VEITOGAVI V THE CHIEF EXECUTIVE, DEPARTMENT OF LABOUR HC AK CIV-2009-404-001583

VEITOGAVI V THE CHIEF EXECUTIVE, DEPARTMENT OF LABOUR HC AK CIV-2009-404-001583 18 August 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-001583IN THE MATTER OF the Declaratory Judgments Act 1908 AND IN THE MATTER OF the Immigration Act 1987 BETWEEN SAINIVALATI VEITOGAVI Plaintiff AND THE CHIEF EXECUTIVE, DEPARTMENT OF LABOUR Defendant Hearing: 13 August 2009 Appearances: M Clark for Applicant V Casey for Respondent Judgment: 18 August 2009 at 11.30 a.m.JUDGMENT OF VENNING JThis judgment was delivered by me on 18 August 2009 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar DateSolicitors: Vallant Hooker & Partners, Auckland Crown Law, WellingtonIntroduction[1] The applicant is a citizen of Fiji. He has been in New Zealand since February 2005. He and his family wish to remain here. On 16 May 2007 the respondent revoked his work permit. The applicant wishes to have that decision reviewed by this Court. As the application to review is out of time leave of the Court is required.Background[2] The applicant was a member of the Fiji military for 19 years before coming to New Zealand in February 2005. He came to New Zealand to accept a two-year scholarship awarded by the Fijian Affairs Board. At the time of leaving Fiji for New Zealand he applied for and was granted release from the Republic of Fiji Military Force. [3] The applicant studied for two years in New Zealand before his scholarship ended. He then applied for a job as a corrections officer with the Department of Corrections. His background and experience in the army led to him being awarded the position. He applied for a work permit. The respondent issued a work permit on 12 December 2006. The work permit was valid for two years until 12 December 2008. [4] On 6 December 2006 there was the most recent coup in Fiji. In response to that coup Immigration New Zealand issued immigration policy E2.32 on 14 December 2006. The policy provided for a ban on the issue of visas or permits to individuals associated with the December 2006 Fiji coup in the following terms inter alia:a. The New Zealand government wishes to take action in an immigration respect against: i. All people who are (or were on 6 December 2006), members of the Republic of Fiji Military Force (RFMF), ...b. Despite any other provisions of government immigration policy, none of the people described in (a) above may be issued a visa to enter New Zealand (including a transit visa) or granted any permit to be in New Zealand Effective 14/12/06[5] While the applicant had been granted release to come to New Zealand to study, he remained a member of the Fiji Military until he resigned in April 2007. [6] On 16 May 2007 the applicant was served with a notice of revocation of his work permit. The grounds of revocation were that as at 6 December 2006 he was a member of the Fiji Military and:... therefore the basis on which your permit was granted no longer exists.The revocation was stated to become effective on 8 June 2007. [7] The applicant, through his solicitor, responded to Immigration New Zealand by letter of 6 June 2007. The respondent considered the submission but on 22 June 2007 confirmed the revocation would remain effective as from 8 June 2007 because:The NZ Government has made a special policy refusing visas and permits to Fijian citizens who are members of the ... Fiji Military ... You were a member of the Fiji Military on 7 December 2006. That means that had you applied for a visa or a permit after that date you would have been refused. The fact that you later resigned from the Fiji Military does not alter the situation that you were a member of the Fiji Military on 7 December 2006.[8] On 19 July 2007 the applicant lodged an appeal to the Removal Review Authority against the revocation of his temporary permit. Earlier, on 4 July he had lodged a formal complaint with the Ombudsman. Both were done with his solicitor's assistance. On 27 July the Chief Ombudsman indicated that while she was not persuaded that the revocation was unlawful on the grounds of non- retrospectivity she was able and willing to investigate a complaint that the decision to revoke the permit was unreasonable. [9] The Ombudsman's investigation took some time to complete. The final decision was not issued until 5 March 2009. The Ombudsman considered it unfair for Immigration New Zealand to have proceeded with the revocation and recommended that Immigration New Zealand refer the applicant's case to theMinister. The Ombudsman noted that Immigration New Zealand had agreed to comply with that recommendation. [10] The applicant declined to have the matter referred to the Minister but instead filed these proceedings on 19 March 2009. The formal application for leave to bring the proceedings was itself not filed until 4 May 2009.Jurisdiction[11] Section 146A of the Immigration Act 1987, as relevant, provides as follows:Special provisions relating to judicial review of decisions under this Act(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced within 3 months after the date of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.[12] The applicant's proceedings were not issued until March 2009, substantially outside the three month time period provided for by s 146A. The onus is on the applicant to satisfy the Court that by reason of special circumstances leave should be granted to bring the application out of time. In the case of Rajan v Minister of Immigration [2004] NZAR 615 (CA) the Court of Appeal considered the application of s 146A and particularly the term "special circumstances". The Court said as follows:[24] The term "special circumstances" is a commonly used phrase in the New Zealand statute book. It requires circumstances that are uncommon, not commonplace, out of the ordinary, abnormal – see Cortez Investments Ltd v Olperhert & Collins [1984] 2 NZLR 434 in which this Court considered the meaning of special circumstances in the context of s151 of the Law Practitioners Act 1972. Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s146A time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans' application was filed one month late and thus would require an extension of one third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay.Submissions for the applicant[13] Ms Clark accepted that the delay in this case was lengthy but submitted there were special circumstances for two principal reasons: i) The applicant's financial position; and ii) The delay was in part explained by the failure of the Immigration Service to respond promptly to queries from the Ombudsman.The applicant's financial position[14] Ms Clark submitted that when the applicant's work permit was revoked he was unable to bring review proceedings to challenge the decision as he did not have the financial ability to do so. He was not eligible for legal aid as a non New Zealand citizen. For that reason he pursued alternative ways to challenge the decision, such as the reference to the Ombudsman. She submitted that the applicant's case was to be distinguished from the case of Yu & Cha v Chief Executive, Department of Labour (HC AK CIV 2006-404-5702 13 November 2006 Winkelmann J). Ms Clark submitted the application to the Ombudsman was an application to an independent investigator able to investigate complaints about administrative acts and decisions of government agencies and was to be distinguished from the decision by Yu & Cha to pursue other avenues. [15] I am not able to accept that the applicant's financial circumstances constitute special circumstances to explain the delay in this case. The applicant's financial circumstances have not prevented him from receiving legal advice. The applicant was, throughout the process, in receipt of advice from lawyers, the same lawyers who have now filed these proceedings. Those lawyers, rather than the applicant, communicated throughout with the Ombudsman's office. [16] Further, although the applicant does not refer to it in his affidavit, the applicant also lodged an appeal to the Removal Review Authority. As Ms Caseynoted, that was lodged with the assistance of solicitors and required full submissions at the time it was lodged. The applicant was able to take a number of steps which involved solicitors during the three month period provided for by s 146A. The applicant has now been able to bring the proceedings. His financial circumstances do not explain the 19 month delay in bringing these proceedings. [17] Nor am I able to accept that the decision of Yu & Cha can be distinguished as Ms Clark submitted. The principle to be drawn from that case is that a decision by a party to pursue an alternative strategy to the judicial review cannot constitute a reason for delay sufficient to amount to a special circumstance. The underlying motivation or reason for pursuing alternative avenues is not relevant. In both cases the applicants deliberately chose to pursue alternative avenues of redress instead of seeking judicial review. The applicant seeks to reinstate his position because the decision of the Ombudsman has not led to the outcome he may have wished for. That is not acceptable. It is, as was the case of Yu & Cha, simply a change in position.The reason for the delay[18] Ms Clark next submitted that a substantial part of the delay between 4 July 2007 and the final decision by the Ombudsman on 5 March 2009 was due to the delay by Immigration New Zealand responding to queries by the Ombudsman. Ms Clark submitted that correspondence from the Ombudsman disclosed that there were delays between the Ombudsman's requests for information and the responses from Immigration New Zealand of approximately one month, two months and seven months, in total some 10 to 11 months of delays by the Service. [19] With respect, however, the reasoning underlying the submission is flawed. It assumes that Immigration New Zealand was required to respond within a 24 hour period in each case. Details of the precise information required is not before the Court. It could not be, as s 19(6) of the Ombudsman Act 1975 would prevent it being adduced. But even if the information should have been provided in half the time, so that Immigration New Zealand was responsible for one half of the delays in the responses that still leaves a period of delay by the process unrelated to therespondent, of some 13 to 14 months. Further, even if the time for response is entirely discounted, the delay is still eight or nine months after the expiry of the statutory time limit, which on any reasonable view is an unacceptable delay. [20] Next, Ms Clark overstates the delay in Immigration New Zealand's replying to the queries as a reason for the time it took the Ombudsman to report. There were other reasons. The Ombudsman also referred to the complexity of the issues involved as a further reason for the prolonged investigation and delay in reporting. [21] A similar submission, namely that the Immigration Service was responsible for the delay, was made in Rajan. It was said that the proceedings could not be filed until the applicants had copies of documents they had placed before the Associate Minister and the Immigration Service had caused the late filing by the delay in providing a list of documents. The Court rejected that submission. The Court noted that the grounds of review were general in nature and could have been pleaded on the basis of the information and knowledge held by the Rajans without the need for them to await the list of documents from Immigration New Zealand. [22] The same situation prevails in this case. The points made in the proposed statement of claim are essentially the same points the appellant made in the initial letter to Immigration New Zealand when seeking a review of the decision to issue the notice of revocation. The applicant did not need to wait for the Ombudsman's report to make this application. [23] The Court is driven to conclude that neither of the reasons raised by the applicant to explain the substantial delay in this case, namely his financial position and delay by Immigration New Zealand, explain the delay. Neither of them amount to special circumstances which would justify this Court in granting leave. [24] The delay in this case has been substantial, some 19 months. The applicant has not been able to provide a proper explanation for that delay. On the evidence before the Court there are no special circumstances that would justify the substantial delay of 21 months. As the Court observed in Rajan:... the discretion to extend time should not be exercised too readily and very rarely if the delay is long.[25] In the circumstances, and consistent with the decisions of Yu & Cha andJaing v Chief Executive Officer of Department of Labour (HC AK CIV-2005-404- 000967 28 April 2005 Harrison J) the applicant does not cross the statutory threshold for consideration of the application. He cannot make out special circumstances and it is unnecessary to consider the merits of his case.The merits[26] However, I appreciate the matter is important to the applicant. He should know that he has not failed in his application on the basis of a technical time bar. While it is not appropriate to consider the merits in detail, even a brief review of the merits suggests that the applicant had a difficult case to make for review. [27] While the Ombudsman accepted that the process in this case was unfair, the Ombudsman did not consider that Immigration New Zealand had acted unlawfully. The Ombudsman rejected the retrospective argument the applicant seeks to raise in these proposed proceedings. Further, the Ombudsman does not appear to have considered whether the policy itself was unlawful as such. It is important to record that the Ombudsman's finding the process was unfair does not equate to a finding of unreasonableness in judicial review terms. The Ombudsman's role permits the Ombudsman to take a much broader view of the matter than a Court would be obliged to take on judicial review. [28] While it cannot be said the applicant's case was so lacking in merit that it would have been struck out if it had been brought in time, at best it might be said to raise arguable issues. That is not sufficient to tip the balance in a case where the delay has been substantial as in this case. Again, as the Court of Appeal said inRajan:[30] Examination of the merits could tip the balance in a marginal case. For example where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. Wedoubt, however, that even very strong merits could ever justify an extension if (as here) there is no proper excuse for the delay in filing.[29] While the applicant's case may be arguable, it cannot be described as strong, and as noted by the Court of Appeal even if it was strong, there is no proper excuse for the substantial delay in this case.Result[30] The application for extension is dismissed. [31] I make no order for costs in the circumstances. __________________________ Venning J