H v THE MINISTER OF IMMIGRATION [2022] NZCA 424

H v THE MINISTER OF IMMIGRATION [2022] NZCA 424 [8 September 2022]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA629/2019[2022] NZCA 424BETWEEN HApplicantAND THE MINISTER OF IMMIGRATIONRespondentCourt: Kós, Brown and Courtney JJCounsel: R E Harrison QC for ApplicantR A Kirkness for RespondentJudgment:(On the papers)8 September 2022 at 10 amJUDGMENT OF THE COURTThe application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] This Court dismissed Mr H's appeal in respect of unsuccessful judicial reviewproceedings relating to his immigration status.1 A costs order was made in favour ofthe respondent, the Minister of Immigration (the Minister), and was subsequently1 H v The Minister of Immigration [2020] NZCA 562.sealed. The Supreme Court granted leave for Mr H to appeal from this Court'sdecision2 but dismissed the appeal.3[2] In a separate judgment on costs, the Supreme Court directed that costs shouldlie where they fell.4 It concluded its judgment by saying that:[6] Costs in the courts below should be dealt with by those courts in lightof our judgment in the appeal and this costs judgment.[3] On the basis of this statement Mr H has applied to have this Court's decisionrecalled and the issue of costs revisited.The Supreme Court decisions[4] Mr H's judicial review proceedings were based on a challenge to the validityof instruction A5.30 of the Immigration New Zealand (INZ) Operation Manual whichprovides that applicants who would pose a risk to New Zealand's internationalreputation will not normally be granted a residence class visa. Under A5.30(b)applicants are said to pose a risk to New Zealand's international reputation if they haveor have had an association with, membership of, or involvement with, anygovernment, regime, group or agency that has (among other things) advocated for orcommitted gross human rights abuses. It was common ground for the purposes of theproceedings that Mr H had previously been an officer of the Chinese Public SecurityBureau (PSB) and that the PSB is an organisation that has committed gross humanrights abuses.[5] The effect of instruction A5.30(b) was alleviated by the subsequent provisionsof instruction A5.30.1(b) which allowed a residence class visa to be granted if theImmigration Officer was satisfied beyond doubt that the nature and extent of theassociation, membership or involvement "was minimal or remote".[6] Mr H's argument had been that instruction A5.30(b) deems a person not to beof good character by mere association even without any personal involvement or2 H (SC 104/2020) v Minister of Immigration [2021] NZSC 28 [Leave judgment].3 H (SC 104/2020) v The Minister of Immigration [2021] NZSC 192 [Substantive judgment].4 H (SC 104/2020) v The Minister of Immigration [2022] NZSC 27 at [5] [Costs judgment].knowledge of gross human rights abuses or other activities referred to in theinstruction. Properly interpreted, instruction A5.30(b) was not founded onconsideration of personal bad character and was therefore unreasonable, unfair or ultravires and ultimately invalid.[7] The majority in the Supreme Court held that instruction A5.30(b) is related tocharacter. It considered (and the Minister accepted) that there had to be a rationalconnection between the applicant's association with the organisation and theapplicant's character.5 However, the Court was satisfied that instruction A5.30.1(b)could be interpreted so as to require a decision-maker to consider whether suchconnection existed and, on that basis, it could not be regarded as unreasonable orultra vires.6 The Supreme Court majority went on to suggest howinstruction A5.30.1(b) could be redrafted to make it clear that a rational connectionbetween the applicant's character and the association was required.7 Given the findingthat instruction A5.30 was valid, Mr H's appeal was dismissed.[8] The Minister sought costs on the basis that costs should follow the event,though sought a reduced award to recognise the fact that Mr H had obtained leave inthe face of the Minister's opposition, and that although the instruction was held to bevalid it was through an interpretation not initially advanced by the Minister in writtensubmissions. Mr H sought to have costs lie where they fell. The Court recorded hissubmissions that "the formal outcome does not fairly reflect either the reality or theintrinsic merits of the situation or the overall litigation history between these parties";that the Minister had always strongly argued for a broad interpretation of theinstruction and that the Court itself had suggested redrafting the instruction.8[9] Accepting that costs should lie where they fell, the Court said:[4] The interpretation of the instruction leading to the dismissal of theappeal was one suggested by the Court. We agree it is relevant that the Courtsuggested drafting changes to make the position clear.5 Substantive judgment, above n 3, at [25] per William Young, Glazebrook, O'Regan and Arnold JJ.6 At [30] and [32].7 At [36].8 Costs judgment, above n 4, at [3].[10] The Court then went on to make the statement at [6] that we have set out aboveat [2].The relevant principles[11] As a general rule, once a judgment is delivered it must stand, for better orworse, subject to further rights of appeal.9 Only in exceptional circumstances will thejudgment be recalled. In Unison Networks Ltd v Commerce Commission this Courtsaid:10[10] The principles governing recall of a judgment are well settled and areset out in Horowhenua County v Nash (No 2). Wild CJ said:Generally speaking, a judgment once delivered must stand for betteror worse subject, of course, to appeal. Were it otherwise there wouldbe great inconvenience and uncertainty. There are, I think, threecategories of cases in which a judgment not perfected may be recalled– first, where since the hearing there has been an amendment to arelevant statute or regulation or a new judicial decision of relevanceand higher authority; secondly, where counsel have failed to direct theCourt's attention to a legislative provision or authoritative decision ofplain relevance; and thirdly, where for some other very special reasonjustice requires that the judgment be recalled.[12] This Court has reiterated that the criteria set out in Horowhenua County v Nash(No 2) and confirmed in Unison Networks are to be followed and will be strictlyapplied.11[13] The position is different, however, once a judgment is sealed or otherwiseperfected. At that point the jurisdiction is residual — an inherent power to revisit adecision only in exceptional circumstances when required by the interests of justice.12In R v Smith this Court recognised the very limited circumstances in which this powermight be exercised:[36] Such power is part of the implied powers necessary for the Courtto "maintain its character as a court of justice". Recourse to the power toreopen must not undermine the general principle of finality. It is available9 S (SC39/2017) v R [2022] NZSC 7 at [3], citing Horowhenua County v Nash (No 2) [1968] NZLR632 (SC) at 633, as cited in Craig v Williams [2019] NZSC 60 at [10].10 Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [10], citing HorowhenuaCounty. Citation omitted.11 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23], recently cited in Anderson vNZI International Acceptances Ltd [2022] NZCA 167 at [3].12 R v Smith [2003] 3 NZLR 617 (CA) at [36].only where a substantial miscarriage of justice would result if fundamentalerror in procedure is not corrected and where there is no alternative effectiveremedy reasonably available. Without such response, public confidence in theadministration of justice would be undermined.[14] In making this statement, Elias CJ, writing for the Court, drew on the reasoningof Lord Woolf CJ in Taylor v Lawrence13 and of Kirby J (dissenting) in DJL v CentralAuthority,14 both of which were concerned with the jurisdiction of intermediateappellate courts to recall judgments that had been perfected.[15] In Taylor, Lord Woolf CJ noted that the purpose of the Court of Appeal wastwo-fold — to ensure justice between litigants and to ensure public confidence in theadministration of justice not only remedying wrong decisions but also by clarifyingand developing the law and setting precedents.15 He then explained:[50] As an appellate court [the Court of Appeal] has the implicit powersto do that which is necessary to achieve the dual objectives of an appellatecourt to which we have referred After citing from Lord Diplock's speech in Bremer Vulcan Schiffbau undMaschinenfabrik v South India Shipping Corp16 Lord Woolf CJ continued:[53] In our judgment the final words of Lord Diplock, "the doing by thecourts of acts which it needs must have power to do in order to maintain itscharacter as a court of justice" express the situation here under considerationexactly. [54] The residual jurisdiction which we are satisfied is vested in a courtof appeal to avoid real injustice in exceptional circumstances is linked to adiscretion which enables the court to confine the use of that jurisdiction to thecases in which it is appropriate for it to be exercised. There is tension betweena court having a residual discretion of the type to which we are here referringand the need to have finality in litigation. The ability to reopen proceedingsafter the ordinary appeal process has been concluded can also create injustice.There therefore needs to be a procedure which will ensure that proceedingswill only be reopened when there is a real requirement for this to happen.13 Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528.14 DJL v Central Authority [2000] HCA 17, (2000) 170 ALR 659.15 Taylor, above n 13, at [26].16 Bremer Vulcan Schiffbau und Maschinenfabrik v South India Shipping Corp [1981] AC 909at 977.[16] Taylor concerned the recall of a judgment where an allegation of bias on thepart of the first instance judge was raised after the judgment had been perfected. Smithconcerned the recall of a decision that had finally determined Mr Smith's convictionand sentence appeal ex parte.17 Other cases cited concerned circumstances in whichthe judgment had been shown to be a nullity, for example, because of a failure to servea party affected.18 Fraud has always been regarded as an exceptional situation thatwould justify the reopening of a judgment.19Recall of the judgment in this caseRecall on the recognised principles[17] Mr Harrison QC, for Mr H, submitted that, although the appeal was notallowed, that outcome did not fairly represent either the reality or the intrinsic meritsof the situation, nor the overall litigation history between the parties. Mr Harrisonargued that the majority's interpretation effectively "read down" the challengedinstruction and represented a significant departure from the interpretation maintainedby INZ previously. He also asserted that, in advance of the substantive Supreme Courtjudgment and in response to the comments of the Supreme Court leave panel, theMinister had significantly amended the challenged instruction and had Mr H'sresidence class visa applications been determined on the basis of the interpretation theMinister now accepted, they would almost certainly have been granted, making thejudicial review proceedings and subsequent appeals unnecessary. Finally, Mr Harrisonsubmitted that the judgment, although not advanced as a test case, ought to be regardedin that light.[18] Although not expressed as such, we infer that Mr H's argument is, essentially,that the basis on which the Supreme Court reached its decision means that the questionof costs in all the courts ought to be regarded as a matter engaging the interests ofjustice. We do not accept that it does.17 Smith, above n 12.18 Craig v Kanssen [1943] KB 256.19 Taylor, above n 13, at [37].[19] The Supreme Court reached its conclusion by a different route from this Courtand, in doing so, adopted an interpretation of instruction A5.30.1(b) not advanced ineither court. However, it is not uncommon to find that issues evolve through theappellate process. The point is that Mr H's substantive position is the same now as itwas following the delivery of this Court's decision. Nor is there anything in theSupreme Court's decision to suggest that if Mr H's application had been determinedon the basis of the Supreme Court's interpretation of instruction A5.30 his applicationfor a residence class visa would have been granted.[20] The basis on which costs were approached in the Supreme Court related to theway the argument proceeded in that Court. It could not have any bearing on theprocess of this Court. Further, although it was open to Mr H to include the costs orderin his appeal to the Supreme Court, we infer from the leave judgment that leave wasnot sought in relation to that aspect of the judgment. Finally, the case is not, and neverhas been, advanced as a test case.[21] The circumstances of the case have not resulted in any injustice that wouldwarrant interfering with the principle of finality through recall.The effect of the Supreme Court's statement at [6][22] Mr Harrison submitted that the conventional, high threshold principlesgoverning the recall of sealed judgments ought not to apply in this case because theSupreme Court has expressly directed this Court to reconsider its costs order. As aresult, Mr H's application for recall of the costs award in this Court should be viewedas merely the mechanism by which the mandated reconsideration can occur, that isthat the Supreme Court's direction regarding "[c]osts in the courts below" requires thecourts below to "[deal] with" an application by Mr H to re-open and reconsider theprevious costs orders, notwithstanding his lack of success in those courts.[23] This argument was based on the Supreme Court's powers under s 79(2) of theSenior Courts Act 2016 to make any ancillary order "[i]n a proceeding" and unders 80, to remit a proceeding that began in any New Zealand court to a New Zealandcourt that has jurisdiction to deal with it. Mr Harrison also relied on r 44(1) of theSupreme Court Rules 2004, which confers on the Supreme Court the power to makeany orders that "seem just concerning the whole or any part of the costs anddisbursements of a civil appeal".[24] We think it self-evident that neither s 79 of the Senior Courts Act nor r 44(1)of the Supreme Court Rules applies. These powers are to be used in relation toproceedings before the Supreme Court, not proceedings previously determined inanother court.[25] Nor do we see the power to remit under s 80 of the Senior Courts Act asresponding to the present situation. The power is one that appears to be exercisedrarely, for example, where the first instance court has failed to make a factual findingadequate for final disposition of the case.20 No authority was cited to us to support thesuggestion that these provisions empowered the Supreme Court to direct this Court torecall a judgment that had been perfected,21 much less in circumstances where recallwould not be justified on the recognised principles. In these circumstances, we do notread [6] of the Supreme Court's costs judgment as a direction to this Court. Theposition would have different had the substantive appeal succeeded because thisCourt's judgment would have been set aside and the sealing of the judgment irrelevant.Result[26] The application for recall is declined.Solicitors:Mark Lee Lawyers, Auckland for ApplicantCrown Law Office, Wellington for Respondent20 Otago Station Estates Ltd v Parker [2005] NZSC 16, [2005] 2 NZLR 734 at [13].21 It is not clear from the Costs judgment that it appreciated that the costs judgment in this Court hadbeen sealed.