AFIMEIMOUNGA V THE MINISTER OF IMMIGRATION HC AK CIV 2009-404-1227

AFIMEIMOUNGA V THE MINISTER OF IMMIGRATION HC AK CIV 2009-404-1227 23 March 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-1227IN THE MATTER OF the Judicature Amendment Act 1972 AND IN THE MATTER OF s 146A of the Immigration Act 1987 BETWEEN MAFUA I VAHA AFIMEIMOUNGA Applicant AND THE MINISTER OF IMMIGRATION Respondent Hearing: 23 March 2009 Appearances: M W Clark for Applicant A R Longdill for Respondent Judgment: 23 March 2009JUDGMENT OF KEANE JSolicitors: Vallant Hooker & Partners, Auckland Crown Solicitor, Auckland[1] On 24 September 2008 the Minister of Immigration made an order, under s 91(1)(b) of the Immigration Act 1987, deporting to Tonga Mafua Afimeimounga, on the ground that he had committed three offences, attracting maximum sentences of 12 months or more, within five years of having been granted a resident's permit; three offences of driving while disqualified that were third or subsequent offences. [2] Mr Afimeimounga, aged 22, obtained his resident's permit on 19 April 2004. He has, however, lived in New Zealand for most of his life. He arrived in 1994 with his mother on a visitor's permit and his status was only regularised in 2004. He married another Tongan national, a New Zealand resident, in 2004. They have four children, still very young, all New Zealand citizens. [3] This is the second deportation order to which Mr Afimeimounga has been made subject. On 5 September 2004 the then Minister signed a deportation order, again on the basis of his offending. On that occasion the offences involved violence, as I understand it, against Mr Afimeimounga's wife and other cognate offending. He appealed that decision to the Deportation Review Tribunal. In February 2008, before the Tribunal gave its decision, he left for Tonga and, when he applied to return shortly after, was granted a returning resident's visa. The effect was that the Tribunal on 8 August 2008 found that it had no longer any jurisdiction. The deportation order was no longer in force. [4] Within a short time afterwards the present deportation order was made on the basis of the later offending and it will not suffer the same accident of history. If this present order stands its effect will be that Mr Afimeimounga and his young family will part. His wife and their children, she has confirmed, will remain in New Zealand. [5] As to this more recent order, Mr Afimeimounga first attempted to appeal to the Deportation Review Tribunal but did so out of time. He now seeks judicial review of the Minister's decision and once again is out of time. He applies therefore, under s 146A(1) for leave to apply. That application is opposed. The issue is whether Mr Afimeimounga can show 'special circumstances'.Statutory regime[6] The discretion the Minister exercised under s 91(1)(b) is generally expressed. The Minister 'may' make such an order in respect of any holder of a resident's permit, subject to s 93, 93A and 112, none of which are in issue, if the holder is: convicted whether in New Zealand or not of two offences committed within five years after that person is first granted a resident's permit, each of those offences being an offence for which the Court has power to impose imprisonment for a term of 12 months or more.[7] The factors that the Minister may take into account are left at large. But the right of appeal conferred says something of their potential range. Where an appeal is lodged with the Tribunal, within 21 days under s 104, the Tribunal may under s 105(1) quash the order if it is satisfied that it would be 'unjust or unduly harsh' to give it effect and that it would not be 'contrary to the public interest', to allow the one appealing to remain. [8] That ability is to be exercised against a series of mandatory factors, the first being any submission by any victim (subs 1A); and then under subs (2), in considering whether it would be 'unjust or unduly harsh' to deport, the Tribunal must have regard to:(a) The appellant's age. (b) The length of the period during which the appellant has been in New Zealand lawfully. (c) The appellant's personal and domestic circumstances. (d) The appellant's work record. (e) The nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose. (f) The nature of any other offences of which the appellant has been convicted. (g) The interests of the appellant's family. (h) Such other matters as the Tribunal considers relevant.[9] If those matters lie within the Tribunal's jurisdiction one would expect them to be factors the Minister might take into account should he or she choose. Or, to put that another way, if they range more widely than the Minister is able to under s 91 that would not merely be incongruous, one would expect that to be said explicitly. I take those factors as fairly illustrative of what the Minister may need to know about when considering whether deportation is appropriate, though not in any mandatory sense. [10] The right to the alternative remedy, review, is not conferred explicitly and does not need to be. It is assumed. Section 146A(1) merely limits its use by imposing the limitation of time from which Mr Afimeimounga now seeks to be excused:Any review proceedings in respect of a statutory power of decision arising out of or under this Act may be commenced within 3 months after the date of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.[11] In Rajan v Minister of Immigration [2004] NZAR 615 (CA), Glazebrook J, speaking for the Court as a whole, said at para [24]:The term 'special circumstances' is a commonly used phrase in the New Zealand statute book. It requires circumstances that are uncommon, not common place, out of the ordinary, abnormal Whether there are special circumstances justifying an extension of time must be assessed against the context of the legislation The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s 146A time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long.[12] The merit of the application proposed, should leave be given, Glazebrook J also said for the Court at paras [28] – [30] can be relevant. An exhaustive analysis is not called for and may not be right, especially in the absence of full argument. Section 146A would then be rendered nugatory. A brief examination can be called for. A strong excuse for delay might be offset by a meritless substantive application. In a marginal case, however, an application with merit might tip the balance. As Glazebrook J said at para [30]: Where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time would be justified. We doubt,however, that even very strong merits would ever justify an extension if, [as here] there is no proper excuse for the delay in filing.[13] In that case the Court of Appeal held that a delay of one month was not negligible. It represented one third of the time allowed for the filing of an application for review. The Court also found that the merits of the proposed application were weak. It upheld a decision to decline leave. In the cases since s 146A(1) has proved to be a narrow gate. [14] Decisions not to apply for review until after an appeal or direct recourse to the Minister has failed have not been considered 'special circumstances'. To the contrary, they have been considered tactical choices, certainly where the applicant has acted on advice: Jaing v Chief Executive Officer of Department of Labour (HC AK, CIV 2005-404-000967, 28 April 2005), Harrison J; Fang v Removal Review Authority (HC WN, CIV 2005-485-001257, 5 August 2005), McKenzie J; Yu & Cha v Chief Executive Department of Labour (HC AK, CIV 2006-404-5702, 13 November 2006), Winkelmann J. [15] In other cases a lack of merit in the substantive application proposed has proved equally fatal even in cases of very short delay: MR v Refugee Status Appeals Authority; MR v Removal Review Authority (HC AK, CIV 2007-404-005-791, 24 April 2008), Wylie J. The time limit set has been given literal effect for the purpose for which it was set in place, to prevent appeal and review rights becoming the tools of delay: Xie v Minister of Immigration (HC AK, CIV 2008-404-005-791, 24 April 2008), Priestley J. [16] There have been occasional exceptions, it appears, most notably that made inQiong v Minister of Immigration (HC AK, CIV 2005-404-5202, 18 July 2006), Asher J. There, as here, the delay was three months but that was held to be of little significance. The applicant had not known of the decision at the time when time started to run. [17] A distinct issue on this application is the effect of an absence of comment in the deportation consideration on the effect that deportation would have on Mr Afimeimounga's children. The decision relied on is one made on review of adecision of the Tribunal: Deeb v Deportation Review Tribunal & Minister of Immigration (HC AK, CIV 2006-404-003923, 3 May 2007), Harrison J. There is no decision of which I am aware under s 146A engaging this issue. The principal consideration has always been first, and sometimes exclusively, the delay and the reason for it. There may well often be the need for comment about the effect on children. In this case, as I shall say, I do not think it pivotal.Reason for delay[18] The Minister's order, dated 24 September 2008, was served on Mr Afimeimounga on 2 October 2008 shortly after he had been released from prison, having served part of the five month term imposed for the three offences that resulted in the order. He had then 21 days within which to appeal to the Deportation Review Authority or three months to apply for review. He had, of course, the right to do both at once. [19] The delay Mr Afimeimounga must account for in applying for review is significant. He has exceeded the time allowed, three months, by almost an equivalent time. His present application was brought just two weeks short of three months after the limitation period had expired. His immediate answer to that is that, acting without advice, he elected to appeal and that proved problematic.Sequence of events[20] On 23 October 2008, the last day for the bringing of an appeal, having been unable to engage a lawyer, Mr Afimeimounga filed his appeal himself by facsimile, but did so to the wrong address. He did not, as the order served directed, lodge his appeal with the Tribunal. He sent it to the Department of Labour, Wellington. He attributes that error to having been given the wrong facsimile number by a Departmental officer. It was only after he was told on 12 November that the Tribunal had not received his appeal that he filed it correctly. [21] On 27 November 2008 the Tribunal invited submissions by 18 December 2008 as to the validity of the notice of appeal. Mr Afimeimounga then engaged hispresent solicitors. He did so on 5 December 2008. In January 2009 they filed submissions with the Tribunal. The Tribunal issued its decision on 5 February 2009. It held that the appeal had been brought out of time and that it had no jurisdiction. [22] On 11 February 2009 Mr Afimeimounga's solicitors asked the Department of Labour to supply the relevant papers. On 12 February they were sent Mr Afimeimounga's interview on 25 August 2008 and the critical document, the 'deportation consideration', dated 23 September 2008, on which the Minister relied in making the order. The solicitors received these on 16 February 2009. [23] On 26 February 2009 the Department sent the balance sought, which included those concerning the earlier deportation order. The solicitors received these on 2 March 2009. Some documents were withheld on the basis of legal privilege. As to that no issue arises. The present application was filed, as I have said, on 9 March 2009.Conclusions[24] The first difficulty Mr Afimeimounga faces is that, even if he cannot be expected to have understood the intricacies of the appeal and review process, despite the fact that he had represented himself on the first deportation, he did engage solicitors. As from 5 December 2008, when he did that, he must be deemed to have elected on advice to hold off pursuing review until after his appeal. That decision does not assist him now. [25] Though that decision might have been dictated by practicalities concerning legal aid, as to which the papers are silent, Mr Afimeimounga did have the ability on 5 May 2008 to apply within time. He had until 25 December. He was already on notice from the Tribunal that there was an issue as to the validity of his appeal. He could certainly have asked immediately for the documents applied for on 11 February 2009. They would not just have assisted him on the appeal. They would have armed him immediately to pursue review. [26] Even if, however, one were to allow in Mr Afimeimounga's favour the timehe allowed to pass while he awaited the decision of the Tribunal, and that was not given until 5 February 2009, he took an inexplicable time to apply after that. He obtained on 16 February 2009 the critical document, essential to the proceeding he wishes to bring, the deportation consideration. He did not make this application for a further three weeks. [27] That three week period set against the time that had passed before, when contrasted with the three month period allowed under s 146A, must be considered almost certainly fatal. Such a delay that could only be excused, conceivably, in a case where the proposed proceeding has the strongest merit and perhaps, as the Court of Appeal said in Rajan, not even then. This is not a case in that category.Merit of application[28] Mr Afimeimounga wishes to contend firstly that the deportation consideration ought not to have detailed his previous convictions and to that extent involved an error of law. It ought only to have contained the three convictions and sentences imposed on 3 July 2008 that entitled the Minister to deport. His second proposed cause of action depends on an equivalent error on the Minister's part in taking into account conceivably all convictions, not just those critical. [29] The difficulty those two grounds suffer from, it seems to me however, is as I have said, that the Minister is accorded the widest discretion under s 91(1)(b). He is not obliged to take any particular factor into account. The factors that he may take into account are equally at large. And s 105, conferring the right of appeal, does illustrate, as I have said, what the Minister could conceivably take into account. It distinguishes between convictions that entitle him to deport and other convictions. Both species can be relevant. [30] The third cause of action in unreasonableness, that the Minister failed to take into account that Mr Afimeimounga has lived in New Zealand since November 2004 and held permanent residence since April 2004, that his wife is a permanent resident and that his four children are all New Zealand citizens, one of whom suffers ongoing health issues, that his wider family live permanently in New Zealand, all culminatein the theme that the Minister's decision was unjust or unduly harsh. Whether such a decision could be described as unreasonable in the strict sense called for, may be another thing. [31] On this appeal the argument has been mounted in a different way, relying on the Deeb case. The deportation consideration, it is now contended, did not equip the Minister to assess reasonably, or at all, the effect that the decision to deport would have on Mr Afimeimounga's wife and four children, one of whom, as his wife says in her affidavit, suffers a special health need. She was born three months premature, remained in hospital for six months and frequently becomes unwell and can require hospital care. [32] On the reasoning in Rajan even that might not be sufficient to tip the balance. But the Minister was equipped with the deportation consideration resulting in the 2005 order and the basis for that order was, in part at least, violent offending against Mr Afimeimounga's wife. His convictions as a whole also suggest that he has been given to violence, not simply against her but also his children. That appears to have ceased in 2007. This question remains: if Mr Afimeimounga were to pursue this present ground, how well he would fare? This ground too cannot be said to be strong.Conclusion[33] The application will be declined. The issue as to when Mr Afimeimounga is to leave the country is not uncomplicated. He faces trial in the Manukau District Court at the end of May for assault with a weapon and intentional damage. It may well be that despite the decision I have given, there will be no immediate interest in acting on the order. It may be that the trial will be given priority. Should any further order be required, and be open as a matter of jurisdiction, counsel are able, of course, to apply. _____________ P.J. Keane J