FANG v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 3257

FANG v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 3257 [20 December2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-002453[2017] NZHC 3257UNDER the Judicial Review Procedure Act 2016,Judicature Amendment Act 1972, Part 30 ofthe High Court Rules, DeclaratoryJudgments Act 1908 and the New ZealandBill of Rights Act 1990IN THE MATTER of an application for judicial review,extraordinary remedies, interim relief,declaratory remedy and claim for breach ofrightsBETWEEN MINGBO FANGApplicantAND MINISTRY OF BUSINESS, INNOVATIONAND EMPLOYMENTRespondentHearing: 18 December 2017Counsel: D Zhang for ApplicantIC Carter for RespondentJudgment: 20 December 2017JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 20 December 2017 at 11 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Amicus Law, Auckland.Crown Law, Wellington.The application[1] On 16 October 2017 Mr Mingbo Fang sought an interim order declaring heshould not be deported that night. I dismissed the application.1 Mr Fang immediatelywent into hiding. His whereabouts remain unknown.[2] On Mr Fang's behalf, Mr Zhang seeks an order rescinding my decision underr 7.49 of the High Court Rules 2016. Or leave to appeal to the Court of Appeal.Mr Carter opposes the application on behalf of the Ministry of Business, Innovationand Employment. It was not served with the 16 October application. More about thatlater.Background[3] Mr Fang came to New Zealand on a student visa, which expired in May 2012.Mr Fang was to complete an educational course here. He attended for no more thanapproximately one week. It follows Mr Fang has been in New Zealand unlawfullysince the middle of 2012.[4] In August 2015 a traffic offence resulted in Mr Fang being taken into custodyand served with a deportation order. An immigration officer interviewed Mr Fang andhis then partner. Following receipt of submissions on behalf of Mr Fang, the officerdecided not to cancel the deportation order under s 177 of the Immigration Act 2009.Mr Fang was to be deported on 26 August 2015. Mr Fang brought judicial reviewproceedings. Mr Fang alleged, among other things, the officer failed to comply withthe obligation under s 177(5) of the Act to adequately record "the facts about theperson's personal circumstances".[5] Fogarty J granted an interim order preventing Mr Fang's deportation pendingdetermination of those proceedings.2 Duffy J later heard and dismissed them.3Mr Fang then appealed to the Court of Appeal. On 21 October 2016 Duffy J granted1 Fang v Ministry of Business, Innovation and Employment HC Auckland CIV-2017-404-002453,16 October 2017 (Minute).2 Fang v Ministry of Business, Innovation and Employment [2015] NZHC 2059.3 Fang v Ministry of Business, Innovation and Employment [2016] NZHC 1630.interim relief pending determination of the appeal.4 Mr Fang was not to be removedfrom New Zealand until 20 working days after the Court of Appeal's decision.[6] The appeal was heard on 28 February 2017—by the permanent Court. Twoother appeals involving similar circumstances were heard at the same time. Mr Zhangacted for one of the other litigants as well: Mr Dong. The primary issue for the Courtconcerned the effect of s 177(5) of the Act.[7] On 19 May 2017 the Court of Appeal held the provision required a discreterecord to be made about the potential deportees' personal circumstances.5 The Courtallowed Mr Fang's appeal. It remitted the case so the immigration officer couldcomply with her s 177(5) obligation.[8] The Court of Appeal also dealt with the approach to interim relief in cases ofthis nature. Mr Zhang invited the Court to overrule a long line of authority whichholds the usual effects of deportation will not, ordinarily, be sufficiently harmful tomeet the threshold for interim relief. The Court of Appeal declined to do so. It didnot accept there was any justification for revisiting what it described as a "nowwell-established approach". And, the Court anticipated Mr Fang's deportation wouldnot preclude substantive relief vis-à-vis judicial review:6However, the approach in Parmanadan has since been followed by this Courtin Nair and recently reiterated in Minhas v An Immigration Officer. We do notaccept that there is any justification for revisiting the now well-establishedapproach. The removal of Messrs Fang, Dong and Li from New Zealand canhave no bearing on the way in which the respective immigration officerscomplete their task under s 177(5)(b). Nor will the fact that Messrs Fang,Dong and Li are out of New Zealand affect any entitlement to seek review ofthe actions of the officers pursuant to the orders for remission.Accordingly, the interim order staying Mr Dong's deportation pending theremission back to the relevant immigration officer is set aside.[9] On 19 June 2017 Duffy J's interim order expired. The immigration officercompleted her obligations under s 177(5). Arrangements were made to deportMr Fang on 16 October 2017 at 23:59. Mr Zhang was informed of this on 9 October4 Fang v Ministry of Business and Employment [2016] NZHC 2617.5 Fang v Ministry of Business, Innovation and Employment [2017] NZCA 190, [2017] 3 NZLR 316.6 At [81]–[82] (footnotes omitted).2017. Mr Fang was required to meet an immigration officer at the airport fordeportation. But as observed, he went into hiding.[10] Mr Fang sought an interim order preventing his deportation late on theafternoon of 16 October 2017, pending further judicial proceedings. The applicationwas brought without notice. Mr Fang's personal circumstances and those of his wifewere advanced as important, and as materially different from those before Duffy J. Idismissed the application for these reasons, which included the observations of theCourt of Appeal:7[1] Mr Fang is scheduled to be deported at midnight. Obviously, time is ofthe essence. Hence the brevity of this Minute.[2] At approximately 4.30 this afternoon, Mr Zhang on Mr Fang's behalfsought an interim order declaring Mr Fang should not be deported. Thebackground is important.[3] On 28 August 2015 Fogarty J made such an order in anticipation ofjudicial review proceedings by Mr Fang of the immigration officer's decisionunder s 177 of the Immigration Act 2009 refusing to cancel a deportationorder. Duffy J heard the judicial review proceeding, which Her Honourdismissed on 21 July 2016. Among other things, the Judge was not persuadedMr Fang's personal circumstances precluded deportation. Mr Fang appealedsuccessfully to the Court of Appeal in relation to the extent to which animmigration officer must record international obligations and the person'spersonal circumstances in connection with the decision. Mr Fang's appealwas heard with other cases affected by similar issues. One such case was thatof Mr Dong. Mr Dong's deportation had been stayed by an interim order.More about this shortly. An immigration officer has since concluded thedeportation order in relation to Mr Fang should not be cancelled under s 177of the Immigration Act.[4] Mr Zhang contends interim relief precluding Mr Fang's deportation isappropriate because the personal circumstances identified by Fogarty J at[40]–[44] endure, and because Mr Fang now has a daughter and his wife,Ms Zhao, suffers depression. Mr Zhang also submits it is not clear s 177 hasbeen complied with.[5] I asked Mr Zhang why the application was filed this afternoon when thedeportation notice was served a week ago (Monday, 9 October). Mr Zhangsaid he was instructed to bring this application on Friday (13 October).Mr Zhang apologised for not alerting the Registry to the possibility of anapplication on Friday. He also accepted MBIE could have been—but has notbeen—served.[6] I am unpersuaded interim relief is appropriate in the circumstances,particularly having regard to the background. Mr Fang's student visa, which7 Fang v Ministry of Business, Innovation and Employment, above n 1, (footnotes omitted).allowed him to be in New Zealand, expired in or about May 2011. And, thepersonal circumstances identified in connection to Mr Fang are not greatlydifferent from those before Duffy J. When the case reached the Court ofAppeal, Brown J for the Court observed: (See [8] above)[7] The key plank of Mr Fang's application concerns s 177(5). It follows thisissue is already settled. And as observed, the personal circumstances inrelation to Mr Fang are not greatly different from those prevailing earlier.[8] The application is dismissed.Analysis[11] Rule 7.49 provides:7.49 Order may be varied or rescinded if shown to be wrong(1) A party affected by an interlocutory order (whether made on a Judge'sown initiative or on an interlocutory application) or by a decision givenon an interlocutory application may, instead of appealing against theorder or decision, apply to the court to vary or rescind the order ordecision, if that party considers that the order or decision is wrong.(2) A party may not apply under subclause (1) if the order or decision wasmade or given—(a) with the consent of the parties; or(b) on an interlocutory application for summary judgment underrule 12.4 (c) Revoked.(3) Notice of an application under subclause (1) must be filed and served,—(a) if it is made by a party who was present or represented when theorder was made or the decision given, within 5 working days afterthe order was made or the decision was given:(b) if it is made by a party who was not present and not represented,within 5 working days after receipt by the party of notice of themaking of the order or the giving of the decision, and of its terms.(4) The application does not operate as a stay unless a Judge so orders.(5) Unless a Judge otherwise directs, the application must be heard by theJudge who made the order or gave the decision.(6) The Judge may,—(a) if satisfied that the order or decision is wrong, vary or rescind theorder or decision; or(b) on the Judge's own initiative or on the application of a party, transferthe application to the Court of Appeal.[12] Although the rule is framed broadly, it and its predecessor—what was thenr 264—have been confined to the following situations:(a) When there was no full argument at the initial hearing.(b) When some relevant point of evidence was overlooked at that hearing.(c) A material change of circumstance since then.(d) Existence of other special circumstances.[13] The retreat from the broad language of the provision reflects the deep-seatedprinciple an attack upon the correctness of a Court's decision should be made only toa Court of superior jurisdiction.8[14] Mr Zhang contended there was no full argument at the hearing before mebecause it lasted approximately 12 minutes only—I heard Mr Zhang by way oftelephone conference. Mr Zhang also contended I did not have the extensive affidavitof Mr Fang before me. The latter can be dealt with immediately. I did.[15] As to the former, doubt attaches to whether the length of a hearing isco-terminus to whether there was full argument, particularly in a case in which writtensubmissions were filed and read in advance, as they were here. In any event, theessence of Mr Fang's case was ventilated at the 16 October hearing, the mostsignificant aspects of which were contentions:(a) Mr Fang's circumstances had materially changed since the hearingbefore Duffy J.(b) Section 177(5) had again not been complied with, at least arguably.8 Bryant v Collector of Customs [1984] 1 NZLR 280 (CA).[16] Mr Zhang also contended special circumstances existed as I hadmisapprehended the basis for interim relief. Mr Zhang submitted interim relief hadnot been sought primarily under s 177(5), but rather because of the change inMr Fang's personal circumstances: he has since married his girlfriend, they have achild, his wife is now pregnant, and she has suffered depression. I do not accept thesearguments: they constitute recapitulation of those made and rejected on 16 October.[17] Mr Zhang went further. He contended r 7.49 should not be confined to thecategories identified above. He submitted a frequently cited decision in relation to therule—Carter v The Coroner's Court at Wellington9—involved Crown counsel takingadvantage of a litigant in person, with the result the principles identified in that casewere without the benefit of full argument. This characterisation is inaccurate. Asobserved earlier, r 7.49 has long been interpreted narrowly for good reason; Carterrepresents no more than a crisp and helpful restatement of applicable principle.[18] Mr Zhang also sought an order transferring the 16 October ruling to the Courtof Appeal under the same rule or leave pursuant to s 56(3) of the Senior Courts Act2016 to appeal to the Court of Appeal. Both were framed on the basis the Court ofAppeal was wrong to re-embrace the line of authority identified in Fang in relation tointerim relief.[19] To elaborate, Mr Zhang contended this line of authority failed to appreciate theramifications of the current Act, which make a person in Mr Fang's position even morevulnerable if deported pending determination of judicial review proceedings.Mr Zhang contended it is all but impossible for someone in these circumstances toavoid the travel ban imposed by s 179 of the Act (which in Mr Fang's case would lastfive years), and obtain the requisite visa to be in New Zealand lawfully. There areseveral answers to this contention.[20] First, it is not for this Court to presuppose error on the part of the Court ofAppeal. The reasons for this are obvious. And, of a constitutional order.9 Carter v The Coroner's Court at Wellington [2015] NZHC 2998.[21] Second, it would be an extraordinary step for this Court to invite the Court ofAppeal to revisit a decision in this area only months after that Court's considereddetermination of the point through a judgment in its permanent guise.[22] Third, the underlying argument is untenable. One of the cases affirmed by theCourt of Appeal in Fang is Chief Executive of the Ministry of Business, Innovationand Employment v Nair.10 That decision, delivered by Ellen France P (as Her Honourthen was), identifies the very points Mr Zhang contends were not appreciated by theCourt of Appeal in Fang:11If interim relief is declined Mr Nair will leave New Zealand. The effect ofs 179 of the Act is that he will be prohibited from returning to New Zealandfor five years. He would have to conduct his judicial review application fromIndia. If successful on review, the decision under s 177 not to cancel thedeportation order will be set aside and an immigration officer will reconsiderwhether to cancel the order. If the immigration officer decides to cancel theorder, the "logical corollary" is likely to be the view there are good groundsfor Mr Nair to be granted a residence class visa although Mr Nair would haveto make his application for residency from India. The Minister may exercisehis discretion under s 182 of the Act to remove the prohibition on entry and towaive deportation costs.By contrast, if interim relief is maintained Mr Nair would remain in NewZealand unlawfully. In practice, the Minister is likely to grant a visa unders 61 to regularise his position in the interim. Mr Nair would still then need toseek a visa.When the consequences of deportation before Mr Nair's judicial reviewapplication is determined are analysed in this way, it is apparent that none ofthe consequences identified by Duffy J meet the threshold for interim relief.Rather, they reflect the usual statutory consequences of deportation.Ms Hansen accepts that these particular circumstances reflect the norm butshe relies on the uncertainty and dislocation involved. However, on theanalysis in Parmanadan, such consequences absent further evidence areinsufficient to warrant interim relief.[23] Fourth, it was apparent at the hearing Mr Zhang sees this area of law asunfinished business—at best. However, Mr Fang should not be used as a vehicle forcounsel's frustration at the state of law as recently affirmed by a higher Court.10 Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA248, [2016] NZAR 836.11 At [22]–[24] (footnotes omitted).Misuse of curial process?[24] Mr Carter contended even if a basis for rescinding the 16 October ruling wasidentified, I should not take that step because of the way in which Mr Zhang andMr Fang had approached that application. Mr Carter noted r 7.49 affords the Court adiscretion. He contended discretionary relief may not be granted if the applicant hasmisused the Court's processes, citing Martin v Ryan.12 No determination of thissubmission is required, for, as discussed above, the application is without merit.However, I remain troubled about the way in which relief was sought on 16 October.I record why.[25] First, no clear explanation has ever been provided as to why the respondentwas not served with the application. At the original hearing, Mr Zhang acknowledgedthe respondent could have been, but was not. Context underscores the significance ofthis breach of natural justice.[26] Mr Fang and the respondent have long contested his eligibility to remain inNew Zealand. The case has been before the Courts for some time—and reached theCourt of Appeal. Mr Zhang has dealt frequently with both the Crown Law Office andthe Crown Solicitor's Office, as counsel for the Ministry of Business, Innovation andEmployment. Mr Zhang said he received instructions to seek interim relief on Friday,13 October 2017. It would not have been difficult for Mr Zhang to alert that day eitherCrown Law or Meredith Connell of the anticipated application. And, Mr Zhang shouldhave served one or other on a Pickwick basis so the respondent could be heard on16 October. He did not.[27] In the absence of an unequivocal explanation for non-service—which I soughtat both hearings—I conclude Mr Zhang elected not to serve the respondent in the hopeof achieving forensic advantage for his client.[28] Second, it is elementary an applicant for without notice relief must identifymatters which may be contrary to the applicant's case. This did not occur: the papers12 Martin v Ryan [1990] 2 NZLR 209 (HC).did not identify as salient [81] and [82] of the judgment of the Court of Appeal. Rather,it fell to me to raise both with Mr Zhang at the teleconference.[29] Third and relatedly, the papers as originally filed did not include amemorandum of counsel. Through the Registry, I advised Mr Zhang I would notconsider the papers in the absence of a memorandum. However, when filed, thememorandum did not identify the aspects above.[30] Fourth, the papers did not include the decision of the immigration officer inrelation to which interim relief was sought. Exigent circumstances cannot explain theomission, as an affidavit with hundreds of pages of annexures was filed in support ofthe application. And, Mr Fang knew of his anticipated deportation on Monday,9 October 2017.[31] Fifth, the irony of Mr Fang's election to take the law into his own hands (bybreaching his release conditions from 16 October) while simultaneously seeking itsprotection should not go unrecorded.[32] In short, employment of the without notice procedure for the 16 Octoberapplication was a misuse of curial process.Result[33] The application is dismissed. Mr Carter foreshadowed an application forincreased or indemnity costs. I will deal with costs on the papers; submissions mustnot exceed five pages:(a) Mr Carter is to file and serve his by 5 pm, Friday 9 February 2018.(b) Mr Zhang is to file and serve his by 5 pm, Friday 16 February 2018...Downs J