Singh v Chief Executive Ministry of Business, Innovation and Employment [2014] NZCA 220; [2014] 3 NZLR 23 (4 June 2014)

Last Updated: 29 January 2018

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_{IN THE COURT OF APPEAL OF NEW ZEALAND}

CA880/2013 [2014] NZCA 220

BETWEEN	MANJINDER SINGH Appellant
AND	CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Hearing:	19 May 2014
Court:	Randerson, Winkelmann and Lang JJ
Counsel:	F C Deliu for Appellant C A Griffin for Respondent
Judgment:	4 June 2014 at 2:30 pm

_{JUDGMENT OF THE COURT}

A The appeal is dismissed.

B The appellant must pay costs to the respondent on a standard appeal

_{Band A basis with usual disbursements.}

REASONS OF THE COURT

_{(Given by Randerson J)}

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT CA880/2013 [2014] NZCA 220 [4 June 2014]

Introduction

[1] The appellant Mr Singh appeals against a judgment given by Gilbert J in the High Court on 29 November 2013.¹ In that judgment, Mr Singh’s application for judicial review was struck out.

[2] Mr Singh’s application for judicial review was in respect of two letters written by officers employed by the respondent. Although the name of the responsible Ministry has now changed, we will refer to the respondent in this judgment as Immigration New Zealand (INZ) unless otherwise stated. The letters were written in the course of an investigation by INZ into whether Mr Singh had gained a residence visa by concealing relevant information. Depending on the outcome of this investigation, a submission could be made to the Minister of Immigration who has power under s 158 of the Immigration Act 2009 (the Act) to determine whether a residence visa was procured through fraud, forgery, false or misleading representation, or concealment of relevant information. Mr Singh would be liable for deportation if the Minister were to make such a determination.

[3] At an early stage of the proceedings in the High Court, INZ questioned whether judicial review was available given that the relevant issues which might be referred to the Minister were only at a preliminary investigation stage and INZ’s view that no decision had been made which could affect Mr Singh’s rights. The matter came before Gilbert J in consequence of an order made by Andrews J that the point raised by INZ be determined as a preliminary issue under r 10.15 of the

High Court Rules.²

[4] On Mr Singh’s behalf, Mr Deliu has raised a number of issues on appeal

which may be reduced to these:

(a) Whether the Judge went beyond the scope of the preliminary question identified by Andrews J.

¹ Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC

_{3181 [High Court judgment].}

² Singh v Chief Executive of the Ministry of Business, Innovation and Employment HC Auckland

CIV-2013-404-3105, 24 July 2013 [Minute of Andrews J].

(b) Whether the Judge wrongly determined that the letters were not amenable to judicial review.

(c) If the Judge was entitled to embark on a consideration of the merits of the judicial review application, whether he dealt with all the grounds raised.

(d) Whether the Judge failed to take into account relevant considerations.

Background facts

[5] The Judge succinctly set out the background facts which counsel agree were correctly stated:

[7] Mr Singh was married in India to Sampuran Kaur, a New Zealand citizen, on 10 September 2003. Mr Singh applied for a residence visa under the Family Partnership category on 31 March 2004. This was approved on

20 December 2006 after the Department was satisfied, based on Mr Singh’s

assurances, that he was living with Ms Kaur in a genuine and stable marriage.

[8] In October 2010, while attempting to sponsor his current partner’s application for a New Zealand visa, Mr Singh provided a divorce decree and judgment given by a court in India to show that he had divorced Ms Kaur on

13 February 2008. To obtain this decree, Mr Singh, as the petitioner, was required to prove that he had been continuously living apart from Ms Kaur for at least two years prior to filing his petition on 17 September 2007. The judgment records Mr Singh’s sworn statement that he had been continuously living apart from Ms Kaur since 14 November 2004, she having deserted him on that date.

[6] As the Judge said, the divorce decree and judgment raised the obvious issue as to whether Mr Singh had breached the statutory obligation upon an applicant for any type of visa to inform an immigration officer of any relevant fact including any material change in circumstances after the application is made.³ This led an officer

_{in the Resolutions Team at INZ to write to Mr Singh on 4 April 2012 in these terms:}

³ The Judge referred to s 58 of the Immigration Act 2009 as the source of this obligation b ut it is accepted that the obligation arose under s 34G(1) of the Immigration Act 1987 which was applicable when Mr Singh obtained his residence visa. This is of no consequence since the relevant provisions are expressed in terms that are materially the same.

Re: Consideration of whether you are liable for deportation

Your case was recently referred to the Resolutions Team to investigate whether you are liable for deportation after gaining residence by withholding relevant information.

You gained residence in New Zealand in December 2006 under the Partnership policy based on your claimed relationship with Sampuran Kaur. In October 2010, while attempting to sponsor your current partner Bhupinder Kaur, you have provided a divorce document indicating that you and Sampuran Kaur separated in November 2004.

Had Immigration New Zealand (INZ) known about your separation from Sanpuran [sic] Kaur at the time your application for residence was under consideration you would not have qualified under the Partnership policy. Partnership policy requires an applicant to be in a genuine and stable relationship with their sponsoring partner. You were not in a genuine and stable relationship with Sampuran Kaur by the time your residence application was finalised.

A preliminary assessment of your case has been completed and a deportation liability submission is being prepared for the Minister of Immigration’s consideration. As you gained residence by fraud, forgery, false or misleading information, or concealment of relevant information, deportation is being considered under the Immigration Act 2009.

I now invite you to make submissions and advise whether you are willing to attend an interview. The further submissions and interview are a chance for you to make comment on the concealment of the relevant information and provide details on your current situation and personal circumstances.

If you wish to provide submissions and attend an interview please respond by 16 April 2012. Please also advise whether you will require an interpreter at the interview and, if so, for which language. If you do not reply by

16 April 2012 a decision as to whether we should proceed further will be based on the information we currently have on file.

If you have any questions or wish to discuss any aspect of this letter, please

contact the writer at ...

[7] Mr Deliu was instructed to act for Mr Singh shortly afterwards and, after a preliminary response on 11 April 2012, provided a full response by letter of 21 June

2012. Attached to the 21 June letter was a large body of documentary evidence. It

was submitted the evidence showed that the concerns raised by INZ’s letter of

4 April 2012 were without foundation. Amongst other things, Mr Deliu’s letter asserted that the decree of divorce made by the Indian Court was not evidence binding on the New Zealand justice system. Allegations of bias and predetermination were also made. It was further contended that INZ should have considered all relevant material before expressing the view set out in the 4 April

letter. Rather it was said that INZ had placed sole reliance on the divorce decree from the Indian Court.

[8] In this Court, Mr Deliu reiterated a point made in his initial letter of 11 April

2012 in which he suggested that INZ had acted in a way that was contrary to due process by not contacting Ms Kaur nor obtaining a copy of the entire divorce file from the Indian Court.

[9] There was considerable delay after Mr Deliu’s letter before INZ responded by letter of 13 May 2013. In part, the delay was caused by INZ’s unsuccessful attempts to obtain the file from the Indian Court. INZ was advised that a third party was not authorised to obtain access to the file. The INZ letter of 13 May said:

Dear Mr Deliu

I refer to your letter dated 21 June 2012, in particular your discussion at paragraphs 33-53 regarding INZ’s evidence against Mr Singh, which suggests that he separated from his then wife on 14 November 2004.

I apologise for the delay in this matter, but it took some time for a verification request to be completed, which I refer to below.

You believe this is insufficient evidence to proceed with this case. You submit that relying on the divorce decree alone is “erroneous”, apparently based on your assertion at paragraph 50 that the decree “is not the evidence that is binding upon the New Zealand justice system.” With respect, the only matter Resolutions is concerned with at the moment is whether there is sufficient evidence for the Minister to make a determination under s158(1)(b), which does not prescribe a standard of proof. This can be contrasted with s202(c), which places the onus on Mr Singh (should he appeal to [the Immigration and Protection Tribunal] assuming an adverse Ministerial decision) to prove, to the civil standard of probabilities, that his residence was not procured through fraud. INZ therefore rejects the presumption of your argument that the evidence would ‘bind’ [the Immigration and Protection Tribunal], and in any event (as I suggest above) it is not necessary for Resolutions to consider such matters in preparing the case for the Minister. You are welcome to make such arguments to [the Immigration and Protection Tribunal] should it come to that.

Secondly, you have made much of the incorrect statement by Ms Mehrtens when she referred the case to Resolutions. As a matter of course, Resolutions does not rely on the statements, wording or information contained in any referral template. Upon receipt of any referral, Resolutions conducts a thoroughly independent investigation of the mater, and it is not uncommon for us to close down a case or refer the matter back to the referring branch due to insufficient evidence or incorrect reasoning. In any event, you will note that in our preliminary assessment, we make no

reference to Ms Mehrtens’ statement, and her referral (again, this is standard

practice) will not be enclosed in the file which goes to the Minister.

Finally, you believe that the decree may contain a clerical error, and that it is INZ’s “obligation to collect all evidence” before coming to any preliminary conclusions. INZ did not and does not accept your position; given the evidence we hold, it is in fact your client’s responsibility to disprove the allegation. We nevertheless did ask INZ’s New Delhi branch to obtain the file from the relevant court. On 21 March 2013, our officers were told by court officials that INZ, as a third party, could not view the file, and that “if the decree bears any incorrect information then the responsibility lies with the concerned party to make the necessary correction(s).” Please refer to my verification request and result (enclosed).

Given that the relevant court is in India, I am willing to give your client time to arrange for the retrieval of the file and (if applicable) correction of the record. I would request that you contact me within three weeks of the date of this email to advise what steps your client intends to take in this regard; I am willing to entertain a suggestion at that point as to how long your client needs, and I and management will consider our response to any request for time at that point. If your client refuses to attempt to correct the facts as recorded on the decree, Resolutions will proceed with preparing his case for the Minister’s consideration.

I look forward to hearing from you.

[10] Thereafter, Mr Singh promptly issued his application on 10 June 2013 seeking judicial review in respect of the letters of 4 April 2012 and 13 May 2013. The pleading described the first letter as “a preliminary decision” and the second as “the second decision”. INZ was alleged to have exercised statutory powers and it was said the resulting decisions were unlawful. The Judge summarised the grounds

of the claim in these terms:⁴

(a) the defendant erred as a matter of law in determining that there was no standard of proof; and/or that the burden of proof was on the plaintiff; and/or in determining that the Indian judgment disposed of the question regarding the actual separation date;

(b) the entire basis for the investigation was Mr Singh’s statement that he had separated from Ms Kaur in November 2004 but there was either “no evidence” of this or it was “a mistake of fact”;

(c) The defendant acted unreasonably in that:

(i) he failed to take into account relevant considerations such as the “objective court record in India that would dispel any notions of who said what and when”, the wife’s version of events and the material on Mr Singh’s immigration file

⁴ High Court judgment, above n 1, at [13].

tending to show that he was in a “bona fides relationship current as at December 2006”;

(ii) he took into account as an irrelevant consideration an incomplete record of proceedings; and

(iii) no reasonable decision maker “would posit deportation with the paucity of evidence”.

(d) the defendant breached natural justice by making a recommendation without first hearing from Mr Singh and/or issuing an unreasoned decision;

(e) the defendant acted in a “biased fashion with pre-determination”;

and

(f) the defendant breached statutory obligations under the Immigration

Act.

Did the Judge go beyond the scope of the preliminary question identified by

Andrews J?

[11] In her minute referring to the preliminary issue to be determined, Andrews J

defined the issue as being:⁵

... whether there has been the exercise of a statutory power.

[12] However, the Judge’s comments in other parts of her minute suggested that the issue was whether there was a reviewable exercise of a statutory power. Andrews J directed that the preliminary question be determined on the basis of a bundle of documents to be agreed. The determination of the question proceeded on that footing.

[13] In approaching this issue, Gilbert J stated at the outset of his judgment:⁶

The defendant contends that the relevant statutory power of decision is vested in the Minister and that he is not yet even seized of the matter. The defendant argues that the letters sent in the course of the investigation do not involve the exercise of a statutory power and are not amenable to review. This judgment deals with this preliminary issue, as directed by Andrews J.

[14] The conclusion by the Judge shows that he understood the question to be whether the letters were amenable to judicial review in the sense that intervention by

⁵ _{Minute of Andrews J, above n 2, at [3].}

⁶ High Court judgment at [2] (footnotes omitted).

way of judicial review could not be justified. This is clear from [25] and [26] of the judgment:

[25] The investigation is still in the fact gathering stage. There is no basis for Mr Deliu’s contention that the investigation has “gone off the rails” such that intervention by way of judicial review could be justified despite the fact that no recommendation has yet been made, let alone any decision based on it. I cannot see any basis upon which the 13 May 2013 letter could be amendable [sic] to judicial review.

Result

[26] I determine that neither of the letters is amenable to judicial review. The proceeding is accordingly struck out.

[15] Mr Deliu pointed out that, shortly before the hearing before Gilbert J, INZ filed an application to strike out Mr Singh’s claim. The grounds of the application were that the statement of claim disclosed no reasonably arguable cause of action. The application stated:

(i) The letters of 4 April 2012 and 13 May 2013 do not constitute the exercise of the only relevant statutory power (s 158 of the Immigration Act 2009) as the statutory decision maker, the Minister of Immigration, has not yet made a determination. Indeed he has not yet even seized of the matter.

(ii) Consequently, the letters are not amenable to judicial review.

[16] Ms Griffin for the respondent submitted that the application to strike out was filed out of an abundance of caution and to ensure that the Judge had a means before him to finally dispose of the proceeding should he decide the preliminary question in favour of the respondent. We accept that explanation.

[17] We are satisfied that the Judge did not misapprehend the nature of the application before him. He correctly identified the essence of the preliminary question at the outset of his judgment in the terms we have set out at [13] above. And determined the preliminary question on that basis.

[18] The application did not proceed as if it were a strike out application in which case the Court would have been obliged to treat the allegations in the statement of claim as true. Rather, as directed by Andrews J (with the apparent agreement of the parties) all relevant documents were placed before the Court to enable the

preliminary question to be determined. It is trite that a preliminary question (whether of fact or law or a combination of both) may be disposed of under the High Court Rules. That is clear from the definition of the term “question” in r 10.14. In determining such a question, the Court is not obliged to treat the allegations in the statement of claim as being true but may determine any question of fact or law necessary to reach its conclusion on the identified question. It follows that we do not accept Mr Deliu’s submission that the Judge was required to apply the principles associated with a strike out application.

[19] The Judge made no error of law on this ground.

Did the Judge wrongly determine that the letters were not amenable to judicial review?

[20] The Judge recorded Mr Deliu’s concession that the letters did not involve the exercise of any “statutory power of decision”.⁷ He noted however that Mr Deliu relied on the following part of the definition of “statutory power” in s 3 of the Judicature Amendment Act 1972 (the 1972 Act):⁸

Statutory power means a power or right conferred by or under any Act ...

(e) To make any investigation or enquiry into the rights, powers, privileges, immunities, duties or liabilities of any person.

[21] Dealing with the 4 April 2012 letter, the Judge said:⁹

The analyst in the Resolutions Team was not exercising any specific statutory power, such as those contained in part 8 of the Act, when writing to Mr Singh. He did not purport to require Mr Singh to do anything. He was simply giving Mr Singh the opportunity to respond to the concern that had arisen from the divorce decree and judgment that he had supplied.

[22] The Judge went on to distinguish a decision of Kós J in Zhao v The New Zealand Law Society, noting that Mr Deliu relied on the 4 April 2012 letter only to the extent that it set the background for the 13 May 2013 letter which, the Judge

_{said, was the main focus of Mr Singh’s claim.}¹⁰ _{He concluded that Mr Singh had}

⁷ _{High Court judgment, above n 1, at [15].}

⁸ _{At [15].}

⁹ _{At [16].}

¹⁰ Zhao v The New Zealand Law Society [2012] NZHC 2169, [2012] NZAR 894.

failed to identify any basis on which the 4 April 2012 letter could be amenable to review.¹¹

[23] As to the letter of 13 May 2013, the Judge identified the date of separation as being the critical factual finding for the purpose of the divorce decree of the Indian Court. As the petitioner seeking the decree, Mr Singh was required to establish that he had been continuously living apart from his wife for at least two years prior to the date of presentation of the petition on 17 September 2007. The Indian Court’s finding that he had been living continuously apart since 14 November 2004 was based, the Judge said, on Mr Singh’s sworn evidence to that effect. The Judge rejected as absurd a submission made on Mr Singh’s behalf that the decree of divorce (which Mr Singh had himself presented to INZ) did not provide a basis for an investigation into whether Mr Singh had separated from his former wife prior to obtaining residence status. The Judge also noted that at no stage had Mr Singh (either directly or through his lawyer) stated that the judgment of the Indian Court failed to record accurately Mr Singh’s evidence that he had been living continuously apart from his former wife since 14 November 2004.

[24] The Judge then concluded:¹²

The evidence supplied by Mr Singh in the form of the divorce decree and judgment is highly probative of the separation date. Having been denied access to the Family Court file in India, which Mr Deliu would no doubt have anticipated, the defendant invited Mr Singh to obtain the relevant records to see whether there was anything in Mr Deliu’s suggestion of a possible error concerning the date. The purpose of the 13 May 2013 letter was to give Mr Singh a further opportunity to provide evidence to substantiate this, before any submission was made to the Minister. Like the letter dated 4 April 2012, there can be nothing inappropriate in the defendant giving Mr Singh the opportunity to provide further evidence if he wishes to do so before any submission is made to the Minister for his consideration.

[25] Dealing with a submission by Mr Deliu that the second letter marked the

point where the investigation went “off the rails”, relying on an expression used by

_{Ronald Young J in Marlborough Aquaculture Ltd v Chief Executive, Ministry of}

¹¹ _{High Court judgment, above n 1, at [19].}

¹² High Court judgment, above n 1, at [24].

Fisheries, the Judge rejected this submission in the terms we have quoted at [14]

above.¹³

[26] Mr Deliu submitted that the Judge was wrong to conclude that the investigation process had not “gone off the rails”. He described the 4 April 2012 letter as being expressed in conclusory terms, particularly the statement that:

You [Mr Singh] were not in a genuine and stable relationship with Sampuran

Kaur by the time your residence application was finalised.

[27] He supported that submission by reference to a document dated 14 February

2012, which it appears was not before the High Court. This document was described as a preliminary deportation liability assessment. The assessment was undertaken by another member of the INZ Resolutions Team and concluded with the following:

Recommendation

There is evidence to show that Mr Singh was not in a genuine and stable relationship with Sampuran before he was granted residence. He would not have met residence policy requirements had he notified INZ at that time. There is a prima facie case to proceed towards deportation.

[28] Dealing with the 13 May 2013 letter, Mr Deliu submitted that the letter writer was confused over the onus and standard of proof. It was, he submitted, for INZ to prove the allegations. Mr Singh was effectively invited to “show cause”. Without proper consideration of all the material submitted to INZ or available on the INZ file, Mr Singh should not have been subject to investigation. Mr Deliu pointed to the penultimate sentence in the 13 May 2013 letter in which Mr Singh was advised that if he refused to attempt to correct the facts recorded in the divorce decree “Resolutions will proceed with preparing his case for the Minister’s consideration”.

[29] Finally, Mr Deliu submitted that, even in the investigation stage, there could be a fundamental error that was influential at a later stage. Whether this was so would require an assessment of the merits of the judicial review application which he

_{submitted the Judge had not fully considered.}

¹³ Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC) at

[15].

[30] Ms Griffin for the respondent accepted that, in carrying out the investigation and in writing the impugned letters to Mr Singh, the INZ officials were exercising statutory powers in terms of the 1972 Act. That was a proper concession. However, she submitted that the investigation was at a preliminary stage and that matters had not reached the point where the steps taken were amenable to judicial review in the sense that the intervention of the Court was warranted.

Discussion

[31] We accept Ms Griffin’s submission. Section 4(1) of the 1972 Act empowers the High Court to grant relief upon an application for review in relation to the exercise of a statutory power (as defined) or the proposed exercise of a statutory power. The power of review exists notwithstanding any right of appeal possessed by the applicant and matters need not have reached the stage where a statutory power of decision has been exercised. However, it does not follow that every exercise of a statutory power will be amenable to review in the sense we have described. The real question is whether there is a sufficient basis for the Court to invoke its undoubted jurisdiction under s 4.

[32] The authorities have recently been helpfully discussed by Kós J in the Zhao case already mentioned.¹⁴ Mr Zhao was successful in obtaining judicial review in respect of an adverse recommendation made by Law Society interviewers in relation to his application to practise as a solicitor. The Society had declined to advise Mr Zhao of the reasons for the adverse recommendation and intended to refer the matter to the Committee responsible for making a recommendation to the Society’s Board on Mr Zhao’s application without affording Mr Zhao an opportunity to be heard by the Committee. Kós J found that the application for judicial review was not

premature. He concluded that the recommendation of the interviewers and that of the Committee formed part of the exercise of the Society’s statutory powers and were likely to be given considerable weight by the Society in its ultimate decision.

[33] Kós J referred to this Court’s decision in Attorney-General v Zaoui in which it was held that a preliminary decision made by the Inspector-General of Intelligence

and Security under the New Zealand Security Intelligence Service Act 1996 was amenable to review.¹⁵ The High Court had concluded that Mr Zaoui should have been provided with a summary of the information relied upon by the Director of Security who had issued a security risk certificate. It was also alleged that the Inspector-General had erred in a preliminary decision as to the approach he intended to adopt in Mr Zaoui’s application to review the relevant certificate. It was said that

the Inspector-General had fundamentally misconceived his task as to the relevance of the United Nations Convention Relating to the Status of Refugees 1951.

[34] This Court rejected submissions by the Attorney-General that the application for judicial review in Zaoui was premature. The blanket application of the so-called “ripeness” doctrine was not available in the face of s 4(1) of the 1972 Act.¹⁶ Judicial review was found to be available notwithstanding statutory appeal rights and was not excluded by provisions of the relevant legislation purporting to limit or exclude rights of review.

[35] In Zhao, Kós J also cited Gallen J’s decision in Board of Airline Representatives NZ Inc v Attorney-General to the effect that the availability of judicial review before a final decision has been made is wholly exceptional but could occur where the relevant procedure could be viewed as part of the decision itself.¹⁷

[36] Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries has already been mentioned.¹⁸ Ronald Young J acknowledged in that case that:¹⁹

... there may be situations where because the procedure of decision-making has seriously gone off the rails at an early stage in the process it is essential that the Court quashed the decision. This will particularly be the case where no form of further consultation with the aggrieved party can cure the defect. An obvious example is overt bias by a decision-maker. If established at a preliminary stage it will probably be fatal to all subsequent decision-making.

¹⁵ _{Attorney-General v Zaoui [2004] NZCA 244; [2005] 1 NZLR 690 (CA).}

¹⁶ At [19] per Anderson P; at [89] and [106]–[107] per Glazebrook J; and at [184]–[187] per

_{William Young J.}

¹⁷ Board of Airline Representatives NZ Inc v Attorney-General HC Wellington CP391/98,

_{8 December 1998.}

¹⁸ Marlborough Aquaculture, above n 13.

[37] After discussing what may constitute a proposed decision under s 4 of the

1972 Act, Ronald Young J concluded:²⁰

I am satisfied, therefore, that the preliminary decision made by the defendant was not a “proposed decision” in terms of s 4. I conclude that it was simply part of a process of consultation designed to give the plaintiff every chance to put all information before the decision-maker and before a decision was made. Giving a preliminary view based on the evidence before it helps applicants to understand the decision-maker’s preliminary assessment and thus assists in focusing submissions and if necessary evidence.

[38] In summary, without limiting the matters which may guide a court in cases such as this, the following considerations will be relevant:

(a) The nature of the statutory power being exercised.

(b) The stage that has been reached in the relevant statutory process.

(c) The extent to which the statutory power exercised is likely to be influential in the ultimate decision.

(d) Whether there are any further opportunities in the statutory process to correct any apparent error including the availability of a right to appeal or seek judicial review of a decision ultimately reached at the conclusion of the statutory process.

[39] Where matters have reached only a preliminary stage and the powers exercised to that point are unlikely to be influential in the final decision, the Court will not usually intervene by way of judicial review. There are sound policy reasons why that should be so. Where an investigation is merely at the information gathering stage, and the party under investigation has adequate opportunity to address issues raised for his or her response, it is most unlikely that the subject’s rights will be adversely affected. Moreover, where there are adequate opportunities for appeal or review of any decision ultimately reached, it is not in the public interest that those responsible for conducting preliminary investigations should be put to the time and trouble of responding to applications for review. Similarly, the courts should not generally be troubled with judicial review applications in such circumstances.

[40] That said, we accept there may be cases where the Court’s intervention by way of judicial review may be justified. Cases of this type are likely to be exceptional but where it is demonstrated that an error of law or process has occurred which is likely to have a material influence on the final decision, the Court may be prepared to intervene. The cases we have discussed are illustrative of situations falling into this category.

This case

[41] We are satisfied the Judge was right to conclude that the impugned letters were not amenable to judicial review in the sense that there was no justification for the court’s intervention.

[42] The statutory process potentially had three steps:

(a) The investigation or information gathering phase.

(b) A referral to the Minister with a view to considering Mr Singh’s

deportation under s 158 of the Act.

(c) A decision of the Minister whether to deport Mr Singh.

[43] In the event of an adverse decision, Mr Singh would have rights of appeal to the Immigration and Protection Tribunal.²¹ The Tribunal proceeds on a de novo basis and must allow an appeal if satisfied Mr Singh’s residence visa was not procured by fraud, forgery, false or misleading representations or concealment of relevant information.²² A parallel right of appeal to the Tribunal on humanitarian grounds would also be available.²³ Further rights of appeal on points of law would also be

_{available (with leave) to the High Court and to this Court.}²⁴

[44] Judicial review applications are restricted in respect of decisions where rights of appeal are available until after those rights have been pursued and determinations

²¹ _{Immigration Act 2009, s 158(3).}

²² _{Immigration Act, s 202(c).}

²³ _{Immigration Act, s 158(3).}

²⁴ Immigration Act, ss 245 and 246.

have been made.²⁵ We accept Ms Griffin’s submission that these restrictions are a statutory indicator that the courts may take into account before entertaining applications for judicial review of preliminary steps prior to decisions under the Act being reached. However, the restrictions cannot be construed as precluding the court’s intervention where proper grounds are made out.

[45] In Mr Singh’s case, the steps taken by INZ had not progressed past the investigation phase. It might be said that the Resolutions Team had formed a provisional view on the facts presented that there was a prima facie case that Mr Singh had falsely represented or concealed the date on which he separated from Ms Kaur and that this was material to the grant of his residence visa. We agree with the Judge that there was an obvious foundation for that concern given the divorce documents Mr Singh had himself submitted to INZ. We note that Mr Singh as well as his father and uncle are recorded as giving evidence to the Indian Court supporting the Court’s conclusion that Ms Kaur had separated from Mr Singh on 14

November 2004 and had lived separately from him since that date.

[46] In view of the divorce evidence, INZ was duty bound as a matter of fairness to invite Mr Singh to respond to this evidence before reaching a conclusion to refer the matter to the Minister. The letter of 4 April 2012 clearly gave Mr Singh that opportunity. Mr Singh took full advantage of that opportunity by sending through his lawyer a substantial body of evidence to INZ which, it was submitted, showed that INZ’s concerns had no foundation.

[47] By the time of the letter of 13 May 2013, INZ had all that material and had tried unsuccessfully to obtain the divorce file from the Indian Court despite INZ’s view that it was for Mr Singh to make steps to correct the record if it were wrong. The letter makes it clear that INZ remained willing to correct the record if Mr Singh could obtain the file and show that the information he had provided was wrong. Plainly, no decision or step adverse to Mr Singh’s interest had been taken to that point. The fact that INZ stated that a case would be prepared for the Minister’s

_{consideration if Mr Singh did not correct the facts as recorded on the divorce decree}

²⁵ Immigration Act, s 249.

simply confirms the prima facie view that INZ had reached but did not suggest a closed mind on the issue.

[48] We do not accept Mr Deliu’s argument that Mr Singh was being unlawfully invited to “show cause”. INZ would have been derelict in its duty if it had not pursued its investigation. As the Judge observed, if INZ had referred the matter to the Minister without allowing Mr Singh an opportunity to respond to the concerns raised, that could be seen as a reviewable error.

[49] We do not regard as material the allegation that INZ misconstrued the onus or standard of proof. The letter of 13 May 2013 correctly stated that the only matter the Resolutions Team was concerned with at that stage of the inquiry was whether there was sufficient evidence for the Minister to make a determination under s 158 of the Act. Mr Singh clearly carried at least an evidential onus to show that the divorce material he had provided to INZ was incorrect. The onus and standard of proof applicable to any later decision by the Minister was not material at the point the investigation had reached.

[50] Unlike cases such as Zhao, no recommendation had been reached by the Resolutions Team, nor would it be until Mr Singh had proper opportunity to respond to any concerns properly raised. Nothing had been done up to that point that could have been influential in any later decision by the Minister.

[51] There is no evidence to suggest that, at least by the time of the second letter, that INZ had not considered all the material Mr Singh had submitted or that INZ had pre-determined the issue, acted contrary to natural justice, or breached any statutory obligation as alleged in Mr Singh’s statement of claim.

[52] We conclude that the second ground of appeal must fail.

Did the Judge deal with all the grounds of review raised?

[53] The issue proceeds on the assumption (contrary to Mr Deliu’s submission)

that the Judge was entitled to embark on a consideration of the merits.

[54] The Judge did not consider it necessary in the circumstances to reach a conclusion about all of the matters Mr Singh raised in his statement of claim. We infer that the Judge considered this was unnecessary because he had concluded that the steps taken by INZ had not reached the point where the judicial review jurisdiction should be invoked. This necessarily involved consideration of the merits to a degree and the Judge dealt with the principal points raised. We are satisfied from our own review that there was no merit in any of the other grounds raised.

[55] This ground of appeal also fails.

Whether the Judge failed to take into account relevant considerations

[56] Mr Deliu submitted there were four relevant matters that the Judge had failed to take into account. The first was that the Judge had not taken into account submissions made to him about the importance of the High Court in preserving the rule of law. We have no doubt that Gilbert J was well aware of this point.

[57] The second issue it was said the Judge had failed to consider was the two step process ordinarily adopted in judicial review cases of establishing whether there is reviewable error and then deciding whether to grant relief. We do not accept this submission. The Judge clearly determined that no error had been made by INZ and that it was not therefore appropriate for the court to intervene.

[58] The third matter was an alleged failure by the Judge to consider the statutory regime. There is no merit in this point. The Judge set out the relevant statutory provisions and was not required to do more.

[59] Mr Deliu’s final point under this heading was that the Judge had not considered that Mr Singh had no future recourse to challenge the respondent’s processes. The statutory process for appeal has been set out above. This point is incorrect as a matter of law.

[60] This final ground of appeal also fails.

Result

[61] The appeal is dismissed.

[62] The appellant must pay costs to the respondent on a standard appeal Band A

basis with usual disbursements.

Solicitors:

Amicus Law, Auckland for Appellant

Crown Law Office, Wellington for Respondent