RefNZ Case Search

High Court Cases 


Ali v Minister of Immigration

High Court Auckland M2270/91
13 December 1991
Barker J (oral judgment)

Right of appeal to the Refugee Status Appeals Authority - Whether decline of refugee status in another Convention country precludes consideration of refugee application and appeal in New Zealand - Judicature Amendment Act 1972, s 8.

On 2 April 1991 the Minister of Immigration announced that Cabinet had approved new procedures for determining refugee status. Those procedures prescribed a right of appeal to the Refugee Status Appeals Authority (RSAA) against decisions made by the New Zealand Immigration Service to decline refugee status. In December 1991 the plaintiff, a Palestinian Arab, arrived in New Zealand as a stowaway on a British ship and was taken into custody pursuant to s 128 Immigration Act 1987. The plaintiff alleged that he tried to tell an immigration officer that he wanted to claim refugee status but was not given a chance to explain his story and was told he would not be considered for refugee status. After instructing a lawyer, the plaintiff later made a statement through an interpreter in which he set out his claim to refugee status. He also said that he had left Israel years ago and had since travelled to a number of countries, including the Netherlands where he had applied unsuccessfully for refugee status. He then stowed away on the ship which brought him to New Zealand. The Minister argued that there was no obligation to consider the application for refugee status because the plaintiff had already been declined refugee status by another convention country, the Netherlands, and had chosen not to appeal against that decision. To prevent his removal from New Zealand the plaintiff brought an application for the writ of habeas corpus and also instituted proceedings under the Judicature Amendment Act 1972 seeking judicial review.

Held:

1    There was nothing in the documentation issued by the Minister of Immigration in setting up the RSAA which precluded applications for refugee status to the Immigration Service or appeals to the RSAA by individuals who had been declined refugee status by another country. Any such restriction would have to be stipulated expressly in the documents setting up the RSAA. Although there was force in the submission by the Minister that he did not want to encourage stowaways coming to New Zealand as such persons would often be very hard to remove from New Zealand due to their lack of travel documentation, the plaintiff had the right to have his appeal determined in accordance with the procedures set up by the Government (see paras [8], [13] & [18]).

2    The refusal of the Immigration Service to consider whether the plaintiff should go through the processes set up to determine his refugee status was effectively a determination that the plaintiff's claim was manifestly unfounded. The plaintiff clearly had a right of appeal against that determination (see apra [17]).

3    The appropriate challenge was by way of judicial review of the decision to detain under s 128 of the Immigration Act 1987, not habeas corpus (see para [19]).

R v Secretary of State for the Home Department, Ex parte Muboyayi [1992] 1 QB 255; [1991] 3 WLR 442; [1991] 4 All ER 72 (CA) followed.

Observation: The RSAA is not constituted by statute. But the fact that it has solemnly been established by Government decree means that its existence cannot be ignored. Not being a body exercising statutory power, its decisions could not be susceptible to judicial review but only to the prerogative writs. If, however, the RSAA recommended what was to be done by the Minister of Immigration under the exercise of a statutory power, to that extent there will be an exercise of a "statutory power decision" for the purposes of the Judicature Amendment Act 1971 (see para [15]).

Order made under s 8 Judicature Amendment Act 1972 forbidding any steps being taken to remove the plaintiff from New Zealand pending the determination of his appeal by the RSAA but subject to the plaintiff undertaking to prosecute his appeal before the RSAA with due expedition. Application for habeas corpus dismissed.

Counsel
R J Towle for the plaintiff
V Shaw for the defendants

[Editorial note: The High Court has held that decisions of the RSAA are reviewable by way of the prerogative writs: Singh v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J). However, the issue has been expressly left open by the Court of Appeal: Butler v Attorney-General (Court of Appeal, Wellington, CA181/97, 13 October 1997) 19-23 and S v Refugee Status Appeals Authority [1998] 2 NZLR 291, 294 (CA).

As to the application of the Refugee Convention to Palestinians, see Refugee Appeal No. 1/92 Re SA (30 April 1992) and Takkenberg, The Status of Palestinian Refugees in International Law (Clarendon Press, Oxford 1998).

As to manifestly unfounded claims, see Refugee Appeal No. 1/92 Re SA (30 April 1992) and Refugee Appeal No. 70951/98 (5 August 1998)].

BARKER J [1] The plaintiff, a Palestinian Arab by birth, arrived in New Zealand on 9 December 1991 as a stowaway on board the British ship "Resolution Bay" when it docked at the Port of Auckland. The Master of the ship informed the Immigration authorities of the plaintiff's presence on board as a stowaway; the plaintiff was immediately taken into custody by the Police at the request of the Immigration authorities. Since his arrival in this country, he has been held in custody in Mt Eden prison, pursuant to S.128 of the Immigration Act 1987 ('the Act').

[2] The plaintiff speaks French and Arabic but only very poor English. He alleges that he tried to tell the Immigration officer that he claimed refugee status; he deposes that he was not given any chance to explain his story but was told summarily that he would not be considered for refugee status.

[3] On 11 December 1991, the plaintiff was seen by a prison welfare officer who contacted a firm of solicitors who arranged for him to be interviewed in the presence of an Arabic interpreter to whom the plaintiff made a statement.  In his statement, the plaintiff claimed that he left Israel some years ago and has since been a stateless person living in a variety of countries including Morocco, France, Belgium, Holland, the United Kingdom and Germany. In Holland he applied for refugee status which claim was refused by the relevant Dutch authorities. He claimed he did not receive proper legal advice in Holland; nevertheless he did not avail himself of the right under Dutch law to appeal against the decision denying him refugee status in Holland.

[4] The plaintiff then decided to stow away on a ship for Australia which he did. The ship sailed through various parts of the world and returned to Holland.  He stowed away on another ship which ended up in New Zealand. He apparently passed through Australia but made no claim for refugee status there.

[5] The Minister of Immigration made an announcement on 2 April 1991 giving details of recently-introduced procedures, approved by Cabinet, for determining refugee status. Essentially, the procedures involve the New Zealand Immigration Service making a first-instance decision about eligibility for refugee status in accordance with international criteria. If that status is refused, then declined applicants have a right of appeal to a Refugee Status Appeal Authority which consists of a retired District Court Judge, two practising barristers, a representative of the United Nations High Commissioner for Refugees office and a representative of the Ministry of External Relations and Trade. The official start-up date for the new procedure was 1 January 1991. The documents issued by the Minister set out detailed procedures for applications for refugee status and for appeals.

[6] The first part of the process is for the Immigration Service to decide whether, prima facie, the application discloses grounds for further consideration or whether the claim is manifestly unfounded.  There is then provision for a further assessment in accordance with an international convention before a final decision is made as to eligibility or not.

[7] In the present case, the defendants say that they should not have to begin to embark on the process for this plaintiff because he has been denied refugee status by another convention country, namely the Netherlands, a country with an acceptable and civilised system of justice; the plaintiff did not exercise rights of appeal granted to him under Dutch law. The Immigration Service says, in effect, that it should not have to consider the case of somebody who has already been through the convention processes and has been declined refugee status by a friendly country.

[8] Unfortunately, for this point of view, there is nothing in the documentation issued by the Minister setting up the Appeal Authority which precludes application for refugee status to the Immigration Service or appeals to the Appeal Authority by anybody who has been declined refugee status by another country. As Mr Towle pointed out, there might be some difficulties in enshrining such a statement because one may not be quite so sanguine about legal procedures in some countries which are parties to the convention as one might be about procedures in Holland.

[9] The “statutory power of decision" which counsel for the plaintiff seeks to impugn is that of the immigration officer in refusing to issue this man with a visitor's permit. There is machinery in recently-enacted amendments to the Act, namely ss.128A and 128B for dealing with persons such as the plaintiff who seek judicial review of immigration decisions. In effect, it seems that they have to remain in custody for at least 28 days and then the District Court has power to consider the grant of bail.

[10] There is also a provision in S.125 of the Act which makes the owners of a ship that brings a stowaway into the country liable for the stowaway's support during the time he or she is in this country. There is a letter exhibited in the affidavits, from the solicitors for the shipping company concerned; this indicates that the shipping company is aware of its obligations under S.125 of the Act and that the carrier is ultimately liable to meet the costs of removing the plaintiff from New Zealand. The shipping company, however, is concerned at the risk of safety to its crew by the presence of the plaintiff on board because of what is alleged to be his volatile and desperate temperament caused by his predicament. However, Miss Shaw indicates that the shipping company is prepared, albeit grudgingly, to take this man on board tomorrow when the ship is due to leave Dunedin and to take him to Holland as the place where he boarded the ship.  There it is said he will become the responsibility of the Dutch authorities to find somewhere for him to go.

[12] Counsel for the defendants submitted that the Immigration Service was not keen to encourage this kind of stowing-away because applicants present the Immigration Service with a fait-accompli. Once the ship on which they arrive leaves New Zealand waters, there can be difficulties in removing such persons by air; they will not be allowed to travel by air without travel documents; notoriously, people in the situation of the plaintiff, have no travel documents whatsoever.

[13] I can see much force in the arguments put forward by counsel for the defendants. However, it seems to me that the Government having set up this elaborate appeal procedure, the plaintiff must have the right to have his appeal determined in accordance with it.

[14] Counsel has been in touch with the Chairman of the Appeal Authority, who indicates that the appeal could be heard as soon as the personnel on the authority can be assembled; the representative of the United Nations Commission for Refugees has to come from Canberra. Once this man leaves the country of course then his appeal rights are nugatory.

[15] Therefore, it seems I have little option but to make an order under s.8 of the Judicature Amendment Act forbidding any steps to be made to remove the plaintiff from New Zealand pending the determination of his appeal by the Refugee Status Appeal Authority. I note that this authority is not constituted by statute; but the fact that it has solemnly been established by Government decree means that its existence cannot be ignored; not being a body exercising statutory power, its decisions could not be susceptible to judicial review but only to the perogative writs.

[16] Counsel points out, however, that if this body recommends what is to be done under the exercise of the statutory power by the immigration authorities, to that extent there will be an exercise of a “statutory power of decision".

[17] It may well be that at the hearing before the Appeal Authority, the fact that this man's application was considered and rejected by the Dutch authorities will be a very potent reason against granting him refugee status here; but that will be entirely a matter for the Appeal Authority. I cannot see that the fact the New Zealand Immigration Service refuses even to consider whether this man should go through the new process is other than saying that his claim is manifestly unfounded. If that is the case, then he clearly has been given a right of appeal against that determination.

[18] I note that there is nothing in the documents setting up the Appeal Authority which precludes somebody who has already been through an application of this nature before another country from applying; if some restriction is sought on this basis then it will have to find its way into the documents setting up the authority.

[19] Mr Towle applied also for a writ of habeas corpus. I think this course is inappropriate and on the authority of the English Court of Appeal in R v Secretary of State for the Home Department (Ex parte) Muboyayi (1991) 4 All E.R.72. In that case, the Court of Appeal held that a citizen of Zaire claiming refugee status which had been rejected by the Secretary for State, should challenge that decision not by way of habeas corpus, but by way of judicial review.    Accordingly, the plaintiff's application for habeas corpus is dismissed.

[20] The application for temporary restraining orders under S.8 of the Judicature Amendment Act is granted. As a term of this order, the applicant will have to undertake to prosecute the appeal before the Refugee Status Appeal Authority with due expedition. Liberty to apply is reserved.

[21] I am not making any comment on the decision of the Immigration Service not to give this man bail. That will be a matter for the Immigration Service and/or the District Court in terms of S.128A and S.128B of the Act.

[22] I also mention another ground claimed by Mr Towle; i.e. that the plaintiff was not advised of his right to a lawyer in terms of S.23(1) (b) of the New Zealand Bill of Rights Act 1990 and S.140(4) of the Immigration Act 1987. I am not making a determination in respect of this matter.  It seems clear from the evidence that this man understands properly only Arabic and French. I do not know whether he was advised of his rights by anybody in either of these languages. He claims he was not; the issue may be a matter for determination on another occasion.

Solicitors for the plaintiff: Haigh Lyon & Co (Auckland)
Solicitors for the defendants: Crown Solicitor (Auckland)