SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 3181

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 3181 [29 November 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2013-404-003105[2013] NZHC 3181BETWEEN MANJINDER SINGHPlaintiffAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTDefendantHearing: 6 November 2013Appearances: F C Deliu for the PlaintiffR E Savage for the DefendantJudgment: 29 November 2013JUDGMENT OF GILBERT JThis judgment was delivered by me on 29 November 2013 at 4.30 pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] Mr Singh applies for judicial review in respect of two letters, the first written by the Department of Labour and the second by the Ministry of Business, Innovation and Employment. Both letters were written in the course of an investigation into whether Mr Singh gained a residence visa by concealing relevant information. Depending on the outcome of this investigation, a submission may be made to the Minister of Immigration who has power under s 158 of the Immigration Act 2009 to determine whether a residence class visa was procured through fraud, forgery, false or misleading representation, or concealment of relevant information. If the Minister makes such a determination, Mr Singh will be liable for deportation.[2] The defendant contends that the relevant statutory power of decision is vested in the Minister and that he is not yet even seized of the matter. The defendant argues that the letters sent in the course of the investigation do not involve the exercise of a statutory power and are not amenable to review. This judgment deals with this preliminary issue, as directed by Andrews J.1Statutory framework[3] It is helpful to start by considering the statutory context in which the letters were written.[4] Section 58 of the Act relevantly provides:(3) It is also the responsibility of an applicant for a visa to inform theMinister or an immigration officer of any relevant fact, including anymaterial change in circumstances that occurs after the application ismade, if that fact or change in circumstances-(a) may affect the decision on the application; or(b) may affect a decision to grant entry permission in reliance on thevisa for which the application is made.(5) Failure to comply with the obligation set out in subsection (3) amounts toconcealment of relevant information for the purposes of sections 157 and158.1 Minute of Andrews J, 24 July 2013.[5] Section 158 of the Act relevantly provides:158 Deportation liability of residence class visa holder if visa or citizenship obtained or held by fraud, forgery, etc(1) A residence class visa holder is liable for deportation if –(b) the Minister determines that –(i) the person's residence class visa or entry permissionwas procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or(ii) the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation or concealment of relevant information.[6] An adverse determination by the Minister under s 158(1) of the Act may be appealed to the Immigration and Protection Tribunal on the facts pursuant to s 201(1)(a) of the Act or on humanitarian grounds pursuant to s 206(1)(c). Judicial review rights will also be available subject to ss 247 and 249.Background[7] Mr Singh was married in India to Sampuran Kaur, a New Zealand citizen, on 10 September 2003. Mr Singh applied for a residence visa under the Family, Partnership category on 31 March 2004. This was approved on 20 December 2006 after the Department was satisfied, based on Mr Singh's assurances, that he wasliving with Ms Kaur in a genuine and stable marriage.[8] In October 2010, while attempting to sponsor his current partner's applicationfor a New Zealand visa, Mr Singh provided a divorce decree and judgment given by a court in India to show that he had divorced Ms Kaur on 13 February 2008. To obtain this decree, Mr Singh, as the petitioner, was required to prove that he had been continuously living apart from Ms Kaur for at least two years prior to filing his petition on 17 September 2007. The judgment records Mr Singh's sworn statementthat he had been continuously living apart from Ms Kaur since 14 November 2004, she having deserted him on that date.[9] The divorce decree and judgment raised the obvious issue as to whether Mr Singh had breached his obligations under s 58 of the Act in obtaining his residence visa. An analyst in the Resolutions Team at the Department of Labouraccordingly wrote to Mr Singh on 4 April 2012 to advise him of the Department'sconcern and to give him an opportunity to comment. The letter reads as follows:Re: Consideration of whether you are liable for deportationYour case was recently referred to the Resolutions Team to investigate whether you are liable for deportation after gaining residence by withholding relevant information.You gained residence in New Zealand in December 2006 under the Partnership policy based on your claimed relationship with Sampuran Kaur. In October 2010, while attempting to sponsor your current partner Bhupinder Kaur, you have provided a divorce document indicating that you and Sampuran Kaur separated in November 2004.Had Immigration New Zealand (INZ) known about your separation from Sanpuran Kaur at the time your application for residence was under consideration you would not have qualified under the Partnership policy. Partnership policy requires an applicant to be in a genuine and stable relationship with their sponsoring partner. You were not in a genuine and stable relationship with Sampuran Kaur by the time your residence application was finalised.A preliminary assessment of your case has been completed and a deportationliability submission is being prepared for the Minister of Immigration'sconsideration. As you gained residence by fraud, forgery, false or misleading information, or concealment of relevant information, deportation is being considered under the Immigration Act 2009.I now invite you to make submissions and advise whether you are willing to attend an interview. The further submissions and interview are a chance for you to make comment on the concealment of the relevant information and provide details on your current situation and personal circumstances.If you wish to provide submissions and attend an interview please respond by 16 April 2012. Please also advise whether you will require an interpreter at the interview and, if so, for which language. If you do not reply by 16 April 2012 a decision as to whether we should proceed further will be based on the information we currently have on file.If you have any questions or wish to discuss any aspect of this letter, pleasecontact the writer at [10] Mr Deliu replied in a letter dated 11 April 2012 seeking an extension of 20 working days to provide a substantive response. Mr Deliu recommended that theDepartment contact Mr Singh's former wife and obtain the entire divorce file fromthe Indian Court. He cautioned against placing reliance on the judgment suggestingthat it "could simply have made a clerical error as to the date of separation".Significantly, Mr Deliu stopped short of contending that such an error had in fact been made. He further stated that the Indian judgment was not binding "upon the New Zealand justice system" and that Mr Singh could not "responsibly comment"before the Department had completed "due diligence" and "gathered all the evidence".[11] Mr Deliu sent a further letter to the Department of Labour on 21 June 2012contending that there was an "utter lack of evidence" that Mr Singh was not in a genuine and stable relationship with his former wife at the time he obtained hisresidence status and that it would be "unlawful" for the Department to take the matter any further. He said that it was "unnecessary for Mr Singh to attend aninterview".[12] Mr Deliu's letter successfully delayed matters for nearly a year. On 13 May 2013, a technical adviser in the Resolutions Team employed by the Ministry of Business, Innovation & Employment wrote to Mr Deliu as follows:Dear Mr DeliuI refer to your letter dated 21 June 2012, in particular your discussion at paragraphs 33-53 regarding INZ's evidence against Mr Singh, whichsuggests that he separated from his then wife on 14 November 2004.I apologise for the delay in this matter, but it took some time for a verification request to be completed, which I refer to below.You believe this is insufficient evidence to proceed with this case. Yousubmit that relying on the divorce decree alone is "erroneous", apparently based on your assertion at paragraph 50 that the decree "is not the evidencethat is binding upon the New Zealand justice system." With respect, the onlymatter Resolutions is concerned with at the moment is whether there is sufficient evidence for the Minister to make a determination under s158(1)(b), which does not prescribe a standard of proof. This can be contrasted with s202(c), which places the onus on Mr Singh (should he appeal to the IPT assuming an adverse Ministerial decision) to prove, to the civil standard of probabilities, that his residence was not procured through fraud. INZ therefore rejects the presumption of your argument that theevidence would 'bind' the IPT, and in any event (as I suggest above) it is notnecessary for Resolutions to consider such matters in preparing the case for the Minister. You are welcome to make such arguments to the IPT should it come to that.Secondly, you have made much of the incorrect statement by Ms Mehrtens when she referred the case to Resolutions. As a matter of course, Resolutions does not rely on the statements, wording or information contained in any referral template. Upon receipt of any referral, Resolutions conducts a thoroughly independent investigation of the matter, and it is not uncommon for us to close down a case or refer the matter back to the referring branch due to insufficient evidence or incorrect reasoning. In any event, you will note that in our preliminary assessment, we make noreference to Ms Mehrten's statement, and her referral (again, this is standardpractice) will not be enclosed in the file which goes to the Minister.Finally, you believe that the decree may contain a clerical error, and that it isINZ's "obligation to collect all evidence" before coming to any preliminaryconclusions. INZ did not and does not accept your position; given theevidence we hold, it is in fact your client's responsibility to disprove the allegation. We nevertheless did ask INZ's New Delhi branch to obtain thefile from the relevant court. On 21 March 2013, our officers were told by court officials that INZ, as a third party, could not view the file, and that "ifthe decree bears any incorrect information then the responsibility lies withthe concerned party to make the necessary correction(s)." Please refer to myverification request and result (enclosed).Given that the relevant court is in India, I am willing to give your client time to arrange for the retrieval of the file and (if applicable) correction of the record. I would request that you contact me within three weeks of the date of this email to advise what steps your client intends to take in this regard; I am willing to entertain a suggestion at that point as to how long your client needs, and I and management will consider our response to any request for time at that point. If your client refuses to attempt to correct the facts as recorded on the decree, Resolutions will proceed with preparing his case forthe Minister's consideration.I look forward to hearing from you.The proceeding[13] This letter prompted Mr Singh to issue the present proceeding on 10 June 2013. In his statement of claim, Mr Singh characterises the letter dated 4 April 2012 as a "preliminary decision" and the letter dated 13 May 2013 as "the second decision under review". He alleges that the defendant's exercise of statutorypower from the outset of the investigative or inquisitorial process culminating in these decisions was unlawful. The grounds advanced in support of this claim may be summarised as follows:(a) the defendant erred as a matter of law in determining that there was no standard of proof; and/or that the burden of proof was on the plaintiff;and/or in determining that the Indian judgment disposed of the question regarding the actual separation date;(b) the entire basis for the investigation was Mr Singh's statement that he had separated from Ms Kaur in November 2004 but there was either"no evidence" of this or it was "a mistake of fact";(c) the defendant acted unreasonably in that:(i) he failed to take into account relevant considerations such asthe "objective court record in India that would dispel anynotions of who said what and when", the wife's version of events and the material on Mr Singh's immigration file tending to show that he was in a "bona fides relationship current as atDecember 2006";(ii) he took into account as an irrelevant consideration an incomplete record of proceedings; and(iii) no reasonable decision maker "would posit deportation with the paucity of evidence".(d) the defendant breached natural justice by making a recommendation without first hearing from Mr Singh and/or issuing an unreasoned decision;(e) the defendant acted in a "biased fashion with pre-determination"; and(f) the defendant breached statutory obligations under the Immigration Act.[14] Mr Singh seeks various orders, including orders quashing the investigation and the decisions and declaring that in the absence of any new evidence the defendant is not to take any further steps in his investigation.Is the 4 April 2012 letter amenable to judicial review?[15] Despite his description of this letter in the claim as a "preliminary decision",Mr Deliu sensibly conceded at the hearing that it did not involve the exercise of any statutory power of decision. Mr Deliu nevertheless submits that the letter involved the exercise of a statutory power in terms of the s 3 of the Judicature Amendment Act 1972. He relies in particular on the following part of the definition of statutory power:Statutory power means a power or right conferred by or under any Act(e) To make any investigation or enquiry into the rights, powers, privileges, immunities, duties or liabilities of any person.[16] The analyst in the Resolutions Team was not exercising any specific statutory power, such as those contained in part 8 of the Act, when writing to Mr Singh. He did not purport to require Mr Singh to do anything. He was simply giving Mr Singh the opportunity to respond to the concern that had arisen from the divorce decree and judgment that he had supplied.[17] Mr Deliu relies on this Court's decision in Zhao v The New Zealand Law Society2 in contending that the letter was nevertheless written in the exercise of a statutory power. The question in that case was whether judicial review was available in respect of a recommendation by panel members appointed by the Law Society to investigate and report on whether Mr Zhao was a suitable person to practise on his own account. Kós J found that judicial review was available despite the fact that the final decision, which rested with the Board, had not been made:3In this case I am satisfied that the exercise by interviewers (and by members of the Committee) of the power devolved to them to recommend (orwithhold recommendation) the right to practise on one's own account is a reviewable action. First, it is clear that the interviewers' investigative, andtheir and the Committee's recommendatory, powers involve the exercise of astatutory power. It forms a part of the whole power vested in the Society. Secondly, where the interviewers issue a positive recommendation, that is given considerable weight by the Society (whether it be at Branch or national level) in exercising the s 30(1) statutory power of decision. Thirdly,2 Zhao v The New Zealand Law Society[2012] NZHC 2169.3 At [66].the report given by the interviewers on a negative recommendation will be influential in any determination by the Committee, following reference to it. The Committee may indeed make no further enquiries, and exercise the third option of recommending refusal of the application without further reference to the applicant. Fourthly, as Young J observed in the course of theMarlborough Aquaculture decision, even at a preliminary stage a power toinvestigate and recommend may "go off the rails", such that it is necessarythat a court quash the decision. An example given by the Judge was bias. If established at a preliminary stage, that would likely be fatal to all subsequent decision making. It is not necessary in such a case that the applicant for judicial review stay his or her hand until the process plays out to its likely adverse outcome. (Footnotes omitted).[18] Zhao is clearly distinguishable from the present case. Unlike the position inZhao where a highly influential recommendation had already been made, at the time the 4 April 2012 letter was written, the Department had not completed any recommendation or submission to the Minister and was not going to do so until Mr Singh had been given an opportunity to respond. Mr Deliu acknowledges that this was appropriate. He acknowledges that if this letter had not been sent, he would be complaining that the defendant had failed to give Mr Singh the opportunity to respond to the concern raised.[19] It became apparent at the hearing that Mr Deliu places reliance on this letter only to the extent that it sets the background for the 13 May 2013 letter, which is the main focus of Mr Singh's claim. Mr Singh has failed to identify any basis on which the 4 April 2012 letter could be amenable to review.Is the letter dated 13 May 2013 amenable to review?[20] Mr Deliu acknowledges that this letter also did not involve the exercise of a statutory power of decision, contrary to the allegation in the statement of claim.However, he describes it as "bordering on a decision" and submits that it marks the point where the investigation went "off the rails", adopting an expression used byRonald Young J in Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries.4[21] Mr Deliu submits that the defendant made the following reviewable errors in this letter:4 Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC), at [15].(a) he misapplied the law in concluding that there was no standard of proof, or that the burden of proof had shifted to Mr Singh, or that theIndian judgment was binding "on New Zealand law";(b) he incorrectly considered that there was a basis for the contention that Mr Singh separated from his first wife prior to obtaining residence status;(c) the defendant failed to take into account the actual courtdocumentation from India, his former wife's version of events and the other materials on the immigration file supporting Mr Singh's position and it was "patently wrong for an administrative agency to selectivelyrely on one piece of rumour, gossip, hearsay or innuendo and disregard all other contradictory evidence to then reach a certainconclusion";(d) the defendant erred in taking into account only a partial and incomplete record from India and asking Mr Singh to undertake his investigative work for him;(e) the defendant acted unreasonably in investigating the matter because there was no proper basis to do so;(f) the defendant breached natural justice in making recommendations without hearing from Mr Singh;(g) the defendant acted with bias by pre-determining the issue; and(h) the defendant breached his statutory duty in the manner in which his investigation was opened and conducted.[22] The critical factual finding for the purposes of the Indian divorce judgment is the date of separation. Mr Singh, as the petitioner seeking a divorce decree, was required to establish that he had been continuously living apart for at least two years prior to the date of presentation of his petition on 17 September 2007. The IndianCourt's finding that he had been living continuously apart since 14 November 2004 was based on Mr Singh's sworn evidence to that effect.[23] Mr Deliu's description of the judgment, which records Mr Singh's sworn statement, as "rumour, gossip" or "innuendo", is patently absurd. Equally absurd isMr Deliu's suggestion that the judgment, which was given to the defendant byMr Singh to prove his divorce, provides no basis for an investigation into whether Mr Singh separated from his former wife prior to obtaining residence status. At no stage has Mr Singh stated, directly or through Mr Deliu, that the judgment fails torecord accurately Mr Singh's evidence that he has been living continuously apartfrom his former wife since 14 November 2004.[24] The evidence supplied by Mr Singh in the form of the divorce decree and judgment is highly probative of the separation date. Having been denied access to the Family Court file in India, which Mr Deliu would no doubt have anticipated, the defendant invited Mr Singh to obtain the relevant records to see whether there wasanything in Mr Deliu's suggestion of a possible error concerning the date. Thepurpose of the 13 May 2013 letter was to give Mr Singh a further opportunity to provide evidence to substantiate this, before any submission was made to the Minister. Like the letter dated 4 April 2012, there can be nothing inappropriate in the defendant giving Mr Singh the opportunity to provide further evidence if he wishes to do so before any submission is made to the Minister for his consideration.[25] The investigation is still in the fact gathering stage. There is no basis for Mr Deliu's contention that the investigation has "gone off the rails" such thatintervention by way of judicial review could be justified despite the fact that no recommendation has yet been made, let alone any decision based on it. I cannot see any basis upon which the 13 May 2013 letter could be amendable to judicial review.Result[26] I determine that neither of the letters is amenable to judicial review. The proceeding is accordingly struck out.[27] The defendant is entitled to costs. If there is any disagreement as to quantum, a memorandum should be filed and served by the defendant by 20 December 2013. Any memorandum in reply should be filed and served by 31 January 2014.__________________________M A Gilbert J