DENNIS v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 2169

DENNIS v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2018] NZHC 2169 [23 August 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-607[2018] NZHC 2169UNDER the Judicial Review Procedure Act 2016,Part 30 of the High Court Rules, theImmigration Act 2009IN THE MATTER of a visa and deportation decisionBETWEEN RICHARD DESMOND DENNISApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentHearing: 15 August 2018Appearances: A G Speed and B E Colville for the ApplicantJ T Parry for the RespondentJudgment: 23 August 2018JUDGMENT OF PALMER JThis judgment is delivered by me on 23 August 2018 at 2.00 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel/Solicitors:Andrew Speed, Barrister, AucklandBriar Colville, Barrister, AucklandMeredith Connell, AucklandSummary[1] Mr Des Dennis is from the United Kingdom and has lived in New Zealandsince 2006. In 2017, he was convicted of serious family violence offences against twowomen and imprisoned. Immigration New Zealand (INZ) served him with adeportation order on 22 June 2017 and declined his application for a work visa on7 September 2017. Under s 247 of the Immigration Act 2009 (the Act) he had28 working days from the date of being notified of each decision to bring judicialreview proceedings. Mr Dennis took no steps to challenge these decisions until10 April 2018. He says his lawyer failed to advise him he could. Now he applies toextend the period within which he may apply for judicial review.[2] There has been a very lengthy delay here and very weak reasons for it.Nevertheless, I would be tempted to grant the extension if strong grounds for judicialreview were combined with a realistic prospect of effective relief. Upholding the rightto judicial review, in order to ensure consideration of the best interests of two childrenwho are innocent of wrongdoing, may constitute special circumstances by reason ofwhich extension may be justified. But while there appears to be reasonably stronggrounds for judicial review, there are very low prospects of effective substantive relief.And the Crown intends to consider the interests of the children through an alternativedecision-making route that does not depend on judicial review anyway. Thesecircumstances, combined with the very lengthy delay and very weak reasons for it, arenot special enough to justify extending the deadline for judicial review. Accordingly,I decline the application for an extension.What happened?Mr Dennis[3] Mr Dennis is a 51-year-old citizen of the United Kingdom of Caribbeandescent. He moved to New Zealand in 2006. He is sole director of three companies.Since April 2011, he has been living with his fiancée, Ms Nadine Sorrensen, a NewZealand citizen. Ms Sorrensen attests to them being in a loving and long-termcommitted relationship.[4] With another woman, he has a son now aged 13 in New Zealand. In October2008, he was convicted of male assaults female and assault with intent to injure. In2010 the Family Court made parenting orders by consent despite allegations of seriousviolence.1 Mr Dennis shared custody of his son until mid-2016. A third woman says,and he accepts, he also has a daughter aged three in New Zealand.Immigration status and criminal charges[5] Since 2011, Mr Dennis has been in New Zealand on partnership work visasbased on his relationship with Ms Sorrensen. Mr Owen Martell was his immigrationlawyer from 2008 until recently. In June 2016, before Mr Dennis's work visa expired,Mr Martell arranged for Mr Dennis to apply for a further work visa and a resident visabased on his relationship with Ms Sorrensen. The letter to INZ emphasisedMr Dennis's son and his relationship with Ms Sorrensen. On 26 July 2016, INZgranted Mr Dennis a temporary six-month visa to maintain his status while theapplications were being considered. Mr Dennis's interim visa expired on15 December 2016.[6] The same day, 15 December 2016, Mr Dennis was arrested by police in relationto complaints by the mothers of his two children. He was charged with nine chargesof male assaults female and one charge each of assault with a blunt instrument, injuringwith intent to injure, threatening to kill or do grievous bodily harm, indecent assaultand kidnapping. He was granted bail on 10 January 2017.[7] In April 2017 Mr Martell had email exchanges with INZ:(a) On 6 April 2017, Mr Martell asked INZ why Mr Dennis should beserved with the deportation order given his visa application had notbeen decided, even though his interim visa had expired. He asked INZto wait until the criminal proceedings were concluded butacknowledged if he were convicted "there is probably a reasonablebasis for a deportation order".1 CK v RDD FC Auckland Fam-2009-004-002701, 11 August 2010.(b) On 10 April 2017, INZ responded by email reiterating Mr Dennis wasunlawfully in New Zealand, his resident visa application wassuspended under s 169(3),2 and INZ was not prevented from serving adeportation order on him, though "[i]n practical terms his Court mattersmust run their course and we will await those".(c) On 18 April 2017, Mr Martell wrote to INZ to say he had advisedMr Dennis he would likely be served a deportation order and asked foran assurance he would not be held in custody as a result of that. Thenext day INZ said he would not be taken into immigration custodypending the criminal prosecution.[8] On 2 June 2017, INZ advised Mr Dennis may not meet the good characterrequirements of a work visa due to his charges and previous convictions. On 12 June2017, Mr Martell responded. Mr Dennis and Ms Sorrenson say they understood fromMr Martell no decision regarding immigration would be made until there was anoutcome in the criminal proceedings.[9] On 22 June 2017 INZ served a deportation order on Mr Dennis saying he wasliable for deportation under s 154 of the Act because he was unlawfully in NewZealand.3 INZ also said he had the opportunity to provide information about hispersonal circumstances and, if they were relevant to New Zealand's internationalobligations, INZ would be required to consider cancelling the order. Mr Dennis sayshe did not realise the order's significance, and Mr Martell did not advise him he wouldbe served with it nor that there was a time period to challenge it.[10] In a letter of 24 July 2017 INZ explained its concerns about the charges againstMr Dennis and invited him to make submissions about whether a visa shouldnevertheless be granted in accordance with a special direction under s 17(1)(a). Hemade submissions.2 Section 163(3) provides, while a person is liable for deportation, the processing of any applicationfor a visa of a different class or type to that currently held must be suspended.3 Mr Dennis says the deportation order was served on 22 June 2017. Ms Sorrenson says it wasserved on 17 June 2017. I accept it was served on 22 June 2017, as noted by Mr Dennis on theorder. The immigration officer also dated his signature with that date.[11] On 7 September 2017, INZ declined Mr Dennis's application for a work visaon partnership grounds, because he did not meet the character requirements. INZ alsoattached its decision refusing to grant him a special direction. The decision did notmention Mr Dennis's children though it assessed him as having a tangible emotionaltie to New Zealand through his partner and time spent in New Zealand. INZ did notconsider that outweighed the concerns regarding his character, based on the chargesagainst him. The letter also stated Mr Dennis had been unlawfully in New Zealandfrom 15 June 2016 (though it was 15 December 2016) and was liable for deportation.Mr Dennis says he had not seen the letter at the time and thought his application wouldbe granted.[12] Mr Dennis pleaded guilty to a number of the charges on 11 September 2017and was sentenced to 22 months' imprisonment on 7 November 2017. The charges towhich he pleaded guilty are not entirely clear to me. The High Court judgment of hissentence appeal indicates they were: male assaults female and injuring with intent toinjure in 2006; assault with a weapon in 2009; indecent assault and male assaultsfemale in 2011; male assaults female in 2012; male assaults female in 2013; and maleassaults female and disorderly behaviour in 2014.4 The High Court declined theappeal on the basis the domestic violence was serious enough to justify imprisonment.The Crown has confirmed in further submissions Mr Dennis's release date will be 3October 2018.Challenge to immigration decisions[13] On 15 March 2017, Mr Dennis's new lawyer, Mr Mark Ryan, provided furtherinformation for INZ to consider whether to cancel the deportation order under s 177of the Act. He drew attention to Mr Dennis's children. On 7 May 2018, INZresponded that Mr Dennis was unlawfully in New Zealand from the expiry of hisinterim visa on 15 December 2017 so his residence application was suspended unders 169(3) of the Act. It noted the matters raised about Mr Dennis's personalcircumstances would be added to his file to be considered nearer the time of hisrelease. It also noted, as a result of his sentence, Mr Dennis was subject to s 15(1)(b)4 Dennis v Police [2018] NZHC 886.of the Act, which provides no visa may be granted to anyone who has been sentencedto imprisonment of 12 months or more in the preceding 10 years.[14] On 10 April 2018, Mr Dennis applied for judicial review of the decisions toissue the deportation order and decline the work visa. On 16 May 2018, the Crownpointed out the application was outside the statutory deadline. On 28 May 2018 MrDennis applied for an extension of time.[15] During the hearing, Mr Parry sought to rely on a Provision of Advice to Courtsdocument in relation to Mr Dennis's sentencing. Mr Speed objected on the basis hehad not had had an opportunity to take instructions or respond to it. I declined to hearof it.[16] At the end of the hearing on 15 August 2018 Mr Speed, for Mr Dennis, madean oral application for interim relief preventing Mr Dennis's deportation before mydecision is issued, so as not to render his application for an extension nugatory. Igranted leave to Mr Parry to seek instructions and file a memorandum in responsewithin three working days. The memorandum opposes interim relief on the groundsit would interfere with a decision to be taken before Mr Dennis's release, aboutwhether to cancel the deportation order under s 177, and the threshold for interim reliefrequires adverse effects are more than the usual statutory effects of deportation.5Law of extending the deadline for judicial review of immigration decisions[17] Section 247(1) of the Act states, relevantly:247 Special provisions relating to judicial review(1) Any review proceedings in respect of a statutory power of decisionarising out of or under this Act must be commenced not later than 28days after the date on which the person concerned is notified of thedecision, unless—(a) the High Court decides that, by reason of specialcircumstances, further time should be allowed; or5 Citing Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016]NZCA 248, [2016] NZAR 836; Fang v Ministry of Business, Innovation and Employment [2017]NZCA 190, [2017] 3 NZLR 316.[18] In RM v Immigration and Protection Tribunal I said, in relation to the timelimit on judicial review in s 249 of the Act:6The High Court has recognised that s 249 reflects a deliberate intention byParliament to restrict the availability of judicial review, as indicated by its title.The Court of Appeal has, briefly, expressed a similar view. And that must becorrect. And there are good reasons why, in an immigration context, judicialreview proceedings can be a problem for immigration authorities. Judicialreview can be a means by which even those with hopeless claims can try toslow down decision-making in order to delay the inevitable order that deportsthem. And there is little incentive on the deportable not to do that.[19] In Rajan v Minister of Immigration the Court of Appeal observed "the term'special circumstances' is a commonly used phrase [and] requires circumstancesthat are uncommon, not commonplace, out of the ordinary, abnormal", which must beassessed in the context of the legislation involved and:7The s 146A [predecessor to s 247] time limit for the filing of judicial reviewproceedings must be interpreted in that context. This means that the discretionto extend time should not be exercised too readily and very rarely if the delayis too long. The Rajans' application was filed one month late and thus wouldrequire an extension of a third of the time limit. In the context of theImmigration Act this cannot necessarily be seen as a short delay.[20] The Court of Appeal in Rajan also examined the reasons for delay and a briefexamination of the merits of the review application. It rejected the Crown submissionthat the merits of the review proceedings are not relevant except where the case isclearly hopeless, while pointing out judicial review proceedings should not be arguedfully where a question of leave arises. It stated:8Brief examination of the merits may in some cases be called for. Even with astrong excuse for the delay, however, if the review proceedings were hopeless,this would suggest that the s 146A discretion should not be exercised.Examination of the merits could tip the balance in a marginal case. Forexample, where the delay is not long, there is some excuse for that delay andthe merits apparently strong, an extension of time could be justified. Wedoubt, however, that even very strong merits could ever justify an extensionif (as here) there is no proper excuse for the delay in filing. In any event, on6 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [41] (footnotes omitted). Andsee [48]–[49] regarding the effect of the Bill of Rights on interpretation of limits on judicial review,including (at [49]) time limits.7 Rajan v Minister of Immigration [2004] NZAR 15 (CA) at [24].8 At [29]–[30].close examination, the merits of the Rajans' judicial review application areweak [21] The following cases are relevant to granting of extensions and suggest anyexcuse for delay will be a primary consideration, though the merits of the judicialreview will also be relevant:(a) In Fernandes v Immigration and Protection Tribunal the Court ofAppeal held failure by a legal adviser, in the circumstances of that case,was not a good reason to excuse delay.9(b) In E v Ministry of Business, Innovation and Employment, Hinton Jgranted an extension after a delay of 11 to 15 days because the applicantfirst filed an appeal in the Tribunal, in accordance with mistaken advicefrom the Refugee and Protection Officer, and the merits were strong.10(c) In AR v Refugee and Protection Officer, Edwards J considered anapplication for extension 14 days out of time, where an application hadbeen filed within time but in the wrong form, was at the margin.11 Butshe considered the application for judicial review could not succeed onits merits so dismissed the application for extension.12(d) In Li v Ministry of Business, Innovation and Employment, I granted anextension where the applicants were out of time because they pursuedan appeal right that turned out not to be available to them.13(e) In Kaur v Minister of Immigration Muir J granted an extension,considering an application 17 days out of time was minimal because anapplication had been filed within time but it was in the wrong form.149 Fernandes v Immigration v Protection Tribunal [2014] NZCA 52, [2014] NZAR 544.10 E v Ministry of Business, Innovation and Employment [2016] NZHC 2599.11 AR v Refugee and Protection Officer [2016] NZHC 2916 at [37].12 At [52].13 Li v Ministry of Business, Innovation and Employment [2017] NZHC 2977, [2018] NZAR 265 at[28].14 Kaur v Minister of Immigration [2018] NZHC 138.(f) In Singh v Chief Executive, Ministry of Business, Innovation andEmployment, I granted a lengthy extension on the basis of the specialcircumstance that the Crown had provided an assurance no steps wouldbe taken to deport the applicant pending the outcome of the review andthen objected to the Court's jurisdiction on the basis of s 247.15[22] The Court of Appeal's statements in Rajan, that the discretion to extend time"should not be exercised too readily and very rarely if the delay is too long",undoubtedly also applies to s 247(1) as the successor to the provision the Court wasinterpreting. So does its observation that, even with a strong excuse for delay, ahopeless case on the merits would suggest the discretion to grant an extension shouldnot be granted.[23] I am not so sure about the Court of Appeal's obiter doubt that even very strongmerits could ever justify an extension if there is no proper excuse for delay. I alsoagree with Hinton J in E that the Court of Appeal in Fernandes "were not laying downa rule that counsel error would never excuse delay".16 Each case will turn on its owncircumstances. Hinton J considered counsel error went some way as an explanation,and in those circumstances it was unreasonable for the applicant to be penalised forcounsel's mistake.17[24] As Mr Parry for the Crown accepted, where there is an utterly compelling caseof judicial review on the merits justifying substantive relief, a court would be slow todeny an applicant their right to judicial review, even if there had been a long delay dueto ignorance or counsel error. The right to apply for judicial review in accordance withlaw is guaranteed by s 27(2) of the New Zealand Bill of Rights Act 1990 (Bill ofRights). In interpreting the meaning of "special circumstances", the courts arerequired to prefer a meaning consistent with the rights and freedoms in the Bill ofRights. In deciding on applications for extensions, the courts are required to complywith the Bill of Rights.15 Singh v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 673,[2018] NZAR 463.16 E v Ministry of Business, Innovation and Employment, above n 10 at [30].17 At [33].Should the deadline be extended here?Submissions[25] Mr Speed, for Mr Dennis, accepts the delay was long and the general principleis failure by a legal adviser to file an appeal is not a good reason to excuse delay. Buthe submits the unique distinguishing feature of this case is Mr Dennis was eithersubject to bail conditions or imprisoned during the period of delay. He submits therisk of a miscarriage of justice in this case was sufficient to constitute "specialcircumstances". He submits INZ failed to take into account Mr Dennis's children inNew Zealand, is a company director and shareholder and the effect on his fiancée. Inparticular, he submits the failure to take into account the children in refusing to granta special direction is a breach of New Zealand's obligations under arts 9, 12 and 18 ofthe United Nations Convention on the Rights of the Child (UNCROC). He alsosubmits Mr Dennis should have been granted a limited visa under s 83(2).[26] Mr Parry, for the Crown, submitted there has been an exceptionally lengthydelay which should not be excused on the basis of counsel error. He submitted thatmeans the merits do not need to be considered which, in any event, are not strongenough to justify an extension of time. He submits judicial review proceedings are notnecessary because a better result could potentially be achieved by Mr Dennis applyingto cancel the deportation order under s 177.Decision[27] Here, the delay was very lengthy on any account: 265 and 188 days after thedeadlines in respect of the deportation order and visa refusal respectively.[28] The reasons for delay are very weak. There was no attempt to challenge eitherdecision. Mr Dennis says he did not realise the significance of the deportation orderand Mr Martell did not advise him of a time limit to challenge it. But there is noevidence from Mr Martell who, by all accounts, is an experienced immigration lawyer.And his emails in April 2017 clearly demonstrate he was aware of the significance ofsuch an order, as well as the likelihood there would be a reasonable basis for one if MrDennis was convicted, as he was. Mr Dennis says he was not advised by Mr Martellhe would be served with a deportation order or that there was a time period tochallenge it.18 But the first of those assertions is contradicted by Mr Martell'scontemporaneous email to INZ on 18 April 2017 that he had so advised Mr Dennis.[29] Although Mr Speed submits Mr Dennis was on bail or in prison, he was on bailfor most of 2017 and only imprisoned from December 2017. He was accordingly onbail for the entirety of both 28-day periods following service of the deportation orderon 22 June 2017 and the refusal of the work visa on 7 September 2017. I do not acceptthis significantly hampered his ability to correspond with counsel about filing in time.[30] On its face, there looks to be reasonably strong merit to the argument INZ didnot consider the interests of either of Mr Dennis's children. They were not mentionedin either decision letter even though INZ had received submissions about them. YetUNCROC and New Zealand law requires their interests be taken into account. MrParry conceded it is arguable that may constitute an error of law under judicial review.[31] However, Mr Parry is correct in submitting Mr Dennis cannot be granted a visadue to his convictions and sentence of imprisonment, under s 15(1)(b) of the Act. Soeven if a court were to quash the visa refusal decision and require it be reconsideredafter judicial review, that decision would remain the same. For that reason, a courtwould be very unlikely to grant such relief. Whether or not Mr Dennis could havebeen granted a limited visa under s 83(2) when his charges were still pending, he isnot now eligible for one. In assessing the merits of a potential application for judicialreview the courts will have regard to the realistic potential for effective relief, not justwhether there was reviewable error. I consider a court would be very unlikely to granteffective substantive relief on judicial review by Mr Dennis. And without a visa, evenif he were successful in overturning the deportation order, he would still be in NewZealand unlawfully and subject to deportation at any time.[32] Mr Dennis's only hope would be that a special direction, which lies withinINZ's absolute discretion under s 17(3), would have a different result than the specialdirection that was made in September 2017. The differences would be that INZ wouldconsider the best interests of Mr Dennis's children but would also know Mr Dennis18 Affidavit of Mr Des Dennis of 31 July 2018 at [48] and [51].had pleaded guilty to and been convicted and imprisoned for serious criminal offencesof family violence. I cannot know the outcome of such a decision. But a specialdirection review under s 17(3) does not result from judicial review. It is entirelydiscretionary and could be considered whether or not there is a judicial review.[33] There is another alternative available to Mr Dennis, as Mr Parry identifies onbehalf of the Crown. Under s 177, if Mr Dennis provides personal informationrelevant to New Zealand's international obligations to an immigration officer, theofficer will be required to consider cancelling the deportation order. This couldinclude the interests of Mr Dennis's children. The Crown's further submissionsindicate the Crown intends to make such a decision prior to Mr Dennis's release.[34] There has been a very lengthy delay here and very weak reasons for it.Nevertheless, I would be tempted to grant the extension if strong grounds for judicialreview were combined with a realistic prospect of effective relief. Upholding the rightto judicial review, in order to ensure consideration of the best interests of two childrenwho are innocent of wrongdoing, may constitute special circumstances by reason ofwhich extension may be justified. But while there appears to be reasonably stronggrounds for judicial review, there are very low prospects of effective substantive relief.And the Crown intends to consider the interests of the children through an alternativedecision-making route that does not depend on judicial review anyway. Thesecircumstances, combined with the very lengthy delay and very weak reasons for it, arenot special enough to justify extending the deadline for judicial review.Results[35] I decline Mr Dennis's application for an extension of his deadline to apply forjudicial review.Palmer J