High Court Cases 

High Court Auckland M965/97
11 August 1997; 25 August 1997
Paterson J

Judicial review - Interim order - Application to prevent removal from New Zealand pending hearing - Inability to establish factual basis for judicial review until transcript of refugee hearing available - Judicature Amendment Act 1972, s 8(1)

In October 1989 the plaintiff, an Indian national of the Sikh faith, arrived in New Zealand.  He lodged an application for refugee status in 1991.  When his application was declined by the Refugee Status Branch of the New Zealand Immigration Service, he lodged an appeal with the Refugee Status Appeals Authority (RSAA).  In 1995 the appeal was dismissed.  In 1996 the appellant filed a second application for refugee status but this was declined in July 1996.  The Immigration Service sought to remove the appellant from New Zealand.  The appellant applied for an interim order under s 8(1) of the Judicature Amendment Act 1972 preventing his removal from New Zealand pending the determination of his judicial review proceedings.  The appellant submitted that the Court could not decide whether there was any merit to the challenge to the RSAA decision until it had before it the complete transcript of the evidence given before the RSAA and all the documentary and other evidence produced at the RSAA hearing.

Held:

1    Interim relief should not be granted so that an applicant for judicial review may go on a fishing expedition.  He must show in his application circumstances which justify the relief and these would normally need to include the nature and an indication of the strength of his challenge.  Unless he is able to point to a factual situation which establishes that he has grounds for judicial review and some reasoanble prospect of success, he is not entitled to an interim order.  If he does not put up grounds or merely puts up trivial grounds, he is not entitled to an interim order (see para [22]).

Carlton and United Breweries Limited v Minister of Customs [1986] 1 NZLR 423 (CA) applied.

Application dismissed.

Other cases mentioned in judgment

Avtar Singh v Refugee Status Branch (High Court Auckland, M715/97, 25 August 1997, Paterson J)
Esekielu v Attorney-General (1993) 6 PRNZ 309 (Hammond J)
Khan v Removal Review Authority (High Court Auckland, M699/97, 3 June 1997, Robertson J)
Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J)
Kumar v Associate Minister of Immigration [1991] NZAR 555 (Anderson J)
Zhan v Refugee Status Appeals Authority (High Court Auckland, M45/95, 8 March 1996, Morris J)

Counsel
K P Khambatta for the plaintiff
M A Woolford for the defendants
 
PATERSON J. [1] Mr Singh applied for refugee status but by a decision given on 28 January 1992 the first defendant (“The Refugee Status Branch”) declined that decision.  A further application was made to the Refugee Status Branch in 1996 but the Refugee Status Branch declined to accept the further application for refugee status from Mr Singh. Mr Singh appealed both decisions to the second defendant (“The Appeals Authority”) and both were dismissed by decisions of 14 December 1995 and 12 December 1996.  In the meantime the third defendant (“The Branch Manager”) has obtained a removal order which he has had further endorsed.  Mr Singh has applied for judicial review of all these proceedings and now seeks interim relief to enable him to remain in this country until the judicial review applications are disposed of.

Background facts

[2] Mr Singh is a citizen of India, a single male of Sikh faith and is aged 39 years. He arrived in New Zealand on a visitors permit on 11 October 1989 and lodged his first application for refugee status on 22 April 1991. That application was declined by the Refugee Status Branch on 28 January 1992 and an appeal from that decision was heard on 3 February 1994 with the Appeals Authority declining the appeal in a decision dated 14 December 1995. Mr Singh then lodged a further application for refugee status on 9 February 1996 but this was in effect declined on 19 July 1996.

[3] The third defendant ("the Branch Manager") is involved in these proceedings because he has taken the necessary steps to obtain a removal order at the appropriate time. In April 1992 he gave an assurance not to remove Mr Singh from New Zealand until his refugee claim had been determined and any appropriate appeal decided. Although Mr Singh seeks relief against the Branch Manager, it is noted that the Branch Manager has not broken that assurance and there appears to be no valid reason why he is not entitled to remove Mr Singh from New Zealand. Both of Mr Singh's applications have been declined and the appeals against them dismissed.

Grounds of appeal

[4] The application for interim relief included a statement of the grounds upon which it was made and prior to the hearing Mr Khambatta filed written submissions. However, the basic submission which he made was identical to the submission which he made in the case of Avtar Singh (Auckland High Court, M.715/97). I am therefore reproducing verbatim the summary of that reason given in my judgment in that matter dated 25 August 1997.

[5] The written interim application set out various grounds which I will need to refer to in due course. Prior to the heating, Mr Khambatta filed written submissions which also covered other matters. However, at the hearing he in effect relied upon one basic ground namely that until judicial review is determined it would be inequitable, unfair, and irreversible if Mr Singh was to be removed from this country. This is because the judicial review may determine that Mr Singh is entitled to refugee status or entitled to a rehearing before the Appeals Authority. Until such time as this court calls for the records of the Appeals Authority and the transcript of the oral evidence and documents, it is not possible to determine the grounds for judicial review.

[6] It was Mr Khambatta's submission that the status quo should be preserved until the substantive hearing and that the documents should be called for. An opportunity would then arise for the High Court to scrutinise the position and to determine whether the administrative law principles have been complied with. Mr Khambatta stressed that if the status quo is not preserved and the plaintiff is forced to leave the country and then succeeds on a judicial review application, the process will be irreversible.

[7] In short, my interpretation of Mr Khambatta’s submission is that he wants the status quo to be preserved to allow a fishing expedition to see whether or not there are grounds for judicial review.

The law

[8] Once again I repeat my findings on law as given in A Singh v Refugee Status Appeal Authority and Others, M.715/97 of 25 August 1997.

[9] Mr Khambetta relied on extracts from four decisions. It is necessary to briefly refer to those decisions.

[10] The first was Khalon v Attorney-General [1996] 1 NZLR 458 where Fisher J summarised four basic administrative law propositions. The fourth was:

"In refugee cases, only the highest standards of fairness will suffice since questions of life, personal safety and liberty are at stake."

[12] The second case was Kumar v Associate Minister of Immigration [1991] NZAR 555. In that case Anderson J dealt with the normal principles on which an administrative decision will be reviewed. He noted:

"The applicant must show that the Minister of Immigration could not reasonably have come to a decision not to cancel the removal warrant. They must show this so clearly that there is in effect an ineluctable conclusion that the Minister has not either exercised his statutory power of decision at all, or has exercised it so aberrantly that he cannot be taken to have exercised it as the legislature intended.”

[14] The third case was Zhan v Refugee Status Appeal Authority (unreported, M.47/95, 8 March 1996, High Court, Auckland Registry, Morris J). This was also an application for judicial review which Mr Khambatta says supports his principle. In it the Judge, as would be expected when there are allegations of bias and unfairness on the part of the authority, carefully scrutinised the transcript of the proceedings before the authority.

[15] Finally, in Khan and Others v Removal Review Authority (unreported, M. 699/97, 3 June 1997, High Court, Auckland Registry, Robertson J), His Honour considered an interim application to preserve the status quo pending the hearing of an application for judicial review. His Honour noted that at the heart of what is not before the Court were two matters related to factual circumstances which it said were inappropriately dealt with by the Review Authority. It should be noted in this case that His Honour obviously had before him some evidence as to what had happened when the matter was dealt with by the review authority.

[16] Mr Khambatta has correctly identified the matters which need to be dealt with on a judicial review application. Such applications are not concerned with the merits but with the issue of process and procedure and in appropriate circumstances, reasonableness. Mr Khambatta's proposition, however, goes far further than any principle referred in the cases which he cites. It is that a court should automatically grant interim relief if there is an application for judicial review in an immigration matter because until such time as all the documents are before the High Court it is not possible to discern the grounds on which an applicant may or may not be entitled to judicial review. If interim relief is not granted and the applicant is removed from the jurisdiction, any subsequent favourable decision in the substantive matter will be rendered nugatory. This proposition is underpinned by the proposition referred to above namely that in refugee cases only the highest standards of fairness will suffice since questions of life, personal safety and liberty are at stake.
 
[17] If Mr Khambatta's proposition is correct it is somewhat strange that it has not been recognised by the courts previously in view of the number of immigration cases which come before the courts.

[18] The application for interim relief is made under the provisions of s 8 of the Judicature Amendment Act I972. This section gives the court a discretion “if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant" to make the type of order sought. There have been two main approaches taken by the court in considering relief under s 8. The first is that the relevant principles are similar to those applicable to the grant of an interim injunction where it must be first established that there is a "serious question" to be tried. The second, and broader approach, is that the application must satisfy a  threshold requirement as to an interim injunction but that thereafter it is undesirable to attempt to lay down guidelines. It is the second broader approach which the Court of Appeal adopted in Carlton v United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423. Cooke J stated that the approach to be taken to s 8 applications is:

“Of course I am not suggesting that there should be any general rule that a prima facie case is necessary before interim relief can be granted under s 8. In general, the Court must be satisfied that the order sought is necessary to preserve the position of the applicant for interim relief - which must mean reasonably necessary. If that condition is satisfied ... the Court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief."

"Section 8 of the Judicature Amendment Act does not mandate any particular approach to the statutory test of whether an interim order is necessary for the purpose of preserving the position of the applicant. The legal answer must depend on an assessment by the Judge of all the circumstances of a particular case. Clearly the nature of the review proceedings will be material. So will the character, scheme and purpose of the legislation under which the impugned decision was made. And appropriate weight must of course be given to all the factual circumstances including the nature and prima facie strength of the applicant's challenge and the expected duration of the interim order. Nor should the residual discretion under section 8 be circumscribed by reading qualifications into the broad language of the section."

"I would have thought both that there must be a real contest between the parties, and that the applicant has a reasonable chance of succeeding in that contest.”

Somehow, the notion seems to have crept into the jurisprudence that it is the plaintiff who is being deprived of something, rather than a requirement that the plaintiff demonstrate entitlement, after due review by the agencies of the State. If New Zealand had a somewhat antiquarian immigration statute, and inadequate appeal procedures on humanitarian grounds, then one's view might be otherwise as to the way in which the law should operate in this area. But it does not. The immigration legislation has been reviewed and appropriate procedures are in place.”

Decision

[23] For the reasons which I have given in the previous section, I do not accept Mr Khambatta's basic submission and interim relief can only be granted if the other grounds put forward either in the written application for interim relief or in Mr Khambatta's written submissions, establish that there are grounds for judicial review in this case.

[24] It is relevant to note that the original decision of the Refugee Status Branch was made in January 1992 and the appeal from that decision declined in December 1995. No application for judicial review of those decisions has previously been made. It should also be noted that at the relevant time the Refugee Status Determination Procedures provided that a person who had previously had a claim to refugee Status finally determined by the Refugee Status Branch or the Authority has no right to have a further claim accepted for consideration by the Refugee Status Branch, unless since the original determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim. It was on the basis of this policy that the Refugee Status Branch declined Mr Singh's further application in July 1996.

[25] It is of interest to note that in its decision of 14 December 1995 the Appeals Authority found Mr Singh to be honest and credible but the Appeals Authority in its decision of 12 December 1996 (a different Appeals Authority) found him not to be credible and that the whole of his second appeal was a fabrication. It must be said, however, that the reasons for the second Appeals Authority finding Mr Singh not to be credible are quite cogent.

[26] There is nothing in the documents which persuades me to the view that Mr Singh has advanced any genuine grounds for judicial review. As such it is not appropriate to grant the interim relief sought. Most of the grounds set out in the written application for an interim order relate to the main points already made to Mr Khambatta and which I have not accepted. The other points relate to a breach of the Human Rights Act and the obligations under the International Covenant on Civil and Political Rights and the optional protocol thereto and the failure of the defendants to consider the right to a private life of Mr Singh within the meaning of the International Covenant. The decisions appealed from cover matters which one would expect to be covered in such applications and Mr Singh has not referred to any procedural impropriety or any unreasonableness of the type necessary to establish grounds for judicial review. It is of interest to note that Mr Singh appealed two decisions of the Refugee Status Branch and that such appeals are appeals de novo. If there had been a breach of natural justice those matters would have been addressed and cured on appeal. This is another case where the statement of claim includes a lot of general grounds but lacks particularity.

[27] Fundamental to Mr Khambatta's submission is that Mr Singh's life is at grave risk if he is to return to India. These matters were fully considered both by the Refugee Status Branch and the Appeals Authority and they have found against Mr Singh. No ground is now advanced which would justify  judicial review and for this reason, I am not satisfied that Mr Singh has made out a case for interim relief. It is not necessary to consider the delay in making the application for judicial review as no grounds have been made out which would justify interim relief. The application for interim relief is therefore declined.

Solicitors for the plaintiff: Patel Kumar Law (Hamilton)
Solicitors for the defendants: Crown Solicitor (Auckland)