Vukomanovic v Residence Review Board [2010] NZCA 542; [2011] NZAR 17 (24 November 2010)

Last Updated: 12 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA460/2010 [2010] NZCA 542

BETWEEN GORDANA VUKOMANOVIC
Applicant

AND THE RESIDENCE REVIEW BOARD
First Respondent

AND THE CHIEF EXECUTIVE OF IMMIGRATION NEW ZEALAND
Second Respondent

Hearing: 16 November 2010

Court: O'Regan P, Hammond and Arnold JJ

Counsel: Applicant in person
J Foster for Second Respondent

Judgment: 24 November 2010 at noon

JUDGMENT OF THE COURT

A The application for leave to appeal is declined.

2. The second respondent will have costs on the application for leave to appeal on a Band A basis and usual disbursements.
   

REASONS OF THE COURT
(Given by Hammond J)

Introduction

[1] This is an application under s 116 of the Immigration Act 1987 for leave to appeal a decision of Miller J in which the Judge found the High Court had no jurisdiction to hear the applicant’s appeal against a determination of the Residence Review Board because that appeal was filed out of time.[1] Miller J subsequently refused the appellant leave to appeal to this Court.[2]

Background

[2] It is convenient to recite Miller J’s account of the material facts:

[3] ... Ms Vukomanovic, who is aged 50, came to New Zealand on a visitor’s permit on 30 September 1999, and has remained ever since. She followed her mother, who came to New Zealand in 1997 and secured citizenship in 2001.

[4] Ms Vukomanovic sought refugee status on her arrival, but that was declined and an appeal to the Refugee Status Appeals Authority was dismissed on 19 September 2002.

[5] Ms Vukomanovic has been granted work permits from time to time, but has not been successful in sustaining employment. Her last permit expired on 21 February 2009. She was refused residency on 2 July 2009, Immigration New Zealand having concluded that she had not produced an acceptable offer of employment that satisfied the requirements of the Family (Sibling/Adult) category.

[6] An appeal was brought to the Board, which decided that it had jurisdiction to entertain it. (There was an issue whether her claim was caught by s 129U(2) of the Immigration Act 1987.) However, the Board dismissed the appeal on the merits in a decision dated 21 December 2009. It held that Immigration New Zealand had correctly refused her application for residency, holding that she had not satisfied the requirement that she produce an acceptable offer of employment. The Board held that she probably could not satisfy another requirement, that she have no immediate family living lawfully and permanently in Serbia, her country of origin. Her younger son lives there. Nor were there special circumstances, notwithstanding that her mother, now a widow, is aged 72 and has health problems. Her mother is entitled to social support and institutional care, should she need it. And she had recently travelled abroad. Ms Vukomanovic’s brother lives in Australia and could care for her. Other claims to special circumstances, such as contribution to the community, were reviewed and found insufficient to establish special circumstances.

[3] Ms Vukomanovic then filed her unsuccessful application for leave to appeal to the High Court pursuant to s 115(1) of the Immigration Act on 18 March 2010, nearly three months out of time.

The question of law arising

[4] Section 115(2) of the Immigration Act relevantly provides:

Every appeal under this section shall be brought within 28 days after the date on which the decision of the Board to which the appeal relates was notified to the party appealing, or within such further time as the High Court may allow on application made before the expiry of that 28-day period.

[5] It will be observed that the timeframe is not absolute; a Judge may extend the time limit so long as an application is made within the 28-day period.
[6] The question of law to be raised on the proposed appeal would therefore be whether the High Court has jurisdiction to hear an appeal under s 115 of the Immigration Act when that appeal is filed after the 28-day statutory appeal period has expired.
[7] The answer to that question in our view must be “no”. First, the text of the statute could not be plainer. It is in mandatory terms. Second, there is authority in this Court (some of it by analogy) which strongly supports this proposition. In Attorney-General v Howard this Court held, in the context of the Human Rights Act 1993, that extensions of statutory timeframes can only be granted where the statute itself so allows.[3] In that decision a number of authorities across various statutory contexts were cited by the Court to that effect.[4] In Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue Richardson J remarked, in the context of the Commissioner’s powers to extend time:[5]

On this analysis it becomes unnecessary to speculate on the particular public policy concerns Parliament may have had in mind in determining whether or not in a particular case to authorise the Commissioner to extend the time limit. It is sufficient that the legislation expressly empowers the Commissioner to extend that time in cases where it regards it as appropriate to do so in the public interest, and by necessary implication denies the Commissioner that power in those cases where it specifies a time limit without more.

[8] More recently, in the Immigration Act context, in Steinborn v Minister of Immigration Glazebrook J noted that “where the legislature intended that the body concerned should have the power to extend time, it has expressly conferred such a power”.[6] An example is provided by s 123 of the Immigration Act which expressly provides that the High Court may extend the time limits provided in ss 118-122.
[9] There is no such express power in s 115. The only circumstances in which an extension can be made are if an application is made within the timeframe provided. Thus Miller J was right to hold that he had no jurisdiction to hear the appeal.
[10] The clear statutory language of s 115(2) together with the overwhelming weight of authority points strongly against Ms Vukomanovic’s prospects of success, should leave be granted. The law is settled and thus it cannot be said that the question of law raises an issue of any importance. Neither is there a seriously arguable case.
[11] Finally, there is no other reason to grant leave in this case. The interests of justice do not require it, because the merits have been conclusively dealt with in a way not suffering from procedural defect.
[12] That last observation turns on the fact that when the matter was before him, Miller J very fairly did not shut the door completely. He directed that the appeal before him should (in effect, also) be treated as an application for judicial review to be heard at another time.[7] That application was heard by Joseph Williams J on 29 July 2010. It was subsequently dismissed by him.[8] His Honour concluded that the Board had properly considered Ms Vukomanovic’s submissions and its analysis of them could not be faulted.[9] Ms Vukomanovic is appealing that decision in this Court in a separate proceeding.

Conclusion

[13] The application for leave to appeal is dismissed.
[14] The second respondent will have costs on the application for leave to appeal on a Band A basis and usual disbursements.

Solicitors:
Crown Law Office, Wellington for Second Respondent

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[1] Vukomanovic v Residence Review Board HC Wellington CIV-2010-485-497, 20 May 2010.
[2] Vukomanovic v Residence Review Board HC Wellington CIV-2010-485-497, 24 June 2010.
[3] Attorney-General v Howard [2010] NZCA 58 at [100].

[4] Dawson v Chief Executive Officer of the Ministry of Social Development [2007] NZCA 94 at [12]; State Insurance General Manager v Scott [1982] 1 NZLR 717 (CA); Soto v Minister of Immigration (1986) 2 CRNZ 350 (CA); Benchmark Building Supplies Ltd v Wright (1998) 12 PRNZ 200 (CA); and Mucelli v Government of Albania [2009] UKHL 2, [2009] 1 WLR 276 (HL).

[5] Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue [1990] 3 NZLR 313 (CA) at 320.
[6] Steinborn v Minister of Immigration [2002] 1 NZLR 639 (CA) at [34].
[7] At [15].

[8] Vukomanovic v The Residence Review Board HC Wellington CIV-2010-485-497, 4 August 2010.
[9] At [27].