Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 2337 (30 September 2016)

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BETWEEN	HARPAL SINGH Applicant
AND	CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent IMMIGRATION AND PROTECTION TRIBUNAL _{Second Respondent}

Hearing:	16 August 2016
Appearances:	R P Singh and H T Choudhury for the Applicant S Jerebine and R Garden for the First Respondent No appearance by or for the Second Respondent
_Judgment:	_{30 September 2016}

This judgment was delivered by me on 30 September 2016 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules

..............................................................................

[1] Harpal Singh is a 35 year old citizen of India. Except for short trips overseas, he has been in New Zealand since August 2007. He is seeking leave to appeal and judicially review the Immigration and Protection Tribunal’s dismissal of his appeal against a decision of Immigration New Zealand, declining a residence class visa.

[2] He has also applied to “amend” those leave applications to include an application for leave to appeal and review a decision of the Tribunal declining a humanitarian appeal.

[3] The key point advanced in support of the applications is that the Tribunal failed to accord paramount importance to the best interests of Mr Singh’s son, who is a New Zealand citizen, and from whom Mr Singh will likely be separated if Mr Singh has to return to India.

[4] Mr Singh is married to Parwinder Kaur, a New Zealand citizen. They married in India in 1999 and had a daughter in 2000. In March 2001, they stated that they had separated (although they in fact remained married).

[5] Ms Kaur has lived primarily in New Zealand since October 2001. She gave birth to Mr Singh’s second child in New Zealand in September 2004. Ms Kaur repeatedly failed to disclose her relationship with Mr Singh to INZ.

[6] Between 2004 and 2007, Mr Singh made multiple visa applications to INZ. He consistently said he was unmarried, had no children and, in respect of the visitor visas, that the purpose of the visit was to visit his “sister”, being in fact his wife. The applications were sponsored by his wife, holding herself out to be his sister.

[7] In September 2013, Mr Singh lodged the residence application, which is the subject of the residence leave applications. Originally, this was under the Skilled Migrant category. In March 2014, he applied instead for residence under the Family (Partnership) category, at this point naming Ms Kaur as his wife.

[8] On 6 November 2014, INZ advised it had character concerns, namely that Mr Singh had intended to deceive INZ. Mr Singh’s representative replied that Mr Singh was unaware of what was stated in the residence applications.

[9] On 19 February 2015, INZ completed a character waiver assessment. INZ found, on the balance of probabilities, that Mr Singh had intentionally deceived INZ by providing false information. INZ declined to grant the character waiver and, consequently, declined Mr Singh’s residence application.

[11] The Tribunal dismissed his appeal on 15 April 2016, and confirmed that Mr Singh did not meet the character requirements and did not qualify for a character waiver (the Tribunal’s residence decision).

[12] The Tribunal then determined there were not special circumstances warranting consideration by the Minister of Immigration as an exception to residence instructions.

[13] In respect of the applications for leave to appeal and to review, Mr Singh seeks leave in relation to the following issues:

(a) Whether the Tribunal failed to consider articles 17 and 23(1) of the International Covenant on Civil and Political Rights (ICCPR), when assessing whether there were special circumstances that warranted consideration by the Minister of Immigration as an exception to the relevant residence instructions. (These articles relate to maintenance of family unity.)

(b) Whether the Tribunal considered the interests of Mr Singh’s children under articles 3 and 27 of the Convention on the Rights of the Child.

[14] In respect of the application for leave to review, Mr Singh also seeks leave in

[15] His counsel confirmed at the outset of the hearing, that Mr Singh was no longer pursuing the point as to whether the Tribunal properly considered the alleged influence of a relative in providing false information.

[16] Leave to appeal is required under s 245(1) and leave to review is required under s 249(3) of the Act.

[17] The introduction of a leave requirement indicates a deliberate intention to limit appeals and reviews to this Court.¹

[18] An appeal is marked out as the more appropriate mechanism for challenging a decision of the Tribunal. So, the test for leave to review under s 249(6) is:

(a) whether the review proceedings involve issues that could be adequately dealt with in an appeal against the Tribunal’s decision; and

(b) whether the 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.

[19] The test for leave to appeal, contained in s 245, is just the second of these two limbs.

[20] The review proceedings do involve issues that could be adequately dealt with on appeal. Whether the Tribunal properly considered the interests of Mr Singh’s family or children, are issues that can be dealt with as questions of law on appeal.

_{The argument that the Tribunal’s decision was unreasonable appears
to turn also on}

¹See, for example, SK v Immigration and Protection Tribunal [2014] NZHC 2693.

the interests of the applicant’s children, and so similarly, can be dealt with in an appeal, on a point of law.

[21] Both ss 245 and 249 require the issues to be of general or public importance, or for some other reason, issues that ought to be submitted to this Court.

[22] The test is similar to that applying to second appeals under s 67 of the Judicature Act 1908.²The Court therefore is not engaged in general correction of error. Its primary function is to clarify the law and determine whether it has been properly construed and applied by the Court below. Not every alleged error of law is of such importance, either generally, or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[23] Errors of fact can be treated as if an error of law, but they have to be so grave as to constitute an error of law, and even still a very high threshold applies.³Counsel for Mr Singh confirmed however, that Mr Singh is not now relying on factual error, so Taafi v Minister of Immigration and the test under it, is not relevant here.

[24] In LMN v Immigration and Protection Tribunal, this Court held that an issue is only of sufficient importance to “justify the further pursuit of litigation” if it “go[es] beyond the particular circumstances of the applicant” or suggests the existing law should be revisited by the Court”.⁴LMN has been affirmed or applied in numerous High Court judgments. It has also been queried.

[25] It is not necessary to delve into alternative ways of expressing the applicable test in this case. Issues that have a poor prospect of success will not qualify.⁵This is

⁵See Allada v Immigration and Protection Tribunal New Zealand [2014] NZHC 953 at [36].

[26] The issues here are whether the Tribunal failed to consider arts 17 and 23(1)

[27] In effect acknowledging that expressing the issues in this way would not secure leave, Mr Singh’s counsel submitted that the real issue was whether the Tribunal failed to accord paramount importance to the interests of Mr Singh’s son.

[28] The Supreme Court decision in Ye v Minister of Immigration, cuts directly across counsel’s submission.⁶The Court held that in cases involving children, the best interests of the child are a primary consideration, but the effect to be given to them is a matter of assessment to be made against all other relevant circumstances. Children’s interests are not a paramount consideration.⁷

[29] There is also no requirement to make specific reference to particular international obligations. It is sufficient that these are considered in substance.⁸

[30] It is clear that in this case, the Tribunal did treat as one of its primary factors, the best interests of Mr Singh’s son.⁹The Tribunal did consider the substance of arts 17 and 23(1) (which relate to maintenance of the family unit) when considering whether Mr Singh had special circumstances. Similarly, the Tribunal did properly consider arts 3 and 27 and the interests of Mr Singh’s children:

(a) The Tribunal noted that Mr Singh’s 35 year old wife and 11 year old son live in New Zealand. It also noted his parents, his younger sister and his 15 year old daughter live in India.

(b) The Tribunal noted that Mr Singh’s daughter has lived all her life in India, primarily in the care of her grandparents. Mr Singh left India when she was six-and-a-half years old, but he and Ms Kaur have returned to India to visit their daughter on a number of occasions.

⁸Puli’uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA) at [326]; Zanzoul v

(c) Mr Singh’s son was born and lives in New Zealand. He did, however, spend 17 months in India as a young child, and has returned to India on several occasions. He attends school in New Zealand and apparently does not want to return to India. The Tribunal accepted the son’s immediate best interests lie in remaining in New Zealand, with both parents here also. However, the Tribunal did not accept the son’s long-term best interests would be jeopardised should he return to India, particularly given the presence there of his sister and grandparents. (The whole family could be lawfully reunited in India.)

[31] The Tribunal assessed these matters against all other relevant circumstances. The matter of assessment is up to the Tribunal.

[32] Accordingly, I am satisfied that no error arises with respect to the Tribunal’s consideration of arts 17 and 23(1) and/or arts 3 and 27, and/or of the interests of Mr Singh’s children.

[33] Turning to the unreasonableness ground, Mr Singh appears to argue that the Tribunal’s decision is inconsistent with its finding that the immediate best interests of Mr Singh’s son are to remain in New Zealand, such that the Tribunal decision is unreasonable. In the immigration context, Wednesbury remains the governing test.¹⁰

That requires Mr Singh to demonstrate that the decision is one that no reasonable immigration decision-maker would have reached. To the contrary, the finding that Mr Singh did not have special circumstances, was reasonably open to the Tribunal. The fact that the Tribunal found that the son’s best interests lay in New Zealand with both parents here, does not mean that a decision to different effect is unreasonable. That is again assuming that the son’s interests are paramount, which the Supreme Court has made clear is not so, and which, in the context of immigration decisions

¹⁰See Puli’uvea, above n 8, at [325]; Huang v Minister of Immigration [2008] NZCA 377; [2009] 2 NZLR 700 (CA); Singh v Minister of Immigration [2011] NZCA 532 at [27]- [36]; Minister of Immigration v Zhang [2013] NZCA 487; [2014] NZAR 88 (CA) at [32].

[34] The issues raised, therefore have no, or very little, prospect of success. Accordingly, they are not issues on which leave should be granted.

[35] Even if the issues raised by Mr Singh were seriously arguable, Mr Singh has not demonstrated that they are of general or public importance; that there are any ramifications of the Tribunal decision that extend beyond his particular circumstances, or any other reason why leave should be granted.

(c) The issues raised by Mr Singh are not of general or public importance, nor is there any other reason why leave should be granted.

Application to amend to include application for leave regarding Tribunal’s

[38] The two leave applications which I have just declined, are in respect of the

[41] On 16 June 2016, Mr Singh applied to amend the two residence leave applications, to include an application for leave regarding the “humanitarian” decision.

[42] Sections 245(2) and 249(4) provide a time limit as to when an applicant must file an application for leave to appeal or review. These provisions require the application for leave to appeal/review be made not later than 28 days after the date on which the Tribunal’s decision to which the appeal/review relates, was notified to the party bringing the appeal/review proceeding.

[43] The Court can extend the 28 day timeframe, but only if a party seeks an extension before the expiry of the 28 day timeframe.

[44] The time limit in s 245(2) and 249(4) is jurisdictional.¹²It is settled law that extensions of statutory timeframes can only be granted where the statute itself so allows.¹³Sections 245 and 249 are clear that an extension can only be granted if sought within the 28 day timeframe.

[45] In X v Immigration and Protection Tribunal, the applicant applied for judicial review of a decision of the Tribunal. He then sought leave to amend his application by adding an application for leave to appeal under s 245 of the Act. Leave to amend was sought outside the statutory timeframes in s 245(2).

[6] The 28-day time limit in s 245(2) is mandatory. There is no jurisdiction to allow further time in which to bring an application for leave to appeal. This interpretation is mandated by the clear wording of s 245. It is consistent with the scheme and purpose of the Immigration Act 2009. Accordingly, unless the application for amendment is made within the

28-day period specified in s 245(2) there is no jurisdiction to grant an amendment.

¹²See X v Immigration and Protection Tribunal [2014] NZHC 1647, D v Immigration and Protection Tribunal [2015] NZHC 2458 at [18], upheld on appeal in D v Immigration and Protection Tribunal [2016] NZCA 320.

[16] ... the statutory time limit is not solely for the benefit of the second respondent and is therefore incapable of being waived on public policy grounds. (emphasis added)

[47] The applications in respect of the residence decision were, as noted, filed within the statutory time limit. However, these applications were clearly in respect of the Tribunal’s residence decision only. They do not include the Tribunal’s humanitarian decision.

[48] Mr Singh was required to seek leave to appeal or review the humanitarian decision within the 28 day time period (whether by filing a third application or amending the 12 May 2016 applications), or to seek an extension of time within that period. This did not occur.

[49] No point has been taken in this regard, but for completeness, I note that both the residence and the humanitarian decisions were notified to Mr Singh’s agent, Mr Delamere, on 18 April 2016. The 28-day period expired on 17 May 2016 (allowing one day for the Anzac Day holiday). As I have said, the application for leave to amend to include the humanitarian decision, was not filed in the High Court until 16 June 2016.

[50] Mr Delamere did not sign a memorandum stating that he accepted service on behalf of Mr Singh, but he informed the Tribunal he represented Mr Singh, and Mr Singh signed a form authorising Mr Delamere to act as his agent. This is clearly sufficient to constitute notification to Mr Singh in terms of ss 245(2) and 249(4).

12 May 2016 (the date the residence leave applications were filed). The application to amend was filed on 16 June 2016, which is still more than 28 days after 12 May

[52] Accordingly, Mr Singh is out of time to apply for leave to appeal or review the decision dismissing his humanitarian appeal.

[53] The power to amend defects or errors in pleadings or procedure under r 12.9 of the High Court Rules, cannot be used to override the provisions of a statute.¹⁴It may not be used to extend the time allowed for an appeal where this is not provided for in the statute conferring the appeal right.¹⁵

[54] If the application has been filed in time, defective form may be remedied under r 12.9. An example is Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment,¹⁶where an application for leave to bring review proceedings was filed in time, but the intituling failed to refer to s 249 of the Act. There, the court found the failure to refer to s 249 was not fatal; it was a matter of form that could be corrected.

[55] This is not the case here. Identifying the decision to which the proposed appeal/review relates, is a substantive requirement. Sections 245 and 249 provide that leave is sought and granted in relation to a specific decision of the Tribunal, and that the 28 day timeframe runs from the date on which the decision “to which the [appeal/review proceedings relate/s]” is notified to the applicant.

[56] Accordingly, for the leave provisions to have any effect, Mr Singh cannot be allowed to amend the application to include another, different decision outside the statutory timeframe. To do so is to allow Mr Singh to bring an application for leave to appeal or review out of time.

[57] I should make it clear that, in any event, I consider no error arises from the Tribunal’s humanitarian decision. While it is not clear how Mr Singh says the Tribunal erred, the alleged errors appear to be the same as discussed above. I therefore would not have granted leave, even had the application been filed in time, for the same reasons I have declined leave regarding the residence decision.

¹⁵Inglis Enterprise Ltd v Race Relations Conciliator (1994) 7 PRNZ 404 (HC). See also Kaur v

Chief Executive of the Department of Labour HC Wellington CIV-2005-485-585, 23 February

[59] The first respondent sought costs in the event I found in their favour. The applicant did not raise any basis on which the normal rule would not apply.

[60] I award costs in favour of the first respondent on a 2B basis, plus usual disbursements.

High Court of New Zealand Decisions

Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 2337 (30 September 2016)