MACHIDA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2019] NZHC 1621

MACHIDA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION ANDEMPLOYMENT [2019] NZHC 1621 [12 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-854[2019] NZHC 1621UNDER The Judicial Review Procedure Act 2016 andthe Judicature Amendment Act 1972IN THE MATTER of a decision under the Immigration Act2009BETWEEN KOJI MACHIDAPlaintiffAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 11 July 2019Appearances: G Aulakh for PlaintiffC Paterson and E Mok for RespondentJudgment: 12 July 2019JUDGMENT OF LANG J[on application for interim relief]This judgment was delivered by me on 12 July 2019 at 2.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Machida arrived in New Zealand as a visitor in 2003. His wife joined himin November 2005. Since that time Mr and Mrs Machida have lived and worked inNew Zealand under a variety of permits and work visas. Mr Machida filed the presentproceeding after Immigration New Zealand (INZ) declined to grant their request for anew work visa on 9 April 2019.[2] A substantive fixture has been allocated for 16 September 2019. Mr Machidanow seeks interim relief pending determination of his application for judicial reviewof the decision declining to issue the work visa.Background[3] By 20 March 2018 Mr and Machida were liable for deportation because theirlatest requests for a work visa had been declined. They then lodged appeals againsttheir liability for deportation on humanitarian grounds with the Immigration ProtectionTribunal (IPT). On 1 August 2018, the IPT declined these appeals on the basis thatMr and Mrs Machida could not point to exceptional circumstances of a humanitariannature. The IPT ordered that they were to be granted work visas for a four monthperiod under s 216 of the Immigration Act 2009 so they could finalise their affairsbefore departing from New Zealand. These visas expired on 27 December 2018.[4] Prior to the expiry of the work visas Mr Machida lodged an application for afurther work visa. This was declined on 9 April 2019. By that date Mr and MrsMachida had been unlawfully in New Zealand since 27 December 2018, being the dateon which the visas granted by the IPT had expired.[5] Mr Machida filed this proceeding on 7 May 2019. He seeks an order settingaside the decision declining to grant him and his wife a work visa and orders requiringthe immigration authorities to reconsider their application.The application for interim relief[6] INZ has now given an undertaking that it will not take any further steps todeport Mr and Mrs Machida until the outcome of the present proceeding is known.Mr and Mrs Machida are not satisfied with this arrangement. Mr Machida asks theCourt to make orders under s 15(2)(c) of the Judicial Review Procedure Act 2016 (theJRPA), which relevantly provides as follows:15 Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders—(c) declaring that any licence that has been revoked or suspendedin the exercise of the statutory power, or that will expire by thepassing of time before the final determination of theapplication, continues and, where necessary, that it be deemedto have continued in force.[7] Section 4 of the JRPA defines the term "licence" as follows:licence includes any permit, warrant, authorisation, registration, certificate,approval, or similar form of authority required by law[8] Mr Aulakh submits that s 15(2)(c) permits the Court to make an order that thevisa issued by the IPT is to remain in force pending determination of the presentproceeding. He seeks an order in those terms to protect his clients' position until thepresent proceeding has been finally determined.Decision[9] I proceed for present purposes on the basis that the definition of "licence" ins 4 of the JRPA is sufficiently wide to include visas and other types of authority toremain in New Zealand that may be issued under the Immigration Act 2009.[10] I do not consider, however, that s 15(2)(c) of the JRPA provides the Court withthe jurisdiction to make the order Mr Machida seeks. The visa that the IPT issued wasnot "revoked or suspended in the exercise of any statutory power". Rather, it expiredon 27 December 2018 because it came to the end of the term for which it had beenissued. The only other ground on which the Court may make an interim orderextending a licence is where the licence in question "will expire by the passing of timebefore the final determination of the application for judicial review is made". Thelicence in the present case had already expired approximately five months before thepresent proceeding was filed. Section 15(2)(c) does not give the Court the power toextend a licence or visa that has already expired. I therefore do not consider the sectionpermits the Court to make the order Mr Machida seeks.[11] Even if jurisdiction had existed, however, I would not have made the orderMr Machido seeks. As the wording of s 15(1) makes clear, interim orders may bemade where they are necessary "to preserve the position of the applicant". I take thisas meaning an order must be necessary to maintain the existing state of affairs.[12] Where a licence is in force when a proceeding is filed, s 15(2)(c) permits aninterim order to be made to preserve that position if the licence will expire before theproceeding is determined. Any order purporting to declare that an expired visa is tocontinue to remain in force would go well beyond preserving the position of theapplicant. It would place the applicant in a much better position than he or she was inbefore the proceeding was filed. It would therefore produce a result moreadvantageous to the applicant than the section appears to contemplate.[13] In addition, Mr Machido's position is now adequately protected or preservedby the undertaking given by INZ. This prevents any further steps from being taken todeport Mr and Mrs Machido until the present proceeding has been finally determined.The undertaking therefore provides the applicant with the same level of comfort as aninterim order would do.Result[14] The application for interim relief is dismissed.Costs[15] At this stage I reserve costs on the present application. They are to be fixedwhen the substantive application has been determined.Lang JSolicitors:Gurbrinder Aulakh, AucklandCrown Solicitor, Auckland