SU v MINISTER OF IMMIGRATION [2021] NZHC 2491

SU v MINISTER OF IMMIGRATION [2021] NZHC 2491 [22 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-485-96[2021] NZHC 2491UNDER the Judicial Review Procedure Act 2016 ands 247 of the Immigration Act 2009IN THE MATTER OF an application for leave to commencejudicial review of a Deportation LiabilityNotice out of timeBETWEEN XIANG SUApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: 10 September 2021Appearances: M L Clark for the ApplicantBCL Charmley and C Sykes for RespondentJudgment: 22 September 2021JUDGMENT OF MUIR JThis judgment was delivered by me on Wednesday 22 September 2021 at 2.30 pmpursuant to Rule 11.5 of the High court Rules.Registrar/Deputy RegistrarDate:Solicitors:Vallant Hooker & Partners, AucklandCrown Law Office, WellingtonIntroduction[1] Mr Su seeks leave to commence judicial review proceedings in respect of aDeportation Liability Notice (DLN) issued on 13 March 2018. His application wasfiled on 15 February 2021, two years and 10 months after expiration of the statutorytime limit in which to bring such proceedings.1[2] Despite this seemingly inauspicious delay he says that leave should be granteddue to "special circumstances".2 He says that as a result of a Court of Appeal decisionreleased in 2020 reducing his sentence on methamphetamine charges from five yearsand 10 months to five years, the grounds for deportation specified in the DLN nolonger apply, that the merits of his intended judicial review proceeding are strong andthat he should be given leave to argue them.Background[3] Mr Su is a citizen of China. He has lived in New Zealand since 22 November2001 and was first granted a Residence Permit on 11 June 2007.[4] On 5 May 2007 he was convicted on a single charge of possessingmethamphetamine for supply under s 6(1)(f) of the Misuse of Drugs Act 1975. Thisfollowed a jury trial in the High Court at Auckland before Gordon J.[5] On 30 May 2017 her Honour sentenced Mr Su to five years and 10 months'imprisonment on the charge.[6] At that point Mr Su became liable to deportation under s 161(1)(c) of theImmigration Act 2009 (the Act).[7] On 11 December 2017 Mr Su was advised of this liability by letter from theMinistry of Business Innovation and Employment. He was invited to makesubmissions addressing the grounds for his liability, his personal circumstances andthose of his family. He did so.1 Immigration Act 2009, s 247(1).2 Section 247(1)(a).[8] On 13 March 2018 the Minister of Immigration's (the Minister) delegateddecision maker decided (among a range of options which included cancellation orsuspension of the deportation liability) that it should proceed. The DLN was issuedthe same day and was served on 26 March 2018 at the Northern Region CorrectionsFacility where Mr Su was detained.[9] In accordance with s 171 of the Act the DLN specified both the provision inthe Act under which the liability for deportation arose and the grounds for deportation.The former was described as a liability "under s 161(1)(c) of the Immigration Act2009". The grounds were identified as follows:(a) You were convicted and, on 13 May 2017, sentenced in the High Courtat Auckland for the offence of possession of methamphetamine for thepurpose of supply.(b) You were sentenced to five years and 10 months' imprisonment.(c) You committed the offence on 16 July 2015, which was not later than10 years after you first held a residence class visa.[10] On 18 March 2019, 408 days after his sentence was passed, he filed with theCourt of Appeal what was described as an application for leave to appeal.3 Theapplication was made on the basis of an alleged absence of parity with the sentencesof co-offenders—something that he says he was not aware of at any earlier point.[11] The timing of his application to the Court of Appeal was propitious becausealthough his parity argument was not ultimately pursued, the fact that his appeal hadbeen commenced before the Court of Appeal's landmark decision in Zhang v R4 gavehim the ability to argue that the assessment criteria identified in that case should applyto his much earlier sentencing.3 As the Court of Appeal pointed out, the procedurally correct course was to file a notice of appealin which he sought an extension of time. The Court decided to treat his application for leave toappeal as substantively complying with this requirement.4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.[12] Mr Su's sentence appeal was heard by the Court of Appeal on 26 February2020. Its decision was given on 30 April 2020.5[13] The Court approached the appeal not as a search for error but as an assessmentagainst the new guidelines. Indeed it took no material issue with Gordon J's analysisof Mr Su's role in the relevant methamphetamine supply ring, nor the Judge'sconclusion that he did not share in the monetary gains beyond receiving enoughmethamphetamine to feed his habit.[14] Assessed against the new guidelines, the Court held that a reduction in startingpoint from six and a half years to five and a half years was appropriate. It then adoptedGordon J's 10 per cent discount for previous good character and remorse, quashed hersentence and substituted a sentence of five years' imprisonment.[15] The astute reader may notice that a 10 per cent discount on a sentence of fiveyears and six months' imprisonment would, on a purely arithmetical basis, coincide toa term of imprisonment of four years, 11 months and 12 days. However, the Court ofAppeal rounded this figure up to impose a final sentence of five years' imprisonment.Therein lies the genesis of what occurred next. Because a sentence of that veryspecific duration would have (by 18 days) been under the statutory minimum of fiveyears' imprisonment specified in s 161(1)(c) of the Act, Mr Su sought (albeit afterfurther delay) to challenge the Court of Appeal judgment.[16] First he applied for recall, saying that the Court should have in fact roundedthe sentence down to four years and 11 months' imprisonment. In the applicationcounsel also sought to re-open the judgment, suggesting that the Court had wronglyfound Mr Su to be one of the vehicle drivers associated with the ring's distributionnetwork.[17] On 10 September 2020 the Court of Appeal dismissed the recall application.6It said:5 Su v R [2020] NZCA 128.6 Su v R [2020] NZCA 408.[3] The short answer to the application is that there is no calculation error.The Court rounded up the sentence calculation to achieve what it consideredthe appropriate sentence in the circumstances. That is the objective ofsentencing.[18] It also dismissed as inappropriate the attempts to re-open the judgment.7[19] Undeterred, Mr Su then filed an application with the Supreme Court for anextension of time to apply for leave to appeal against the Court of Appeal's substantivejudgment. He endeavoured to explain his delay in application by reference to the recallapplication before the Court of Appeal. As the Crown pointed out, however, the recallapplication was not made until 17 August 2020, some three and a half months afterdelivery of the appeal decision.[20] Mr Su's application to the Supreme Court was dismissed. The Court held thatthere had been an inadequate explanation for the delay in filing the leave applicationbut that, in any event, nothing in the proposed appeal suggested a risk of substantialmiscarriage of justice. In particular the Court noted:8Whether adjustments to sentences expressed as percentages are rounded up ordown when translated into actual weeks, months or years will depend on theparticular circumstances of each case. There is thus no matter of general orpublic importance. In this case, the Court of Appeal considered theappropriate sentence to be five years, based on its analysis of all the relevantcircumstances.[21] With his appeal options exhausted, Mr Su then filed his application tocommence judicial review proceedings out of time. Even on the most favourableanalysis to him (that the time did not start to run until the Supreme Court declinedleave) that application was itself not timely. Counsel agree it was either one day late,if time limits are to be considered governed by the High Court Rules 2016, or fivedays late if governed by the rules in s 6 of the Immigration Act.97 At [4].8 Su v R [2020] NZSC 156 at [12].9 I do not need to decide this point because counsel for the Minister responsibly accepts that thedifference between one and five days is immaterial if that is all that was involved. I tend to theview that the matter is governed by the Act, for the reason that the application for leave is madepursuant to s 247(1)(a).[22] The Minister's position is, however, that the delay was substantially longerthan either one or five days and that the time should be measured from 30 April 2020when the Court of Appeal delivered its judgment on the sentence appeal.[23] Parallel with all these applications has been an appeal against the DLN to theImmigration and Protection Tribunal (IPT). This is on the humanitarian groundsspecified in s 161(2)(a). The appeal was lodged on 20 April 2018 within the time limitspecified in the Act.10 Although all the records of the IPT are not before me, it appearsfrom the point at which Mr Su filed his appeal with the Court of Appeal (18 March2019) he took the view that this should be resolved in priority to the humanitarianappeal.[24] Five weeks after delivery of the Court of Appeal's judgment on the sentenceappeal, counsel for Mr Su filed a memorandum with the IPT raising the issue ofalleged invalidity of the DLN given the fact that the sentence to which it referred hadsince been quashed and a new sentence substituted. The memorandum invitedcomment from the Minister observing that if the Minister did not agree it will meanthat "the matter must be resolved by the High Court".[25] One week later on 12 June 2020 the Minister filed a memorandum acceptingthat the grounds specified in the DLN were "no longer accurate" due to the reductionin sentence duration and advising that he would seek instructions about whether a newDLN needed to be issued. The results of that inquiry were the subject of a furthermemorandum on 26 June 2020. Counsel submitted that the DLN was validly issuedand that the IPT continued to have jurisdiction to hear the humanitarian appeal. Thememorandum concluded:Given the Respondent's position, it is understood the Appellant intends to fileproceedings in the High Court. This would necessarily involve the Appellantfiling an application for leave to commence review proceedings well out oftime under s 247 of the Act 10 Twenty-eight days as per s 161(2).[26] At the latest, therefore, it was at this point that Mr Su was on notice of therequirement to bring judicial review proceedings if he maintained his position that thebasis for the DLN had fallen away.[27] On 9 July 2020 counsel for Mr Su filed a further memorandum with the IPTrepeating his position that the sentence referred to in the DLN had been quashed andthat therefore "the DLN is no longer valid".[28] By minute dated 17 July 2020 the IPT ruled that it had no jurisdiction todetermine the validity of the DLN within the context of a humanitarian appeal.Nevertheless Mr Su chose to further delay his intended judicial review proceedings.Instead he brought his application for recall and then his application for leave to appealout of time to the Supreme Court.[29] Mr Su has now been released from prison. He has rejoined his wife and I amadvised they have very recently had a child together. This will no doubt feature in hisultimate humanitarian appeal.Legal framework[30] Section 247(1)(a) of the Act provides:Any review proceedings in respect of a statutory power of decision arising outof or under this Act must be commenced not later than 28 days after the dateon which the person concerned is notified of the decision, unless—(a) the High Court decides that, by reason of special circumstances,further time should be allowed; [31] The leading case on "special circumstances" remains the Court of Appeal'sdecision in Rajan v Minister of Immigration.11 There the Court held that "specialcircumstances" are to be interpreted in light of the Act's emphasis on timeliness:1211 Rajan v Minister of Immigration [2004] NZAR 615 (CA). Although decided under thepredecessor section (s 146A of the Immigration Act 1987) it has been held to apply to s 247. SeeAD v Chief Executive of the Ministry of Business, Innovation and Employment [2020] NZHC 1010at [31]. Since Rajan the time limit for commencing review proceedings has been shortened fromthree months to 28 days. In Kumar v Immigration and Protection Tribunal [2014] NZHC 2670 at[20], Fogarty J observed the application of Rajan is "likely to be affected" by that reduction.12 Rajan, above n 11, at [24].Whether there are special circumstances justifying an extension of time mustbe assessed in the context of the legislation involved. The Immigration Actconfers rights of appeal in respect of decisions relating to residence,revocation of residence, removal and deportation. However, strict time limitsare placed on such appeals. The s 146A time limit for the filing of judicialreview proceedings must be interpreted in that context.[32] It further held that "special circumstances" require circumstances that are"uncommon, not commonplace, out of the ordinary, abnormal".13 The Court notedthat the discretion to extend time should not be exercised too readily and very rarelyif the delay is long. It identified three factors which should be considered indetermining whether such special circumstances exist: the length of the delay, thereason for the delay and, in marginal cases, the merits of the intended judicial reviewproceeding (albeit encouraging only a brief examination in that respect14).Length of delay[33] Consistent with the emphasis on timeliness, the cases demonstrate a limitedtolerance for delay. In Xie v The Minister of Immigration, Priestley J explained therationale in greater detail:15Given the very broad supervisory powers which [the Judicature AmendmentAct 1972] confers on the High Court, it makes sense that judicial reviewproceedings should be tightly controlled from a temporal point of view.Particularly is this the case in situations where perhaps proceedings wouldimpede or delay removal from New Zealand of people unlawfully residinghere.[34] He noted that "[t]he policy of s 146A is clearly designed to place tight temporalconstraints on judicial review being used as a mechanism to slow up removalprocedures."16[35] Typically the Courts consider the delay as a fraction or multiple of the relevanttime limit.17 In Zanzoul v The Removal Review Authority Dobson J stated that:1813 At [24].14 At [28]–[29].15 Xie v The Minister of Immigration HC Auckland CIV-2008-404-2401, 25 July 2008 at [24].16 At [35].17 C v The Immigration and Protection Tribunal [2015] NZHC 3253 at [29].18 Zanzoul v The Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [26]as cited in C, above n 17, at [29].Generally, delays for greater than the period permitted tend to becharacterised as 'long' or 'very long', tending to support a conclusion thatleave should be declined.[36] He further observed:19 where there has been a substantial period of delay virtually nocircumstances will be sufficiently "special" to warrant the grant of leave.[37] In that case a delay 2.5 times longer than what was, at that time, the permittedperiod (three months) was considered "substantial".[38] Likewise, in Ly v Minister of Immigration a delay of 23 days in the context ofthe new 28 day time limit was considered "too long".20 The result was the same inBhasin v The Immigration and Protection Tribunal where the delay was approximatelythree months.21Reasons for delay[39] Again the cases indicate a reasonably strict approach to what constitutes ajustifiable reason for delay. This is consistent with the Court of Appeal's injunction inRajan to confine special circumstances to those out of the ordinary or abnormal.22[40] A decision to pursue alternative causes of action to judicial review has beenheld not to constitute a special circumstance justifying delay.23 In Yu v ChiefExecutive, Department of Labour the High Court noted:24[28] It is apparent that with the assistance of the immigration consultantsMrs Yu and Mr Cha made deliberate and it seems tactical decisions to pursuealternative strategies to appeal or judicial review. This does not constitute areason for the delay sufficient to amount to a special circumstance. Theapplicants have simply changed their minds now that time has shown that theiralternative strategies were unsuccessful.19 At [26].20 Ly v Minister of Immigration HC Auckland CIV-2011-404-1540, 5 May 2011 at [55].21 Bhasin v The Immigration and Protection Tribunal [2018] NZHC 644 at [26]. See also Kaur vMinister of Immigration [2018] NZHC 138 at [20] where I referred to a delay of 17 days as onewhich could not be described as short but was nevertheless not overly long and certainly notsubstantial.22 Rajan, above n 11, at [24].23 See Ochibulu v Immigration and Protection Tribunal [2020] NZHC 792 at [56]; M R v RefugeeStatus Appeals Authority [2008] NZAR 655 (HC) at [34]; and Yu v Chief Executive, Departmentof Labour HC Auckland CIV-2006-404-5702, 13 November 2006 at [28] per Winkelmann J.24 Yu, above n 23.Merits[41] A consideration of the merits will only be required where the case is marginal.In Rajan the Court of Appeal held:25[29] Brief examination of the merits may in some cases be called for. Evenwith a strong excuse for the delay, however, if the review proceedings werehopeless, this would suggest that the s 146A discretion should not beexercised. [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 delayand the merits apparently strong, an extension of time could be justified. Wedoubt, however, that even very strong merits could ever justify an extensionif (as here) there is no proper excuse for the delay in filing. [42] As the Minister submits, assessment of the merits is not automatic. In Zanzoulthe High Court noted that they:26 should not automatically be considered when assessing a grant of leave,and only in a marginal case will the perceived strength of the merits tip thescales in favour of granting leave.Mr Su's case[43] Mr Su submits that the DLN did not become reviewable until his sentence wasreduced and, in turn, that there was no "final" sentence until the Supreme Courtdismissed his application for leave. He says therefore that time did not commence torun until 22 December 2020 and that on that basis he was only one (or five) days latewhen, on 15 February 2021, he filed his application for leave to bring judicial reviewproceedings. Ms Clark acknowledges that this final delay is not explained butattributes it to the intervening Christmas holiday and delivery of the Supreme Court'sdecision at the commencement thereof.[44] If that submission is not accepted Mr Su says that delay beyond 28 days afterdelivery of the Court of Appeal's substantive decision is properly explained byreference to the Minister's initial uncertainty about whether a new DLN would needto be issued, the subsequent application for recall and finally the application to theSupreme Court for an extension of time to apply for leave to appeal.25 Rajan, above n 11.26 Zanzoul, above n 18, at [38].[45] He further submits that the merits of the proposed judicial review proceedingweigh strongly in his favour. He points out that the Court of Appeal quashed his initialsentence and says that, if that is the case, then in its terms the DLN refers to and reliesupon a ground of deportation (imposition of a five year and 10 month sentence ofimprisonment) which is invalid (both per se and as to duration).[46] Although acknowledging that the substituted sentence of five years'imprisonment meant that he was still liable for deportation under s 161(1)(c), he saysthat if the process was started again the Minister would have to consider among otherthings:(a) whether the applicant was "only just" liable for deportation (by one dayonly);(b) that on a strictly mathematical calculation of the Court of Appeal'sdiscounts there would have been no such liability;(c) the applicant's behaviour as a prisoner; and(d) his employment since his release and rehabilitation.[47] Accordingly he says that although he remains liable for deportation, this wouldnot necessarily follow.Discussion[48] I am unable to accept Ms Clark's submission that Mr Su's sentence was notfinal until 22 December 2020 and that only at that point therefore did the 28 day periodspecified in s 247(1)(a) commence.[49] The sentence against Mr Su was passed on 30 May 2017. An appeal as of rightlay from it to the Court of Appeal.27 Any subsequent appeal to the Supreme Court27 Criminal Procedure Act 2011, s 244(1).could only be brought by leave of that Court—applied for within 20 working days ofthe determination appealed against.28[50] No as of right appeal was brought against the High Court sentence whichremained final until 30 April 2020 when the Court of Appeal granted an extension oftime to appeal, set aside the sentence and imposed another sentence (itself final) of alength "it consider[ed] appropriate".29 To suggest that the newly imposed sentencewas not itself final, pending disposition of an application for leave to bring a secondappeal and any decision on that second appeal would, as counsel for the Ministersubmitted in this case, have significant implications for the administration of justice,including as to the basis upon which any person was lawfully detained in the interim.[51] Working then on the premise that Mr Su was subject to a (new) final sentenceon 30 April 2020, is that the date from which time should be calculated for the purposesof s 247?[52] Of course, the decision which is the subject of the intended judicial review isthat of the Minister's delegate on 13 March 2018. However, as the Ministeracknowledges, the basis for review (whatever the frailties in Mr Su's argument) firstarose on 30 April 2020. Only from that point was an argument potentially availablethat the grounds specified in the DLN for deportation were "no longer accurate".30The Minister does not therefore contend for any earlier time in starting the calculation.[53] I am prepared to proceed on that basis even though the decision which it isactually intended to review was made two years earlier.3128 Section 255(1) and (2).29 Criminal Procedure Act, s 251(2)(a).30 Adopting the expression in the Minister's memorandum of 12 June 2020 to the IPT. The applicantgoes further and says that the sentence of imprisonment referenced in the DLN was quashed andtherefore null and void from that point in time, referring to Hancock v Prison Commissioners[1960] 1 QB 117 (QB).31 As both parties acknowledge the case is an unusual one which is difficult to accommodate withinthe statutory framework. Nor were counsel able to identify any decisions which might assist. Amore orthodox approach would be to regard the time limit as commencing to run on the date ofnotification of the DLN but to capture the initial two year delay down to the date of the Court ofAppeal's sentence decision within an overall "special circumstances" assessment. However itwould make no difference in terms of outcome.[54] What the Minister emphasises, however, is that no application for leave wasfiled for over nine months after the Court of Appeal's decision—that is over nine timeslater than what s 247(1)(a) requires. He says that this was so substantial a period ofdelay that the case falls within the category recognised by Dobson J in Zanzoul—onewhere virtually no circumstances will be sufficiently "special" to warrant the grant ofleave.32[55] I regard that as a persuasive submission in light of the authorities alreadyreferred to.[56] Ms Clark endeavours to counter it by saying that on 12 June 2020 counsel forthe Minister indicated that he was seeking instructions on whether a new DLN neededto be issued. But those instructions were clear within a further 14 days and as bothMr Su and the Minister's memoranda during that period demonstrate, both partiesaccepted the Minister's decision to proceed with the existing DLN would necessarilyresult in the matter having to be tested in the High Court by way (firstly) of anapplication for leave to commence a judicial review proceeding.[57] However, no such application was filed for another seven plus months.Instead, after approximately a further seven weeks, Mr Su applied to the Court ofAppeal to recall its judgment. On any analysis that was an ambitious application. TheCourt's role, having quashed the sentence of Gordon J, was to impose a sentence whichit considered appropriate in the circumstances. It was not constrained by any precisemathematical calculation. Nor was there any authority for the proposition that it wasmandatorily required to "round down" to a sentence of four years and 11 months'imprisonment. Ultimately the Supreme Court confirmed as much.[58] Then, when the Court of Appeal declined recall, Mr Su again chose to pursuealternatives other than an application under s 247(1)(a). He sought (againambitiously) an extension of time to apply for leave to appeal to the Supreme Court.That too was rejected. Only at that point does he appear to have turned his mind to32 See Zanzoul, above n 18, at [26].filing a s 247(1)(a) application—albeit that more than 28 days again elapsed before hedid so.33[59] Mr Su therefore faces the twin obstacles that his delay was inordinate and theapparent reason for it (to pursue an alternative course of action) is not one recognisedin the authorities as a relevant "special circumstance".34[60] The appropriate course was for Mr Su to bring his application for leave within28 days of the Court of Appeal's decision on the sentence appeal (or at the very latestwithin 28 days of the Minister's advice that he would not be issuing a new DLN).Applications for recall or for leave to appeal to the Supreme Court could still havebeen pursued but the s 247(1)(a) application could have been case managed in parallel.This would have allowed conditions to be imposed with respect to pursuit ofalternative remedies and have resulted in very much more timely consideration of theapplication. There is a strong inference that in adopting the tactics that he did, Mr Suin fact sought to maximise the delay in disposition of the s 247(1)(a) application,possibly with the intention of, in turn, delaying consideration of his humanitarianappeal and, in the interim, bolstering his credentials to remain in New Zealand. Theauthorities previously referred to require this Court to be vigilant to such strategies.[61] These conclusions are sufficient to dispose of the application. I make somebrief comments, however, in relation to the merits of the intended judicial reviewproceeding. I do so mindful of Ms Clark's submission that even if the delay wasconsidered unacceptable, the merits of the underlying case are such as to themselvesconstitute "special circumstance".[62] I do not share that assessment. For a start there is the conceptual difficultyassociated with judicial review of a decision, correct at the time, but which, as theresult of a subsequent development is arguably not correct at the point review isapplied for. At its most fundamental judicial review is directed to the lawfulness of adecision (or failure to make a decision), based on the information available to or which33 Irrespective of whether the time calculation is made pursuant to the Immigration Act or the HighCourt Rules.34 Yu, above n 23, at [28] per Winkelmann J.potentially should have been available to the decision maker. Neither counsel wasable to identify any instance of judicial review being granted in circumstances wherethe facts have subsequently changed.[63] This does not mean to say that in the paradigm case related to thepresent— where a residence class visa holder is sentenced to imprisonment for fiveyears or more, a DLN is subsequently issued under s 161(1)(c), but an appellate courtreduces the sentence to one of less than five years' imprisonment—there is no remedy.As Ms Charmley points out, the obvious remedy in that context would be anapplication to the Minister under s 172 to cancel the deportation. And, in the event theMinister declined (or simply failed) to do so, judicial review of that decision (or non-decision) would be available on standard principles.35[64] Next there is the fact that although Mr Su's sentence appeal was successful thesubstituted sentence was still of sufficient length to qualify him for deportation.Ms Clark relies heavily on the English High Court decision of Hancock v PrisonCommissioners.36 In that case the Court of Criminal Appeal had set aside a 10 yearsentence and imposed one of five years in substitution. The effect of that decision wasdescribed in the High Court as rendering the original sentence:37 null and void at the moment when the Court of Criminal Appeal decides tosubstitute for it a different sentence, so as to make that earlier sentence nulland void and of no effect for the future from that point of time onwards, butnot so as to render it null and void ab initio, namely, as from the date when itwas passed.[65] Ms Clark says, therefore, that although the DLN was issued on the basis of asentence valid at the time (and for the whole intervening period before the Court ofAppeal's decision was delivered) that sentence must now be considered "null andvoid". In addition she says that s 171 of the Act requires a DLN to specify the ground35 Ms Charmley advised the Court that her inquiries at senior levels of Immigration New Zealandrevealed that there have, within the period of available institutional knowledge, been only "one ortwo" instances where a DLN was issued but where the statutory basis for it was removed by thesubsequent decision of an appellate court. In each case the deportation liability was cancelled bythe Minister.36 See Hancock, above n 30. She submits that similar principles were in play in Dimozantos (No 2)v R [1993] HCA 52, (1993) 178 CLR 122 and Sharma v Wati HC Auckland CIV-2009-404-6367,30 September 2011.37 At 125 (emphasis added).or grounds on which the liability for deportation arose and that one of the groundsspecified in the DLN—"you were sentenced to five years and 10 months'imprisonment"—is now inaccurate by 10 months. She says therefore that this Courtshould "set aside" the DLN.38[66] But that overlooks the fact that judicial review is ultimately a discretionaryremedy and that the Court, if minded, could make declarations without in fact quashingthe DLN. In that context the Court would be entitled to take into account the overallmerits of Mr Su's position, including the significant delay in bringing his s 247(1)(a)application and the fact that he qualified for deportation even on the basis of thesubstituted sentence. In that respect I am unpersuaded by Ms Clark's submission thatthe substituted sentence was materially different from that originally imposed or that,despite what the Court of Appeal and Supreme Courts have said, a Court on reviewwould be much influenced by the fact that the Court of Appeal had rounded up thesentence which would have been arrived at on a purely mathematical calculation.[67] For these reasons, and to the extent relevant given my earlier findings, I do notregard Mr Su's prospects on judicial review as being of the order Ms Clark suggests.Result[68] I decline the application.Costs[69] I have not been addressed on costs. Provisionally, I regard them as payable tothe Minister on a 2B basis. In the event of any disagreement, memoranda (maximumfive pages) may be filed. My expectation is that costs should be capable of settlement.__________________________Muir J38 The reference is to the primary relief sought in the statement of claim.