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M v Refugee Status Appeals Authority (No. 4)

High Court Auckland CRI2006-404-001046
26 June 2006; 28 August 2006
Cooper J

Judicial review - approach to judicial review of RSAA decisions

Judicial review - commencement of proceedings within three months - whether special circumstances for allowing further time - Immigration Act 1987, s 146A

Procedure of RSAA - procedural issues - whether error of law to determine procedural issues at substantive hearing rather than in advance

Procedure of RSAA - provision of particulars - whether an appeal should not proceed because insufficient particulars given of case appellant required to meet


On 4 April 2002 the applicant, a citizen of the Islamic Republic of Iran, was recognised as a refugee by a refugee status officer. He was subsequently granted a residence permit and later acquired New Zealand citizenship. On 7 April 2005 a refugee status officer determined that the original recognition of refugee status should be cancelled. In brief terms, the applicant had sought refugee status on the basis of a fear of persecution by the Iranian authorities because of his alleged involvement in anti-regime activities. He had claimed that he had never been issued with an Iranian passport and that he had left Iran illegally in 1996. However, since being recognised as a refugee and being granted a residence permit, he had applied for and obtained an Iranian passport in his own name from the Iranian Embassy in Wellington. Despite his alleged fears, he had returned to Iran on two separate occasions, in 2003 and 2004, using that passport. He had encountered no difficulties returning to or departing from Iran. On 7 April 2005 the refugee status officer determined that the original recognition of refugee status should be cancelled. The applicant appealed to the Refugee Status Appeals Authority (RSAA).

On 12 August 2005 the RSAA convened a directions hearing at which counsel for the applicant advised that he wished to make submissions on a preliminary point which he claimed might circumvent the need for a substantive hearing of the appeal. He was invited to make submissions in writing on that point and written submissions were subsequently filed. In a Minute published on 29 November 2005 the RSAA stated that it would deal with the issues raised by the applicant within the context of the substantive hearing of the appeal as a whole and would not make a preliminary determination. On an application for judicial review the applicant claimed that he had been denied the right to have the case against him dismissed and in addition, without the benefit of a preliminary ruling by the Authority on the procedure to be followed, he did not know whether the hearing would be conducted in an adversarial or an inquisitorial manner.

Section 146A of the Immigration Act 1987 requires judicial review proceedings to be commenced within three months after the date of the decision unless the High Court decides that, by reason of special circumstances, further time should be allowed. In this case the proceedings were commenced two days out of time.

Held:

1.   The delay in commencing the judicial review proceedings was very short and half of its length was attributable to the quirk in the calendar that arises at the end of February. The implication was that the solicitors acting for the applicant had overlooked the need to commence the proceedings within the three month statutory period. While it was difficult to point to "special circumstances" justifying further time to be allowed, in view of the complete absence of any prejudice flowing from allowing the matter to proceed and having regard also to the very short delay that was involved, an extension of time was granted to the date on which the proceedings were in fact commenced (see paras [12] to [15]).

2.    Although it is not a court, the RSAA is a specialist body and the High Court ought not to interfere with procedural decisions that it has made unless it is established that they have resulted in an adverse effect on the rights of someone appearing before it (see para [22]).

3.   There were no proper grounds upon which the High Court could at this stage review the RSAA's "decision" of 29 November 2005. The rulings that counsel for the applicant sought from the RSAA were entirely procedural in nature. No substantive decision had been made in relation to the matters raised. The RSAA had simply said that it would consider those matters at the substantive hearing. There was no respect in which the applicant could argue at this point that he was in any way embarrassed or that his position had been unfairly prejudiced by anything that had been done. The applicant was unable to point to any reviewable error (see paras [27] & [29]).

Observations:

1.   Cases might arise where it could be said that an appeal should not proceed before the RSAA because insufficient particulars had been given of the case that the appellant was required to meet, and that the matter should be adjourned for that to be done. However, the present facts were a long way from such a case. The decision of the refugee status officer was comprehensive. For reasons that were amply set out in the decision, it had been concluded that the applicant's grant of refugee status on 4 April 2002 had been improperly made and that it may have been procured through fraud, false representation or concealment of relevant information. It could not be credibly argued in the face of the detailed decision that the applicant was unaware of the substance of the case against him (see para [26]).

Application dismissed

Other cases mentioned in judgment:

Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC)
Rajan v Minister of Immigration [2004] NZAR 615 (CA)
Reihana v Christchurch Maori Land Court (High Court Christchurch, CP151/00, 13 December 2000, Panckhurst J)

Zaoui v Attorney-General [2004] 2 NZLR 339 (Williams J)

Counsel
R J Hooker and M Clark for the applicant
A R Longdill for the second respondent

COOPER J [1] The applicant M was born in Tehran, Iran. On 28 August 1996, he arrived in New Zealand, and made a claim for protection as a refugee. On 22 May 2000, he was interviewed by an officer of the Refugee Status Branch (RSB) of the New Zealand Immigration Service. On 4 April 2002, he was granted refugee status. Following that, he was granted permanent residence in New Zealand on 21 January 2002, and subsequently became a New Zealand citizen.

[2] On 7 April 2005, the RSB determined that M’s original grant of refugee status should be cancelled. M then appealed to the Refugee Status Appeals Authority, the first respondent (“the Authority”).

[3] On 12 August 2005, there was a “directions hearing” held at the office of the Authority. Both M and the RSB were represented by counsel. Counsel for M advised the first respondent that he wished to make submissions on a preliminary point which he claimed might circumvent the need for a substantive hearing of the appeal. He was invited to make submissions in writing on that point.

[4] The submissions were filed in a letter dated 2 September 2005. In a minute that was issued on 29 November 2005, the first respondent summarised those submissions as follows (at [12]):

In summary, counsel seeks a preliminary fixture to address the following matters:

(a) The existence and extent of the burden of proof on a Refugee Status Officer,

(b) The “test to be applied in the discharge of the burden”, by which we take counsel to mean the standard of proof, and

(c) Whether the RSB is required to “go first”.

[5] The first respondent responded to counsel’s submissions in its minute of 29 November 2005. Those rulings were in the following terms:

[13] Having considered the application and the submissions in support, the Authority intends to deal with the application by way of a Minute. We provide brief reasons, which can be expanded upon as necessary should the issues be traversed at the substantive hearing.

[14] The Act provides that the procedure of the Authority is to be such as the Authority thinks fit (Schedule 3C, cl 8(1)).

[15] The Authority finds that it is neither necessary nor appropriate to set the matter down for preliminary determination. The issues of the burden and standard of proof can most appropriately be argued within the context of a substantive hearing of the appeal as a whole.

[16] The decision not to make preliminary rulings on these matters does not prejudice the appellant as he is free to seek rulings as part of the substantive hearing.

[17] The question of who goes first is not relevant in the circumstances, in that the respondent has effectively provided its case in its entirety by submitting its complete file relating to the RSB decision to cancel refugee status. The appellant is entitled to decide what evidence, if any, to offer at the hearing of his appeal, in accordance with the general directions set out below.

[6] There were then a number of directions, under the heading “Timetable”. These were made “with a view to bringing the matter to a hearing in the most convenient and effective manner”. M was directed to file with the Authority and serve on the RSB any evidence upon which he wished to rely at the hearing. At the directions conference, it had been contemplated that this might comprise a brief of his evidence, and witness statements from two witnesses currently in Iran. The RSB was then directed to file and serve, two weeks later, any evidence upon which it wished to rely at the hearing. It had been evidently contemplated at the hearing that such evidence might comprise a brief from the Refugee Status officer concerned, Mr Tulp. It was directed that, after the documents to be filed had been received in accordance with the minute, the matter would be set down for a hearing of three days’ duration.

[7] In the present proceeding, M applies for review under s 4 of the Judicature Amendment Act 1972. He claims that the minute was a decision declining the application to have a preliminary hearing to determine matters of law. It is contended that the contents of the minute amounted to the exercise of a statutory power to make a decision that affected M’s rights.

[8] In essence, the applicant alleges that he has been affected prejudicially by the decision because:

a) He does not know the nature of the case he has to answer;

b) The minute denies him the right to apply to have the case against him dismissed;

c) He does not know if the hearing is to be conducted in an adversarial manner or whether the Authority will conduct an enquiry. As to this, it is asserted that that is the normal practice adopted by the Authority, when, as a matter of law, a hearing should be conducted in an adversarial manner. Mr Hooker maintains that that “would be the norm where the party who makes an assertion bears an onus of proof.”

[9] The Authority has not taken any steps. On behalf of the second respondent, Ms Longdill has raised as a preliminary issue the fact that the application for review was commenced out of time, beyond the period of three months stipulated in s 146(1) of the Immigration Act 1987. On the substantive issues, she submits amongst other things that the Authority’s minute of 29 November 2005 contains no reviewable error of law.

[10] Section 146A of the Immigration Act provides:

Special provisions relating to judicial review of decisions under this Act

(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced within 3 months after the date of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.

(2) Where a person has both –

(a) appealed against a decision of the Board or an Authority or the Tribunal under any of sections 115, 115A and 117; and

(b) brought review proceedings in respect of that same decision, -

the High Court is to endeavour to hear both matters together unless it considers it impracticable in the particular circumstances of the case to do so.

(3) In this section, “statutory power of decision” has the same meaning
as in section 3 of the Judicature Amendment Act 1972.

(4) Nothing in this section limits the time for bringing review proceedings challenging the vires of any regulations made under this Act.

[11] Ms Longdill pointed out that the decision which the applicant seeks to review was made on 29 November 2005. The appeal period runs from the date of the decision. There was no 29 February 2006. Ms Longdill submitted that in the circumstances the proceeding should have been commenced on Tuesday 28 February. It was not commenced until 2 March, and consequently was two days out of time. She referred to the discussion of the appropriate approach to take to applications to extend time under s 146A: Rajan v Minister of Immigration [2004] NZAR 615. At [24] the Court referred to the strict time limits applicable under the Immigration Act in respect of rights of appeal. It continued:

The s 146A time limit for the filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans’ application was filed one month late and thus would require an extension of one-third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay.

[12] In the present case of course the delay is very short, and half of its length is attributable to the quirk in the calendar that arises at the end of February. At the end of the day Ms Longdill indicated that the second respondent did not wish to press the issue and was content to abide the Court’s decision on the extension of time. Certainly, there was no suggestion that the second respondent had been prejudiced.

[13] In addressing this issue, Mr Hooker submitted that the delay was attributable in part to the Christmas holiday vacation which had intervened. Unlike other proceedings where the holiday period is excluded from the time calculation, that is not the case of course with judicial review proceedings under the Immigration Act. The implication was simply that the solicitors acting for the applicant had overlooked the need to make the application, although counsel acting for the RSB had been advised of the intention to do so by the end of December 2005.

[14] There is no affidavit evidence that deals with the issue or offers any other explanation for the fact that the proceeding was not commenced in time. In the circumstances, it is difficult to point to “special circumstances” (the requirement of s 146A(1)) justifying further time being allowed.

[15] Nevertheless, in view of the complete absence of any prejudice flowing from allowing the matter to proceed, and having regard also to the very short delay that was involved, I extend the time allowed to the date that the proceeding was in fact filed, on 2 March 2006.

[16] As to the question of where there has been a reviewable error, Ms Longdill referred to what was said by the Privy Council in Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385, at 388-389:

Judicial review involves interference by the Court with a decision made by a person or body empowered by Parliament or the governing law to reach that decision in the public interest. A litigant may only invoke interference by the Court with such a decision if the litigant pleads plausible allegations which, if substantiated at the trial, will demonstrate that the decision was not reached in accordance with law. In Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 at p 1173 Lord Brightman said:

Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will … under the guise of preventing the abuse of power, be itself guilty of usurping power.

In R v Independent Television Commission, ex parte TSW Broadcasting Ltd (unreported, House of Lords) in a speech delivered on 26 March 1992 Lord Templeman said at p 10:

Parliament may by statute confer powers and discretions and impose duties on a decision maker who may be an individual, a body of persons, or a corporation …. Where Parliament has not provided for an appeal from a decision maker the Courts must not invent an appeal machinery …. The Courts have invented the remedies of judicial review not to provide an appeal machinery but to ensure that the decision maker does not exceed or abuse his powers.

[17] She argued that in accordance with that formulation of the law, it is incumbent upon the applicant to plead and substantiate an allegation that the Authority has committed a reviewable error, that is exceeded its powers, erred in law in some other respect, or made an unreasonable decision. She could have added the obligation not to take into account irrelevant matters or failed to take into account relevant ones.

[18] She submitted that no reviewable error was alleged in the statement of claim. She pointed out in fact that the Authority had simply decided that it was neither necessary nor appropriate to set the matter down for a preliminary fixture to address the issues that had been raised by the applicant. It specifically noted that those matters could be argued at the substantive hearing and that the applicant could then seek rulings on those issues. No decision would be made until that point was reached.

[19] Section 129N of the Immigration Act sets out the functions of the Authority, deals with its membership and provides, in subsection (8), that the provisions set out in Schedule 3C are to apply in relation to the Authority. Schedule 3C deals amongst other things with the procedure to be adopted by it. It provides:

8. Procedure

(1) Subject to this Act and to any regulations made under it, the procedure of the Authority is to be such as the Authority thinks fit.

(2) Proceedings before the Authority may not be held bad for want of form.

[20] Ms Longdill submitted that there is nothing in either the Immigration Act or its subordinate regulations which requires the Authority to accede to requests by appellants for preliminary hearings or rulings on legal issues. In the circumstances, the Authority had simply exercised its power to make a decision not to hold a preliminary hearing. As the Authority had not actually decided any of the legal issues raised by the applicant, it could not be argued in the circumstances that the Authority had committed any error or law. Nor was its decision able to be criticised as being unreasonable, or subject to any other defect. For these reasons, Ms Longdill submitted that there was no reviewable error and that the application for judicial review must be dismissed.

[21] Those submissions were bolstered by an argument that this Court should not respond to the applicant’s effective invitation to embark upon a wide ranging inquiry into the correct procedural and evidential approach to be taken in cases such as this in a vacuum, without any assistance from the Authority and without having the benefit of its considered rulings on the various matters that the applicant seeks to raise. She referred to observations made by Panckhurst J in Reihana v Christchurch Maori Land Court (HC Chch CP151/00, 13 December 2000) at [17]:

Judicial review is designed to cover instances where procedures established by statute have not been followed or where persons have not been afforded an opportunity to be heard. Where one is dealing, as here, with a specialist jurisdiction which has its own very special approach to procedure, it would be rare indeed that this Court would intervene and seek to control the exercise of a procedural discretion of a Judge of that Court.

[22] I accept that although it is not a court, the Authority is a specialist body and this Court ought not to interfere with procedural decisions that it has made unless it is established that they have resulted in an adverse effect on the rights of someone appearing before it.

[23] Mr Hooker, in reply, referred to authorities that establish that interlocutory decisions made by statutory bodies can be subject to review. As an example, he referred to the decision of Williams J in Zaoui v Attorney-General [2004] 2 NZLR 339. At [69]-[71] Williams J said:

[69] In reply, Mr Harrison relied on a wealth of New Zealand authority to the effect that inquiries and other decision-making processes can be reviewed for interlocutory or preliminary decisions (for example, Fitzgerald v Commission of Inquiry Into Marginal Lands Board [1980] 2 NZLR 368, and Re Marginal Lands Board Commission of Inquiry into Fitzgerald Loan [1980] 2 NZLR 395). Mr Harrison made the point that s 4(1) of the Judicature Amendment Act 1972 expressly refers to judicial review of “proposed” exercises of statutory power. In Peters v Davison itself, Mr Harrison submitted the Court of Appeal made clear there was no objection to judicial review at an interlocutory stage. Indeed, in the joint judgment to which reference was earlier made (at p 183) there was a section headed “Judicial review during the course of the inquiry” and the joint judgment said that “underlying these judicial interventions during the course of commissions of inquiry is the obvious public interest that commissions of inquiry be conducted in accordance with the law.

[70] Mr Harrison submitted that the interlocutory rulings will have a significant effect on the review and, if wrong, must be regarded as amounting to material errors of law. The prospect of repeated reviews, he submitted, was far-fetched and, in any event, were further errors made, it was only right they be corrected.

[71] Having reflected on all those matters, the view must be there is no basis to conclude that the judicial review proceeding should not continue because it is not “ripe”. With respect to the English position as discussed in Professor Beatson’s article, there is ample authority to the effect that in New Zealand interlocutory decisions or rulings made during the course of exercising or proposing to exercise statutory power are amenable to judicial review at that point. There is every good reason for that view: if legal error can be corrected at that stage it lessens the chance of legal error undermining the final decision. There is express statutory power to review “proposed” exercises of statutory power.

[24] Those paragraphs, however, do not answer the point that Ms Longdill makes. The issue is not whether interlocutory decisions by a body such as the Authority are amenable to review. Rather, the issue presented here is whether there has been a reviewable error in the “decision” that has been made, when on the face of it, no determination has been made on the issues that the applicant wishes to raise.

[25] Mr Hooker referred to the fact that s 4 of the Judicature Amendment Act 1972 contemplates amongst other things that an application for review may be made in respect of the “proposed … exercise by any person of a statutory power …”. He argues that the applicant’s rights include knowing in advance of the hearing the grounds being relied upon by the RSB officer to revoke or cancel the grant of refugee status. He submitted that he did not know whether the refugee status officer would rely solely on what was in the file and the documentation already available. He asserted that in the notice that been issued on 2 December 2004 of an intention to make a determination in accordance with s 129L of the Immigration Act, the Refugee Status Officer had simply referred to unspecified false statements or misrepresentations. He argued that neither the notice, nor the subsequent decision that had been made by the RSB, pointed to or identified a particular false statement or misrepresentation.

[26] I accept that cases might arise where it could be said that an appeal should not proceed before the Authority because insufficient particulars had been given of the case that the appellant was required to meet, and that the matter should be adjourned for that to be done. However, the present facts are a long way from such a case. The decision of the RSB is comprehensive. For reasons that were amply set out in the decision, it was concluded that the applicant’s grant of refugee status on 4 April 2002 was improperly made, and that it may have been procured through fraud, false representation, or concealment of relevant information. The reasoning that led to those conclusions is set out at pages 12-20 of the decision. In brief terms, the applicant sought refugee status on the basis of a fear of persecution by the Iranian authorities because of his alleged involvement in anti-regime activities. He had claimed that he had never been issued an Iranian passport, and that he had left illegally in 1996. Since being granted refugee status (and residence) in New Zealand he had applied for and obtained an Iranian passport in his own name, from the Iranian embassy in Wellington. Despite his alleged fears, he had returned to Iran on two separate occasions, in 2003 and 2004 using that passport. He had encountered no difficulties returning to or departing from Iran. It cannot in my view be credibly argued in the face of the detailed decision that the applicant is unaware of the substance of the case against him.

[27] That being the case, there are in my view no proper grounds upon which this Court could at this stage review the Authority’s “decision” of 29 November. The rulings that counsel for the applicant sought from the Authority were entirely procedural in nature. No substantive decision has been made in relation to the matters raised. The Authority has simply said that it will consider those matters at the substantive hearing. There is no respect in which the applicant can argue at this point that he is in any way embarrassed or that his position has been unfairly prejudiced by anything that has been done.

[28] I note that in accordance with the Authority’s rulings, further evidence is to be served on behalf of the RSB, but after the applicant’s evidence has been filed and served. At least theoretically, something might be contained in the RSB evidence that might surprise or embarrass the applicant, although I do note that it is only after the evidence exchange has been completed that the Authority envisaged that the matter would be set down for a hearing. Presumably, if there is anything that takes the applicant by surprise in the material that is received from the RSB, Mr Hooker would be in a position to urge on the Authority that the appeal should be adjourned if, in the meantime, it had been set down.

[29] I consider, however, for the reasons I have given, that the applicant has been unable to point to any reviewable error and the application for review is dismissed.

[30] If any question of costs arises I will receive memoranda on that subject from the second respondent within 15 working days, and from the applicant within ten working days of receipt of the second respondent’s submissions.

Solicitors for the plaintiff: Vallant Hooker & Partners (Auckland)
Solicitors for the defendants: Crown Solicitor (Auckland)