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Wang v Minister of Immigration [2013] NZHC 2563 (2 October 2013)

Last Updated: 6 November 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7116 [2013] NZHC 2563

UNDER The Judicature Amendment Act 1972

IN THE MATTER OF The Immigration Act 2009

BETWEEN HONG WANG First Plaintiff

LAN XIAO Second Plaintiff

SHIYU WANG Third Plaintiff

AND MINISTER OF IMMIGRATION Defendant

Hearing: 31 July 2013

Memoranda filed 30 August 2013, 13 September 2013 and

18 September 2013

Counsel: J McBride for the Plaintiffs

C A Griffin for the Defendant

Judgment: 2 October 2013

_{JUDGMENT (NO 2) OF BROWN J}

This judgment was delivered by me on 2 October 2013 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Law, Wellington

Winston Wang & Associates, Newmarket, Auckland

Counsel: J A McBride, Wellesley Street, Auckland 1141

RPG Haines QC, Barrister, Auckland

WANG v MINISTER OF IMMIGRATION [2013] NZHC 2563 [2 October 2013]

[1] The plaintiffs filed a judicial review proceeding which they sought to have heard in advance of their appeal to the Immigration and Protection Tribunal (“IPT”) on the ground that the IPT did not have jurisdiction to entertain the matter the subject of the judicial review. The Crown contended that the IPT did have jurisdiction and that s 249(1) therefore applied with the consequence that the High Court did not have jurisdiction to hear the judicial review until after the plaintiffs’ appeals had been heard and determined by the IPT.

[2] In my judgment of 15 August 2013 I held that s 249(1) precluded the plaintiffs’ review proceedings being heard pending the determination of the plaintiffs’ appeals lodged with the IPT. Counsel had agreed that I should defer making any formal orders pending receipt of memoranda as to how the matter might be finally resolved. Counsel for the defendant and the plaintiffs have now filed memoranda as to remedy and costs.

Remedy

[3] The defendant seeks an order that the review proceeding should be dismissed for want of jurisdiction. The Minister submits that if s 249(1) applies then review proceedings cannot be brought in any court until after the conclusion of the IPT appeal and that there was therefore no jurisdiction for the plaintiffs to file the judicial review proceedings on 28 November 2012. With reference to the amendments to s 249 in 2013, in particular the insertion of a leave requirement, the Minister submits that the fact of those amendments does not provide a principled basis to adjourn rather than dismiss the proceeding. The Minister submits:

(a) The fact that s 249 is an ordering provision, now subject to a leave requirement, rather than an absolute privative clause, does not warrant a different approach;

(b) An adjournment would preserve an advantage for the plaintiffs to which they were not entitled on 28 November 2012 or after

19 June 2013 when the leave requirement came into force; and

(c) Dismissal does not give rise to an unfair advantage to the Minister or an unfair disadvantage to the plaintiffs. The Minister is equally the subject of the leave requirement as at 19 June 2013 if the plaintiffs’ appeal on facts to the IPT succeeds and the Minister seeks to review that decision.

[4] Although recognising that dismissal in the present case has the effect that any new review proceeding filed by the plaintiffs will be subject to the leave requirement in s 249(1B), the Minister submits that that statutory consequence cannot justify a different remedial approach.

[5] In their opposition the plaintiffs first focus upon the Minister’s request for an order dismissing the review proceedings “for want of jurisdiction”. They submit that the filing of a statement of defence (as opposed to a r 5.49 challenge to jurisdiction) constituted a step in the proceeding whereby the Minister has conceded that the Court has jurisdiction. Secondly, they draw attention to the Minister’s acknowledgement that s 249(1) does not oust the Court’s jurisdiction but rather is a timing restriction. They argue that it would be wrong to dismiss the proceeding “for want of jurisdiction” as to do so would convey the erroneous impression that the Court’s jurisdiction was ousted by s 249(1). They say that the question for consideration is whether the proceeding should be dismissed or simply stayed pending the IPT’s decision.

[6] The plaintiffs submit that the latter is the more appropriate course because there is no prejudice to the defendant if the proceeding remains on foot but stayed on the basis that it can be brought on within 28 days of the IPT’s decision whereas there would be substantial prejudice to the plaintiffs if the proceeding were dismissed. It is said that the requirement to bring fresh proceedings, which could be brought only with leave, amounts to a clear and identifiable disadvantage to the plaintiffs.

[7] There is merit in the plaintiffs’ point about the use of the phrase “want of jurisdiction”. As Lord Scott commented in Tehrani v Secretary of State for the Home Department:¹

When issues are raised as to whether or not a court of law has jurisdiction to deal with the particular matter brought before it, it is necessary to be clear about what is meant by “jurisdiction”. In its strict sense the “jurisdiction” of a court refers to the matters that the court is competent to deal with.

[8] There is no question that the High Court is the court competent to deal with judicial review proceedings in respect of statutory powers of decision exercised under the Immigration Act 2009. That is to be contrasted with a scenario where the High Court is not the competent court: see, for example, Commissioner of Inland

Revenue v Redcliffe Forestry Venture Ltd.²

[9] In the present case the correct analysis is that the consequence of the prohibition in s 249(1) is that the plaintiffs’ judicial review proceeding has been filed prematurely, that is, in advance of the IPT having made determinations on the plaintiffs’ appeals. While the High Court would have jurisdiction to entertain such proceedings when properly brought, and consequently would be the court with “jurisdiction”, it is not competent for the Court to entertain those proceedings at this point in time in view of the statutory prohibition in s 249(1). Consequently it is open to the Minister to seek an order that the judicial review proceeding be dismissed. However in order to avoid any terminological confusion I will accede to the plaintiffs’ submission and refrain from incorporating reference to “jurisdiction” in my direction for disposition of this matter.

[10] With reference to the appropriate form of procedure I do not consider that it was necessary for the Minister to invoke the r 5.49 procedure of filing an appearance and an objection to jurisdiction. As the Supreme Court recognised in Redcliffe Forestry there is an overlap between r 5.49 and r 15.1 such that it will often be

_{convenient to apply under both rules.}³ _{I do not consider that by electing not to}

¹ Tehrani v Secretary of State for the Home Department [2006] UKHL 47; [2007] 1 AC 521 at

_[66].

² Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94; [2013]

_{1 NZLR 804 (SC).}

³ At [34].

invoke the r 5.49 procedure the Minister is precluded from seeking an order that the judicial review proceeding be dismissed.

[11] I do not consider that the plaintiffs’ position is fairly categorised in terms of substantial prejudice and disadvantage. In effect the plaintiffs ask the Court to stay their judicial review proceedings (brought prematurely and not in compliance with s

249(1)) until the IPT’s decision on their appeals is released thereby enabling the plaintiffs, should they wish to do so, to bring their judicial review proceeding on for hearing without obtaining the leave which is now required under s 249(1B).

[12] While the Court does not wish to “disadvantage” the plaintiffs in any way, in my view the course which they invite the Court to take is inappropriate in terms of the statutory scheme both before and after the 2013 amendment. To accommodate the plaintiffs’ request would involve potential inconsistency of treatment of persons affected by the Immigration Act 2009 whereby persons who, intentionally or otherwise, commenced proceedings prematurely could avoid compliance with the leave requirement introduced by the 2013 amendment. I do not consider that the plaintiffs state the position correctly at paragraph 22 of their memorandum when they say that the current judicial review proceeding was brought as of right but any new one can only be brought with leave. In my view s 249(1) precluded the judicial review proceeding being brought on 28 November 2012 or at any subsequent time prior to the date on which the IPT had made its decision on the plaintiffs’ appeals.

[13] Consequently I consider that in light of my decision of 15 August 2013 on the issue which the parties agreed should be determined by an interlocutory application, the only proper order for the Court to make is that the judicial review proceeding be dismissed.

Costs

[14] In my judgment of 15 August 2013 I recorded my provisional view that costs should be calculated on a 2B basis but I left the matter open to be addressed in memoranda. The plaintiffs agree that 2B costs are the correct starting point and they do not argue against the disbursements sought. However they submit that the 2B costs should be reduced based on r 14.7(e), namely that the proceeding concerned a

matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding.

[15] The Minister accepts that the plaintiffs acted reasonably in the conduct of the litigation and are not to be criticised for their choice in bringing the judicial review proceeding but submits that that is a neutral factor. It was submitted that the Minister similarly acted reasonably but that once the plaintiffs decided to pursue judicial review proceedings prior to their appeals, the Minister was entitled to oppose any incremental degradation of the scope of s 249 and the IPT’s jurisdiction.

[16] On the issue of public interest the plaintiffs first submit that there should be no order as to costs on the ground that the situation is in principle not so dissimilar to Lumber Specialties Ltd v Hodson⁴ where Hammond J considered that an application for judicial review was inevitable. While the plaintiffs acknowledge that their situation is very different from the circumstances in Lumber Specialties they nevertheless submit that it was inevitable that somebody would be required to test the restriction on judicial review and that the plaintiffs should not be saddled with the costs for having to be that somebody. Alternatively they argue that the 2B costs

should be reduced and draw attention to the judgment of Courtney J in M v Refugee Status Appeals Authority⁵ where costs were reduced based on the applicant’s circumstances of “hardship”.

[17] In opposing the reduction in costs the Minister submits that the plaintiffs did not need to test any jurisdictional issue by way of pre-emptory judicial review, that there was no indication from the Minister, from the IPT (so far as the Minister is aware) or from prior case law raising doubt about the IPT’s jurisdiction in this case. The Minister submitted that it cannot be said that the facts of this case were so extraordinary or the applicable law so uncertain that clarification from the High Court was necessary at this time.

[18] In public law cases as well as in other civil litigation the rule that costs follow result will generally be just between the parties.⁶ As Duffy J observed in Wong v Registrar of the Auckland High Court:⁷

It appears, therefore, that while there is an exception to costs in judicial review proceedings for cases of public interest, that exception should only apply to something that is truly in the public interest and not merely to the public’s benefit, such as the correct interpretation of a piece of legislation. It should also not arise out of a private interest.

[19] I do not consider that the present matter is one that could be described as truly in the public interest and it was not denied that the plaintiffs have very strong personal interests in the application. Consequently I do not consider that the circumstances of the present case warrant any reduction in the costs calculated on a

2B basis. Accordingly I award costs in favour of the defendant in terms of the

_{schedule annexed to the defendant’s memorandum dated 30 August 2013.}

Brown J