IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2019-409-000008
[2019] NZHC 1385	

BETWEEN	YI “CLAIR” YU
Applicant	
AND	IMMIGRATION PROTECTION TRIBUNAL
First Respondent

THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT
Second Respondent	

Hearing:	7 May 2019	
Appearances:	A M Toohey for Applicant
K Stephen Second Respondent	
Judgment:	18 June 2019	
Reissued:	4 July 2019	

JUDGMENT OF GENDALL J

Judgment recalled under “slip” rule and reissued 4 July 2019.

Introduction

[1]	Ms Yu (the applicant) applies for leave of the High Court to judicially review an appeal decision of the Immigration Protection Tribunal (the Tribunal).1 The decision of the Tribunal confirmed an earlier decision of Immigration New Zealand (INZ) declining the applicant a residence class visa which she sought on the basis of a skilled migrant category (an SMC visa).

1	Re Yu [2018] NZIPT 205228.

YU v IMMIGRATION PROTECTION TRIBUNAL [2019] NZHC 1385 [18 June 2019]

[2]	Two issues arise for determination here. The first is a jurisdictional question. The applicant applies for leave to judicially review the decision of the Tribunal under SS 247 and 249 of the Immigration Act 2009 (the Act). To bring judicial review proceedings like the present an applicant must obtain this Court’s leave. Any leave application must be filed within 28 days after the decision in question was notified or an extension of time sought during that period. This is a strict statutory timeframe with no discretion to extend the time once it has past. In the present case, the second respondent contends that no proper leave application has been filed and, therefore, no jurisdiction exists for this court to go further.

[3]	The second issue, which only arises here if this Court determines that there is a valid leave application filed and the jurisdiction matter noted above is therefore satisfied, is the question whether leave should be granted to the applicant to bring these review proceedings.

[4]	It is the applicant’s position that jurisdiction does exist here and that leave should be granted for the review proceedings to be brought. The second respondent’s answer to both question is, “no”. The first respondent has advised that it simply abides the determination this Court makes.

Background

[5]	The applicant, Ms Yu, is a 28-year old citizen of China. She has resided in New Zealand since 28 July 2008, on a series of student and short-term work visas. In May 2018, she applied to INZ for a resident visa under the skilled migrant category.

INZ’s decision to decline the application

[6]	INZ assesses applications for a SMC visa pursuant to s 72 of the Act on a points-based system allocated for qualifications, work experience and occupation pursuant to immigration instructions.2

[7]	In her application, Ms Yu stated that she was in skilled employment as the manager of a nine-unit motel in Christchurch. She claimed 50 points for skilled

2	Immigration Act 2009, s 72.

employment and 30 points for skilled employment outside Auckland. She outlined her role working at least 40 hours per week, between the times of 8 am and 8 pm. In support of her application the applicant submitted an employment agreement which stated she was employed as a “motel manager”. Her role however it seems was to work at the reception of the motel and oversee the work of two daily cleaning staff and a relief worker. She also did laundry, emails, payroll, general upkeep and organisation of the motel.

[8]	On 7 August 2018, INZ interviewed the applicant about her employment, and on 8 August 2018 wrote to her expressing concerns that she did not appear to be in skilled employment in a management role and therefore her employment did not provide a substantial match to the role of motel manager. This was because she was the sole employee who performed the tasks of a receptionist six days a week. Her representative made submissions in response.

[9]	In a letter dated 3 September 2018, the application for residence was declined by INZ because it determined that the applicant’s employment was not a substantial match to the Australian and New Zealand Standard Classifications of Occupations (ANZSCO) descriptions and core tasks of “Hotel or Motel Manager.” Instead, it held that her employment was a substantial match to “Hotel or Motel Receptionist.” Because of this, she did not have sufficient points for her application to succeed.

The Tribunal’s decision

[10]	The applicant appealed INZ’s decision to the Tribunal under s 187 of the Act. The question for determination before the Tribunal was whether the decision was correct in terms of the residence instructions applicable at the time the application for the visa was made. Or alternatively, if the special circumstances of the applicant were such that consideration of an exception to those residence instructions should be recommended.

[11]	The Tribunal found that INZ’s decision was correct. It recognised that there was no question that the applicant “as the only full-time employee in sole charge of the motel with no day-to-day involvement of the directors, was managing the motel.” However, the Tribunal noted the ANZSCO requirement was that “to be considered a

substantial match to an occupation, the tasks that are relevant to the applicant’s employment role must comprise most of that role.” (emphasis added).

[12]	The Tribunal stated that “most of that role” means that, as a minimum, the majority of the applicant’s time is spent undertaking ANZSCO core tasks. On the evidence as presented, the applicant had not established that the core tasks of Hotel or Motel Manager comprised most of her role. INZ had raised concerns with Ms Yu that most of her time was spent performing the tasks of a receptionist.

[13]	The Tribunal concluded therefore that the applicant had not been able to establish on all the evidence which was provided to it that the core tasks of Hotel or Motel Manager comprised most of her role. On that basis, the Tribunal found that INZ’s decision was correct.

Judicial review proceedings

[14]	On 8 January 2019, the applicant filed judicial review proceedings in this Court in the form of a Notice of Proceeding and Statement of Claim.

[15]	On 28 February 2019 the second respondent filed an appearance under protest. This was on the basis the applicant had not filed a leave application or sought an extension of time to do so within 28 days as required by s 249(4) of the Act.

[16]	At that stage the second respondent was unaware a statement of claim had been filed on 8 January 2019. That statement of claim was not served on the second respondent, but a subsequent one, dated 28 January 2019 was.

[17]	By Minute of 4 March 2019 Osborne J confirmed the single document filed at that point was the statement of claim dated 8 January 2019. A first amended statement of claim dated 3 April 2019 has since been filed and served. The applicant has responsibly accepted first, that these documents cannot form the basis of a leave application, and secondly that, as she was unrepresented until recently, she did not adhere to the requirement to file an application for leave.

The law

[18]	A party dissatisfied with a final determination of the Tribunal may appeal to the High Court on a point of law of general or public importance and/or may commence “review proceedings”.3 The Act requires that the applicant must first obtain leave to bring the appeal or judicial review proceeding, and to seek such leave, or an extension of time in which to do so, within the 28-day period. The relevant provisions in the judicial review context as I note above are ss 247 and 249 of the Act:

247	Special provisions relating to judicial review

(1)	Any review proceedings … must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless—

(a)	the High Court decides that, by reason of special circumstances, further time should be allowed; or

(b)	leave is required, under section 249(3), before proceedings may be commenced (in which case section 249(4) applies).

...

249 Restriction on judicial review of matters within Tribunal’s jurisdiction

(1)	No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

(2)	No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.

(3)	Review proceedings may … only be brought … if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

(4)	An application to the High Court for leave to bring review proceedings must be made—

(a)	not later than 28 days after the date on which the Tribunal’s determination … is notified to the person bringing the proceedings; or

(b)	within such further time as the High Court may allow on application made before the expiry of that 28-day period.

3	Immigration Act 2009, ss 245, 247 and 249.

...

(6)	In determining whether to grant leave for the purposes of this section, the court … must have regard to—

(a)	whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b)	if paragraph (a) applies, whether those 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 for review.

(7)	A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.

[19]	The second respondent submits that s 249 of the Act applies here. She says courts have held that the time frames set out in this provision are jurisdictional and cannot be extended unless an extension is sought within that time frame. A number of cases are cited in support of this.4 In the present case, the second respondent says the Court has no jurisdiction to determine any request for leave unless the applicant can avoid the procedural bar.

The validity of the leave application

[20]	The point of contention between the parties is whether those documents here which were filed in time can be construed as a leave application.

[21]	The applicant submits that the Notice of Proceeding and Statement of Claim filed on 8 January 2019 were appropriate to constitute a “leave application” and they were filed within the statutory time frame. The second respondent accepts these documents were filed within the 28-day time limit but says they did not constitute a valid leave application under s 249(4) of the Act.

[22]	The applicant acknowledges that the Statement of Claim in question here is not expressed as an application for leave. However, she says the grounds upon which

4	Devi v Immigration and Protection Tribunal [2015] NZHC 2452 at [1], [30] and [31]; Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 2337; X v Immigration and Protection Tribunal [2014] NZHC 1647; D v Immigration and Protection Tribunal [2015] NZHC 2458 at [18], D v Immigration and Protection Tribunal [2016] NZCA 320; Kumandan v Immigration and Protection Tribunal [2017] NZHC 890.

leave is sought are discernible from the documentation filed, which contains detail of the decisions sought to be reviewed and the basis upon which they are said to be unfair and/or unreasonable. In that sense, Ms Yu seeks that the Court amend any defects in her initial documentation. As to this, she relies on Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment.5 In this case, this Court held that the Court has jurisdiction to amend defects in the documentation already filed to constitute a leave application. She says she has filed an affidavit explaining the circumstances in which she sought and failed to obtain legal assistance in filing this proceeding.

[23]	In certain circumstances, a court may construe an in-time document to constitute the required leave application. Both the applicant and the respondent here accept that the Court of Appeal in D v Immigration and Protection Tribunal sets out the relevant test for whether a document complies.6 That test states that whatever the form of the document or documents relied upon, at the very least they must provide a basis on which the Court may determine the matters in s 249(6) and (7) of the Act.

[24]	The applicant maintains that in relation to s 249(6)(a), the decision of the Tribunal is not amenable to an appeal. This is because the decision of the Tribunal does not give rise to a question of law that could be appealed to this Court. In response, the second respondent says there is no indication in the statement of claim as to why the applicant says these proceedings would involve issues that could not be adequately dealt with in an appeal.

[25]	The statement of claim makes no mention of whether there is a right of appeal. Effectively, Ms Yu has sought to remedy this through submissions of her counsel here. However, the fact remains that a review application must set out that the decision in question cannot be appealed and provide an explanation as to why this is so.

[26]	In relation to s 249(6)(b), the question is whether the issues are by reason of their general or public importance or for any other reason issues that ought to be

5	Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 1475.
6	D v Immigration and Protection Tribunal [2016] NZCA 320 at [11] – [12].

submitted to the High Court for review. The second respondent says there is no indication in the filed document as to why, if this were a matter that could only be considered on review, it does involve issues that are of general or public importance or matters that for some other reason ought to be submitted to the High Court for decision. The second respondent says that simply setting out grounds for review in a statement of claim is not sufficient to constitute an argument for the purposes of this leave ground. The applicant has not given any indication why the issues raised may have wider significance, or why, for some other reason the Court should consider the review.

[27]	In attempting to address this issue, the applicant points to a statement of Dunningham J in Minister of Immigration v Q:7

The question of how our immigration laws are applied is of general importance, and not just of importance to the parties involved in any particular case. It is a matter of public importance that the Tribunal makes humanitarian exceptions to liability for deportation correctly and according to law, and I consider that the Tribunal would be assisted if there was a clear statement of law in exactly how absence of fault is to be taken into account under s 207.

[28]	I accept that the effective administration of immigration law is of public interest. However, the applicant, as I see it, has failed to specify what aspect of that administration is ineffective and which is in the public interest. She has not met the requirement in s 249(6)(b).

[29]	In saying that I note also that in D the Court of Appeal concluded that “even on the most generous view of it, none of the documents in the present case may be regarded as the required application for leave.” In that case the documents filed by the applicant were a Notice of Proceeding, Statement of Claim and an affidavit in support. The Court of Appeal found these documents did not provide a basis on which the Court could determine the s 249(6) and (7) matters. Further, when asked, it seems counsel in that case were unable to identify an issue that could not be adequately dealt with on an appeal, or why it would be important.8

7	Minister of Immigration v Q [2018] NZHC 1071 at [40].
8	D at 6 above at [12].

[30]	The applicant also endeavours to rely on Kartseva for the proposition that a failure to address the factors laid out in s 249(6) does not mean the Court is unable to assess whether the requirements for granting leave are met. To that the second respondent maintains that this must be read in light of the Court of Appeal’s decision in D. This decision post-dates Kartseva and as I note above confirms that whatever the form of the document or documents relied upon “at the very least they must provide a basis on which the Court may determine the matters in s 249(6) and (7).” I am satisfied here the applicant’s documents do not do so. I note also that, in any event, the situation in Kartseva differs significantly from the present case in that one of the documents filed in time in that case was entitled “Notice of Application for leave to Apply for Judicial Review” and the Court there had concluded at [19] that the lawyer (notwithstanding certain procedural defects in the document) had in fact “filed an application seeking leave for judicial review”.

[31]	I have further regard to certain principles outlined in D v Immigration and Protection Tribunal which include:9

As for r 1.9 [the provision in the High Court rules for repairing defective provisions], and as Gilbert J said, the omission in this case is not a defect or error in the pleadings or procedure, and nor is counsel seeking an amendment to pleadings or procedure that the Court has power to make. The Court does not have power to apply a rule or to exercise inherent jurisdiction to circumvent the requirements of legislation, and that is essentially what is proposed.

[32]	This is not a case, as I see the position, where minor procedural defects are being fixed. As the Court in D also held, if s 249(6) is not complied with:

[5]  The provision is quite clear. The proceedings seeking a judicial review of a Tribunal's hearing cannot be brought without leave and the application for leave must be satisfied no later than 28 days after notification of the Tribunal's decision. Unless an application for extension of time is filed within the time limit, the Court has no power to extend the timeline or to consider an application for leave filed out of it. It follows that the Court cannot entertain Ms D’s application for 'out of time leave' to bring judicial review proceedings.

[33]	Parliament's intention is that, in circumstances such as the present, leave must be sought before judicial review proceedings are commenced. The purpose of s 249 is to ensure that leave applications contain the required information, namely whether

9	D v Immigration and Protection Tribunal [2016] NZCA 320 at [17].

they are appropriate for an appeal, or whether they are issues that ought to be submitted to the High Court for review by virtue of their general or public importance. They must then set out the issues to be decided.

[34]	That did not happen in this case, it appears because of oversight. I have some sympathy for the applicant in the position she finds herself here, but the time limit is strict. This Court does not have the power to amend unless an extension of time is sought by application within the time limit.

[35]	There is no valid in time leave application here and therefore no jurisdiction exists for this Court to proceed further. The present leave application must be dismissed. An order to take this effect follows.

The merits of the leave application

[36]	Despite having reached the finding outlined at [35] above, which effectively disposes of this matter, for completeness and in case I may be wrong on this jurisdiction aspect, I briefly turn to address the merits of the leave application itself. On this, the applicant advances the following grounds as a basis for judicial review in her 3 April 2019 amended statement of claim:

In relation to the first decision

a.	Breach of natural justice: Immigration failed to properly interview the applicant to obtain relevant information, and was denied the opportunity to comment on the particular conclusions of Immigration;

b.	Breach of legitimate expectations/invalidity: the applicant had a legitimate expectation that Immigration would continue to consistently recognise her employment as that of a skilled migrant, as it had done on previous occasions;

c.	Unfairness/unlawfulness and/or unreasonableness: Immigration failed to apply the instructions, failed to take into account the applicant’s work experience and qualifications, and the information provided by the applicant as to her day to day tasks and took into account the irrelevant consideration of the size of the motel complex.

In relation to the second decision

d.	Breach of natural justice: the Tribunal did not invoke its powers to accept further evidence of the accountant dated 20 September 2018, and to seek further evidence, which it should have done given the lack of evidence before Immigration;

e.	Unlawfulness and/or unreasonableness: The Tribunal failed to consider the proper scope and purpose of the Immigration Act, made erroneous assumptions as to the time the applicant spent on the core tasks matching the ANZSCO description of the occupation of motel manager, without an evidential basis; and erred in finding that no special circumstances existed to warrant a recommendation that the Minister consider issuing a visa as an exception to the residence instructions.

The first decision

[37]	In relation to the alleged breach of natural justice, I accept here that INZ’s process involved adequate procedural fairness and properly assessed and determined the applicant’s residence application. The applicant was given advance warning of what she was required to establish and was provided with several opportunities to present her case and submit evidence.

[38]	In relation to the alleged breach of legitimate expectation, the applicant asserts that she had an expectation that INZ would continue to consistently recognise her employment as that of a skilled migrant being a motel manager which it is said INZ had done on previous occasions. In my view there can be no legitimate expectation here of such. INZ must be free to perform the relevant immigration tests as and when they arise and I am satisfied that occurred here.

[39]	I similarly find that no unfairness, unlawfulness and/or unreasonableness occurred here. INZ awarded points in its decision on the basis of Ms Yu’s qualifications. The assessment INZ had to undertake was focused on her current employment, and the tasks she was performing in relation to that position. INZ did not fail to properly consider the information provided by the applicant as to her work tasks nor did it make erroneous assumptions in relation to the applicant’s day to day tasks in an unfair manner. It acted in line with existing decisions. I find the assessment of the evidence was not unreasonable and does not meet the Wednesbury standard of unreasonableness required.10

10	WK v Refugee and Protection Officer [2018] NZCA 258, [2018] NZAR 1146 at [51].

The second decision

[40]	As to the second decision the applicant challenges here, being the appeal decision of the Tribunal, I find there was no breach of natural justice. Section 226 of the Act means it was the applicant’s responsibility to establish her claim, and to put before the Tribunal all information, evidence and submissions she wanted considered. Section 228(2) provides that the Tribunal is not obliged to seek anything further than what is provided to it. I am satisfied there was no natural justice breach in the Tribunal failing to admit into evidence the material from the employer’s accountant. Section 189(3) governs what evidence the Tribunal can consider on appeal. The Tribunal was right to conclude it could not admit that evidence.

[41]	The applicant further alleges the Tribunal erred in not finding special circumstances existed here such as to warrant a recommendation that the Minister consider issuing a visa as an exception to the residence instructions. In finding that there were no such special circumstances, the Tribunal referred to the leading case, Rajan v Minister of Immigration.11 There, the Court of Appeal held that those circumstances refer to “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal.” The Tribunal then applied this test to the applicant’s circumstances in an orthodox way. It considered her time spent in New Zealand, her lack of family connection here, and the fact she had produced no evidence of settlement/community connections. Again, s 226 of the Act required the applicant to establish her claim and to put before the Tribunal all information, evidence and submissions she wanted considered.

[42]	It was open to the Tribunal to conclude that her circumstances were not uncommon and did not distinguish her from many  other  people  who  come  to  New Zealand to study and who wish to stay more permanently, and who have remained here lawfully for a significant period of time. There is nothing to suggest that the Tribunal’s decision was unreasonable.12

11	Rajan v Minister of Immigration [2014] NZAR 615 (CA).
12	WK v Refugee and Protection Officer [2018] NZCA 258, [2018] NZAR 1146 at [51].

[43]	There is also here no general or public importance to support the grant of leave under s 249(6)(b). The issues in this case do not go beyond this particular applicant.

[44]	In my view also it could not be said that “any other reason” exists to warrant the grant of leave in this case. Even on a more liberal approach, this is not the kind of case this contemplates. There is no error capable of bona fide and serious argument. The consequences for the applicant are not as severe as those that are present in some of the cases favouring a more liberal approach. My understanding here reinforced by counsel for the second respondent, is that the applicant can continue to work in New Zealand on temporary work visas, and is able to reapply for residence on the basis of skilled employment in the future if she wishes to. And, no international rights issues nor children are involved here.

[45]	As this discussion makes clear, it is my view that even had there been a valid application here I still would not have granted the applicant’s application for leave to judicially review the Tribunal’s decision on the merits.

Result

[46]	Because leave was not applied for and no extension of time was sought within the 28 day period, the Court has no jurisdiction to determine the present application and it is dismissed. An order to this effect is now made.

[47]	As I did not have any submissions on costs, costs are reserved. In the event the parties are unable to agree on any costs that may be sought, they may file memoranda (sequentially) which are to be referred to me and I will decide the question of costs on the basis of those memoranda and all the material then before the Court.

...................................................
Gendall J

Solicitors:
Anne Toohey, Barrister, Christchurch Crown Law Office, Wellington