RefNZ Case Search

High Court Cases 


Santokh Singh v Refugee Status Appeals Authority

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:-

THE REFUGEE STATUS APPEAL AUTHORITY (RSAA)

[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:-

[14] The Convention does not stipulate the procedures for determining Refugee Status. That is left to the contracting States to develop in their own way. Pursuant to the Convention, however, there is a supervisory body, the United Nations High Commissioner for Refugees (UNHCR). The Commissioner is entitled to the parties' cooperation and has published guidelines setting out minimum standards for determining refugee status, paras (iii) and (vi) of which read as follows:- [15] During the 1980s decisions on refugee status were made jointly by the Ministers of Foreign Affairs and Immigration who acted on the recommendation of a Committee of Officials known as the Inter-Departmental Committee on Refugees (ICOR). That Committee's procedures were set up by the Executive Government of the day and it was those procedures that were found wanting by Chilwell J.

[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:-

[20] Paragraphs 6 and 7 simply define more precisely the appeals which the Authority is authorised to entertain.

[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:-

[22] The balance of the procedure paragraphs deal with notice, the provision of an independent interpreter, the outcome if members are unable to agree, the finality of the decision and the obligation of the Authority to provide its decision with reasons in writing to both the Applicant and the Ministers of Immigration and External Relations and Trade.

[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:-

[37] Miss Ameratunga whose experience dates back to 1986 when as a law graduate she worked for three years in the Ministry of External Relations and Trade before translating to the Immigration Service where she has worked ever since in the RSS, deposes as follows in paras 17, 18 and 25 of her affidavit:- [38] Miss Ameratunga was challenged on those statements under cross-examination. The questions and answers in that regard are to be found on page 12 of the record of viva voce evidence commencing at line 24:- [39] The previous day, as is recorded at page 10 of the record, Miss Ameratunga was asked about what she had said in para 17 of her affidavit and challenged with the view expressed by Mr Bird. Commencing at line 10 on page 10:- [40] When it came to re-examination Mr McGrath produced through Miss Ameratunga, exhibit D, which is the standard form of letter used by the Immigration Service when refugee status is granted. The body of the letter reads:- [41] Mr Coates, the other Immigration Officer required for cross-examination, made a shorter affidavit in which he gave some of the chronological dates set out earlier in this judgment and then in the final paragraph numbered 7 he said:- [42] Under cross-examination Mr Coates said that he had been involved in the refugee determination process for some two and a half years and then at page 25 of the record, from about line 10, the witness was asked questions about what happens once the Appeal Authority has given its decision. His answers were rather more qualified than those of the more senior Officer, Miss Ameratunga, but by way of example, at line 23, he was asked the question:- [43] The underlined portion of that answer was apparently a reference to s 35A of the Act which I discuss later.

[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:-

[45] On the basis of the evidence, both affidavit and viva voce discussed above, I reject Mr Bird's statement to the effect that the grant of a residence permit to a successful appellant is automatic. The evidence of the two Immigration Officers is that if the appeal is successful, then an application for a residence permit may be invited. But whether one will issue or not is still a matter for the Minister in the exercise of his discretion.

[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:-

[50] On page 35 of the December decision, about the middle of the page, Chilwell J referred to the passage just quoted, saying:- [51] What is immediately apparent is that the conclusion reached in Benipal is powerfully supported by the facts in that case. That is not the position in this case and as indicated in an earlier section of this judgment, as a consequence of Benipal the RSAA was established in order that the ultimate determination on refugee status should be made quite independently of both the Government and the Minister of Immigration and on the basis that that finding would be binding. Additionally, with respect, I doubt that the Chandra case goes as far as Chilwell J inferred. As I read the case it decided that as at 1978 the Minister of Immigration's decision to grant or refuse an application for permanent residence was reviewable and not immune from review because the decision may have been made pursuant to the Royal Prerogative. The statute, Barker J decided in effect, had subsumed the common law. But here, as accepted by Mr Hooker as I understood his argument and as is clear in any event by authority to which I refer subsequently, New Zealand's treaty obligations under the Convention in respect of refugees are not part of our domestic law.

[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:-

[59] In the end, however, I am not persuaded that the matter is as simple as that. The Immigration Act 1987 and its amendments and in particular ss 8 and 9 of the same make it clear beyond question that the grant of a residence permit or a temporary permit "is a matter for the discretion of the Minister". Furthermore in the case of Mr Singh, as already pointed out, he had no right to apply because he was unlawfully in New Zealand (an overstayer) and the Minister could not even of his "own volition" grant a permit pursuant to s 35A of the Act until the removal order was cancelled under s 52A. Subsection (3) of s 52A specifically provides that "nothing in this section gives any person a right to apply to an Immigration Officer for cancellation of a removal order..."

[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:-

FIRST CAUSE OF ACTION

[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:-

[64] Similarly Diplock LJ (as he then was) at page 883, line G, said:- [65] And later at page 886, between lines E and G:- [66] It is at this point that the "linkage" argument discussed earlier under the heading of the "Core Issue" becomes an essential element of the Applicant's contentions on the first cause of action. In para 7 on page 26 of Mr Hooker's synopsis of argument he put it this way:- [67] That point is then further developed so that the final submission made ends with this proposition:- [68] Because I have rejected the contention that the RSAA effectively decides whether or not a residence permit will be granted the Applicant's argument on this first cause of action must fail.

[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:-

[72] Other authorities referred to by the Solicitor-General confirming the same principle were Chandra v Minister of Immigration (supra) and R v Secretary of State for Home Department ex parte Northumbria Police Authority [1988] 1 All ER. The Respondent's submissions also discussed Lain and CCSU v Minister of Civil Service (1984) 3 WLR 117. Furthermore Mr McGrath pointed to the recognition in Benipal (November 85 decision) that the executive may implement treaty obligations in a non-statutory way. The passage appears at page 264 and reads as follows:- [73] On the basis of those authorities and the arguments advanced on the core issue the Solicitor-General submitted at page 10 of his synopsis:- [74] In this part of his argument Mr McGrath also demonstrated that the Canadian authority, Singh v the Minister of Employment and Immigration [1985] 17 DLR (4th) 422 upon which Mr Hooker placed some reliance, has no application here. First because the Canadian Immigration legislation enacts that Convention refugees are to have certain rights to remain in Canada and secondly because in essence the finding there was that the Plaintiff had not been accorded his rights under the Canadian Charter, pursuant to which he was entitled to an oral hearing before a decision was made. By contrast there has been no legislation incorporating the Convention into our domestic law and the Applicant did in fact receive an oral hearing before the RSAA.

[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:-

SECOND CAUSE OF ACTION

[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:-

[86] Inevitably, because of the conclusions reached in respect of the first cause of action the Applicant fails here also.

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:-

[89] This cause of action must fail because, as I have already held when discussing the core issue, a residence permit does not in fact and cannot in law follow automatically from a determination by the RSAA allowing an appeal. Furthermore I accept the Solicitor-General's submission that the Authority's decision is only one of the factors to be taken into account and of course in this case, the appeal having failed, the Minister was under no statutory obligation to take any further step.

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:-

[93] On the facts in this case and the law as I understand it that submission is correct and I uphold it. The fifth cause of action fails.

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:-

[95] The Solicitor-General's first point in respect of this sixth cause of action was that on the facts the Applicant has made no application for residence and the Minister has made no decision in respect of him. Demonstrably that is so. As I pointed out when considering the provisions of the Immigration Act 1987, once the Applicant's visitor's permit expired on 8th November 1989 he was thereafter unlawfully in New Zealand and therefore precluded from making an application for a residence permit. The only way round that difficulty for him was the exercise by the Minister of his own volition, without obligation to the Applicant, of his discretion pursuant to s 35A of the Act.

[96] In my judgment the Solicitor-General put it correctly when he submitted in para 11.3 of page 18 of his synopsis:-

[97] The sixth cause of action fails

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)