MENG v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2022] NZHC 82

MENG v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2022] NZHC 82 [3 February 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-408[2022] NZHC 82UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF an application for judicial reviewBETWEEN HSIEN-WEI MENGApplicantAND CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENTRespondentHearing: 2 February 2022Counsel: No appearance for Applicant I M G Clarke for RespondentJudgment: 3 February 2022JUDGMENT OF CHURCHMAN JIntroduction[1] This is an application by the respondent to strike out proceedings commenced by the applicant (Mr Meng) seeking judicial review of various aspects of New Zealand's border policies that have been implemented throughout the COVID- 19 pandemic.[2] Mr Meng is not a New Zealand citizen. He resides in Taiwan and is a citizen of that country. He has never been to New Zealand and his only connection with this country appears to be that on 4 January 2020 he applied for a New Zealand student visa. That application was declined on 20 February 2020.[3] Although the proceedings brought by Mr Meng describe the declining of his student visa application as an "unlawful denial" he does not, in these proceedings, directly seek to challenge the dismissal of his application for a student visa. There is an obvious reason for that: s 186(3)(a) of the Immigration Act 2009 (the Act) provides that the refusal or failure to grant a temporary entry class visa (such as a student visa) to a person outside New Zealand cannot be the subject of judicial review proceedings. 1[4] Instead of directly challenging the visa decision, Mr Meng seeks a declaration of inconsistency between certain New Zealand COVID-19 border policies and a number of domestic and international human rights instruments. Mr Meng also alleges that the New Zealand Government has discriminated against him personally through its border control policies and has conspired with an unnamed entity to thwart his desire to study in New Zealand.The strike out application[5] The respondent seeks to strike out Mr Meng's claims relying on High Court Rule 15.1 on the basis that:(a) the control of the New Zealand border lies with the Crown and the relevant decisions relate to non-justiciable policy matters;(b) none of the international instruments cited by the applicant are relevant;(c) there has been no discrimination;(d) some claims made by the applicant do not relate to him personally and no cause of action can be made out; and(e) the claims disclose no reasonably arguable cause of action.1 Even if s 186 did not absolutely prohibit a judicial review of a student visa decision Mr Meng would face the added difficulty in that in those situations where the Act does permit judicial review, s 247 requires that such proceedings be commenced not later than 28 days after notification of the decision challenged. These proceedings were not filed in Court until August 2021.[6] The respondent also seeks an order for security for costs if the proceedings are not struck out under HCR 5.45 on the basis that:(a) the applicant is resident out of New Zealand; and(b) such an order would be just in all the circumstances.[7] The issues in this proceeding are therefore:(a) should Mr Meng's claims be struck out?; and(b) if not, should an order for security for costs be made?Factual background[8] Mr Meng's application for a student visa was declined on 20 February 2020. The World Health Organisation did not declare COVID-19 a global pandemic until 11 March 2020. New Zealand's Cabinet did not meet until 19 March 2020 to determine border policies to protect the country against COVID-19. The policies that Mr Meng seeks to challenge in these proceedings are therefore unconnected with his visa application as they were not implemented until after the date on which that application was declined. They therefore cannot have rendered the visa decision unlawful.[9] Mr Meng is a lay litigant. The statement of claim appears to have been prepared by him without the benefit of any legal assistance. It is rambling and unfocused. It contains numerous references to conspiracies and claims that policy decisions taken by the New Zealand Government were targeted at him or a response to various complaints he had made. It also contains far-fetched allegations that the tertiary institution that he had wished to study at "may even have conspired with unknown foreign government authorities" to frustrate his wish to study in New Zealand.[10] Essentially, in these proceedings, Mr Meng is inviting the Court to review a number of policy decisions taken in relation to border restrictions in response to theCOVID-19 pandemic on the grounds that they are not "consistent with the Constitution of New Zealand and relevant treaties New Zealand has entered".Procedural history[11] Having commenced these proceedings, Mr Meng has unfortunately adopted a confrontational and unhelpful attitude to the process of the Court. The application was set down for a teleconference on Monday 20 September 2021, with the Attorney- General named as the respondent. Mr Meng did not attend the scheduled case management conference (CMC), but via email challenged the legality of the CMC and asked for the High Court staff who had been handling the file to be removed. Grice J issued a minute adjourning the matter for four weeks in order for a statement of defence to be filed. 2[12] Between the time of the first teleconference and the second, the respondent filed a memorandum seeking the dismissal of the proceedings on the basis that the High Court had no jurisdiction to hear the claim. The respondent also sought the substitution of the Chief Executive of MBIE as the correct respondent, being the decision-maker on visa applications. The respondent indicated an intention to seek costs if the proceeding was to be pursued.[13] On 26 October 2021, another CMC was scheduled. In a minute of 28 October 2021, Cull J recorded that Mr Meng again did not attend the teleconference as he challenged its legality.3 Cull J rejected Mr Meng's claims as to the legality of the CMCs, granted the application to correctly identify the respondent and made various timetable orders.Strike out application[14] On 22 October 2021, the respondent filed an application for strike-out and security for costs together with a further memorandum. On the same day Mr Meng filed a memorandum with the issues to be addressed at the CMC, in which he provided2 Meng v Chief Executive of the Ministry of Business, Innovation and Employment, CIV-2021-485-408, Grice J, 20 September 2021.3 Meng v Chief Executive of the Ministry of Business, Innovation and Employment, CIV-2021-485-408, Cull J, 28 October 2021.considerable detail and indicated that his pleading would be similarly extensive. He submitted that as the respondent had not filed a statement of defence that judgment should be given to him in the respondent's absence.Submissions of the partiesMBIE[15] Ms Clarke, counsel for the respondent, submits that Mr Meng's challenge to the closure of New Zealand's border and the scope of border closure exemptions does not engage the interpretation or application of the relevant Immigration Instructions. Nor does it appear to be a vires challenge. It is submitted that Mr Meng simply does not agree with the decision of the New Zealand Government to close New Zealand's borders to (most) non-New Zealanders as part of its response to the COVID-19 pandemic. It is submitted that such a grievance is not suitable for judicial review. It is a direct challenge to the substance of Government policy absent a suitable legal yardstick for review.[16] Ms Clarke further submits that the control of the New Zealand border lies with the Crown, as recognised by the common law, domestic statute, and international law. The right to exclude or expel non-citizens is one of the earliest and most widely recognised powers of the sovereign state. 4 She submits that the adoption of such a policy is only reviewable in respect of its legality. A Court will not intervene with policy decisions in respect of their wisdom or morality; that an affected person might disagree does not create a reviewable error. 5[17] The respondent's ultimate submission is that Mr Meng's challenges to COVID- 19 border control polices fall within the category of Government actions in respect of which the Courts will not intervene. The matter of how many people should be allowed to enter New Zealand or for whom exceptions should be made is a policy matter that cannot be measured by reference to a standard of legality.4 Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [117].5 Curtis v Minister of Defence [2002] 2 NZLR 744 at [11] and [14].[18] It is submitted that no assertion of discrimination can succeed because the Immigration Act explicitly recognises that "immigration matters inherently involve different treatment on the basis of personal characteristics". 6 Nor has Mr Meng identified any particular prohibited ground upon which he has been discriminated against. The barrier to Mr Meng's entry to New Zealand is his status as a non- citizen/resident. In an immigration context, some differentiation must almost inevitably be made between citizens and non-citizens and this distinction is one the Government is entitled to make.[19] The respondent submits that New Zealand's international human rights obligations and New Zealand Bill of Rights Act 1990 (NZBORA) obligations are not engaged. Neither have any relationship with New Zealand's border obligations or its conduct towards non-citizens outside the country. NZBORA rights are not applicable to Taiwanese nationals in Taiwan as no jurisdiction has been assumed by New Zealand. In relation to Mr Meng's conspiracy claims, it is submitted that where allegations of fraudulent intent or similar state of mind are made, there must be some reasonably credible material which establishes a prima facie case 7 and none exists here.[20] The respondent also seeks security for costs if the strike out application is unsuccessful or further steps are to be taken, given that Mr Meng is in Taiwan. The respondent recognises the public interest in the Court's oversight of measures taken as protection against COVID-19 and has not generally sought security for costs in other proceedings of this nature. However, security for costs are sought in this case given the nature of the claims. The respondent submits the amount of security should be at least $18,000. The respondent seeks costs and reasonable disbursements on a 2B basis if the strike out application is successful.Mr Meng[21] Mr Meng continues to dispute the legality of the proceedings via various email exchanges with registry staff and public servants. By emails to the Registrar of 27 January and 1 February 2022, he continued to make extravagant claims to the effect6 See Immigration Act 2009, s 392(3).7 Relying on Greer v Chief Executive, Department of Corrections [2019] NZHC 980 at [14].that a wide variety of people involved in the case including Judges, Court staff, counsel and many others had committed the offences of "conspiring to defeat justice" and "judicial corruption". He has chosen not to engage with the legal submissions filed in support of the strike out application. He declined the opportunity to participate in the hearing by VMR.Approach/relevant lawStrike out application[22] Rule 15.1 of the HCR provides:(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.[23] The approach to striking out a claim that discloses no reasonably arguable cause of action is well settled: 8A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed; the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction.[24] Where a defect in the pleadings can be cured by an amendment, the Court will not generally strike the proceeding out. Instead, it will permit the plaintiff to make the amendment provided the cause of action is still within time. 98 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 264, as confirmed by the Supreme Court in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].9 Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 at 324.[25] The principles applicable to the second broad ground of strike out, the abuse of the Court's processes, are also well-established: 10The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse of the court's processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court's processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. In regards to r 15.1(1)(c), a "frivolous" pleading is one which trifles with the court's processes, while a vexatious one contains an element of impropriety. Rule 15.1(1)(d) – "otherwise an abuse of process of the court" – extends beyond the other grounds and captures all other instances of misuse of the court's processes, such as a proceedings that has been brought with an improper motive or are an attempt to obtain a collateral benefit. An important qualification to the grounds of strike out listed in r 15.1(1) is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If the defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim.[26] The same criteria apply to an application to strike out a judicial review proceeding. 11 There can be no cause of action where the issue was not justiciable.12The Court of Appeal in Curtis v Minister of Defence noted that: 13A non-justiciable issue is one in respect of which there is no satisfactory legal yardstick by which the issue can be resolved. That situation will often arise in cases into which it is also constitutionally inappropriate for the Courts to embark.Analysis[27] There are some fundamental and irremediable difficulties with Mr Meng's claim.[28] Although there is no direct challenge in these proceedings to the 20 February 2020 decision declining Mr Meng's application for a student visa, the essence of his concerns seems to be that, as a result of certain policy decisions made by way of response to the COVID-19 pandemic, he has effectively not been able to make a further application for a student visa. The problem with this proposition is that,10 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679, (2013) 26 NZTC 21-007, [2013] NZCCLR 10 at [89].11 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA).12 Curtis v Minister of Defence [2002] 2 NZLR 744 (CA).13 At [27].following the declining of his application on 20 February 2020, he has not subsequently made an application for a student visa. Because the various policy decisions he refers to in his statement of claim, all post-date the decision to decline his visa application, they cannot form the basis of a claim that the visa decision was unlawful.[29] In the statement of claim, Mr Meng repeatedly refers to the decisions that he wishes to challenge as not having been in accordance with New Zealand's "Constitution". As New Zealand does not have a written constitution, this assertion can only sensibly be interpreted as referring to rights arising under NZBORA.[30] The issue therefore arises whether, in circumstances where the decisions Mr Meng seeks to review have no connection with the decision that is really at the heart of his application, the NZBORA provides him with rights that are capable of enforcement by way of judicial review.[31] There are limited circumstances in which New Zealand legislation can confer rights on non-New Zealand citizens domiciled in foreign countries. NZBORA is no exception to this principle.14[32] Mr Meng does not anywhere, in his statement of claim, identify the basis upon which he has acquired rights under NZBORA which would entitle him to seek judicial review of any of the decisions referred to in the statement of claim.[33] The decisions that Mr Meng wishes to judicially review relate to matters involving high-level questions of policy and political judgement. That of itself does not make such decisions immune from judicial review but there needs to be a basis upon which such a decision can be said to be unlawful. 15[34] As noted by the Court in GF v Minister of COVID-19 Response, 16 some decisions are more readily judicially reviewable than others. Decisions where the14 See for example Young v Attorney-General [2018] NZCA 307, [2018] 3 NZLR 827 at [40], andSmith v Attorney-General [2020] NZCA 499 at [92].15 See Afghan Nationals v Minister for Immigration and Chief Executive of Ministry of Business, Innovation and Employment [2021] NZHC 3154 at [133].16 GF v Minister of COVID-19 Response [2021] NZHC 2526 at [100].decision-maker has relied on technical or specialist evidence or has applied specialist knowledge, are less easily reviewable than decisions focusing on the application of legal principle. If there is no legal yardstick against which to measure a decision, that is an indicator against its susceptibility to review.17[35] In the present case, there is no legal framework against which to review the decision. In inviting the Court to:examine whether [the disputed policy decisions] were the results of agreeable [sic] scientific methods and calculations done beforehand and whether they are "absolutely necessary" with "absolutely no other alternative conceivable and to be considered" under the current special circumstances created by the global pandemicMr Meng is inviting the Court to undertake an exercise which goes well beyond the boundaries of judicial review.[36] In the case of Curtis v Minister of Defence, 18 the Court of Appeal agreed with the High Court in that case that policy decisions which are not unlawful are not matters which the Court is constitutionally able to judicially review.[37] The rationale for this was articulated by the High Court in the case of Thomson v Minister for Climate Change Issues as being: 19It reflects the constitutional concern that the Courts perform the functions which are properly within their domain. It also recognises the practical point that the Courts are not equipped to balance competing policy factors, and are unlikely to have sufficient information about them to do so in the context of a legal dispute, absent certain legal criteria against which they can be determined.[38] Mr Meng's claim that he has been discriminated against is also unfounded. He has not identified any prohibited ground of discrimination but, more importantly, the Act specifically recognises that "immigration matters inherently involve different treatment on the basis of personal characteristics". 2017 Curtis v Minister of Defence, above n 12 at [27].18 At [14].19 Thomson v Minister for Climate Change Issues [2017] NZHC 733, [2018] 2 NZLR 160 at [103].20 The Immigration Act, s 392(3). See also M v Minister of Immigration [2002] NZCA 489, [2013] 2 NZLR 1 at [49]-[50].[39] Mr Meng was not treated any differently from other applicants for a student visa and was therefore not discriminated against.[40] Mr Meng's reference to alleged inconsistencies with international obligations is also misplaced. Whatever obligations might flow from particular international instruments adopted by New Zealand, they are not rights that are legally owed to citizens of other countries.21[41] In relation to Mr Meng's various conspiracy claims to the effect that the New Zealand Government is conspiring with unnamed third parties to prevent him from studying in New Zealand, the statement of claim does not identify any material that would credibly support such a claim.[42] For these reasons, I am satisfied that the statement of claim discloses no reasonably arguable cause of action, and cannot possibly succeed. I therefore strike it out in accordance with HCR 15.1(1)(a).Security for costs[43] As I have decided that Mr Meng's application should be struck out, I do not need to go into whether or not there should have been an order for security for costs under HCR 5.45.Costs[44] Ms Clarke sought costs and disbursements on the strike out application on a 2B basis. I am satisfied that this is appropriate. Ms Clarke has filed a schedule for approval seeking costs and disbursements totalling $8,148. I approve that schedule.21 For example, the International Covenant on Civil and Political Rights, Article 2(1) limits a State's obligations to individuals within its territory and subject to its jurisdiction. The International Convention on the Elimination of All Forms of Racial Discrimination, Article 1(2) provides that the Convention does not apply to "distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizen and non-citizens". None of the provisions to the International Covenant on Economic Social and Cultural Rights cited by Mr Meng are relevant to border control or interactions with those outside New Zealand's jurisdiction. None of the instruments referred to by Mr Meng stipulate any specific criteria or process for border settings against which the matters raised by Mr Meng could be assessed.Result[45] The statement of claim is struck out. The respondent is awarded costs and disbursements on a 2B basis in the sum of $8,148.Churchman JSolicitors:Crown Law Office, Wellington for Respondentcc: Hsien-Wei Meng