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Court of Appeal of New Zealand |
Last Updated: 13 March 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Applicant |
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AND
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First Respondent |
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AND
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Second Respondent |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1] The applicant, Mr Fernandes, is a 36-year old Indian national. He was granted a residence permit on 6 May 2008, after a period of study in New Zealand. He returned to India in August 2008, whereupon he married his wife (V) and shortly thereafter returned to New Zealand. V followed him to New Zealand in January 2009. Their son, D, was born on 11 June 2009.
[2] Mr Fernandes subjected V to ongoing domestic violence during their marriage. This culminated in Mr Fernandes being convicted of contravening a protection order, injuring with intent to injure, speaking threateningly, assault with a weapon and a representative charge of common assault. The offences in question took place between February to September 2009, with one isolated further event on 1 April 2010. Mr Fernandes was sentenced to two years and two months’ imprisonment on 30 May 2011.
[3] Before his release from prison, Mr Fernandes was served with a deportation liability notice pursuant to the Immigration Act 2009 (the Act).[1] After his release on parole in August 2012, Mr Fernandes appealed to the Immigration and Protection Tribunal (IPT) against his deportation. In February 2013, the IPT dismissed his appeal.[2] Mr Fernandes then applied to judicially review that decision in the High Court. All grounds of the review were rejected by Ronald Young J.[3]
[4] Mr Fernandes now applies for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) to appeal against that decision of the High Court. He also applies for a stay of execution of his deportation under r 12(3)(a) of the Rules, which is scheduled for 13 March 2014. Counsel accepted in oral submissions that this should be treated as an application for interim relief.[4]
[5] Because of the clear view we have formed on the application for extension of time, the application for interim relief essentially falls away. We therefore address the r 29A application first.
Application for extension of time
[6] In assessing the application of time within which to appeal, the chronology of events is important. The appendix sets out what appears to us to be the critical events and their timing. As the High Court judgment was delivered on 4 October 2013, the date for filing the appeal expired on 5 November 2013.[5] The application for an extension was not filed until 9 January 2014, 56 working days after delivery of the High Court judgment and 36 working days out of time.
[7] In the case of such a lengthy delay, the reasons for the delay are important. The only explanation offered by the applicant for the delay is the following:
The delay in lodging the appeal has occurred because of the need to consult a range of authorities both within and outside the jurisdiction in order to ascertain current practice practices [sic] and to consider precedents relevant to the appeal. The statutory holiday period has also been a factor.
[8] As counsel for the applicant accepted, this delay is significant, particularly in the immigration context where the courts have recognised that statutory timeframes are important.[6] It also impacts upon the orderly and efficient administration of the immigration system.[7]
[9] In our view, the explanation that counsel needed “to consult a range of authorities both within and outside the jurisdiction” cannot withstand scrutiny. We agree with counsel for the second respondent that some legal research is likely to be necessary for most appeals from the High Court to the Court of Appeal. However the only step required to commence the appeal was to file a notice of appeal. Exhaustive research is not necessary. A period of 20 working days is ample time to review the High Court judgment and identify any errors of law, particularly in a judicial review context.[8]
[10] We do not consider that the interests of justice favour an extension of time being granted in order to allow counsel time to conduct legal research. Moreover, any failure by legal advisers, in circumstances such as the present, to take steps to appeal in a timely fashion is not a good reason to excuse delay.[9]
[11] The claimed intervention of the “statutory holiday period” cannot be advanced to justify the delay. The Christmas vacation did not commence for the purpose of calculating a “working day” under the Rules until 25 December 2013. By then the appeal was already 36 working days out of time.
[12] There is another aspect of concern. In all of the dealings that the applicant or his counsel had with Immigration New Zealand after the delivery of the High Court judgment, the first reference to an appeal came on 17 December 2013. That was when counsel advised Immigration New Zealand that they had been “re-visiting” the High Court judgment for the purposes of a possible appeal but had “... still not come to a decision on this”. Prior to this, Immigration New Zealand had extensive dealings with the applicant and his lawyer arranging for his deportation, in the course of which he made no mention of a possible appeal. In one of these dealings in late October 2013 the applicant was noted as advising Immigration New Zealand he “wants to go to India as he knows he cannot stay in NZ”.
[13] There being no acceptable explanation for the delay in filing the appeal, in the normal course an extension of time would not be permitted. However we now consider whether the merits of the proposed appeal might ground a successful application for extension.
Nature and merits of the proposed appeal
[14] We refer first to the Tribunal decision. As the Tribunal recognised,[10] the key issue was whether the applicant’s relationship with his then three-and-a-half-year old New Zealand citizen son was an exceptional circumstance of a humanitarian nature, such that it would be unjust or unduly harsh for him to be deported.[11]
[15] In assessing the evidence before it and the interests of the family, the Tribunal found that unless steps were taken by the applicant, he would have no direct access to D for another 10 years or more, even if he were allowed to stay in New Zealand.[12] The IPT found the applicant had made no attempt since he was arrested on 2 April 2010 to have any contact with his son, even through an intermediary.[13] The evidence of both Mr Fernandes and V was that there had been no contact with his son during that time. The applicant sought to explain this, saying it was the advice of his lawyer and a Father Roberts (with whom the applicant had lived for a time) to wait until the deportation proceedings were resolved before making contact.
[16] The IPT found it difficult to comprehend why either of those parties would provide such advice, given the importance of early bonding with his son and the obvious benefit it would provide to his appeal.[14] No evidence was produced to support this advice from his lawyer, and Father Roberts made no statement to that effect in his evidence. At that time the applicant had not even applied to the Family Court for access to, or contact with, his son.
[17] So far as the interests of the son were concerned, the Tribunal said this:[15]
[75] Normally, we would place considerable weight on the importance to a child of growing up knowing his father (and on the importance to the father of contact with his son). We do not need to labour the point about the best interests of children. Such consideration, however, presumes a relationship of quality – one that is nurturing and beneficial to the child’s development and which has context and depth. That is not the case here. The failure of the appellant to attempt any communication with his son or provide for him, even very modestly once he has been released from prison does not point to his relationship with [D] being a substantial factor in finding exceptional circumstances of a humanitarian nature: see Singh v Minister of Immigration [2009] NZCA 50, at [20(e)]. We have no confidence that the appellant will have any meaningful relationship with [D] in the future, even if he stays in New Zealand.
Conclusion on Exceptional Circumstances
[76] Weighing all the above matters cumulatively, the appellant’s relevant circumstances are that he is reasonably well-settled here and has a son in New Zealand. The significance of the relationship with the son, however, is qualified by the fact that the appellant has had no contact with him for more than two years and the evidence does not satisfy us that this will change meaningfully, even if the appellant remains in New Zealand. At most, the son may seek him out when he is a teenager but that is remote in time and is no more than speculative.
[18] Having carefully reviewed all the evidence, the Tribunal concluded that there were no circumstances of a humanitarian nature which justified allowing the appeal.[16]
[19] On the public interest limb of s 207 of the Act, the IPT considered whether the applicant had turned his back on his propensity for violence. The IPT said the evidence confirmed Judge Perkins’ reservations at sentencing about Mr Fernandes’ lack of remorse and insight.[17] Then the IPT said this:[18]
The appellant failed to fulfil the requirements of both the interim and the final protection orders that he attend an anti-violence course. Since his release on parole he had started one such course, but gave it up and then started another. Accordingly, we have an appellant before us who is untreated. We do not find that he has accepted that he has the violence problem that has been identified by the courts and by Father Roberts. We do not have confidence that any future relationship partner he might have would be safe if she differed from his wishes.
[20] These findings are entirely consistent with those of the Parole Board in September 2011. The Parole Board was concerned that Mr Fernandes was contemplating playing a part in his son’s life. This was identified as one of the major concerns of his victim, as she feared not only for her own safety, but also for the child’s. Following the hearing, the Parole Board panel was satisfied that if Mr Fernandes had been released at the time he would be an undue risk to the safety of the community or anyone in that community between then and his sentence end date.
The High Court judgment
[21] The application for judicial review in the High Court failed. The applicant argued five types of alleged error.[19] He contended that the IPT made mistakes of fact; was biased and inconsistent in its decision making; failed to take into account relevant considerations; drew unfair and unjustified factual inferences; and that these errors in combination meant the decision-making process has misfired sufficiently to require intervention.
[22] Elaborating on these grounds, we refer to the submission advanced by the applicant in the High Court that the IPT ought not to have determined the appeal but should have waited for a Family Court assessment to have been made. Justice Ronald Young summarised the argument thus:[20]
[43] The applicant submitted that the IPT was not in a position to adequately assess the best interests of D and should, as Mr F requested, have adjourned the appeal to allow the Family Court to assess D’s best interests. Its failure to take this approach meant the IPT did not have all relevant information before it when it made its decision. Counsel for Mr F identified this as a pivotal ground of challenge. The alternative to an adjournment was a suspension, for a period of up to five years, of the deportation order.
[23] The Judge then concluded:
[44] In the circumstances of this case there was no reason for the IPT to delay making a decision for any Family Court decision. The IPT has its own responsibility to assess the relevant statutory grounds regarding deportation. The best interests of children are often the basis on which s 207 appeals are mounted. No doubt there will be cases where the Family Court’s assessment of a child’s best interests will be valuable to the IPT. But it would be wrong to require the IPT to invariably refer child interest questions to the Family Court.
[24] On appeal the applicant seeks to argue a somewhat different point. It is best captured in the application for extension of time as follows:
3. The grounds for this appeal are that in the applicant’s case the [IPT] relied entirely on the applicant to present information about his child in order to establish and weigh up the child’s interests. Whilst in many or most cases the applicant will have access to sufficient information to satisfy such a requirement the applicant says that the onus was on the tribunal, using its inquisitorial jurisdiction, to ensure that it had before it sufficient evidence on which to assess the best interests of the child, particularly in this were the applicant was unable to do so [sic]. The [IPT] was aware of these circumstances but declined either to adjourn the hearing to await a report from the Family Court, or to launch its own investigation, or to use its statutory powers to delay the applicant’s deportation to enable the applicant to obtain an independent assessment. It is the applicant’s contention that it was incumbent on the [IPT] to ensure that it was sufficiently informed of the child’s situation to make a child-centric assessment of the child’s interests but it failed to do so.
[25] In summary the key ground of appeal is that the High Court was in error in rejecting the submission that, in the exceptional circumstances of this case, the IPT had a duty to take proactive steps to invoke an inquisitorial power to gather evidence about the interests of the applicant’s son. The applicant says that the protection order prevented him from gathering information about his son’s interests and that the IPT ought to have adjourned proceedings to await a hearing in the Family Court or to have sought to make its own independent assessment.
The merits – our assessment
[26] We are satisfied that the proposed ground of appeal is not arguable for a number of reasons:
- (a) The applicant has not provided any evidence of attempts to establish contact with his son or why he was unable to commence proceedings in the Family Court until 28 May 2013, namely after the applicant had filed the judicial review proceeding in the High Court.
- (b) The Immigration Act makes it clear that the onus is on an applicant to put before the IPT all information he/she wishes to have considered.[21]
- (c) In this case the IPT had all the information it needed to take into account the best interests of the applicant’s son. We have already summarised the key reasoning in this respect.[22]
[27] We agree with counsel for the second respondent that the question of whether, in some exceptional cases, the IPT might have a duty to take proactive steps to make further inquiries does not arise on the facts of this case. If such a duty were to arise, it would likely only be in circumstances where “something relatively obvious is not addressed by the parent(s)”.[23]
[28] As we have already noted considerable information relative to the best interests of the applicant’s son, provided by the applicant and responded to by the mother, was before the IPT. The applicant has no relationship with his son and has made no attempt to establish such a relationship. It is striking that the applicant failed to commence a proceeding in the Family Court for access and contact until after the application for judicial review had been filed in the High Court.
[29] In any event, as Ronald Young J pointed out, the IPT has the responsibility to assess the facts in light of the relevant statutory grounds regarding deportation. In circumstances where there has been no Family Court assessment of the interests of the child, it would not be appropriate for the IPT to have delayed its deliberations in the hope that Mr Fernandes would at some stage file Family Court proceedings.[24]
[30] Moving forward to a more contemporary context, the observations of the lawyer for the son in the current Family Court proceeding are illuminating. Amongst other things he told the Court by memorandum dated 21 October 2013:
Any contact will have to be strictly supervised if it is ordered by the Court. However that is a long way off in terms of how this matter will be advanced. ...
Counsel is of the view that the matter should be adjourned after 30 November 2013 to determine whether father wishes to consider his position on the question of contact with his son. The fact is he will reside in India, the child will be in New Zealand and the only practical future contact will possibly be by way of letter, if permitted by the Court. ...
This matter is purely in the hands now of the Applicant as to whether he wishes to advance further in establishing what counsel believes will be very limited contact (if any) with his son.
[31] Judge de Jong in the Family Court stated in a Minute dated 20 January 2014 that he agreed with this assessment by the lawyer for the child.[25]
[32] We refer next to the cases from overseas jurisdictions relied on by Ms Sawyer in argument. We have carefully considered each of these authorities.[26]
[33] We are satisfied that none assists the applicant. The statutory obligation carried by him, by virtue of ss 226(1) and 228(2) of the Act, to place all relevant material about the interests of the son before the IPT, is not in doubt. The circumstances in which the Tribunal might be required to take “proactive steps” under the statutory scheme operating in this area in New Zealand has been carefully spelled out by the Supreme Court in Ye v Minister of Immigration.[27] The international jurisprudence was not discussed in relation to this aspect, no doubt because each case depended upon its own different statutory context. The requirements of procedural fairness will always be informed by the specific statutory provisions concerned, and how they are framed.
[34] Finally, Ms Sawyer referred us to a United Kingdom protocol on communications between Judges of the Family Court and the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal. But again this protocol would not apply, even in the United Kingdom in the present circumstances. Paragraph two makes it plain that the protocol applies:
where an immigration appeal is pending before the Tribunal and the welfare of a child in the United Kingdom is likely to be affected by the decision in those proceedings and there are family proceedings in existence relating to that child. (Emphasis added).
[35] As we have mentioned, and as the chronology makes clear, Mr Fernandes had not applied to the Family Court for contact with his son before the IPT hearing.
[36] For the reasons given, we are satisfied that the point is not arguable and it is not in the public interest that this question be raised on appeal. It simply does not arise on the particular facts of this case.
[37] We therefore conclude that it is not in the interests of justice to grant an extension of time to appeal. Not only is the appeal significantly out of time, but the proposed ground of appeal is not arguable on the merits.
Application for interim relief
[38] Because of the conclusions we have reached in respect of the application for extension under r 29A of the Rules, it is not necessary for us to address the application for interim relief.
[39] However we should add, even if we were wrong on the application to extend the time for appeal, we would not have granted interim relief in the circumstances of this case.
[40] In our view interim relief is not necessary to preserve the applicant’s position for the future. Deportation would not compromise his legal rights. He could still have mounted his challenge to the deportation order had it still been live. In reaching this conclusion we apply by analogy the reasoning of this Court in Parmanadan.[28]
[41] There, the Court considered, interpreting s 58 of the Immigration Act 1987 (now s 177 of the Immigration Act 2009), that where deportation occurs an applicant is not prevented from pursuing his or her substantive appeal from overseas. If ultimately successful, the applicant could obtain a cancellation of the deportation order and a grant of permission to return to New Zealand. We are satisfied that the reasoning in Parmanadan has equal application under the 2009 Act.
[42] It is true that Parmanadan involved a person who was an illegal immigrant. That is not the case with the applicant. He was in New Zealand pursuant to a resident’s permit but became liable to deportation because he had been convicted of a criminal offence.[29] His status therefore was that he was lawfully in New Zealand but liable to be deported. It is only on deportation that the resident’s visa is cancelled.[30] Nevertheless, we are satisfied that the reasoning in Parmanadan may be applied by analogy because the applicant’s ability to return to New Zealand would be preserved by the possibility of the exercise of Ministerial power under s 182 of the current Immigration Act.
[43] The present circumstances are such that the applicant’s appeal is not live because, as we have ruled, an extension of time is not available to him. However, if he wishes to continue to seek contact with his son through the Family Court, it is open to him to pursue that course. If in due course the Family Court were to make an order for, say, supervised contact in New Zealand, it would be possible for the applicant to apply to the Minister to reduce or remove the period of prohibition on entry.[31]
[44] It follows that, even if we had granted an extension of time in relation to the proposed appeal, the appeal would not have been rendered nugatory. The cases relied upon by the applicant in support of his submission to the contrary have all been overtaken by changes in the statutory procedure governing deportation and the principles enunciated in Parmanadan.
[45] Accordingly we would not have seen this as an appropriate case in which to grant interim relief.
Result and costs
[46] For the reasons set out above the application for an extension of time in which to appeal under r 29A of the Rules is dismissed. Further, the application for interim relief is dismissed.
[47] The second respondent seeks costs. Mr Woods said his client would not resist an order. However he advised that his, and Ms Sawyer’s, services had been provided on a pro bono basis. The Court is most grateful for the assistance received from them. The applicant must nevertheless pay the second respondent costs for a standard application on a Band A basis and usual disbursements.
Solicitors:
Rowland
Woods Legal, Wellington for the Applicant
Crown Law Office, Wellington for
First and Second Respondents
Appendix – Chronology
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Date
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Event
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21 February 2007
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F arrives in New Zealand on a student visa.
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6 May 2008
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F granted New Zealand residence.
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September 2008
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F and V marry.
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5 October 2008
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After marriage ceremonies, F returns to New Zealand.
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19 January 2009
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V arrives in New Zealand.
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11 June 2009
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Son D is born
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February to late September 2009
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19 incidents of domestic violence F against his wife.
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October 2009
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F and his wife separate; V obtains protection order against
applicant.
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January 2010
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F and his wife reconcile.
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1 April 2010
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F and his brother seriously assault and injure F’s wife.
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28 February 2011
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F is convicted.
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30 May 2011
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F, having been convicted of injuring with intent to injure, breach of
protection order, assault with a weapon, is sentenced to 2 years
2 months
imprisonment.
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7 May 2012
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F files appeal to IPT.
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8 June 2012
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F served with deportation notice.
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20 August 2012
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F released from prison.
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29/30 October 2012
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F’s appeal against deportation notice heard by IPT.
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28 February 2013
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IPT’s decision – dismisses F’s appeal.
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5 April 2013
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F applies to High Court for judicial review of IPT’s decision.
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28 May 2013
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F applies to Family Court for variation of a parenting order to permit
contact with his son.
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30 September 2013
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F’s judicial review application heard in High Court.
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4 October 2013
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Ronald Young J delivers judgment.
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8 October 2013
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Deportation order served on F.
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21 October 2013
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Memorandum of lawyer for child filed in Family Court.
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8 January 2014
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F applies to Court of Appeal for extension of time to appeal.
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20 January 2014
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Judge de Jong in Family Court agrees with assessment in the 21 October
2013 memorandum.
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24 February 2014
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F applies to Court of Appeal for interim relief.
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13 March 2014
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Date by which F is to leave New Zealand.
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[1] Immigration Act 2009, s 161.
[2] Fernandes v The Minister of Immigration [2013] NZIPT 600013 [Tribunal decision].
[3] RDF v Immigration and Protection Tribunal [2013] NZHC 2583, [2014] NZFLR 45 [High Court judgment].
[4] Court of Appeal (Civil) Rules 2005, r 12(3)(b) [the Rules] and Judicature Amendment Act 1972, s 8(1)(b). This approach was considered by this Court in Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424 at [2]. The Court acknowledged it could have simply dealt substantively with the appeal against the High Court decision, an approach adopted in Singh v Minister of Immigration [2009] NZCA 50. The Court noted, however, that either way the critical issues would be much the same.
[5] Rule 29(1)(a) which establishes a 20 working day time limit.
[6] For example Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24]; Achhido v Governor of Mt Eden Prison [2001] NZAR 584 (HC) at [26].
[7] Discussed by this Court in Parmanadan, above n 4, at [7].
[8] The Rules do not require reference to authority in the notice of appeal. Any relevant authorities, local or international, can be included in the applicant’s submissions.
[9] Fang v Removal Review Authority HC Wellington CIV-2005-484-1257, 5 August 2005 at [8]. See also R v Refugee Status Appeals Authority [2008] NZAR 655 (HC) at [31] and Huang v Minister of Immigration HC Auckland CIV-2005-404-5202, 18 July 2006 at [27].
[10] Tribunal decision, above n 2, at [2].
[11] Immigration Act, s 207(1)(a).
[12] At [64].
[13] At [65].
[14] At [65].
[15] At [75]–[76].
[16] Tribunal decision, above n 2, at [77].
[17] At [95].
[18] At [96].
[19] As summarised in the High Court judgment, above n 3, at [3].
[20] Footnote omitted.
[21] Immigration Act, ss 226(1) and 228(2). An example is T v Immigration and Protection Tribunal [2012] NZHC 1821 at [41(3)], citing Faave v Minister of Immigration HC Auckland M1434/96, 9 May 1997 at 16; approved by this Court in Minister of Immigration v Al-Hosan [2008] NZCA 462, [2009] NZAR 259 at [42]–[43].
[23] Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [48].
[24] High Court judgment, above n 3, at [46].
[25] Fernandes v V FAM-2010-090-000653, Minute of Judge de Jong dated 20 January 2014.
[26] Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568 (Australia); Baker v Minister of Citizenship and Immigration [1999] 2 SCR 817 (Canada); ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 (United Kingdom).
[27] Ye v Minister of Immigration, above n 23, at [47]—[49] per Tipping J.
[28] Parmanadan, above n 4, at [10]–[11].
[29] Immigration Act 2009, s 161.
[30] Section 64(1)(a).
[31] Pursuant to s 182.
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