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High Court of New Zealand Decisions |
Last Updated: 29 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-1394 [2016] NZHC 1778
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BETWEEN
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KULBIR SINGH MINHAS AND
NAVJOT KAUR First Applicants
GURCHARAN SINGH Second Applicant
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AND
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AN IMMIGRATION OFFICER First Respondent
THE MINISTER OF IMMIGRATION Second Respondent
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Hearing:
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25 July 2016
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Appearances:
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R J Hooker for Applicants
R Savage and O Klaassen for Respondents
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Judgment:
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2 August 2016
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JUDGMENT OF LANG J
[on application for interim relief]
This judgment was delivered by me on 2 August 2016 at 2.30 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
SINGH v AN IMMIGRATION OFFICER [2016] NZHC 1778 [2 August 2016]
[1] The first applicants, Kulbir Singh Minhas and Navjot Kaur,
are Indian citizens who have been residing in New Zealand
unlawfully since
April 2004. They have three children aged 16, 12. The oldest and youngest of
their children are also Indian citizens,
and have been residing unlawfully
in New Zealand with their parents. The middle child, Amanpreet, was born
in New Zealand
and is a New Zealand citizen. Her interests in this proceeding
are being protected by her uncle, the second applicant, Gurcharan
Singh.
[2] In 2013 the immigration authorities commenced the process
prescribed by the Immigration Act 2009 (the Act) to deport those
members of the
family who are not New Zealand citizens. Mr Singh and Ms Kaur have challenged
decisions subsequently made by immigration
officials but their ability to
obtain remedies within the New Zealand legal system is now at an end. For
that reason the
immigration authorities are now about to deport all of the
family, other than Amanpreet, to India.
[3] In or about May 2016, shortly after they had exhausted their legal remedies in this country, Mr Singh and Ms Kaur filed a communication with the United Nations Human Rights Committee (UNHRC). The communication asked the UNHRC to investigate and rule upon their claim that the New Zealand Government has violated or breached rights afforded to them under the International Covenant on Civil and
Political Rights (ICCPR).1
[4] Mr Singh and Ms Kaur issued this proceeding on 16 June 2016 seeking
orders that they not be deported from New Zealand until
such time as the UNHRC
has issued a determination in respect of their communication. On 12 July 2016,
Toogood J directed that an
application by Mr Singh and Ms Kaur for interim
relief be heard on 25 July 2016. He also directed that the immigration
authorities
were not to deport Mr Singh and Ms Kaur until further order of the
Court.
[5] This judgment determines the application for interim
relief.
1 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16
December 1966, entered into force 23 March 1976.)
Background
[6] Mr Singh and Ms Kaur arrived in New Zealand on 2 April 2004 on a
limited purpose visa that permitted them to remain in New
Zealand for two weeks
for the purpose of attending a family reunion. At that time their oldest son
was three years of age. When
they applied for a visa they did not disclose that
Ms Kaur was eight months pregnant. Their daughter Amanpreet was born two weeks
after Mr Singh and Ms Kaur arrived in New Zealand. Amanpreet is a New Zealand
citizen pursuant to the law at the time of her birth,
unlike her younger
brother.
[7] On the day the visa expired Mr Singh and Ms Kaur applied for a
further limited purpose visa, but this was declined and the
immigration
authorities advised them to leave the country immediately. On 16 June 2004, Mr
Singh sought refugee status but this
was also declined. An appeal to the Refugee
Status Appeals Authority was dismissed on 22 July 2005. Mr Singh asked the
Minister
of Immigration to intervene on 13 April 2007, but the Minister declined
this request.
[8] Nothing then appears to have occurred until 8 March 2013, when Mr Singh and Ms Kaur requested work visas under s 61 of the Act. These were refused on 12
March 2013. A further request that the Minister become involved was refused
on 18
July 2013, and Mr Singh and Ms Kaur were advised that their case had been
referred to the Compliance Operations Branch of Immigration
New Zealand for
enforcement action.
[9] All members of the family other than Amanpreet were served
with deportation orders under s 175 of the Act between
10 and 19 September 2013.
They were subsequently interviewed by an immigration officer, who considered
submissions made by and on
behalf of the family that they not be deported from
New Zealand on humanitarian grounds. On 14 October 2013, the immigration
officer made a decision under s 177 of the Act not to cancel the deportation
orders (the first s 177 decision).
[10] Mr Singh and Ms Kaur then filed an application to this Court seeking judicial review of the first s 177 decision. On 18 December 2013, the immigration officer decided to reconsider the decisions in relation to Mr Singh and Ms Kaur. On 28
January 2014, the immigration officer made a second and final decision not to
cancel the deportation orders in respect of all four
members of the family (the
final s 177 decision).
[11] Mr Singh and Ms Kaur then amended their judicial review proceeding to incorporate a challenge to the final s 177 decision. The application for judicial review was dismissed by this Court on 14 August 2014,2 and their appeal to the
Court of Appeal was dismissed on 8 December 2015.3
The Supreme Court
dismissed their application for leave to appeal against the decision of the
Court of
Appeal on 19 April 2016.4
[12] In early May 2016, the immigration authorities contacted counsel who
had acted for Mr Singh and Ms Kaur in the judicial review
litigation and were
told that the family had decided to leave New Zealand voluntarily. Mr Singh and
Ms Kaur evidently had a change
of heart, however, and lodged the communication
with the UNHRC on or about 20 May 2016. The communication alleges that
deportation
of the family constitutes a violation of the family’s rights
under the International Covenant on Civil and Political Rights
(ICCPR).
[13] The present proceeding represents the latest attempts by the
applicants to invoke the assistance of the New Zealand courts
to remain in this
country despite their present unlawful status.
The communication to the UNHRC
[14] The UNHRC was established by the First Optional Protocol to the
ICCPR.5
The ICCPR was adopted in 1966, and its articles prescribe a wide range of civil and political rights to be provided to citizens of countries that are signatories to the ICCPR. These include the right to life, the right to a fair trial, freedom of
expression, equality before the law and prohibition of discrimination.
The First
4 Singh v Ministry of Business, Innovation and Employment [2016] NZSC 39.
Optional Protocol is a separate treaty that established a
complaint mechanism for alleged violations of the rights prescribed by the
articles of the ICCPR. Complaints are made by way of communications forwarded
to the Secretariat of the Committee for registration.
New Zealand is a
signatory to both the ICCPR and the First Optional Protocol.
[15] In his written submissions for Mr Singh and Ms Kaur, Mr Hooker
advised the Court that after the communication was lodged
with the UNHRC it was
examined by a Working Committee (or a special rapporteur) established to
determine whether communications met
the relevant criteria for registration.
Mr Hooker said that, in order to be accepted for registration, the complainant
must have
exhausted all domestic remedies, and the communication must be
“sufficiently substantiated”. If it does not meet these
criteria,
the communication will be rejected. Mr Hooker advised me that the communication
has now been accepted for registration
and served on the New Zealand Government.
Mr Hooker said that this meant the UNHRC will “in due course”
determine whether
there has been a breach of Mr Singh and Ms Kaur’s
rights.
[16] A copy of the notice the New Zealand Government has
received from UNHRC is exhibited to an affidavit filed in opposition
to the
present application. The notice contains the following information:
The Secretary General of the United Nations (High Commissioner for
Human Rights) presents his compliments to the Permanent
Representative of New
Zealand to the United Nations Office at Geneva, and has the honour to transmit
herewith the text of a
communication dated 20 May 2016, submitted to
the Human Rights Committee for consideration under the Optional Protocol to
the International Covenant on Civil and Political Rights, on behalf of Mr.
Kublir Minhas Singh, Ms. Navjot Kaur and their
three minor children. The
communication has been registered before the Human Rights Committee as case No.
2769/2016.
After reviewing the case, the Special Rapporteur on New Communications and
Interim Measures decided not to issue a request for interim
measures under rule
92 of the Committee’s rules of procedure.
Under rule 97, paragraph 2, of the Committee’s rules of procedure, the Human Rights Committee requests the State party to submit to the Committee information and observations in respect of both the admissibility and merits of the authors’ allegations.
The information requested from the State party under rule 97, paragraph 2, of
the Committee’s rules of procedure should reach
the Human Rights Committee
in care of the Office of the United Nations High Commissioner for Human Rights,
at Geneva, within six
months of the date of this note, that is no later than 28
November 2016, if possible in electronic form (PDF and Word).
If the State party wishes to challenge the admissibility of the present
communication separate from the submission of its observations
on the
merits, it is requested, pursuant to rule 97, paragraph 3, of the
Committee’s rules of procedure, to do so while setting
out the grounds for
such admissibility within two months of the date of the present note, that is no
later than 26 July 2016.
This request for information and observations does not imply that any
decision has been reached in respect of the admissibility or
the merits of the
present communication.
26 May 2016
[17] The notice makes it clear that the communication has been accepted for registration and allocated a reference number. The first step in the prescribed UNHRC complaint procedures is that the State in respect of which the communication has been made is asked to respond to the admissibility and merits of the communication.6 As the notice set out above demonstrates, the State is asked to respond to the issue of admissibility within two months after it receives notice of the
communication. It is asked to respond to the merits of the communication
within six months of that date. The only factor in the
notice to suggest that
the merits of the applicants’ communication have been considered is the
reference in the notice to the
fact that the Special Rapporteur has decided not
to request this country to take interim measures. That is not surprising,
because
the evidence filed in relation to the workings of the UNHRC suggests
that interim measures are only requested when the author of
the communication is
at risk of being tortured or executed if interim measures are not
taken.
[18] The New Zealand Government did not receive the notice from the UNHRC Secretariat until 3 July 2016. Ms Savage for the respondents advised me during the hearing that the Government therefore considers it has until 3 September 2016 to make submissions in relation to admissibility, and until 3 January 2017 to make
submissions as to the merits.
[19] The obvious inference
to be drawn from the notice is that it is likely to be some considerable time
before the UNHRC makes
a final determination.
The applicants’claims in this proceeding
[20] In an amended statement of claim filed on 18 July 2016 the
applicants plead two causes of action. In the first, they seek
an order that
the immigration authorities shall not take any steps to deport them and their
oldest and youngest children until such
time as the UNHRC has determined the
complaints contained in their communication. In the second, they seek judicial
review of decisions
allegedly made by the immigration authorities on 1 and 17
June 2016. These were decisions to continue with the deportation process
in
respect of all members of the family other than Amanpreet, notwithstanding the
fact that the communication made to the
UNHRC has not yet been
determined.
The first cause of action
[21] Under the first cause of action the applicants seek an injunction
issued under the inherent jurisdiction of the Court.
They seek an
order in the form of a declaration that the immigration authorities shall
not take any steps to deport those
members of the family who are not New Zealand
citizens until their communication has been determined by the UNHRC.
[22] In order to obtain interim relief, in respect of the first cause of
action, the applicants must show there is a serious question
to be tried, and
that the balance of convenience favours the granting of the injunction sought.
The Court must then stand back
and determine where the justice of the case
lies.7
Serious issue to be tried
[23] It is necessary to distinguish between the question of whether there is a serious issue to be tried in the present proceeding and the separate question of whether there is a serious issue to be tried in the communication currently before the
UNHRC. This Court cannot venture an opinion in relation to the latter,
particularly
7 American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 (HL); Klissers Farmhouse Bakeries Ltd v
Harvest Bakeries Ltd (No 2) [1985] 2 NZLR 143 (HC).
given the fact that the stance to be taken by the New Zealand Government in
relation to the admissibility and the merits of the communication
is not yet
known. It can, however, make a preliminary assessment of whether the Court is
likely to grant a permanent injunction
if this proceeding goes to
trial.
[24] Mr Singh and Ms Kaur do not advance the first cause of action based on a challenge to decisions made by the immigration authorities. Rather, they advance it on a broader basis because they contend that a wider issue arises. The same issue arose in a determination by the UNHRC as to the admissibility of a communication in Winiata v Australia.8 In that case the complainants were a common law husband and wife who had resided unlawfully in Australia for many years. During that period the wife gave birth to their son. He was 13 years of age and an Australian citizen by the time the immigration authorities sought to deport the complainants. The
complainants accepted that they were not citizens or residents of Australia.
They argued, however, that the act of the Australian
Government in deporting
them would constitute an arbitrary interference with their family life and would
therefore be a violation
of rights guaranteed to all persons under the
ICCPR.
[25] The UNHRC upheld the complainants’ argument as to
admissibility and said:
6.3 As to the State party’s contention that the claims are in
essence claims to residence by unlawfully present
aliens and
accordingly incompatible with the Covenant, the Committee notes that the authors
do not claim merely that they have
a right of residence in Australia, but that
by forcing them to leave the State party would be arbitrarily interfering with
their
family life. While aliens may not, as such, have the right to reside in
the territory of a State party, States parties are obliged
to respect and ensure
all their rights under the Covenant. The claim that the State party’s
actions would interfere arbitrarily
with the authors’ family life relates
to an alleged violation of a right which is guaranteed under the Covenant to all
persons.
The authors have substantiated this claim sufficiently for the purposes
of admissibility and it should be examined on the merits.
[26] Mr Hooker advised me during the hearing that Mr Singh and Ms Kaur wish to advance the same argument before the UNHRC, and that it also forms the basis of
their application for an injunction under the first cause of
action.
8 Winiata v Australia UNHRC CCPR/C/72/D/930/2000, 16 August 2001.
[27] At the heart of this argument is the effect that deportation will
inevitably have on all three children. First, the family
will need to decide
whether Amanpreet should accompany them back to India if they are deported. If
she does not, she will retain
the many benefits of living in New Zealand but
will lose the opportunity to live with her family. That would obviously be very
difficult
for her, and is likely to have long lasting effects given that she is
now just 13 years of age. If she accompanies her family to
India, she will
lose all of the benefits available to her as a citizen of this country and will
be required to live in a country
with which she has had no affinity and where
she is not a citizen. The fact that Amanpreet is a New Zealand citizen may also
mean
she is not entitled to many of the benefits available to Indian citizens.
In common with her siblings, Amanpreet would also lose
contact with her New
Zealand friends and family, and a move to India will have a major impact on her
in terms of education, career
and lifestyle.
[28] The other two children are likely to find it equally difficult to
move back to India because they have effectively lived
in New Zealand for their
entire lives. They will need to adjust to a life in a new country, about which
they probably know little,
and will undoubtedly miss out on significant
educational and career opportunities.
[29] Mr Hooker has now obtained a report from Dr Rachel Irwin, an
experienced clinical psychologist who specialises in child and
family issues.
Dr Irwin discusses at length the issues the three children are likely to face if
they are required to move to India
at this stage of their lives. She
concludes:
78 I am aware this is an extremely difficult situation. I am also aware that there are many uncertainties about how the children will react to the different options regarding where they live. Despite these uncertainties, however, my comments and clinical opinions are based on my expert knowledge of child and adolescent development, family relationships, psychological functioning and mental health pathology. Whilst I cannot make definitive predictions about how the children will react to being deported and/or separated, my strong clinical opinion is that there will be multiple, significant and long term consequences on all three children if they are separated from each other or if they are removed from New Zealand and everything that means for them at this vulnerable time in their lives. In particular, I think all aspects of their academic, social and psychological functioning and their sense of self and their cultural identity will be adversely affected both short and long term by such changes. It is also my strong clinical opinion that there will be multiple, significant and long term consequences on Amanpreet’s academic, social and psychological function
and on her sense of self and her cultural identify if she is separated from
her parents and left alone here in New Zealand.
[30] Mr Hooker submits that the report demonstrates that this family will
suffer serious and probably irreparable damage if they
are required to return to
India before the UNHRC has had an opportunity to determine the communication
lodged with it by Mr Singh
and Ms Kaur. As a result, he contends that the
applicants will have little difficulty establishing that their communication is
admissible,
and that the UNHRC is likely to determine it on its
merits.
[31] Mr Hooker also argues that the balance of convenience is firmly in
favour of the applicants. There is no prejudice to the
Government if the family
is permitted to stay in New Zealand until such time as the UNHRC has determined
the communication, but the
family will inevitably suffer significant and lasting
detriment if they are forced to relocate to India now. He is also concerned
that New Zealand may not accept the views ultimately expressed by the UNHRC, and
believes it will be very difficult for them to mount
any further challenge from
India in the event that the New Zealand Government does not agree to remedy any
breaches the UNHRC may
find have been established.
Decision
[32] Several factors are likely to be relevant to the issue of whether
this Court is likely to issue an injunction to stop
the immigration
authorities from deporting members of the family, other than Amanpreet,
prior to the point at which
the UNHRC has determined the
communication.
[33] The starting point is that all members of the family other than Amanpreet are not citizens of this country, and they are currently unlawfully in New Zealand. They were advised in 2004 that they were required to leave and they have not yet done so. They have now exhausted their legal remedies in this country, and s 154 of the Act provides that they are liable for deportation. There is no provision in New Zealand’s domestic law for the deportation process to be halted whilst the person to be deported endeavours to have his or her grievances aired before the UNHRC.
[34] Furthermore, Mr Singh and Ms Kaur do not seek any substantive relief
from this Court other than the injunction. Normally
an injunction is issued by
the court or tribunal responsible for determining a substantive claim in order
to protect the applicant’s
position pending determination of the claim.
In the present case there is no substantive claim before a domestic court. The
only
claim presently in existence is that which is before the UNHRC.
[35] New Zealand became a signatory to the Covenant in 1968 and acceded
to the Optional Protocol in 1989. Parliament has had
ample opportunity since
that time to amend New Zealand’s domestic law to provide for
communications to the UNHRC to be treated
as if they were a further
form of appeal from decisions of New Zealand’s domestic courts. Had
that occurred,
Parliament may also have provided for deportation orders to be
stayed until such time as communications to the UNHRC were determined.
Parliament has not taken either of those steps, however, and must have refrained
from doing so deliberately.
[36] The reason for this is likely to lie in the fact that New Zealand does not regard itself as being bound by the views of the UNHRC. New Zealand’s position in relation to this issue is set out in a response that the Government provided on
3 October 2008 after the UNHRC had earlier circulated its draft General
Comment
33 concerning the obligations of States Parties under the Optional
Protocol.9 The Government confirmed in its response that New
Zealand respects its legal obligations to act in good faith in adhering
to
the rights set out in the Covenant and the procedures under the First Optional
Protocol. It also acknowledged the fundamental
role played by the UNHRC in
administering and implementing the Covenant. The Government confirmed it would
consider the UNHRC’s
views in good faith, and would place value on
constructive dialogue with the UNHRC. It did not, however, consider the views
expressed
by the UNHRC to be legally binding on this country.
[37] Given the Government’s stance regarding that issue, it is
hardly surprising that Parliament has made no statutory provision
for
deportation orders to be stayed
9 The Obligations of State Parties under the Optional Protocol to the International Covenant on
Civil and Political Rights HRC CCPR/C/6C/33, 5 November 2008.
until communications from persons who are subject to those orders have been
determined by the UNHRC. It also means that the New Zealand
Government does not
accept it is required to provide a remedy even if the UNHRC
ultimately expresses its view that the
applicants’ rights under the
Covenant have been breached.
[38] These factors alone are sufficient, in my view, to demonstrate that
this Court would be highly unlikely to grant an injunction
if this proceeding
went to a substantive hearing. An injunction would only serve to perpetuate
the unlawful presence of the applicants
in this country in circumstances where
they have no further ability to seek relief in the courts of New
Zealand.
[39] Other factors that may also militate against the granting of an
injunction include the fact that deportation will not render
the communication
nugatory. The applicants can still proceed with their communication even if Mr
Singh and Ms Kaur have been deported
to India. Mr Hooker has been instrumental
in advising the family of their rights to date, and he has also assisted them to
lodge
the communication with the UNHCR. He is fully conversant with the issues
the communication raises, and has the ability to see it
through to a
determination.
[40] Furthermore, the courts in New Zealand have already considered the effects of deportation on the family as a whole, and Amanpreet in particular. When Mr Singh and Ms Kaur sought to judicially review the s 177 decision in the High Court, Brewer J considered and accepted the probable detriment to the children if they are deported to India.10 Brewer J noted, however, this country’s right as a sovereign nation to determine access to its territory by non-citizens, and its right to deport those who fail or refuse to leave New Zealand if they are in this country unlawfully.11 His Honour also rejected the applicants’ submission that the interests of the children were the primary or paramount consideration in the present context. He acknowledged that art 3 of the United Nations Convention on the Rights of the Child required the interests of the children to be taken into account as a primary
consideration, but they were not “the” primary or paramount
consideration in the
11 At [42].
present context.12 Brewer J concluded that although the
consequences for the children would be hard, that factor did not
outweigh broader
considerations including the integrity of the immigration
regime.13
[41] The Court of Appeal and Supreme Court also referred to the
detrimental effects that deportation would have on Amanpreet.
The Court of
Appeal observed:14
[65] Without doubt, deportation of Amanpreet's parents and two siblings
would seriously affect her. Her alternatives are stark,
as summarised by Mr
Hooker.
If her parents on her behalf exercise her right as a New Zealand citizen to
remain here, she will be deprived at the age of 11 years
of her right to a
future upbringing in the only family environment she has ever known. If
Amanpreet returns to India with her parents
and siblings she will lose what
Baroness Hale described in ZH as “the intrinsic importance of
citizenship”. Principal among the benefits to which she is entitled in New
Zealand are
free education and health care, and she will suffer the dislocation
of a future in a different country.
[42] In dismissing the application for leave to appeal the Supreme Court
said:15
[3] The applicants' underlying challenge to deportation seems
to be largely premised on the contention that prejudice
to the child who is a
New Zealand citizen (in the sense that the deportation of her parents and
siblings will not be in her
best interests) is a trumping
consideration. The immigration officer did not accept that it was. There is
nothing particularly
surprising about that or any other aspect of the decisions
of the immigration officer.
[43] It follows that I have concluded the applicants’ claim does
not reach the
threshold of establishing a serious issue to be tried.
Balance of convenience
[44] Mr Hooker also submits that the prejudice to the family will be
great if they are deported to India now whereas the respondents
will not be
prejudiced if the
12 At [43]. Brewer J’s conclusion on this point is in accordance with the approach taken by the Supreme Court in Huang v Minister of Immigration [2008] NZCA 337, [2009] 2 NZLR 700 at [67] and by the Court of Appeal in Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37, [2014] 2 NZLR 662 at [15]. See also Singh v Chief Executive, Ministry of Business, Innovation and Employment, above n 3, at [48]-[49].
13 At [46].
14 Singh (Kulbir) v Chief Executive Ministry of Business, Innovation and Employment, above n 3, (footnotes omitted).
15 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 4.
deportation of the family is stayed until the UNHRC has determined their
communication.
[45] This argument misses the point, because the respondents have no personal interest in this matter. They are only named in this proceeding in their capacities as the representatives of the State. The real issue is whether the continued presence of the applicants in New Zealand will compromise the integrity of New Zealand’s immigration system. Brewer J identified this as an issue in the context of Mr Singh
and Ms Kaur’s application for review when he
observed:16
[44] The factual material provided to [the immigration officer], and the
material he researched on his own initiative, is to
the effect I set out in
[39]. It will very frequently be the case that children required by law or
associated circumstance to leave
New Zealand so as to reside with their parents
in a third world country will experience the deprivations I have described. But
if
the likelihood of those deprivations meant that no reasonable immigration
officer would fail to cancel deportation orders
then the integrity of
New Zealand’s immigration system would be compromised. All that would be
necessary to avoid the requirement
to leave the country if in it illegally,
would be to overstay until children were sufficiently acclimated to
the New Zealand
way of life to make the contrast in living conditions palpable.
That is not what Parliament intended when it enacted s 177. It is
significant
that not only is there no particular test, but the humanitarian grounds test
under s 207 is specifically excluded as
an obligation on the immigration
officer.
(Footnotes omitted)
[46] Like Brewer J, I consider that the integrity of New Zealand’s
immigration system will be compromised if the applicants
are permitted to remain
here for the length of time it will take for the UNHRC to determine their
communication. More than 13 years
have now passed since the applicants began
living here unlawfully. Every day that they continue to remain here demonstrates
to others
that continued litigation can prolong unlawful residence in this
country. That is not an outcome the courts should be seen to
promote.
[47] Furthermore, the reality is that there will never be a good time for this family to be deported. As the children get older they will become even further entrenched
in New Zealand culture and lifestyle. It will become increasingly
difficult for them
16 Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment above n 2.
to return to India as time goes on. The granting of an injunction merely
perpetuates the uncertainty that the family must now be
feeling.
[48] For these reasons I have concluded that the Court is likely to hold
that the balance of convenience lies firmly against the
granting of an
injunction. It also follows that the overall justice of the case is likely to
be met by the same result.
Result
[49] The applicants have failed to establish that an interim injunction
should be issued under the first cause of action.
The second cause of action
[50] As I have already observed, under the second cause of action the
applicants seek an order that decisions by the immigration
authorities on 1 and
17 June 2016 be set aside. They also seek an order declaring that the
immigration authorities shall take no
steps to deport those members of the
family who are not New Zealand citizens until their communication has been
determined by the
UNHRC.
[51] The prayer for relief in the amended statement of claim
seeks orders reviewing and setting aside a decision made
on 7 June 2016.
That must be a typographical error, because no decision was made on 7 June
2016. Rather, the immigration authorities
wrote to Mr Hooker on 1 June 2016
responding to a letter dated 27 May 2016 in which he had advised them that the
applicants had lodged
a communication with the UNHRC. Mr Hooker had also sought
confirmation that the immigration authorities would not take any steps
to
deport the family until the UNHRC had determined the applicants’
communication. The immigration authorities advised Mr
Hooker in the letter
dated 1 June 2016 that they had decided to continue with the deportation
process.
[52] The immigration officer in charge of the case then reviewed the
report that
Mr Hooker had obtained from Dr Irwin. He also received a further letter
dated 15
June 2016 from Mr Hooker in which Mr Hooker again sought confirmation that
the
family would not be deported until the UNHRC had determined the applicants’
communication. On 17 June 2016 the Crown Solicitor’s office
responded to Mr Hooker’s letter by advising him that the
immigration
authorities intended to proceed with deportation.
[53] I therefore proceed on the basis that the applicants challenge the
decisions purportedly made by the immigration authorities
on both 1 June and 17
June 2016.
Relevant principles
[54] Interim relief under the second cause of action is governed by s 8
of the
Judicature Amendment Act 1972. This relevantly provides:
8 Interim orders
(1) Subject to subsection (2)
of this section, at any time before the final determination of an
application for review, and on the application of any party, the
Court may, if
in its opinion it is necessary to do so for the purpose of preserving the
position of the applicant, make an interim
order for all or any of the following
purposes:
(a) Prohibiting any respondent to the application for review
from taking any further action that is or would be consequential
on the exercise
of the statutory power:
(b) Prohibiting or staying any proceedings, civil or criminal, in
connection with any matter to which the application for review
relates:
(c) Declaring any licence that has been revoked or suspended in the
exercise of the statutory power, or that will expire by
effluxion of time before
the final determination of the application for review, to continue and, where
necessary, to be deemed to
have continued in force.
(2) Where the Crown is the respondent (or one of the respondents) to
the application for review the Court shall not have power
to make any order
against the Crown under paragraph (a)
or paragraph (b)
of this section; but, instead, in any such case the Court may, by interim
order,—
(a) Declare that the Crown ought not to take any further action that
is or would be consequential on the exercise of the
statutory power:
(b) Declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.
(3) Any order under subsection (1)
or subsection (2)
of this section may be made subject to such terms and conditions as the
Court thinks fit, and may be expressed to continue in force
until the
application for review is finally determined or until such other date,
or the happening of such other event,
as the Court may specify.
[55] Interim orders in the judicial review context will generally only be
made where they are required to preserve the plaintiff
’s position and to
prevent the plaintiff from being unfairly prejudiced pending determination of
the judicial review proceeding.17
Serious issue to be tried
Subsidiary allegations
[56] The second cause of action in the amended statement of claim
contains five allegations. Three of these I mention only briefly
because they
are subsidiary to the main allegations and are plainly untenable. The first is
that the immigration authorities failed
to have due regard to the fact that
“the residence of the Applicants in New Zealand was determined by the
Second Respondent
[the Minister of Immigration] not by the immigration
officer”. I take this to mean that the applicants take issue with the
decision of the immigration authorities to deport the family when it was for
the Minister of Immigration to determine how
New Zealand would respond
to the applicants’ communication to the UNHRC. If that is how it is to be
read, the pleading
overlooks the fact that the implementation of deportation
orders is a matter for the immigration authorities and not for the Minister.
That issue is also entirely separate from the question of how the New
Zealand Government will respond to the applicants’
communication to the
UNHRC.
[57] The second allegation is that “the immigration status of the Applicants will be determined by a prospective decision following the determination of the UNHRC on the petition in Communication No. 2769/2016”. Again, the meaning of this pleading is unclear. I take it to be an assertion that the immigration authorities and the Minister will not make a decision regarding the immigration status of the applicants until the UNHRC has expressed its views in relation to their communication. If so,
the pleading is plainly incorrect because the immigration authorities
are proceeding
17 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).
on the basis that the applicants are currently unlawfully in New Zealand and
are liable to be deported. They have given no indication
that they will await
the determination of the communication before deporting the family to
India.
[58] The third allegation is that the Minister of Immigration has failed
and/or omitted to make any decision in response to the
communication. That
allegation is plainly correct, but the notice given to the Government by the
secretariat of the UNHRC makes
it clear that the Government’s response is
not yet due, and will not be due for some time. There is no prospect that the
Court
would make any orders in relation to that allegation.
Principal allegations
[59] The principal allegations under the second cause of action are as
follows:
(a) In deciding to deport those members of the family who are not New
Zealand citizens the immigration authorities failed to
have regard to matters
raised in the applicants’ communication to the UNHRC;
(b) In making that decision the immigration authorities failed to have
regard to the policy of Immigration New Zealand (INZ)
that “where a
decision of the INZ is subject to review by a higher tribunal or body such as
the Ombudsman, INZ will await the
outcome of the review of the higher body
before taking any further steps consequent to the INZ decision which is being
reviewed”.
(a) Failing to take into account matters contained in the
communication
[60] This allegation proceeds on the basis that the immigration authorities made decisions on 1 and 17 June 2016 to deport those members of the applicants’ family who are not New Zealand citizens. An issue arises, however, as to whether these constitute reviewable decisions.
[61] As recorded earlier in this judgment,18 an
immigration officer made a decision on 14 October 2013 not to cancel
deportation orders that had been served on the applicants’
family between
10 and 19 September 2013. This led to the judicial review litigation that
remained on foot until the Supreme Court
declined the applicants leave to appeal
on 19 April 2016. All of that litigation was concerned with the validity of
the final
s 177 decision. When that litigation finally ended, the validity of
that decision was upheld and the deportation orders remained
intact.
[62] I do not consider that the immigration authorities were required to
make any further decision once the Supreme Court delivered
its decision
declining leave to appeal against the decision of the Court of Appeal. Once
that occurred, the immigration authorities
were required to do no more than
implement the deportation orders that still remained in force. I therefore do
not consider that
the “decisions” referred to in the communications
to Mr Hooker on 1 and 17 June 2016 constituted reviewable decisions.
They
merely constituted advice to Mr Hooker of the fact that the deportation process
that the judicial review proceedings had held
in abeyance for more than two
years was to resume.
[63] It follows that the immigration authorities were not obliged
to take into account the fact that the applicants had
lodged a communication
with the UNHRC.
(b) Failure to have regard to INZ policy
[64] This issue arises because INZ has a policy that it will
not implement deportation orders whilst there is an outstanding
complaint to
the Ombudsman by the person to be deported. INZ does not have any similar
policy in relation to persons who have filed
a communication with the
UNHRC.
[65] The short point in this context is that a policy is not a binding principle or rule of law that an organisation such as INZ is bound to follow. The fact that it has no such policy in relation to communications lodged with the UNHRC spells the end of the argument on this point in any event. It is impossible to argue that the
immigration authorities ought to have followed a policy that does not
exist.
18 At [9].
Conclusion
[66] I do not that consider any of the allegations underpinning the
second cause of action raise a serious issue to be tried.
For that reason it is
not necessary to consider the balance of convenience. Had it been necessary to
do so, the balance would have
fallen firmly in favour of the respondents for the
reasons given in relation to the first cause of action.
Result
[67] The applications for an interim injunction and interim relief are
dismissed.
Costs
[68] I see no reason why costs should not follow the event on a category
2B basis but I am not aware whether the applicants are
legally aided. For that
reason I make no orders as to costs at this stage. If counsel cannot reach
agreement they should file brief
memoranda and I will deal with the issue of
costs on the papers.
Interim order
[69] In order to give the applicants an opportunity to examine their options I direct that the interim order made by Toogood J on 12 July 2016 shall remain in force until
12 August 2016. The immigration authorities shall take no steps to deport
members
of the applicants’ family who are not New Zealand citizens until
that date.
Lang J
Solicitors:
Crown Law, Wellington
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