SINGH v CHIEF EXECUTIVE, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2018] NZHC 673

SINGH v CHIEF EXECUTIVE, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT[2018] NZHC 673 [13 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-202[2018] NZHC 673BETWEEN PAVNEET SINGHPlaintiffAND CHIEF EXECUTIVE, MINISTRY OFBUSINESS INNOVATION ANDEMPLOYMENTDefendantHearing: 11 April 2018Appearances: G S Aulakh for the PlaintiffH T N Fong for the DefendantJudgment: 13 April 2018JUDGMENT OF PALMER JThis judgment is delivered by me on 13 April 2018 at 2.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors/Counsel:Gurbrinder Aulakh, AucklandCrown Law, WellingtonThe proceeding[1] Immigration New Zealand issued Mr Pavneet Singh with a deportation liabilitynotice on 7 June 2017 and a Deportation Order on 1 November 2017. Mr Singh, theapplicant, filed judicial review proceedings challenging those decisions. He pleads hewas not in breach of his visa condition by not working for his employer. He pleads hewas not given an adequate opportunity and time to respond to the allegations containedin the deportation liability notice, as he was undergoing compulsory mental healthtreatment at the time.[2] On 16 February 2018, Mr Singh applied for an interim stay of deportation,pending the judicial review. In a joint memorandum of the same date, counsel for bothparties advised the Crown had "provided an assurance that no steps to deport theapplicant will be taken, pending the outcome of the review proceeding".[3] Adjournments of further calls of the proceeding were sought and granted:(a) In the same memorandum of 16 February 2018, the parties jointlysought adjournment of the matter until mid-March 2018, to considertheir positions, which was granted by van Bohemen J.(b) On 21 March 2018, at the call of the matter in the duty list, both partiesjointly sought adjournment for a further week to enable the Crown tofurther consider its position to enable discussions about possiblealternative resolutions. Mr Fong also repeated the Crown's assurance.The request was granted by Davison J.(c) Later in the afternoon of 21 March 2018, after the list call, the Crownfiled a further memorandum requesting a one week extension of timefor filing the statement of defence, for the same reason. This requestdoes not appear to have been dealt with.(d) On 27 March 2018, both parties requested a further one weekadjournment to enable discussions about possible alternativeresolutions and "a one-week extension of time for the respondent to fileher statement of defence", until Thursday 5 April 2018. Those requestswere granted by Peters J who ordered the matter be called in the DutyJudge list on 11 April 2018.The parties' positionsThe Crown's position[4] The Crown did not file its statement of defence by the deadline it had soughtof Thursday 5 April 2018. Instead, on Friday 6 April 2018, the Crown filed amemorandum advising settlement discussions had concluded unsuccessfully andobjecting that Mr Singh's application for judicial review was not filed within the 28days of the decision specified by s 247 of the Immigration Act 2009 (the Act). TheCrown filed a notice of appearance under protest to the jurisdiction of the Court underr 5.49 of the High Court Rules 2016. It now seeks timetabling orders for Mr Singh toapply for an extension of time, which it will oppose, and deferral of filing a statementof defence until 10 working days after determination of that application.[5] The proceeding was called in Wednesday's duty list. Mr Fong, for the Crown,submits the Court has no jurisdiction to consider the substantive judicial reviewproceedings until the court has extended the time for doing so under s 247. He statesthe Crown had not filed its statement of defence because counsel had been focussedon settlement discussions. He states, with the benefit of additional time, the Crownnow considers there is a jurisdictional hurdle. Mr Fong also submits the ImmigrationAct 2009 circumscribes the Court's inherent jurisdiction of judicial review.Mr Singh's position[6] Mr Aulakh, for Mr Singh, submits the Crown should be directed to file itsstatement of defence and the timing issue could be one of the matters it raises in thatstatement. He points out the irony of the Crown complaining about Mr Singh beingout of time when it is out of time in filing its statement of defence. Mr Aulakh submitslegislative intent does not authorise the giving away of good principles ofadministration and the abuse of power. He submits the Court has a constitutional dutyto uphold the rule of law. He submits the judicial review involves a challenge to thevires of regulations under s 247(4)).[7] Mr Aulakh submits there are special circumstances justifying an extension oftime for Mr Singh. He says Mr Singh did not have the opportunity to seek legal adviceduring his mental health treatment. His criminal legal aid lawyer in relation to thecriminal matter had handed back some of the relevant documents in January 2018.Finally, Mr Aulakh states Mr Singh would prefer an interim order by the Court topreserve his position, though he accepts the Crown's undertaking would be honouredso formal orders are not necessary.Protest to jurisdiction[8] Under r 5.49, "a defendant who objects to the jurisdiction of the court to hearand determine the proceeding may, within the time allowed for filing a statement ofdefence and instead of so doing, file and serve an appearance stating the defendant'sobjection and the grounds of it". The Supreme Court has made clear that it is not tobe interpreted overly narrowly.1[9] Here, however, the Crown did not file and serve its appearance under protestto jurisdiction "within the time allowed for filing a statement of defence". It filed itsappearance under protest after that period, which had been extended at its own request.Accordingly, the Rules do not permit the Crown to file its appearance under protest tojurisdiction instead of filing a statement of defence.[10] If the Crown had validly filed its appearance under protest, it would have faceddifficulties if challenged. The Crown would have had to argue that a statutorydeadline, which can be extended by the Court, deprives the Court of statutoryjurisdiction and implicitly deprives the Court of its inherent jurisdiction to supervisethe abuse of power by executive government through the law of judicial review. Suchan argument runs contrary to the principle of legality and the doctrine of the rule oflaw.1 See Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94; [2013] 1NZLR 804 at [25]–[26].[11] Under s 14(2)(d) of the Judicial Review Procedure Act 2016, I direct the Crownto file its statement of defence within five working days of the date of this judgment.Extension of time[12] The exception to the 28-day deadline for commencing review proceedingsunder s 247 of the Act is where "the High Court decides that, by reason of specialcircumstances, further time should be allowed". As the Crown submits, the Court ofAppeal in Rajan v Minister of Immigration determined special circumstances are"uncommon, not commonplace, out of the ordinary, abnormal".2[13] Here, the Crown has undertaken "no steps to deport the applicant will be taken,pending the outcome of the review proceeding". I make an interim declaration to thateffect under s 15(3)(b)(i) of the Judicial Review Procedure Act 2016: the Crown oughtnot take any steps to deport the applicant, pending the final determination of thejudicial review proceeding.[14] Consistent with his right to judicial review under s 27 of the New Zealand Billof Rights Act 1990, Mr Singh is legitimately entitled to expect the Crown'sundertaking, and now the Court's order, to affirm to his right to have his proceedingdetermined on the merits, rather than on a technicality. I consider, by reason of thesespecial circumstances, the further time Mr Singh took to commence his judicial reviewshould be allowed.Next steps[15] By noon Friday 27 April 2018, the parties are to prepare a joint memorandumof counsel proposing the timetabling of the steps required to hearing. The proceedingwill be called in the next judicial review list after that...................................................................Palmer J2 Rajan v Minister of Immigration [2004] NZAR 615 (CA), affirmed in Dahiya v Chief Executiveof the Ministry of Business, Innovation and Employment [2016] NZCA 546 at [11].