Sroubek v Minister of Immigration - [2025] NZCA 614

IMMIGRATION LAW – JUDICIAL REVIEW – RIGHTS OF APPPEAL – IMMIGRATION ACT 2009 – JURISDICTIONAL PATHWAY – PROCEDURE 

Mr Sroubek is a Czech national who was granted a visitor’s visa, and subsequently a resident’s visa, using a false name.  The deception was discovered, and he was found guilty at trial of possessing a false passport and giving false information but discharged without conviction.  Mr Sroubek was later convicted of importing Class B drugs (MDMA) and imprisoned for a term of five years and nine months.  

While Mr Sroubek was in prison, Immigration New Zealand initiated an inquiry into his possible deportation. The then Minister of Immigration cancelled the liability for deportation and granted Mr Sroubek a resident visa under his true identity on the condition he provide a valid Czech passport in his real name.  The decision was controversial and attracted significant publicity.  The Minister changed his mind, and made Mr Sroubek liable for deportation on a different ground under the Immigration Act 2009. 

Mr Sroubek then lodged appeals against the Minister’s decision in the Immigration and Protection Tribunal on 18 December 2018.  Under the Act, there are two types of appeal available in respect of deportation liability, being an appeal on the facts and an appeal on humanitarian grounds.   

The Tribunal dismissed the facts appeal and upheld Mr Sroubek’s liability for deportation, finding his visa was granted as the result of an administrative error and thus his liability for deportation was able to be determined. In the humanitarian appeal, the Tribunal found by a “narrow margin” that there were exceptional humanitarian circumstances given that Mr Sroubek had spent most of his adult life in New Zealand, but it would not be unjust for him to be deported in the circumstances. 

Mr Sroubek filed two applications in the High Court: (1) leave to appeal both Tribunal decisions, and (2) an application for judicial review concerning the Minister’s deportation decision.  After the proceedings were filed, two preliminary issues regarding jurisdiction and time limitation arose.  The High Court determined both issues in favour of the Minister of Immigration.  It held Mr Sroubek’s application for leave to appeal the facts decision was out of time and that he had brought his application for judicial review under the wrong section.  Mr Sroubek now appeals. 

For the purpose of the time limits imposed by s 245(2) of the Immigration Act 2009, are facts appeals and humanitarian appeals in the Immigration and Protection Tribunal two separate appeals or one appeal? 
Held:  upholding the High Court’s interpretation of s 245, the text and purpose of the section support the view that facts appeals and humanitarian appeals are two separate appeals.  The High Court was therefore correct to find the application for leave to appeal the facts decision was out of time. 

Throughout the Act, various sections indicate facts appeals and humanitarian appeals are to be treated as distinct proceedings by use of the term “appeals” (plural).  The two types of appeal also raise different issues:  facts appeals are about the factual basis for liability for deportation whereas humanitarian appeals are about whether the effects of deportation will create humanitarian circumstances of an exceptional nature.  

There are benefits in having each separate proceeding continue moving through the system promptly and concerns to the contrary were overstated.  The High Court’s interpretation is also consistent with the Tribunal’s practices.   

Was the correct statutory pathway governing Mr Sroubek’s judicial review proceeding s 247 or s 249 of the Immigration Act 2009? Held:  
The correct pathway was s 247.  Mr Sroubek had filed his application under s 249 in what the Court found was a mistaken belief that s 249(1) precluded him from bringing judicial review proceedings under s 247.  However correctly understood, s 249(1) only applies to grounds of judicial review that are within the Tribunal’s jurisdiction. Mr Sroubek’s grounds of review were outside the Tribunal’s jurisdiction.  

Prior to the decision of the Supreme Court in H v H (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 the approach taken by the Minister to ss 247 and 249 was the same as the one adopted by Mr Sroubek.  Under the Minister’s previous approach, s 247 was in effect only available to those with no right of appeal to the Tribunal because s 249(1) prevented applicants from bringing judicial review proceedings while an appeal process was still ongoing. The Minister’s interpretation however changed due to the Supreme Court decision which held on the facts before it that s 249(1) was not a barrier to H commencing judicial review immediately under s 247, that is to say without having to wait for the completion of the appeal process. 

The scope of the H decision was critical to Mr Sroubek’s appeal.  Mr Sroubek argued that H was distinguishable, whereas the Minister argued and the Court ultimately accepted, the reasoning in the H decision was equally applicable to this case.  

Section 249 must be given a construction that both recognises Parliament’s intention to prevent duplicative proceedings, but which also preserves the Court’s ability to supervise the exercise of public power and prevent injustice occurring when a statutory process fails.  In circumstances where the Tribunal has no jurisdiction to entertain arguments which could however be a ground of judicial review, a judicial review proceeding is more properly viewed as a parallel proceeding, not a duplicative one.  The ability of the Court to supervise the exercise of public power is impeded if a person adversely affected by deficiencies in the exercise of public power is prevented from going to the courts to have those deficiencies ventilated and considered without lengthy delay. 

Section 249 will only operate to restrict the filing of judicial review proceedings in so far as they relate to matters which are both within the Tribunal’s jurisdiction as well as being amenable to judicial review.  That is to say, s 249 is only triggered where there is an overlap.  Whenever the ground of review is not something within the Tribunal’s jurisdiction, then the affected person can file a proceeding in relation to that ground under s 247.  The Court rejected the argument that this would leave s 249 with no work to do.  Overlaps are a realistic possibility.   

In summary, correctly interpreted, s 249(1) did not prevent Mr Sroubek from bringing judicial review proceedings under s 247 when his grounds of judicial review were outside the Tribunal’s jurisdiction.  His correct course of action was therefore now to seek an extension of time under s 247. 

Result:  The appeal is dismissed.  There is no award of costs given the public interest in resolving significant uncertainty about the interpretation and application of the relevant statutory provisions.