Li v Chief Executive of Ministry of Business, Innovation and Employment [2016] NZHC 1610 (18 July 2016)

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UNDER	the Judicature Amendment Act 1972, Part 30 of the High Court Rules, the Declaratory Judgments Act 1908 and New Zealand Bill of Rights Act 1990
IN THE MATTER	of an application for judicial review, extraordinary remedies, interim relief, declaratory remedy and claim for breach of rights
BETWEEN	BAOGANG LI Applicant
AND	CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT _Respondent

Hearing:	10 June 2016
Counsel:	F C Deliu for Applicant M P Hardy for Respondent
_Judgment:	_{18 July 2016}

This judgment was delivered by me on Monday, 18 July 2016 at 11 am pursuant to r 11.5 of the High Court Rules.

LI v CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 1610 [18 July 2016]

[1] The applicant Baogang Li is a citizen of the People’s Republic of China and unlawfully in New Zealand. He arrived in New Zealand in July 2009 and has held various temporary visas from that point, the last of which expired on 20 December

29 February 2016 Mr Li was located by immigration officers working unlawfully on a building site. This was the second time immigration officers had located him working unlawfully. He was detained by the respondent (Immigration New Zealand) for the purposes of executing a deportation order.

[2] Mr Li has issued these proceedings, pleading that the continuation of deportation processes, and refusal to consider cancellation of the deportation order, and the “denial of a humanitarian interview of him and his partner” are not lawful. He seeks declarations and orders of prohibition and mandamus which will have the effect of preventing his deportation until he and his partner have a humanitarian interview.

[3] Mr Li was lawfully in New Zealand in September 2014, through various temporary visas issued since his arrival in New Zealand in 2009. On 4 September

2014, an immigration officer determined on delegation from the Minister that there was sufficient reason to deport him, because his circumstances no longer met the rules or criteria under which his visa had been granted. The notice was served on the basis that the circumstances of the grant of his earlier temporary visa no longer existed, namely his partnership with Qianxia Wang. This was his previous partner, and their relationship had ended. He was then, Immigration New Zealand claims, served with a deportation liability notice.

[4] Mr Li requested a review of that deportation liability. Section 157(2) of the Immigration Act 2009 (the Act) granted Mr Li the ability to “give good reason why deportation should not proceed,” within 14 days from the date of the notice. That review request was considered and declined on 24 October 2014.

[5] Following the expiry of the period in which he could appeal his deportation liability under s 157(4) of the Act, the Ministry alleges that an immigration officer served Mr Li with a deportation order under s 175 of the Act. Mr Li’s previous visa expired on 20 December 2014. From that point on he was unlawfully in New Zealand.

[6] However, Mr Li remained in New Zealand and did not contact Immigration New Zealand. Over a year later on 29 February 2016 he was located by immigration officers working on a building site. On that day Mr Li’s lawyer advised Immigration New Zealand that s 177(2)(3) and (5) of the Act applied, and demanded a humanitarian interview. This is an interview which I am told by Mr Hardy for the Chief Executive of the Ministry is now known as a “record of personal circumstances interview”. It has in prior cases been referred to as a “humanitarian interview”, and I will continue with that terminology. On 1 March 2016

basis that the process outlined in s 177 of the Act did not apply in Mr Li’s case.

[7] In essence Mr Li puts forward two grounds in support of his present application. First, he asserts that the immigration officer’s refusal to consider cancelling the deportation order under s 177 was unlawful, and that a humanitarian interview should have been conducted. The second ground is that neither the deportation liability notice nor the deportation order that led to the detention of Mr Li and the intention of Immigration New Zealand to deport him, were properly served in accordance with the provisions of the Act.

[8] I deal first with the service issues, because if Mr Li was not validly served with either notice, then Immigration New Zealand accepts that relief should be granted to Mr Li.

[9] Prior to 7 May 2015, s 386 of the Act set out the statutory requirements as to service. Section 386(3) provided:

(3) If under this Act any document is to be served on or supplied to any other person, or the person is to be notified of any decision, matter, or other thing, the document must be served on or supplied to the person, or the notification must be given in writing,—

(d) at the address supplied under section 57(2), if it relates to an application for a visa.

(1) In this Act, New Zealand address, in relation to a person who holds a visa and is in New Zealand, means the last known of the following addresses:

(a) the address for the time being nominated by the person under section 57(2), if that address is within New Zealand:

(2) The applicant must specify in the application a physical address to which any communication relating to the application, or to which advice of any visa that may be granted pursuant to the application, may be sent, or at which any notice may be served under this Act.

[12] Returning to s 386, it referred to the issue of proof of service specifically at s 386(5):

(5) If under this Act any notice or other document is to be given to, served on, or supplied to the holder of any temporary entry class visa, or any person who is, or is believed to be, unlawfully in New Zealand, by registered post addressed to that person’s New Zealand address, the notice or other document is treated as having been given to, served on, or received by the person 7 days after the date on which it was posted.

[13] In essence, Mr Deliu submits that neither the deportation liability notice nor the deportation order, both of which had to be served, were correctly served. Mr Deliu says that Mr Li was not served at his specified address, with the effect of invalidating the deportation.

[14] It is common ground between Mr Deliu and Mr Hardy that a failure to serve either notice will mean that Mr Li cannot be deported. This is because first, in relation to the deportation order, under s 175(1) it is provided that a deportation order may be served on a person “who has been served with a deportation liability notice” and that person has either no right of appeal, or has chosen not to exercise their right of appeal.¹If Mr Li had not been validly served with a deportation liability notice he could not be served with a deportation order. Second in relation to the deportation liability notice, under s 170(1) of the Act as at 4 September 2014 a deportation

liability notice “must be served on a person liable for deportation if it is intended to

[15] In my assessment s 386(5) applies and not s 386(6). Mr Li had a temporary visa.

[16] Mr Li in his affidavit of 12 May 2016 confirmed that he received the deportation liability notice in early September 2014 by email, but he did not recall ever receiving a physical copy. The notice was sent in early September 2014 and he had moved from the address originally given in his application for a visa of

85 Hudson Street, Hamilton in February 2014. He moved from there to an address at

29 North Ridge Drive, Rototuna. He denied ever receiving any notice of the deportation order.

[17] It is necessary, therefore, to consider whether both notices were validly served. I have received detailed submissions on the topic, where the facts and relevant sections have been closely dissected by counsel.

[18] Mr Deliu argued that Immigration New Zealand had to prove service, and to be shown to have strictly complied with the statutory process. This is not so in this judicial review proceeding. Mr Li is the challenger, seeking to invoke an extraordinary legal process to stop a lawful process. Mr Deliu has relied on criminal authorities relating to service, but in those cases the onus is on the Crown, and to a standard beyond reasonable doubt. It is not correct for an applicant to approach a judicial review application from a perspective of putting the decision-maker to proof.

[19] The starting point in judicial review proceedings is that the applicant has the onus of making out the factual bases for the order sought.²The standard is the balance of probabilities.³In the context of service of a document, Mr Li cannot leave it to Immigration New Zealand to prove service; the onus is on him to prove on the balance of probabilities that he was not served in terms of the Act.

[20] It is necessary first to review the facts disclosed in the affidavits. In addition to the affidavit of Mr Li, there is an affidavit from an immigration officer, Karen McGilvary.

[21] At the time the deportation liability notice was drafted in September 2014, the latest application from Mr Li that Immigration New Zealand had on its file was his application for a partnership-based temporary visa application, dated

12 December 2013, approximately nine months earlier. At the time this application was prepared Mr Li had been living with his then wife at Hudson Street. It showed under the section “B1” that his residential address was 85 Hudson Street, Hamilton,

²Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA) at 276; Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2006] UKPC 49, [2007] 2 NZLR 80 at [56]; Edwards v Onehunga High School Board [1974] 2 NZLR 238 (CA) at 243 - 244.

³New Zealand Fishing Industry Association Inc v Moyle HC Wellington CP649/87, 11 August

communication about this application” the “as below” box was ticked and there was

[22] When, on 4 September 2014 Ms McGilvary went to arrange service of the deportation liability notice, she used the address of 85 Hudson Street, Hamilton. She deposed that she sent the notice both by Courier Post and email. She used the

85 Hudson Street, Hamilton, address because it was the physical address Mr Li had provided in his application and it was the last known address of Mr Li at the time.

[23] Ms McGilvary did not immediately receive a receipt from Courier Post, but obtained one after service was challenged by Mr Li.

[24] The package with the tracking number she had used, was number SA575064547NZ. It had been noted in the records of Courier Post as “scanned delivered”. Courier Post records showed that someone had signed a receipt for the document. The courier driver had recorded that the person who signed for the document was a “B Li”. On the same day Ms McGilvary had sent to Mr Li a copy of the deportation liability notice by email.

[25] Mr Deliu argued that if Immigration New Zealand was relying on service by “registered post” it had not sent the deportation liability notice to the correct address. It is necessary to examine this submission more closely.

[26] Section 386(3)(b) requires this type of service to be “by registered post addressed to the person at the person’s New Zealand address”. Mr Deliu argued that it was not addressed to the person’s New Zealand address, because the place shown at B3 in the application form on the last extant document on the file of Immigration New Zealand was not the address at Hudson Street, but rather the solicitor’s PO Box number address. He pointed to the definition of “New Zealand address” at s 387. The relevant section, s 387(1)(a), provided:

(1) In this Act, New Zealand address, in relation to a person who holds a visa and is in New Zealand, means the last known of the following addresses:

(a) the address for the time being nominated by the person under section 57(2), if that address is within New Zealand:

[28] The effect of these provisions is that that the address provided as the address for communications in the visa application can be the address for service for subsequent notices and orders. Mr Deliu argued that on this basis, that to be valid, the address for service had to be the solicitor’s address as that was the address under the “B3” heading to which any communication relating to the application had to be sent. The Hudson Street address was not under this heading, but was just shown as a residential address. Mr Deliu argued that consequently there could be no service under the Act by sending the notice to the Hudson Street address.

[29] Despite the care with which Mr Deliu developed this argument, I do not accept it as correct. In interpreting the various sections concerning service I do not adopt an overly technical approach. I respectfully agree with the thrust of what Simon France J says in Rao v Minister of Immigration:⁴

In the end one must come back to the apparent purpose of the provisions. At the general level that aim seems to be to prescribe a method that can be relied upon to achieve notice being given; at the more specific level it seems to be to provide a methodology that allows a deeming provision to take effect, so that time will run. It is important to recall that the particular statutory method has no intrinsic value or significance. It is not an end in itself but is purely functional. Other methods could have been chosen, and indeed email suffices. It seems difficult to infer there is any magic or

intrinsic importance in the method. Rather, the key issue is when service is either achieved or deemed to be achieved.

[30] The words of s 386(5) show that the concern in respect of service is the sending of the document, rather than the observation of a technical process. Time runs from the date of posting, not from the date of receipt, which is assumed, unless the intended recipient proves otherwise.

[31] Under s 386(3)(b) documents and notices had to be served on “the person’s New Zealand address”. “New Zealand address” defined at s 387(1)(a) was the last known address “nominated by the person under s 57(2)”. Under s 57(2), the applicant must specify a physical address to which any communication could be sent for the purposes of the visa application, but that section also provided that “any notice may be served under this Act” to that physical address. The solicitor’s post office box was clearly shown as the address for communications. However, in terms of the relevant statutory provisions that was not a physical address and thus not an appropriate address for communication.

[32] I do not consider a post office box a physical address. I accept that a post office box is a physical thing. There is an actual box in contrast, say, to an electronic address. However, the intention of specifying a physical address appears to be that there is an address at which the intended recipient can physically receive the document either personally or through the person’s lawyer. Electronic service is not included, and there is no reference in s 386 to service by post office box. The High Court Rules at 5.44 show a distinction between an address for service and a post office box address, and rr 6.5 and 6.6 are entitled respectively “Service at address for service” and “Service by means of post office box, document exchange, fax or email”. It can be seen from these Rules that a distinction has been drawn generally between post office boxes and addresses for service. Against this background it seems to me that if service on a post office box was to be regarded as sufficient, s 386 would have said so.

[33] The only physical address that was provided by Mr Li was that of 85 Hudson Street, Hamilton, New Zealand. That was the address used for service by registered post. Section 57(2), requires the applicant to specify a physical address to which any

communication could be sent. I see no basis for limiting that address to the address shown in the communications section of the form, if the address provided is not a physical address. It seems to me if there is no address specified there as a physical address for communication, a New Zealand address shown as the applicant’s address elsewhere on the form can suffice.

[34] Thus, in my view sending the notice to the only physical address shown on the last received form provided by Mr Li was sufficient. However, it must still have been shown that there was service by registered post. Registered post is defined in s 4 as including “any postal or courier service where delivery to the address is recorded”.

[35] I do not see this as requiring proof of delivery to the address in the sense of an affidavit from a person who deposes that delivery at the address was affected. The two requirements seem to me to be the use of a courier service and a recording of delivery to the address.

[36] Ms McGilvary shows in her affidavit that she sent the document by registered post in the sense that she did so using a postal or courier service. She received information from the courier company recording delivery to the address. Specifically she received an email from the courier company stating that a package addressed to Mr Li at 85 Hudson Street and bearing the number SA575064547NZ had been “scanned, delivered on 9 September 2014 at 7:52 signed by B Li”. In my assessment this notification from the courier company is a record of delivery to the address. The number she had used to send the document corresponded to the number on the package that was delivered.

[37] The fact is, of course, that Mr Li did get the deportation liability notice and indeed applied to review it. He acknowledges receiving it by email. There is no formal provision for service by email, but this factor is relevant in a way I will refer to later.

[38] Thus, my conclusion on service is that there was service by registered post of the deportation liability notice on Mr Li. Mr Li has not shown, under s 386(6), that the notice was not given, served or received by him.

[39] If s 386(5) did not apply and s 386(6) applied, there is a presumption of delivery after a document has been posted, unless the person can prove that otherwise than through fault on their part, the notice was not given, served or received. If Mr Li had not received it, it was through his fault in not providing a physical address in the communications section, and not keeping the residential address he had provided up-to-date when he changed that address. Thus Mr Li has failed to prove a lack of fault.

[40] Even if I did not consider there had been service in terms of the deportation liability notice, and had concluded that Mr Li had not been properly served, I would not have been inclined to have granted him relief. This is because in relation to the deportation liability notice his complaint is purely technical. He actually became aware of the notice when it was issued, and took the appropriate steps to challenge it. His position in relation to service lacks any substantive merit. He has not been prejudiced in any way. I do not see therefore why a failing to comply with some technical requirements of the Act should become an unearned windfall for a person in Mr Li’s position.

[41] Mr Deliu also submitted that if there was no physical address provided, then it might well be that there had to be service under s 386(3)(a) or (d). For the reasons I have already set out, service by registered post was sufficient and personal service was not required. Service on Mr Li’s lawyer was not possible given that only a post office box had been provided. Section 386(4) provides that if a lawyer represents that he or she is authorised to accept service, it is only sufficient service if that lawyer signs a memorandum stating that service of the notice is accepted on behalf of the person. Obviously this cannot happen when only a post office box address is provided. Section 386(3)(d) also cannot apply because the notice in question did not relate to “an application for a visa”.

[42] Mr Li deposed that he did not receive the deportation order, and challenged the fact of service of the deportation order. By the time the deportation order was served, Immigration New Zealand had received a new application from Mr Li. The form had changed slightly by this time. He did not, at B3, the place for putting an address for communications about the application, show his lawyer’s address or put a stamp. Rather he ticked the box indicating that it was the address provided in the B2 part of the form directly above that was his address for communication. This was an address at 29 North Ridge Drive, Rototuna, Hamilton. He also provided a post office box number.

[43] Unlike the position in relation to the deportation liability notice, there was no alternative address that Mr Deliu argued was the appropriate address for service. He accepted that 29 North Ridge Drive, Rototuna was the correct address. However, he did not accept that there had been service under the Act to that address, and indeed argued strongly to the contrary. He argued that there was no record of service as required.

[44] The evidence of Ms McGilvary shows that she prepared a package for Courier Post under the number SA657793992NZ. She put the documents into a Courier Post envelope and filled in Mr Li’s recipient details showing the address at

29 North Ridge Drive, Rototuna, Hamilton. She made a note about her actions in her case management system. She placed the sealed courier envelope in the collection box for Courier Post. Then when service was queried, she received confirmation from a general investigator at Courier Post that the package with that same tracking number had been scanned delivered. Courier Post provided her with a copy of the information it had on file which included an image indicating receipt of that package on 13 November 2014 at 7:22:05 am. It showed the name of the recipient as Baogang Li and a scanned signature. She also emailed the notice to Mr Li on the same day (it is to be noted that email address was the same used to send the deportation liability notice that Mr Li acknowledged he received).

[45] Thus there is a record before the Court showing service of the deportation notice at that address. While the actual receipt from Courier Post does not state the address on it, the fact that the number of the package which Ms McGilvary deposes had the address on it is the same as the number on the package delivered, it can be inferred that it is the same package delivered to that address. This is further confirmed by the fact that it is stated on the record that the name of the recipient was Baogang Li. I put to one side the scribble shown on the scan of the receipt by some person, as there is no evidence showing that was put there by Mr Li or that it has any resemblance to his signature.

[46] I am satisfied therefore that there is the required record of delivery to the address at 29 North Ridge Drive, Rototuna, Hamilton.

[47] Mr Li has failed by a considerable margin to prove under s 386(6) that through no fault of his own the document had not been given, served or received by him. Although he deposes he did not receive it, he gives no detail as to why he would not have in fact received a document delivered to the address which he had provided, and at which he was living at the time. He has offered no explanation also why he did not receive the document when it was sent to him by email.

[48] In the circumstances, knowing he had failed in his application to review the deportation liability notice some weeks prior to the service of the order, his disappearance from the view of Immigration New Zealand for the next year would indicate a wish to avoid the inevitable. He knew through the failure of his review of the deportation liability notice that the next step was deportation. I infer that his failure to contact Immigration New Zealand through 2015 was not because he had not been served, but because he did not wish to be deported.

[49] If in fact I was wrong and there had not been adequate service, I would still not grant relief. Error by the decisionmaker does not bind a Court to grant relief in judicial review.⁵For the reasons that I have set out, there is every reason to believe

_{that the courier package was delivered to Mr Li’s address. There
is every reason to}

⁵Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408 at [48], and Tauber v Commissioner of

believe that he would have received the email copy that was sent to him. He avoided all contact with Immigration New Zealand from around that time and only came to the attention of Immigration New Zealand again when he was found working on a building site. In his attempt to now argue he should be allowed to stay, he attempts to raise matters that arose after he had failed in his application to review the deportation liability notice despite knowing that deportation was inevitable. For the reasons set out below, I consider the fact that while unlawfully in New Zealand, he has formed a new relationship is not a sufficiently relevant change. The inevitability of the outcome, Mr Li’s contribution to any error, and the delay in raising the question of service all mean that Mr Li’s position is so lacking in substantive merit that I would decline relief.

Did the immigration officer act lawfully in refusing to consider cancellation of the deportation?

[50] Mr Deliu submitted that there was a legal obligation created by s 177 on Immigration New Zealand to give a humanitarian interview to Mr Li before he was deported. He argued that arose under s 177, and also that the right existed independently of s 177. Mr Hardy for Immigration New Zealand submitted that s 177 did not apply to Mr Li and in any event he had no right to a humanitarian interview. These are diametrically opposed submissions and it is necessary to consider them in the context of the Act.

[51] The purpose of the Act is to manage immigration in a way that balances the national interest as determined by the Crown and the rights of individuals.⁶Part 6 of the Act provides for deportation, and I refer to it later.

[52] A number of other provisions in the Act provide specifically for deportation liability of a person lawfully in New Zealand. Section 157, a section to which I will return, is one of those sections. In contrast, s 154 is a general provision:

(2) A person unlawfully in New Zealand may, not later than 42 days after first becoming unlawfully in New Zealand, appeal on humanitarian grounds against his or her liability for deportation.

[53] The section provides for a humanitarian interview 42 days after a person first becomes unlawfully in New Zealand, and in other circumstances in s 154(4).

(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.

[55] The section then goes on to set out the provisions relating to a humanitarian interview. It does not set out a detailed procedure. At s 177(5) it is provided:

(5) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—

[56] This position can be contrasted with the situation provided for in s 157, which deals with the deportation liability of a person with a temporary class visa. There is provision for review,⁷or an appeal.⁸

[57] The first question to be considered is one of statutory interpretation. Mr Deliu argues that s 177(1) is to be read as applying to a person in Mr Li’s situation, because Mr Li is a person to whom s 154 applies, despite his liability for deportation arising under s 157. He is presently unlawfully in New Zealand and liable for deportation, the words used in s 154(1). Therefore he has a right to a humanitarian interview. Effectively then, his submission is that in addition to the

_{review or appeal rights that Mr Li had when he received the deportation
notice under}

s 157, he now also has a right to a humanitarian interview under s 154 arising because he chose to continue to stay in New Zealand unlawfully.

[58] Mr Hardy submits that although the words of s 154 might allow for such an interpretation, that is not a natural meaning of s 177(1), and s 177 applies only to a deportation order that is issued on the basis that someone is liable for deportation because they are unlawfully in New Zealand. Thus, to take Mr Li’s example, it would only apply where s 154 was the section relied on for the deportation order. As Mr Li was not liable for deportation under s 154, but under s 157, the review and appeal provisions relating to that section applied.

[59] It is necessary to consider the competing submissions in the immediate context of the Act. There are distinct pathways to deportation set out in the Act. The s 157 pathway involves a process where there is a right to review and appeal. It would seem unlikely that Parliament intended a person who had already received a deportation notice under s 157 and had or had not exercised the rights available to review or appeal, to then on receipt of a deportation order (assuming any review or appeal was unsuccessful) be able to have an immediate further review of his or her position by a humanitarian review under s 177. That would be a cumbersome procedure which duplicates Mr Li’s rights.

[60] It would also in my view be contrary to the stated purpose of the Act. Section 153 of the Act provides:

(1) The purpose of this Part is to support the integrity of New Zealand's immigration system and the security of New Zealand by providing for the deportation of certain persons from New Zealand.

(d) specifies the only situations in which an appeal right exists in respect of that liability; and

(e) provides for the person’s deportation to be executed without the need for further inquiries if no appeal is made or an appeal is unsuccessful.

[61] This section at (d) indicates that the Part specifies the “only” available provisions for appeal, and at (e) that the outcome of an appeal should be final, with deportation to follow if unsuccessful. These purposes seem inconsistent with a person who is to be deported under s 157, with concomitant rights to a review or appeal procedure, then having a second opportunity under s 177 to traverse issues that are likely to be the same or similar, or arising because of further unlawful residence. The reference in s 177(2) to s 154 should, in my view, be read as setting a limit on the persons to whom s 177 applies. The discretion in s 177(1) is to be exercised only in respect of persons to whom s 154 exclusively applies and not persons who are liable for deportation under other sections, for instance s 157. I cannot see why Parliament would have bothered to add the words “served on a person to whom s 154 applies” if they did not wish to limit the persons to whom the section applied. The words create a distinction between those liable to deportation under s 154, and those liable to deportation under other sections such as s 157.

[62] Mr Deliu argued that there is, in any event, a separate right to a humanitarian interview created at common law for a person liable to deportation. He relied on the Supreme Court decision Ye v Ministry of Immigration,⁹following Tavita v Minister

of Immigration.¹⁰He relied in particular on the statement of the Court of Appeal in

An humanitarian interview is not a statutory process. Consequent upon this Court’s judgment in Tavita and Minister of Immigration [1994] 2 NZLR 257 it was introduced to ensure that New Zealand’s international obligations were taken into account.

[63] I do not agree that these cases identify a right that exists outside of the Act to a humanitarian interview. While a humanitarian interview is not a statutory process

_{in a sense that its procedure is set out by a statute, the power that
creates the right to}

it is statutory. The power derives from s 177. Thus, in Ye v Minister of Immigration

Where there may have been no consideration of humanitarian criteria at an earlier stage or where the circumstances earlier considered (by the Removal Review Authority or by the Minister of Immigration) have changed, it would be an unaccountable gap in the legislation to deny any consideration of those humanitarian circumstances.

[64] She went on to refer to the section that is now s 177. Tipping J also referred to the consideration of humanitarian issues in the context of the power in the predecessor to s 177.¹³

[65] Nor do I accept that it is necessary to construe s 177 as applying to the deportation of a person under s 154, because of New Zealand’s international obligations. When someone is to be deported under s 157, New Zealand’s international obligations and indeed the specific humanitarian considerations are recognised within the provision of the statutory review and appeal process.

[66] Mr Deliu submitted that this is unfair, because in this case Mr Li has lived in New Zealand for a further 16 months since he had the right of review or appeal, and has in fact formed a new relationship which, if s 177 does not apply, cannot now be taken into account. That may be so but this is only because he has stayed on in New Zealand unlawfully and chosen this path. By his own admission he was aware that his review against the deportation notice had been unsuccessful. He decided nevertheless to stay on in New Zealand. He cannot now call in aid his own actions while unlawfully in New Zealand, to claim a right to a second review. In doing so he would be taking advantage of his own wrong. It cannot have been the intention of Parliament that a person could generate further rights of objection by staying on unlawfully in New Zealand and taking actions as if a permanent resident and here to stay.

[67] I am satisfied therefore that the scheme of the Act means that the process applying to deportation under s 157 is distinct and separate from the process

_{applying to deportation under s 154. The Act does not envisage a
situation where a}

person may accumulate further rights of review by staying on in New Zealand unlawfully after exhausting or not utilising other review or appeal rights. It would be quite wrong if someone could defy a deportation order and thereby generate further rights of objection by remaining in New Zealand after, to their knowledge, their presence in New Zealand was unlawful. That would damage the integrity of New Zealand’s immigration system.

[68] In the course of the hearing and in the submissions that have followed I have received full memoranda on the question of interim relief should the plaintiff fail. Mr Deliu on behalf of Mr Li seeks such interim relief pending the determination of an appeal from this decision. He relies on the decision of Huang v Minister of Immigration and Fang v Ministry of Business, Innovation and Employment.¹⁴He makes the point that Mr Li is currently enjoying relief following a decision by Heath J,¹⁵which granted him interim relief pending the determination of this case.

[69] In that interim decision Heath J had noted that the issue was whether Mr Li was served with a deportation order as required by statute. He observed there was no evidence that a deportation order was served to an address that Mr Li had notified in a visa application. He stated:¹⁶

While there is evidence of a courier containing a deportation order having been sent by an immigration officer, there is no record of delivery in evidence before me. Indeed, there is evidence put forward, to which counsel for Mr Li has referred, that the courier company cannot provide any tracking information to demonstrate whether the courier was delivered to the relevant address.

[70] He considered there was a real contest as to whether service was properly effected and was prepared to declare in the interim that the Chief Executive ought

¹⁴Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 and Fang v Ministry of

¹⁵_{Li v Chief Executive of the Ministry of Business,
Innovation and Employment [2016] NZHC 660.}

[71] Mr Hardy submitted that I was bound by the recent Court of Appeal decision of Chief Executive of the Ministry of Business, Innovation and Employment v Nair.¹⁷

He contended that to grant interim orders the Court must be satisfied that interim orders are necessary to preserve the position of the applicant and that there is a respectable chance of success in the substantive judicial review, or in this case in the appeal. He submitted that neither were established.

[72] In Nair the applicant had been unlawfully in New Zealand for some years. He had entered into a de facto relationship. He had a child with his de facto partner that was aged nine months and had health difficulties. While unlawfully in New Zealand he had been served with a deportation order and the decision was made not to cancel Mr Nair’s deportation order under s 177 of the 2009 Act. The Court of Appeal set aside an interim order that had been made preventing Mr Nair’s deportation pending determination of the judicial review proceedings. It was held following Parmanadan v Minister of Immigration that the usual statutory effect of deportation will not generally be sufficiently adverse to meet the threshold for

interim relief.¹⁸There may be particular adverse consequences, but these would

have to be established by evidence assessed in the context of both the legislative scheme and the legislative policy of the Act.¹⁹The Court in Nair noted that when someone is deported from New Zealand they are subject to a prohibition under s 179 of the Act during which they cannot enter New Zealand.

[73] The effect of declining interim orders was that Mr Nair would have had to leave New Zealand and conduct his judicial review application from India. If successful he could have applied for residency from India and the Minister could have exercised the discretion to remove the prohibition on entry. This was contrasted with the position if interim relief was granted, which was that Mr Nair would remain in New Zealand unlawfully. It was held that the threshold for interim

¹⁷Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA

¹⁸Chief Executive of the Ministry of Business, Innovation and Employment v Nair, above n 17, at

_{[15] citing Parmanadan v Minister of Immigration
[2010] NZCA 136, [2010] NZAR 424.}

[74] Although there is some difference in the facts, in my view the same considerations that arose in Nair arose in this case. Mr Li has been unlawfully in New Zealand and aware that he was liable for deportation since December 2014. He made no efforts to regularise his immigration status until he was apprehended by immigration officers.

[75] If he has to leave New Zealand he will be able to pursue the appeal from overseas. If successful on the appeal he would be in the same position as Mr Nair would have been, and he could apply for a visa from overseas and the Minister might exercise his discretion to remove his prohibition on entry. I accept that Mr Li if he is now deported, is deprived of a humanitarian interview. But he will be able to raise the issues he would have raised then, in a renewed application. If he had been successful on the service point there would be no prohibition on entry because the prohibition period in s 179(1) applies only where someone has been deported from New Zealand within the meaning of s 10(3) of the Act. As I have already observed, a person can only have been deported if the deportation order has been served. If Mr Li had been successful the deportation order will not have been served.

[76] In contrast, if I grant interim orders as sought, Mr Li’s unlawful stay in New Zealand will continue until the appeal is heard and determined. The position will become more complex. It can be observed that he and his partner will suffer more if they stay longer and then Mr Li has to leave.

[77] I do not consider that interim orders are necessary to preserve Mr Li’s position. His goal is residence in New Zealand. His application will not be rendered nugatory, in that through a further application he could pursue his return to New Zealand.

[78] As to the second limb of the test, whether there is a respectable chance of success, I note that there is a difference now between the position before me and the position before Heath J when he granted interim relief. I now have had a much fuller account of the details of service than he did, and I have had evidence of delivery as I have recorded. I am satisfied that the service requirements were fulfilled on the basis of a significant body of evidence. I reject the s 177 argument as legally incorrect as

Mr Li has had a full opportunity to challenge the deportation liability notice. I have drawn the inference that Mr Li was deliberately avoiding contact with Immigration New Zealand. Given the lack of any intrinsic merit in Mr Li’s position, and the factual circumstances I have already outlined, it is my assessment that an appeal would not have a realistic chance of success.

[79] Thus Mr Li’s application for interim relief fails both in not showing that interim orders are necessary to preserve his position, or that his appeal has a reasonable chance of success. Accordingly I decline interim relief.

[80] The applicant’s claim against the respondent is dismissed. [81] I decline to grant interim relief.

[82] If the defendant seeks costs it should file a submission within 21 days, and the plaintiff to reply within a further 14 days.

High Court of New Zealand Decisions

Li v Chief Executive of Ministry of Business, Innovation and Employment [2016] NZHC 1610 (18 July 2016)