High Court Cases 

High Court Auckland M715/97
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).  On 24 November 1994 the appeal was dismissed. The RSAA held that the appellant was not a credible witness.  In March 1995 the appellant filed a second application for refugee status, and when this was declined by the Refugee Status Branch, he appealed for the second time to the RSAA.  On 27 February 1997 the appeal was dismissed, the RSAA holding that the appellant's account was not credible.  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 [23]).

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

Application dismissed.

Other cases mentioned in judgment

Esekielu v Attorney-General (1993) 6 PRNZ 309 (Hammond J)
Khan v Removal Review Authority (High Court Auckland, M 699/97, 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, M 45/95, 8 March 1996, Morris J)

Counsel
K P Khambatta for the plaintiff
M A Woolford for the defendants

PATERSON J [1] Mr Singh has twice over a  period of four years, applied to the first defendant ("Refugee Status Branch") for a grant of refugee status. Both applications have been declined. Both decisions of the Refugee Status Branch were appealed against to the second defendant (“Appeals Authority”) and both appeals were unsuccessful. The Third defendant (“the Branch Manager”) has issued a removal order against Mr Singh.

[2] Mr Singh in the substantive action seeks judicial review of both decisions of the Refugee Status Branch, of the second decision of the Appeals Authority and of the Branch Manager's decision to issue and execute the removal order. These proceedings seek interim relief pending the hearing of the substantive matter and  seek to stay execution of all proceedings, warrants, and orders against Mr Singh until the final hearing and determination of the application for judicial review and specifically seek an order that the execution of the removal order issued by the Branch Manager dated 13 March 1992 and all enforcement proceedings against Mr Singh be stayed until the final hearing and determination of Mr Singh's application for judicial review.

Background facts

[3] Mr Singh, a citizen of India of Sikh faith, is aged 43 years. He arrived in New Zealand in October 1989 on a visitors visa which expired in February 1990. In September 1991 Mr Singh applied for refugee status in New Zealand on the grounds that he feared being killed by the police in India. This application was declined by the Refugee Status Branch.  In October 1992 Mr Singh appealed this decision to the Appeals Authority. On 2 August 1993 the Branch Manager issued a removal order and served it on Mr Singh. The Appeals Authority gave its decision on 24 November 1994 dismissing Mr Singh's appeal against the decision of the Refugee Status Branch and in its decision noted that they considered Mr Singh's account so unreliable that they were not prepared to accept it.

[4] Mr Singh lodged a second application for refuge status in March 1995. An immigration officer, being an employee of the Refugee Status Branch, prepared an assessment report on Mr Singh's application after interviewing Mr Singh. This report recommended that the Refugee Status Branch refuse to accept Mr Singh's claim for refugee status and concluded that Mr Singh's circumstances had not changed in extent to admit a further claim for refugee status based on significantly different grounds to his original application. The Refugee Status Branch declined this further application on 30 August 1996. Mr Singh appealed this decision to the Appeals Authority which gave its decision on 27 February 1997. This decision has a section on credibility and noted that after the first appeal Mr Singh was found not to be a credible witness. The Appeals Authority having heard him in respect of this second appeal came to the same conclusion. He gave thirteen reasons for coming to the conclusion that Mr Singh's account cannot be relied upon in any material respect. The appeal was dismissed.

[5] The Branch Manager issued the removal order against Mr Singh in August 1993 after the Refugee Status Branch had declined the first application but before the appeal from that decision had been determined by the Appeals Authority. However, for reasons of which I am not aware but presumably related to Mr Singh's on going applications and appeals, the Branch Manager appears not to have taken any further action until 22 April 1997. On that date he proceeded to execute the removal order against Mr Singh and seize Mr Singh's Indian passport. He made arrangements to remove Mr Singh from New Zealand and booked a ticket for him to leave New Zealand for India on 27 May 1997.

[6] It is pleaded that the Branch Manager in coming to his decision to execute the removal order relied and acted on the decision of the Appeals Authority dated 27 February 1997.

Grounds for application

[7] The written interim application set out various grounds which I will need to refer to in due course. Prior to the hearing, 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.

[8] 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 scrutinize 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.

[9] 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

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

[11] 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."

[13] 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 application 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 exercisedhis 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.”

[15] The third case was Zhan v Refugee Status Appeals 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.

[16] Finally, in Khan and Others v Removal Review Authority (unreported, M699/97, 3 June 1997, 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 now before the court were two matters which related to factual circumstances which it was 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.

[17] 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 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.

[18] 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.

[19] The application for interim relief is made under the provisions of s 8 of the Judicature Amendment Act 1972.  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

[24] It follows from my conclusions on the law that Mr Singh is not entitled to an interim order on the grounds put forward by Mr Khambatta at the hearing.

[25] In fairness to Mr Singh however, it is also necessary to consider the grounds set forth in the written application for interim relief and written submissions previously filed by Mr Khambatta.

[26] In a supporting affidavit Mr Singh deposes to fearing for his life if he is required to return to India and refers to previous detention, torture, harassment, persecution, assaults, and application by the police of excessive force. He says his brother and father were also abused and mistreated and that his father was detained in police custody without justification or reason for almost a year before he died from internal injuries. He alleges that the Branch Manager has acted in bad faith by making arrangements to remove him from New Zealand. He says that the Refugee Status Branch failed to take into account or ignored material factors such as the lengthy detention and ilI treatment of his father, the fact that the lengthy and continuous interrogation of his father centered around him, the fact that the grounds for his second application were that the earlier grounds had been exacerbated or worsened and therefore amounted to new grounds, and the fact that the death of his father should have put the Refugee Status Branch on notice that India had not neutralised but had now engaged in implementation of threats to kill. Mr Singh acknowledges that the Appeals Authority in its decision of 27 February 1997 found that his account could not be relied upon in any material respect but says that in embarking on such a credibility issue the Appeals Authority took into account irrelevant or extraneous factors. He also alleges that cross examination was unfair and unreasonable. There is an allegation that the Appeals Authority acted without evidence.

[27] It must be said, as was submitted by Mr Woolford, that both the affidavit and the statement of claim in this matter are in effect devoid of particulars in respect of which it is alleged that either the Refugee Status Branch or the Appeals Authority or the Branch Manager acted unreasonably or failed to comply with the normal rules of process and procedure.

[28] In the written application the grounds include that the decisions of the defendants (presumably all three of them) are in breach of the Human Rights Act and their obligations under the International Covenant on Civil and Political Rights and the optional protocol thereto and that they failed to consider the right to a private life of Mr Singh within the meaning of the International Covenant. The remaining grounds are in effect grounds similar to the basic submission made by Mr Khambatta which I have rejected.

[29] In the written submissions it is suggested that the Appeals Authority failed to approach the case in a fair manner and placed too much weight on the response of Mr Singh to the lengthy and gruelling questioning which Mr Singh felt was aimed at discrediting him. It is said that the Appeals Authority appeared to have pre-determined the issue and although stated in other words, in effect submitted that not sufficient consideration was given to the position of the plaintiff's father and the serious danger in which Mr Singh would be placed if he returned to India. There are broad submissions that the Appeals Authority made assumptions in the absence of evidence and that the Appeals Authority was biased, unreasonable and unfair. The submissions are broad in allegations but short when it comes to facts.

[30] The first decision of the Refugee Status Branch was made on 22 October 1992 and Mr Singh seeks to review that nearly five years later. The decision of the Appeals Authority dismissing the appeal from that decision was given in November 1994 and no application to review was filed at that time. Further, the appeal was a de novo appeal and should have dealt with any procedural improprieties in the decision of the Refugee Status Branch. I have read the decision of the Appeals Authority. The Appeals Authority took into account the factual basis of the appeal namely that the police in the Punjab have continued to harass Mr Singh's family and that his father subsequently died because of injuries caused by the police. The Appeals Authority did note that Mr Singh had not been found to be a credible witness at the first appeal and that he had come to the same conclusion. He devoted nearly three pages of his decision to the reasons for his finding against Mr Singh. They are convincing.

[31] It is my view that neither in the grounds set out in the written application nor in Mr Khambatta’s written submissions is there anything which establishes a ground for judicial  review. There is simply no evidence of it. There are wide allegations with no particulars to support them. The fact that Mr Khambatta based his application on the principle that he should be entitled to interim relief until he had an opportunity to consider the transcript is a further indication that in fact there are no obvious grounds for judicial review.

[32] As Mr Singh has failed to discharge the onus and establish that there may be reasonable grounds for judicial review and appears to be merely endeavouring to hold the status quo until he can check the position to see whether or not there may be grounds, I am not prepared to grant relief under s 8 of the Judicature Amendment Act 1972. The application for interim relief is therefore declined.

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