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High Court Auckland CIV 2005-404-004648; [2005] NZAR 740
22 August 2005; 26 August 2005
Venning J

Judicial review - adjournment - jurisdiction to review decision of RSAA not to adjourn

Legal aid - whether delay in receiving legal aid ground for adjournment of RSAA hearing

Legal aid - whether refusal of legal aid a denial of natural justice - Legal Services Act 2000 ss 9(3), 12(c) and 65(2) - New Zealand Bill of Rights Act 1990, ss 22 and 27 - Refugee Convention Articles 16, 25 and 31

Procedure of RSAA - adjournment application - whether delay in receiving legal aid ground for adjournment of RSAA hearing

1. The Court had jurisdiction to make the order sought. The RSAA was proposing to exercise a statutory power, namely the power to hear the appeal and the decision of the RSAA was one which would decide or affect the rights of the plaintiff. Although the case came before the Court because the RSAA had declined an adjournment, it was not strictly a case where the relief sought was a review of the decision to decline to grant an adjournment (see paras [15] to [18]).

Chef and Brewer Bar and Café Ltd v Police [1994] NZAR 428 (Tomkins J) and Lewis v Jamieson (High Court, Hamilton, M103/91, Doogue J) referred to.

2. The submission that without legal advice the plaintiff would be denied natural justice involved two propositions. First, that without legal advice the plaintiff would not be represented and second that if he was not represented, he would be denied natural justice. Taken to its logical conclusion, the effect of the submission would be that if the ultimate decision was to decline legal aid then the hearing before the RSAA could never proceed as the applicant would by definition be denied natural justice. It was not possible to accept this proposition. The corollary of the proposition was that in immigration cases where application for refugee status is at stake, legal aid would always have to be granted. However, that is not the position that applies under the Legal Services Act 2000. Parliament has chosen not to provide for such an outcome. The application for legal aid is subject to the provisions of s 9(3) of the Legal Services Act 2000 (see para [19]).

3. As to the first proposition, it does not necessarily follow that the applicant need be unrepresented even absent a decision on the legal aid review application before the hearing. Section 12(c) of the Legal Services Act 2000 provides that the grant of legal aid may be made at any time before the matter to which the application relates is finally disposed of by the court or tribunal. Section 65(2) of that Act provides that the fact a lawyer provides legal services does not in any way affect their rights, obligations, responsibilities, or duties as a lawyer or the relationship between the rights of the lawyer and their client or any privilege arising out of the relationship. In the present case, counsel for the plaintiff had already filed submissions with the RSAA. While counsel should not be placed in the position of having to appear pro bono by the Legal Services Agency, the application seeking a review of the RSAA decision was not the vehicle to resolve the difficulties that counsel may face with that Agency. Whether the decision of the Legal Services Agency to decline legal aid was right or wrong was not in issue before the Court. The Agency was not a party to the proceedings (see para [20]).

4. As to the second proposition (that without representation the plaintiff would be denied natural justice) the proceedings before the RSAA were civil proceedings and the position faced by the plaintiff before the RSAA was not that of a person facing criminal charges. In addition, the nature of the hearing before the RSAA was non-adversarial and was in the nature of a de novo hearing. In practice, the RSAA hearings were quite different and distinct to an adversarial hearing (see paras [21] to [25]).

5. The rights in Article 16 of the Refugee Convention were not infringed by the RSAA proceeding with the hearing in the absence of legal aid being granted to the plaintiff. The plaintiff had free access to the courts of law, as exemplified by his application to the High Court. The applicant had the same treatment as a national in matters concerning access including legal assistance in that the Legal Services Act 2000 makes provision for consideration of legal aid to be granted to a person in the position of the applicant (see paras [26] & [27]).

6. The natural justice requirement in s 27(1) of the New Zealand Bill of Rights Act 1990 was satisfied. An appellant before the RSAA had the opportunity to make a statement in support of his request for refugee status and to make further submissions to the RSAA whose members are experienced in such matters. While obviously an interpreter would be required it was not a case where a lawyer was required for the requirement of natural justice to be satisfied (see para [29]).

7. Section 27(3) of the New Zealand Bill of Rights Act 1990 did not apply. The hearing was not adversarial in nature. The grant of legal aid was not a requirement for there to be due process. Nor did s 22 of the New Zealand Bill of Rights Act 1990 apply as the plaintiff's detention was pursuant to an Act of Parliament and the plaintiff accepted that he was an illegal immigrant (see para [39]).

8. Article 25 of the Refugee Convention did not have application to the present case. That Article contemplates the Contracting State would arrange assistance of the nature that would otherwise be provided by authorities of a foreign country. It was not applicable to the issue of the availability of legal aid in New Zealand at a hearing before the RSAA (see para [32]).

9. While Article 31 of the Refugee Convention requires that Contracting States not impose penalties on refugees, no penalties were imposed on the plaintiff. The only penalty in the present case that could have been said to have been imposed on the plaintiff was the fact that he was held in custody. That, however, was expressly contemplated and provided for by Article 31(2). The desire of the RSAA to afford some priority to the hearing of the plaintiff's case given his custody status was a recognition of the importance placed on the plaintiff's custody status (see para [33]).

10. The plaintiff had failed to satisfy the Court that there was a serious question to be tried that the RSAA would be in breach of ss 22 and 27 of the New Zealand Bill of Rights Act 1990 or Articles 16, 25 and 31 of the Refugee Convention by proceeding to hear the plaintiff's refugee appeal without the plaintiff first having his appeal against the declimature of legal aid being determined (see para [34]).

Gideon v Wainwright 372 US 335 (1963) (USC)
Refugee Appeal No. 523/92 (17 March 1995) (NZRSAA)

[1] On 22 August 2005 the plaintiffs application for injunction was brought on at short notice. At the conclusion of the hearing I declined the application for injunction with reasons to follow. These are the reasons.

Background

[2] On 11 March 2005 the plaintiff illegally entered New Zealand and declared himself to the New Zealand Immigration Service.

[3] The plaintiff was subsequently detained under s 186(6) of the Immigration Act 1987 as he had no official documentation.

[4] On 16 March 2005 the Refugee Status branch informed the Legal Services Agency that the plaintiff required legal representation. On 18 March 2005 Mr Foley of Kumeu-Huapai Law Centre was contacted by the Legal Services Agency and assigned as counsel.

[5] The plaintiff was interviewed by the Refugee Status Branch on 21 and 22 April 2005. On 4 May 2005 the interview report was sent to Mr Foley. On 13 May Mr. Foley made further submissions in support of the plaintiff.

[6] On 20 June 2005 the Legal Services Agency declined the application for legal aid.

[7] On 30 June 2005 the Refugee Status Board made a decision declining the plaintiffs claim to refugee status.

[8] On 1 July 2005 an appeal was lodged with the Refugee Status Appeals Authority ("RSAA"). Priority was accorded to the appeal as the plaintiff was in custody.

[9] On 13 July Mr Foley was advised of the appeal date of 23 and 24 August 2005.

[10] On 5 August 2005 Mi Foley made an adjournment application pending reconsideration of the legal aid refusal. On 9 August 2005 the adjournment application was declined.

[11] On 12 August 2005 Mi Foley made a further adjournment application. That application was declined on 16 August.

[12] On 18 August the plaintiffs solicitors filed submissions on the substance of the appeal before the RSAA on behalf of the plaintiff

[13] On 22 August these proceedings were issued and brought to an urgent hearing on a Pickwick basis.

The relief sought

[14] The plaintiff sought an order by way of judicial review injuncting and prohibiting the RSAA from hearing, determining or in any way dealing with the appeal until the Legal Services Agency had completed the review decision and the plaintiff had exhausted all his rights of further review and/or appeal under that legislation.

Jurisdiction

[15] The first issue is whether there is jurisdiction for this Court to make the order sought. Although initially brought on the basis of interim relief, given the nature of the relief sought and the imminent hearing, counsel were content for the matter to be dealt with on a final basis.

[16] There is jurisdiction to hear the application. This is an application for review in relation to the proposed exercise by the RSAA of a statutory power, namely the power to hear the appeal. The relief sought is that of an injunction to prevent that proposed exercise of the statutory power. Section 3 of the Judicature Amendment Act 1972 provides:

[17] The decision of the RSAA is a decision that will decide or affect the rights of the plaintiff.

[18] Although the case comes before the Court because the RSAA has declined an adjournment, it is not strictly a case where the relief sought is a review of the decision to decline to grant an adjournment as in the cases of Lewis v Jamieson & Anor (High Court, Hamilton, M103/91, Doogue J) and Chef and Brewer Bar and Café Limited v Police (High Court, Auckland, CP204/94, 24 June 1994, Tomkins J) . I accept there is jurisdiction to make the order sought.

[19] The basis for the application is, as Mr Lawn submitted, that without legal advice the plaintiff would be denied natural justice. That submission involves two propositions, first, that without legal advice the Plaintiff would not be represented and second that if he was not represented, he would be denied natural justice. Taken to its logical conclusion the effect of the submission must be that if the ultimate decision was to decline legal aid then the hearing before the RSAA could never proceed as the applicant would by definition be denied natural justice. I am unable to accept that proposition. The corollary of the proposition is that in immigration cases where application for refugee status is at stake legal aid would always have to be granted. However, that is not the position that applies under the Legal Services Act. Parliament has chosen not to provide for such an outcome. The application for legal aid is subject to the provisions of section 9(3) of the Legal Services Act.

[20] Dealing with the first proposition, it does not necessarily follow that the applicant need be unrepresented even absent a decision on the legal aid review application before the hearing. Section 12 (c) of the Legal Services Act provides that the grant of legal aid may be made at any time before the matter to which the application relates is finally disposed of by the court or tribunal. Section 65 (2) of the Legal Services Act provides that the fact a lawyer provides legal services does not in any way affect their rights, obligations, responsibilities, or duties as a lawyer or the relationship between the rights of the lawyer and their client or any privilege arising out of the relationship. In the present case, counsel for the plaintiff has already filed submissions with the RSAA. I accept as Mr Lawn submitted, that counsel should not be placed in the position of having to appear pro bono by the Legal Services Agency, but this application is not the vehicle to resolve the difficulties that counsel may face with that Agency. Whether the decision of the Legal Services Agency to decline legal aid is right or wrong is not in issue before the Court on this application. The Legal Services Agency is not a party to these proceedings. The issue is whether the RSAA should be injuncted to prevent it dealing with the plaintiffs appeal until the issue of legal aid is resolved.

[21] The principal focus was on the second proposition, namely that without representation the plaintiff would be denied natural justice.. In support of the application, Mr Lawn referred to the decision of the Supreme Court of the United States in Gideon v Wainwright 372 US 335 (1963) where Black J emphasised the need for representation in strident terms:

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with a crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

[22] The powerful words of Black J of course apply in the circumstances of criminal proceedings and particularly to the position of a defendant facing the might of a state funded prosecution in an adversary situation.

[23] The Legal Services Act identifies proceedings under the Immigration Act as civil proceedings, not criminal: s 7 (l)(k) Legal Services Act.

[24] The position faced by the plaintiff before the RSAA is not that of a person facing criminal charges. It is important to record that quite apart from the recognition by the Legal Services Act that hearings before the RSAA are civil in nature, the nature of the hearing before the RSAA is non-adversarial and is in the nature of a de novo hearing. The nature of a hearing before the RSAA was considered by that authority in Refugee Appeal No. 523/92, 17 March 1995. In that decision the RSAA noted that:

The essential task of the Authority is to decide whether a particular individual is a refugee. There is no "dispute" between the individual and the Immigration Service, nor is the Authority charged with resolving a "contest" between them. The fact that under Part I1 paragraph 5(l)(a) the determination of refugee status is made "on appeal" adds nothing to this essential task as the issue remains the same, namely: in the particular case the Inclusion Clause criteria prescribed by Article lA(2) of the Refugee Convention satisfied. The words "on appeal" signify only that the determination of refugee status by the Authority follows a negative decision made at first instance by the Refugee Status Section. The words do not, on their own, indicate that there is an onus on the appellant to show that the decision at first instance is wrong in fact or in law or that there is a dispute between parties. On the contrary, the statement that it is the function of the Authority to make a determination whether a person is a refugee very much suggests that the jurisdiction is original in the sense that the decision is to be made unfettered by that taken at first instance and that there is no "contest" between the appellant and the Refugee Status Section of the Immigration Service.

[25] In practice the RSAA hearings are quite different and distinct to an adversarial hearing. The representative is invited to make opening submissions and to lead whatever evidence from the appellant as may be necessary. The RSAA itself examines the appellant. The appellant then has an opportunity to speak again and to make final submissions by counsel if represented. There is no representative from the New Zealand Immigration Service or Refugee Status Branch present.

[26] In support of the application for injunction Mr Lawn referred to Article 16 of the Convention relating to the Status of Refugees. That is incorporated into the Immigration Act by s 129D which requires the RSAA to act in a manner consistent with New Zealand's obligation under the Refugee Convention. The text of the Convention is set out in Schedule 6 to the Act. Article 16 provides for access to courts:

1. A refugee shall have free access to the courts of law on the territory of all Contracting States.

2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.

3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.

[27] The rights in Article 16 are not infringed by the RSAA proceeding with the hearing in the absence of legal aid being granted to the plaintiff. The plaintiff has free access to the courts of law. That is exemplified by his application to this Court. The applicant has the same treatment as a national in matters concerning access including legal assistance in that the Legal Services Act makes provision for consideration of legal aid to be granted to a person in the position of the applicant.

[28] Mr Lawn next submitted that s 27 New Zealand Bill of Rights Act 1990 provided for the equivalent due process as required by the United States Constitution. He relied in particular on subs (1) and (3):

(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

...

(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

[29] The natural justice requirement in section 27 (1) is satisfied. The appellant before the RSAA has the opportunity to make a statement in support of his request for refugee status and to make further submissions to the RSAA whose members are experienced in such matters. While obviously an interpreter will be required it is not a case where a lawyer is required for the requirement of natural justice to be satisfied.

[30] Section 27 (3) does not apply. The hearing is not adversarial in nature. The short point is that the grant of legal aid is not a requirement for there to be due process. Mr Lawn also referred to section 22 NZBOR. The detention in the present case is pursuant to Act of Parliament. The plaintiff accepts that he is an illegal immigrant. Section 22 has no application.

Administrative assistance

1. When the exercise of a right by a refugee would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting States in whose territory he is residing shall arrange that such assistance be afforded to him by their own authorities or by an international authority.

[32] With respect to Mr Lawn's reliance on Article 25, in particular cl 1, it does not have application to the present case. Article 25 cl 1 contemplates the contracting state, in this case New Zealand, will arrange assistance of the nature that would otherwise be provided by authorities of a foreign country. It is not applicable to the issue of the availability of legal aid in New Zealand at a hearing before the RSAA.

[33] Mr Lawn finally referred to Article 31's requirement that contracting states such as New Zealand not impose penalties on refugees. In this case there are no penalties imposed on the plaintiff. The only penalty in the present case that could be said to have been imposed on the plaintiff is the fact that he is held in custody. That, however, is expressly contemplated and provided for by Article 31, cl 2. The desire of the RSAA to afford some priority to the hearing of the plaintiff's case given his custody status is a recognition of the importance placed on the applicant's custody status.

[34] Despite Mr Lawn's thoughtful submissions, the plaintiff fails to satisfy the Court that there is a serious question to be tried that the RSAA will be in breach of ss 22 and 27 of the New Zealand Bill of Rights Act 1990 or Articles 16, 25 and 31 of the Convention relating to the status of Refugees by proceeding to hear the plaintiffs appeal without the plaintiff first having his appeal against the declinature of legal aid being determined. For those reasons the application was dismissed.

Solicitors for the plaintiff: Kumeu-Huapai Law Centre (Kumeu)
Solicitors for the defendant: Meredith Connell (Auckland)