SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 1695

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2021] NZHC 1695 [8 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-754[2021] NZHC 1695BETWEEN MANPREET SINGHApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 7 July 2021Appearances: M L Clark for ApplicantS Deng and M Mortimer for RespondentJudgment: 8 July 2021JUDGMENT OF LANG JThis judgment was delivered by me on 8 July 2021 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors:Vallant Hooker & Partners, AucklandCrown Law, Wellington[1] Mr Singh is an Indian national. He has been residing in New Zealand since2013 under a series of temporary visas.[2] On 25 June 2020 Mr Singh was convicted on a charge of driving with excessbreath alcohol. This rendered him liable to deportation under s 157(5) of theImmigration Act 2009 (the Act). On 27 July 2020 the immigration authorities serveda deportation liability notice (DLN) on him. This was later reconsidered after MrSingh sought judicial review of the initial decision to issue the notice.[3] After considering submissions advanced by Mr Singh's counsel, a ComplianceOfficer employed by the Ministry of Business, Innovation and Employment (theMinistry) made a determination on 14 August 2020 that Mr Singh had not given goodreason why deportation should not proceed. In this proceeding Mr Singh seeks judicialreview of that decision.[4] Mr Singh has applied for discovery of documents held by the Ministry that hebelieves will assist his cause. The Ministry opposes the application.The scope of the application[5] The Ministry has agreed to provide two of the categories of documents soughtby Mr Singh and says that three others do not exist. The following aspects of theapplication for discovery remain to be determined:(c) All records of training of an IO [Immigration Officer] as to:(i) How to determine whether there are Good Reasons to set asidethe DLN under section 157 of the IA [Immigration Act] 2009.(ii) How to determine whether to grant a character waiver underINZ [Immigration New Zealand] ImmigrationInstructions/Operational Manual.(iii) How to exercise a discretion under the IA 2009.(e) All records which relate to the following cases [involving a]determination by the IO to give a character waiver or not to issue aDLN or to cancel a DLN under s 157 of the IA 2009:(i) Singh v Chief Executive of Ministry of Business, Innovation andEmployment [2021] NZHC 787;(ii) Ochibulu v Immigration and Protection Tribunal and Ministerof Immigration [2020] NZHC 792;(iii) Kumar, Sandeep [2020] NZIPT 505031, IY (India) [2020]NZIPT 50474-, NARAYAN, Aklesh [2017] NZIPT 600383.(f) All records which INZ have made during 2014 to 2021 in which INZcollates cases determined under s 157 of the IA 2009 or the grant ofcharacter waiver ("Operational Manual A1") to assist an IO to makea decision which is fair and consistent with other decisions.(i) All records contained in the website Advice to Immigration Staff(https://www.immigration.govt.nz/about-us/policy-and-law/how-the-immigration-system-operates/immigration-instructions/advice-to-immigration-staff) and any relevant Visa Paks articles from the INZResource Library https://www.immigration.govt.nz/about-us/resource-library#t=Visa+Pak&c=&a=&q=&s=dd&I-10 whichrelates to decisions under s 157 of the IA 2009:Relevant principles[6] The Court has a discretion to order discovery in judicial review proceedingsbut this is not commonly done because discovery is often unnecessary. The guidingprinciple is whether discovery is necessary for the fair disposal of the application forjudicial review.1[7] Documents sought in discovery must be in existence and relevant to issuesraised in the proceeding. Furthermore, discovery will only be directed where it isproportionate to the subject matter of the proceeding. This reflects the fact that judicialreview is intended to be a comparatively simple means by which to ensure that publicpowers have been exercised lawfully.2[8] The Ministry opposes the application because it contends none of thedocuments Mr Singh seeks are necessary for the fair disposal of the proceeding. Itsays Mr Singh will be given all the material held on its file regarding the decision1 Smith v Attorney-General [2017] NZHC 2810 at [27].2 BNZ Investments Ltd v Commissioner of Inland Revenue (2007) 23 NZTC 21,078 (HC) at [15].subject to review. It says that none of the categories of documents he now seeks willassist the Court to determine his application for review of that decision.Decision[9] Mr Singh will allege that the Compliance Officer erred in several ways infinding he had not given good reason why deportation should not proceed. He willcontend the decision was unreasonable, that the Compliance Officer erred in law inhis interpretation of the term "good reason" used in s 157(2) of the Act, that he failedto take into account relevant considerations and took into account irrelevantconsiderations.[10] I record my view at the outset that the present application is premature. TheMinistry has not yet provided Mr Singh with a copy of its file or its evidence inopposition to the application for review. As a result, Mr Singh does not yet knowwhether there is any documentary record of the process the Compliance Officerfollowed and what factors he took into account when making the decision that issubject to review. It is difficult to see how Mr Singh can advance a meaningfulapplication for discovery when he has no knowledge of those matters.Training records[11] Mr Singh seeks internal training records held by the Ministry because he saysthey are necessary to ensure the Compliance Officer was aware of what informationwas important and to be given weight when he embarked on the decision-makingprocess. Further, Mr Singh contends that, given the significance of decisions thatimmigration compliance officers make, "it is important to ensure that complianceofficers are being adequately trained and are not acting arbitrarily and according totheir subject views".[12] This argument is misconceived. First, there is currently no evidence that theCompliance Officer who made the decision in Mr Singh's case has ever read thematerials in question and, if so, when that occurred. Secondly, the Ministry no doubtprovides training materials to its staff to assist them to make informed decisions thatcomply with natural justice requirements as well as the requirements of the Act.However, the materials have no legal effect. It will be for the Court to determine whatfactors were relevant in Mr Singh's case and whether these were taken into account ornot. It will also be for the Court to assess whether the determination was unreasonablehaving regard to the appropriate legal test. Internal training materials issued by theMinistry to its staff are unlikely to inform these issues.[13] Furthermore, as counsel for the Ministry points out, a decision made inaccordance with the advice given in training materials may nevertheless be vulnerableto review. Similarly, a decision not made in accordance with such advice may stillcomply with the requirements of natural justice and s 157.[14] This aspect of the application fails as a result.Records relating to other cases[15] Mr Singh has modified his application under this heading to restrict the scopeof discovery sought. He is now content to receive copies of Character WaiverTemplates prepared for each of the cases he has named.[16] However, as counsel for the respondent points out, none of the decisions atissue in these cases were made under s 157. Rather, they related to visa applicationsor decisions regarding New Zealand residents. As such, they relate to decisions madein a different factual and legal context.[17] It will ultimately be for the Court to decide what assistance is to be gained fromthe approach taken in character waiver cases. For present purposes, however, I do notconsider the material Mr Singh seeks is of sufficient relevance to warrant discoverybeing ordered.[18] In addition, the templates that Mr Singh seeks contain personal informationabout the applicants in those cases. Obvious privacy issues arise. More importantly,I accept the Ministry's submission that decisions made in this context are highly factspecific. This is demonstrated by the factors Mr Singh has listed in his statement ofclaim as being relevant in his case. The fact that other cases involving broadly similarfacts resulted in a different outcome will not assist the Court to determine whether thefactors he lists were relevant to the decision made in his case.[19] This aspect of the application also fails.All records created by INZ between 2014 and 2021 relating to cases determined unders 157 of the Act or the grant of character waiver to assist an Immigration Officer tomake a decision that is fair and consistent with other decisions[20] Mr Singh has also refined the ambit of documents sought under this heading.He now seeks data relating to visa applicants who have sought a character waiver afterhaving been convicted of drink driving offences. He seeks information regarding thebreath or blood alcohol readings of such persons together with information regardingany previous convictions they might have.[21] Again, I consider this material to be irrelevant. This proceeding does not relateto an application for a visa, in which an applicant may seek a waiver of the requirementto show good character.[22] In addition, Mr Singh will contend that the nature and seriousness of theconviction he sustained were but one aspect of the relevant factors the decision makerwas required to take into account. Assuming this argument is correct all of the relevantfactors in each case would need to be known for other cases to have any comparativevalue. Standing alone, the data Mr Singh seeks would be of very limited assistance.[23] Furthermore, it would be necessary for the Ministry's staff to conduct a manualreview of material held on numerous files to obtain the information Mr Singh seeksbecause it is not routinely collated. I consider this would be a disproportionaterequirement given the lack of relevance such information would have.[24] This aspect of the application also fails.Advice to staff displayed on the Ministry's website[25] Discovery of this information is arguably unnecessary because it is alreadyaccessible on the Ministry's website. In addition, it is not known whether the decisionmaker in the present case referred to the advice displayed on the internet and, if so,when. Furthermore, for reasons already given, any advice that the Ministry mayprovide to its staff on the internet is of little assistance in the present context. It willbe for the Court to determine whether Mr Singh has established that the procedureused to make the decision fell short of the required standard and/or the decision wasunreasonable.[26] This aspect of the application therefore fails as wellConclusion[27] I decline to order discovery of any of the material Mr Singh seeks. Theapplication is accordingly dismissed.Costs[28] The respondent is the successful party and would ordinarily be entitled to costson a category 2B basis together with disbursements as fixed by the Registrar. Ifcounsel cannot reach agreement on costs they can file concise memoranda in the usualway and I will determine costs on the papers.Lang J