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Parkash Mann v Attorney-General

High Court Auckland M1873/93
10 August 1994; 11 August 1994
Temm J (oral judgment)

Judicial review - fairness - different conclusions by Refugee Status Appeals Authority and New Zealand Immigration Service on the facts

Judicial review - reasonableness - elements required to establish unreasonableness

Judicial review - fairness - whether requirement to put NZIS recommendations to the plaintiff

Judicial review - inconsistency between decision of RSAA and Minister

Judicial review - section 63(3) Immigration Act 1987

The plaintiff, a citizen of India, arrived in New Zealand in 1990 and was granted a visitor's permit for one year. He subsequently applied for refugee status and residence on humanitarian grounds. In 1991 a removal warrant was served on the plaintiff, and in 1992 the Minster declined an application by the plaintiff to cancel the warrant under s63(3) Immigration Act 1987. The plaintiff's refugee application was dismissed by the New Zealand Immigration Service (NZIS) on the ground that the fear of persecution was not well-founded. An appeal was lodged with the Refugee Status Appeals Authority (RSAA). In 1993 the appeal was dismissed, the RSAA holding that while the plaintiff's fear of persecution was well-founded, he could relocate, as he could access effective state protection in some other part of India and it would not be unreasonable to expect him to do so. The plaintiff sought judicial review of the decisions of the NZIS dismissing his refugee and residence applications, and the decision of the Minister declining his application under s63(3).

Held:

1 Although the RSAA reached a different view to the NZIS on the issue whether the plaintiff held a bona fide subjective fear of persecution, this was not a ground for judicial review. There was nothing in the way that the NZIS reached its conclusion that was unfair or contrary to the rules of natural justice. This was just a case of an honest difference of opinion on a matter where there was room for divergent views (see para [7]).

2 Unreasonableness would only succeed as a ground for judicial review if the decision was of such a kind that no reasonable person could have reached it. Different people may reach different conclusions on the same facts, and there was nothing in the decision of the NZIS or the Minister that was so unreasonable as to be irrational (see para [8]).

Kumar v Associated Minister of Immigration [1991] NZAR 555 mentioned

3 Although some observations of the interviewing NZIS officer were not put to the plaintiff, there was no requirement that they be so put, as such observations were not inimical to the plaintiff's case. Where an official was drawing conclusions from correct facts for the purpose of making a recommendation to the Minister, then provided the conclusions were fair and reasonable, they should not be regarded as prejudicial solely because they did not support the applicant's case (see apra [15]).

4 However, the Minister's decision to refuse the appeal under s63(3) should be reconsidered in light of the decision of the RSAA. The risk that the Minister was misinformed in a material way by his officials was too great to be ignored. It would be for the Minister to decide if the existence of a well-founded fear of persecution was sufficient to satisfy the criteria of exceptional circumstances of a humanitarian nature. A relevant issue for the Minister, as identified by the RSAA, may be the plaintiff's ability to relocate in India (see para [17]).

Application granted - order for reconsideration of the plaintiff's application under s63(3) Immigration Act 1987.

Counsel
R J Hooker for the plaintiff
M Woolford for the defendants

[Editorial note: The difference between the assessment made by the NZIS and that made by the RSAA was that while the NZIS concluded that the fear of persecution was not well-founded, the RSAA concluded that it was well-founded, but only in the Punjab. If the plaintiff relocated outside the Punjab, his fear of persecution would cease to be well-founded. The decision by the Minister to decline the plaintiff's application for humanitarian entry had been reached after the NZIS decision but before the RSAA decision. The Minister, in relying on the NZIS assessment arrived at the erroneous conclusion that the fear of persecution was not well-founded. The High Court set aside the decision of the Minister to enable him to reconsider the humanitarian circumstances in the light of the findings made by the RSAA.]

TEMM J [1] This is an application for judicial review by the plaintiff who seeks to set aside a removal order requiring him to leave New Zealand. He is a citizen of the State of Punjab in India and has been in New Zealand, trying to get permanent residence, for several years. A truncated chronology of events is as follows:

24 January 1990 The plaintiff entered New Zealand and was granted a visitor's permit good for one year. At that time he was 40 years of age.

26 November 1990 He applied for a resident's permit on the ground that he was a refugee from India.

10 June 1991 A removal warrant was served on the plaintiff after being issued from the District Court at Hamilton.

14 July 1991 The Immigration Service informed the plaintiff in writing that his case warranted further consideration and gave him the opportunity of making representations as to whether he might be eligible for permanent residence on humanitarian grounds, quite apart from refugee status.

1 October 1991 The plaintiff was interviewed by an immigration officer concerning his application for refugee status.

11 October 1991 The Immigration Service wrote to the plaintiff and enclosed two pages of what was in fact a four page document. The two pages enclosed are to be found at pp24 and 25 of the departmental file which is attached as Exhibit A to the plaintiff's affidavit sworn on 9 August 1994. The other two pages (pp26 and 27 in the file) give rise to the first two causes of action.

18 November 1991 The Immigration Service decided not to grant residence.

24 December 1991 The immigration authority informed the plaintiff and told him that the reason for the decision was that he did not have a well-founded fear of persecution and had therefore been declined refugee status. He was also told that there was insufficient merit in his application to grant residence on humanitarian grounds. (The letter of 24 December is Exhibit C to the affidavit sworn on 27 October 1993) .

12 January 1992 The plaintiff appealed to the Refugee Status Appeal Authority.

10 March 1992 The Immigration Service gave to the Minister certain written advice which is contained in pp16 to 18 of the departmental file. The advice on p18 of the file has attracted criticism and is part of the argument to which I will return later.

21 March 1992 The Minister wrote a minute on the file papers saying “I have reviewed the case and am not prepared to cancelled(sic) the warrant". There then follows what appears to be the Minister's initials and the date, together with his signature in a box on the upper part of that form (p17)

15 April 1992 The Minister wrote to the plaintiff's agent formally recording the position and informing the plaintiff that his application under s 63(3) of the Immigration Act 1987 had been declined.

[2] This is the provision which entitles a person to apply to the Minister and empowers the Minister to cancel a removal warrant if he is satisfied inter alia "of exceptional circumstances of a humanitarian nature". In this letter the Minister explicitly records:

"I have studied the New Zealand Immigration Service files and have given full consideration to the grounds that were put forward in his appeal."

19 November 1992 The plaintiff's appeal before the Refugee Status Appeal Authority was heard and the decision was reserved.

2 October 1993 The decision of the Authority was delivered in which the authority found that although the plaintiff held "a bona fide subjective fear of returning to India" and "that the harm feared by him is of sufficient gravity to constitute persecution" it also ruled that "it cannot be assumed that the authorities in India will fail in their duty to protect (the plaintiff) from the harm feared". The Authority then concluded by saying:

"As the appellant can access effective protection in some part of his country of origin and as it would not be unreasonable to expect him to do so, he cannot be said to be at risk of persecution."

[3] The effective finding of the Appeal Authority was that having regard to the facts that were before it, the Authority was of the opinion that the plaintiff could live in some other part of the Republic of India and paid particular reference to the State of Haryana. There was some emphasis in the Authority's decision upon the fact that he had left the Punjab after having been terrorised but had lived for a year or so without interference in the adjoining State of Haryana. For that reason his application for refugee status was declined.

[4] It is against that background that this application has been brought for judicial review. In the amended statement of claim filed on the day before the hearing five causes of action were pleaded of which the fifth has been abandoned. I deal with the other four in turn and can conveniently treat them as two pairs.

First and Second Causes of Action

[5] The first and second causes of action relate to the decision of 24 December 1991 in which the plaintiff was informed that the Immigration Service had decided against his application for refugee status because

"After careful consideration we have decided that your client does not have a well-founded fear of persecution and therefore he has not been granted refugee status."

[6] The argument in respect of this cause of action is that that finding by the department, through its officials, approved by the Minister, is in contradiction to the decision of the Refugee Status Appeal Authority. I have referred earlier to a part of that decision in which the Authority reached the conclusion that the plaintiff did hold "a bona fide subjective fear of returning to India" and that "the harm feared by him is of sufficient gravity to constitute persecution". The argument advanced for the plaintiff is that if the Appeal Authority is right, then the Immigration Service and its advice was wrong. If that be the case, it is said, then the recommendation made by the Immigration Service against his being granted refugee status was an error of fact which misled the Minister and which would justify a finding that the Minister's decision should be quashed. The first cause of action relates to that particular finding, expressed in the letter of 24 December 1991, as being an error of fact and the second cause of action takes the same decision but argues that because the same advice included a finding that the plaintiff's case lacked sufficient merit to warrant a grant of residence on humanitarian grounds, that particular decision was unreasonable in the light of the facts, especially as found later by the Refugee Status Appeal Authority.

[7] As can be seen the plaintiff's argument in respect of the first pair of causes of action arises out of the same decision but attacks it on different grounds. Dealing first with the attack in the first cause of action, that there was an error of fact, I have come to the conclusion that that is not a ground that would justify judicial review because the opinion reached by the officer was an opinion expressed in writing and while the Refugee Status Appeal Authority reached a contrary view there was nothing in the way in which the Immigration Service reached its conclusions that was unfair or in any way contrary to the rules of natural justice. It was simply an honest difference of opinion on a matter where there is room for divergent views. The second cause of action from that decision of 24 December is an argument that the finding that the application for permanent residence on humanitarian grounds was unreasonable, requires the Court to find that the decision was in the category of being "irrational".

[8] "Unreasonable" as a ground for judicial review cannot be loosely construed as being something with which another person would disagree as to the result of consideration in the making of a decision. It must be a decision of such a kind that no reasonable person could have come to it. (See Kumar v Associate Minister of Immigration [1991] NZAR 555). Looking at the facts as they stand, and giving the matter as much consideration as time has allowed, I am not convinced that the decision on 24 December was so unreasonable as to be irrational. While it is perfectly clear that the plaintiff on his narrative of events, supported to some extent by extraneous evidence, has been terrorised in the past while he lived in the Punjab, and while, if he were to return to the Punjab in its present state of unrest, his fear might materialise into reality, yet for the Minister to be satisfied that there were no exceptional circumstances of a humanitarian nature which would make it "unjust or unduly harsh" for the plaintiff if removed from New Zealand, is a far cry from the narrative of events in this case. Different people might reach different conclusions on the facts but there is nothing in the record that I have seen which leads me to the conclusion that the decision made and conveyed in the letter of 24 December was so unreasonable as to be irrational.

[9] I mentioned earlier that in considering this matter there was put before the Minister, so it appears, four pages from the departmental file which are numbered 24 to 27. Part of the complaint in the first two causes of action springs from the fact that the information on pp26 and 27 were not made known to the plaintiff so that he could comment upon them if he wished. But pp26 and 27 of the file comprise an assessment of the facts compiled by an official over his signature, ending on p27 with the following notation:

"Recommendation

14. I recommend that Mr Mann not be granted refugee status or residence on humanitarian grounds."

[10] That recommendation is dated 13 November. It is endorsed with an approval reading "Agreed" dated 18 November and it is the decision of 18 November that was conveyed in the letter of 24 December to which reference has been made.

[11] The contents of p26 of the file needs to be set out so that the plaintiff's argument can be clearly understood:

"Assessment

8. Mr Mann came across as a sincere person who believes that he would be in danger if he returns home. In May 1989 terrorists came to Mr Mann's home for food and accommodation. While this would be a frightening experience it is not unusual within the Punjab. Mr Mann did not report the matter to either the surpunch or the police as he was told not to do so. He said also that he thought the visit was an isolated visit.

9. On 5 July 1989 Mr Mann and his family experienced a similar visit. Interestingly when Mr Mann refused to store a box belonging to the terrorists they took it with them. lt seems strange that Mr Mann was too afraid to refuse the terrorists food and accommodation yet was prepared to store the box. Equally strange was the fact that the terrorists accepted the refusal. On this occasion Mr Mann reported the matter to the surpunch and to the police. The police were sympathetic and helpful. This I believe is unusual as we have been told by many Punjabis that it is an offence (even under pressure) to provide terrorists with any form of assistance. Mr Mann could have faced imprisonment.

10. Later the terrorists revisited Mr Mann and threatened him with death if anything happened to those terrorists whom Mr Mann had identified for the police. At the same time the terrorists were prepared to forgive him. This appears illogical and out of character for the terrorists. This may have been a trap but at interview Mr Mann gave no indication that he saw it this way. He did not accept the offer of forgiveness as he did not like the terrorists and was scared of them.

11.From middle of October 1989 until January 1990 the family experienced no problems while they were staying in Haryana.

12.We understand that relocation is a real alternative and to some degree this is supported by Mr Mann who resided unhindered in Haryana. We understand also that the militants are fragmented, and lack communicational and co-ordinational abilities. We conclude therefore that it would be feasible for the family to live elsewhere in India until they feel that it is safe to return to the Punjab. With 20 years experience in the tyre repair business Mr Mann will probably be able to secure employment.

13.At interview we were told that Mr Mann was prepared to return to the Punjab when it became safe to do so."

[12] As can be seen this assessment includes a number of observations by the officer on the facts as disclosed by the file. Paragraph 9 is a little perplexing and it seems the official may have misunderstood one of the facts. It speaks of terrorists asking the plaintiff to store a box which he refused and yet in the next sentence the assessment reads "It seems strange that Mr Mann was too afraid to refuse the terrorists food and accommodation yet was prepared to store the box". This seems to be a misunderstanding of a matter of fact but I do not see it as having any decisive effect upon the quality of the advice. In paragraph 10, after referring to the plaintiff being revisited by the terrorists, of their threatening the plaintiff with death if any of the terrorists that he had identified to the police suffered harm, and to the effect that apparently they were prepared to forgive the plaintiff for his assistance to the police, the officer has observed:

"This appears illogical and out of character for the terrorists.”

[13] In paragraph 12 the first two sentences express the official's opinion that the plaintiff could live somewhere else other than in the Punjab, yet in the Republic of India, and makes a comment to the effect that the degree of organised terrorism in the Punjab is such that terrorist activities could not be organised outside that State to any great degree.

[14] Now these particular observations made to the Minister have been criticised by the plaintiff as being prejudicial to him and it is argued that the whole of this p.26 of the file should have been made known to him when the preceding two pages setting out his factual history had been delivered for his comments.

[15] I do not see any of the comments on p.26 as being prejudicial to the plaintiff in the sense that it is something that is inimical to his argument for refugee status and which he ought to be given the opportunity of correcting. What is complained of in p.26 is that an official, having surveyed the facts as he believed them to be (and apparently they were correctly set out), has drawn certain conclusions leading to the recommendation that he made on p27. If the argument for the plaintiff is upheld it would mean that every time an official drew conclusions from facts in a case of this kind, for the purposes of making a recommendation, his conclusion would have to be conveyed to a person in the plaintiff's position which would then lead to an argumentative response which would inevitably lead to a further conclusion and on principle anyway, if the first assessment and conclusion had to be made known to the plaintiff, so would the second. This would be administratively nightmarish and leads me to conclude that where an official is drawing conclusions from correct facts for the purposes of making a recommendation to a Minister on an issue of permanent residence, then provided the conclusions or assessments are fair and reasonable, they are not to be regarded as being prejudicial solely because they do not support the case being made by the applicant for permanent residence. In those circumstances the extent to which the plaintiff relies upon the failure of the Immigration Service to disclose to him the assessment made by the immigration officer, is not a ground for intervention by way of judicial review.

Third and Fourth Causes of Action

[16] In the decision made by the Minister and conveyed in the letter dated 15 April (p 13 of the file), the Minister reached the conclusion based upon the recommendation he had earlier received, that the plaintiff could not bring his case within the exceptional circumstances of a humanitarian nature provision in s 63 of the 1987 Act. The argument in the third cause of action is that the decision was based upon another error of fact, namely the conclusion of the official who had recommended to the Minister against the appeal under s 63 because of the advice to the Minister that the plaintiff did not have "a well-founded fear of persecution". The argument in the third cause of action is that this was plainly an error of fact because the decision of the Refugee Status Appeal Authority had not yet been given on 15 April 1992; that was not delivered until October 1993. Then the argument runs, "Plainly if the Appeal Authority were satisfied that there was a well-founded fear of persecution then the advice given to the Minister in his decision of 15 April was wrong"

[17] The fourth cause of action repeats these facts but argues that the decision was unreasonable because the finding of the Refugee Status Appeal Authority is itself proof that the decision made by the Minister could not have been made by a reasonable person within the meaning of the irrationality principle justifying judicial review. It is this aspect of the case that has caused me most anxiety and I have come to the conclusion that the decision made on 15 April 1992 to refuse the appeal under s 63 should be reconsidered. While one can understand an official reasonably concluding that the plaintiff did not have a well-founded fear of persecution, yet the narrative of events as disclosed in the decision of the Refugee Status Appeal Authority is rather more vivid perhaps than was before the officials making their decision in December 1991 and the risk that the Minister was misinformed in a material particular is too great to be ignored.

[18] Whether the Minister, on reviewing the matter now, and taking into account the decision of the Refugee Status Appeal Authority, would come to the same conclusion that he reached on 15 April 1992, is a matter entirely for the Minister. It is not for the Court to say. By that I mean that when it comes to a consideration as to whether the existence of a well-founded fear of persecution falls into the category of an exceptional circumstance of a humanitarian nature, is not for the Court to decide. A relevant and important issue may be the very consideration which moved the Refugee Status Appeal Authority, namely that the plaintiff need not return to the place where terrorism is rife and could find a suitable place to live elsewhere in the Republic of India. It may be that the Minister will take that fact into account, which is clearly relevant in deciding whether there is an exceptional circumstance of a humanitarian nature to assist the plaintiff, but on the face of the record the advice given to the Minister which led to the decision of 15 April 1992 rejecting the appeal under s 63, may well have been mistaken and in those circumstances I am not satisfied that the decision should be allowed to stand.

[19] In the circumstances there will be an order that the decision of 15 April 1992 was invalid by reason of the error of fact and that the plaintiff's application under s 63 should be reconsidered in the light of the reasons given in this judgment. Costs will lie where they fall.

[20] There will be an order accordingly.

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