Su v Minister of Immigration [2021] NZHC 2491 (22 September 2021)

Last Updated: 9 November 2021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-485-96 [2021] NZHC 2491

UNDER	the Judicial Review Procedure Act 2016 and s 247 of the Immigration Act 2009
IN THE MATTER OF	an application for leave to commence judicial review of a Deportation Liability Notice out of time
BETWEEN	XIANG SU Applicant
AND	MINISTER OF IMMIGRATION Respondent

Hearing:	10 September 2021
Appearances:	M L Clark for the Applicant BCL Charmley and C Sykes for Respondent
Judgment:	22 September 2021

JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 22 September 2021 at 2.30 pm pursuant to Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar Date:..............................

Solicitors:

Vallant Hooker & Partners, Auckland Crown Law Office, Wellington

SU v MINISTER OF IMMIGRATION [2021] NZHC 2491 [22 September 2021]

Introduction

• [1] Mr Su seeks leave to commence judicial review proceedings in respect of a Deportation Liability Notice (DLN) issued on 13 March 2018. His application was filed on 15 February 2021, two years and 10 months after expiration of the statutory time limit in which to bring such proceedings.¹

• [2] Despite this seemingly inauspicious delay he says that leave should be granted due to “special circumstances”.² He says that as a result of a Court of Appeal decision released in 2020 reducing his sentence on methamphetamine charges from five years and 10 months to five years, the grounds for deportation specified in the DLN no longer apply, that the merits of his intended judicial review proceeding are strong and that 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 November 2001 and was first granted a Residence Permit on 11 June 2007.

• [4] On 5 May 2007 he was convicted on a single charge of possessing methamphetamine for supply under s 6(1)(f) of the Misuse of Drugs Act 1975. This followed 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 the Immigration Act 2009 (the Act).

• [7] On 11 December 2017 Mr Su was advised of this liability by letter from the Ministry of Business Innovation and Employment. He was invited to make submissions addressing the grounds for his liability, his personal circumstances and those 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) delegated decision maker decided (among a range of options which included cancellation or suspension of the deportation liability) that it should proceed. The DLN was issued the same day and was served on 26 March 2018 at the Northern Region Corrections Facility where Mr Su was detained.

• [9] In accordance with s 171 of the Act the DLN specified both the provision in the 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 Act 2009”. The grounds were identified as follows:

(a) You were convicted and, on 13 May 2017, sentenced in the High Court at Auckland for the offence of possession of methamphetamine for the purpose 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 than 10 years after you first held a residence class visa.

• [10] On 18 March 2019, 408 days after his sentence was passed, he filed with the Court of Appeal what was described as an application for leave to appeal.³ The application was made on the basis of an alleged absence of parity with the sentences of 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 because although his parity argument was not ultimately pursued, the fact that his appeal had been commenced before the Court of Appeal’s landmark decision in Zhang v R⁴ gave him the ability to argue that the assessment criteria identified in that case should apply to his much earlier sentencing.

³ As the Court of Appeal pointed out, the procedurally correct course was to file a notice of appeal in which he sought an extension of time. The Court decided to treat his application for leave to appeal 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 February 2020. Its decision was given on 30 April 2020.⁵

• [13] The Court approached the appeal not as a search for error but as an assessment against the new guidelines. Indeed it took no material issue with Gordon J’s analysis of Mr Su’s role in the relevant methamphetamine supply ring, nor the Judge’s conclusion that he did not share in the monetary gains beyond receiving enough methamphetamine to feed his habit.

• [14] Assessed against the new guidelines, the Court held that a reduction in starting point from six and a half years to five and a half years was appropriate. It then adopted Gordon J’s 10 per cent discount for previous good character and remorse, quashed her sentence and substituted a sentence of five years’ imprisonment.

• [15] The astute reader may notice that a 10 per cent discount on a sentence of five years and six months’ imprisonment would, on a purely arithmetical basis, coincide to a term of imprisonment of four years, 11 months and 12 days. However, the Court of Appeal 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 very specific duration would have (by 18 days) been under the statutory minimum of five years’ imprisonment specified in s 161(1)(c) of the Act, Mr Su sought (albeit after further delay) to challenge the Court of Appeal judgment.

• [16] First he applied for recall, saying that the Court should have in fact rounded the sentence down to four years and 11 months’ imprisonment. In the application counsel also sought to re-open the judgment, suggesting that the Court had wrongly found Mr Su to be one of the vehicle drivers associated with the ring’s distribution network.

• [17] On 10 September 2020 the Court of Appeal dismissed the recall application.⁶ It 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 considered the appropriate sentence in the circumstances. That is the objective of sentencing.

• [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 an extension of time to apply for leave to appeal against the Court of Appeal’s substantive judgment. He endeavoured to explain his delay in application by reference to the recall application before the Court of Appeal. As the Crown pointed out, however, the recall application was not made until 17 August 2020, some three and a half months after delivery of the appeal decision.

• [20] Mr Su’s application to the Supreme Court was dismissed. The Court held that there had been an inadequate explanation for the delay in filing the leave application but that, in any event, nothing in the proposed appeal suggested a risk of substantial miscarriage of justice. In particular the Court noted:⁸

Whether adjustments to sentences expressed as percentages are rounded up or down when translated into actual weeks, months or years will depend on the particular circumstances of each case. There is thus no matter of general or public importance. In this case, the Court of Appeal considered the appropriate sentence to be five years, based on its analysis of all the relevant circumstances.

• [21] With his appeal options exhausted, Mr Su then filed his application to commence judicial review proceedings out of time. Even on the most favourable analysis to him (that the time did not start to run until the Supreme Court declined leave) 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 five days late if governed by the rules in s 6 of the Immigration Act.⁹

⁷ 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 the difference between one and five days is immaterial if that is all that was involved. I tend to the view that the matter is governed by the Act, for the reason that the application for leave is made pursuant to s 247(1)(a).

• [22] The Minister’s position is, however, that the delay was substantially longer than either one or five days and that the time should be measured from 30 April 2020 when 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 the Immigration and Protection Tribunal (IPT). This is on the humanitarian grounds specified in s 161(2)(a). The appeal was lodged on 20 April 2018 within the time limit specified in the Act.¹⁰ Although all the records of the IPT are not before me, it appears from the point at which Mr Su filed his appeal with the Court of Appeal (18 March 2019) he took the view that this should be resolved in priority to the humanitarian appeal.

• [24] Five weeks after delivery of the Court of Appeal’s judgment on the sentence appeal, counsel for Mr Su filed a memorandum with the IPT raising the issue of alleged invalidity of the DLN given the fact that the sentence to which it referred had since been quashed and a new sentence substituted. The memorandum invited comment from the Minister observing that if the Minister did not agree it will mean that “the matter must be resolved by the High Court”.

• [25] One week later on 12 June 2020 the Minister filed a memorandum accepting that the grounds specified in the DLN were “no longer accurate” due to the reduction in sentence duration and advising that he would seek instructions about whether a new DLN needed to be issued. The results of that inquiry were the subject of a further memorandum on 26 June 2020. Counsel submitted that the DLN was validly issued and that the IPT continued to have jurisdiction to hear the humanitarian appeal. The memorandum concluded:

Given the Respondent’s position, it is understood the Appellant intends to file proceedings in the High Court. This would necessarily involve the Appellant filing an application for leave to commence review proceedings well out of time 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 the requirement to bring judicial review proceedings if he maintained his position that the basis for the DLN had fallen away.

• [27] On 9 July 2020 counsel for Mr Su filed a further memorandum with the IPT repeating his position that the sentence referred to in the DLN had been quashed and that therefore “the DLN is no longer valid”.

• [28] By minute dated 17 July 2020 the IPT ruled that it had no jurisdiction to determine 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 appeal out of time to the Supreme Court.

• [29] Mr Su has now been released from prison. He has rejoined his wife and I am advised they have very recently had a child together. This will no doubt feature in his ultimate 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 out of or under this Act must be commenced not later than 28 days after the date on 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’s decision in Rajan v Minister of Immigration.¹¹ There the Court held that “special circumstances” are to be interpreted in light of the Act’s emphasis on timeliness:¹²

¹¹ Rajan v Minister of Immigration [2003] NZCA 141; [2004] NZAR 615 (CA). Although decided under the predecessor section (s 146A of the Immigration Act 1987) it has been held to apply to s 247. See AD v Chief Executive of the Ministry of Business, Innovation and Employment [2020] NZHC 1010 at [31]. Since Rajan the time limit for commencing review proceedings has been shortened from three 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 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 s 146A time limit for the filing of judicial review 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 noted that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. It identified three factors which should be considered in determining whether such special circumstances exist: the length of the delay, the reason for the delay and, in marginal cases, the merits of the intended judicial review proceeding (albeit encouraging only a brief examination in that respect¹⁴).

Length of delay

• [33] Consistent with the emphasis on timeliness, the cases demonstrate a limited tolerance for delay. In Xie v The Minister of Immigration, Priestley J explained the rationale in greater detail:¹⁵

Given the very broad supervisory powers which [the Judicature Amendment Act 1972] confers on the High Court, it makes sense that judicial review proceedings should be tightly controlled from a temporal point of view. Particularly is this the case in situations where perhaps proceedings would impede or delay removal from New Zealand of people unlawfully residing here.

• [34] He noted that “[t]he policy of s 146A is clearly designed to place tight temporal constraints on judicial review being used as a mechanism to slow up removal procedures.”¹⁶

• [35] Typically the Courts consider the delay as a fraction or multiple of the relevant time limit.¹⁷ In Zanzoul v The Removal Review Authority Dobson J stated that:¹⁸

¹³ 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 be characterised as ‘long’ or ‘very long’, tending to support a conclusion that leave should be declined.

• [36] He further observed:¹⁹

... where there has been a substantial period of delay ... virtually no circumstances 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 permitted period (three months) was considered “substantial”.

• [38] Likewise, in Ly v Minister of Immigration a delay of 23 days in the context of the new 28 day time limit was considered “too long”.²⁰ The result was the same in Bhasin v The Immigration and Protection Tribunal where the delay was approximately three months.²¹

Reasons for delay

• [39] Again the cases indicate a reasonably strict approach to what constitutes a justifiable reason for delay. This is consistent with the Court of Appeal’s injunction in Rajan 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 been held not to constitute a special circumstance justifying delay.²³ In Yu v Chief Executive, Department of Labour the High Court noted:²⁴

[28] It is apparent that with the assistance of the immigration consultants Mrs Yu and Mr Cha made deliberate and it seems tactical decisions to pursue alternative strategies to appeal or judicial review. This does not constitute a reason for the delay sufficient to amount to a special circumstance. The applicants have simply changed their minds now that time has shown that their alternative 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 v Minister of Immigration [2018] NZHC 138 at [20] where I referred to a delay of 17 days as one which could not be described as short but was nevertheless not overly long and certainly not substantial.

²² Rajan, above n 11, at [24].

²³ See Ochibulu v Immigration and Protection Tribunal [2020] NZHC 792 at [56]; M R v Refugee Status Appeals Authority [2008] NZAR 655 (HC) at [34]; and Yu v Chief Executive, Department of 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. Even with a strong excuse for the delay, however, if the review proceedings were hopeless, this would suggest that the s 146A discretion should not be exercised. ...

• [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 delay and the merits apparently strong, an extension of time could be justified. We doubt, however, that even very strong merits could ever justify an extension if (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 Zanzoul

the 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 the scales in favour of granting leave.

Mr Su’s case

• [43] Mr Su submits that the DLN did not become reviewable until his sentence was reduced and, in turn, that there was no “final” sentence until the Supreme Court dismissed his application for leave. He says therefore that time did not commence to run until 22 December 2020 and that on that basis he was only one (or five) days late when, on 15 February 2021, he filed his application for leave to bring judicial review proceedings. Ms Clark acknowledges that this final delay is not explained but attributes it to the intervening Christmas holiday and delivery of the Supreme Court’s decision at the commencement thereof.

• [44] If that submission is not accepted Mr Su says that delay beyond 28 days after delivery of the Court of Appeal’s substantive decision is properly explained by reference to the Minister’s initial uncertainty about whether a new DLN would need to be issued, the subsequent application for recall and finally the application to the Supreme 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 proceeding weigh strongly in his favour. He points out that the Court of Appeal quashed his initial sentence and says that, if that is the case, then in its terms the DLN refers to and relies upon a ground of deportation (imposition of a five year and 10 month sentence of imprisonment) 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 says that if the process was started again the Minister would have to consider among other things:

(a) whether the applicant was “only just” liable for deportation (by one day only);

(b) that on a strictly mathematical calculation of the Court of Appeal’s discounts 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 would not necessarily follow.

Discussion

• [48] I am unable to accept Ms Clark’s submission that Mr Su’s sentence was not final until 22 December 2020 and that only at that point therefore did the 28 day period specified in s 247(1)(a) commence.

• [49] The sentence against Mr Su was passed on 30 May 2017. An appeal as of right lay from it to the Court of Appeal.²⁷ Any subsequent appeal to the Supreme Court

²⁷ Criminal Procedure Act 2011, s 244(1).

could only be brought by leave of that Court—applied for within 20 working days of the determination appealed against.²⁸

• [50] No as of right appeal was brought against the High Court sentence which remained final until 30 April 2020 when the Court of Appeal granted an extension of time to appeal, set aside the sentence and imposed another sentence (itself final) of a length “it consider[ed] appropriate”.²⁹ To suggest that the newly imposed sentence was not itself final, pending disposition of an application for leave to bring a second appeal and any decision on that second appeal would, as counsel for the Minister submitted 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 sentence on 30 April 2020, is that the date from which time should be calculated for the purposes of s 247?

• [52] Of course, the decision which is the subject of the intended judicial review is that of the Minister’s delegate on 13 March 2018. However, as the Minister acknowledges, the basis for review (whatever the frailties in Mr Su’s argument) first arose on 30 April 2020. Only from that point was an argument potentially available that the grounds specified in the DLN for deportation were “no longer accurate”.³⁰ The 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 is actually intended to review was made two years earlier.³¹

²⁸ 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 applicant goes further and says that the sentence of imprisonment referenced in the DLN was quashed and therefore 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 within the statutory framework. Nor were counsel able to identify any decisions which might assist. A more orthodox approach would be to regard the time limit as commencing to run on the date of notification of the DLN but to capture the initial two year delay down to the date of the Court of Appeal’s sentence decision within an overall “special circumstances” assessment. However it would make no difference in terms of outcome.

• [54] What the Minister emphasises, however, is that no application for leave was filed for over nine months after the Court of Appeal’s decision—that is over nine times later than what s 247(1)(a) requires. He says that this was so substantial a period of delay that the case falls within the category recognised by Dobson J in Zanzoul—one where virtually no circumstances will be sufficiently “special” to warrant the grant of leave.³²

• [55] I regard that as a persuasive submission in light of the authorities already referred to.

• [56] Ms Clark endeavours to counter it by saying that on 12 June 2020 counsel for the Minister indicated that he was seeking instructions on whether a new DLN needed to be issued. But those instructions were clear within a further 14 days and as both Mr Su and the Minister’s memoranda during that period demonstrate, both parties accepted the Minister’s decision to proceed with the existing DLN would necessarily result in the matter having to be tested in the High Court by way (firstly) of an application 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 of Appeal to recall its judgment. On any analysis that was an ambitious application. The Court’s role, having quashed the sentence of Gordon J, was to impose a sentence which it considered appropriate in the circumstances. It was not constrained by any precise mathematical calculation. Nor was there any authority for the proposition that it was mandatorily 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 pursue alternatives other than an application under s 247(1)(a). He sought (again ambitiously) 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 to

³² See Zanzoul, above n 18, at [26].

filing a s 247(1)(a) application—albeit that more than 28 days again elapsed before he did so.³³

• [59] Mr Su therefore faces the twin obstacles that his delay was inordinate and the apparent reason for it (to pursue an alternative course of action) is not one recognised in the authorities as a relevant “special circumstance”.³⁴

• [60] The appropriate course was for Mr Su to bring his application for leave within 28 days of the Court of Appeal’s decision on the sentence appeal (or at the very latest within 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 have been 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 of alternative remedies and have resulted in very much more timely consideration of the application. There is a strong inference that in adopting the tactics that he did, Mr Su in 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 humanitarian appeal and, in the interim, bolstering his credentials to remain in New Zealand. The authorities previously referred to require this Court to be vigilant to such strategies.

• [61] These conclusions are sufficient to dispose of the application. I make some brief comments, however, in relation to the merits of the intended judicial review proceeding. I do so mindful of Ms Clark’s submission that even if the delay was considered unacceptable, the merits of the underlying case are such as to themselves constitute “special circumstance”.

• [62] I do not share that assessment. For a start there is the conceptual difficulty associated with judicial review of a decision, correct at the time, but which, as the result of a subsequent development is arguably not correct at the point review is applied for. At its most fundamental judicial review is directed to the lawfulness of a decision (or failure to make a decision), based on the information available to or which

³³ Irrespective of whether the time calculation is made pursuant to the Immigration Act or the High Court Rules.

³⁴ Yu, above n 23, at [28] per Winkelmann J.

potentially should have been available to the decision maker. Neither counsel was able to identify any instance of judicial review being granted in circumstances where the facts have subsequently changed.

• [63] This does not mean to say that in the paradigm case related to the present—where a residence class visa holder is sentenced to imprisonment for five years or more, a DLN is subsequently issued under s 161(1)(c), but an appellate court reduces 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 an application to the Minister under s 172 to cancel the deportation. And, in the event the Minister 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 the substituted sentence was still of sufficient length to qualify him for deportation. Ms Clark relies heavily on the English High Court decision of Hancock v Prison Commissioners.³⁶ In that case the Court of Criminal Appeal had set aside a 10 year sentence and imposed one of five years in substitution. The effect of that decision was described in the High Court as rendering the original sentence:³⁷

... null and void at the moment when the Court of Criminal Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio, namely, as from the date when it was passed.

• [65] Ms Clark says, therefore, that although the DLN was issued on the basis of a sentence valid at the time (and for the whole intervening period before the Court of Appeal’s decision was delivered) that sentence must now be considered “null and void”. In addition she says that s 171 of the Act requires a DLN to specify the ground

³⁵ Ms Charmley advised the Court that her inquiries at senior levels of Immigration New Zealand revealed that there have, within the period of available institutional knowledge, been only “one or two” instances where a DLN was issued but where the statutory basis for it was removed by the subsequent decision of an appellate court. In each case the deportation liability was cancelled by the 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 grounds specified in the DLN—“you were sentenced to five years and 10 months’ imprisonment”—is now inaccurate by 10 months. She says therefore that this Court should “set aside” the DLN.³⁸

• [66] But that overlooks the fact that judicial review is ultimately a discretionary remedy and that the Court, if minded, could make declarations without in fact quashing the DLN. In that context the Court would be entitled to take into account the overall merits 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 the substituted sentence. In that respect I am unpersuaded by Ms Clark’s submission that the 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 review would be much influenced by the fact that the Court of Appeal had rounded up the sentence 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 not regard 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 to the Minister on a 2B basis. In the event of any disagreement, memoranda (maximum five pages) may be filed. My expectation is that costs should be capable of settlement.

Muir J

³⁸ The reference is to the primary relief sought in the statement of claim.