M v Minister of Immigration

• Jurisdiction: New Zealand
• Judge: McGrath,William Young,Glazebrook JJ
• Judgment Date: 04 March 2013
• Neutral Citation: [2013] NZSC 9
• Docket Number: SC 89/2012
• Court: Supreme Court
• Date: 04 March 2013

Between

M

Appellant

and

Minister of Immigration

Respondent

[2013] NZSC 9

Court:

McGrath, William Young and Glazebrook JJ

SC 89/2012

IN THE SUPREME COURT OF NEW ZEALAND

Application for leave to appeal against striking out of judicial review of decision to refuse appellant's wife and child entry into NZ — whether there was a common law right to family life in NZ — whether the decision breached s9 New Zealand Bill of Rights Act 1990 (“NZBORA”)(right not to be subjected to torture or cruel treatment) — whether there had been discrimination against the appellant on the basis of nationality, contrary to s17 NZBORA (freedom of association) — whether claim was time barred under s247(1) Immigration Act 2009 (Special provisions relating to judicial review) — whether decisions not to allow a person to board an aircraft were non-appealable and non-reviewable.

Counsel:

Appellant in person

M Coleman for respondent

JUDGMENT OF THE COURT

• A The application for leave to appeal is dismissed.

• B The applicant is to pay costs of $2,500 to the respondent plus reasonable disbursements.

REASONS

1 Mr M is Romanian. His application for refugee status failed, as did his appeal to the Refugee Status Appeals Authority. 1 Judicial review of the Authority's decision failed, 2 and his appeal against the refusal of judicial review also failed. 3

2 Mr M is currently claiming the status of a protected person (under the Immigration Act 2009 4). That has been declined and his appeal to the Immigration and Protection Tribunal has yet to be determined.

3 Mr M applies for leave to appeal against a judgment of the Court of Appeal. 5 In that decision, the Court dismissed an appeal from a decision of Courtney J 6 which had struck out Mr M's claim for judicial review of a decision of Immigration New Zealand.

4 The current application for leave to appeal relates to judicial review proceedings challenging a decision not to allow his wife and child entry into New Zealand.

5 Mr M's first judicial review proceeding related to the refusal of Immigration New Zealand to allow Mr M's wife and child to board a flight from Hong Kong to New Zealand. Immigration New Zealand took the view that they were not genuine tourists and therefore were ineligible for the tourist visa waiver scheme.

6 Peters J struck out those proceedings on the basis that the decision not to allow them to board the flight was not open to judicial review and was in any event time barred. 7 A second judicial review proceeding was filed and this time was struck out by Courtney J. 8

7 On appeal against Courtney J's decision, the Court of Appeal decided that: 9

• (a) there is no right to family life recognised at common law in New Zealand;

• (b) the refusal to allow Mr M's family to visit him did not breach s 9 of the New Zealand Bill of Rights Act 1990; and

• (c) there had been no discrimination against Mr M on the basis of his Romanian nationality contrary...