RAM CHANDER DAHIYA Applicant. CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Similar documents
IN THE SUPREME COURT OF NEW ZEALAND SC 124/2014 [2015] NZSC 132. MINISTER OF IMMIGRATION Respondent

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2014] NZHC 2483 BETWEEN. Plaintiff

DESMOND WILLIAM COOK Appellant. Applicant in person K R A Muirhead for Respondent JUDGMENT OF THE COURT

Applicant. THE CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent JUDGMENT OF THE COURT

I TE KŌTI PĪRA O AOTEAROA CA409/2018 [2018] NZCA 533. CAROLINE ANN SAWYER Applicant. Applicant. 29 November 2018 at pm JUDGMENT OF THE COURT

IMMIGRATION AND PROTECTION TRIBUNAL PRACTICE NOTE 3/2018 (RESIDENCE)

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CIV [2017] NZHC UNDER the Insolvency Act 2006 PRESCOTT

BODY CORPORATE S89906 Second Respondent. Arnold, Harrison and Rodney Hansen JJ

ATHANASIOS KORONIADIS Appellant. BANK OF NEW ZEALAND Respondent. Cooper, Venning and Williams JJ JUDGMENT OF THE COURT

IN THE SUPREME COURT OF NEW ZEALAND SC 104/2017 [2017] NZSC 178

Applicant. LSG SKY CHEFS NEW ZEALAND LIMITED First Respondent

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV SHANE ARTHUR PAGET Defendant

PRACTICE NOTE 4/2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2016] NZHC Plaintiff. AUCKLAND COUNCIL Defendant

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV CLIVE JOHN COUSINS Defendant

MEHDI JAFFARI AND TRACY JAFFARI Appellants. LIVIA GRABOWSKI Respondent. Appellants in person B M Pamatatau and M D Whitlock for Respondent

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Appellant. ALAVINE FELIUIA LIU Respondent. Randerson, Harrison and Miller JJ

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2016] NZHC WATER GUARD NZ LIMITED Plaintiff

BEFORE THE IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL. Decision No: [2015] NZIACDT 79. Reference No: IACDT 020/14

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE CIV [2018] NZHC 67. Plaintiff. THE EARTHQUAKE COMMISSION First Defendant

BEFORE THE IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL. Decision No: [2013] NZIACDT 28. Reference No: IACDT 027/11

Date of Decision: 7 October 2014 DECISION

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE CIV [2018] NZHC 971. IN THE MATTER of the Companies Act 1993

SUPREME COURT OF QUEENSLAND

IN THE EMPLOYMENT COURT AUCKLAND [2018] NZEmpC 107 EMPC 213/2017. AND IN THE MATTER OF an application for costs. KERRY MACDONALD Defendant

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2014] NZHC UNDER the Defamation Act Plaintiff

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV [2014] NZHC THE EARTHQUAKE COMMISSION First Defendant

New Zealand Association for Migration and Investment Seminar - 3 September Ministerials and Complaints

BEFORE THE IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL. Decision No: [2015] NZIACDT 48. Reference No: IACDT 036/14

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE CIV [2018] NZHC WELLINGTON CITY COUNCIL First Respondent

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CRI [2018] NZHC 596. UNDER the Criminal Procedure Act 2011

ADMINISTRATIVE TRIBUNAL OF THE AFRICAN DEVELOPMENT BANK

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CIV [2017] NZHC CLARK ROAD DEVELOPMENTS LIMITED Applicant

IN THE COURT OF APPEAL OF NEW ZEALAND CA386/2011 [2011] NZCA 610. Applicant. MANA COACH SERVICES LTD Respondent

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2015] NZHC 92 JUDGMENT OF PETERS J

Smith (paragraph 391(a) revocation of deportation order) [2017] UKUT 00166(IAC) THE IMMIGRATION ACTS. Before UPPER TRIBUNAL JUDGE CANAVAN.

THE CHARITIES REGISTRATION BOARD Respondent. Randerson, Wild and Winkelmann JJ JUDGMENT OF THE COURT REASONS OF THE COURT. (Given by Randerson J)

BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA Decision No. [2018] NZEnvC 19. IN THE MATTER of the Resource Management Act 1991

KARL MURRAY BROWN Appellant. THE QUEEN Respondent. Ellen France, MacKenzie and Mallon JJ JUDGMENT OF THE COURT REASONS OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV JOHN CAMERON SADLER Judgment Debtor

CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Appellant. THE QUEEN Respondent JUDGMENT OF THE COURT. The application for an extension of time to appeal is granted.

Applicant. ANDRE NEL Respondent. S C Dench and S J Kopu for Applicant C W Stewart and E L Taylor for Respondent JUDGMENT OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2012] NZHC 464. UNDER the Companies Act 1993

FEDERAL COURT OF AUSTRALIA

Client Declaration Form

Appellant. THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

UNIVERSITY OF CANTERBURY Appellant

Applicant: Mr Norman Brown Authority: The Chief Constable of Strathclyde Police Case No: and Decision Date: 26 July 2007

Mijin Kim THE NAME AND ANY INFORMATION IDENTIFYING THE COMPLAINANT IS NOT TO BE PUBLISHED DECISION

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : LAND ACQUISITION. CM No of 2005 in W.P. (C) No of 1987

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2014] NZHC 847. R T VINCENT LIMITED Plaintiff

JOEL DYLAN BOWLIN Applicant. THE QUEEN Respondent. Harrison, Fogarty and Dobson JJ JUDGMENT OF THE COURT

IN THE SUPREME COURT OF NEW ZEALAND SC 127/2014 [2014] NZSC 196. TERRANOVA HOMES AND CARE LIMITED Applicant

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CIV [2017] NZHC NICHOLAS DAVID WRIGHT Plaintiff

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2015] NZHC JAMES HARDIE NEW ZEALAND Second Plaintiff

THE PERILS OF CONDITIONS IN SALE AND PURCHASE AGREEMENTS - Victoria Whitfield

INTERNATIONAL SEABED AUTHORITY. Rules of Procedure and Guidelines of the Joint Appeals Board

Application for Transfer or Confirmation of a Visa

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CRI [2014] NZHC PAUL ANDREW HAMPTON Appellant. NEW ZEALAND POLICE Respondent

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG NATIONAL UNION OF MINEWORKERS

BRITISH COLUMBIA ASSEMBLY OF FIRST NATIONS. Constitution & Bylaws

Note on the Cancellation of Refugee Status

IN THE COURT OF APPEAL OF NEW ZEALAND CA805/2010 [2011] NZCA 346. SHEPPARD INDUSTRIES LIMITED First Appellant

ASYLUM AND IMMIGRATION TRIBUNAL

Victoria House Bloomsbury Place 26 November 2014 London WC1A 2EB. Before: PETER FREEMAN CBE QC (HON) (Chairman) BRIAN LANDERS STEPHEN WILKS

CITATION: Ontario Federation of Anglers and Hunters v. Ontario, 2015 ONSC 7969 COURT FILE NO.: 318/15 DATE:

ASYLUM AND IMMIGRATION TRIBUNAL

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2015] NZHC CHRISTOPHER MAURICE LYNCH First Defendant

Substantial Security Holder Disclosure. Discussion Document

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV [2013] NZHC 576. PHILLIPA MARY WATERS Plaintiff. PERRY FOUNDATION Defendant

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2016] NZHC UNDER the Arbitration Act 1996

Powell v Ogilvy New Zealand Ltd

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI [2015] NZHC Appellant. DENNIS MAX HAUNUI Respondent.

What is in this book?

Sponsorship Form for Residence

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) CASE NO: 12520/2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV [2016] NZHC MALCOLM EDWARD RABSON Applicant

FEDERAL COURT OF AUSTRALIA

Application for Transfer or Confirmation of a Visa

GENERAL RULES ABOUT COSTS

IN THE HUMAN RIGHTS REVIEW TRIBUNAL [2018] NZHRRT 52 UNDER THE HUMAN RIGHTS ACT 1993 STEVEN GILBERT BUTCHER PLAINTIFF NEW ZEALAND TRANSPORT AGENCY

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV CIV [2016] NZHC 814. Plaintiff

Migration Amendment (Visa Integrity) Bill 2006

Freedom of Information Act 2000 (FOIA) Environmental Information Regulations 2004 (EIR) Decision notice

IMMIGRATION APPEAL TRIBUNAL

REGULATORY IMPACT STATEMENT IMMIGRATION ACT: VISAS

Immigration Law Conference February 2017 Panel discussion Judicial Review: Emerging Trends & Themes

Unreasonable delay in residence application that warranted urgency

IN THE EMPLOYMENT COURT AUCKLAND [2018] NZEmpC 58 EMPC 98/2017. Plaintiff. SCOTT TECHNOLOGY NZ LTD TRADING AS ROCKLABS Defendant

CONCERNING BETWEEN. The names and identifying details of the parties in this decision have been changed. DECISION

IN THE EMPLOYMENT COURT CHRISTCHURCH [2014] NZEmpC 208 CRC 14/14. Defendant. Plaintiff HARLENE HAYNE, VICE-

117th Session Judgment No. 3309

BOON GUNN HONG Practitioner

IN THE HUMAN RIGHTS REVIEW TRIBUNAL [2015] NZHRRT 43 UNDER THE HUMAN RIGHTS ACT 1993 YASODHARA DA SILVEIRA SCARBOROUGH PLAINTIFF

CONCERNING CONCERNING. MR PAIGNTON of Auckland DECISION

IN THE COURT OF APPEAL OF NEW ZEALAND CA48/2009 [2009] NZCA 50

I TE KŌTI PĪRA O AOTEAROA CA433/2017 [2018] NZCA 304. DANIEL SEAN RAMKISSOON Appellant. COMMISSIONER OF POLICE Respondent

Appellant. THE QUEEN Respondent. Miller, Ronald Young and Clifford JJ JUDGMENT OF THE COURT REASONS OF THE COURT. (Given by Miller J)

SUPREME COURT OF QUEENSLAND

Transcription:

IN THE COURT OF APPEAL OF NEW ZEALAND CA410/2016 [2016] NZCA 546 BETWEEN AND RAM CHANDER DAHIYA Applicant CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent Court: Counsel: Judgment: (On the papers) Miller, Asher and Brown JJ Applicant in person C Paterson and N Copeland for Respondent 22 November 2016 at 11.30 am JUDGMENT OF THE COURT A The application for an extension of time under r 5(2) of the Court of Appeal (Civil) Rules 2005 is declined. B The applicant must pay the respondent costs as for an application for leave to appeal on a band A basis and usual disbursements. REASONS OF THE COURT (Given by Brown J) Introduction [1] Applications by Mr Dahiya and his wife to Immigration New Zealand (INZ) for permanent resident visas (PRVs) were declined on 30 April 2015, and an appeal DAHIYA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZCA 546 [22 November 2016]

to the Immigration and Protection Tribunal (the Tribunal) dismissed on 18 January 2016. 1 Mr Dahiya s application to the High Court under s 245 of the Immigration Act 2009 for leave to appeal the Tribunal s decision was declined by Lang J on 8 June 2016. 2 [2] Mr Dahiya subsequently applied to this Court for leave to appeal against Lang J s judgment. Under r 14(2)(b) of the Court of Appeal (Civil) Rules 2005 (the Rules) that application was required to be made within 20 working days after the High Court s refusal of leave. However, Mr Dahiya s application for leave to appeal was not filed until 17 August 2016. Consequently he requires an extension of time. [3] Mr Dahiya s application for an extension of time is made in purported reliance on r 29A of the Rules. That rule is not applicable as it relates only to extensions of time for filing appeals. However, we consider we have jurisdiction to entertain the application under r 5(2) of the Rules. [4] Mr Dahiya is self-represented and currently resides in India. He agrees to the application for extension of time being heard on the papers. Material facts [5] When Mr Dahiya (and his wife) first arrived in New Zealand on 30 July 2010 he was granted a residence permit and returning resident visa (RRV) valid for two years. He returned to India on 3 July 2012. [6] On 6 September 2012, while Mr Dahiya was still outside New Zealand, he and his wife applied for PRVs. The relevant residence instructions certified by the Minister of Immigration (the Minister) at that time required an applicant for a PRV to hold a current resident visa and to have spent at least 184 days in New Zealand in each of the preceding two 12-month periods. INZ calculated that Mr Dahiya had spent 207 days in New Zealand during the 12-month period ending 6 September 2011 but only 150 days in the 12-month period ending on 6 September 2012. For 1 2 Re AM (Permanent Resident) [2016] NZIPT 202924. Dahiya v Chief Executive of the Ministry of Business Innovation and Employment [2016] NZHC 1217.

that reason, INZ determined that Mr Dahiya and his wife did not qualify for PRVs. Instead, on 11 September 2012, it elected to issue them both with second/subsequent resident visas (SSRVs) with travel conditions that expired on 11 September 2013. Although INZ inserted the new visas into their passports, it did not separately communicate with them to explain that they did not meet the criteria for PRVs but had instead been issued with SSRVs. [7] Mr Dahiya and his wife returned to New Zealand between 1 February and 9 March 2013 but have not returned since that time. In February 2015 Mr Dahiya applied to have his New Zealand visa transferred to his new passport. It was then he learned for the first time that he and his wife had been issued with SSRVs rather than PRVs and that the travel conditions attached to the SSRVs had expired in September 2013 whilst they were outside New Zealand. This meant the SSRVs had become invalid. [8] In March 2015 Mr Dahiya and his wife made further applications for PRVs or SSRVs. These were declined by INZ, again on the basis that the residency requirements were not met. Mr Dahiya appealed this decision to the Tribunal. [9] The decision of INZ declining the visa applications was upheld by the Tribunal on the basis that INZ had correctly applied the relevant residence instructions. 3 The Tribunal also found that there were no special circumstances warranting a recommendation to the Minister under s 188(1)(f) of the Immigration Act that Mr Dahiya and his wife be considered for an exception to those instructions. 4 High Court decision [10] In the application for leave to appeal to the High Court Mr Dahiya did not contest the correctness of the decision reached by INZ and the Tribunal that he and his wife did not qualify for PRVs or SSRVs. Instead, he contended that the Tribunal 3 4 Re AM (Permanent Resident), above n 1, at [32] [34]. At [50].

wrongfully concluded that there were no special circumstances to justify a recommendation to the Minister that they be issued with the visas sought. [11] In finding that the criteria to justify a second appeal had not been established Lang J noted: (a) There is no statutory provision requiring INZ to provide visa holders with separate advice regarding the nature of their visas. Mr Dahiya and his wife bore the onus of ensuring they were aware of the terms of the visas entered in their passports. 5 (b) Mr Dahiya declined to take up the Tribunal s invitation to detail the steps that they would have taken if they had been aware of the true position. 6 (c) The Tribunal applied the correct principles in considering the issue of special circumstances. 7 Consequently Mr Dahiya was effectively restricted to arguing that the Tribunal was wrong to find that the circumstances in which Mr Dahiya and his wife found themselves did not constitute special circumstances for the purposes of s 188(1)(f) of the Immigration Act. However, Lang J considered their circumstances did not have any significance or importance that extended beyond the instant case. 8 [12] Lang J further observed that the decision would not prevent Mr Dahiya and his wife from maintaining contact with their son and his family in New Zealand as they remained free to travel between India, Australia (where their other two sons reside) and New Zealand using visitor s permits. 9 5 6 7 8 9 Dahiya, above n 2, at [21]. At [22]. At [23] noting the test as set out by this Court in Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24]. At [25] citing Songmia v Minister of Immigration [2013] NZHC 3233. At [26].

Analysis [13] Although the application for an extension of time is to be dealt with under r 5(2) of the Rules, we consider that the principles applicable to an extension of time to appeal under r 29A are relevant here. 10 [14] The period of delay was not long. The time for filing an application for leave to appeal in this Court expired on 6 July 2016. Mr Dahiya s application was not filed until 17 August 2016. The explanation for the delay lies in Mr Dahiya s lack of familiarity with the processes in filing applications in this Court. The delay in itself has not prejudiced the respondent. These factors all favour granting an extension of time. [15] However in our view those factors are outweighed by the consideration that the proposed appeal lacks merit. Appeals to the High Court under s 245(1) of the Immigration Act are confined to determinations by the Tribunal which are erroneous in point of law. Furthermore, s 245(3) states: 245 Appeal to the High Court on point of law by leave (3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision. [16] It is apparent from the notice of application for leave to appeal, Mr Dahiya s detailed written submission and reply to the respondent s synopsis of submissions that Mr Dahiya strongly believes that he and his wife have suffered a grave injustice. Those submissions reflect their frustration at being pressed to identify questions of law raised by their proposed appeal. By way of example they submit: If a holistic view is taken of the whole case, natural justice has not taken place and this in itself is a big, huge and serious question of law. The laws have clearly been flouted, ignored and bypassed and just not cared for by the authorities and moreover we are simply being accused. Natural justice should have been seen in restoring our visa status along with awarding 10 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 244, (2009) 19 PRNZ 518 at [19].

enough monetary compensation for the torture, harassment that we have gone through solely due to the fault of INZ s not issuing us the statutorily required visa explanatory letter (Visa Approval Letter). Despite their best endeavours and their reliance on the maxim res ipsa loquitur, the reality is that none of the several matters to which they refer raises any question of law in respect of the Tribunal s decision, let alone one that satisfies the threshold of general or public importance. [17] Nor, in view of the several matters noted by Lang J recited above at [11], is it demonstrated that there is any other reason which would warrant a further appeal from the Tribunal to the High Court. [18] We note that Mr Dahiya attacks the judgment of Lang J as highly prejudicial, biased and one-sided. We do not accept that such allegations are well-founded but, in any event, the question of law to be appealed must stem from the Tribunal s decision. [19] In our view there is simply no point in this Court extending the time for making an application for leave to appeal when the criteria to which regard must be had on such an application could not be established. In those circumstances we are satisfied that it is not in the interests of justice to grant an extension of time. The application for an extension of time is accordingly declined. [20] We see no reason to depart from the ordinary rule that an unsuccessful party should pay the successful party costs. Accordingly Mr Dahiya is to pay the respondent costs as for an application for leave to appeal on a band A basis and usual disbursements. Solicitors: Meredith Connell, Auckland for Respondent