Mr Singh (not his real name) had filed Judicial review proceedings challenging the decisions pertaining to his deportation.
The Crown had not filed the Statement of defence as initially there were settlement discussions, which concluded unsuccessfully.
The Crown then filed a notice of appearance under protest to the jurisdiction of the Court. The Counsel for the Crown submitted that the Court has no jurisdiction to consider the substantive judicial review proceedings until the Court has extended the time for doing so.
Miscarriage of Justice
Gurbrinder Aulakh, the Counsel for Mr Singh, pointed out the irony of the Crown’s complaint and the abuse of the power by the administrative authority.
He contended that the decisions were ultra vires of the regulations and the Act.
He submitted that where there is an error of law or miscarriage of justice, then it is the constitutional duty of the Court to uphold the Rule of Law.
The Court analysed the relevant High Court rules, and the Supreme Court decision in Commissioner of ‘Inland Revenue v Redcliffe Forestry Venture Limited (2012)’ NZSC 94.
The High Court considered the decision of the Court of Appeal determining the special circumstances in ‘Rajan vs Minister of Immigration (2004) NZAR 615 (CA),’ and allowed the time that Mr Singh took to commence his Judicial Review and issued an interim declaration directing the Crown to not take any steps to deport the applicant pending the final determination of the judicial review proceedings.
High Court declines
The High Court declined to accept the protest to jurisdiction and under s 14(2)(d) of the Judicial Review Procedure Act 2016.
The High Court directed the Crown to file its Statement of Defence within five working days of the date of the judgement, and for the parties to file joint memorandum setting out their availability for a Case Management Conference and the substantive hearing of the matter. This case is ‘Singh v Chief Executive, Ministry of Business Innovation and Employment (2018) NZHC 673.’
Separation of Powers
Mr Aulakh said that it is worth mentioning that New Zealand, when compared with many other countries around the world, has a very good separation of powers.
“Although Parliamentary supremacy is acknowledged, any attempt by public officers under the garb of Parliamentary supremacy, to encroach upon the inherent jurisdiction of the Superior Courts, would be contrary to the accepted principles of Rule of Law.
It will be a step backwards, and may be seen as meddling with the independence of the Judiciary. It can have the effect of eroding the confidence of the public and poses a danger to democracy, while shaking its independent pillars,” he said.
Barrister & Solicitor Gurbrinder Aulakh (Picture Supplied)