Allada v Immigration and Protection Tribunal New Zealand [2014] NZHC 953 (9 May 2014)

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UNDER	the Judicature Amendment Act 1972 and the High Court Rules, Part 3
IN THE MATTER	of a decision under s 207 of the Immigration Act 2009
BETWEEN	GOVINDA RAO ALLADA Plaintiff
AND	IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND First Defendant CHIEF EXECUTIVE, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT _{Second Defendant}

Hearing:	16 April 2014
Counsel:	JW Donald for Plaintiff R Savage for Defendants
_Judgment:	_{9 May 2014}

This judgment was delivered by me on Friday, 9 May 2014 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

[1] Govinda Rao Allada applies for leave to judicially review a decision of the Immigration and Protection Tribunal (IPT) which had declined his humanitarian appeal against liability for deportation.

[2] Mr Allada is from India, from a village in Andhra Pradesh, and is a skilled welder. After working in Singapore he arrived in New Zealand on 17 April 2012 and has worked as a welder in New Zealand under a work visa that was valid until

[3] On 3 July 2013 Mr Allada was convicted of indecently assaulting a female over the age of 16 and sentenced to nine months’ supervision and ordered to pay reparation of $1,500 to the victim. Following his conviction Immigration New Zealand issued Mr Allada with a deportation liability notice.

[4] The circumstances of the indecent assault were that Mr Allada had been living in a hostel. The victim was sitting on a couch in a communal dining room drinking coffee and reading the paper when Mr Allada sat down beside her, and then moved closer to her so that he was touching the victim. When she moved to stand up Mr Allada grabbed her left breast, rubbed it and asked her to go to a hotel that night as he wanted to have sex with her. When the victim again tried to get up and leave he again grabbed her breast, firmly rubbing it for a few seconds before letting go. The victim left the room.

[5] Following his conviction and sentence Mr Allada attended counselling and was assessed as a person who does not present an ongoing sexual risk. He has no previous convictions in New Zealand or Singapore. Apparently his involvement in the criminal justice system has taught him a salutary lesson.

[6] Mr Allada appealed the notice to the IPT on humanitarian grounds citing exceptional humanitarian circumstances. In its decision delivered on 14 November

2013 the IPT declined Mr Allada’s appeal against his liability for deportation.

[7] On 10 December 2013 Mr Allada commenced judicial review proceedings by filing a notice of proceedings and statement of claim for orders preventing Immigration New Zealand from taking any further action on his deportation and for an order that the IPT’s decision to decline Mr Allada’s appeal was “flawed and invalid in law”. At the same time an appeal was filed against the IPT’s decision. At that point no leave to file review proceedings or file the appeal was sought. Initially the sole defendant was the IPT but the Chief Executive of the Ministry of Business Innovation and Employment (the Chief Executive) has now been joined.

Mr Allada filed an interlocutory application on notice for leave to make an application for review. The appeal was abandoned. It was out of time and there was no jurisdiction to extend the time.

[9] The application for leave to judicially review the IPT’s decision is opposed by the second defendant, the Chief Executive. The first defendant, the IPT, abides the decision of the Court in accordance with the usual practice.

[10] Mr Donald who appears for Mr Allada takes the view that before the application can proceed further, the 28 day time limit for commencing review proceedings in s 247(1) of the 2009 Act must be extended and that he must therefore persuade the Court that an extension of time is appropriate. Unusually in this situation both parties are taking a position contrary to their interests. The Chief Executive submits that Mr Allada does not require an extension of time and that he did commence proceedings in time. So the first issue to be considered is whether an extension of time is required.

[11] The second issue, if an extension is granted, involves an assessment of what the relevant criteria are for the granting of leave, and given those criteria whether leave should be granted.

[12] The IPT replaced the specialist appeal bodies constituted under the Immigration Act 1987 (the 1987 Act), and is a single body. Under the 1987 Act there was a special provision relating to the judicial review of the IPT’s decisions.¹

Proceedings had to be commenced within three months from the date of the decision unless the High Court decided by reason of special circumstances that further time should be allowed.

[13] Section 247 of the 2009 Act largely re-enacts s 146 A of the 1987 Act, but reduces the time period for commencing a judicial review proceeding. Section

(1) 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 the High Court decides that, by reason of special circumstances, further time should be allowed.

(2) Where a person intends to both appeal against a decision of the Tribunal under this Act and bring review proceedings in respect of that same decision,—

(a) the person must lodge both the application for appeal and the application for judicial review together; and

(b) the High Court must endeavour to hear both matters together, unless it considers it impracticable in the particular circumstances of the case to do so.

[14] There had originally been no provision for a leave requirement to bring judicial review proceedings under either the 1987 Act or the 2009 Act. However, a leave requirement was introduced by Parliament by s 10 of the Immigration Amendment Act 2013, which expanded s 249 of the 2009 Act.²Section 249 of the

(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be

subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

(1A)No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.

(1B) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (1A) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

(1C) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—

(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

[15] It is common ground that these review proceedings were filed within the 28 day period set out in s 247(1). However, no leave application was filed for a further period of approximately six weeks, well outside the 28 day period. It is the consequence of this late filing of the application for leave which must be determined as the first issue. In particular the issue is whether, under s 247(1), the review proceedings were “commenced” not later than 28 days after the notification of the decision.

[16] Mr Donald in his submission (which is against his client’s interests) accepts that proceedings are not commenced until there is an application for leave filed. Ms Savage for the Chief Executive on the other hand submitted that “commenced” has its plain meaning and that the filing of proceedings is sufficient, even if an application for leave is not filed at that time. However, she submits no application can be heard until leave is obtained.

[17] Review proceedings are defined in the interpretation section of the 2009 Act as proceedings by way of an application for review under the Judicature Amendment Act 1972, or alternatively applications for the prerogative writs or a declaratory judgment.³Rule 30.3(1) of the High Court Rules provides that an application for judicial review “... must be commenced by a statement of claim and notice of proceeding in accordance with Part 5 of the Rules”.⁴

[18] In my view it is plain that in terms of r 30.3 judicial review proceedings are commenced on the filing of a statement of claim and complying notice of proceeding irrespective of whether an application for leave is filed at the same time. When s 247(1) of the 2009 Act was originally enacted there was no leave requirement and “commenced” could only be read in the context of its usual meaning, and the High Court Rules that applied. The introduction of a leave requirement in s 249(1B) contained no words relating to the time for seeking leave, and I do not read it as changing the time for commencement of proceedings in s 247(1) which was not changed by the 2013 amendment. I do not see it as implicit or a necessary consequence that the meaning of “commencement” in s 247(1) has changed.

[19] There are no procedural difficulties arising from this. While no judicial review proceeding can be determined unless leave is granted, there is no time limit for the filing of that application. As a matter of practice an application for review under s 247 will only be set down for hearing if leave has been obtained. There will therefore be a practical pressure on those who bring judicial review proceedings under the 2009 Act to promptly apply for leave and have that application determined. However, the 2009 Act does not impose any particular timeframe for this process.

[20] The position can be contrasted to that which applies to appeals. Rule 30.3 does not apply to the commencement of appeals. Rather s 245(2) creates a specific regime that applies to appeals and they require leave. They must be brought not later

_{than 28 days after the decision was notified. Section 245(2) which
sets out time}

limits for leave applications applies rather than r 20.3(1) and (2) of the High Court

[21] I note that in the explanatory note to the Immigration Amendment Act 2013 it is stated that judicial review proceedings can only be “filed” by leave of the High Court. However, the word used in s 249(1B) is “brought” not “filed”, and for the reasons given I do not consider that the explanatory note can be treated as changing the meaning of s 247(1), which was not amended.

[22] Mr Donald in his submissions in arguing that he was obliged to seek an extension, relied on the decision of Wang v Minister of Immigration where Brown J observed obiter:⁶

... Under the amended legislation in the case of a matter to which s 249(1) applies (that is, a decision which may be subject to an appeal to the Tribunal), no judicial review may be brought until after the grant of leave to bring the review proceedings following the appeal (if brought). I suggest that s 247 would be likely to be construed such that the 28 day period ran from the date of the decision granting leave.

[23] Ms Savage for the Chief Executive submitted that this statement involved an incorrect construction of s 247. I reach a different view from Brown J on this point, which was made in a different factual context relating to judicial reviews prior to a final determination of the IPT. Under s 247 proceedings must be commenced “... not later than 28 days after the date on which the person concerned is notified of the decision”.

[24] Section 249 does not refer to when proceedings are “commenced”, but the circumstances when they may be “brought”. In relation to appeals and judicial review, the 2009 Act uses the words “lodge”,⁷“brought”⁸and “commenced”.⁹The terms are not defined and it is unclear what degree of weight can be placed on the

[25] The “decision” in s 247 from which time runs for judicial review is the decision of the IPT relating to granting or declining the appeal against deportation liability. I do not think it likely that the use of the word ”decision” in s 247(1) was meant to mean the Tribunal decision for some purposes and a High Court decision for others. The “decision” from which time runs under s 247(1) after “notification” is the exercise of the “statutory power of decision” (defined in s 247(3)) which is the IPT’s decision. It is not the High Court’s decision granting or refusing leave. This interpretation is consistent with Rajan v the Minister of Immigration where it was assumed by the Court of Appeal that review proceedings were commenced under the

1987 Act by the filing of a statement of claim.¹⁰It is also consistent with the use of

the word “decision” in relation to appeals,¹¹where time runs only from the date of the IPT decision.

[26] In my view the time for judicial review proceedings runs from when they are commenced by filing a statement of claim and notice of proceedings. I conclude therefore that these review proceedings were commenced not later than 28 days after notification by the filing of the statement of claim and notice of proceeding and therefore no extension of time is required.

[27] If an extension of time was required, I would not have granted an extension. In assessing “special circumstances” an examination of the merits may in some cases be called for.¹²If review proceedings are hopeless this is a strong point against the

[28] For reasons that I will set out later in this judgment, I consider this application for judicial review to be certain to fail.

[29] Subsections (1A)–(1C) were inserted into s 249 by s 10 of the Immigration

Amendment Act 2013. These provisions came into force on 19 June 2013. The wording is difficult to follow, containing two statements as to when review

proceedings cannot be brought at s 249(1) and (1A) and then stating in s 249(1B) that proceedings may only be brought in respect of matters “described” in those two earlier prohibitions. However, the meaning is clear. Under s 249(1B) review proceedings may only be brought in respect of matters that do not fall within the earlier prohibitions at s 249(1) and (1A) and leave must be granted.

[30] The fact that the legislature decided to introduce a leave requirement for judicial review applications is made clear by the explanatory note to the Immigration Amendment Act 2013 which provides:¹⁴

The Bill also streamlines review proceedings for any matters coming before the Immigration and Protection Tribunal by –

Specifying that review proceedings cannot generally be taken on matters being dealt with by the Immigration and Protection Tribunal until it has made a final decision on all relevant matters; and

Providing that judicial review proceedings can only be filed by leave of the High Court.

(a) No review proceedings challenging a decision under the Immigration Act may be brought in any Court where that decision may be subject to an appeal to the IPT, unless an appeal has been brought in the IPT and it has issued a final determination on all aspects of that appeal: s 249(1).

(b) No review proceedings may be brought in respect of any matter before the IPT unless the IPT has issued final determinations: s 249(1A). (I comment that this was already stated in s 249(1)).

(c) Review proceedings in respect of an IPT decision under the 2009 Act may be brought, if not prohibited under (a) and (b), but only if the High Court has granted leave, or if the High Court has refused to do so the Court of Appeal has granted leave: s 249(1B).

(d) In deciding whether to grant leave the Court must have regard to two particular matters: (a) whether the review proceedings involves issues that could be adequately dealt with in an appeal against the final determination of the IPT; and (b) if they could not, whether those issues are by reason of the general or public importance, or for any other reason, issues that ought to be submitted to the High Court for review: s 249(1)(1C).

[32] Although s 249 does not state that a review proceeding that involves issues that could have been dealt with by appeal and which are not of general or public importance should not be granted leave, this is the clear implication of the requirement that the Court “must” have regard to those factors. It is possible that a Court could grant leave even if either or indeed both of these two factors were not made out, but that would be a rare circumstance given the emphasis on these two criteria.

[33] Judicial review proceedings have been commenced within the prescribed period but cannot be heard until and unless leave is granted.¹⁵I now consider whether leave should be granted.

[34] In determining whether leave should be granted, s 249(1C) sets out two non- exhaustive considerations: first, whether the issues could have been dealt with on appeal, and, second, whether the issues are of general or public importance or there are other reasons for the High Court to hear to the judicial review.

[35] The submissions filed in support raised, as far as I can discern, two proposed questions of law. First it was argued that the IPT failed to correctly apply the test in s 207 of the Act. Second, it was argued that the IPT made mistakes of fact amounting to an error of law.

[36] Clearly these issues could have been raised on appeal. Indeed, Mr Allada attempted to raise these issues by way of appeal but failed to seek leave to bring the appeal, and then abandoned the appeals. Therefore the central question is whether the issues Mr Allada attempts to raise on review are of general or public importance or for any other reason the High Court should hear the judicial review. In deciding this, the Court must consider whether the importance of the issues outweighs the cost

and delay of bringing the judicial review.¹⁶If the application has “little or no

prospect of success” it follows that the issues are of limited general or public importance, and this points towards not granting leave.¹⁷

(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

(2) In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with section 208.

[38] In relation to the first question it was argued in particular that the IPT failed under s 207(1) to correctly interpret “exceptional circumstances” in that Mr Allada’s circumstances were measured against those of persons living near his home in India rather than those of the total pool of persons liable for deportation from New

_{Zealand. Second, it was argued that the IPT failed to correctly
consider Mr Allada’s}

¹⁶Minister of Immigration v Jooste [2014] NZCA 23 at [5]. The test under s 67 of the Judicature Act 1908 adopted in Jooste as applying to granting leave in the Immigration Act 2009 is set out in Waller v Hider [1998] 1 NZLR 412 (CA) at 413–414; Snee v Snee [1999] NZCA 252; (1999) 13 PRNZ 609 (CA) at [15] and [22].

particular circumstances which made it unjust or unduly harsh to deport him from

[39] The approach to the s 207 test was discussed in Ye v Minister of Immigration.¹⁸The decision related to s 47(3) of the 1987 Act, but the relevant test was the same. It was observed in Ye:¹⁹

That brings us back to the first criterion in s 47(3) which has the following ingredients: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in overstayer cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. It is unnecessary and undesirable to attempt to define the compass of the word “humanitarian”. It is unlikely to be difficult to decide whether the circumstances of a particular case fulfil that description. If there are exceptional circumstances of a humanitarian nature, it is then necessary to determine whether they make it unjust or unduly harsh to remove the person from New Zealand.

However, Mr Donald argued that the IPT had erred in not approaching the issue of exceptional circumstances along the lines adopted by the IPT in its decision, upheld in the High Court, in Ministry of Immigration v Jooste.²¹

[41] It is correct that in Jooste there were arguably glosses put on the reasoning of the Supreme Court in Ye. However, the Court of Appeal has since granted the Minister leave to appeal that IPT decision.²²The Court of Appeal did not discuss the merits of the proposed questions but concluded contrary to the High Court that the questions were all arguable and leave should have been granted. Therefore Mr Donald is relying on a decision that has been held to be possibly wrong by the Court of Appeal. I therefore accept Ms Savage’s submission that it would not be appropriate to rely on the reasoning in Jooste and I see no reason to depart from the

²⁰_{Immigration and Protection Tribunal New Zealand v
Allada [2013] NZIPT 501555 at [13].}

²¹_{Ministry of Immigration v Jooste [2013] NZHC 2671,
[2014] 2 NZLR 257 at [40] and [41].}

[42] In my assessment the IPT carefully and accurately assessed Mr Allada’s circumstances in accordance with the approach of the Supreme Court in Ye. It acknowledged the somewhat one-off and non-serious nature of the offending, the problems that Mr Allada might have in finding employment in India, his parents’ medical requirements and the fact that he has been a significant financial supporter of his family in India. The IPT then made a number of assessments in relation to these factors and concluded that there were no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the plaintiff to be deported from New Zealand.

[43] It can be observed generally that the conviction of Mr Allada related to a serious charge which had a maximum term of imprisonment of seven years. The fact that Mr Allada’s standard of living would drop on his return to India is unexceptional; as a general observation, it is common for a deportee to suffer a significant drop in standard of living to follow from deportation. More is required before the drop in standard of living amounts to extreme circumstances of a

humanitarian nature that is unduly harsh or unjust.²³It is hard to disagree with the

IPT’s assessment that Mr Allada would be able to obtain employment. I would observe that a prospective drop in earning prospects following deportation relied upon by Mr Allada could be relied on by a very large number, perhaps the majority, of appellants from deportation determinations. Like the IPT, I am unable to see anything exceptional in Mr Allada’s circumstances.

[44] Mr Donald submitted that in considering “exceptional circumstances” the IPT wrongly considered only Mr Allada’s circumstances measured against those of the local population in his home region. However, that is not an accurate reading of the IPT’s decision on the point. It stated:²⁴

A photo of the front of a house said to be that of the appellant’s family home has been provided as evidence of the family’s poverty. However, while the home may be poor by New Zealand standards, in the context of the appellant’s home region it is unlikely to be exceptional.

²³_{Ronberg v Chief Executive of Department of Lbaour
[1995] NZAR 509 (HC) at 529.}

²⁴Immigration and Protection Tribunal New Zealand v Allada, above n 20, at [23].

[45] I do not consider that the IPT was using the word “exceptional” in the way it is used in s 207. The Tribunal was making only a very specific observation as to how the appellant’s home appeared in relation to others nearby. It was not in that sentence reaching a conclusion on exceptional circumstances under s 207, and was not misapplying that section.

[46] Indeed, in my view the IPT applied Ye correctly. I do not consider that the issue of whether the approach in Jooste should have been applied by the Tribunal is a point of law of general public importance, given that the High Court decision in Jooste can no longer be regarded as good authority in the light of the Court of Appeal decision.

[47] As to the second point, the submission that the assessment of facts was so fundamentally untenable as to amount to an error of law, the submission fails at a basic level as no errors of fact have been demonstrated. Mr Donald referred in a general way to a number of factual conclusions which he said were unwarranted, but he was unable to point to any evidence showing that this was so. It has to be said that the IPT’s factual consideration was fair and balanced and in accordance with common sense. Thus, no error of law is seriously arguable as no factual finding was arguably incorrect.

[48] This was a matter that could have been put forward as ground for an appeal. Indeed both points were initially raised on appeal until it was discovered that the appeal was out of time, and that no extension could be granted. Given the requirements of s 249(1C)(a) this is a factor that I must have regard to and confirms that no leave should be granted.

(a) The two issues put forward by Mr Allada as the basis for review cannot succeed. No error has been shown in the legal approach of the IPT. No error of fact has been shown.

(d) There are no other matters put forward to support a review that might not have been points that could have been raised on appeal. There were no procedural failings, no issues of breaches of natural justice. There were no suggestions of bias or other wrongdoing by the IPT.

(e) Finally, it has to be said that on any overview the decision to deport Mr Allada was entirely understandable. While he was in New Zealand on a temporary visa he committed a serious crime, albeit one involving only moderate culpability within that type of offending. He has no particular ties to New Zealand. In essence he wants to be able to continue to enjoy the financial benefits of living in New Zealand rather than working in a country with a lower standard of living so that he can better support himself and his family out of New Zealand. That wish, however understandable, does not give rise to a valid cause

[50] The application for leave to bring the judicial review proceedings is dismissed.

High Court of New Zealand Decisions

Allada v Immigration and Protection Tribunal New Zealand [2014] NZHC 953 (9 May 2014)