SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 2471

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2021] NZHC 2471 [20 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-000754[2021] NZHC 2471UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review underPart 1 of the Judicial Review Procedure Act2016AND IN THE MATTER of a decision made under section 157 of theImmigration Act 2009BETWEEN MANPREET SINGHApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 20 September 2021 (by VMR)Appearances: R J Hooker for ApplicantM J Mortimer-Wang and S Perera for RespondentJudgment: 20 September 2021Reasons: 20 September 2021REASONS FOR JUDGMENT OF VENNING JAPPLICATION FOR REHEARING/ADJOURNMENTThis judgment was delivered by me on 20 September 2021 at 4.30 pm, pursuant to Rule 11.5 of theHigh Court Rules.Registrar/Deputy RegistrarDateSolicitors: Vallant Hooker & Partners, AucklandCrown Law Office, WellingtonIntroduction[1] The applicant Mr Singh faces deportation from New Zealand. He has broughtjudicial review proceedings seeking to review the decision to issue him with adeportation notice. The judicial review hearing is scheduled for hearing on 29September 2021.[2] In a decision delivered on 9 September 2021 Moore J dismissed an applicationby Mr Singh to vacate the fixture.1 Mr Singh asks this Court to review that decisionand to rehear the application.Orders/directions[3] At the conclusion of the hearing this morning I advised counsel the applicationwas in part successful. I granted leave to amend the claim if leave was necessary andadjourned the fixture date from 29 September to 7 October 2021.[4] I also made amended timetable directions as follows:(a) the respondent is to file and serve a statement of defence to the amendedclaim, which is already before the Court, by 24 September 2021;(b) by the same date, 24 September 2021, the respondent is to file and serveany affidavit evidence;(c) the applicant is to file and serve any affidavit evidence in reply and hissubmissions in support of the applicant's substantive case by 1 October2021;(d) the respondent is to file and serve the respondent's submissions inresponse by 5 October 2021;1 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC2349.(e) the substantive application for judicial review will be heard on 7October 2021 at 10.00 am.Costs[5] I reserved the issue of costs. Even though the applicant had succeeded in part,I reserved costs to follow the outcome as the amendment to the timetable wasprincipally because of the applicant's failure to comply with existing timetabledirections.[6] I advised counsel that my reasons would issue later. These are the reasons.Background[7] Mr Singh is a temporary entry class visa holder. He was initially granted astudent visa. Later he was granted a temporary work visa. As such he is subject tothe provisions of s 157 of the Immigration Act 2009. In particular, he is liable fordeportation if the Minister or his or her delegate considers there is sufficient reasonfor deportation. Sufficient reason under s 157(5) includes, but is not limited to,conviction for a criminal offence.[8] In June 2020 Mr Singh was convicted for a drink driving offence. Theimmigration authorities served a deportation notice on him on 27 July 2020. Mr Singhchallenged the decision. The decision to issue the deportation notice was upheld by aduly authorised immigration officer in a decision dated 14 August 2020. Mr Singhthen issued judicial review proceedings.[9] Those proceedings were resolved by agreement on the basis that the defendantwould reconsider the matter afresh.[10] On 15 March 2021 a different immigration officer determined that Mr Singh'sdeportation should proceed. On 21 April 2021 Mr Singh then issued these furtherjudicial review proceedings.[11] On 8 July 2021 Lang J declined an application Mr Singh had made fordiscovery.2 On the previous day, Lang J had issued a minute allocating the fixture forthe judicial review proceedings on 29 September 2021. He also made timetabledirections. Lang J had directed that affidavits in support of the application were to befiled by 7 August 2021, and those in opposition by 21 August 2021. Reply affidavitswere to be filed by 28 August 2021. Submissions in support and in opposition wereto be filed by 15 and 22 September 2021 respectively.[12] Instead of complying with the timetable directions, Mr Singh then applied, on30 July 2021, for leave to appeal Lang J's decision declining to make the discoveryorders. Lang J declined that application.[13] On 4 August 2021 Mr Singh sought to vacate the fixture scheduled for 29September 2021. On 17 August 2021, Lang J declined to vacate the fixture.[14] On 1 September 2021 Mr Singh then filed an application, again seeking tovacate the fixture. On 9 September 2021 Moore J delivered an on the papers judgmentdeclining Mr Singh's application to vacate the fixture.3[15] On 13 September 2021, Mr Hooker then filed a further application on behalfof Mr Singh, seeking a rehearing of the application to vacate the fixture. He submittedthat the application should be considered by a different judge. On 15 September 2021Moore J directed that the application for rehearing was to be set down and heard beforea different judge. I have conducted that rehearing and heard submissions from MrHooker and from counsel, Mr Mortimer-Wang and Ms Perera, for the respondent, whoopposes the application.Jurisdiction[16] The application for rehearing is made under the High Court Rules 2016, r 7.49.Rule 7.49 provides that a party affected by an interlocutory order may apply to theCourt to vary or rescind the order if they consider the order or decision to be wrong.2 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC1695.3 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 1.Mr Singh has brought his application within the time required under rule 7.49(3)(b).Further, in his minute of 15 September Moore J directed the application be heard byanother judge.4 If satisfied that the order or decision is wrong, I have jurisdiction tovary or rescind the decision.5[17] There are two preliminary points. Rule 7.52 provides that a party who fails onan interlocutory application must not apply again for the same or a similar orderwithout first obtaining the leave of a judge. Leave may only be granted in specialcircumstances. Although Mr Singh's first application to vacate the fixture was madeby memorandum it was treated by the Court as an application and Lang J delivered adecision on it. In doing so, the Judge treated the request for the adjournment as aformal application to vacate the fixture. The application before Moore J waseffectively Mr Singh's second application to vacate the fixture. It was made withoutleave being obtained under r 7.52. On that basis, it is arguable that there was nojurisdiction to bring the second application which was dismissed by Moore J.[18] However, as the respondent did not take the point and engaged with theapplication, I propose to deal with the present application on its merits rather thandismiss it on a jurisdictional point.[19] The second point is the statutory context of this application. Mr Singh'sapplication to vacate the fixture is to be considered in the context of Parliament'sintention as expressed in the provisions of the Immigration Act. Section 247 of theImmigration Act provides a strict time limit for commencing judicial reviewproceedings. Section 250(b) directs the Court to hear and determine an applicationfor review (such as Mr Singh's) as if granted a priority fixture. Parliament's intent isclear. It is that applications for judicial review under the Immigration Act will beafforded priority and heard promptly. Mr Singh's application for adjournment is to beconsidered in that context.4 HCR 7.49(5).5 HCR 7.49(6).Application[20] In support of the application for rehearing Mr Hooker raised several points.They can be summarised under three broad heads as:(a) Moore J was incorrect to rule that leave was required to file an amendedstatement of claim and to decline leave to file it. If the amended claimis accepted for filing it will need to be responded to. There will not besufficient time to address the consequential pleading and evidentialissues before the scheduled fixture.(b) Mr Singh intends to seek leave to appeal Lang J's ruling dismissing hisapplication for discovery. The substantive fixture should not proceeduntil that appeal is heard.(c) The respondent disclosed its full file on 17 July 2021. The Aucklandlockdown has prevented Mr Singh, who is an essential worker, frompreparing his affidavit. He says he does not have the skills or ability toconsider the extensive material disclosed by the respondent with hiscounsel. Mr Singh filed two affidavits in support of his applicationwhich was dismissed by Moore J and a further affidavit in support ofthis application in which he sets out his position and his response to thatjudgment. Mr Hooker submits the Judge was wrong to dismiss thepractical difficulties Mr Singh faced. It was Mr Singh's fundamentalright to properly meet and discuss his case with counsel.The proposed amended pleading[21] Like Moore J I deal first with the issue of the proposed amended statement ofclaim. The original statement of claim in this proceeding challenged the decision of15 March 2021 that the deportation was to continue. It alleged error of law; that thedecision maker failed to take account of relevant considerations and consideredirrelevant considerations; and that the decision was unreasonable. All are wellunderstood as grounds for judicial review.[22] In the proposed amended statement of claim Mr Singh seeks to add anadditional cause of action. He alleges that the respondent breached the terms uponwhich the first proceedings were settled. He says that the new cause of action wasonly known to the applicant after disclosure of the Immigration New Zealand file on17 July 2021 and pleads the settlement agreement was:[t]hat the decision under s157 would be made by a different IO [ImmigrationOfficer] than had made the decision of 14 August 2020. The decision wouldbe made by a person with no prior involvement in the Applicant's case at adifferent branch to the one that handled the decision dated 14 August 2020.The new decision maker would be given the information [Mr Singh] originallysubmitted under s 157(2), but [Mr Singh] would be able to submit anyupdating information and/or submissions within 7 days of the court directingreconsideration.[23] Mr Singh alleges that in breach of the agreement the Immigration Officer hadthe police file before him and considered and was also influenced by material from thefirst application. He seeks a declaration that the decision of 15 March 2021 was madein breach of the settlement agreement and an order setting the decision.[24] The respondent denies that breach and has attached emails to his memorandumin opposition to the current application which confirm the Immigration Officer wasdirected to confine his consideration to the information provided to Immigration NewZealand for the GRR (good reasons review) and any updating information provided tohim. He was directed to exclude from his consideration the information in relation tothe previous decision.[25] Moore J took the view that r 7.7 of the HCR applied and that leave was requiredfor the amended claim to be filed as the date for close of pleadings had passed.6 TheJudge was not inclined to exercise his discretion to grant leave. Moore J consideredthat there was nothing to suggest that the Immigration Officer had acted otherwisethan in accordance with the direction to consider the material which pre-dated the firstdecision. Moore J also considered that, even if leave were granted, the respondentwould not need very much time to respond so there would be no need to vacate thefixture even if leave had been granted.6 HCR 7.7.[26] In support of the current application Mr Hooker has submitted the rules relatingto close of pleading do not apply to judicial review proceedings. He referred the Courtto a decision of Cooke J in Ngāti Tama ki Te Waipounamu Trust v Tasman DistrictCouncil where the Judge observed:7[17] Under s 9(7) of the Judicature Amendment Act 1972, anapplication for judicial review was to be "in accordance with rules of Court",which was sometimes taken to be a reference to the High Court Rules intotality. Under the Judicial Review Procedure Act, it may be that not all HighCourt Rules have automatic application. The Judicial Review Procedure Actappears to say more clearly which rules apply. In particular, s 8(2) of theJudicial Review Procedure Act applies Part 5 of the High Court Rules inrelation to the commencement and filing of an application for judicial review,and s 10(3) provides Part 5 applies to the filing of a defence. There is noequivalent of s 9(7) of the Judicature Amendment Act to brings in all the otherrules. Questions of procedure are regulated by the case managementconference contemplated by s 13, which encompasses the orders that the Courtcan make under s 14(1). [27] Part 30 of the HCR and particularly r 30.3 confirms an application for judicialreview is to be commenced by statement of claim and notice of proceeding. Section13 of the Judicial Review Procedure Act 2016 provides for case managementconferences within such proceedings. Those provisions do not necessarily precludethe operation of the other High Court Rules. Their purpose has been said to confirmthe desired nature of judicial review as "a relatively simple, untechnical and promptapproach".8[28] Cooke J made the same observation shortly after the paragraph Mr Hookerrelies on. He said:[18] Whilst it is not clear that this was a deliberate change, the authors ofMcGechan on Procedure have noted it, stating that the provisions of the Actwould be expected to prevail over the High Court Rules if there was a conflict.[8] This interpretation means that the relevant High Court Rules may apply,but subject to the Court's control under ss 13 and 14.[19] This approach seems to me to be the preferable one. It is consistentwith the general approach to judicial review procedure, and with the viewexpressed in earlier Court of Appeal decisions that the former s 10 (now ss13 and 14) was to some extent intended to be a procedural code for judicialreview. It allows judicial review proceeding to be managed in the appropriate7 Ngāti Tama ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166.8 New Zealand Institute of Chartered Accountants v Chartered Institute of ManagementAccountants [2015] NZHC 818, [2015] 3 NZLR 692.way given what the case involves. The control is important to achieving the"simple, untechnical and prompt" approach to review.[29] The short point is that the intent of the legislation and rules is that judicialreview is to be a relatively simple process. Procedural complexities which can bedevilan ordinary civil proceeding should be avoided. Unfortunately that objective has notbeen met in the present case. In my judgment, the general High Court Rules will apply,but subject to any necessary amendments to meet the need for simplicity of procedurein judicial review proceedings. It follows there is no reason why the requirement forleave to take a further step after the setting down date should not also apply to judicialreview proceedings.[30] However, it is unnecessary to make a formal ruling on the point as in this casethe matter can be dealt with practically. The amended pleading raises a short pointwhich Mr Mortimer-Wang confirmed can be responded to shortly. For that reason Igrant leave to the applicant to file the amended claim on terms. The terms arecompliance with the timetable order of the Court.[31] I then address the substantive application which is for vacation of the fixture.The discovery issue[32] Mr Hooker has now confirmed that an application has been made to the Courtof Appeal for leave to appeal the decision of Lang J regarding discovery.9[33] I do not consider that application for leave to appeal to be a reason to adjournthe substantive fixture scheduled for hearing in this Court. Leave may or may not begranted by the Court of Appeal. The requirement for leave is important. Leave willonly be granted where the significance of the arguable error of fact or law isimportant.10 The intent behind the amendment to the Senior Courts Act 2016 and theinclusion of the requirement for leave was to avoid unnecessary delays in the progressof substantive proceedings. Such reasoning is a fortiori in the case of judicial reviewproceedings.9 Apparently on Sunday, 19 September 2021.10 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].[34] Further, Mr Hooker is under a misapprehension when he submits that Lang Jaccepted that he had applied the incorrect legal test. As Mr Mortimer-Wang submitted,Lang J's decision is clear in its terms. In declining leave to appeal the Judge stated:11I do not see how it can seriously be argued that I applied the wrong test, orreached the wrong decision, when the ultimate reason for the application beingdeclined was lack of relevance.That was not an acknowledgement by the Judge that he had applied the wrong test asMr Hooker suggested.[35] Mr Hooker and the applicant place emphasis on the issue of the phrase GRRwhich is now understood to refer to a good reasons review. But the applicant has beenaware of that for some time. As Mr Treadaway deposed in his affidavit of 24 June2021:I understand Mr Singh is seeking judicial review of a decision made by animmigration officer dated 15 March 2021, determining that Mr Singh'sdeportation liability remains. This type of decision is commonly referred toas a "good reasons review" or GRR.[36] The statutory language is "sufficient reason". The consideration requiredunder s 157(2) of the Immigration Act inevitably requires consideration of whetherthere are good reasons as to why deportation should not proceed. The Court will havethe relevant decision before it. The judicial review will be determined on whether theerrors of law and other causes of action in relation to the review claim are made out.Further discovery on this point is not required.[37] Mr Hooker sought to argue that the emails recently attached to counsel'smemorandum in reply underlined the need for discovery as they had not been includedwith the Immigration New Zealand file. However, I agree with Mr Mortimer-Wang'ssubmission that only documents relevant to the pleaded claim are discoverable. Theemails were not relevant before the amended claim raising the new claim was acceptedfor filing.11 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC2308 at [5].Practical considerations[38] Mr Hooker next submitted that Mr Singh had had inadequate time to preparefor the hearing, particularly because of the constraints under lockdown. Thatsubmissions lacks merit. Lang J's directions required substantive affidavits in supportto be filed by 7 August 2021. Mr Singh failed to comply with that direction. If he hadcomplied with the direction the difficulties which he now says arise as a consequenceof the lockdown would not have occurred.[39] The Immigration New Zealand file was disclosed on 17 July. While there werea substantial number of documents, as Mr Mortimer-Wang submitted, a significantportion of the file was information that had been previously provided by Mr Singh orhis counsel to Immigration New Zealand.[40] Further, despite the lockdown Mr Singh has been able to file three affidavits insupport of his various interlocutory applications on 3, 6 and 13 September. He hasalso filed an affidavit on 19 September 2021 in support of his application for leave toappeal to the Court of Appeal. If the same attention had been given to addressing thesubstantive issues this case would have been ready for hearing on 29 September 2021.[41] Mr Singh also suggests as a further reason to support the adjournment that heis not able to review the documents with counsel as he lacks the relevant skills orability to review the documents. The Court notes that his student visa was granted toenable him to undertake tertiary study namely a National Diploma in Business (Level5) at the Cornell Institute of Business and Technology. Mr Singh was subsequentlygranted a further visa to undertake the National Diploma in Business (Level 6). Hecurrently works as a warehouse manager. He should have sufficient ability to considerthe documents, to the extent necessary.[42] In any event the application for judicial review will largely be dealt with on thebasis of counsels' submissions and the documentation which counsel can review ratherthan any evidence that Mr Singh may wish to give to support the challenge to thedecision.Result[43] For those reasons the applicant fails to satisfy the Court Moore J was wrong todismiss his application to vacate the fixture.[44] However, I accept that the practical position is that there is now insufficienttime to ready the case for hearing on 29 September 2021. The position isunsatisfactory. It has been created by the applicant. It is not acceptable that by hisown default and failure to comply with timetable directions of the Court Mr Singh hascreated the situation where the Court is effectively forced to adjourn the fixture.[45] After discussion with counsel I confirm that the Court is able to accommodatea fixture the following week, on Thursday, 7 October 2021. For that reason, ratherthan the merits of the current application, I have determined to amend the existingtimetable orders to ensure the substantive fixture proceeds on that day. I make it clearhowever that if the applicant fails to comply with the directions at [4] above, the Courtwill determine the application on the basis of the material before it, including anysubmissions filed by the respondent.__________________________Venning J