CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT v EM [2018] NZHC 2437

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT v EM [2018]NZHC 2437 [14 September 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-404-2651CIV-2017-404-2652[2018] NZHC 2437UNDER THE Immigration Act 2009, ss 245 and 249IN THE MATTER OF Applications for leave to appeal and leave tobring judicial review proceedingsBETWEEN CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION &EMPLOYMENTApplicantAND EMFirst RespondentAND IMMIGRATION AND PROTECTIONTRIBUNALSecond Respondent (for CIV-2017-404-2652)Hearing: 18 April 2018Appearances: K G Stephen and H T N Fong for ApplicantJ H Cottrell and R L Fletcher for First RespondentNo appearance for Second RespondentJudgment: 14 September 2018JUDGMENT OF CLARK JPursuant to r 11.5 of the High Court Rules I directthe delivery time of this judgment is4 pm on 14 September 2018Introduction[1] EM had been subject to a three-year re-entry ban from Australia. When EMapplied for a residence visa he was declined by Immigration New Zealand on theground he had provided false or misleading information when asked whether he hadpreviously been "excluded" from another country.1[2] EM appealed successfully to the Immigration and Protection Tribunal. TheTribunal concluded EM was not "excluded" from Australia within the meaning of theterm in s 15 of the Immigration Act 2009 (the Act) and therefore the Tribunal, whichis barred from hearing an appeal where a person had provided misleading information,had jurisdiction to hear the appeal.[3] But the Chief Executive of the Ministry of Business, Innovation andEmployment says the Tribunal did not have jurisdiction to hear EM's appeal.2 If it didhave jurisdiction, the Ministry says the Tribunal erred in its interpretation of a keyprovision in the Act which renders those who have been excluded from anothercountry ineligible for visa or entry permission into New Zealand.3 The Ministry seeksto appeal the jurisdiction and interpretation points and seeks also to have theinterpretation point determined by way of judicial review. It must have the leave ofthe High Court for both.[4] This judgment determines:(i) the Ministry's application under s 245 of the Act for leave to appealagainst the whole of the Tribunal's decision on the grounds the Tribunalmisdirected itself as to its jurisdiction to hear EM's appeal; and(ii) the Ministry's applications pursuant to ss 245 and 249 of the Act forleave to appeal and to bring judicial review proceedings on the groundsthe Tribunal misinterpreted the meaning to be given to "excluded" in1 Immigration New Zealand is a business unit of the Ministry of Business, Innovation andEmployment.2 In this judgment, for convenience, I refer to the Chief Executive, who is the applicant for leave toappeal, as the Ministry.3 Immigration Act 2009, s 15(1)(f).s 15(1)(f) of the Act.Material facts[5] On 6 April 2016, EM submitted an Expression of Interest (EOI) in order to beconsidered for a residence visa in New Zealand. The EOI which EM had to completeincluded in a "character" section the following question:B4: Have you ever been:• excluded• removed or deportedfrom any country, including New ZealandIf you answered 'yes' to any of the questions B1 to B6, you are not eligible tosubmit your expression of interest.B12: Have you ever been refused entry to any country, including NewZealand?If you answered 'yes' to any questions B7 to B15, you must provide a fullexplanation about the surrounding circumstances.[6] EM answered "No" to both questions. He provided a detailed explanation inresponse to both questions B4 and B12:At the end of my time in Australia, I overstayed on my visa by just over2 months. The details of which were as follows: I was trying desperately tofind a job that could sponsor me as an Architect so I could stay on and workin the country for longer but I was unable to do so. I was granted a temporaryvisa on 6 July 2009 - 7 September 2009 to find a job and apply for a workpermit to enable me to work again but was unable to find one in time becauseof the short length of time I had left on the then current visa and the fact thatI was not able to start work immediately due to restriction on my visa, not tomention this was the height of the financial crisis and companies were veryreluctant to hire new staff until they saw how the recession was going to affectthem.I was given another 30 days to book flights and organise my departure.Unfortunately, the condition on the temporary [visa] I had been granted didnot entitle me to work and I had no way of raising the funds for the flight. Myfamily at home are on low income and couldn't help me financially. I didexplain this to Immigration but there was nothing further they could do tohelp. In the end my partner at the time paid for my departing flights on18 December 2009 and I paid her back at a later date.The result of me overstaying was a 3 year ban from Australia which ismandatory with any overstay and has long since expired. I have since beengranted a temporary holiday visa for Australia and I am now even eligible toapply for skilled migration visa and residence visa for Australia. So in answerto the question, because I left of my own free will and explained the situationunder departure, I do not believe I was ever refused entry, excluded, removedor deported. I just got caught out financially and left myself no option and wasgiven the minimum punishment. I'm not sure if I needed to answer this at thispoint but again wanted to be 100% honest.[7] EM's EOI was selected from the pool and he was invited to apply for residenceon 20 April 2016. He lodged his application under the Skilled Migrant category on10 June 2016. In his application form, he amended his answer to question B4 to "yes",he had been excluded from Australia in 2009.[8] Immigration New Zealand declined EM's residence application because itfound he failed to declare he had previously been excluded from Australia. Hisexclusion meant he was not eligible for a visa or entry permission to enter or be inNew Zealand under s 15(1)(f) of the Act.4[9] EM's failure to declare the exclusion meant that EM had provided false ormisleading information in his EOI. Section 187(2) of the Act bars appeals from arefusal of an immigration officer to grant a residence class visa where the ground forrefusal is that the person has submitted false or misleading information or withheldrelevant information that was potentially prejudicial to the person.5[10] EM appealed to the Immigration and Protection Tribunal. The Tribunalallowed his appeal.6 The Tribunal approached the jurisdictional issue raised bys 187(2) by considering whether the appellant had been "excluded" from anothercountry in terms of s 15(1)(f) of the Act. The Tribunal concluded EM had not been soexcluded. The Tribunal considered the overall focus of s 15 is "on excludingindividuals from New Zealand who have committed serious offences or immigrationtransgressions "7 Therefore, EM had not failed to disclose information toImmigration New Zealand. This meant Immigration New Zealand erred in decliningEM's application. Accordingly, the Tribunal had jurisdiction to hear EM's appeal.84 Section 15(1)(f) provides no visa or entry permission may be granted, and no visa waiver mayapply, to any person who has at any time been removed, excluded or deported from anothercountry.5 Immigration Act, s 187(2)(d)(i).6 EM (Ireland) [2017] NZIPT 204065.7 At [89].8 At [92].Leave to appealThe leave requirement[11] Section 245 of the Act requires a party who wishes to appeal to obtain leave.Section 245 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 (beingeither the person who appealed or applied to the Tribunal, an affectedperson, or the Minister, chief executive, or other person) is dissatisfiedwith any determination of the Tribunal in the proceedings as beingerroneous in point of law, that party may, with the leave of the HighCourt (or, if the High Court refuses leave, with the leave of the Courtof Appeal), appeal to the High Court on that question of law.(3) In determining whether to grant leave to appeal under this section, thecourt to which the application for leave is made must have regard towhether the question of law involved in the appeal is one that byreason of its general or public importance or for any other reasonought to be submitted to the High Court for its decision[12] Practically speaking s 245 requires:9 an applicant to identify a seriously arguable question of law whicheither:(a) has importance extending beyond the particular case (whichis what "general or public importance" entails); or(b) for some other reason, warrants a decision from theHigh Court.[13] In Machida v Chief Executive of Immigration New Zealand the Court of Appealobserved category (b) — "some other reason" — is open-ended but it agreed with aseries of decisions in which the High Court has held it would only be in "anexceptional case involving individual injustice to such an extent that the Court simplycould not countenance the Tribunal's decision standing, that this alternativerequirement could be met".109 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721at [8].10 At [8].The proposed appeal[14] The Ministry's application for an order granting leave to appeal rests on thegrounds the Tribunal misinterpreted s 187(2)(d)(i) of the Act and misdirected itself inlaw as to its jurisdiction to hear the appeal.[15] The Ministry also applied under s 249 of the Act to judicially review theTribunal in order to obtain a declaration as to the correct interpretation of the phrase"who has, at any time, been excluded from another country" in s 15(1)(f) of theAct.[16] In submissions, however, Mr Stephen, counsel for the Ministry, sought leaveto appeal both questions of law. I considered there was no prejudice to the respondentin this adjustment to the Ministry's approach. Since the application to commencejudicial review was filed in October 2017, EM has been on notice of the Ministry'sintention to challenge the Tribunal's approach to the word "excluded".[17] Counsel for EM, Mr Fletcher, submitted leave to appeal should not be grantedbecause:(a) the questions involved in the appeal are not seriously arguablequestions of law;(b) are not of general or public importance; and(c) the Tribunal applied its specialist expertise in making thedetermination, and there is no reason to believe than an appeal wouldbe valuable in this case.Assessment[18] For the reasons that follow I am satisfied leave to appeal should be granted inrespect of both questions of law.Jurisdiction question[19] The jurisdiction question is raised by s 187(2)(d)(i) of the Act which provides:(2) However, no appeal lies under this Act in respect of—(d) a refusal of the Minister or an immigration officer to grant aresidence class visa to a person who has been invited to applyfor a visa, if a ground for the refusal is that the Minister orofficer determines that the person,—(i) whether personally or through an agent, in expressing hisor her interest in obtaining an invitation to apply for avisa, submitted false or misleading information orwithheld relevant information that was potentiallyprejudicial to the person; or[20] In EM's case, Immigration New Zealand refused to grant a residence visa toEM as it determined EM had supplied false or misleading information. The Tribunalreached a different view of the facts. It found EM did not submit false or misleadinginformation or withhold relevant information that was potentially prejudicial and thisfinding led the Tribunal to conclude it had jurisdiction.[21] In assuming jurisdiction, it is seriously arguable the Tribunal erred in itsinterpretation and application of s 187(2)(d)(i). In that regard I agree with thesubmission of counsel for the Ministry: on the plain terms of subs (d) the jurisdictionalbar was engaged. There is no dispute that a ground for refusing to grant a residencevisa to EM was that Immigration New Zealand determined he had supplied false ormisleading information or withheld relevant, prejudicial, information.[22] The Ministry is concerned at the prospect of the Tribunal assuming jurisdictionon the basis of the Tribunal's view of the facts as to whether a person supplied false ormisleading information or withheld information. It is seriously arguable that such anapproach conflicts with s 187(2)(d)(i). Under this provision, it is the Minister or animmigration officer who formulates the relevant ground.[23] I acknowledge Ms Cottrell's argument for EM that the Tribunal's conclusionas to jurisdiction is to be preferred as it is consistent with the New Zealand Bill ofRights Act 1990. But, I consider that argument is appropriately made and assessed inthe context of a substantive appeal.[24] I am satisfied the proposed question of law concerning the scope of theTribunal's jurisdiction is a question of general and public importance warranting thegrant of leave. Determination of the question whether the Tribunal misinterpreteds 187(2) and misdirected itself as to its jurisdiction has relevance beyond EM. Thescope of the Tribunal's jurisdiction to hear appeals under s 187(2)(d)(i) has potentialrelevance to any person who is declined a visa following submission of false ormisleading information or who withholds relevant information which is prejudicial tothat person.[25] The second question of law raised by the proposed appeal is whether theTribunal erred in its interpretation of "excluded". The relevant section is s 15 of theImmigration Act, which provides:15 Certain convicted or deported persons not eligible for visa orentry permission to enter or be in New Zealand(1) No visa or entry permission may be granted, and no visa waiver mayapply, to any person—(c) who is subject to a period of prohibition on entry to NewZealand under section 179 or 180; or(d) who at any time (whether before or after the commencement ofthis section) has been removed or deported from New Zealandunder any enactment; or(e) who is excluded from New Zealand under any enactment; or(f) who has, at any time, been removed, excluded, or deportedfrom another country.[26] Mr Stephen submitted an excluded person is "someone who has beenprohibited from applying, or has been made ineligible to apply, for a visa to enter intoa country" regardless of the duration of, or reason for, the ineligibility to apply for avisa. The Tribunal's focus on the meaning of "excluded" under Australian law ratherthan New Zealand law is problematic. The Ministry's case is that the text, context andpurpose of the provision support the Ministry's interpretation and the Tribunal strayedfrom the orthodox approach to statutory interpretation.[27] The Departmental briefing to the Select Committee explained the rationale forthe provision as carrying forward the effect of the 1987 Act but expanded to include"any travel and entry bans under other statutes".[28] Mr Stephen also alluded to policy concerns at play and that the Tribunal'soverly nuanced approach will create difficulties at an operational level as it injectsunnecessary discretion into the application of the legislation. As with Ms Cottrell'ssubmissions about the appeal of the Tribunal's approach being in its consistency withthe New Zealand Bill of Rights Act, this level of detailed analysis is appropriatelyadvanced at the appeal stage.[29] Ms Cottrell's view was that the Tribunal's focus on the meaning of "excluded"under Australian law was an attempt to characterise an immigration process which hadtaken place in a foreign jurisdiction under the law of that jurisdiction in order todetermine whether EM had in fact been excluded from Australia. Ms Cottrell did notagree that the text, context and purpose of s 15(1)(f) of the Act supported the Ministry'sinterpretation.[30] Ms Cottrell relied on Hinton J's observations in Machida v Chief Executive ofImmigration New Zealand in which the applicant for leave challenged the Tribunal'sfinding he had been excluded from Australia.11 Her Honour observed:[67] The Tribunal noted in the background section of its decision thatMr Machida incurred a three-year exclusion period from Australia. This is nota finding as such. This relies on the decision of Immigration New Zealand.The Tribunal's role is not to engage with Immigration New Zealand's findingsbut to assess the appeal on humanitarian grounds only. It was entitled, in factnot entitled to do otherwise, to rely on Immigration New Zealand's findingsthat Mr Machida had been excluded from Australia. Both the Tribunal and thisCourt on an application for leave to appeal the Tribunal's decision areinappropriate forums to canvass whether Mr Machida was indeed subject toan exclusion period from Australia. Any challenge to the department's findinghad to be brought by way of judicial review of the decision of Immigration11 Machida v Immigration and Protection Tribunal New Zealand [2015] NZHC 2649.New Zealand, in respect of which as I have already held, judicial reviewproceedings were brought too late.[31] Hinton J's comments indirectly bear on the jurisdictional question of law raisedby the Ministry's application: whether there is a statutory jurisdictional bar to appealsagainst an immigration officer's determination that a person has submitted misleadinginformation. Upon that question I have already signalled my intent to allow theMinistry's application for leave to appeal.[32] I am satisfied the Ministry's interpretation is seriously arguable. The Tribunal,and Immigration New Zealand, differ on the correct approach to "excluded". TheTribunal's analysis indicates the meaning of excluded requires to be authoritativelydetermined after assessment of the detailed arguments which the parties haveadvanced in support of their respective positions.[33] The threshold for the grant of leave is reached. The question is of general andpublic importance. Its meaning has important ramifications for potential applicantsfor visas in New Zealand. As the Tribunal noted, the higher courts have not squarelyaddressed the meaning of "excluded" in relation to s 15(1)(f).12 The same point hasbeen raised in Machida. An authoritative statement on the meaning of "excluded" inthe context of s 15(1)(f) is overdue.Proposed judicial review[34] Judicial review challenges to matters that come within the Tribunal'sjurisdiction are restricted by s 249 of the Immigration Act which provides: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.12 EM (Ireland), above n 6, at [59].(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 bringingthe proceedings; 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 couldnot be adequately dealt with in an appeal against the finaldetermination of the Tribunal; and(b) if paragraph (a) applies, whether those issues are, by reasonof their 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.[35] The Ministry submits the question posed for judicial review cannot beadequately dealt with in an appeal. That is because if leave to appeal is granted andthe Tribunal is found to have lacked jurisdiction to hear the appeal, the interpretativequestion as to s 15(1)(f) will remain unresolved. The Ministry therefore also seeksleave to bring judicial review proceedings to obtain a declaration as to the correctinterpretation of the statutory phrase "who has, at any time, been excluded fromanother country".[36] For reasons similar to those expressed above in relation to the second questionof law on appeal, I consider it is appropriate to grant leave to bring judicial reviewproceedings.Result[37] The applications for leave to appeal and to commence judicial reviewproceedings are granted._____________________________Karen Clark JSolicitors:Crown Law, Wellington for the ApplicantCottrell Law Ltd, Wellington for First Respondent