KESONSUNG V MINISTER OF IMMIGRATION HC AK CIV 2006-404-1597

KESONSUNG V MINISTER OF IMMIGRATION HC AK CIV 2006-404-1597 22 September 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-1597UNDER The Judicature Amendment Act 1972 BETWEEN TIPAKORN KESONSUNG AND PRAPAPORN KESONSUNG Applicants/plaintiffs AND MINISTER OF IMMIGRATION Respondent/defendant Hearing: 18 September 2006 Appearances: P J Pa'u for applicants/plaintiffs A R Longdill for respondent/defendant Judgment: 22 September 2006JUDGMENT OF ALLAN JSolicitors: Keil & Associates, PO Box 8124, Symonds St, Auckland Crown Solicitor, AucklandIn accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 11.30 am on Friday 22 September 2006[1] This is an application made pursuant to s 146A of the Immigration Act 1987 (the Act) for leave to bring, out of time, one of a number of causes of action pleaded in judicial review proceedings commenced on 24 March 2006. No leave is required in respect of the remaining causes of action which relate to events occurring at a later point in time. [2] Section 146A provides:146A 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. (2) Where a person has both— (a) Appealed against a decision of [the Board or] an Authority or the Tribunal under any of sections 115, 115A, and 117; and (b) Brought review proceedings in respect of that same decision,— the High Court is to endeavour to hear both matters together unless it considers it impracticable in the particular circumstances of the case to do so. (3) In this section, statutory power of decision has the same meaning as in section 3 of the Judicature Amendment Act 1972. (4) Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.Background[3] The plaintiffs are subject to removal orders made under s 54 of the Act. They apply for judicial review of certain decisions made by the defendant through his delegate. The first such decision was dated 19 December 2005. In it the Minister declined applications made by the plaintiffs pursuant to s 35A of the Act, upon the grounds that:a) the plaintiffs had not lodged permanent residence applications as required by the Associate Minister of Immigration in a decision made in 2003, and b) there were no special circumstances. [4] The plaintiffs say that they had, in fact, complied with the earlier directions of the Associate Minister, and that they had filed applications for permanent residence. Accordingly, they plead a mistake of fact on the part of the defendant and say that the decision of 19 December 2005 was invalid in that it was: a) unreasonable; b) disproportionately harsh; c) based upon a material error of fact; d) made in circumstances of procedural unfairness; e) contrary to law and/or was made without taking into account adequately or at all the interests of the New Zealand born child of the plaintiffs, including in particular:• New Zealand international treaty obligations pursuant to the United Nations Convention on the Rights of the Child;• The matters set out in ss 4, 5 and 6 of the Care of Children Act 2002. [5] This is the cause of action in respect of which the plaintiffs seek leave pursuant to s 146A. The decision was made on 19 December 2005; this proceeding was commenced on 24 March 2006, so the proceeding is five days out of time insofar as this first cause of action is concerned.[6] There is a second cause of action which relates to events occurring in March 2006. The plaintiffs claim that through their solicitor they entered into an agreement with the New Zealand Immigration Service (NZIS) whereby it was agreed that: a) the NZIS would not take removal action against the plaintiffs so that the plaintiffs could apply for Ministerial intervention or judicial review; b) if such applications failed then the plaintiffs would be allowed to leave New Zealand voluntarily. [7] On 16 March 2006 the NZIS served removal orders on the plaintiffs and took Mr Tipakorn Kesonsung into custody. Those actions are alleged to have been in breach of the earlier agreement with the NZIS and in breach of the legitimate expectation held by the plaintiffs that the defendant would comply with the agreement. The NZIS declined to cancel the removal orders. On 23 March 2006 the Minister refused (following an application made to him on 16 March 2006) to take any one of a number of steps available to him which would have ameliorated the position of the plaintiffs, save that he waived the usual five year ban on re-entry into New Zealand placed upon those who are the subject of removal orders. [8] The plaintiffs plead several causes of action in respect of the events of March 2006, couched in similar terms to those pleaded in respect of the December decision. This proceeding was commenced within a matter of days of the events of March 2006. Leave was accordingly not required in respect of the causes of action arising out of those events.The law[9] Section 146A requires the plaintiffs to demonstrate that there are "special circumstances" which justify the grant of leave. The provisions of the section were considered by the Court of Appeal in Rajan v Minister of Immigration [2004] NZAR 615. There the Court of Appeal said at [24]:[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.[10] In that case the appellants had sought leave to apply for judicial review of a decision by the Associate Minister of Immigration on 11 December 2002, to decline to grant character waivers. On 31 January 2003 the appellants requested disclosure of a list of documents placed before the Associate Minister. On 28 February 2003 the NZIS provided that list. On 11 March 2003 the appellants' agent requested copies of some 55 documents which were supplied on 27 March 2003. The judicial review proceeding was commenced on 11 April 2003, one month late. The appellants argued that the NZIS had been responsible for the late commencement of the proceeding, by reason of its delay in providing the list of documents. In response the Court said:[27] We agree with the Crown submission that these grounds are general and that they would have been able to be pleaded on the basis of the Associate Minister's letter and matters within the knowledge of the Rajans. The only ground that arguably required the disclosure of the file was the ground relating to inadequate information being before the Associate Minister. Even in that regard the provision of the list would have sufficed and the list was provided in ample time to allow the proceedings to be filed before the three month time limit had expired. We note too that the Rajans were aware at the time of requesting the list of documents that the full file had been lost and that there was a long delay on the part of the Rajans before even requesting the list of documents. In our view therefore there was no excuse for the delay in filing.[11] On the facts therefore, the Court of Appeal held that the grounds upon which the appellants proposed to rely were general in character and did not require disclosure of the documents themselves. Having regard to the information already within the knowledge of the appellants, their case could have been pleaded inreliance upon the list provided on 28 February 2003, some 12 days prior to the expiration of the limitation period. [12] The approach to the exercise of the discretion conferred by s 146A discussed in Rajan was adopted more recently in Achhido v Governor of Mt Eden Prison[2001] NZAR 584 and in Fang v Removal Review Authority HC WN CIV 2005-485- 1257 5 August 2005. In the former case O'Regan J referred to the objectives of the section as set out in the long title of the Immigration Amendment Act 1999, which introduced s 146A. Among the purposes set out in the long title were those of improving the effectiveness of the removal regime for persons unlawfully in New Zealand by streamlining the procedures involved, so ensuring both a higher level of compliance with immigration laws and that persons who do not comply with immigration procedures and rules are not advantaged in comparison with persons who do comply. [13] In Rajan the Court of Appeal discussed the role of a consideration of the merits in the context of applications for leave, and held that a brief examination of the merits may be called for in some cases, particularly where the review proceedings were hopeless. That could dictate the refusal of leave even where a strong excuse existed for the delay. Moreover, as the Court explained, an examination of the merits could tip the balance. In marginal cases where the delay is not long, there is some excuse for delay, and the merits are apparently strong, then an extension of time may be justified. However, even very strong merits are unlikely ever to justify an extension where there is no proper excuse for the delay in filing: see [29] and [30].The plaintiffs' argument[14] The plaintiffs argue that special circumstances exist in this case by reason of three factors: a) a delay on the part of the NZIS in providing the plaintiffs' file following a request for those documents made by their counsel;b) communication difficulties which delayed counsel obtaining instructions from the plaintiffs; c) a delay arising because the plaintiffs chose to make an application for Ministerial intervention, rather than to launch this proceeding.Delay by NZIS[15] The plaintiffs rely heavily on an asserted delay on the part of NZIS in providing to them documents relating to the decision of 19 December 2005. It is important to place the relevant decision in its statutory context. It was made under s 35A which provides:35A Grant of Permit in Special Case(1) The Minister may at any time, of the Minister's own volition, grant a permit of any type to a person who— (a) Is in New Zealand; and (b) Is required under this Act to hold a permit to be in New Zealand; and [(ba) Does not hold a permit to be in New Zealand; and] (c) Is not a person in respect of whom a deportation order is in force; and (d) Is not a person in respect of whom a removal order is in force. (2) Nothing in subsection (1) of this section confers on any person the right to apply to the Minister for a permit, and where any person purports to apply for a permit under this section,— (a) The Minister is under no obligation to consider the application; and (b) Whether the Minister considers the application or not,— (i) The Minister is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and (ii) Section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.[16] The decision was conveyed to the plaintiffs by letter addressed to their counsel, and dated 19 December 2005. The letter reads:19 December 2005 Application Number: HD 6439839 Client Number: 23257331 Mrs PRAPAPORN KESONSUNG c/o Paul Junior Pau Barrister PO Box 78213 Grey Lynn Auckland Dear Mrs KesonsungRequest for a Permit under Section 35A, including:Prapaporn Kesonsung DOB: 13/Aug/1975 I am writing with regard to your request for a further work permit, submitted on 8 Nov 2005 under section 35A of the Immigration Act 1987. Section 35A is the part of the Act that covers people whose permits have expired and who do not currently hold a valid permit. It is important you know that as your permit has expired, section 35A(2) states that there is no obligation on any Immigration Officer to consider your request, or to accept an application from you. This letter is to advise you that, although I have considered your request, I am not prepared to grant it, as I do not consider that this is justified in the circumstances of your case. As you are in New Zealand unlawfully (without a valid permit to be here), you should make immediate arrangements to leave. If you do not leave, the New Zealand Immigration Service may take removal action against you. If you have any queries regarding this request then please contact our office and quote the application number. This letter contains important information. We recommend that you keep it in a safe place for your future reference.[17] It is to be observed that the Minister was not obliged to give any reason for rejecting the application, although it may be that the indication that a further work permit would not be granted because it was not " justified in the circumstances of your case" may amount to a reviewable reason: Awan v Minister of Immigration[2000] NZAR 655. That was the conclusion to which Courtney J came in her judgment of 4 April 2006, granting interim relief to the plaintiffs in this present proceeding.[18] It appears that Mr Pa'u, counsel for the plaintiffs, did not receive the letter until 13 January 2006 when he returned from the Christmas vacation. He wrote to the NZIS on that day: a) requesting " that you urgently provide us with the reasons why you do not consider it appropriate to assist, and what exactly are the circumstances you are relying on in arriving at that conclusion"; b) advising that his clients were seriously considering High Court judicial review and injunction proceedings; c) seeking pursuant to the Official Information Act and the Privacy Act a copy of notes, material and information taken into account in arriving at the decision, together with other matters or material which the NZIS was required by law, and pursuant to the principles of natural justice, to provide. [19] Mr Pa'u wrote several follow up letters to NZIS. They produced no effective response. However, records produced in this proceeding by the NZIS disclose that on 2 February 2006, the NZIS appears to have discovered that it had overlooked the request for information under the Official Information Act contained in Mr Pa'u's letter of 13 January 2006. On 3 February 2006, Mr Pa'u was advised by telephone that letters of authority would be required from his client before information could be disclosed under the Official Information Act. [20] The written authorities were not in fact provided to the NZIS until 28 February 2006. It is unnecessary to traverse the course of communications during February on the topic. Mr Pa'u seems to have regarded the requirement for authority forms as unnecessary, having regard to the fact that he was accepted by NZIS as agent for his clients. However, the request for documents made in Mr Pa'u's letter of 13 January 2006 was plainly made in reliance on the Official Information Act, and the NZIS were entitled so to regard it. The request for a written authority was not unreasonable. There is no explanation at all of the reasons for the delay in provision of the authority. When it was finally procured it came by facsimile, so the plaintiffsclearly had access to facsimile facilities. There seems no reason why the authority could not have been supplied within a matter of a few days. [21] The documents sought by Mr Pa'u were supplied to him on the same day as the written authority form was furnished to the NZIS. Had the authority been available some three weeks earlier, it is a reasonable inference that the documents would have been provided to the plaintiffs some three weeks earlier as well. That would have left them with some six weeks before the three month limitation period prescribed by s 146A expired. [22] I do not overlook the fact that, through no fault of their own, the plaintiffs and their counsel were unable to gain access to the defendant's files until, at the earliest, early February. The decision of 19 December 2005 did not come to Mr Pa'u's attention until 13 January 2006 when he returned from the Christmas vacation. Then the NZIS overlooked for some three weeks, the request for documents made pursuant to the Official Information Act. [23] But these cumulative delays did not, at a practical level, prevent the plaintiffs from filing proceedings within the limitation period. Had authorities been obtained from the plaintiffs in early February, the file would have been available to them at least four weeks before the limitation period expired. That left ample time for their counsel to consider the position, obtain instructions, and if so instructed, to launch judicial review proceedings. [24] I cannot identify anything in the material before the Court which supports an argument that delays arising from the Christmas legal vacation and/or the oversight on the part of the NZIS, amount to a special circumstance.Communication difficulties[25] Mr and Mrs Kesonsung lived in Kerikeri. Their counsel practised in Auckland, so that was something of an inconvenience. Naturally enough, the plaintiffs were prepared to launch the judicial review proceedings only if advised that they had some chance of success. Very shortly after receiving documents fromthe NZIS on 28 February 2006, Mr Pa'u discussed the plaintiffs' case with Mr Fennell, an NZIS officer. There is a significant dispute between them as to what occurred during the course of that discussion. But it is clear enough that Mr Pa'u received an indication from Mr Fennell that compliance action involving the service of removal warrants was pending. Mr Pa'u indicated to Mr Fennell the possibility of judicial review proceedings or a special direction application to the Minister. That is agreed, although Messrs Pa'u and Fennell disagree on much else. For present purposes it is sufficient to note that by the beginning of March Mr Pa'u knew the NZIS was close to taking compliance action. In those circumstances it was incumbent upon the plaintiffs to make a decision, with legal advice, about the steps they ought to take. [26] In the result, nothing more happened for about a fortnight, until on 16 March 2006 the plaintiffs were served with removal warrants and Mr Kesonsung was taken into custody. [27] Mr Pa'u submits that communication difficulties were the cause of the plaintiffs' failure to take any meaningful step, despite the prospect of their removal from New Zealand, but he did not point to anything concrete in support of his argument. He referred in general terms to the geographical distance between himself and his clients, to the fact that English is not their first language, to their relatively straitened financial circumstances, and to his own professional obligations to other clients. There was also, of course, the need for him to review the documents obtained from the NZIS, and to form an opinion as to whether judicial review was appropriate. [28] Nevertheless, given the limitation period prescribed by s 146A, of which Mr Pa'u was aware, there was a need for urgent decision-making. Nothing has been placed before the Court to suggest there was any serious obstacle to the commencement of proceedings by 19 March 2006, some three weeks after the NZIS supplied documents to Mr Pa'u.Application to the Minister[29] Mr Kesonsung was taken into custody on 16 March 2006. His wife was not; she was permitted to remain at large so she could care for the couple's five year old New Zealand-born daughter. On that same day, application was made to the defendant in the hope that he might intervene to delay the removal process, to cancel the removal order, or even to grant an appropriate permit at that late stage. That avenue was open to the plaintiffs, and it ultimately resulted in some amelioration of their position, in that the defendant indicated that he would waive the normal five year ban on re-entry into New Zealand which ordinarily followed the execution of a removal order. But he declined to intervene further. [30] That decision was given on 23 March 2006. Later that day, NZIS indicated it proposed to place Mr Kesonsung on an aircraft leaving New Zealand on Saturday 25 March 2006. Mrs Kesonsung and their daughter were to be permitted to remain in New Zealand for some weeks so that they could tidy up their affairs before leaving New Zealand. [31] The news of Mr Kesonsung's pending removal produced a flurry of activity on the part of the plaintiffs' legal advisers. As a matter of urgency this proceeding was prepared, and filed on Friday 24 March 2006. An interim order was made that evening, the effect of which was to postpone Mr Kesonsung's removal from New Zealand. The interim order was confirmed following a hearing some days later, at which full argument was presented. Mr Kesonsung is presently on bail awaiting the outcome of the substantive judicial review application, which is currently scheduled for hearing during the week commencing Monday 30 October 2006. [32] The argument for the plaintiffs is that it was reasonable in the circumstances for them to seek the intervention of the defendant when Mr Kesonsung was taken into custody on 16 March 2006, rather than to issue this proceeding. It is to be noted that as at 16 March, the three month limitation period prescribed by s 146A still had three days to run. It would have been possible to launch this proceeding within that period. Indeed, papers were prepared and filed within 24 hours on 23-24 March.[33] The plaintiffs say that they were entitled, in all the circumstances, to make the deliberate choice to approach the Minister rather than issue proceedings. It was much cheaper to do so, and they had apparently been advised that there were good prospects that the Minister might intervene. The limitation period expired while they awaited the Minister's response. Mr Pa'u submits that the Court ought to excuse the five day delay between the expiration of the limitation period and the date of filing, because the decision of the plaintiffs to seek the intervention of the Minister constitutes a special circumstance for the purposes of s 146A. [34] I am unable to accept that submission. This was a case in which the plaintiffs, competently advised by a practitioner experienced in this field, chose to adopt a course which placed them at risk of losing their litigation rights. It was a deliberate decision, not the result of oversight. When the Minister's decision proved to be largely unfavourable, the plaintiffs then sought the Court's indulgence. In my view the conscious decision of the plaintiffs to pursue an alternative remedy does not constitute a proper excuse for the delay in filing this proceeding. To assent to the plaintiffs' application on this ground would be to open the door to any plaintiff who sought to exhaust other remedies before approaching the Court outside the limitation period, and would be in effect, to read down the requirement for "special circumstances" which s 146A imposes. Having regard to the plain purpose of the section, it would not be proper to do that.Conclusion[35] None of the grounds relied upon by the plaintiffs, considered separately or cumulatively, constitute special circumstances for the purposes of s 146A in my opinion. While the proceedings are out of time by only five days, that relatively brief delay is simply a qualifying factor in the sense that a long delay will ordinarily preclude the grant of leave in any circumstances. [36] In her judgment of 4 April 2006 extending interim relief to the plaintiffs, Courtney J expressed the view that there appeared to be some merit in the plaintiffs' argument in respect of the 19 December 2005 decision. However, even very strongmerits are unlikely to justify an extension where, as in this case, there is no proper excuse for the delay in filing: Rajan at [30]. [37] Accordingly, I refuse leave in respect of the 19 December 2005 decision.Other matters[38] The plaintiffs' claim will nevertheless proceed to hearing in respect of their claims arising out of the events of March 2006. There being no extant timetable directions in respect of that hearing, I order by consent that the plaintiffs file and serve their submissions by Monday 16 October 2006 and that the defendant file and serve his submissions by Tuesday 24 October 2006. [39] The defendant filed an affidavit by Mr Neeraj Nagpal on 16 August 2006. That was a relatively late affidavit filed in opposition. The plaintiffs are entitled to time within which to reply to that affidavit if they wish. They must file and serve any such affidavit/s by Wednesday 4 October 2006. [40] It is appropriate for me to say something in this judgment about a difficulty which has arisen between the parties. Mr Pa'u, who appeared as counsel for the plaintiffs, was their adviser for a significant period prior to the commencement of this proceeding. In particular, it was he who spoke to Mr Fennell, and it was he to whom Mr Fennell gave the alleged undertaking to the effect that the NZIS would not take compliance action against the plaintiffs until they had had an opportunity to commence and pursue judicial review proceedings. [41] Mr Pa'u has filed a long and detailed affidavit in the proceeding, including evidence of what Mr Pa'u says passed between him and Mr Fennell during the relevant telephone discussion. There is a sharp divergence between Mr Pa'u and Mr Fennell as to what assurances Mr Fennell gave. The latter denies that he gave any assurances of the sort alleged by Mr Pa'u. [42] The statements made by Mr Fennell in his telephone communications with Mr Pa'u underpin a good deal of the plaintiffs' allegations. The defendant, throughhis counsel, has earlier placed on record his formal objection to Mr Pa'u continuing as counsel for the plaintiffs, by reason of his central role as a witness of fact. That objection was renewed by Ms Longdill before me. She submitted it was not appropriate for Mr Pa'u to appear as counsel for the plaintiffs on the s 148A application. However, I permitted Mr Pa'u to appear as counsel because it was the 19 December 2005 decision, and not the events of March 2006 which were in issue before me. [43] Ms Longdill forcibly expressed the defendant's opposition to Mr Pa'u appearing as counsel at the substantive hearing. In my view her objection is soundly based. It is possible that the defendant may seek to cross-examine Mr Pa'u on his affidavit in respect of what passed between Mr Fennell and him in the telephone discussion which lies near the heart of the plaintiffs' claim. While that would be unusual in judicial review proceedings, relatively confined cross-examination is not unknown in such cases. That will be a matter for the trial Judge, as will the ultimate decision as to whether it is appropriate for Mr Pa'u to continue to act as counsel for the plaintiffs. [44] I believe it is appropriate for me to record in this judgment the distinct possibility that the trial Judge will not accept that it is proper that Mr Pa'u appear for the plaintiffs on the hearing of the application for judicial review. [45] I appreciate that that possibility gives rise to some difficulties for the plaintiffs, whose financial means are limited, but it is a difficulty which must be faced.Costs[46] Costs are reserved. Counsel may file memoranda if they are unable to agree.C J Allan J