SU v MINISTER OF IMMIGRATION [2021] NZHC 3336

SU v MINISTER OF IMMIGRATION [2021] NZHC 3336 [7 December 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-485-0096[2021] NZHC 3336UNDER 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: 24 November 2021Appearances: M L Clark for ApplicantB C L Charmley and G M C SykesJudgment: 7 December 2021JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 7 December 2021 at 4.45 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Vallant Hooker & Partners, AucklandCrown Law Office, Wellington[1] This judgment determines an application by Mr Xiang Su for an ordercontinuing a stay of his appeal to the Immigration and Protection Tribunal ("IPT"),which the IPT has advised it will hear on 16 and 17 February 2022. The applicationis brought pursuant to the Court of Appeal (Civil) Rules 2005, r 12(3) ("Rules"), andis opposed.[2] Mr Su seeks continuation of the stay pending the determination of his appealto the Court of Appeal against a decision of Muir J in September 2021, decliningMr Su's application for further time to bring an application for judicial review.1[3] Mr Su lodged his notice of appeal against Muir J's decision in October 2021.As yet, the Court of Appeal has not allocated a date for hearing the appeal.Background[4] Mr Su, originally from China, has lived in New Zealand since 2001. He wasgranted a residence permit on 11 June 2007.[5] On 5 May 2017, Mr Su was convicted of possession of methamphetamine forsupply, the offending having occurred in July 2015. On 30 May 2017, Gordon Jsentenced Mr Su to five years, 10 months' imprisonment.2[6] These events rendered Mr Su liable for deportation pursuant to s 161(1)(c) ofthe Immigration Act 2009 ("Act"), in that he had been convicted of an offencecommitted within 10 years of his first holding a residence class visa and sentenced toimprisonment for a term of five years or more.[7] On 11 December 2017, Immigration New Zealand ("INZ") notified Mr Su hewas liable for deportation and invited him to make submissions as to why he shouldnot be deported. Crown counsel advised me that it is INZ's usual practice to seeksubmissions from the affected party before issuing a Deportation Liability Notice("DLN") under s 171 of the Act. A DLN notifies the recipient that he or she is liableto be deported.1 Su v Minister of Immigration [2021] NZHC 2491.2 R v Su [2017] NZHC 1147.[8] Mr Su made submissions. These, however, were unsuccessful and on26 March 2018 Mr Su was served with a DLN. The notice advised Mr Su that he hada right to appeal to the IPT on humanitarian grounds. Mr Su lodged his appeal to theIPT on 20 April 2018.3Sentence appeal[9] On 30 April 2020, the Court of Appeal quashed Mr Su's sentence of five years,10 months' imprisonment and substituted one of five years' imprisonment.4 Thisreduction reflected the Court's application of its recently issued guideline judgment inZhang v R and, in particular, Mr Su's lesser role in the offending of which he was aparticipant.5[10] The reduction to five years meant that Mr Su remained liable for deportation,but only just.[11] In June 2020, Mr Su (or his solicitor) notified INZ that he considered that theDLN was void, as it was premised on a sentence of five years, 10 months'imprisonment. Initially INZ indicated it agreed with this, but subsequently, inlate-June 2020, indicated that it considered the DLN remained valid, as Mr Su wasstill eligible to be deported, given the sentence of five years.[12] Mr Su contends that, strictly calculated, his sentence under the Court of Appealdecision would be four years, 11 months, and two weeks' imprisonment. This wouldmean he was ineligible to be deported.[13] In August 2020, Mr Su applied to the Court of Appeal to recall its judgmentand substitute that sentence, but the Court declined to do so.6 Mr Su then sought leaveto appeal to the Supreme Court. The Supreme Court declined the application on22 December 2020.73 Immigration Act 2009, s 206(1)(c).4 Su v R [2020] NZCA 128.5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.6 Su v R [2020] NZCA 408.7 Su v R [2020] NZSC 156.Proceedings in the High Court[14] On 15 February 2021, Mr Su filed an application to the High Court for furthertime to make an application for judicial review of the DLN, on the basis of the reducedsentence and the failure to reconsider Mr Su's position in light of this reduction.[15] Any application for review of a statutory power under the Act must becommenced no later than 28 days after notification of the decision unless theHigh Court decides that, by reason of special circumstances, further time should beallowed.8[16] Mr Su also sought a stay of his appeal to the IPT, pending determination of hisapplication for leave. Without opposition from the respondent, Grice J ordered thatstay on 28 April 2021, which Walker J continued in June 2021 pending determinationof the application for further time.Muir J's decision[17] On 22 September 2021, Muir J declined Mr Su's application for further time.9The Judge considered the delay extraordinary, unexplained and was not persuaded thatspecial circumstances in the sense required existed. The Judge also expressed doubtabout the underlying merits of Mr Su's proposed challenge to the validity of the DLN.[18] As I have said, Mr Su has now lodged an appeal against Muir J's decision.IPT[19] Muir J's judgment brought to an end the previously ordered stay of the appealto the IPT. The IPT has since advised Mr Su's appeal will be heard on 16 and17 February 2022.[20] The IPT has power to stay its own proceedings and it is aware that Mr Su hasappealed against Muir J's decision. It has declined to stay the appeal, and counseladvise me that it requires a direction from this Court if it is to do so.8 Immigration Act, s 247(1)(a).9 Su v Minister of Immigration, above n 1, at [68].Future course[21] Absent a stay, the IPT will proceed to hear Mr Su's appeal in February 2022.If Mr Su succeeds in that appeal, the matter presumably will be at an end. If Mr Sufails, he may within 28 days seek leave from the High Court either to appeal the IPTdecision on a question of law, or for judicial review of that decision, or both. Anyapplication for leave that Mr Su makes will be heard in the usual way. Mr Su couldnot be deported until INZ had served a deportation order, which it could not do whilstMr Su was exercising his rights to apply for leave or, if leave were granted, whilst hisappeal or judicial review were proceeding.Law[22] Rule 12(3) of the Rules provides:12 Stay of proceedings and execution...(3) Pending the determination of an application for leave to appeal or anappeal, the court appealed from or the Court may, on an interlocutoryapplication,—(a) order a stay of the proceeding in which the decision was givenor a stay of the execution of the decision; or(b) grant any interim relief....[23] As Ms Sykes, counsel for the respondent, submits, r 12(3)(a) cannot apply inthis instance and the application must be treated as one for interim relief underr 12(3)(b), or for continuation of that relief. That said, and again as Ms Sykes submits,the principles applicable to the Court's determination of an application under eitherprovision are similar. Those applicable to an application under r 12(3)(a) are those inKeung v GBR Investment Ltd and, for interim relief under r 12(3)(b), are those inENZA Ltd v Apple and Pear Export Permits Committee.1010 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17; and ENZA Ltd v Apple andPear Export Permits Committee HC Wellington CP266/00, 18 December 2000.[24] The Court of Appeal's summary of the relevant principles in Keung is asfollows:11In determining whether or not to grant a stay, the Court must weigh the factors"in the balance" between the successful litigant's rights to the fruits of ajudgment and "the need to preserve the position in case the appeal issuccessful". Factors to be taken into account in this balancing exerciseinclude:(a) Whether the appeal may be rendered nugatory by the lack of a stay;(b) The bona fides of the applicant as to the prosecution of the appeal;(c) Whether the successful party will be injuriously affected by the stay;(d) The effect on third parties;(e) The novelty and importance of questions involved;(f) The public interest in the proceeding; and(g) The overall balance of convenience.That list does not include the apparent strength of the appeal but that has beentreated as an additional factor.SubmissionsApplicant[25] Ms Clark's first submission concerns the nature of Mr Su's appeal to the IPT.This appeal is against the DLN issued after Mr Su was sentenced in the High Court.That said, plainly the IPT will be aware of the reduced sentence and the reasons forthe reduction. On a practical level, Ms Clark advises that getting the appeal ready forhearing will require a considerable amount of work. Ms Clark advises that Mr Suproposes to call four witnesses, all of whom will need to be briefed. Mr Su alsoproposes to seek a further report from a psychologist, who has already provided atleast one report.[26] Secondly, Ms Clark submits that Mr Su has a position to protect in that, if hisappeal to the IPT proceeds but he is unsuccessful, INZ may move to deport him before11 Keung v GBR Investment Ltd, above n 10, at [11]; citing Duncan v Osborne Buildings Ltd (1992)6 PRNZ 85 (CA) at 87; and Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd(1999) 13 PRNZ 48 (HC) at [9].the Court of Appeal hears his appeal against Muir J's decision. If he were to succeedin that appeal, then review proceedings would follow for which Mr Su may not bepresent in New Zealand.[27] Deportation would have adverse consequences for Mr Su. Even if he were tosucceed in the Court of Appeal, and in any subsequent review proceeding, Mr Suwould not be able to return to New Zealand as of right. Also, deportation would meanhis return to China where he has not lived for 20 years, would require him to leave hisfamily home and quite possibly his family, including his wife and their child if theywere not to relocate with him, and also the career he has now established as a realestate agent.[28] In short, Mr Su has a more persuasive case to present to INZ as to why heshould be permitted to stay in New Zealand, rather than if he is seeking to make a casethat he should be permitted to return here.[29] Thirdly, Ms Clark also submits that Mr Su is prosecuting his appeal bona fideand that there is a real issue to be tried on the merits. Mr Su has paid security for costsin the Court of Appeal and there is no suggestion he is delaying in preparing theinformation the Court requires to allocate a date for hearing. As to the merits,Ms Clark submits the earliest that Mr Su could have applied for further time was onreceipt of the Court of Appeal's decision on his appeal against sentence on 30 April2020, and quite possibly later than that.[30] Ms Clark also submits that there is no prejudice to INZ in a further delay in theIPT hearing, whereas the prejudice to Mr Su is or may be considerable.Respondent[31] Ms Sykes first submits that the circumstances prevailing when Grice andWalker JJ stayed the IPT's proceedings no longer apply, in that the High Court hasdismissed Mr Su's application for further time.[32] Secondly, the IPT has indicated that it will proceed with hearing Mr Su's appealunless directed otherwise by the High Court. As a matter of principle, the jurisdictionto intervene in the procedure of an inferior court or tribunal is to be exercisedsparingly.12 Moreover, the Act expressly requires the IPT to determine an appeal with"all reasonable speed".13 By February 2022, Mr Su's appeal to the IPT will have beenon foot for almost four years. Ms Sykes submits that granting the stay that is soughtwould simply be to assist Mr Su in the delay of his deportation.[33] Thirdly, in her oral submissions, Ms Sykes accepted that there would be adegree of prejudice to Mr Su if he were to be deported before the Court of Appealdetermines his appeal. However, Ms Sykes submits that Mr Su's prospects of successbefore the Court of Appeal are so remote as to mean this factor should carry littleweight.[34] Accordingly, Ms Sykes submits that the interests of justice lie in declining thestay that Mr Su seeks.Discussion[35] Despite the considerable force in Ms Sykes' submissions, I propose to grantthe stay sought. My reasons are these.[36] First, I accept Ms Sykes' submission that it is likely to be difficult for Mr Su topersuade the Court of Appeal to differ from Muir J. There is also no doubt that, witha sentence of five years, Mr Su remains liable for deportation. That said, on theinformation before me, I am not satisfied that the underlying merits of his proposedapplication for review (if he were to be granted further time) are as hopeless asMs Sykes submits, albeit with support from Muir J. On the information before me,the significant developments are not only the reduction in Mr Su's sentence, but alsothe reasons for that reduction.[37] Secondly, Ms Sykes is correct that appeals to the IPT should be heard anddetermined promptly. However, that submission has less force in the circumstancesof this case given the already lengthy delay. It is no criticism of counsel for therespondent that they did not object to the earlier stays. There was good reason for12 Shafik v Makary [2015] NZHC 2194, [2015] NZAR 1596 at [31].13 Immigration Act, s 222(1).their position. The consequence has been, however, that the hearing of the appeal tothe IPT has already been delayed. I do not know when the Court of Appeal will hearMr Su's appeal but I would expect it to be within the next six or so months. If Mr Sufails then that will be the end of his proposed application for review, and the appeal tothe IPT can then be heard. However, if the hearing before the IPT proceeds in February2022 and Mr Su fails, but then succeeds before the Court of Appeal in obtaining furthertime, the IPT might need to revisit Mr Su's position at a future date.[38] Thirdly, I take into account the potential consequences to Mr Su if he were tobe deported prior to the Court of Appeal hearing and determining his appeal. Theseare not determinative but also require some weight. On the other hand, there is noparticular prejudice to the respondent if the appeal to the IPT is further delayed for aperiod.[39] Fourthly, whilst the delays are regrettable, I am not persuaded that a finalresolution of all matters between Mr Su and INZ will be achieved more quickly if theIPT hearing proceeds in February 2022. On the contrary, for the reasons given, Iconsider the more efficient and expeditious course is likely to be for the appeal to theIPT to be heard after the Court of Appeal has heard and determined Mr Su's appealagainst Muir J's decision. As can be seen, however, I shall reserve leave to apply inthe event of some unanticipated development.Result[40] I grant the applicant's application to continue the stay of appeal 600499 to theImmigration and Protection Tribunal pending further order of this Court or the Courtof Appeal.[41] I reserve leave to apply.[42] The parties may make brief submissions on costs in the absence of agreement.Peters J