HUYNH v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 730 [7 April 2017]

HUYNH v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2017] NZHC 730 [7 April 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2017-404-616[2017] NZHC 730UNDER THE Judicature Amendment Act 1972IN THE MATTER OF an application for Judicial Review of adecision not to cancel a deportation ordermade under s 177 of the Immigration Act2009BETWEEN TRONG HIEU HUYNHPlaintiffAND MINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTDefendantHearing: 7 April 2017Counsel: D D Zhang for plaintiffM J Mortimer for defendantJudgment: 7 April 2017Reasons: 12 April 2017REASONS FOR JUDGMENT OF KATZ JSolicitors: Meredith Connell, Crown Solicitor, AucklandCounsel: D D Zhang, Justitia Chambers, AucklandIntroduction[1] The plaintiff, Trong Hieu Huynh, is from Vietnam. He came to New Zealand in January 2013 on a student visa. His last visa expired almost three years ago, on or about 29 June 2014. He has been in New Zealand unlawfully since then.[2] On Tuesday 4 April 2017 Mr Huynh was taken into custody by ImmigrationNew Zealand ("Immigration") officials and served with a deportation order under s175 of the Immigration Act 2009 ("Act"). Section 177 of the Act allows anImmigration officer to consider cancelling a deportation order. In Mr Huynh's casethe decision was made not to cancel the order, following record of personal circumstances interview, (commonly referred to as a humanitarian interview) on Wednesday 5 April 2017. Mr Huynh was then booked on a flight to Vietnam, departing at about midnight on Friday 7 April 2017.[3] At about 3.00 pm on Friday afternoon Mr Huynh's solicitors filed thesejudicial review proceedings. Mr Huynh also applied for interim relief under s 15 of the Judicial Review Procedure Act 2016, seeking to stay his deportation until his judicial review application was finally determined. I heard his interim relief application on an urgent basis at 4.00 pm on Friday afternoon. Mr Mortimer appeared for the defendant, on a Pickwick basis. At the conclusion of the hearing, at about 5.30 pm, I declined to grant the interim orders sought. I advised that written reasons would follow. These are those reasons.Threshold for interim relief[4] Section 15 of the Judicial Review Procedure Act 2016 provides that interim orders (of the kind specified in that section) may be made at any time before the final determination of a judicial review application, if it is necessary to do so to preserve the position of the applicant.[5] In Esekielu v Attorney-General Hammond J considered the threshold which an applicant, in the immigration context, must meet for interim relief. Having examined the context, he said: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 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 in succeeding in that contest.[6] Mr Huynh submits that he has a respectable case for judicial review and, further, that it is necessary to grant interim relief to protect his position pending trial.Is there a real contest between the parties in which Mr Huynh has a respectable chance of succeeding?[7] Mr Huynh's grounds of judicial are as follows:(a) breach of the right to counsel (s 27 of the New Zealand Bill of RightsAct 1990 ("NZBORA"));(b) error of law;(c) breach of natural justice (s 27 NZBORA); and(d) Wednesbury unreasonableness.Breach of the right to counsel[8] The defendant is said to have breached Mr Huynh's right to counsel by "failing to [advise] him that he has the right to consult another lawyer if his legal representative was unavailable, effectively denying the plaintiff of his right to havecounsel present at the humanitarian interview".[9] The humanitarian interview was conducted on 5 April 2017. At the commencement of the interview the interviewing officer asked if Mr Huynh wished1 Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC) at 313.to consult a lawyer before completing the interview. Mr Huynh gave her the details of his lawyer, Jag Lal. The record of the interview records the following as having then occurred:Steps taken to contact the lawyer/adviser. If unable to arrange contact, documents steps taken, informed person and decide whether to proceed with RPC.Called Jag Lal 1054 on 5/4/17; he explained he would not be able to attendthe Interview and that he was with Mr Huynh's partner, Emily Akatthi Trang Dou – and to forward info to him by email next day after interview.Record the person's comments, if any.Happy to continue, yes I understand you.[10] Mr Zhang submitted that the compliance officer should have expressly informed Mr Huynh that he had the right to consult another lawyer, given that Mr Lal was unwilling or unable to attend the interview.[11] Precisely what occurred during the interview will ultimately be a matter for trial. The contemporaneous notes record, however, that after having been informed that Mr Lal was unable to attend the interview Mr Huynh expressly stated that he was happy to continue. It is therefore implicit, in my view, that he appreciated that he was under no obligation to continue with the interview in the absence of his lawyer, but was happy to do so. Mr Huynh did not say or do anything that suggested that he wanted to wait until Mr Lal became available, or that he wished to find another lawyer. Against this background, although this ground of review is arguable,Mr Huynh's position does not appear to be strong.[12] Given that the application for interim relief relies (amongst other things) onthe overall "interests of justice" I note that the focus of the humanitarian interview is factual. Mr Huynh's affidavit in support of his application for interim relief (prepared with the assistance of his new solicitors) did not identify any new or additional factual matters that would likely have been material to the deportation decision. On the contrary, his key argument for remaining in New Zealand is that he wishes to remain living here with his girlfriend of four years, who is herself an international student from Vietnam. This is something that Mr Huynh made clear,repeatedly, in his humanitarian interview. This factor was not sufficient to persuade Immigration officials, however, that his deportation order should be cancelled.Error of law[13] The defendant is said to have erred in law under s 177(2) and (5) of the Act in that the Immigration officer was required to consider "the record of personal circumstances (facts) with New Zealand's international obligations (law) which she failed to do".[14] The approach to s 177 of the Act is summarised by the Court of Appeal inChief Executive of the Ministry of Business, Innovation and Employment v Nair:2[30] It is apparent from the statutory scheme in general, from the specific wording of s 177 and from the legislative history that s 177 providessomething of a "last ditch" opportunity to have a deportation ordercancelled. It is also apparent that while the immigration officer is required toturn his or her mind to ("have regard to") any relevant internationalobligations no particular test need be applied and the immigration officer"need not attach particular weight to any given international obligation".Finally, it follows that the scope for judicial review of the decision not to cancel a deportation order is limited.[15] In his interview Mr Huynh said he had overstayed because he had not passed his exams and his English language school had informed Immigration, who had cut his visa. He said he wanted to stay in New Zealand because there are good jobs withgood money and "everything is good for me". If he had to return to Vietnam hisfamily would be disappointed in him. He noted further that he was living with his girlfriend who is also an overseas student from Vietnam, although they met in New Zealand. He said that he had been in that relationship for four years and that his girlfriend would not be able to return to Vietnam with him as she had to complete her studies. He said:I want to stay here. I don't know the rules. But after a long time in hiding it's easy to find a job to pay tax if NZ give me a chance. I want to go homeand be with my wife.2 Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA 248, [2016] NZAR 836 (footnotes omitted).[16] Mr Huynh advised that if he was returned to Vietnam his parents would support him. His father has a business and his mother is an accountant. No material health issues or special needs were reported. He had not left New Zealand when required:Because I want to stay here. I want to make my plan to stay here, earn good money and pay tax.[17] In response to the final question of whether there was anything else he wished to say in relation to whether the deportation should proceed, he stated:I really don't want to go back. That is all, I want to stay with my wife/girlfriend and have a good life.[18] The interviewing officer concluded that Mr Huynh's circumstances did not engage New Zealand's international obligations. She recorded that she had hadregard to the following international obligations:The "International Convention [sic] on Civil and Political Rights.- Article 26: equal protection of law without discrimination.International Covenant on economic, social and cultural rights.- right to work – Article 6– Article 11 – right to adequate standard of living.She concluded:There is no other information contained within this interview that triggers any other international obligation.[19] The humanitarian interview form is a "fill in the blanks" style standard formdocument. Page 28 (the final page) deals with the issue of international obligations. Unfortunately the copy of the form provided to Mr Huynh was missing page 28 andit appears that this may have been why Mr Huynh's legal advisers considered thatthe interviewing officer had not turned her mind to whether Mr Huynh's circumstances engaged New Zealand's international obligations. It is clear from thecompleted form, however, that she did consider this issue. She concluded that Mr Huynh's circumstances did not engage New Zealand's international obligations.Breach of natural justice[20] Following completion of the humanitarian interview Mr Huynh engaged his current lawyers. They wrote to Immigration on Thursday 6 April 2017 advising thatthey would like to make written submissions on Mr Huynh's "full personalcircumstances" by Monday 10 April 2017. Immigration was not willing to defer Mr Huynh's deportation until then and advised his lawyers on the morning of Friday 7 April 2017 that a decision had been made to continue with his deportation and that a flight had been booked, departing New Zealand at five past midnight that night.[21] Mr Zhang submitted that it was a breach of natural justice, in contraventionof s 27 of the NZBORA, not to give Mr Huynh's counsel the opportunity to providewritten submissions as to why the deportation order should be cancelled. Although the issue is arguable, I was not persuaded that the interests of natural justice, in this particular context, required not only a face-to-face humanitarian interview with Mr Huynh (giving him a direct opportunity to raise all relevant factual matters) but also a follow-up opportunity for his new lawyers to make further submissions on his"full personal circumstances". I again note that Mr Huynh's affidavit in support ofhis application for interim relief does not raise any significant new factual matters.[22] It is also relevant, as Mr Mortimer pointed out, the Act confers on Immigration officers an express exemption from any requirement to give reasons for their decision,3 as well as vesting in them an absolute discretion regarding the decision whether to cancel a deportation order.4 "Absolute discretion" is defined ins 11 of the Act, which relevantly provides:11 Meaning of absolute discretion of the decision maker(1) If 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; or3 Immigration Act 2009, s 177(4).4 Section 177(1).(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[23] Given that the decision was made in the Immigration officer's absolute discretion, I accept Mr Mortimer's submission that it is strongly arguable that therewas no obligation on the decision maker to receive and consider further submissions from counsel following the humanitarian interview, although it was open to the decision maker to do so if they so wished.Wednesbury unreasonableness[24] Mr Huynh's final ground of review is that the defendant acted unreasonablyin that there was no basis in fact or law to refuse to cancel the deportation. Thisseems to have been added as a "catch all" ground. Mr Zhang did not develop it inhis oral submissions. In my view, however, there is nothing to suggest that the decision was unreasonable in a Wednesbury sense, or indeed on the basis of any lesser administrative law standard of unreasonableness.[25] Mr Huynh has no immediate or extended family members living in New Zealand except his girlfriend, as his family lives in Vietnam. He has no children or dependents in New Zealand. He admitted having spent a "long time in hiding". He did not make any attempt to regularise his immigration status for aperiod of almost three years. He advised the interviewing officer that his parents in Vietnam are in a position to support him and would do so. He has no significant health concerns.[26] Given these facts it was not unreasonable for Immigration to make the decision that they did. Mr Huynh will be able to pursue his application for judicial review from outside New Zealand. If he was to succeed in those proceedings there are avenues to enable him to return.[27] The Court of Appeal has made it clear that the scope for judicial review of a decision not to cancel a deportation order is limited. Although I would not go so far as to say that the four grounds of challenge raised by Mr Huynh are not arguable, they appear to be relatively weak. I accordingly concluded that there is not a real contest between the parties in which Mr Huynh has a respectable chance of succeeding.Is interim relief necessary to preserve Mr Huynh's position?[28] The grounds set out in the application for relief include that:(a) interim relief is necessary to preserve the position of the plaintiff; and(b) the plaintiff would suffer irreparable harm if relief is not granted, for which there would be no other adequate remedy.[29] In Chief Executive of the Ministry of Business, Innovation and Employment v Nair, the Court of Appeal made it clear that the usual, statutory, effects of deportation will not generally be sufficiently adverse to meet the threshold for interim relief.5 In that case, as in this one, the effect of declining interim relief would be that the plaintiff would need to return to their home country and conduct their judicial review proceedings from there. The Court recognised, however, that if the judicial review application was successful, there would be avenues for the plaintiff to return to New Zealand. On the other hand, if interim relief is granted, the plaintiff would remain in New Zealand unlawfully although, in practice, the Minister would be likely to grant a visa to regularise the position in the interim.5 Chief Executive of the Ministry of Business, Innovation and Employment v Nair , above n 2, at [15].[30] Analysed in this way, the Court of Appeal in Nair was of the view that none of the usual statutory consequences of deportation meet the threshold for interim relief. Absent further evidence, such consequences are insufficient to warrant interim relief. Applying similar reasoning to this case, I was not persuaded that interim relief is necessary to preserve the position of Mr Huynh.Conclusion[31] For the reasons outlined, I was not persuaded that there is a real contest between the parties in which Mr Huynh has a respectable chance of succeeding. Further, the granting of interim orders is not necessary to preserve Mr Huynh'sposition pending trial. I accordingly declined to grant the interim orders sought.[32] Costs are reserved, to be determined following trial (or earlier disposal of the proceedings).____________________________Katz J