Kaur v Minister of Immigration [2018] NZHC 138 (14 February 2018)

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UNDER	the Judicature Amendment Act 1972 and the Judicial Review Procedure Act 2016
IN THE MATTER OF	an application for judicial review section 4 of the Judicature Amendment Act 1972
BETWEEN	HARPREET KAUR First Applicant GURJANT SINGH Second Applicant
AND	MINISTER OF IMMIGRATION Respondent

Hearing:	14 February 2018
Appearances:	R Singh and H T Choudhury for the Applicants K G Stephen and MGA Madden for the Respondents
_Judgment:	_{14 February 2018}

[1] The applicants apply, under s 247(1)(a) of the Immigration Act 2009, for an extension of time to file an application for judicial review.

[2] They have made several visa applications over the last two years. Their most recent application was for a ‘grant of a visa in a special case’ under s 61 of the Act. That was their second application under s 61. On 8 August 2017 Ms Pereria, a Senior Immigration officer with Immigration New Zealand, wrote to the applicants advising that “We have refused to consider your request”.

[3] On 23 August 2017, the applicants filed an application seeking judicial review of these decisions. They erroneously applied under s 249(3) of the Act. There was no need to seek leave. They could and should have simply commenced judicial review proceedings by filing a statement of claim and notice of proceeding under s 8 of the Judicial Review Procedure Act 2016.

[4] When, at the beginning of October 2017, this error was pointed out by the respondent, the applicants agreed that their application for leave should be withdrawn and that they should file a statement of claim seeking judicial review and an interlocutory application for an extension of time.

[5] By consent memorandum dated 2 October 2017 it was agreed that they do so by 19 October 2017. The Minister nevertheless reserved the right to oppose the application for extension.

[6] The statement of claim for judicial review and interlocutory application were filed and served on the agreed date, 19 October 2017.

[7] The statutory time limit under s 247(1) is 28 days. Therefore, the time limit to file judicial review proceedings in respect of the decision dated 8 August 2017 expired on Tuesday 5 September 2017. The original and erroneous application for leave was filed within time. However, the current application was filed 44 days after that due date.

[8] The issue before the Court is whether there are special circumstances that would justify further time being allowed in accordance with s 247(1)(a) of the Act.

[9] The applicants’ written submissions do not address the criteria for recognition of special circumstances under the Act. They focus on the alleged merits of the judicial review application and, in particular, urge the Court to relax the Wednesbury test in relation to applications for judicial review of the exercise of the absolute discretion under s 61.

[10] However, in oral submissions, Mr Choudhury and Mr Singh rely on the self- evident fact that an error was made in the initial application and that when this was pointed out, an application in proper form was filed by the mutually agreed date.

Mr Choudhury emphasises, in particular, that the erroneous application for leave and the current draft judicial review proceedings are in almost identical form, such that the Minister was fully appraised within time of the substance of the applicants’ challenge.

[11] For the respondent, Mr Stephen submits that there are no special circumstances justifying an extension of time. He relies on authority suggesting that counsel error is not, of itself, a sufficient basis for recognising special circumstances under s 247(1)(a).

[12] The leading case on the interpretation of s 247 is Rajan v Minister of Immigration.¹The Court of Appeal in that case held that “special circumstances” requires circumstances that are “uncommon, not common place, out of the ordinary, abnormal”. ²The Court noted that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. ³The Court held that there are three

_{factors which should be considered in determining whether such special
circumstances}

¹Rajan v Minister of Immigration [2004] NZAR 615 (CA). That case concerned s 146A of the Immigration Act 1987, but it is in substantially the same terms as s 247, and has been prolifically cited in cases on ‘special circumstances’.

exist: the length of the delay; the reason for the delay; and in marginal cases, a brief examination of the merits.⁴

[13] In assessing the length of the delay, the Courts typically consider the delay as a fraction or multiple of the relevant time limit.⁵However, as noted by Hinton J in E v Ministry of Business, Innovation and Employment, factors other than the mere number of days have elapsed may be relevant.⁶

Generally delays for greater than the period permitted ... tend to be characterised as ‘long’ or ‘very long’, tending to support a conclusion that leave should be declined”.

Where there has been a substantial period of delay ... virtually no circumstances will be sufficiently ‘special’ to warrant the grant of leave.

[16] In that case, a delay of 2.5 times longer than the permitted period was considered ‘substantial’.⁹

[17] Here, the 28-day time limited prescribed by s 247(1) expired on 5 September

2017. The statement of claim was filed on 19 October 2017, 44 days later, or approximately 1.6 times after the deadline period. However, there is authority for the proposition that where the applicant has made an honest mistake, and this has subsequently been pointed out to him or her, time can run from the point at which the applicant was informed of the mistake. In AR v Refugee and Protection Officer, for

_{example, the applicant filed an application for leave to commence review
proceedings}

⁶E v Ministry of Business, Innovation and Employment [2016] NZHC 2599 at [23].

⁷Zanzoul v Removal Review Authority and Department of Labour HC Wellington CIV-2007-485-

of a decision of the Refugee and Protection Officer (RPO).¹⁰They filed this application within the 28-day deadline. However, as in this case, leave was not required. They were informed by the RPO of this within two days of the filing. They then filed a claim in correct form 12 days later, that is 14 days after the deadline. The Court in that case calculated the delay from the point when the mistake became known, that is 12 days in total, and regarded it as “not substantial”.¹¹

[18] In this case, the mistake was brought to the applicants’ attention on or about

2 October 2017. The correct documents were filed on 19 October 2017. As previously noted, that was pursuant to a consent memorandum of the parties filed on 2 October

7.3 The applicants are to file and serve by 19 October a statement of claim and notice of proceeding. The applicant is also to file and serve an interlocutory application for an extension of time for commencing review proceedings.

[19] I do not in the circumstances, therefore, regard the fact that 17 days elapsed between the date on which Mr Choudhury’s error was drawn to his attention and the filing of the application for review in correct form as material. There was agreement in that respect.

[20] If I am wrong in that conclusion the delay was nevertheless 17 days only which, although it cannot be described as “short”, was nevertheless not overly long and certainly not “substantial”.

[21] For these reasons, the application does not in my view fail on account of the length of the delay alone.

[22] As noted above, “special circumstances” require circumstances that are “uncommon, not commonplace, out of the ordinary”.¹²The reason for the delay was counsel’s error in filing the application for leave to appeal. That was not pointed out to him until on or about 2 October. There had been an initial case management conference on 21 September 2017. However, that was postponed to 5 October because of a request by the respondent, arising out of the instruction of new counsel.¹³The overall period would have been shorter but for this adjournment. That is not to attribute any blame to the respondent, but merely to point out that the total period of delay would have been less but for matters that were beyond the applicants’ control. As I have also indicated, the further delay from 2 October to 19 October was as a result of a mutually agreed approach, albeit the respondent reserved his rights.

[23] The respondent argues that counsel error does not amount to a special circumstance sufficient to animate the jurisdiction. Mr Stephen relies on Fernandes v The Immigration and Protection Tribunal for the proposition that any failure by a legal adviser to file an appeal is not, of itself, good reason to excuse delay.¹⁴

I consider that case distinguishable from the present however in that Fernandes’

counsel filed nothing within the relevant timeframe nor even indicated to the respondent that review proceedings were contemplated. In this case, counsel did attempt to appeal in the correct timeframe, albeit that in doing so they invoked an incorrect procedure. The respondent was fully appraised of the substantive grounds of review within the relevant time period.

[24] Mr Stephen also cites Dobson J in Zanzoul, in terms: “mistakes as to the time limits, or other errors by counsel, have not been recognised in this context [the context being an application under the predecessor to s 247] as constituting ‘special circumstances’”.¹⁵That submission seems to me to overlook more recent authority

_{where counsel error in invoking an incorrect procedure or failing to
meet the relevant}

¹³The applicants consented, and the order was confirmed in a minute of Lang J dated 19 September

¹⁴Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544.

¹⁵Zanzoul v Removal Review Authority and Department of Labour HC Wellington CIV-2007-485-

time limit has been held to constitute a valid reason for delay under s 247. I refer, in particular, to the decisions in AR v Refugee and Protection Officer,¹⁶where counsel’s inexperience and illness were considered sufficient reason for a delay, and in E v The Ministry of Business, Innovation and Employment,¹⁷where an appeal was wrongly filed in the Tribunal but in time and then filed in the High Court out of time. In both cases an extension of time was granted.¹⁸

[25] Whether a ‘special circumstance’ exists will in all cases depend on context. The judgments cited by Mr Stephen, like many in this area and although helpful, do not lay down inflexible rules of law. Each case is fact specific.

[26] I note further that this is not a situation where there is any effective remedy by the applicants against counsel. The so called ‘surrogacy principle’, whereby the errors or omissions of counsel are visited on their client, applies with less rigour in cases where the loss is effectively incompensible.¹⁹The Court should, in my view, be hesitant to penalise an applicant for the honest mistake of counsel in circumstances where the error is unable to be adequately compensated in damages.

[27] The “mischief” addressed by the statutory provision is that applications for review are not unreasonably delayed and that in the event of executive or administrative decisions declining immigration status, the consequences promptly follow. Those considerations are of less moment in circumstances such as the present where there has been a bona fide attempt to meet the relevant statutory time limit and

¹⁸During the oral hearing, Mr Stephen argued this Court was bound by the decision of the Court of Appeal in D v Immigration and Protection Tribunal [2016] NZCA 320, [2016] NZAR 544. He argued it was authority for the proposition that a mistake by counsel was not a ground for

extending the time under s 247(1)(a). I do not read that case as supporting that proposition. That

case did not concern an application under s 247(1)(a), but was rather concerned with s 249(4)(b). While both provisions involve a 28 day time limit, under the latter provision, the Court has no jurisdiction to extend time because of a special circumstance. Therefore, I do not consider that case relevant to this decision.

¹⁹See the discussion in Ratzapper Australasia Ltd v Noe [2017] NZHC 2931 at [35]–[45].

[28] In the particular circumstances of this case I consider that the identified error constitutes a sufficiently “out of the ordinary” explanation for the delay as to adequately meet the requirements of Rajan v Minister of Immigration.²⁰

[29] The merits of an applicants’ case are not automatically considered under s 247. The Court of Appeal noted in Rajan that they could tip the balance in a marginal case.²¹

[30] In my view, this is not a sufficiently marginal case to animate consideration of the merits. The reasons I have previously identified apply with equal force in this respect. Had the solicitors adopted the appropriate procedure, the applicants would have had a right to determination of the merits of their claim.

[31] That said, it is obvious the application for review faces considerable obstacles. The decisions of 8 August 2017 were in terms of “refus[ing] to consider your request”. The applicants say that this is inconsistent with the approach adopted by the Minister in like cases. However, in Devi v Minister of Immigration, it was held that where there is no obligation to grant a visa (as is the case under s 61 of the Act), the decision maker is not required to consider previous decisions.²²Moreover, while it is settled law that the exercise of the absolute discretion under s 61 may be reviewable, the only basis of a review is unreasonableness, which is traditionally approached in a Wednesbury sense.²³Absence of consideration by the decision maker is not of itself a successful ground for challenge.²⁴

[32] Nevertheless, while the prospects of success do not look encouraging, I consider that because the effective period of delay is minimal and the reasons for the delay are adequately explained, the outcome of the application should not be dictated by these perceived difficulties. In my view, it would be contrary to the interests of

_{justice to deny the applicants their day in court – particularly
as rights to judicial}

²⁴Yu v Chief Executive of the Department of Labour HC Auckland CIV-2011-404-4300, 21 July

review are affirmed and protected by the New Zealand Bills of Rights Act,²⁵– when the basis for the application for extension of time is essentially a procedural irregularity in respect of a former application filed within time. That consideration seems to me especially persuasive given the lack of effective recourse against counsel for the mistake.

[33] I grant an order pursuant to s 247(1)(a) of the Act allowing further time for the commencement of the applicants’ review proceedings.

(b) Affidavits in support of the application for judicial review are to be filed by 21 March 2018;

[35] The application is set down for a hearing on 11 May 2018 at 10 am (one-half day).

(a) The applicants’ are to file and serve their submissions in support of the application, together with a paginated bundle of all relevant pleadings and an agreed bundle of documents by 27 April 2018; and

[37] I reserve leave to the applicants and to the respondents to apply for any further directions which may be necessary to ensure the expedited disposition of this application.

[38] The applicants have been successful in their application. Nevertheless, what they have sought and been granted is an indulgence by this Court arising out of counsel error for which the Minister is appropriately compensated by an award of costs.

Mr Stephen confines himself to a claim for 2B costs for today’s hearing, which I assess as 0.2 of a day. I award costs accordingly.

_{[39] Such costs are to be paid within 10 working days of the date of
this order.}

High Court of New Zealand Decisions

Kaur v Minister of Immigration [2018] NZHC 138 (14 February 2018)