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Judicial review - commencement of proceedings within three months - whether special circumstances for allowing further time - Immigration Act 1987, s 146A

The decision of the Refugee Status Appeals Authority (RSAA) was made on 21 March 2007. The review proceedings were not filed until 17 September 2007, almost six months after the decision was released. The extension sought would almost double the time limit set by the statute.

The plaintiff and his various advisers were aware that there was a time limit. The decision of the RSAA was couriered to his lawyer on 21 March 2007. Consideration was given to pursuing judicial review proceedings at a meeting in early June 2007. The lawyer advised the plaintiff and his advisers of the existence of the time limit at that meeting. They were expressly advised by email on 14 June 2007 that there were not many weeks to go, although that statement was inaccurate because there were then only six days to go. Nevertheless it did not seem to have occurred to anyone to check the position and the time limit was allowed to pass. There was no explanation for the further delay until 17 September 2007 when the review proceedings were filed.

Two factors were said to amount to special circumstances accounting for the failure to apply promptly for judicial review. First, the plaintiff's solicitor had failed to advise the plaintiff, and his other advisers, that there was a deadline for filing, or what that deadline was, and when advising the plaintiff, gave inappropriate weight to alternative actions in preference to seeking review. Second, the plaintiff placed substantial reliance (reasonable in the circumstances but unusual or uncommon generally) on third parties in relation to his legal rights.

1 There was no adequate explanation or excuse for the delays which had occurred. The application failed on the facts. The plaintiff had not got over the evidential threshold of establishing special circumstances (see para [28]).

2 In any event, the application failed as a matter of law. An applicant cannot assert as a special circumstance the fact that he was not aware of the statutory time limit (see paras [29] and [30]).

3 The fact that an applicant has placed substantial reliance on third party advice will not generally be considered to amount to special circumstances (see paras [31] and [32]).

Fang v Removal Review Authority (High Court Wellington, CIV2005-485-1257, 5 August 2005, MacKenzie J) referred to.

4 A decision to pursue alternatives (writing to the Minister of Immigration and appealing to the Removal Review Authority) cannot as a matter of law constitute a proper excuse for the delay that occurred (see para [34]).

Kesonsung v Minister of Immigration (High Court Auckland, CIV2006-404-1597, 22 September 2006, Allan J) and Yu & Cha v Chief Executive Department of Labour (High Court Auckland, CIV2006-404-5702, 13 November 2006, Winkelmann J) referred to.

5 On the facts, the delay was long. No proper excuse had been advanced for it. There was no need to consider the merits of the substantive application (see paras [36] to [38]).

WYLIE J [1] The plaintiff M R has filed applications for review in respect of decisions made by the Refugee Status Appeals Authority and the Removal Review Authority.

Background

[2] M R is a citizen of the Islamic Republic of Iran. He arrived in New Zealand in August 2003. He had a visitor’s visa that had been granted to him because he was engaged to a New Zealand citizen. She was the daughter of one of his mother’s relatives, who, along with his family, had come to New Zealand as United Nations’ sponsored refugees some years earlier. M R married his fiancée in a civil ceremony on 25 August 2003. The marriage was unsuccessful and the parties separated permanently in July 2004.

[3] M R filed a refugee claim in September 2004. The claim was made in large part on the basis that, while in New Zealand, he had converted to Christianity, and that this placed him at risk of being seriously harmed were he to return to his home country. The claim was declined by a refugee status officer. M R appealed to the Refugee Status Appeals Authority. In a decision dated 21 March 2007 the Authority dismissed the appeal and declined him refugee status.

[4] M R’s permit to stay in New Zealand was revoked with effect from 23 April 2007. Thereafter he was in the country unlawfully and he had an obligation to leave unless he was granted a permit: s 46 Immigration Act 1987. He appealed to the Removal Review Authority against the requirement that he leave New Zealand pursuant to s 47 of the Immigration Act 1987. The appeal was dismissed in a decision dated 27 November 2007 because the Authority considered that the first statutory requirement contained in s 47 (3) had not been met. It took the view that there were no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for M R to be removed from New Zealand.

146A Special provisions relating to judicial review of decisions under this Act

(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced within 3 months after the date of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.

[7] The notice of proceeding and statement of claim seeking to review the decision of the Refugee Status Appeals Authority were filed on 17 September 2007. At the same time, an interlocutory application was filed seeking leave to bring the proceedings out of time.

[8] The notice of proceeding and statement of claim seeking to review the decision of the Removal Review Authority were filed on 29 February 2008. Counsel for the second defendant filed a memorandum dated 20 March 2008 submitting first, that the plaintiff was out of time to bring the proceedings as of right, and secondly, that application needed to be made to the Court for leave to extend the time allowed. On 2 April 2008 an interlocutory application was filed seeking leave to bring the proceedings out of time pursuant to s 146A. However, on the following day a memorandum was filed on behalf of M R asserting that the deadline contained in the Immigration Act had not in fact been breached. An affidavit from his counsel, Mr Walden, dated 3 April 2008 was filed in support. That affidavit set out how time had been calculated.

[9] The issue of how the three month period detailed in s 146A should be calculated has not previously been expressly considered and the point was argued before me. Helpfully the second defendant did not object to counsel for M R continuing to act notwithstanding he had sworn an affidavit in the proceeding.

Refugee Status Appeals Authority

[11] As noted above s 146A requires that any review proceedings be commenced within three months after the date of the decision challenged, unless this Court decides that, by reason of special circumstances, further time should be allowed. The only issue in relation to the proposed review of the Refugee Status Appeals Authority decision is whether or not special circumstances exist.

[12] The leading case on s 146A is the decision of the Court of Appeal in Rajan v Minister of Immigration [2004] NZAR 615. In that case Mr & Mrs Rajan sought leave to judicially review a decision made by the Associate Minister of Immigration. Their application was filed a month late. The Court – per Glazebrook J – noted as follows:

[24] The term “special circumstances” is a commonly used phrase in the New Zealand statute book. It requires circumstances that are uncommon, not commonplace, out of the ordinary, abnormal – see Cortez Investments Ltd v Olphert & Collins [1984] 2 NZLR 434, in which this Court considered the meaning of special circumstances in the context of s 151 of the Law Practitioners Act 1972. Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s 146A time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans’ application was filed one month late and thus would require an extension of one-third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay.

[13] In the present case the delay by M R in filing the application for review was long. The Refugee Status Appeals Authority’s decision was made on 21 March 2007. The review proceedings were not filed until 17 September 2007 – almost six months after the decision was released. The extension sought would almost double the time limit set by the statute.

[14] M R’s counsel identified two factors which were said to amount to special circumstances accounting for the failure to apply promptly for judicial review. They were as follows:

a) his solicitor had failed to advise him, and his other advisers, that there was a deadline for filing, or what that deadline was, and when advising him, gave inappropriate weight to alternative actions in preference to seeking review; and

b) he placed substantial reliance (reasonable in the circumstances but unusual or uncommon generally) on third parties in relation to his legal rights.

[15] Mr Walden expanded on these two points in his submissions and referred me to the various affidavits which had been filed by and on behalf of M R.

[16] M R filed an affidavit in support of his interlocutory application. He asserted that he had relied on the judgment of a Reverend S to co-ordinate the application for review, and that he believed that Reverend S had sought legal advice from a member of his congregation.

[17] An initial affidavit was also filed by Reverend S. Unusually it was annexed as an exhibit to the plaintiff’s affidavit. That is an unfortunate practice and it should not have occurred. That issue aside, Reverend S recorded that he had had discussions with M R’s lawyer - a Mr H - and that there were three possible courses of action that could be taken on M R’s behalf, namely:

He deposed that his impression was that there was only a short time constraint for an appeal to be made to the Removal Review Authority, but that there was plenty of time to prepare a case for judicial review of the decision of the Refugee Status Appeals Authority.

[18] An affidavit was also filed by Mr O, a solicitor, and the treasurer of the Church where the Reverend S is the Vicar. Mr O’s recollection was that Mr H did not tell M R, or the Reverend S, that there was a relatively short timeframe within which review proceedings had to be commenced, or when that period expired. He asserted that it was not until the 7 August 2007 that Mr H told him and the Reverend S that the timeframe for initiating a judicial review proceeding was three months from the date of the decision, and that it had expired in June 2007.

[19] I did not find any of these affidavits particularly helpful. Little of relevance was said directly by the plaintiff. The Reverend S did not attach copies of relevant emails. Rather that was left to Mr O, and notwithstanding that he was not the recipient of the emails. Further, Mr O expressed opinions on matters which were not within his knowledge.

[20] Perhaps in recognition of these matters, a further affidavit from Reverend S was filed, where he deposed that he had had a discussion with M R’s solicitor as to the courses of action open to the plaintiff following the decision made by the Refugee Status Appeals Authority. It was decided to proceed immediately with an appeal to the Removal Review Authority, and also to write a letter to the Minister of Immigration. The Reverend S records his belief that at the time there was no time constraint on the application for review. It is clear that there were financial constraints but it seems that they were resolved in early July.

[21] It is also clear from the papers filed that Mr H sent an email to the Reverend S on 14 June 2007. That email read as follows:

I had a good look at the Immigration Act. The right to appeal to the High Court must be within three months period. I do not think that [M R] has many weeks to go. Could you please discuss the matter with other responsible Church members whether we can go ahead with JR, and the costs.

The reference to the right of appeal can only have been a reference to an application for review. Similarly the initials “JR” must refer to judicial review. This email was sent prior to expiry of the three month period. The Reverend S replied requesting a preliminary meeting, but that meeting did not take place. It does not appear that anybody endeavoured to arrange an alternative time.

[22] On 21 June 2007 Mr H sent a further email to the Reverend S, advising that he and M R were awaiting the Reverend S’s comments on a draft letter to the Minister of Immigration which Mr H had prepared. The email also requested the Reverend S’s decision about the “JR”. The Reverend S responded on 22 June 2007 proposing that the parties meet.

[23] On 1 July 2007 Mr H responded, recording that it had been approximately a month since the parties had decided to send a letter to the Minister of Immigration, and that he and M R were awaiting a response. The email also pointed out that M R was unable to file review proceedings in the High Court, because the time period had elapsed. The email set out s 146A, and referred to the Rajan decision.

[24] The Reverend S deposed that this email arrived as an attachment, and that he could not recall opening the same. In any event, he did not reply.

[25] While Mr H’s emails are not well drafted, it is clear that M R, and his advisers, were aware, and from an early stage, that there was a time limit for bringing the judicial review proceedings.

[26] This was confirmed in an affidavit filed by Mr H. He refers to a meeting held on or about 2 June 2007, where he met with M R, the Reverend S, and Mr O. He deposed as follows:

[27] On the facts, it seems clear that M R, and his various advisers, were aware that there was a time limit. The Authority’s decision was couriered to Mr H on 21 March 2007. Consideration was given to pursuing judicial review proceedings at a meeting in early June 2007. Mr H advised M R and his advisers of the existence of the time limit at that meeting. They were expressly advised by email on 14 June 2007 that there were not many weeks to go. That statement was inaccurate, because there were then only six days to go. Nevertheless it does not seem to have occurred to anybody to check the position, and the time limit was allowed to pass. When the position was checked, Mr H advised the Reverend S. For reasons which are not satisfactorily explained in his affidavit, the Reverend S does not seem to have opened the attachment in which this advice was given. There is nothing in the affidavits suggesting when or if the attachment was opened, although I note that Mr O does refer in his affidavit to an email from Mr H dated 7 August 2007, which again set out the relevant part of s 146A, and noted that one possibility might be to then file an application, and assert special circumstances. There is no explanation at all for the further delay until 17 September 2007 when the review proceedings were filed.

[28] In my view there is no adequate explanation or excuse for the delays which have occurred. The application fails on the facts. M R has not got over the evidential threshold of establishing special circumstances.

[29] Further, in my view the application fails as a matter of law. The contention that an applicant who was not aware of the statutory time limits can assert a special circumstance was addressed by O’Regan J in Achhido v Governor of Mt Eden Prison [2001] NZAR 584 at [26]:

… I am mindful of the fact that the long title to the Immigration Amendment Act 1999 refers to an objective of improving the effectiveness of the removal regime for persons unlawfully in New Zealand by streamlining procedures, ensuring a higher level of compliance and that persons who do not comply are not advantaged in comparison with persons who do comply. It seems to me that a simple assertion that an applicant was not aware of the need to bring an application for judicial review within the time period is not sufficient to amount to special circumstances. The plaintiffs’ own evidence reveals that they made minimal efforts to contact their counsel or find out the time limits from another source. I would be concerned that the contrary finding would give applicants an incentive not to pursue their appeal and review rights until the eleventh hour, which is what s 146A appears to be aimed at preventing. Accordingly, I do not believe that any of the plaintiffs have made a case for the extension of time.

[31] In addition, the fact that an applicant has placed substantial reliance on third party advice will not generally be considered to amount to special circumstances. I refer to the judgment of MacKenzie J in Fang v Removal Review Authority HC Wellington, CIV 2005-485-1257, 5 August 2005 at paragraph [8]. In that case the plaintiffs’ advisers had not proceeded in a timely fashion, but it was argued that they had been involved in considering other options before the review proceedings were filed. The Court noted as follows:

… As the Court of Appeal noted in Rajan, the circumstances must be something which is out of the ordinary or abnormal. I do not consider that the explanation given for the failure to meet the time limits falls within that category. It is unfortunate if the plaintiffs are deprived of a right of review which they might otherwise have by reason of steps not being taken in a timely fashion by advisers; but the time limit in s 146A needs to be seen in the context of the legislation, which imposes in general strict time limits, with limited provision for extension of those time limits. I am not satisfied that the explanations given for the delay fall within the category of special circumstances.

[32] I also agree with His Honour’s reasoning. It is unfortunate that M R relied substantially on his advisers, but that does not amount to special circumstances.

[33] It is also asserted that Mr H, when advising M R, gave inappropriate weight to alternative actions in preference to seeking review.

[34] There is simply no evidential foundation for this submission. Further, the decision that was made to pursue alternatives – namely writing to the Minister of Immigration, and appealing to the Removal Review Authority - cannot as a matter of law constitute a proper excuse for the delay that occurred. I refer to Kesonsung v Minister of Immigration HC Auckland, CIV 2006-404-1597, 22 September 2006, Allan J and to Yu & Cha v Chief Executive Department of Labour HC Auckland, CIV 2006-404-5702, 13 November 2006, Winkelmann J.

[35] In my view M R has failed to establish any special circumstances, and no extension to the three month time limit should be allowed in respect of the challenge to the Refugee Status Appeals Authority’s decision.

[36] Mr Walden did endeavour to press on me the merits of the proposed review application.

[37] The Court of Appeal in Rajan considered whether the merits of a proposed review application should be considered in the context of an application under s 146A. It noted as follows:

[28] The final question is whether the merits of the review application can be considered in this context. The Legislature has not limited the factors that can be taken into account in assessing whether there are special circumstances for s 146A purposes. We therefore do not accept the Crown submission that the merits of the review proceedings are not relevant except where the case is clearly hopeless. We do accept the Crown submission, however, that it is inappropriate in this context for the judicial review proceedings to be argued fully where a question of leave under s 146A arises. This would render s 146A nugatory.

[29] Brief examination of the merits may in some cases be called for ...

[30] Examination of the merits could tip the balance in a marginal case. For example, where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. We doubt, however, that even very strong merits could ever justify an extension if (as here) there is no proper excuse for the delay in filing.

[38] Here the delay is long. No proper excuse has been advanced for it. There is no need to consider the merits of the substantive application and I do not do so.

Removal Review Authority

[39] The first issue in this context is to determine whether or not M R is out of time. The Removal Review Authority’s decision was made on 27 November 2007. The application for review was filed on 29 February 2008.

[40] An affidavit was filed by Mr Walden explaining how time was calculated. He made comprehensive submissions to the same end. In essence he argued that the three month period referred to in s 146A must be calculated by reference to s 2(2) of the Immigration Act. That subsection reads as follows:

Every period of time prescribed by any of the provisions of this Act for the making of an application or the lodging of an appeal, not being an appeal to the High Court, shall be reckoned exclusive of any day, not being a Saturday or a Sunday, that is a public holiday or a [Departmental] holiday.

He noted that the subsection commences with the words “Every period of time …” and submitted that therefore it was intended to have broad scope. He went on to argue that the time limit in s 146A is a period of time prescribed by the provisions of the Immigration Act, and that an application for review under the Judicature Amendment Act 1972 is an application in terms of s 2(2) of the Immigration Act. It was his argument that s 2(2) is not restricted to applications made under the Immigration Act, and that there is no basis for reading down the wording used in the section. It was his submission that the intent of s 2(2) is to extend any time period prescribed under the Immigration Act by any day that is a public holiday or a departmental holiday. He accepted that the words public holiday are not defined in the Immigration Act, and submitted that they should bear the meaning given to them in s 44(1) of the Holidays Act 2003. He also accepted that there is no statutory definition of the words “Departmental holiday”, and submitted that in the absence of definition, guidance should be taken from the practice of the Department. He referred to its present Appeal Guide and to its website, and noted that over the 2007-2008 holiday period, Immigration New Zealand’s Auckland offices were closed between 24 December 2007 and 2 January 2008. In reliance on these various sources he submitted that it was the practice of Immigration New Zealand to close its offices between Christmas Day and New Year’s Day, and that those days are departmental holidays.

[41] On this basis, and on Mr Walden’s calculation, the three month period ran from 27 November 2007 and expired on 8 March 2008. The 8 March 2008 was not a working day, and relying on s 35(6) of the Interpretation Act he submitted that the three month period extended to the next working day – namely 10 March 2008.

[43] Section 146A refers to “months”. There is no definition of the word month in the Immigration Act. The word is, however, defined in the Interpretation Act 1999 s 29, as meaning a “calendar” month. Section 4 of the Interpretation Act provides that it applies to an enactment that is part of the law of New Zealand, unless the enactment provides otherwise, or the context of the enactment requires a different interpretation.

[44] The Immigration Act does not provide otherwise. Section 2(2) refers to the making of an application, or the lodging of an appeal, not being an appeal to the High Court. The Act provides in a number of contexts for the making of applications and the lodging of appeals. Clearly time periods provided by the Immigration Act for the making of applications, or for the lodging of appeals under that Act, are caught by s 2(2). However an application for review is not an application made under the Immigration Act. Rather it is brought pursuant to the provisions of the Judicature Amendment Act 1972.

[45] Nor does the context of the Immigration Act require that a different interpretation be given to the word “month” from that specified in the Interpretation Act. Indeed the context suggests that the meaning given to the word “month” by the Interpretation Act should be preferred:

a) Section 146A refers to “review proceedings”. The word application is not used in the section. The words review proceedings are defined in s 2(2) of the Immigration Act by reference to the Judicature Amendment Act 1972, the prerogative writs and applications for declaratory judgment. This supports the view that s 2(2) was not
intended to catch applications for review to the High Court;

b) Section 2(2) excludes from calculation departmental holidays. This is understandable when the Department is involved directly in the proceedings. Applications to the High Court do not require that the Immigration Department be open. With applications for review there is no obvious reason for excluding departmental holidays from the calculation of the three month period specified in s 146A. The submission that this should occur, if accepted, would require complicated calculations such as those undertaken by Mr Walden. Further, the problem would be exacerbated because, as I understand it, the Immigration Service’s departmental holidays vary from place to place. Mr Walden advised me that there are different office hours observed in, for example, Sydney, Singapore, and Nuku’alofa.

[46] It follows in my view that the application for review of the Removal Review Authority’s decision was lodged out of time. The three (calendar) month period provided for in s 146A expired on 28 February 2008. The proceedings were filed on 29 February 2008.

[47] The delay is very short and the second defendant accepted that there is an explanation for it in the affidavit filed by Mr Walden. He was asked to advise on the timeframe and he did so. He advised that the final date within which any review proceedings had to be filed was 1 March 2008. He gave this advice on a conservative calculation, on the basis that there were five public holidays, and only one departmental holiday.

[48] In my view Mr Walden was wrong in his calculation, but clearly the delay is very short indeed and is explained by his mistaken reliance on s 2(2) of the Immigration Act.

[49] While the cases suggest an error by an applicant’s adviser will not generally amount to a special circumstance, I accept that the error here made does provide an excuse for the limited delay which occurred. The second defendant also accepted this. The sole ground advanced by the second defendant for opposing leave being granted was that the substantive merits were wholly absent. Indeed I was told that should leave be granted, consideration would be given to a strike-out application.

[50] The application for review of the Removal Review Authority’s decision asserts that the Authority erred in law. It is alleged that the Authority:

a) breached M R’s legitimate expection that the Authority would have regard to all material matters relevant to the Refugee Status Appeals Authority’s decision;

b) should, when having regard to the Refugee Status Appeals Authority’s decision, also have had regard to the grounds of the proposed review, and realised that those grounds raise substantive issues of natural justice which if proved correct might upset the decision;

c) erred by failing to take into account the proposed review of the Refugee Status Appeals Authority’s decision;

d) made a mistake of fact, because the Authority’s reliance on the decision of Refugee Status Appeals Authority’s decision was determinative of the applicant’s credibility;

e) failed to take into account all relevant circumstances, in particular that the Refugee Status Appeals Authority’s decision may have been fundamentally flawed;

f) made a decision which was manifestly unreasonable.

[51] In my view any application for review relying on these grounds is doomed to fail. I appreciate that the pleadings could be amended if leave were to be granted, but on the submissions made to me by Mr Walden, it is difficult to see that any amendment would be likely to be any more successful.

[52] It is not the Removal Review Authority’s function to sit on appeal from, or review of, a decision of the Refugee Status Appeals Authority. Rather s 129Q(5) of the Immigration Act provides that a decision of the Refugee Status Appeals Authority is final (subject of course to any review by this Court).

[53] Further, M R’s pleading provided no details of the alleged deficiencies or unfairness by the Authority. Indeed it seems that the Authority accorded M R every opportunity to address the issues he now seeks to raise. It is clear from the Removal Review Authority’s decision that it wrote to M R on 16 October 2007 – some weeks before it delivered its decision – inviting submissions and evidence on whether it should rely on the Refugee Status Appeals Authority’s findings. No response was received. Given this, any attack based on breach of the rules of natural justice, or on breach of legitimate expectation must be doomed to fail.

[54] In my view it is inconceivable that the Removal Review Authority could be found to have committed a reviewable error of law when it took into account the Refugee Status Appeals Authority’s findings. As a matter of law it was entitled to do so: see Talukder v Removal Review Authority [2000] NZAR 194. Further, it was the responsibility of M R as the appellant before the Authority to provide all relevant information, evidence and submissions to the Authority in accordance with s 50 (2)(a)&(b) of the Immigration Act. He failed to do so.

[56] I decline to allow further time for the filing of the application for review of the Removal Review Authority decision.

Summary

[57] The interlocutory applications seeking leave to file the review proceedings out of time are declined in both cases.

[58] The second defendant sought costs. No reason was put forward as to why costs should not be granted, and accordingly I direct that the plaintiff should pay costs to the second defendant calculated on a 2B basis. Such costs are to be paid within fourteen (14) days of this decision. If the parties are unable to agree on quantum, I reserve leave to file the necessary memoranda within ten (10) days of the date of release of this judgment.

Solicitors for the plaintiff: Simpson Dowsett Mackie (Auckland)
Solicitors for the second defendant: Meredith Connell (Auckland)