High Court Cases
High Court Auckland M 1224/93;
[1994] NZAR 193
28, 29, 30 September 1993
and 1 October 1993; 22 October 1993
Smellie J
Refugee Status Appeals Authority - whether in the period 1991 to 1999 lawfully constituted
Refugee Status Appeals Authority - jurisdiction to review - whether decisions reviewable
Judicial review - jurisdiction to review - whether decisions of RSAA prior to 1 October 1999 amenable to judicial review
Immigration Act 1987 - relevance of grant of refugee status - whether grant of refugee status changes immigration status of refugee - whether grant leads automatically to residence permit
In the aftermath of criticisms made by Chilwell J in Benipal v Minister of Immigration (High Court Auckland, A 878/83, 29 November 1985) of the then New Zealand procedures for the determination of refugee status, the New Zealand government on 17 December 1990 approved new procedures which included the setting up of the Refugee Status Appeals Authority (RSAA). On 11 March 1991 those procedures were incorporated into terms of reference approved by Cabinet and the RSAA heard its first appeal early in June 1991. Under the terms of reference the Minister of Immigration agreed to be bound by the decision of the RSAA but the Authority was expressly precluded from considering, in relation to persons declined refugee status, whether there existed any humanitarian or other circumstances which could lead to the grant of a residence or other permit to remain in New Zealand.
The applicant, a national of the Republic of India, arrived in New Zealand on 8 September 1989 and applied for refugee status on 27 August 1991. Following the decline of that application both at first instance and on appeal he brought proceedings by way of judicial review. The preliminary issue before the High Court was whether the RSAA had been lawfully established. It was common ground that the establishment of the RSAA and the promulgation of its terms of reference relied upon the exercise by the Executive Government of the Prerogative for its legitimacy and not upon any authorisation enacted by the House of Representatives.
Held:
1. The Executive may implement treaty obligations in a non-statutory way. The setting up of the RSAA was a legitimate exercise of prerogative power which had survived the Immigration Act 1987 (see paras [62] to [76]).
Benipal v Minister of Immigration (High Court, Auckland, A 878/83, 29 November 1985, Chilwell J) applied; R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864 (QBD) referred to.
2. Decisions of the RSAA were susceptible to judicial review either under the Judicature Amendment Act 1972 or because it was an exercise of the prerogative and therefore susceptible to one of the prerogative writs or by way of declaration under the Declaratory Judgments Act 1908. The precise basis upon which the review was conducted was therefore academic (see para [77]).
Burt v Governor-General [1992] 3 NZLR 678 (CA) and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) referred to.
3. The provisions of the Immigration Act showed conclusively that a successful appeal to the RSAA did not of itself and could not change the status of a person such as the applicant from a person unlawfully in New Zealand to one who was entitled to be here. Both in fact and in law recognition of an individual as a refugee under the Refugee Convention did not lead automatically to the grant of a residence permit. Although the Minister of Immigration would not revisit the grant of refugee status nonetheless the RSAA determination was only a step along the way to deciding whether a permit should be granted if an application was made (see paras [32] to [61])
R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514 (HL) referred to; Benipal v Minister of Immigration (High Court, Auckland, A 878/83, 29 November 1985, Chilwell J) distinguished.
Remaining issues directed to be set down for hearing
Other cases mentioned in Judgment
Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA); Attorney-General v de Keyser's Royal Hotel Limited [1920] AC 508 (HL); Chandra v Minister of Immigration [1978] 2 NZLR 559 (Barker J); Jeffs v New Zealand Dairy Board [1967] NZLR 1057 (PC); R v Secretary of State for the Home Department; Ex parte Northumbria Police Authority [1989] QB 26 (CA); Re Singh v Minister of Employment and Immigration [1985] 1 SCR 177 (SC:Can); Schmidt v Secretary of State [1969] 2 Ch 149 (CA).
Counsel
R Hooker and G Monk
for the applicant
RJ McGrath QC, Solicitor-General
and Ms Pender for respondents
[Editorial note: This was the first of two decisions delivered by Smellie J in these proceedings. Having determined that the RSAA was lawfully constituted and that its decisions were amenable to review, his Honour in a judgment delivered on 9 February 1994 found that the RSAA, in dismissing the appeal, had breached the rules of fairness. A rehearing was ordered.
Subsequently the Court of Appeal twice expressed reservations as to both the reviewability of the decisions of the RSAA and as to the appropriateness of the procedures being extra-statutory: Butler v Attorney-General [1999] NZAR 205, 219-220 (CA); S v Refugee Status Appeals Authority [1998] 2 NZAR 291, 294 (CA). Legislative reform was finally enacted in 1999 in the form of the Immigration Amendment Act 1999. Section 40 of that Act inserted a new Part VIA into the Immigration Act 1987 which placed the refugee determination procedures on a statutory footing.
For a clear and principled articulation of the reasons why refugee protection is not about immigration see James C Hathaway & R Alexander Neve, "Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Orientated Protection" (1997) 10 Harvard Human Rights Journal 115 and James C Hathaway ed, Reconceiving International Refugee Law (Martines Nijhoff 1997).]
JUDGMENT OF SMELLIE J ON CAUSES OF ACTION 1 TO 7 INCLUSIVE
INTRODUCTION
[1] Opening the case for the Applicant Mr Hooker submitted that these proceedings concern the way in which New Zealand determines whether to give sanctuary to refugees.
[2] The Solicitor-General, rather more precisely, introduced his argument by identifying the proceedings as an application for review of a decision of the First Respondent which declined to grant refugee status to the Applicant in terms of Article 1A of the 1951 Convention and the 1967 Protocol relating to the status of refugees.
[3] As a preliminary the Applicant sought, without opposition, leave to file a second amended statement of claim whereupon the First and Second Respondents filed their statement of defence to the second amended statement of claim. The second amended statement of claim was further amended without opposition on the third day of the hearing when, out of an abundance of caution, the relief sought on each cause of action was expanded to include not only orders pursuant to the Judicature Amendment Act but if need be the issue of the appropriate prerogative writs.
[4] At that initial stage also Counsel on both sides agreed that causes of action 1 to 7 inclusive should be tried in advance of the remaining causes of action leading to a final judgment in respect of which rights of appeal could be exercised. I made the order in that regard pursuant to R 438(4)(d) of the High Court Rules. The reason for the division is that substantially the first seven causes of action are concerned primarily with the constitutional validity of the setting up of the First Respondent and the true status of its decision. In that sense those causes of action stand apart from the balance of the claim which alleges unfairness and other procedural defects, perhaps more usually encountered on applications for review. For the sake of completeness I record that leave has been granted to amend the remaining causes of action and file further affidavits in support and reply according to a timetable which provides for the balance of the case to be argued on 10th December next.
[5] So far as this judgment is concerned the decision has been made upon the affidavits filed, two volumes of agreed documents and the cross-examination of two Immigration Officers, namely Ms Maya Ameratunga and Mr Paul Coates.
[6] Pending final determination of all causes of action in this proceeding the Respondents have undertaken not to execute the removal warrant outstanding against the Applicant.
[7] The Solicitor-General indicated when entering the appearance of himself and Miss Pender, that the First Respondent will abide the decision of the Court. The argument was effectively advanced therefore on behalf of the Second Respondent. I should record, however, that that indication was given before I gave leave to the Applicant to amend causes of action 8 and 9 and add a further cause of action and to file further affidavits in support of the amended and expanded pleadings. In the changed circumstances which may emerge the First Respondent may wish to revise its original stance. That is a subject, however, which can be addressed when I resume the hearing of the balance of the matter on 10th December next.
UNDISPUTED FACTS REGARDING THE APPLICANT
[8] Santokh Singh was born on 10th January 1953. He is a citizen of India and prior to coming to New Zealand was resident in the state of Punjab. He is a member of the Sikh race, or alternatively a Sikh by religion and/or culture.
[9] From this point on the undisputed facts are most conveniently recorded by way of a chronology as follows:-
8.11.89 Visitor's Permit expired but Applicant remained in the country
28.1.91 Applicant located by Immigration Officer and interviewed
4.3.91 Upon application of Immigration Officer removal warrant issued by a Judge of the District Court at Auckland pursuant to s 5.2 of the Immigration Act 1987.
27.8.91 Letter applying for Refugee Status received accompanied by a Ministry of Foreign Affairs Application for Refugee Status form, filled in as far as the Applicant was able and dated 20th August 1991.
13.5.92 The Applicant attended at the Immigration Office in Auckland in the company of his Counsel, Mr A.K. Sharma and Ms Tahir Umar, an employee of Mr Sharma's who usually attends with him because Mr Sharma is blind. The Applicant was interviewed in connection with his application for refugee status.
13.5.92 At the conclusion of the interview the removal warrant, obtained on 4th March 1991, was personally served upon the Applicant.
19.5.92 The Immigration Service at Auckland sent to Mr Sharma a typed up copy of the Interview Report and summary of the Applicant's claims. Mr Sharma was requested to provide any comments on the report within ten working days. No comment was provided but a further letter was sent which was received by the Immigration Service on 2.6.92 containing further information and translations into English of certain letters said to have been received by the Applicant from his family in the Punjab.
15.6.92 Mr Sharma was formally
advised that Mr Singh's application for refugee status had been declined
and in the penultimate paragraph of the letter he was given full details
of his right to appeal within ten working days to the Refugee Status Appeal
Authority. (RSAA)
20.6.92 Appeal lodged with
RSAA.
6.7.93 Applicant's hearing before RSAA.
23.7.93 Decision of RSAA rejecting appeal.
In paragraph 20 of his second amended statement of claim the Applicant summarised the reasons given by the Authority for dismissing his appeal and the Respondents admit that summary.
Paragraph 20 of the pleading reads as follows:-
"20. THAT the Refugee Status Appeal Authority determined that the Plaintiff was not a refugee within the Convention of Refugees and thereby dismissed the Plaintiff's appeal giving the following reasons:
(a) The Plaintiff did hold a bona fide subjective fear of returning to India,
(b) The harm feared by the Plaintiff was of sufficient gravity to constitute persecution.
(c) The harm was for a Convention reason, namely the Plaintiff's imputed political beliefs.
(d) The fear was well-founded, only in relation to the precincts of the Plaintiff's home village. Outside of these precincts the Plaintiff did not have a well-founded fear and there was no real chance that the harm feared by him will (sic) occur were he to relocate in other parts of India.
(e) It cannot be assumed that the authorities in India will fail in their duty to protect the Plaintiff from the harm feared.
(f) The Plaintiff can access effective protection in some part of his country of origin, and it is not unreasonable for him to do so, he cannot be said to be at risk of persecution."
12.8.93 These proceedings commenced.
[10] Within the agreed bundle of documents there is much material relevant to the circumstances under which the above authority came into existence and the evolution of its ultimate terms of reference.
[11] Its genesis appears to be the celebrated judgment of Chilwell J in Benipal v Minister of Immigration (unreported A878/83, Auckland Registry, judgment 29.11.85). As is fairly well known in that decision the learned Judge was critical of the way in which Benipal's application for refugee status had been processed and it appears that as a result of those criticisms new procedures were put in place. By way of background before embarking upon a more detailed consideration of the terms of reference under which the RSAA operates and the authority pursuant to which it was established, I summarise the Solicitor-General's submissions which appeared in his synopsis under the heading "Refugee Convention".
[12] Throughout this century the international community has been formalising its collective responsibility for the provision of protection and assistance to refugees. New Zealand and many other nations entered into the 1951 Convention and the 1967 Protocol relating to the status of refugees (The Convention). As a result New Zealand has treaty obligations in respect of persons who fall within the Convention definition of "refugee". The most fundamental obligation is that of "non-refoulement", i.e. an obligation not to return a refugee to the place of prior persecution (Article 33).
[13] Article 1A(2) of the Convention defines refugee as a person who:-
... (vi) If the applicant is not recognised (as a refugee), he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system."
[16] After much research and consultation, both inside and outside the Departments concerned, the New Zealand Government, on 17th December 1990, approved new procedures for the determination of applications for refugee status. They included the setting up of the RSAA. On 11th March 1991 the procedure was incorporated into terms of reference and the Authority heard its first appeal early in June of 1991.
[17] These new arrangements envisaged that in the first instance applications for refugee status would be considered by Immigration Officers, seconded to a special unit to be called the "Refugee Status Section" (RSS). Anyone declined refugee status by the RSS was then given a right of appeal to the RSAA.
[18] The terms of reference of the RSAA that were operative at the time the Applicant's appeal was heard are to be found set out in full in volume 1 of the agreed bundle of documents at pages 132 to 134 inclusive. The first four paragraphs of the terms of reference deal with the composition of the Authority. The members are appointed by the Minister of Immigration and consist of a chairperson from outside Government and "such other independent members" as are necessary. A representative of the United Nations High Commissioner for Refugees can participate on a non-voting basis and the Authority is serviced from the resources of the Immigration Service.
[19] Paras 5 to 7 inclusive of the terms of reference deal with the function and jurisdiction of the Authority. Para 5 reads:-
[21] The balance of the terms of reference, i.e. paras 8 to 16 inclusive deal with procedure. Paragraph 8 records first that the Authority is to consider the written decision of the Officers of the Refugee Status Section, together with any material submitted in writing in support of the appeal and then provides:-
[23] It was common ground that the establishment of the RSAA and the promulgation of its terms of reference, relies upon the exercise by the Executive Government of the Prerogative for its legitimacy and not upon any authorisation enacted by the House of Representatives.
SUMMARY OF CONTENTIONS AND RESPONSES RELATIVE TO CAUSES OF ACTION I TO 7 INCLUSIVE
[24] A more detailed consideration of each cause of action and my conclusion as to whether it succeeds or not will be developed later in the judgment. My purpose here is simply to sketch out the ambit of the arguments to be considered.
First Cause of Action
[25] The Applicant contends that RSAA was established by Executive Order when no legal statutory or constitutional right to do so exists. The response is that the Government acted in exercise of prerogative powers which are lawful and effective.
Second Cause of Action
[26] The Applicant contends that the Immigration Officers in the RSS failed or omitted on 15.6.92 to determine the Applicant's case on humanitarian grounds. The response is that in fact they did, informally, and decided that the criteria were not met. But it is said they were under no obligation to do so and did not thereby exercise any power of decision under the provisions of the Immigration Act 1987 (the Act).
Third Cause of Action
[27] Advanced in the alternative it is alleged that the RSAA is ultra vires the provisions of the Act in that the Minister vested in members of the Authority the power to determine whether the Applicant was to be granted a residence permit on refugee grounds. The response is that Cabinet vested responsibility in the Authority to determine on appeal refugee status and the Minister of Immigration agreed to be bound by such determination. Further that the Minister is entitled to treat such determination as a relevant consideration in respect of any application properly made under the Act but specifically he has not vested in the RSAA the power to determine applications under the Act.
Fourth Cause of Action
[28] Again advanced in the alternative. That the Minister by agreeing to be bound by the decision of the Authority fettered his discretion and thereby failed to exercise his discretion in considering the Applicant's case. The response is that while the decision of the Authority is a final determination on the question of refugee status, which determination is considered as a relevant factor should the Applicant subsequently apply for a permit, nonetheless the Minister retained to himself the full discretion under the Act whether or not to grant a permit.
Fifth Cause of Action
[29] Also advanced in the alternative. The contention here is that because the Minister receives a copy of each decision of the RSAA which in effect can only be a recommendation, the Authority failed to provide a full report of its investigation, including evidence adduced and submissions advanced before it. Accordingly it is said that its decision should be quashed so that the Minister in due course can properly consider and decide the Applicant's case.
Sixth Cause of Action
[30] That the Minister adopted the decision of the RSAA and in breach of the rules of natural justice failed to give the Applicant an opportunity to be heard before making a decision. The response is that the Authority's determination is a final one so that the Minister did not determine refugee status and made no decision in which it was necessary to adopt the findings of the Authority.
Seventh Cause of Action
[31] Here the Applicant alleges that he has been deprived of the opportunity to use the facts of his case as found by the Authority as grounds for being granted residence on humanitarian grounds. He seeks reconsideration of the RSS conclusion that he did not qualify on those grounds. The response is that as the Applicant never made an application for residence there was no obligation to consider his case on humanitarian grounds and the appeal procedure put in place was not unreasonable in failing to provide for a right of appeal on humanitarian grounds.
THE CORE ISSUE
[32] The Applicant contends that his status or otherwise as a refugee in fact and in law decides whether he is entitled to a residence permit under the provisions of the Immigration Act 1987, which in effect would allow him to reside here with most, if not all, the advantages of a New Zealand citizen. But since it is only the Minister or persons to whom he lawfully delegates, who can grant a residence permit, the argument is that he must decide the refugee issue. In short the crux of the Applicant's case is that refugee status and right to residence are inextricably bound up one with the other and the exercise of the Minister's discretion under the Act amounts to a decision on both matters.
[33] The Solicitor-General disputes that submission. He contends that the determination of the Applicant's status - refugee or not - is but a step along the way (albeit a significant and often decisive step) towards a final decision by the Minister. Further that in this case the Minister has made no decision on the Applicant's refugee status and because the Applicant has never applied for a residence permit (and may not now do so pursuant to the provisions of s 7(1)(c) of the Act because there is a removal order in force against him), there is nothing for the Minister to decide.
[34] I introduce this issue at this juncture because it permeates and underpins the Applicant's argument at almost every stage, even though it is not raised in its entirety by any of the seven causes of action the subject of this judgment. It in fact is not an immediate consideration in causes 2 and 7 but it is there in one form or another in the rest. Thus, for example, in respect of the first cause of action the contention is that the RSAA is unconstitutional and therefore its decision is a nullity which means that the Minister must still (as he did in the 80s through ICOR) decide the issue of status in conjunction with a decision on residence.
[35] In support of the contention that in fact recognition of refugee status results automatically in the granting of a residence permit, Mr Hooker relied primarily upon the affidavit evidence of Marshall Bird, an Auckland Solicitor practising extensively in the Immigration field, and the affidavits and cross-examination of the two Immigration Officers, Ameratunga and Coates.
[36] Mr Bird deposes, when discussing what follows after refugee status is successfully established in para 9 of his affidavit as follows:-
18. THE fact that a person has been granted refugee status will be taken into account and given due weight in determining an application for residence. However, residence will not be granted automatically. I am aware of cases where refugees have not met all of the immigration policy requirements and have had residence applications declined. I am also aware of cases where refugee status was determined specifically to be a temporary situation rather than an indefinite one. Refugees in these examples have generally been granted temporary permits, which enable them to work and stay in New Zealand until they are deemed under the Refugee convention to have "ceased" to be refugees and are able to return home in safety, but do not bestow on them the right to remain here permanently.
...
25. IF the Authority grants refugee status the matter is referred back to the Immigration Service. As with applications approved at first instance by the RSS, refugees may be invited to lodge an application for residence under s 17 of the Act."
A. It is not automatic that a person who is granted refugee status would necessarily be granted a permit of whatever sort, but in the usual course of events that is what happens.
Q. Are you aware of any case where a person has been considered by the Appeal Authority to be a refugee and that person has subsequently not been granted a permit under the Immigration Act?
A. I am not aware of such cases but I am aware of cases where a person has been granted refugee status by the Appeal Authority but has not been granted residence permit but rather a temporary permit of whatever sort."
A. Yes I do.
Q. Would you agree from your knowledge of him that he has an extensive practice handling applications for persons who are wishing to remain in New Zealand?
A. Yes ..."
(Picking up the record again at line 18)
"Q. As I understand what you are saying, if a person is considered to be a refugee, either by the Refugee Status Section or by the Appeal Authority, they will be invited to make formal application for residence permit?
A. That is the usual practice.
Q. And would you agree that
you have not attached any letters or documentation to your affidavit which
can substantiate an individual case where that has occurred?
A. I have not done so because I wasn't asked to but evidence can be produced if necessary.
Q. Would you agree with Mr Bird that if he has an extensive practice he may well be more qualified to make a comment about the practice of granting residence permits than yourself?
A. I don't necessarily agree with that.
Q. But you do agree that
he has a more extensive practice and knowledge of individual cases for
whom he represents people than yourself?
A. I have a substantial
knowledge of individual cases so I would not necessarily accept that statement
either."
In order that may be processed for a residence permit is required to complete the enclosed application for residence and personal details form. Your client is also required to have the enclosed medical and x-ray forms completed by a registered medical practitioner and radiologist.
Please return the completed forms to this office as soon as possible."
A. Consideration will be given to some type of permit, yes, where the appeal is allowed, but not where the appeal is dismissed, but it may not be the Service is authorised to consider or issue any such permit if the person is an overstayer, it is to ministerial discretion or authority."
[44] The position perhaps became a little clearer in re-examination on page 26 between lines 29 and 40 when the questions and answers read as follows:-
A. Yes.
Q. Is that a case you personally were involved in?
A. Yes.
Q. Briefly tell us the circumstances.
A. The circumstances of this particular case were that the applicants for refugee status happened to be the spouse and children of a person who had been sentenced by the New Zealand Courts to a term of imprisonment in New Zealand and refugee status was to be granted on a temporary basis to allow the spouse and child or children, I can't recall, to remain in New Zealand as long as the husband and father was in prison. But a residence application was not invited as I can recall."
[46] This finding of fact is reinforced by the provisions of the Immigration Act 1987 in force at the relevant time, which I will consider shortly.
[47] In support of his submission that the granting of refugee status leads automatically to the issue of a residence permit, Mr Hooker relied primarily upon the final judgment of Chilwell J in Benipal v Ministers of Foreign Affairs and Immigration and Others (A 878/83, 993/83, 1016/83, judgment 29.11.85). Also by way of confirmation, on the judgment of the same Judge in action no A993/83 when he gave his reasons for granting a habeas corpus application, that judgment being delivered on 16th December 1985.
[48] It needs to be borne in mind that Chilwell J was examining the issue pursuant to the provisions of the Immigration Act 1964 which was repealed by the current Immigration Act which came into force on 21st April 1987, the long title of which is "An Act generally to reform the law relating to Immigration, and in particular to remove the need for persons who are in New Zealand unlawfully to be dealt with by way of criminal prosecution."
[49] Nonetheless at pages 246 and 247 of the November 1985 judgment the following appears. I set it out in full because it is so vital to the Applicant's argument:-
I am grateful to counsel for putting the contrasting viewpoints so carefully. They have assisted me to reach the conclusion that it would be unusual for the Minister of Immigration to refuse an application for a permit to perfect the legal "entry" into New Zealand for a person who, after due inquiry, is found to be a refugee. The pragmatic approach in the cases I have cited, the de facto exercise of a statutory power and the customary acceptance of it in Duncan (Duncan v Defence Force Retirement and Death Benefits Authority (1980) 47 FLR 256) persuade me to conclude that the decision of the Minister of Immigration was made on a preliminary issue the determination of which, favourable to Mr Benipal, would have required determination of his residence in New Zealand on a temporary or permanent basis. If the nations of the world placed no restrictions on the entry of people to their countries there would be no need for the Convention, at least in its present form. It is precisely because nations do impose restrictions upon entry that something had to be done in regard to refugees. Restrictions on entry and the Convention are inseparable. Thus the Minister of Immigration had to be involved ... As with the Minister of Foreign Affairs, so too with the Minister of Immigration. I conclude that in dealings with Mr Benipal his officers exercised statutory powers and in determining the application the Minister of Immigration exercised a statutory power or a statutory power of decision."
[52] Mr Hooker, however, sought to gain support for his argument from the current legislation. He drew attention to the provisions of the Convention, particularly chapters iii and iv which deal with gainful employment and welfare with regards persons who are accorded the status of refugees in the host country. So broadly the refugee must be allowed to work, to obtain education and such welfare relief and assistance as is accorded to the host country's nationals. Counsel pointed out that the only way in which New Zealand can honour those obligations under the Convention in respect of a person who is accorded refugee status is to issue a residence or temporary permit, because without such a permit a person who is not a New Zealand citizen may not work, study or receive a benefit. (see ss 5, 6 and 74A of the Act).
[53] The Solicitor-General on behalf of the Respondents, emphasised the dependence of the validity of the Benipal decision on the facts in that case and the different statutory provisions which pertained when it was decided. He referred to the provisions of the Immigration Act 1987, as amended by the Immigration Amendment Act 1991 (No 113) which came into force on 11th day of November 1991 and therefore applied in respect of both the RSS decision in May of 1992 and the RSAA hearing and decision in July of 1993. Counsel submitted that under the Act and its amendments any person who is not a New Zealand citizen or otherwise exempt from that requirement, must hold a permit in order to be in New Zealand lawfully. And that the power to grant permits rests exclusively with the Minister of Immigration and delegated officials. When non nationals are in New Zealand without a valid permit, which was the position of Mr Singh as from 8th November 1989, they are deemed by the Act to be here unlawfully and are liable to be made subject to a removal warrant or order which is what happened when the Applicant was served with the order on 13th May 1992.
[54] Mr McGrath submitted
that some fourteen or more sections in the Act establish the regime which
I have just outlined and show conclusively that even if an appeal to the
RSAA is successful, that does not of itself, and cannot pursuant to the
provisions of the legislation, change the status of someone such as Mr
Singh from a person unlawfully in New Zealand to one who is entitled to
be here. That change in status can only take place if the Minister, pursuant
to the discretion provided by s 35A of the Act of his "own volition" decides
to grant a permit. Even then that, in the case of Mr Singh, could only
be the outcome after cancellation of the removal order pursuant to s 52A.
[55] Section 7 of
the Act provides that certain persons are not eligible for permits and
one category is that of those against whom removal orders are in force.
That is Mr Singh's position and, as just outlined must continue to be the
position until and unless there is cancellation under s 52A and exercise
of the Minister's discretion under s 35A to grant a permit. Section 16
provides that a residence permit entitles the holder to be in New Zealand
indefinitely and to undertake employment or study. Section 17(2) provides
that no-one who is unlawfully in New Zealand may apply for a residence
permit and if they do the Minister is not obliged to consider it.
[56] The indisputable facts in this case are that Mr Singh did not apply for a residence permit in that short period between 8th September and 8th November 1989 when he was lawfully in New Zealand and he has never done so since, either in the prescribed form (s 17A) or otherwise.
[57] Accordingly the Solicitor-General submits that the contention that a successful appeal automatically means the issue of a residence permit is demonstrably not the case and any such permit, if granted, would be invalid because of non-compliance with the requirements of the Act. Mr McGrath submitted that there is a constant theme in the new legislation. Namely that you have a right to apply to be allowed to stay in the country provided you do it in time. If you overstay and end up being here unlawfully you lose that right. And from that it follows that under the present regime the conclusion reached by Chilwell J in Benipal has no application. Put another way the Respondents argue that even if Benipal was correctly decided (and that was not expressly conceded) in 1985, nonetheless today it is not a reliable precedent.
[58] Mr Hooker urged the acceptance of what he called his "linkage" argument in a number of ways but perhaps never more eloquently and earnestly than when making his submissions in reply:-
[60] Given all those circumstances my judgment is that Mr McGrath was right when he submitted that although the Minister would not revisit the issue of refugee status once it had been passed upon by the Authority, nonetheless that determination is only a step along the way to deciding whether a permit should be granted if an application for one has been made or alternatively, as would have been the case had Mr Singh's appeal been successful, whether upon cancellation of the removal order the Minister should of his own volition without application or obligation, grant one.
[61] That conclusion gains support from Reg. v Home Secretary, ex parte Bugdaycay [1987] 1 AC 5 where the House of Lords considered for the first time the Convention which features in this case and its relationship to s 4(1) of the English Immigration Act 1971. At page 522, lines G to H, Lord Bridge, delivering the leading judgment, having outlined the Appellant's argument regarding the availability of Judicial Review, said:-
[62] In an earlier section of the judgment I outlined the opposing contentions in respect of the first cause of action. In a nutshell the issue here is whether the setting up of the RSAA was a legitimate exercise of the prerogative power. Mr Hooker prefaced his main argument in respect of the first cause of action by emphasising the normal rule that only Parliament can invest Courts and Tribunals with authority to determine legal issues. See Halsbury's Laws of England, 4th Ed, Vol 8, para 497, and Wade Administrative Law, 6th Ed, page 899.
[63] Counsel then recognised that in such cases as R v Criminal Injuries Compensation Board ex parte Lain [1967] 2 QB 864 it has been held that the prerogative powers may be used to set up a Tribunal provided it deals with issues from which no legal rights arise. Thus in Lain the Tribunal was set up to decide whether or not ex gratia payments should be made to the victims of crimes. In that case, delivering the leading judgment Lord Parker CJ at page 881, between lines B and D said:-
[69] The submissions of the Solicitor-General in opposition throw further light upon the topic and confirm the conclusion I have reached.
[70] First reference was made to the fact that controlling entry of aliens has traditionally been recognised as a prerogative power. See Wade and Bradley, Constitutional and Administrative Law, (10th Ed, 1985) page 250 and Schmidt v Secretary of State and Home Affairs (1961) 1 All ER, 904 CA.
[71] It was recognised, however, that the prerogative power cannot be said to survive if the area of its exercise has been completely covered by legislation. The classic statement is found in the judgment of Lord Dunedin in AG v De Keyer’s Royal Hotel [1920] AC 508 at 526:-
[75] I was also referred to Ashby v Minister of Immigration [1981] 1 NZLR 222 where the Court of Appeal specifically held that another Convention (the Gleneagles Agreement) could not override the provisions of the Immigration Act which vested in the Minister the exclusive discretionary authority to grant or withhold entry permits.
[76] For all the reasons set out above the first cause of action fails.
IS THE DECISION OF THE RSAA REVIEWABLE?
[77] I interpolate this section of the judgment before considering the other six causes of action to record that the point has been considered and clear away any lingering doubts on the issue. That such a Tribunal is susceptible a review was accepted by Chilwell J in Benipal (supra) following the House of Lords in the CSSU case. The Solicitor-General's attitude on behalf of the Second Respondent was that whether the decision was reviewable pursuant to the Judicature Amendment Act or because it was an exercise of the prerogative and therefore susceptible to one of the prerogative writs or whether it would be more appropriately dealt with by way of declaration under the Declaratory Judgments Act mattered not. That the Authority is subject to supervision by the High Court is accepted. The precise basis upon which the review is conducted (if review there is to be) is therefore academic. The recent statement of the Court of Appeal in Burr v Governor-General [1992] 3 NZLR 678 between lines 15 and 25, however, provides ample support for the stance taken by the Solicitor-General. The passage cited reads:-
[78] This cause of action is linked in a sense with the seventh cause of action because both of them address the question of consideration of the Applicant's position not as a refugee per se but upon humanitarian grounds.
[79] As indicated in my earlier summary of the opposing contentions in respect of this cause of action, at the RSS stage consideration was given to whether the Applicant, if he failed to qualify as a refugee, might nonetheless be considered for a permit on humanitarian grounds.
[80] Mr Hooker's contention on behalf of Mr Singh was that that consideration had not been addressed when the application was declined by Mr Coates on 15th June 1992.
[81] Counsel argued
that because the Applicant was not told that he was also being assessed
on humanitarian grounds and because there was no reference to that consideration
either when the record of the interview was sent on 19th May or when the
application was declined on 15th June, it had in fact not taken place.
[82] Attached to
Mr Coates' affidavit sworn on 19th August 1993 as exhibit A is a complete
copy of the Immigration Service file regarding the Applicant. At page A-12
of that exhibit, at the end of a handwritten report on the Applicant there
is a two line comment reading "Mr Singh does not qualify for residence
in New Zealand under current humanitarian policy". That comment is signed
by Mr Coates and countersigned by another officer named Peter Saunders
who has added the comment "Agreed".
[83] Under cross-examination Mr Coates was challenged on the authenticity of that record but he maintained its truth and accuracy and I believed him. The second cause of action therefore fails.
THE THIRD CAUSE OF ACTION
[84] As earlier indicated this is advanced as an alternative to the first cause of action and here the contention is that the Minister is the only person who can make a decision on refugee status. It follows that Mr McGrath was correct when he submitted that "this cause of action is premised on a failure by the Minister to succeed on the first cause of action."
[85] On page 16 of his synopsis the Solicitor-General summed up his argument as follows:-
FOURTH CAUSE OF ACTION
[87] Again an alternative to the first cause of action, the argument being that the Minister fettered his discretion under the Immigration Act by agreeing to be bound by the decision of the RSAA as to the Plaintiff's status - refugee or otherwise.
[88] There was no attempt by the Second Respondent to resile from his firm agreement as set out in the terms of reference to be bound by the RSAA decision. This cause of action again relies upon the linkage argument. That can be clearly seen from para 3 of Mr Hooker's submissions in support of this cause of action appearing on page 34 of his synopsis and part of para 7 on the following page. They read as follows:-
"7 ...The Plaintiff submits that by fettering his discretion in the manner evidenced by the documentation and by the current practice of the Minister of Immigration and the Refugee Status Appeals Authority, the Minister is effectively acting under dictation from the Refugee Status Appeals Authority by allowing them to have a completely determinative say in the matter. Even supposing that the Minister considers the decision, given the decision, and his treatment of the Refugee Status Appeal Authority as an independent body, it is in Counsel’s submission, hard to perceive that he would bring an "independent mind to the case". Benipal. The Plaintiff submits that the Minister has allowed the discretion granted to him by section 8 of the Act to be fettered to such an extent that he has failed to exercise the discretion at all.”
FIFTH CAUSE OF ACTION
[90] The inquiry here is as to the nature of the hearing and whether it was a recommendation or a decision.
[91] Mr McGrath conceded as I understood his argument, on the basis of the Privy Council's decision in Jeffs v NZ Dairy Board [1967] NZLR 107, that if it was the Minister's obligation to decide the issue of refugee status, then he has failed to do so and a declaration to that effect must follow. Mr McGrath acknowledged that there is "a moral obligation of high order" resting upon the New Zealand Government, one which Counsel said the Minister would not seek to resile from, so that the whole process would be gone through again if the Court so ordered.
[92] But Mr McGrath's submission, as appearing in para 10.2 on page 17 of his synopsis was:-
SIXTH CAUSE OF ACTION
[94] Here it is alleged that the Minister breached the rules of natural justice. Mr Hooker put it this way in the first of several submissions in support of this sixth cause of action:-
[96] In my judgment the Solicitor-General put it correctly when he submitted in para 11.3 of page 18 of his synopsis:-
SEVENTH CAUSE OF ACTION
[98] Here it is alleged that it was unreasonable for there to be no right of appeal to the RSAA on humanitarian grounds. This cause of action seems to me with respect to be misconceived.
[99] In effect the Applicant is saying that because the terms of reference of the RSAA preclude it considering humanitarian grounds, he was denied the opportunity of being granted a residence permit on those grounds. Once again, however, that argument is flawed because, not only was there no application for a permit in existence, but also there was no basis upon which one could be made and no right to oblige the Minister to consider even a purported application.
[100] Pursuant to s 63B of the Act the Applicant could have, had he seen fit, upon the service of the removal warrant upon him on 13th May 1992, have appealed to the Removal Review Authority upon humanitarian grounds. But the Applicant did not avail himself of those statutory appeal rights, preferring apparently to await the outcome of the RSS inquiry and then pursue his appeal before the Authority.
[101] I am unable to see that when humanitarian grounds are not part of the Convention or Protocol and when an appeal on those grounds was open to the Applicant pursuant to the Act, that there was any unreasonableness on the part of the Executive in fixing terms of reference which excluded a consideration of humanitarian grounds on an appeal to the RSAA. This final cause of action also fails.
COSTS
[102] I propose to
reserve the question of costs until the balance of the case is heard and
decided later in the year. If, however, the Applicant wishes to exercise
his right of appeal in respect of this judgment forthwith and the reservation
of costs is seen as an impediment to that course, then the Applicant, on
oral application to the Registrar, may arrange an early morning telephone
conference when costs will be fixed.
Solicitors for applicant:
Vallant Hooker & Partners (Auckland)
Solicitors for respondents:
Crown Law Office (Wellington)