Mr Nair's case as differentfrom that of the unsuccessful applicant in Parmanadan v Minister of Immigration.10In that case, the Court dismissed an application for an interim order to prevent MrParmanadan's removal from New Zealand.[13] It was common ground before us that s 58(4) did not mean that a person in MrNair's position had a right to re-enter New Zealand following cancellation of what isnow referred to as a deportation order. The misunderstanding about the effect of thesubsection may have arisen from the observation in Parmanadan that:11 once it is appreciated that the corollary of the cancellation of a removalorder under s 58 will be a grant of permission to reside in New Zealand, theneed for an interim order in cases such as the present might be thought to fallaway, at least in large measure.[14] However, the Court was making the point that the logical "corollary" of thedecision to cancel may be the grant of permission to re-enter New Zealand, not thatthere was a right to re-enter upon cancellation. As William Young P stated:[10] To be more specific, the corollary of an ultimately successfulchallenge by the appellant to his removal will be a grant of permission toreside in New Zealand. In other words, the end point of the whole process(which may include reconsideration of his case by an immigration officer) willbe either the appellant's removal, or him being permitted to stay inNew Zealand. Armed with such permission, the appellant, even if removed inthe meantime, will be able to return to New Zealand. So allowing him to beremoved would not compromise his legal rights should his challenge toremoval be ultimately successful.[15] The effect of Parmanadan is that the usual, statutory, effects of deportationwill not generally be sufficiently adverse to meet the threshold for interim relief. TheCourt made it clear "there may be particular adverse consequences of a proposedremoval which might warrant the making of an interim order".12 But, William YoungP continued:138 Section 58(4) provided that "In the case of a person who has already been removed from or hasleft New Zealand, an immigration officer may cancel a removal order ."9 The High Court judgment, above n 1, at [20].10 Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424.11 At [9].12 At [11].13 At [11].the likelihood of such adverse consequences should be established byevidence and assessed in the context of both a legislative scheme under whichthe overstayer is necessarily illegally in New Zealand is under a legal duty toleave14 (subject to a right of "appeal" to the Removal Review Authority onhumanitarian grounds),15 and also a legislative policy under which those whobreak the rules are not to be advantaged over those who comply.16[16] We are satisfied there is no basis not to continue to apply Parmanadan.17Indeed, the 2009 Act reinforces the Parmanadan approach. We say that because the2009 Act emphasises the personal responsibility on persons in Mr Nair's position.[17] The starting point is the stated purpose of the 2009 Act, namely, to "manageimmigration in a way that balances the national interest, as determined by the Crown,and the rights of individuals".18 Section 3(2)(e)(ii) also provides that to achieve thispurpose the Act establishes an immigration system that:includes mechanisms to ensure that those who engage with the immigrationsystem comply with its requirements, including mechanisms that—(ii) prescribe the system for the deportation of people who are notNew Zealand citizens and who fail to comply with immigrationrequirements, [18] Section 177 is found in pt 6 of the 2009 Act dealing with deportation. Thepurpose of pt 6 is:19to support the integrity of New Zealand's immigration system and the securityof New Zealand by providing for the deportation of certain persons fromNew Zealand.[19] The next point to note is that there is an obligation on persons other thanNew Zealand citizens to ensure that they are on a valid visa at all times whilst in New14 Immigration Act 1987, s 45. See also ss 4 and 34.15 Section 47.16 As expressed in the Long Titles to the Immigration Amendment Acts 1991 and 1999.17 The approach in Parmanadan was applied by analogy in Fernandes v Immigration and ProtectionTribunal because the appellant's ability to return to New Zealand was similarly preserved by thepossibility of later, favourable, exercise of ministerial power: Fernandes v Immigration andProtection Tribunal [2014] NZCA 52, [2014] NZAR 544 at [40]–[43].18 Immigration Act 2009, s 3(1).19 Section 153(1).Zealand.20 A person who does not hold a valid visa is obliged to leave New Zealand.21Once a person unlawfully in New Zealand has either not exercised their right of appealwithin a 42-day period or the appeal has been unsuccessful the person may be servedwith a deportation order.22[20] It is also relevant that the 2009 Act imposes strict time limits for statutoryappeals to the Immigration and Protection Tribunal.23 Further, review proceedings canonly be brought if the Immigration and Protection Tribunal has issued finaldeterminations.24 There is a time limit on bringing review proceedings generally.25[21] Finally, s 179 of the Act provides for different periods of prohibition on entrydepending on the circumstances. For example, the period of prohibition on entry isreduced where the individual unlawfully in New Zealand leaves voluntarily prior tothe making of a deportation order. By contrast, under the 1987 Act prohibition waslinked to the removal order.26The present case[22] If interim relief is declined Mr Nair will leave New Zealand. The effect ofs 179 of the Act is that he will be prohibited from returning to New Zealand for fiveyears. He would have to conduct his judicial review application from India.27 Ifsuccessful on review, the decision under s 177 not to cancel the deportation order willbe set aside and an immigration officer will reconsider whether to cancel the order. Ifthe immigration officer decides to cancel the order, the "logical corollary" is likely tobe the view there are good grounds for Mr Nair to be granted a residence class visaalthough Mr Nair would have to make his application for residency from India.28 The20 Section 14.21 Section 18(1).22 Immigration Act 2009, s 175.23 For example, under s 154(2) of the Immigration Act 2009 humanitarian appeals must be broughtwithin 42 days of a person becoming unlawfully in New Zealand; under s 161(2) appeals againstdeportation of criminal offenders must be brought within 28 working days; and under s 194(2)appeals against decisions concerning refugee or protection status must be brought within10 working days.24 Immigration Act 2009, s 249.25 Section 247.26 Generally, until the expiry of five years from removal: Immigration Act 1987, s 57.27 We were advised Mr Nair is legally represented.28 The 2009 Act contemplates this course.Minister may exercise his discretion under s 182 of the Act to remove the prohibitionon entry and to waive deportation costs.29[23] By contrast, if interim relief is maintained Mr Nair would remain inNew Zealand unlawfully. In practice, the Minister is likely to grant a visa under s 61to regularise his position in the interim. Mr Nair would still then need to seek a visa.[24] When the consequences of deportation before Mr Nair's judicial reviewapplication is determined are analysed in this way, it is apparent that none of theconsequences identified by Duffy J meet the threshold for interim relief. Rather, theyreflect the usual statutory consequences of deportation. Ms Hansen accepts that theseparticular circumstances reflect the norm but she relies on the uncertainty anddislocation involved. However, on the analysis in Parmanadan, such consequencesabsent further evidence are insufficient to warrant interim relief.[25] The only question remaining is whether this position is affected by thechildren's situation. We address this aspect under the heading of whether the Judgewas right to conclude there was a respectable case for judicial review.A respectable case for judicial review[26] The statement of claim before the High Court pleaded that the decision not tocancel the deportation order was unreasonable and that the appellant failed to properlyassess the impact on Mr Nair's New Zealand citizen partner and children as requiredby s 177 of the 2009 Act.[27] Section 177 provides as follows:Deportation order may be cancelled(1) An immigration officer may, in his or her absolute discretion, cancel adeportation order served on a person to whom section 154 applies.(2) Nothing in subsection (1) gives a person a right to apply for thecancellation of a deportation order. However, an immigration officermust consider cancelling the deportation order of a person who is inNew Zealand if the person provides information to the officer29 Immigration Act 2009, s 180.concerning his or her personal circumstances, and the information isrelevant to New Zealand's international obligations.(3) If an immigration officer does consider cancelling a deportation order,whether by way of a purported application or his or her own motion,the officer must have regard to any relevant international obligations,but otherwise—(a) may make a decision as he or she thinks fit; and(b) in doing so, is not under any obligation, whether by implicationor otherwise,—(i) to apply any test or any particular test and, in particular,the officer is not obliged to apply the test set out in section207; or(ii) to inquire into the circumstances of, or to make any furtherinquiry in respect of the information provided by or inrespect of, the person who is the subject of the deportationorder or any other person.(4) Whether or not an immigration officer considers cancelling adeportation order,—(a) he or she is not obliged to give reasons for any decision, otherthan the reason that this subsection applies; and(ab) privacy principle 6 (which relates to access to personalinformation and is set out in section 6 of the Privacy Act 1993)does not apply to any reasons for any decision relating to thepurported application; and(b) section 23 of the Official Information Act 1982 does not apply inrespect of the decision.(5) However, to the extent that an immigration officer does have regard toany 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.[28] The phrase "absolute discretion" in s 177(1) is defined in the Act to mean:30(a) the matter or decision may not be applied for; and(b) if a person purports to apply , there is no obligation on the decisionmaker to—(i) consider the purported application; or30 Immigration Act 2009, s 11(1).(ii) inquire into the circumstances of the person or any otherperson; or(iii) make any further inquiries in respect of any informationprovided by, or in respect of, the person or any other person;and(c) whether the purported application is considered or not,—(i) the decision maker is not obliged to give reasons The High Court decision[29] In determining there was a respectable case for judicial review, Duffy J tookthe view that s 177(3)(b)(ii), which provides there is no obligation on the immigrationofficer to make inquiries in deciding whether or not to cancel a deportation order,operated separately from the requirement to have regard to any relevant internationalobligations in s 177(3).31 Section 177(3)(b)(ii) was accordingly not relevant in thiscase. Duffy J said that to have regard to the relevant international obligations, theimmigration officer had to identify relevant facts about the availability of healthcarein the relevant region of India.32 As the information obtained was insufficient toaddress that issue, the decision not to cancel the order was not a reasonable one.33The approach to s 177[30] It is apparent from the statutory scheme in general, from the specific wordingof s 177 and from the legislative history that s 177 provides something of a "last ditch"opportunity to have a deportation order cancelled.34 It is also apparent that while theimmigration officer is required to turn his or her mind to ("have regard to") anyrelevant international obligations no particular test need be applied35 and theimmigration officer "need not attach particular weight to any given international31 The High Court judgment, above n 1, at [51].32 At [51]–[52].33 At [53] and [59].34 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA592, [2016] NZAR 93 at [14]. Leave to appeal to the Supreme Court was declined: Singh v TheChief Executive of the Ministry of Business, Innovation and Employment [2016] NZSC 39.35 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 34,at [18].obligation".36 Finally, it follows that the scope for judicial review of the decision notto cancel a deportation order is limited.[31] On the latter point, in Singh (Kulbir) v Chief Executive, Ministry of Business,Innovation and Employment this Court endorsed the observations made in twoHigh Court decisions as to the limited nature of judicial review of decisions unders 177.37 The first of these decisions was that of Lang J who stated in Babulal v ChiefExecutive, Department of Labour that:38where an immigration officer makes a decision that requires him or her to haveregard to New Zealand's international obligations, Parliament intended therecord of the decision to contain sufficient information to allow the decisionto be judicially reviewed within a very narrow compass. It accepted that thecourt must have sufficient information to be able to determine whether theimmigration officer who made the decision took into account the internationalobligations relevant to the particular case.[32] Secondly, the Court in Singh referred to Nair v The Chief Executive of theDepartment of Labour, in which Woodhouse J said that an immigration officer makinga decision under s 177, although required to have regard to any relevant internationalobligations, was not obliged "to give effect to international obligations in someparticular way, or at all".39[33] It is helpful to briefly record the relevant legislative history supporting thisapproach. The legislative history indicates, first, that the general purpose of the Billwhich became the 2009 Act was to ensure compliance with immigration-relatedinternational obligations in a more transparent way.40[34] Secondly, s 177 was inserted (as cl 165A) by a supplementary order paperfollowing the select committee recommendation that the Bill should include aprovision for cancellation of a deportation order.41 The supplementary order paper36 Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37,[2014] 2 NZLR 662 at [36].37 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment, above n 34,at [44]–[45].38 Babulal v Chief Executive, Department of Labour HC Auckland CIV-2011-404-1773,29 September 2011 at [29].39 Nair v The Chief Executive of the Department of Labour [2013] NZHC 358 at [31].40 Immigration Bill 2007 (132–1) (explanatory note) at 1 and see 2.41 Immigration Bill 2007 (132–2) (select committee report) at 20–21; and Supplementary OrderPaper 2009 (32) Immigration Bill 2007 (132–2).explains the wording of s 177 was a response to the judgment of the Supreme Courtin Ye v Minister of Immigration, which was delivered after the select committee stageand second reading of the Bill.42 The supplementary order paper in Committeeincluded two clauses responding to that decision. One was cl 165A, which becames 177; the other was cl 432, which amended s 58 of the 1987 Act.[35] The explanatory note to the paper discusses these changes:43 new clauses 165A and 432 are inserted, to ensure that certain decisions (forexample, decisions about whether or not a person liable for deportation (orremoval under the Immigration Act 1987) from New Zealand should bedeported (or removed)) are decisions made by immigration officersimplementing the practical elements of the final stage of removal of the personand do not require any test or any particular test. In particular, immigrationofficers are not required to apply the test set out in section 47(3) of theImmigration Act 1987 or in clause 186 of the Bill, as the case may be, whenconsidering cancellation of a removal order or a deportation order. At thisstage, the essential legal issue is whether the person is in New Zealandunlawfully. These amendments overturn the future effect of most of the keyfindings (including the findings that required immigration officers to apply thehumanitarian appeal test and imposed duties of inquiry on them) in the recentSupreme Court decisions Ye v Minister of Immigration; Qiu v Minister ofImmigration [2009] NZSC 76, and Huang v Minister of Immigration [2009]NZSC 76, and Huang v Minister of Immigration [2009] NZSC 77, alljudgments being delivered on 20 July 2009. The amendments, however, donot affect the position of the litigants in those decisions.[36] The note further records that cl 165A(1) gave effect to the select committeerecommendation for an amendment allowing cancellation of a deportation order.44The amendments were agreed to and the final version of the Bill inserted cls 165A and432.45[37] In terms of the scope of judicial review under s 177, it is relevant also that thereis no particular requirement in the relevant international instruments for considerationof these obligations at a final stage. Instead, the instruments include generalrequirements for appropriate review, consultation or determination processes.46 The42 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.43 Supplementary Order Paper 2009 (32) Immigration Bill 2007 (132–2) (explanatory note) at 105.44 At 104.45 Immigration Bill 2007 (132–3).46 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976), arts 2(3) and 13; Convention on the Rightsof the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force2 September 1990), arts 4 and 9(2); Convention relating to the Status of Refugees 189 UNTS 137decision made under s 177 comes at the end of a range of processes providingopportunities for review and appeal.Application to Mr Nair's case[38] In the present case, it was not open to the Judge to conclude that theimmigration officer had not turned his mind to Mr Nair's personal circumstances incompliance with s 177. Both children have medical issues but we agree with theappellant's submission that the Judge's conclusion on this point is only reached byelevating these considerations above all others. That is to require a particular test ands 177 does not impose such a requirement.[39] The latest information about L's health is set out in a letter of 19 January 2016from a consultant paediatrician, Dr Silvia Croker, at Whakatane Hospital. Essentially,L presented with an increasing head circumference and scrotal swelling. An MRI forhis brain and an ultrasound for his scrotum have been scheduled.[40] A letter of the same date from Dr Croker relating to M records he was bornprematurely and has had reflux problems for which he has been prescribed a differentformula, Pepti Junior. The introduction of the new formula has led to a "dramaticimprovement" in his feeding.[41] In terms of L, the need for an MRI and an ultrasound may delay his departureand therefore that of Ms Clarke and M to India. In relation to M, as the appellantsubmits, there is no evidence to suggest it will not be possible to obtain the formulahe needs by prescription in India or over the internet. The evidence is Ms Clarke andthe children will follow Mr Nair to India should he be deported. Ms Clarke told theimmigration officer that Mr Nair's parents would organise their tickets but she neededfirst to organise passports for herself and the children. In the circumstances, theimmigration officer was entitled to conclude the medical concerns for the childrenwere outweighed by other considerations relating to the integrity of the immigrationsystem.(opened for signature 28 July 1951, entered into force 22 April 1954), art 32.[42] The only remaining issue is whether the fact the immigration officer madesome inquiries of his own alters the position. We do not consider it does. There wasno obligation to do so, reflecting the concept of personal responsibility central to the2009 Act. Further, as a result of the inquiries, we know broadly what the positionwould be, that is, the health care available is variable. We also know Mr Nair's parentslive in Gujarat in India where Mr Nair grew up and that is where he would return.Before coming to New Zealand Mr Nair was supported by his parents. His mother isa midwife and school teacher and his father is an office worker. Both are professionalpeople who, on the evidence available, are supportive of the family.[43] In these circumstances, we see no basis for the conclusion that there was arespectable case for judicial review.[44] For completeness, we note the statement of claim was amended subsequentlyto add a ground based on abuse of process. It is claimed that the appellant incorrectlyused information as to Mr Nair's address obtained from his application under s 61 ofthe 2009 Act to serve the deportation order. Because of the timing of the amendment,this aspect of the claim was not addressed by Duffy J.[45] We need only record that the appellant says the facts on this point are contested.The evidence will be that Mr Nair's address was obtained as a result of a police stopon 24 December 2015. Further, the appellant submits s 14(2)(d) of the Act is relevantto this claim because the section makes it clear the fact a visa application has beenmade does not inhibit deportation procedures.[46] There is nothing in this ground to change our assessment of the necessity topreserve Mr Nair's position in the interim. This ground can be pursued along with theothers from outside New Zealand.Result[47] The appeal is allowed. The interim order preventing the respondent'sdeportation is set aside. No order as to costs.Solicitors:Meredith Connell, Auckland for Appellant