BHAWSAR v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2022] NZCA 60

BHAWSAR v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION ANDEMPLOYMENT [2022] NZCA 60 [16 March 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA8/2022[2022] NZCA 60BETWEEN SACHIN BHAWSAR ANDDEEPIKA BHAWSARApplicantsAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentCourt: Kós P and Brown JCounsel: Applicants in personE A M Mok for RespondentJudgment:(On the papers)16 March 2022 at 10.30 amJUDGMENT OF THE COURTThe application for leave to appeal to the High Court from the decision of theImmigration Protection Tribunal is dismissed for want of jurisdiction.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] The refusal by Immigration New Zealand of the applicants' residenceapplication under the skilled migrant category of the Residency Instructions wasupheld by the Immigration Protection Tribunal1 (IPT) in a decision dated28 January 2021. Although Mr Bhawsar was notified of that decision by no later than1 Re: OV (Skilled Migrant) [2021] NZIPT 205937.2 February 2021, it was not until 9 November 2021 that the applicants filed in theHigh Court an application under s 245 of the Immigration Act 2009 (the Act).[2] Section 245(1) which provides for leave to appeal from an IPT decision states:245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (beingeither the person who appealed or applied to the Tribunal, an affected person,or the Minister, chief executive, or other person) is dissatisfied with anydetermination of the Tribunal in the proceedings as being erroneous in pointof law, that party may, with the leave of the High Court (or, if the High Courtrefuses leave, with the leave of the Court of Appeal), appeal to the High Courton that question of law.[3] Section 245(2) places a time limit on leave applications:(2) An application to the High Court under this section for leave to appealmust be made—(a) not later than 28 days after the date on which the decision ofthe Tribunal to which the appeal relates was notified to theparty appealing; or(b) within such further time as the High Court may allow onapplication made before the expiry of that 28-day period.[4] The application filed by the applicants in the High Court was described as anapplication "for leave to appeal out of time". There is of course no provision in theAct for such an application. The only applications which the High Court hasjurisdiction to entertain are for leave to appeal or to extend the time for doing so, bothof which must be filed within 28 days of notice of the IPT decision. Unsurprisinglythe respondent filed a protest to jurisdiction on the grounds that the application wasout of time and there was no jurisdiction to extend time to apply for leave.[5] Although in the High Court judgment of 21 December 2021 the applicationwas referred to by the Judge in the same manner as stated in the application itself,namely an application for leave to appeal out of time, in the course of his reasons theJudge explained that, given the passage of time, the Court had no jurisdiction toentertain either a leave application or an application to extend time. The formal ordermade was that "the application for leave to appeal out of time is dismissed".2[6] On 17 January 2022 the applicants filed an application in this Court. It is in theform of an application for leave to bring a civil appeal in Form 1 of Schedule 1 of theCourt of Appeal (Civil) Rules 2005. The judgment in respect of which leave to appealis sought is not the IPT decision but the High Court judgment of 21 December 2021.[7] It is plain here that the applicants lacked statutory foundation for theapplication they made. The act of filing cannot create an appellate jurisdiction deniedby statute. Filing in the High Court should have been declined. The High Court lackedjurisdiction to consider the application, and any judgment upon it, beyond dismissalfor want of jurisdiction, would have been a nullity. By the same measure, we have nojurisdiction to contemplate an appeal based on an application for which nojurisdictional basis exists.Result[8] The application for leave to appeal to the High Court from the decision of theImmigration Protection Tribunal is dismissed for want of jurisdiction.Solicitors:Meredith Connell, Auckland for Respondent2 Bhawsar v Chief Executive of the Ministry of Business, Innovation and Employment [2021]NZHC 3581 at [10].