Vukomanovic v Residence Review Board HC Wellington CIV 2010-485-497

[2010] NZHC 985

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-497

UNDER  Section 146A of the Immigration Act 1987

IN THE MATTER OF     an application for judicial review

BETWEEN  GORDANA VUKOMANOVIC Appellant

ANDRESIDENCE REVIEW BOARD First Respondent

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Second Respondent

Hearing:         24 June 2010

Appearances: Appellant appears in person

L Fong for Respondents

Judgment:      24 June 2010

ORAL JUDGMENT OF MILLER J

[1]      Ms Vukomanovic seeks leave to appeal from my judgment of 20 May 2010. The application is opposed.

[2]      In my judgment I declared that the Court lacks jurisdiction to entertain a proposed appeal from the Residence Review Board, the appeal having been filed out of time.  However, I treated the abortive appeal as an application for judicial review, and timetabled that for hearing on 29 July.

[3]      Appearing  today,  Ms  Vukomanovic  began  by  explaining  that  she  has complained to the Judicial Conduct Commissioner about me, saying that I was not

GORDANA VUKOMANOVIC V RESIDENCE REVIEW BOARD HC WN CIV 2010-485-497  24 June 2010

prepared to listen to her and that she was “pushed out” of the Court.  She indicated that she was prepared to drop that complaint if some solution could be found and appeared to want to go through all her documents again.  As I explained to her, that approach may be well-meaning but it is inappropriate.  If she has a complaint to the Judicial Conduct Commissioner, she should pursue it.

[4]      Leave is required under s 116 of the Immigration Act 1987.  The appeal must be on a point of law, and in determining whether to grant leave, the Court must have regard to whether the question of law is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.

[5]      The proposed appeal certainly raises a question of law.  Further, no previous judgment has held that the time limit under s 115 of the Immigration Act 1987 is mandatory.

[6]      Nonetheless, I do not consider that the proposed appeal is seriously capable of argument, because there is no proper basis on which Attorney-General v Howard (and the cases cited in it) can be distinguished.[1]   On the contrary, any application for extension of time must be filed within the 28 days specified by the statute, and I will refer to s 115(2).

[1] Attorney-General v Howard [2010] NZCA 58 at 100.

[7]      Ms Vukomanovic also complained that I had miscalculated time, finding that it  had  elapsed  on  20  January.    (I made  no  such  finding.)    She  pointed  to  the Christmas period.   However, her appeal was not filed until 18 March.   She also argued that her circumstances are truly exceptional for various reasons relating to her family circumstances and her activities in New Zealand, such that it is unfair to deny her an appeal.   Whether or not that is true, it cannot alter the meaning of the legislation.

[8]      In her written submissions Ms Vukomanovic also appeared to raise a concern that she had insufficient opportunity to present her case on 20 May.  That proposition is  not  tenable.    It  apparently  rests  on  an  assumption  that  the  hearing  was  an

opportunity to deal with the merits, which I declined to hear.  In any event, it raises no question of law that could merit a further appeal.

[9]      Ms Vukomanovic further appears to take issue with some of the interlocutory directions  made  concerning  the  judicial  review  application;    in  particular,  the direction that the Chief Executive be added as a respondent.  Leave is not required insofar as she wishes to pursue an appeal from those directions.  She will have to satisfy the Court of Appeal that an interlocutory appeal ought to be entertained.[2]

[2] Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158,

166.

[10]     The application for leave to appeal is dismissed.

Miller J

Solicitors:

Crown Law, Wellington for Respondents