YU V DEPT OF LABOUR HC AK CIV-2011-404-004300

YU V DEPT OF LABOUR HC AK CIV-2011-404-004300 21 July 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2011-404-004300UNDER the Judicature Amendment Act 1972IN THE MATTER OF an application for judicial reviewBETWEEN SHIDONG YUPlaintiffAND CHIEF EXECUTIVE, DEPARTMENT OFLABOURDefendantHearing: 21 July 2011Counsel: FC Deliu for PlaintiffA Longdill for DefendantJudgment: 21 July 2011JUDGMENT OF ASHER JSolicitors/Counsel:FC Deliu, DX CP27007, Auckland 1145. Email: fdeliu@amicuslawyers.co.nzMeredith Connell, DX CP24063, Auckland 1140. Email: anna.longdill@meredithconnell.co.nzIntroduction[1] This is an application for judicial review by Shidong Yu seeking an order thathe not be removed from New Zealand pending further order of the Court. Mr Yu isat present subject to a deportation order and is due to be escorted from the country at11.15pm tonight. The application was filed yesterday and is being heard today atshort notice and under considerable time pressure.Background[2] Mr Yu is of Chinese nationality and has been in New Zealand since April 2002. He came to New Zealand on a student visa and proceeded with a course of study, graduating with a diploma in business in 2009. Through the period, however,he has also worked. I am informed from the bar that there have been approximately19 visas or permits that he has obtained through the period he has been in NewZealand, all of a temporary nature.[3] Throughout the time Mr Yu has been in New Zealand he has been lawfully in New Zealand save for one period when, I am informed by Mr Deliu, he was for a brief time an overstayer.[4] At the beginning of December 2010 he was lawfully in New Zealand under a valid work permit issued under the Immigration Act 1987. That remained a valid permit when the new Immigration Act 2009 ("the Act") came into force on 29 November 2010. At that point the permit became a visa. That visa was to expireon 7 December 2010.[5] On 6 December 2010, one day before his work visa was to expire, Mr Yu applied for a visitor visa under the Act. At that time he was facing a criminal chargeof assault with intent to injure. Either at that time or some time thereafter, he faced afurther charge of breach of bail. In his visa application Mr Yu disclosed the fact thathe was facing a charge which he was defending.[6] On 7 December 2010 his visa expired and thereafter his presence in New Zealand was unlawful. He made no further application for any interim or temporaryvisa and no such visa was granted to him. There were then further communicationsin relation to his visa through the first half of 2011, which I will consider in duecourse.[7] The charges against him were heard in the District Court at Manukau and hewas found guilty on 7 March 2011. Conviction was deferred as he applied for adischarge without conviction. On 23 May 2011 that application for discharge wasdeclined. Mr Yu was convicted and sentenced to 100 hours of community service.[8] On 5 July 2011 the immigration officer who had been allocated to Mr Yu'sapplication, Mr Harsad Patel, became aware that Mr Yu's sentencing process hadconcluded and that he had been convicted and sentenced. On 11 July 2011 he sent aletter to Mr Yu declining his application for a visitor visa. On 18 July 2011 adeportation order was served on Mr Yu.[9] On 20 July 2011 there was a further consideration of Mr Yu's position unders 177 of the Act which gives an immigration officer a discretion to cancel adeportation order. After that interview (which took place yesterday afternoon) theimmigration officer involved, Mr Matthew Simpson, declined to exercise hisdiscretion to cancel the deportation order. That takes us to the present time whereMr Yu faces deportation tonight.Approach to this application[10] Mr Yu applies for review under s 4 of the Judicature Amendment Act 1972.The grounds are well understood. The Court will intervene if there has been materialprocedural unfairness, or if the decision has been made in excess of the authority'sstatutory power. It will intervene when an error of law is shown, or the authority hastaken irrelevant matters into account, or failed to consider relevant matters, or thedecision has the requisite degree of unreasonableness.[11] Section 8 of the Judicature Amendment Act provides for the granting of interim relief. The approach to applications under s 8 is well settled. The test is thatset out in Esekielu v Attorney-General where Hammond J observed:1It seems to me therefore, that whilst the individual applicant should not be required to demonstrate a very strong probability of success on the merits, the kind of matters that that individual must establish in support of a claim to interlocutory relief must be more than a showing that the question is not merely trivial. I would have thought both that there must be a real contest between the parties, and that the applicant has a respectable chance of succeeding in that contest.This approach has been adopted frequently, recently in the Court of Appeal decisionof Parmanadan v Minister of Immigration.2The grounds of appeal[12] I set out paragraphs 5 and 6 of the amended statement of claim which set outthe grounds for review:5. The decision of 11 July 2011 was procedurally unfair in that theplaintiff was: (i) denied a timely processing of his visitor's visaapplication and/or (ii) not given an interim visa to preserve his positionand/or he (iii) not given a recent "potentially prejudicial information"letter allowing him to address any specific remaining concerns that thedefendant had over his application6. The decision of 20 July 2011 was contrary to the separation of powersdoctrine in that it interfered with the judicial branch of governmentbecause the plaintiff is still serving his District Court sentence andtherefore is under the jurisdiction of that court of law and to deport himnow would de facto, if not de jure, cause him to have breached hissentence and/or become a fugitive and thus unduly tarnish his characterthrough no fault of his own and in any event be contrary to the interestsof the criminal justice system in having convicted criminals serve theirsentences.[13] As can be seen paragraph 5 effectively contains three separate grounds and Iwill deal with each one before going to the issues set out in paragraph 6. I havereversed the order of the first two issues in paragraph 5 to deal with themchronologically.1 Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC) at 313.2 Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424 at [3].Was it procedurally unfair that Mr Yu was not given an interim visa to preserve his position?[14] Mr Deliu's argument on this point essentially turns on s 80 of the Act, whichprovides:80 Interim visa(1) The Minister or an immigration officer may, for the purpose of maintaining the lawful status in New Zealand of the applicant while the application is being considered, grant an interim visa to a person in New Zealand who—(a) holds a temporary visa; and(b) has applied for a further visa (whether a residence class or a temporary entry class visa).(2) No person has the right to apply for an interim visa, and any decision as to whether to grant an interim visa is a matter for the absolute discretion of the Minister or relevant immigration officer.(3) The holder of an interim visa may not apply for a visa of any other class or type.[15] Mr Deliu submitted that an interim visa should have been immediatelygranted to Mr Yu when he applied for a visitor visa on 6 December 2010 whichwould have held his position while the application for a visitor visa was beingdetermined. If that had been done, he submits, when the application for a visitor visawas declined on 11 July 2011 Mr Yu would then have been able to rely on the periodof grace provided for at s 154(2) of the Act. That section provides that a personunlawfully in New Zealand may, not later than 42 days after first becomingunlawfully in New Zealand, appeal on humanitarian grounds against his or herliability for deportation. In addition, Mr Deliu argued that if Mr Yu had an interimvisa he would remain further in New Zealand and be able to exercise other remedies.[16] The interim visa is a new type of visa and not in the previous Act. A person has no right to apply for such a visa and the decision whether to grant such a visa is amatter for "the absolute discretion" of the Minister or relevant immigration officer."Absolute discretion" is itself now defined in the Act at s 11. Section 11 provides:11 Meaning of absolute discretion of the decision makerIf a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that—(a) the matter or decision may not be applied for; and(b) if a person purports to apply for the matter or decision, there is no obligation on the decision maker to—(i) consider the purported application; or(ii) inquire into the circumstances of the person or any other person; or(iii) make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and(c) whether the purported application is considered or not,—(i) the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and(ii) section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application.[17] The legislature has been at pains to make it clear in s 80 that there is noobligation to grant an interim visa. The word used in s 80(1) is "may".[18] Section 11(b)(i) makes it clear that the decision maker does not need toconsider any purported application. I accept Ms Longdill's submission that itfollows from this that if there is no application made at all (as indeed is intended bys 80) there is no obligation on the decision maker to consider whether to grant theinterim visa (absent any special factors). It is not likely that the legislature wouldhave absolved a decision maker from considering an actual purported application,while intending that the decision maker would have to consider the granting of a visawhen there was no purported application at all. The clear implication is that anabsence of consideration is not in itself a ground for challenge. This is reinforced bythe provisions absolving the decision maker from inquiry or the giving of reasons.Against that background I turn to consider the circumstances of Mr Yu's position.[19] An interim visa can only be granted to a person who holds a temporary visaand has applied for a further visa. Mr Yu held a temporary visa at the time heapplied for his visitor visa on 6 December 2010, so at that point in time he waseligible for an interim visa. However, he only was eligible for one day. His temporary visa expired on that day, 7 December 2010, and thereafter he was unlawfully in New Zealand and not eligible for an interim visa.[20] There is nothing to indicate that on that one day of eligibility the immigrationofficer considered granting Mr Yu an interim visa. In the weeks that followedImmigration New Zealand set up an automated system for granting interim visas.One of the immigration officers involved, Mr Kevin Cameron, has deposed that evenif that system had been in place on 7 December 2010 Mr Yu would not have beenautomatically granted an interim visa. This was because he had disclosed that he hadpending criminal charges. The immigration instructions state that an interim visawill not be granted by the automated system if a person has particular alerts orwarnings related to character.[21] I do not consider that on these particular facts it can be said that there wasany unlawfulness or procedural unfairness in not granting Mr Yu an interim visa.The grant of such a visa is entirely discretionary and s 11 has emphasised theabsolute nature of that discretion. I do not consider that on the one relevant daythere was any obligation on the immigration authorities to consider whether Mr Yushould be granted a visa.[22] Mr Yu had chosen to leave his application to apply for a visitor visa to thesecond to last day available to him. Mr Deliu argued that he was entitled to do soand there was little point in making an application at an earlier point. I disagree.While there is no obligation to make applications in a timely manner, the Court willbe much more reluctant to assist a person who has left the pursuit of his or her legalrights to the very last minute and then suffers adverse procedural consequences thatnaturally result.[23] Further, it is very unlikely that even if the grant of an interim visa had beenconsidered with all factors taken into account, one would have been granted. This isbecause of the moderately serious charge that was being faced by Mr Yu and thepotential blemish therefore on his character. In this regard I also note s 14(2), whichprovides:14 Persons other than New Zealand citizens must hold visa to travel to and be in New Zealand(2) To avoid doubt, the fact that an application for a visa has been made by or for any person who is onshore does not—(a) render the person's presence in New Zealand lawful; or(b) give the person a right to remain in New Zealand while theapplication is considered; or(c) give the person a right to apply for or be granted any other visa pending determination of the application; or(d) inhibit any deportation procedures under this Act that may apply to the person.[24] Mr Deliu's submissions came close to suggesting that Mr Yu had a right to aninterim visa. Section 14 makes it clear he had no such right in these circumstances.[25] Finally on this point, I note that even if Mr Yu had been granted an interim visa it would have expired on 11 July 2011 with the declinature of his application fora visitor visa. It is true that he would then have had some further rights, but thesewould have been limited. He could not have applied for reconsideration, as unders 185(2) he would no longer have been lawfully in New Zealand.[26] It is also relevant that Mr Yu has not made any application to the Immigrationand Protection Tribunal which is designed to afford protection to immigrants in adifficult position.[27] For all these reasons I conclude there was no procedural unfairness or any error or unlawful action on the part of the immigration authority in Mr Yu not being given an interim visa.Was it procedurally unfair to not process Mr Yu's application for a visitor visain a timely manner?[28] Mr Deliu argued that the approximate six month delay between the making and the determination of the visa application is unfair. It is not entirely clear how this could be unfair to Mr Yu, as it is not suggested that the delay in any waymaterially prejudiced him. All it did was give him more time in New Zealand, given the ultimate outcome.[29] Mr Deliu submitted that the immigration authority had not pursued the matter between February and July 2011. It is necessary to refer to the relevant facts.[30] Mr Patel had been allocated Mr Yu's application by Immigration New Zealand. After reviewing Mr Yu's immigration history he sent a letter to Mr Yu on 10 February 2011. In that letter Mr Yu was advised that he appeared not to be a bona fide or genuine visitor. It was stated that no final decision had been made and he was invited to make comments or provide further information. That further information sought included a caption sheet or summary of facts for the pending charges.[31] On 28 February 2011 Mr Patel received an undated letter from Mr Yu. He gave an explanation of the charge of assault with intent to injure and referred to his employment prospects. He did not provide the caption sheet or summary of facts. On 7 March 2011 Mr Yu was found guilty. He did not advise Immigration New Zealand of this for over a month.[32] On 8 April 2011 he provided a letter from the Public Defence Service confirming the outcome of the hearing. That letter advised that there was an application for discharge to be heard on 12 April 2011. Mr Yu did not advise Immigration New Zealand of the result of this application. Mr Patel emailed the Public Defence Service on 18 April 2011 seeking an update but received no reply. He then made a number of requests to the New Zealand Police for information as toMr Yu's charges. He received advice that the charges were still pending and to re- apply at a later date.[33] On 4 July 2011 Mr Patel had still not received further information about the criminal charges. He telephoned Mr Yu on his mobile phone. He took notes of the telephone conversation. Mr Yu then advised him that on 24 May 2011, some five to six weeks earlier, he had been convicted and received 100 hours' community service. Mr Yu stated that he had a job offer which was still on hold. He said he wouldprovide evidence that the job offer was still open. That was to be provided by 8 July 2011. Mr Yu said he was not working and was being supported by his parents. Mr Yu said he would send confirmation of the Court hearing.[34] Mr Yu did not provide this documentation or any information about a job offer. On 11 July 2011 Mr Patel declined Mr Yu's application.[35] In these circumstances I do not consider there to have been any unreasonable delay on the part of Immigration New Zealand. If Mr Yu had responded promptly and provided the information sought when it became available his application would have been processed much more quickly. Indeed, it is likely that his application would have been determined shortly after 23 May 2011. The delays were a consequence of the Christmas break, the wait for the charges to be determined, andMr Yu's slow responses.[36] An impression is left from a reading of the relevant material that Mr Yu has tended to leave things to the last minute and only provided information when it has been sought (and even then not always). That is not to say that he has deliberately misled Immigration New Zealand. He has not. But he has been far from diligent in the pursuit of his application and in the provision of information.[37] Mr Deliu raised a related point in the course of submissions. He suggested that the application for the visitor visa was clearly wrong as Mr Yu had referred in his application to work prospects. It should have been obvious, Mr Deliu submitted, that what he was really seeking was a work visa and the application should have been processed on that basis.[38] Ms Longdill pointed out in response that a work visa would involve an entirely different type of application with different material to be provided and a different fee.[39] I cannot accept that there was any duty on Immigration New Zealand torecast Mr Yu's visa application for him. Further, on these particular facts it is clear Mr Yu has had a good deal of experience in dealing with his own immigrationmatters and had indeed held a work visa in the past. Even if he had applied for a work visa in December 2010 he was not in employment throughout this period and has had no documented offers of a job. It is therefore highly unlikely that if he had applied for a work visa his application would have been any more successful than his application for a visitor visa. Indeed, this may have been on his mind when he made the decision as to the type of visa that he would seek.Was it procedurally unfair for Mr Yu not to be given a "potentially prejudicialinformation" letter?[40] Mr Deliu argued that a letter should have been sent setting out any prejudicial information held by the department, allowing Mr Yu to address any specific remaining concerns that Immigration New Zealand had concerning his application.[41] Ms Longdill submits that the letter of 10 February 2011 was in fact just such a letter.[42] The letter of 10 February 2011 observed that all applicants for a visitor visa are required to be bona fide "that is genuinely intending a temporary stay in New Zealand for a lawful purpose". It stated that Mr Yu had indicated a previous employment opportunity and noted that he had obtained work visas previously. It was observed that he appeared not to be a bona fide or genuine visitor. Reference was made to Immigration New Zealand's guidelines which defined "lawful purpose"for visitors. They are purposes as could be expected which include holidaying and sightseeing. It was stated specifically that such visitors should not be intending to undertake employment. It was asked why he was requesting a visitor visa. He was also asked to provide a bank statement (which was provided) and a caption sheet and summary of facts (which was not). He was given a time limit for providing the further information. There was also reference to Mr Yu's financial affairs and the pending charges.[43] The nature of Immigration New Zealand's concerns were clear from the letter. The answer was obviously going to be a matter of relevance. In these circumstances I conclude that Mr Yu was fairly informed of the matters that wereconcerning Immigration New Zealand and there is no cause to complain about procedural unfairness in this regard.[44] On an overview Mr Yu was in a weak position. He had a long history of obtaining temporary visas and had left this application for a further visa to the very last minute. He had applied for a visitor visa when clearly he did not intend to act like a visitor and was looking for work. He may have wanted a work visa, but had no work. To add to this he was facing a moderately serious criminal charge that would, if he was convicted, reflect badly on his character and his suitability as an applicant for further visas. Against this background he can hardly complain about his failure to elicit favourable discretionary responses from Immigration New Zealand.The decision not to cancel the deportation order inconsistent with the sentencing of community service[45] Mr Deliu argued that the refusal to cancel the deportation order on 20 July 2011 was an error as Mr Yu still had a sentence of 100 hours' community service to fulfil. This meant that in deporting Mr Yu the sentence was being defeated. Heargued this was contrary to the "separation of powers doctrine" and that thedeportation constituted an interference with the judicial branch of government.[46] There is no section explicitly dealing with deportation of persons subject to sentence save for s 178 of the Act, which provides:178 Executing deportation order(1) A deportation order may be executed once it has been served on the person subject to the order.(2) A deportation order may be executed by—(a) taking the person into custody; and(b) escorting the person (or arranging for the person to be escorted) to an airport or port; and(c) ensuring that the person is placed on board a craft and detained there until the person leaves New Zealand.(3) A deportation order may be executed in respect of a person who is serving a sentence of imprisonment in a prison only if the Minister has ordered the release of the person in accordance with section 55 of the Parole Act 2002.[47] This section therefore sets out a specific basis for executing a deportation order in respect of a person who is serving a sentence of imprisonment. Significantly this is the only limitation placed on the reach of a deportation order. It might be thought that if it was the intention of the legislature to restrict the execution of a deportation order in respect of a person who was serving a sentence that was not a sentence of imprisonment, such a limitation would be set out in this section.[48] This position was noted in the Court of Appeal decision of R v Ondra.3 The case is not on point on the facts in that it was an appeal against sentence. However, in the course of dealing with the relevance of deportation to the sentence, the Court of Appeal observed:4The Immigration Act does not contain any express prohibition upon a removal order being executed while the offender is serving a sentence of home detention or some lesser sentence. There is a provision that a removal order cannot be executed while a person is in prison undergoing imprisonment.[49] This position was noted in the later consideration by Heath J in Ondra v Immigration New Zealand of Mr Ondra's application for review of the decision to execute a removal order served on him.5 He observed:6With respect to Mr Ryan, I do not see that there is any arguable proposition that home detention is a sentence that must be completed before the offender may be put into the custody of the Police for the purpose of removal. Some support for that view is also found in the judgment of the Court of Appeal onMr Ondra's appeal against sentence. Observations made by Fogarty J, in delivering the judgment of the Court (at paras [7], [13], [14] and [19]) suggest that the Court of Appeal approached the case on the basis that it was open to Immigration authorities to seek enforcement of the removal order prior to the sentence being completed.[50] Section 3(1) of the Act provides:3 R v Ondra [2009] NZCA 489.4 At [14].5 Ondra v Immigration New Zealand HC Auckland CIV-2009-404-7328, 17 November 2009.6 At [22]3 Purpose(1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.[51] It is difficult against that purpose to consider that there would be any intention on the part of Parliament to restrict Immigration New Zealand's powers, save in the express situation referred to in s 178(3). To do so would be to create an anomalous situation. As Ms Longdill points out, sentences can easily be prolonged if it is the wish of the person who is sentenced to do so. In this particular case it seems Mr Yu has not completed much, if any, of his 100 hours' community service. A person sentenced could easily prolong such a sentence for an indefinite period. Indeed, defaults could lead to it being lengthened again. It would be most unfortunate that if by such means execution of a deportation order could be deferred.[52] Mr Deliu did not elaborate on his argument that the deportation would becontrary to the "separation of powers doctrine". Although there is undoubtedly a separation of powers between the branches of government, I can see no breach of that separation should the deportation be ordered and Mr Yu not complete his sentence. Should he ultimately re-apply for a visa and return to New Zealand the sentence will still stand. If Mr Deliu is suggesting that it is some sort of anomaly or contempt of Court for a sentence to be defeated by a deportation order, I do not accept that submission. As s 178 indicates, the powers of the Minister of Immigration are considerable. Section 55 of the Parole Act gives the Minister a discretion to give the manager of a prison a written notice ordering the release of an offender into the custody of a constable or immigration officer in certain circumstances. So he has a wide power conferred on him to deport.[53] Given that the Minister has such wide ranging powers, I have no doubt that the Minister has the legitimate power to issue a deportation order when there is an uncompleted sentence of community service. Therefore, this ground of review is not made out.Result[54] I conclude that Mr Yu has not demonstrated a real contest or a respectable chance of success in the substantive proceedings. I consider that he would lose if he pursued them.[55] The application for interim relief preventing Mr Yu's removal from New Zealand is declined.Costs[56] Costs are ordered in favour of the defendant on a 2B basis together with reasonable disbursements...Asher J