DAHIYA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2016] NZHC 1217

DAHIYA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2016] NZHC 1217 [8 June 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-191[2016] NZHC 1217BETWEEN RAM DAHIYAApplicantAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESSINNOVATION AND EMPLOYMENTRespondentHearing: 7 June 2016Appearances: Applicant in person (with assistance from his son)N Copeland for RespondentJudgment: 8 June 2016JUDGMENT OF LANG J[on application for leave to appeal]This judgment was delivered by me on 8 June 2016 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Dahiya is a retired university professor who is currently residing in Australia. His youngeset son resides in New Zealand. On 5 March 2015 Mr Dahiya and his wife applied to Immigration New Zealand to obtain a Permanent Residence Visa (PRV). Immigration New Zealand declined the applications, and Mr Dahiya appealed on their behalf to the Immigration and Protection Tribunal (the Tribunal).The Tribunal dismissed Mr Dahiya's appeal in a decision delivered on 18 January2016.1 Mr Dahiya now seeks leave to appeal against one aspect of that decision.[2] Mr Dahiya and his wife were assisted in filing their submissions by their New Zealand-based son. When the application for leave to appeal was called, however, there was no appearance by them or any person acting on their behalf. I therefore indicated to counsel for the Chief Executive that I would determine the application on the basis of the documents filed by both parties prior to the hearing.The statutory test for a second appeal[3] The present application is governed by s 245 of the Immigration Act 2009 (the Act), which relevantly provides as follows:245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.1 Re AM (Permanent Resident) [2016] NZIPT 202924.[4] The Court of Appeal recently confirmed the approach to be taken in applying s 245 in Machida v Chief Executive of Immigration New Zealand.2 In that case the Court observed:3In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:(a) has importance extending beyond the particular case (which iswhat "general or public importance" entails); or(b) for some other reason, warrants a decision from the High Court.Although category (b) is open ended, we agree with a series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal's decision standing, that this alternative requirement could be met.4[5] In order to succeed, Mr Dahiya must therefore establish that the issue of law he wishes to have this Court determine raises an issue of general or public importance that extends beyond his case. Alternatively, he must establish that for some other reason the present case is an exceptional case involving individual injustice to the extent that this Court cannot countenance the prospect of theTribunal's decision remaining intact.Background[6] The issue that Mr Dahiya wishes this Court to examine has its origins in events that occurred during 2012.[7] Mr Dahiya first arrived in New Zealand on 30 July 2010. At that time he was granted a residence permit under the Immigration Act 1987. He was also granted a Returning Residence Visa (RRV) that was valid for two years from 30 July 2010.2 Michida v Chief Executive of Immigration New Zealand [2016] NZCA 162.3 At [8].4 Minister of Immigration v Jooste [2013] NZHC 2671, [2014] 2 NZLR 257; LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [2]; Taafi v Minister of Immigration [2013] NZAR 1037 at [19(c)]; Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [8]-[9]; Cao v Immigration and Protection Tribunal [2014] NZHC 259 at [12]; Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [54]-[55]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [9]; Liu v Minister of Business, Innovation & Employment [2014] NZHC 3074 at [9]; Fu v Chief Executive of the Ministry of Business, Innovation & Employment [2014] NZHC 3346 at [23]; CV v Immigration and Protection Tribunal [2015] NZHC 510 at [78]; Ali v Minister of Immigration [2015] NZHC 1794 at [32];Chan v Minister of Immigration [2015] NZHC 2036 at [26].[8] Mr Dahiya returned to India on 3 July 2012 after having spent a total of 206 days in New Zealand during the 12 month period ending 30 July 2011, and 214 days during the 12 month period ending 30 July 2012.[9] On 6 September 2012, whilst he was still outside New Zealand, Mr Dahiya and his wife applied for a Permanent Residence Visa (PRV). By that stage theirvisas had expired because the travel conditions attached to their SSRV's had expiredwhilst they were outside New Zealand. At that point Immigration New Zealand calculated that he had spent 207 days in New Zealand during the 12 month period ending 6 September 2011, but only 150 days in the 12 month period ending on 6 September 2012. The relevant immigration instructions certified by the Minister of Immigration at that time required the applicant for a PRV to hold a currentresident's visa and to have spent at least 184 days in New Zealand in each of thepreceding two 12 month periods.5 For that reason Immigration New Zealand determined that Mr Dayiha and his wife did not qualify for PRV's. Instead, it electedto issue them both with a second or subsequent resident visa (SSRV).[10] On 11 September 2012, Immigration New Zealand granted both Mr Dahiya and his wife an SSRV with travel conditions that expired on 11 September 2013. Immigration New Zealand inserted the new visas into the passports submitted by Mr Dayiha and his wife. It did not, however, separately communicate with Mr Dahiya and his wife to explain that they did not meet the criteria for a PRV and had been issued with an SSRV. As a result, Mr Dahiya and his wife remained unaware that they did not hold a PRV.[11] Mr Dahiya and his wife visited New Zealand between 1 February and 9 March 2013, but have not returned since that time.[12] In February 2015 Mr Dahiya applied to have his visa transferred to his new passport. He then learned for the first time that he and his wife had been issued with5 Immigration instructions are certified by the Minister of Immigration pursuant to s 22 of the Act and can change at any time. They are statements of Government policy: s 22(8). Decisions on applications for resident class visas are considered in accordance with the instructions in force at the time the application is made: Immigration Act 2009, s 72(1).SSRV's in 2012 rather than PRV's, and that the travel conditions attached to the SSRV's had expired in September 2013 whilst they were outside New Zealand.[13] On 5 March 2015 Mr Dahiya and his wife applied for a new PRV or SSRV. Their applications were declined on 30 April 2015 because they did not meet the relevant immigration instructions for the grant of either form of visa. This was because they did not hold a current resident's visa and had not spent the requirednumber of days in New Zealand during the two twelve month periods immediately preceding the application.[14] The Tribunal upheld this decision on the basis that Immigration New Zealand had correctly applied the relevant immigration instructions. The Tribunal also found there were no special circumstances warranting a recommendation to the Minister of Immigration that Mr Dahiya and his wife should be granted a visa as an exception to those instructions.[15] Mr and Mrs Dahiya do not contest the correctness of the decision reached by Immigration New Zealand and the Tribunal that they did not qualify for a PRV or SSRV. Instead, they contend that the Tribunal wrongly concluded there were no special circumstances to justify a recommendation to the Minister that they be issued with a new PRV or SSRV. They seek leave to appeal against that aspect of theTribunal's decision.Special circumstances[16] In cases where the Tribunal agrees with the decision made by Immigration New Zealand, s 188(1)(f) of the Act nevertheless permits the Tribunal to find that special circumstances exist to warrant a recommendation that the Minister of Immigration consider issuing a visa as an exception to the immigration instructions. As the Tribunal observed, whether special circumstances exist will depend on the particular facts of each case.6 In Rajan v Minister of Immigration the Court ofAppeal held that "special circumstances" will be held to exist in the present context6 Re AM (Permanent Resident), above n 1, at [36].where they are "uncommon, not commonplace, out of the ordinary, [and] abnormal".7The Tribunal's decision[17] In considering the issue of special circumstances the Tribunal first summarised the personal circumstances of Mr Dahiya and his wife. They are aged 70 and 69 years respectively, and have three adult sons. The youngest son has been a permanent resident in New Zealand since April 2005, whilst the other two sons are either residents or citizens of Australia. All three of their sons are married and have children.[18] After summarising Mr Dayiha's immigration history, the Tribunal said:[44] The appellant states he returned to India believing he had permanent residence and could return to New Zealand at any time. He did not take steps to return to New Zealand until February 2015, at which time he applied to transfer his PRV (or so he thought) to his new passport. By that time he had been living in India since March 2013; that was for nearly two years since leaving in New Zealand. The appellant submits he remained in India because he assumed some of the responsibilities for his brother's unmarrieddaughter, such as arranging for her marriage. Whether that was the onlyreason for remaining India for almost two years before seeking to return toNew Zealand has not been elaborated on by the appellant.[45] The appellant submits he and his wife always intended to return to New Zealand, especially as it is traditional for Indian parents to live with their children and take up a childcare role for their grandchildren. The traditional family living arrangements of Indian families like that of the appellant are not in dispute. Such arrangements are not of themselvesspecial circumstances. The appellant's son and his family have clearly coped without the childcare assistance of the appellant and his wife for several years now.[46] The appellant has a family and social nexus to India where he has his siblings and where he lived and worked for most of his life. His wife has a similar nexus to India. It is also evident that the appellant and his wife have continuing contact with their three adult children, the two in Australia and the son in New Zealand. Therefore, they have a family nexus to both Australia and New Zealand through their children. The couple obtained a 12-month visitor visa to Australia in May 2015. It is assumed that the appellant and his wife are currently in Australia. As for contact with their son and grandchildren in New Zealand, it is assumed that the family have maintained contact with each other in all the usual ways.7 Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24].[47] The appellant submits he will be able to contribute to New Zealand not only by caring for his grandchildren but also by volunteering his services in the community as a retired professor of English. Any contribution the appellant and his wife might make to New Zealand will be very modest and social in nature.[48] There is no evidence before the Tribunal from the appellant'ssubmissions that he and his wife are infirm or unable to care for themselves, or lack a home or financial wherewithal. In other words, they have no evident vulnerabilities or unmet needs other than the wish to be reunited with their younger son in New Zealand and to be involved in the life of their grandchildren.[49] The appellant and his wife are not precluded from applying for visitor visas to New Zealand nor, indeed, from making another application for residence under the Family (Parent) category of instructions should they wish to do so. Any future application or applications will of course be determined on the instructions prevailing at the relevant time.Conclusion on special circumstances[50] The Tribunal has considered all of the appellant and his wife'scircumstances to the extent that they have been disclosed and finds that there are no special circumstances. The appellant and his wife have a family nexus to Australia where their two other sons and their families are living. In addition, the appellant and his wife have family, social and other ties to India. There are no circumstances which warrant a recommendation to the Minister of Immigration that consideration be given to granting the appellant and his wife resident visas as an exception to the instructions.The proposed issue of law[19] Lying at the heart of the present application is an abiding sense of injustice felt by both Mr Dahiya and his wife arising out of the fact that Immigration NewZealand did not advise them in 2012 that they had been issued with SSRV's rather than PRV's. They believe Immigration New Zealand was under an obligation to provide them with advice as to the true position so that they could order their affairs accordingly. Inherent in this argument is the suggestion that they would have done things differently had they been aware of the true position.[20] Mr Dahiya and his wife consider they have been wrongly punished for an error made by Immigration New Zealand in 2012. They ask this Court to intervene to set right the injustice that has occurred.Decision[21] The starting point is the correctness of the premise upon which Mr Dahiya's argument is based. Although the Tribunal said it was "regrettable" that ImmigrationNew Zealand did not advise Mr Dahiya and his wife of the true position,8 there is no statutory provision requiring Immigration New Zealand to provide visa holders with separate advice regarding the nature of their visas and the terms and conditions uponwhich they have been issued. The holder of a resident's visa should obtain thatinformation from the terms of the visa as entered in the holder's passport. Anyresidual uncertainty should be resolved by making enquiries with the immigration authorities to ascertain the correct position. In the present case the visas stated they were issued for an indefinite term, but would be cancelled if Mr Dahiya and/or his wife were outside New Zealand on 11 September 2013 when the travel conditions expired. Mr Dahiya and his wife bore the onus of ensuring that they were aware of those facts.[22] Secondly, the Tribunal invited Mr Dahiya and his wife to provide it with details of the steps they would have taken if they had been aware of the true position. Mr Dahiya declined to take up that invitation. The Tribunal and the Court are therefore left to speculate how Mr Dahiya and his wife have been disadvantaged bythe fact that they were not aware they had been issued with SSRV's rather than PRV's.[23] Furthermore, the Tribunal expressly referred to the correct principles to be applied when considering the issue of special circumstances. It referred to them asbeing "circumstances that are uncommon, not commonplace, out of the ordinary, abnormal" as confirmed by the Court of Appeal in Rajan.9 The Tribunal therefore applied the correct test. As a result, Mr Dahiya is effectively restricted to arguing that the Tribunal was wrong to find that the circumstances in which he and his wife find themselves do not constitute special circumstances for the purposes of s 188(1)(f) of the Act.8 Re AM (Permanent Resident),above n 1, at [32].9 Rajan v Minister of Immigration, above n 7.[24] A similar issue arose in Songmia v Minister of Immigration.10 In that case Immigration New Zealand had declined an application for residence on the basis thatthe applicant's partner was an ineligible sponsor because she had alreadysuccessfully sponsored another person for a visa under the same category. The Tribunal had applied the test from Rajan in determining that the case did not raise any special circumstances in terms of s 188(1)(f) of the Act. On appeal, this Court observed:11[17] The special circumstances test is a matter of general or publicimportance. However, there is no question that the Tribunal stated the test correctly. The issue is confined to the application of that test in the particular circumstances of this case. This affects Mr Songmia and his partner but is not a matter of general or public importance.[25] Similar observations may be made in the present case. Even if Immigration New Zealand had an obligation to advise Mr Dahiya and his wife that it had issuedthem with SSRV's rather than PRV's, there is no evidence that Immigration New Zealand has been guilty of any systemic failure to honour the obligations owed to other visa holders. For that reason the issue Mr Dahiya and his wife wish to raise does not have any significance or importance that extends beyond the present case.[26] In addition, Mr Dahiya cannot point to any factor supporting the proposition that this Court should intervene because it cannot countenance the prospect that theTribunal's decision should remain intact. First, Mr Dahiya and his wife have notexplained how they would have acted differently if they had been aware of the true position in 2012. Secondly, the decision will not prevent Mr Dahiya and his wife from maintaining contact with their son and his family in New Zealand. As the Tribunal pointed out in the passage cited above at [18], Mr Dahiya and his wiferemain free to travel between India, Australia and New Zealand using visitor'spermits. They can therefore continue to have meaningful and regular contact with their wider family in both countries even though they are no longer eligible to obtain a PRV or SSRV.[27] It follows that Mr Dahiya and his wife have failed to establish the required criteria to justify a second appeal to this Court.10 Songmia v Minister of Immigration [2013] NZHC 3233.11 Songmia v Minister of Immigration, above n 10.Result[28] The application for leave to appeal is dismissed.Lang JSolicitors:Meredith Connell, Auckland