KUMANDAN v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT [2017] NZHC 890

KUMANDAN v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT [2017] NZHC 890 [5 May 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-003020[2017] NZHC 890BETWEEN DELAWER HOOSAIN KUMANDANApplicantAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION & EMPLOYMENTRespondentHearing: 11 April 2017Appearances: Applicant in PersonJacob Parry for the RespondentJudgment: 5 May 2017JUDGMENT OF MOORE JThis judgment was delivered by me on 5 May 2017 at 11:30 ampursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] The applicant, Delawer Hoosain Kumandan, is a 53-year old citizen of South Africa whose application for residence under the Skilled Migrant Category("SMC") was declined by Immigration New Zealand ("INZ") on 25 February 2014. He appealed to the Immigration and Protection Tribunal ("IPT") which, in a decisiondated 31 August 2015, determined INZ's decision was correct.[2] On 28 November 2016, some 15 months later, Mr Kumandan applied to this Court for leave to appeal the IPT's decision out of time.[3] He says he left the appeal procedures to be undertaken by his immigration agent who did nothing to advance matters, took $10,000 in fees, told him his appeal to this Court had been successful and then fled to Australia where he is uncontactable.[4] Mr Kumandan claims his prospects of success on the appeal are very good.He says the IPT failed to give "credence to the issue of special circumstances" andmisapplied the objective test. He claims it was always his intention to appeal thedecision.Background[5] Mr Kumandan and his family have lived in New Zealand for some nine years. In May 2011 he lodged his Expression of Interest and was invited to apply for residence on 24 May 2011. He made his application on 3 August 2011, claiming 190 points. Of those, his claim of 60 points for skilled employment was initially based on his employment as an office manager for a real estate agency. However, that employment ceased and at the time his application was determined by INZ he was working as an office manager for another company. Inquiries of the company by INZ, as well as an interview with Mr Kumandan, led INZ to conclude it was not satisfied his employment matched the Australia and New Zealand Standard Classification of Occupations ("ANZSCO") description for the occupation of office manager. Without points for skilled employment Mr Kumandan's total pointsreached only 110 which did not meet the lower selection criteria for the SMC during the currency of his Expression of Interest.[6] Mr Kumandan's application includes his wife aged 44 and the couple's threechildren, aged 26, 16 and 8.[7] Mr Kumandan appealed INZ's decision to the IPT.1 The IPT determined there were three issues before it:(a) first, whether INZ was correct in declining Mr Kumandan'sapplication because it found he was not entitled to points for skilled employment because the core tasks of his employment did not substantially match the ANZSCO's description of the occupation of office manager;(b) secondly, whether his new employment materially affected his eligibility for residence; and(c) thirdly whether he had special circumstances arising from his and hisfamily's settlement in New Zealand and the best interests of his twoyounger children warranting a recommendation that the Minister ofImmigration should consider an exception to resident's instructions.[8] The IPT determined that INZ's decision was correct and that Mr Kumandan'snew employment did not materially affect his eligibility for residence and further that he and his family did not have special circumstances.[9] The IPT delivered its decision on 31 August 2015. Mr Kumandan was notified on 1 September 2015 when a copy of the decision was delivered to him personally by courier.[10] On 28 November 2016, by application dated 24 November 2016, Mr Kumandan applied to appeal the IPT's decision out of time.1 Re AG (Skilled Migrant) [2015] NZIPT 202182.Statutory scheme[11] Appeals to this Court from decisions of the IPT are not as of right. Leave is required. Numerous decisions of this Court have observed that the introduction of a leave requirement reflects a deliberate intention by Parliament to limit appeals (and applications for judicial review).2[12] Section 245 of the Immigration Act 2009 ("the Act") prescribes the timelimits and the principles which apply to applications for leave to appeal. Section 245 is set out in full below:"245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.(1A) A decision by the Court of Appeal to refuse leave to appeal to the High Court is final.(2) An application to the High Court under this section for leave to appeal must be made—(a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.2 See, for example, SK v Immigration and Protection Tribunal [2014] NZHC 2693.(4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—(a) confirm the decision in respect of which the appeal has been brought; or(b) remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or(c) make such other orders in relation to the matter as it thinks fit.(5) Subject to subsection (2), every appeal under this section must be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act, including any ancillary general practices and procedures developed under section 260."[13] Through enacting s 245, Parliament clearly intended to restrict the nature and form of appeals brought under that provision. First, appeals brought under s 245 must be prosecuted in a timeous fashion; an application for leave to appeal must be made no later than 28 days after the date on which the decision of the IPT is notified to the party appealing (or such further time as the High Court may allow before the expiry of that 28 day period). Secondly, s 245(1) limits appeals to questions of law only. Some sense of the restrictive nature and form of such appeals is reflected in the principle that, while errors of fact may be treated as errors of law, it is now well settled that they must be so significant and extensive that a properly directed Tribunal may have reached a different overall conclusion.3 Furthermore, s 245(3) provides that in determining whether to grant leave to appeal the Court must have regard to whether any question of law is one which, by reason of its general or public importance, or for any other reason, ought to be submitted to the High Court for its decision.[14] No doubt in recognition that some cases may justify the granting of further time, s 245(2)(b) permits the High Court to grant an extension so long as the application is made before the expiry of the 28 day period. This provision preserves the wider principle under the Act that appeals must be prosecuted in a timely fashion.3 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].There is no jurisdiction to entertain appeals if they are commenced outside the time limits prescribed in s 245.[15] This principle is also reflected in r 20.4 of the High Court Rules ("the Rules")which, while providing for special leave to extend the time for filing, limits theRule's application to provisions which either permit an extension or do not limit the time prescribed for bringing the appeal."20.4 Time for appeal if there is right of appeal(1) This rule applies if a party has a right of appeal to the court.(2) An appeal must be brought—(a) within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or(b) in every other case, within 20 working days after the decision appealed against is given.(3) By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—(a) permits the extension; or(b) does not limit the time prescribed for bringing the appeal.(4) An application for an extension—(a) must be made by an interlocutory application on notice to every other party affected by the appeal; and(b) may be made before or after the expiry of the time for appealing."[16] Both s 245 and r 20.4 have been considered previously by this Court. Recently, Hinton J in Singh v Chief Executive of the Ministry of Business, Innovation and Employment considered an application seeking leave to appeal a humanitarian decision of the IPT. The High Court had before it two leave applications in respectof the IPT's decision to refuse Mr Singh's application for permanent residence. Both applications had been filed within time. However, Mr Singh's appeal against the IPT's decision to dismiss his humanitarian appeal was filed out of time. He appliedto amend the compliant applications to include his appeal against the humanitarian decision.4[17] In refusing to make the amendment her Honour observed that the Court'spower to do so under the Rules cannot be used to override the express provision of a statute. More particularly the power may not be used to extend the time allowed for an appeal where that is not provided for in the statute conferring the appeal right.5 In coming to that decision her Honour's description of the statutory scheme is worthy of repetition. She said:"[42] Sections 245(2) and 249(4)6 provide a time limit as to when an applicant must file an application for leave to appeal or review. These provisions require the application for leave to appeal/review be made nolater than 28 days after the date on which the Tribunal's decision to whichthe appeal/review relates, was notified to the party bringing the appeal/review proceeding.[43] The Court can extend the 28 day timeframe, but only if a party seeks an extension before the expiry of the 28 day timeframe.[44] The time limit in ss 245(2) and 249(4) is jurisdictional. It is settled law that extensions of statutory timeframes can only be extended where the statute itself so allows. Sections 245 and 249 are clear that an extension canonly be granted if sought within the 28 day timeframe."[18] Her Honour referred to X v Immigration and Protection Tribunal.7 In that case Faire J was faced with a broadly comparable application. The applicant sought leave to amend an application seeking leave to judicially review a decision of the IPT by adding to it a request for leave to appeal. In refusing to make the amendment his Honour observed:"[5] Section 245(2) prescribes that every appeal to the High Court on a point of law must be brought not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing, or within such time as the High Court allows on an application made before the expiry of that 28 day period. Section 386(3) provides that where a person is to be notified of a decision the notification must be given in writing by personal service or registered post or by serviceon the person's lawyer or agent in accordance with s 386(4).4 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 2337.5 At [53].6 Section 249 of the Act deals with applications for leave to commence an application for judicial review.7 X v Immigration and Protection Tribunal [2014] NZHC 1647.[6] The 28 day time limit in s 245(2) is mandatory. There is no jurisdiction to allow further time in which to bring an application for leave to appeal. This interpretation is mandated by the clear wording of s 245. It is consistent with the scheme and purposes of the Act. Accordingly, unless the application for amendment is made within the 28 day period specified in s 245(2) there is no jurisdiction to grant an amendment."[19] In D v Immigration and Protection Tribunal New Zealand Gilbert J emphasised the strictness of the time limits under the Act.8 There D sought tojudicially review the IPT's decision to refuse a grant of refugee status. The provision covering the time limit under s 249(4) is identically expressed to s 245(2). The review proceedings were filed on 9 June 2015. The 28 day period expired the following day, on 10 June 2015. However, no application for leave to commence the proceedings was filed in time due to an oversight. One of the questions his Honour was required to consider was whether the filing of the substantive judicial review proceedings could be interpreted or treated as an application for leave.[20] In upholding the respondent's submission that the oversight was fatalGilbert J stated:"[5] The provision is quite clear. The proceedings seeking a judicial of aTribunal's hearing cannot be brought without leave and the application for leave must be satisfied no later than 28 days after notification of theTribunal's decision. Unless an application for extension of time is filed within the time limit, the Court has no power to extend the timeline or to consider an application for leave filed out of it. It follows that the Courtcannot entertain Ms D's application for 'out of time leave' to bring judicial review proceedings."[21] The reasons for such a restrictive interpretation were discussed by his Honour in the following way:"[17] Section 247 is a provision of general application wherever judicial review is sought of a statutory power of decision arising out of or under the Act. It provides that the proceedings must be commenced not later than 28 days after the person affected has notified of the decision. There are only two exceptions. The first, under s 247(1)(a), is whether the High Court decides that further time should be allowed because of specialcircumstances. The second is leave is required under s 249(3), as is the casehere. In that case the time for commencing of the proceedings is governed8 D v Immigration and Protection Tribunal New Zealand [2015] NZHC 2458, [2015] NZAR 1940.by s 249(4). This is clear from s 247(1)(b) itself. I cannot see any conflict between ss 247 and 249. Section 249 is the provisioning provision in the present case.[18] Parliament's intention is that, in circumstances such as the present,leave must be sought before judicial review proceedings are commenced.That did not happen because of oversight. The time limit is strict. TheCourt does not have power to amend unless an application for an extensionof time is applied for within the time limit. Despite his careful and ingenioussubmissions, Parliament's intention cannot be defeated by the simpleexpedients proposed by Mr Lewis.9 Because leave was not applied for andno extension of time was sought within the 28 day period the Court has nojurisdiction to determine the proceeding and it is dismissed."Analysis[22] The IPT's decision was notified to Mr Kumandan when a copy of the decision was delivered to him by New Zealand Couriers on 1 September 2015. The 28 day time limit thus expired on 29 September 2015. Mr Kumandan filed these proceedings on 28 November 2016 approximately 14 months after the 28 day time limited had expired.[23] Rule 20.4(3) does not assist Mr Kumandan. It permits the Court to extend the time for filing an appeal but only where the enactment under which the appeal is brought allows such an extension. Section 245 does not allow such an extension.[24] Furthermore, the circumstances in the present case are a good deal lessfavourable to Mr Kumandan than the facts which confronted the judges in Singh, Dand X. Not only is Mr Kumandan's application brought many months after the timelimit expired, but there is no documentation or other mechanism which would allowthe proceedings to be adapted in any fashion which might operate as a cure orremedy as was argued, albeit unsuccessfully, in Singh, D and X. Mr Kumandan filedno documents prior to the expiry of the 28 day time limit.9 Counsel for D attempted to persuade his Honour that the statement of claim, an affidavit in support and the notice of proceeding, all filed within time, could be treated as an application forleave."[25] Neither do I accept that Chen v Lim, the authority relied on by Mr Kumandan, is capable of being called in aid.10 That case relates to the consideration of r 29A of the Court of Appeal (Civil) Rules 2005 which imposes a flexible time limit. It allows for the seeking of an extension of time for filing after the 28 day time limit has expired. However, s 245 does not permit this.[26] It follows I am satisfied that there is no power under s 245 for me to permit this Court to entertain the present application. To do so would not only be contrary to the clear wording and intention of s 245 but would also be entirely inconsistent with the other judgments discussed above with which I agree.[27] I am also unconvinced by Mr Kumandan's explanation for the 14 monthdelay. On 1 September 2015 he knew his appeal to the IPT had failed. He claims he entrusted his agent to deal with the appeal to this Court although I note he first appeared in person before the IPT. He says it was not until he met with a lawyer in January 2016 that he realised his agent had done nothing. And yet from that point there is no evidence he took any steps to advance an appeal. Instead he dealt with INZ in an attempt, it seems, to have his case reconsidered. He says it was in November 2016 when visiting a lawyer for the purposes of winding up his New Zealand affairs pending his departure from New Zealand, that he discovered a Court of Appeal authority which he believed supported his case. This led him toengage in more research and provided the "impetus" to bring the present application.[28] Mr Kumandan is a South African trained lawyer. He told me he practised in Cape Town for 12 years. He impressed me as intelligent and competent. And yet it was not until late November 2016 that he brought the present application. Even the most superficial examination of the Act would have revealed the time limits in s 245. Despite the voluminous affidavit filed, nowhere does Mr Kumandan properly explain the 14 month delay.10 Chen v Lim [2015] NZCA 407.[29] Mr Kumandan submits his appeal has merits and if leave was granted he expressed confidence in succeeding. For this reason he submits I should exercise my inherent jurisdiction to grant leave. The difficulty with that submission is that the inherent jurisdiction of this Court is not unlimited. It is well settled that statutes and the rules of Court constrain the exercise of inherent powers. Where an Act expresslyprescribes or limits powers the Court's inherent jurisdiction is, by implication, excluded. I refer in this connection to the case of Taylor v Attorney-General in which Wild CJ endorsed the following statement of the position:11" the term 'inherent jurisdiction of the court' is not used incontradistinction to the jurisdiction conferred on the court by statute. The contrast is not between the common law jurisdiction of the court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision."[Emphasis added][30] The present is plainly such a case and it would be contrary to the well-settled principles discussed above if I was to circumvent the statutory scheme by invoking my inherent jurisdiction.Conclusion[31] There is no power under the Act or any other provision which permits thisCourt to grant Mr Kumandan's application for leave to appeal out of time.[32] Furthermore, even if there was, I am not satisfied sufficient grounds have been made out justifying such a course.[33] The application is dismissed.11 Taylor v Attorney-General [1975] 2 NZLR 675 (CA) at 680 citing I. H. Jacob "The Inherent Jurisdiction of the Court" (Current Legal Problems 1970 23) at p 24.Costs[34] The respondent being successful, Mr Kumandan is liable for costs which I determine are to be assessed on a 2B basis.Moore JSolicitors:Meredith Connell, AucklandCopy to:The Applicant