OCHIBULU v IMMIGRATION AND PROTECTION TRIBUNAL [2022] NZCA 278

OCHIBULU v IMMIGRATION AND PROTECTION TRIBUNAL [2022] NZCA 278 [30 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA266/2020[2022] NZCA 278BETWEEN HYACINTH DEMUS OCHIBULUAppellantAND IMMIGRATION AND PROTECTIONTRIBUNALFirst RespondentMINISTER OF IMMIGRATIONSecond RespondentHearing: 27 October 2021 (further submissions received 24 November and10 December 2021)Court: Kós P, Brown and Goddard JJCounsel: R J Hooker for AppellantS P Jerebine and G Niven for Second RespondentJudgment: 30 June 2022 at 11 amJUDGMENT OF THE COURTA The appeal is dismissed.B The application for leave to review is dismissed.C The appellant must pay the second respondent costs for a standard appealon a band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)Introduction[1] Mr Ochibulu, a Nigerian citizen, faces deportation as a consequence of hisconviction in 2015 for importing and for possessing methamphetamine for supply (forwhich he was sentenced to more than 15 years' imprisonment). Earlier convictionsfor driving offences had rendered him liable to deportation, but theMinister of Immigration had suspended deportation, conditionally. At about the sametime, Mr Ochibulu lodged an appeal with the Immigration and Protection Tribunalbased on humanitarian grounds. The appeal was deferred in light of the suspension.[2] After Mr Ochibulu's serious drug offending, the then-Minister reactivated hisliability for deportation. This in turn effectively reactivated his humanitarian appealto the Tribunal. In May 2019, the Tribunal declined Mr Ochibulu's appeal.1 InJune 2019, Mr Ochibulu applied for judicial review of the Tribunal's decision and inNovember 2019, he also sought to review the Minister's reactivation decision.[3] Under s 247(1) of the Immigration Act 2009, an application for judicial reviewof a Minister's decision is required to be filed not later than 28 days after the date theapplicant is notified of the decision, unless "the High Court decides that, by reason ofspecial circumstances, further time should be allowed". Mr Ochibulu applied to theHigh Court for leave under s 247 to commence an out of time judicial review of theMinister's reactivation decision.[4] Under s 249(3) of the Act, leave is required to apply for judicial review of theTribunal's decision. Mr Ochibulu applied to the High Court for leave to bring judicialreview proceedings in relation to the Tribunal's decision. The Minister opposed bothapplications.[5] In April 2020, Fitzgerald J delivered a judgment declining the ss 247 and 249applications.2 Mr Ochibulu sought to appeal both elements of the decision. In anearlier judgment, we held his challenge to the s 249 element should proceed before1 Ochibulu v Minister of Immigration [2019] NZIPT 500449.2 Ochibulu v Immigration and Protection Tribunal [2020] NZHC 792 [Judgment appealed].this Court not as an appeal, but as an application under s 249(3) for leave to bringjudicial review proceedings in the High Court.3Background[6] Mr Ochibulu met his wife, a New Zealand citizen, in South Korea. Theymarried there in 2007. Mr Ochibulu came to New Zealand in 2008 and was granted aresidence visa in 2009. He and his wife have four children, all born here and allholding New Zealand citizenship.[7] In August 2010, Mr Ochibulu was convicted of driving whilst disqualified,sentenced to 200 hours' community work and disqualified from driving for 12 months.This was his third such offence. As a result, he became liable for deportation unders 161 of the Act.[8] In May 2011, Immigration New Zealand produced a report for the Minister toassist him in deciding whether he should cancel or suspend Mr Ochibulu's deportationliability. In July 2011, the Minister suspended Mr Ochibulu's deportation liability forfive years, conditional among other things on him not being convicted of any offenceduring the suspension period. Due compliance would result in cancellation of thedeportation notice. The letter further stated that if Mr Ochibulu did not comply, hisdeportation liability "may be reactivated", that he would not have any new appealrights and would have to leave New Zealand within 28 days of receiving a reactivateddeportation notice.[9] In August 2011, Mr Ochibulu filed a notice of appeal with the Tribunal. It,however, determined that the appeal hearing should be deferred until either the expiryof the suspension period or reactivation of liability for deportation upon a breach of acondition.[10] In April 2015, Mr Ochibulu was convicted on two charges of importingmethamphetamine (1.127 kg in quantity) and two charges of possessing3 Ochibulu v Immigration and Protection Tribunal [2021] NZCA 269 at [10] and [41].methamphetamine for supply. These offences were committed in late 2013. He wassentenced to 15 years, 10 months' imprisonment.4[11] In August 2015, Mr Ochibulu received a letter from Immigration New Zealandstating:The Minister now needs to determine whether you have failed to meet yoursuspension condition imposed on 12 July 2011.Before a case is put to the Minister I am inviting you to provide commentson your situation. If the Minister determines that you have breached your suspensionconditions, he or she will sign a deportation liability reactivation notice whichwill be served on you. There are no appeal rights [12] In September 2015, Mr Ochibulu wrote to the Minister:I would like to take this opportunity to respond and make my submissionregarding the 2 conditions listed in your letter.(1) I maintain I'm not the main offender on this offence I committed.I only allowed my address to be used without knowing the person isusing it for drug importation. He only told me he is going to use it tobring in culture clothes to sell to Nigerians here in New Zealand. Ididn't realise I would breach my immigration condition.(2) I have committed to my wife by legally marrying her. She is aNew Zealand citizen with my 4 children. It's my desire to reside inNew Zealand to remain with my family. I do not wish to leave myfamily stranded in New Zealand.St Joseph and St Joachim Catholic Church are willing to support me and myfamily. Two of my children are attending St Joseph's School there and theyare doing good.I have successfully completed my Parental Relationship course twice, and I'mlooking forward to learning more.[13] Mrs Ochibulu also wrote to the Minister a letter which set out in some detailher husband's remorse and efforts to achieve rehabilitation, the family's economicdistress, and their reliance on food parcels and parish aid. Supporting letters attesting4 R v Iwu [2015] NZHC 1438 at [76].to Mr Ochibulu's character were provided from other family members and his parishpriest.[14] Mr Ochibulu's explanation is difficult to reconcile with Thomas J's factualfindings, recorded in her sentencing remarks:5[17] The second importation through the mail system was via a packagefrom Cameroon addressed to Tracey Hapokingi of 10 Temuri Place, Auckland.The package contained two handbags. Hidden under the hard bases inside thebags was 640 grams of methamphetamine.[18] Tracey Hapokingi is the name of Mr Ocbibulu's partner and10 Temuri Place is the address of her relatives.[19] Text messages had been sent by Mr Iwu and Mr Okpara containingthe same address details to phone numbers in Nigeria, Malaysia and to eachother. Mr Iwu provided two different Nigerian phone numbers with the detailsfor the package. A member of the overseas syndicate in Malaysia sentmessages to Mr Iwu with the same address details and the parcel's trackingnumber.[20] A controlled delivery of this package took place on 5 December 2013.Mr Ochibulu uplifted the parcel from 10 Temuri Place. He took it back to hishome address. He phoned Mr Okpara, who went to Mr Ochibulu's address.Mr lwu arrived on a flight to Auckland on the same day and was arrested atthe airport. In his jacket pocket was a set of digital scales of the type used todeal methamphetamine. Residue of methamphetamine was on the scales.[21] As the Police entered Mr Ochibulu's home address, he had his handsin one of the bags and Mr Okpara was located trying to climb out of thewindow[.][65] You were involved in both importations because you provided thoseabove you in the hierarchy with address details. That is more than a custodialrole. Your role was vital because it was you who was entrusted with thedelivery and pick-up of the drugs, which is a crucial part of the enterprise.Although I accept that you did not necessarily want to be actively involved,the reality is that you became actively involved.[66] In any event, I agree that your role was something more than a catcherbecause not only did you get your "hands dirty" by performing the physicaltask of uplifting the parcel but you were also in the background involved inthe organisational aspect as well. That is evidenced by the fact that youparticipated in some phone calls with the overseas syndicate, which5 Footnote omitted.demonstrates your role as part of a bigger and organised aspect of theoffending.[15] On 10 February 2016, the Minister decided to reactivate deportation followingconsideration of a report from Immigration New Zealand.6 The decision was servedon Mr Ochibulu on 23 February 2016.[16] Reactivation of deportation led to the reactivation of Mr Ochibulu's appeal.On 11 March 2019, the Tribunal directed that the hearing of Mr Ochibulu's appeal takeplace on 8 May 2019. On 22 March 2019, Mr Ochibulu requested a copy of his fullfile from Immigration New Zealand. According to Mrs Ochibulu's affidavit, a partlyredacted file was delivered on 9 May 2019, a day after the hearing.[17] Mrs Ochibulu also claims that the full file had been provided to the Tribunal,and to counsel for the Minister, prior to the hearing. It is not altogether clear whatfactual basis Mrs Ochibulu had to make these particular assertions. Mr Hooker,counsel for Mr Ochibulu, however, placed some reliance on them at the hearing beforeus.[18] On 17 May 2019, the Tribunal dismissed Mr Ochibulu's appeal.7 The Tribunalwas not satisfied that there were "exceptional circumstances of a humanitarian nature"in Mr Ochibulu's case requiring non-deportation, under s 207(1)(a) of the Act;deportation was not "unjust or unduly harsh".8 However, it did order removal of theperiod of prohibition on re-entry into New Zealand, to enable him to return to visit hisfamily.9[19] Mr Ochibulu then applied on 10 October 2019 to the High Court for leave toreview the Tribunal's decision under s 249 of the Act. Mr Ochibulu then also appliedon 21 November 2019 for leave to review the Minister's 2016 deportation reactivationdecision.6 The power to do so is found in s 172(3)(a) of the Immigration Act 2009.7 Ochibulu v Minister of Immigration, above n 1.8 At [74].9 At [78]–[80]. The Tribunal's power to remove the prohibition lay in s 215(1).[20] Both Mr Ochibulu's applications were dismissed by Fitzgerald J on23 April 2020.10 We will summarise that judgment in due course.Appeal — s 247[21] Mr Ochibulu applied to the High Court for an extension of time under s 247 tocommence judicial review of the Minister's reactivation decision. In full, s 247provides:247 Special provisions relating to judicial review(1) Any review proceedings in respect of a statutory power of decisionarising out of or under this Act must be commenced not later than28 days after the date on which the person concerned is notified of thedecision, unless—(a) the High Court decides that, by reason of specialcircumstances, further time should be allowed; or(b) leave is required, under section 249(3), before proceedingsmay be commenced (in which case section 249(4) applies).(2) [Repealed](3) In this section, statutory power of decision has the same meaning asin section 4 of the Judicial Review Procedure Act 2016.(4) Nothing in this section limits the time for bringing review proceedingschallenging the vires of any regulations made under this Act.Judgment appealed[22] The Judge held that the delay in applying for judicial review in this case was"very lengthy".11 There was also, she said, "no real explanation for the delay".12Mr Ochibulu's explanation that there was "'no value' in bringing judicial reviewproceedings prior to the outcome of the humanitarian appeal" suggested "an activechoice not to pursue judicial review" of the Minister's reactivation decision.13 But"a litigation choice or strategy to pursue other forms of relief over judicial review" didnot "amount to 'special circumstances'".14 To the extent that Mr Ochibulu was10 Judgment appealed, above n 2.11 At [55].12 At [56].13 At [56].14 At [56]."unaware of the right" to pursue judicial review, ignorance of that opportunity did notamount to "special circumstances".15 To the extent the submission was made that thecontent of the reactivation notice, referencing rights of appeal, "'pointed' the applicantdown the route of an appeal rather than judicial review", the answer was s 171 of theAct, which specified what must be contained in a deportation liability notice, includinginformation on the right of appeal.16 As the Judge put it, "[a] statutorily compliantnotice cannot therefore 'wrongly' point an individual down the track of the right ofappeal".17[23] The Judge then went on to consider the merits of the proposed judicial review,albeit she found this was not a marginal case in which those could "tip the balance" inthe sense discussed by this Court in Rajan v Minister of Immigration.18 The complaintabout a breach of natural justice turned on an argument that Mr Ochibulu was not toldthat the Minister would have his criminal history or Thomas J's 2015 sentencing notesbefore him when considering whether to reactivate deportation liability. He submittedthat had he known the Minister would have the full conviction history report, he wouldhave addressed all his offending in his letter, and not just the 2013 drug offending.Secondly, had he known the sentencing notes would be before the Minister, he wouldnot have suggested in his letter — quoted at [12] above — that he did not know hisaddress would be used in connection with importing drugs. The Judge, however,considered that Immigration New Zealand was not required to list every item ofinformation that might be put before the Minister in deciding whether to reactiveliability for deportation.19 The Judge said it would be "self-evident the Minister wouldhave before him the basis upon which deportation had arisen" — that is, the earlierconvictions.20 It was artificial to suggest the letter from Immigration New Zealand"conveyed that only that the fact of conviction and sentence would be before theMinister".21 The Judge went on to say:2215 At [57], citing Bhasin v Immigration and Protection Tribunal [2018] NZHC 644 at [28].16 At [58].17 At [58].18 At [59]. See Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [30].19 At [61].20 At [64].21 At [65].22 At [65]. Moreover, to the extent the suggested prejudice is that the lack ofknowledge led the applicant to make misleading statements about hisoffending, I have some doubt this would amount to qualifying prejudice.[24] The second aspect of the application for judicial review concerned anallegation that the Minister failed to exercise the discretion required of him whenmaking the reactivation decision. The Minister's letter referred to Mr Ochibulu'sconviction and sentence and then said "[y]our deportation liability is therefore nowreactivated". The submission made was that the use of the word "therefore" was"conclusive evidence that it was the mere fact of conviction and sentence which gaverise to the [r]eactivation [d]ecision, rather than the separate exercise of discretion".23In addition, a complaint was made as to a lack of expression of the grounds on whichdeportation liability had been reactivated, and a statement of "all the reasons" why theMinister had reactivated that liability.24[25] The Judge was not persuaded of either argument. The "sole ground on whichdeportation liability was reactivated was the applicant's further offending".25 Thecontemporaneous record explained how the reactivation decision was made, andwhether the Minister exercised discretion.26 The report to the Minister made it clearthat the Minister was to exercise a discretion.27 It referred specifically to Mr Ochibuluand his wife's submissions. It directed the Minister to weigh their children's bestinterests as a primary consideration against other relevant considerations. The sectionof the report headed "Record of Decision" contained two options. The fact theMinister chose one of those two options was consistent with the exercise ofdiscretion.28[26] The Judge concluded that the length of the delay was great, there was nocompelling reason behind it and the merits of the application for review were notstrong. Accordingly, no "special circumstances" existed to justify granting leave toapply out of time. 29 The application was dismissed.3023 At [39].24 At [40].25 At [70].26 At [76].27 At [78].28 At [78].29 At [84].30 At [85].Submissions[27] For Mr Ochibulu, Mr Hooker submits that "special circumstances" warrantingthe grant of leave exist because his client was never told the Minister reserved adiscretion to choose not to reactivate his deportation liability. Instead, Mr Ochibuluclaims he was told that reactivation would inevitably follow from the fact of hisconviction. The relevant documentation provided evidence that no discretion wasexercised, contrary to s 172(3) of the Act. Mr Ochibulu was not given an opportunityto address the options available to the Minister and which one the Minister ought tohave chosen. He could therefore not be expected to have any knowledge of a possiblelegal remedy, and it was this that resulted in the delay. Accordingly, Mr Hookersubmits the High Court erred in finding the Minister had exercised a discretion inmaking the reactivation decision, and by finding there were no "specialcircumstances" to justify leave being granted.[28] Mr Hooker submits the merits of the proposed judicial review proceeding alsoweigh in favour of granting leave. He identifies as the key issue the fact he was notgiven a chance to comment on the information before the Minister when the Ministerwas making the reactivation decision, as he did not know what materials the Ministerwould rely upon. These materials included Mr Ochibulu's complete criminal history,which contains a list of 12 convictions over the period between 2009 and 2012, andthe sentencing notes from the High Court in respect of Mr Ochibulu's 2013drug-related offences.[29] Mr Hooker also submits reasons should have been given as to why deportationliability was suspended in the first place, and further that these reasons should havebeen made available to the Minister when considering reactivation. In the absence ofthese reasons, the Minister could not meaningfully assess whether the seriousness ofthe breach of the suspension condition would or might preclude him from reactivatingdeportation liability.[30] Finally, Mr Hooker submits his client's application for an extension of timemust be considered against the rights he loses as a result of the Minister's decision,which include his rights to live and work in New Zealand. He argues that a higherstandard of judicial review is required in situations where ministerial decisions affector remove rights, and that this weighs in favour of leave being granted.Discussion[31] The discretion in s 247(a) may be extended by reason only of "specialcircumstances". That expression in context is explained by this Court's decision inRajan v Minister of Immigration, where it was held that that finding will depend onthe length of delay, the reasons for delay and (in marginal cases) a brief examinationof the merits.31 The scheme of the statute is to constrain judicial review in the contextof deportation proceedings, where there is a right of appeal to the Tribunal under theAct. The legislation provides timeframes. Judicial review should not be used as amechanism to subvert the statutory scheme except in clear cases of abuse of power.This is not such a case. This Court has also spoken against undue delay throughbelated litigation in the immigration context in Fernandes v Immigration andProtection Tribunal.32[32] It appears arguable that the delay may not in fact be as long as the Judge foundit to be (and indeed as Mr Hooker accepted it was). The 28-day time limit in s 247(1)is subject to s 249(3), and thereby to s 249(1) — requiring (1) an appeal to the Tribunalby way of prerequisite and, then, (2) "final determinations [by the Tribunal] on allaspects of the appeal".33 If that provision was applicable here (and we make no findingthereon in the absence of argument), Mr Ochibulu was out of time on 15 June 2019,and his delay was of the order of five months. Regardless of that potentialimprovement in position, the fact he was out of time at all requires this Court toundertake a provisional merits assessment. It is on that assessment that Mr Ochibulufails comprehensively.[33] We are not persuaded that the letter inviting comments misled Mr Ochibulu asto his right to make submissions to persuade the Minister to exercise the discretion notto reactivate deportation. We cannot read the correspondence sent by Mr Ochibulu,Mrs Ochibulu and other family members as being anything other than submissions31 Rajan v Minister of Immigration, above n 18, at [24]–[30].32 Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544 at [8].33 Section 249 is set out at [37] below.made to the Minister, to persuade him not to reactivate deportation. They could serveno other purpose. Mrs Ochibulu, for instance, asked the Minister to allow her husbandto stay, and that "rather than signing a deportation liability reactivation notice",requested "another 5 year suspension period" be imposed once her husband left prison.[34] Secondly, for the reasons given by the Judge, we agree that the record indicatesthe exercise of discretion by the Minister (when the report is also taken into account).As the Judge noted, the report to the Minister made it clear that the Minister was toexercise a discretion. It noted early on that, should the Minister "determine"Mr Ochibulu had failed to comply with suspension conditions, the Minister "may"reactivate his liability for deportation. The determinative contrast is patent. It referredspecifically to Mr Ochibulu and his wife's submissions. It directed the Minister toweigh the children's best interests as a primary consideration against any otherrelevant considerations. The section of the report headed "Record of Decision"contained two options, stated as being "[p]ossible options", one involving reactivationand the other not. That, together with the Minister's selection, was consistent with theexercise of discretion. In his affidavit, the then-Minister set out carefully the processhe would have adopted. It is clear he appreciated a decision as to reactivation involveda discretion.[35] Thirdly, we agree also with the Judge that Immigration New Zealand was notrequired to indicate that the Minister would consider Mr Ochibulu's criminal historyand the sentencing notes. Indeed, we think the suggestion that he might not do somakes no sense. Mr Hooker could not point to any provision or authority requiringImmigration New Zealand to specify what matters the Minister might consider.Plainly the Minister might be expected to consider the offending which gave rise tothe original liability to be deported, together with the subsequent offending whichconstituted the breach of the conditions imposed by the Minister. Were he to havedone otherwise, he would have been justly condemned. The proposition the Ministerproceed half-informed as to these matters does not appeal. Nor does the propositionthat, in effect, Mr Ochibulu should have been given some warning about this matterso that he might not mislead the Minister in submissions he filed by making statementsinconsistent with the content of the sentencing notes.[36] If Mr Ochibulu could point on the merits to a clear abuse of power by theMinister, the delay might perhaps be put to one side. But he cannot do so. And so, itcannot be.Application — s 249[37] Section 249 requires leave of the High Court (or of this Court) before a decisionof the Tribunal may be reviewed. In full, it 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.(2) No review proceedings may be brought in any court in respect of anymatter before the Tribunal unless the Tribunal has issued finaldeterminations in respect of the matter.(3) Review proceedings may then only be brought in respect of a decisionor matter described in subsection (1) or (2) if the High Court hasgranted leave to bring the proceedings or, if the High Court hasrefused to do so, the Court of Appeal has granted leave.(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.(5) A decision by the Court of Appeal to refuse leave to bring reviewproceedings in the High Court is final.(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.(8) Nothing in this section limits any other provision of this Act thataffects or restricts the ability to bring review proceedings.Judgment appealed[38] The Judge dealt with a number of submissions on this heading, but we confineourselves here to the primary ground, which became the sole ground before us.[39] After summarising the Tribunal decision and the submissions, and noting the"unfortunate" absence of evidence from the Tribunal as to what ImmigrationNew Zealand files it had before it, the Judge considered she had to proceed on thebasis it was "seriously arguable" that the Tribunal had before it Mr Ochibulu's "fullfile", that is, the complete Immigration New Zealand file, whereas Mr Ochibulu didnot.34[40] Despite that provisional conclusion, the Judge considered no breach of naturaljustice arose here because the statutory framework permitted information asymmetry,so long as the Tribunal met the requirements of s 230, requiring, among other things,disclosure of prejudicial (or potentially prejudicial) material that the Tribunal intendedto take into account.35 The Judge proceeded on the basis the Tribunal was aware ofthat obligation, and the decision contained no suggestion it had not been honoured.36Submissions[41] The argument before us concentrated exclusively on the breach of naturaljustice ground. Mr Ochibulu says a copy of his full immigration file was provided tothe Minister, and that (when eventually it was obtained by him) it (1) contained34 Judgment appealed, above n 2, at [119]–[120].35 At [122] and [127]–[130].36 At [129]–[130].documents he did not have and (2) was partly redacted. He says the Tribunal had thisfile, and that compromised his fair hearing rights.[42] This being an application for leave, Mr Ochibulu submits he can establish acase that is reasonably arguable before the High Court. The proposed judicial reviewproceedings raise the issue of whether it is a breach of natural justice for the Tribunalto have and consider Mr Ochibulu's full file in circumstances where the file had notbeen provided to him or where parts of it have been redacted.Discussion[43] At the hearing, we made it clear that we did not consider it appropriate for theCourt to have to speculate (or take a purely forensic approach) about what the Tribunaldid or did not have before it. We were entitled to look to the Tribunal, the firstrespondent, for clarification, rather than having to grope in the dark. We thereforeissued a minute requiring response from the Tribunal as to the allegation — madeprimarily in an affidavit by Mrs Ochibulu — that the Tribunal had the full file.37[44] In consequence we received an affidavit from Charles Treadwell, Acting Chairof the Tribunal. After setting out the Tribunal's usual procedures, and checks that havebeen made, Mr Treadwell (as he then was) confirms the Tribunal was in possession ofthe usual Ministerial bundle, a copy of which had been sent to Mr Ochibulu's counselon 10 April 2019. The only other document, beyond that bundle and submissions anddocuments served by the parties, was the 2015 sentencing notes, obtained directlyunder s 228 of the Act. These notes were provided to Mr Ochibulu's counsel prior tothe hearing. Mr Treadwell confirms the physical record bears out these assertions.[45] In an affidavit in reply, Mr Ochibulu now says he is not sure if the Tribunal hadthe full file, but if it did, the hearing would be an unfair one because of the particularcontent of that file.[46] We decline to continue to speculate. Mr Treadwell's affidavit is clear, to theeffect that the Tribunal had nothing beyond what was in the parties' joint possession.37 Ochibulu v Immigration and Protection Tribunal CA266/2020, 28 October 2021.The foundation for the allegation of a breach of natural justice, entirely obscure fromthe outset, is now tenuous to the point that the requirements of s 249(6) cannot be met.[47] First, as to s 249(6)(a), the allegation could and should have been advanced byan application for leave to appeal on a point of law.38 Secondly, the factual foundationunderpinning the allegation of a breach of natural justice is now too tenuous for it topass the second gateway, under s 249(6)(b). The absence of a demonstrable factualfoundation means the allegation — barely now an "issue" — is not one which, byreason of its "general or public importance or for any other reason", ought to besubmitted to the High Court for review.[48] While we sympathise with Mrs Ochibulu and her children, the statutoryscheme is clear and must take its course.Result[49] The appeal is dismissed.[50] The application for leave to review is dismissed.[51] The appellant must pay the second respondent costs for a standard appeal on aband A basis with usual disbursements.Solicitors:Vallant Hooker & Partners, Auckland for AppellantCrown Law Office, Wellington for Second Respondent38 Section 245(1). Mr Ochibulu is out of time to appeal under that provision and there is no statutorypower to enlarge.