High Court Cases

High Court Auckland M764-SW02
1 July 2002
Paterson J (oral judgment)

Habeas corpus - appropriate manner of application - whether jurisdiction to make order on ex parte basis

Immigration Act 1987 - judicial review - whether judicial review part of the process given by the Act

Interpreter - whether RSAA wrong to conclude it had no concerns about standard of interpretation

Judicial review - approach to judicial review of RSAA decisions - specialist tribunal

Judicial review - approach to judicial review of RSAA decisions - judicial review not an appeal - challenge to credibility finding

Judicial review - bias - whether evidence that RSAA biased against refugee claimants from Nigeria

Judicial review - credibility findings - difficulty in challenging credibility finding

Judicial review - detention - whether detention in custody pending removal unlawful

Judicial review - interim order - application to prevent removal from New Zealand pending judicial review hearing - threshold test - standard to be met in interim order application in immigration context

Judicial review - review not an appeal - whether grounds of challenge to credibility finding a review on the merits

The applicants arrived in New Zealand on 9 March 2002 claiming to be citizens of Zimbabwe.  At the airport they claimed refugee status.  They later claimed to be citizens of Nigeria and made further application for refugee status.  The applications were declined and appeals to the Refugee Status Appeals Authority (RSAA) were unsuccessful, the RSAA finding that neither applicant was a credible witness.  From the time of their arrival in New Zealand the applicants were detained in custody.  After their refugee appeals were dismissed they filed proceedings in the High Court at Auckland.  The only relief sought in the statement of claim was the sum of $45,000.  The proceedings did not seek judicial review.  The following day they filed an application for orders for the issue of a writ of habeas corpus and other remedies.  The application was made on an ex parte basis.  The relief sought in the application was for an order of habeas corpus and a release on bail pending the determination of their application for judicial review of the RSAA decision.  At the same time an application was filed for an order restraining the Minister of Immigration from removing the applicants from New Zealand.  That too was made on an ex parte basis.  Counsel for the applicants appeared before the Duty Judge who made orders in terms of the application for a writ of habeas corpus and orders restraining the Minister from removing the applicants from New Zealand.  When counsel for the Minister heard of the orders application was made for those orders to be stayed.  That application was granted and a further order made that the application to rescind the ex parte orders be heard urgently.  The Court noted that the proceedings brought by the applicants contained many defects which included the fact that the notice of interlocutory injunction was stated to be an application to the District Court and not the High Court, and there was an amendment in handwriting to state it was ex parte.  The certificate of counsel required by the High Court Rules for such applications was not endorsed on the application.  The statement of claim did not seek the relief which would normally be sought on a statement of claim for judicial review, but merely sought damages.  Notwithstanding these defects the High Court determined that the application would be considered as an application for an interim order under s 8 of the Judicature Amendment Act 1972 seeking an order restraining the Minister from sending the applicants from New Zealand on the evening of the High Court hearing.  The High Court noted that neither the affidavit sworn by the applicants nor the statement of claim set out any reasons why the RSAA decision should be judicially reviewed.  However in submissions to the Court five grounds were advanced.

Held:

1    The claim that the applicants were being removed from New Zealand before their remedies under the Immigration Act 1987 had been exhausted was untenable.  While that Act recognises the existence of a right of judicial review, that right is a right under the Judicature Amendment Act 1972 and is not a right given specifically by the Immigration Act 1987.  It therefore followed that the applicants could not rely upon judicial review as being part of the process given to them by the Immigration Act itself.  If they had any right to interim relief they had to satisfy the Court that the threshold test which applies to all interim applications under s 8 of the Judicature Amendment 1972 had been met (see paras [23] & [24]).

2    The standard to be met in an interim order application depends on the nature of the interest at stake and the process which has already been undergone.  The threshold test in immigration type cases has real practical implications.  While the individual applicant should not be required to demonstrate a very strong probability of success on the merits, the kind of matters that the individual must establish in support of a claim to interlocutory relief must be more than showing that the question is not merely trivial.  There must be a real contest between the parties and that the applicant has a respectable chance of succeeding in that contest.  If the threshold test is met there is then a relatively wide ranging inquiry necessary.  The cases suggest it is not helpful to lay down guidelines as to that inquiry.  In the present case if the interim threshold test was met, relief should be granted.  The applicants' ability to obtain refugee status would be rendered nugatory if they were sent from the country that evening (see paras [20] & [21]).

Esekielu v Attorney-General (1993) 6 PRNZ 309 (Hammond J) applied.

3    Judicial review is not concerned with the decision, but with the decision-making process.  The Court should not under the guise of preventing an abuse of power be itself guilty of usurping power.  The Court on a review application is not an appeal Court (see para [22]).

4    The submission that the RSAA was blinkered in dealing with Nigerians was unsupported by evidence and in addition there was no suggestion in the decision that the fact that both applicants were  Nigerian played any part in the reasoning of the RSAA.  The granting of refugee status to Nigerians may not be common, but it was not unknown and to the Court's knowledge, refugee status had been granted to Nigerians (see para [25]).

5    The Authority's main reason for dismissing the appeals was one of credibility.  Credibility findings are fundamental in a case such as this.  Much of the information upon which the Authority is required to make a decision on refugee status is within the knowledge of the applicant.  Only limited independent checking is possible on most applications.  If the Authority determines that the applicants are not credible, it would be difficult, if not impossible, to review its decision unless the credibility finding itself could be set aside.  This is a specialist tribunal which the Court is entitled to note has considerable experience in immigration matters, including the need to assess credibility.  As to the suggestion that the prior detention of the applicants before the appeal hearing may have been a factor in the manner in which they gave evidence before the RSAA, this was a matter of which the Authority was conscious.  The issue was fully considered and determined by the Authority (see paras [27] & [28]).

6    There was no procedural impropriety in the finding of the Authority that neither applicant faced a risk of serious harm by reason of their being Christians (see para [29]).

7    There were no grounds to substantiate the allegation that there had been irregularities in respect of the interpreter.  Each applicant had given much of his evidence before the Authority in English.  Their (then) counsel had been confident that each of them could fully explain his case in English.  The interpreter remained throughout the hearing and was occasionally used by each applicant.  They, in the view of the Authority, had a reasonable command of English.  At one stage, one of the applicants had raised concerns about the accuracy of an interpretation during the evidence of the other applicant.  This was explored and found by the Authority to be immaterial.  At the time this issue had been raised, that particular applicant had confirmed he understood the interpretation.  The answers given by the applicants at the time appeared in the Authority's view to relate directly to the question.  The Authority concluded it had no concerns about the standards of interpretation.  It was therefore difficult to see any ground for judicial review on this point in the circumstances (see para [30]).

8    Neither applicant had been unlawfully detained after the RSAA decision had been given (see paras [6] & [34]).

Observations:

1    Applications for habeas corpus have since the passing of the Habeas Corpus Act 2001 been by way of originating application and on notice.  There is no jurisdiction to make such an order on an ex parte basis (see para [6]).

Interim orders for habeas corpus and restraint made on 28 June 2002 set aside.  Application for interim order under s 8 of the Judicature Amendment Act 1972 dismissed. Application for habeas corpus dismissed.

Other cases referred to

Refugee Council of New Zealand v Attorney-General (High Court Auckland, M1881-AS01, 31 May 2002, Baragwanath J)

Counsel
C L Amery for the applicants
M Woolford and S Mount for the respondent

PATERSON J [1] The applicants, Nigerian cousins, arrived in New Zealand on 9 March last and sought refugee status.  Their application was declined and they are due to leave New Zealand, with two police escorts, at 7.45 this evening.  They apply for an order restraining the Minister of Immigration from removing them from New Zealand.

The procedure

[2] The matter came before the Court in a strange way.  On Thursday last, the applicants filed proceedings in this Court.  The only relief sought in the statement of claim is the sum of $45,000.  It does not seek judicial review.  Presumably the amount sought is damages for illegal detention.

[3] The following day at approximately 3.20pm, there was filed an application for orders for the issue of a writ of habeas corpus and other remedies.  This application was rather surprisingly made on an ex parte basis.  The relief sought in the application was for an order of habeas corpus and a release on bail of the applicants pending the determination of their application for judicial review, under the Judicature Amendment Act 1972, of a decision of the Refugee Status Appeals Authority (the Authority).  At the same time, an application was filed for an order restraining the Minister of Immigration from removing the applicants from New Zealand.  That, too, was made on an ex parte basis.

[4] Counsel for the applicants appeared before the Duty Judge who made orders in terms of the application for a writ of habeas corpus and orders restraining the Minister from removing the applicants from New Zealand.

[5] At approximately 4.45pm on Friday 28 June, counsel for the respondents having heard of the orders, appeared seeking a stay of the orders.  I issued a minute noting that the respondents' application to rescind the ex parte orders would be heard at 10am today.  In the meantime, the interim orders made on the ex parte basis were stayed.

[6] The reason for the stay of the orders was that it was apparent that the applicants had not proceeded in an appropriate manner.  Applications for habeas corpus have since the passing of the Habeas Corpus Act 2001 been by way of originating application and on notice.  There is no jurisdiction to make such an order on an ex parte basis.  Further, the purported grounds set out in the application were not, in my view, correct.  The applicants were not being illegally detained in the Auckland Central Remand Prison following the judgment of Baragwanath J in Refugee Council of New Zealand Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporation & anor v The Attorney-General (Auckland HC, M1881-AS01, 31 May 2002), as was alleged.  As will be apparent from the judgment, it is my view that they were not being illegally detained.

[7] The proceedings contain many defects but these will not prejudice the applicants in their present application.  The notice of interlocutory injunction was stated to be an application to the District Court and not this Court, and there was an amendment in handwriting to state it was ex parte.  The certificate of counsel required by the High Court Rules for such applications was not endorsed on the application.  The statement of claim did not seek the relief which would normally be sought on a statement of claim for judicial review, but, as noted, merely sought damages.  Notwithstanding these defects, I intend to consider the application for an interim order as an application pursuant to s 8 of the Judicature Amendment Act 1972 seeking an order restraining the Minister from sending the applicants from New Zealand this evening.

Background

[8] The applicants arrived from Bangkok on 9 March 2002.  They claimed to be citizens of Zimbabwe, although neither presented any identity documents.  Both immediately claimed refugee status.  One applicant gave his background as having lived in Harare, and attending a school there.  He arrived in this country with a Zimbabwean passport in his own name.  He said he had left Harare more than a week previously, and was assisted to travel to New Zealand by the Rev Father, a missionary from Zimbabwe.  The other applicant said he lived in Bolowayo, Zimbabwe, and that he was a Zulu.  He didn't know how he left Zimbabwe, but said it was about six days previously.

[9] After considering the information provided, the Immigration Service declined to issue them with permits to enter New Zealand and decided they should be detained at the Mangere Accommodation Centre.  The Immigration supervisor gave written reasons for this decision.  They included that appropriate documentation for immigration purposes had not been produced, nor had any identity documents.  The applicants' identity had not been ascertained to his satisfaction.  Both applicants had expressed an unwillingness to leave New Zealand and, as such, there was a risk, in the Immigration officer's view, of them absconding.  The officer referred to the 1951 Convention on the Status of Refugees, and accepted that detention of persons who seek asylum should occur only when necessary.  He referred to the humanitarian aspects and the public interest in his reasons for declining to issue the permits.

[10] The two applicants were then detained under s 128(5) of the Immigration Act 1987 (the Act).  Subsequently, they were advised by a solicitor.  That solicitor advised the Immigration Service on 21 March that one of the applicants was not a Zimbabwean national and did not speak Zulu.  Consequently, an interview already scheduled could not go ahead because the applicant, being a Nigerian national, needed an interpreter who spoke his language.  Both applicants subsequently completed statutory declarations stating they were Nigerians, born in Abia State, Nigeria.  They admitted submitting false names at the airport, and gave their correct names.  They then  made further application for refugee status.  I note at this point that it is not uncommon for genuine refugee applicants to give false names.  I do not place great weight on this in my decision.

[11] On 11 April, the Refugee Status Branch released its decision for both applicants.  It declined their application for refugee status.  In the decision there was concern expressed about the applicants' credibility, but they were given the benefit of the doubt and their accounts were accepted.  That account included their claim that they were members of the Bakassi Boys and the report noted that the methods used by the Bakassi Boys "bears little relation to even nominal concepts of justice".  After having accepted their stories, the officer considered whether they had objectively a well-founded fear of persecution.  He concluded that neither applicant had an objectively well-founded fear of persecution, and therefore it was not necessary for him to consider the two further requirements that he was required to take into account.

[12] Both applicants then appealed to the Authority.  There was a joint hearing on 7 and 8 May 2002.  On 15 May, the Authority sent further information on Nigeria to counsel and invited further submissions.  These were received on 17 May.  Further information was again sent on 23 May to counsel who replied on 27 May.  The Authority considered all this material and dismissed the appeals in a 15 page written decision given on 31 May 2002.  It is sufficient to note at this stage that the principal reason for the decision was the finding that the applicants were not credible witnesses.

[13] Once the Authority's decision was released on 31 May 2002, the applicants became liable for immediate removal from New Zealand.  They were issued with Nigerian passports on 5 June and the Immigration Service has arranged travel on an aircraft departing at 7.45 this evening.  Their travel to Nigeria will be via Brisbane, Bangkok and Johannesburg.  Transit visas have been arranged for both the applicants and their escorts.

[14] When the applicants were initially detained, they were detained under the provisions of s 128(5) of the Act.  That section authorises detention for up to 48 hours after which a warrant of commitment must be obtained under a further sub-section.  This was done on 11 March 2002.  The warrant authorised detention for an initial period of 28 days, after which extensions must normally be granted each seven days by a District Court Judge.  The first such extension was obtained on 4 April 2002.  The Judge granted a three month extension to the warrant from that date, with detention to be at the Mangere Accommodation Centre.

[15] On 10 April, in light of the applicants' advice they were not Zimbabweans but Nigerians, and members of the Bakassi Boys, the Immigration Service applied to change their place of detention from the Mangere Accommodation Centre to the Auckland Central Remand Prison.  The District Court Judge granted this request on 11 April 2002.  Because they were now in a remand centre, the three month period was cancelled, and they were required to come up for an extension every seven days.  On 18 April the applicants, through their then solicitor, applied for a transfer back to the Mangere Accommodation Centre.  That application was declined.  Thereafter, the applicants appeared before the District Court each seven days to have their warrants extended.

[16] It is my view that on the background information, the applicants, even in light of the judgment of Baragwanath J, were properly detained from 31 May 2002.  It should also be noted there was no application for conditional release to the Court before the Authority gave its decision, and there has been  no application made before Thursday of last week for a review of the Authority's decision.

Grounds for the present application

[17] The grounds set out in the ex parte application for the interim restraining order include:

(a)    The unlawful detention of the applicants while their refugee status was determined.  I note at this stage it is difficult to see that is a ground for judicial review of the Authority's decision.  It is not something the Authority considered and it was irrelevant to its consideration;

(b)    Because the judicial review hearing cannot take place before this evening, the applicants should not be removed from New Zealand as they have not explored all legal avenues in relation to their refugee claim;

(c)    There are the following strong grounds for a judicial review application;

(i) The authorities pre-determination (sic) of the application;

(ii) The Minister has breached her obligations under the Refugee Convention 1951;

(iii) There is a real risk that the applicants will suffer persecution on return to their country.

[19] Mr Amery in both written and oral submissions, gave five grounds which he said supported judicial review.  They are:

(a)    The Authority has taken a blinkered approach towards Nigeria and Nigerians since the change of regime.  Counsel said he could not give any examples of where the Authority has granted refugee status to Nigerian applicants.  It was submitted that this shows an absence of natural justice based on nationality.  Presumably this is the pre-determination ground referred to in the application;

(b)    There figured in the earlier proceedings a group known as the Bakassi Boys.  It was said the Authority did not give adequate weight to certain matters of evidence relating to the Bakassi Boys and what their essential role is.  Further, the reference to being members of the Bakassi Boys in the decision now puts them in danger of them being persecuted if they are to be returned to Nigeria;

(c)    A further danger of persecution is said to arise because of the religious membership the applicants have had while in this country.  For a short time they worshipped at an Auckland church and have connections with an Auckland church;

(d)    The decision to decline refugee status was mainly made on the Authority's adverse credibility findings against the applicants.  It was submitted the applicants' ability to give evidence was affected by their detention and the persons with whom they were detained;

(e)    Finally, it is said there were irregularities in respect of the interpreter.  An interpreter was present but did not interpret at all times.

[20] I adopt the threshold test in Esekielu v Attorney-General (Auckland High Court, M1653/92, Hammond J, of 23 December 1993).  There it was said it is not possible on an interlocutory hearing to inquire into the substantive allegations.  The standard to be met in an interim application depends on the nature of the interest at stake and the process which has already been undergone.  The threshold test in immigration type cases has real practical implications.  His Honour said at p 6 of the judgment:

"It seems to me therefore, that whilst the individual applicant should not be required to demonstrate a very strong probability of success on the merits, the kind of matters that the individual must establish in support of a claim to interlocutory relief must be more than showing that the question is not merely trivial.  I would have thought both that there must be a real contest between the parties, and that the applicant has a respectable chance of succeeding in that contest."

The evidence

[22] The difficulty which confronts the Court, in the absence of allegations in the statement of claim and evidence in the affidavits supporting the points now being made on their behalf, will be obvious.  While this is no doubt due, in part, to the fact that present counsel has only been retained for a few days, it may also be significant that the earlier solicitor who acted presumably did not advise the applicants that the Authority had erred in ways which left the Authority amenable to judicial review.  It should be remembered at this stage that judicial review is not concerned with the decision, but with the decision making process.  The Court should not under the guise of preventing an abuse of power be itself guilty of usurping power.  This Court on a review application is not an appeal Court.

The discussion

[23] The fundamental point upon which Mr Amery based his submission was that the Immigration Act remedies have not been exhausted.  It referred to provisions of the Act which make it clear that judicial review proceedings are open to applicants and that a habeas corpus application is an application for judicial review.  He has since provided references to passages in Baragwanath J's decision already referred to, which makes it clear that judicial review is available in immigration matters.

[24] It is my view that neither the provisions of the Act nor the provisions of the United Nations Convention relating to the Status of Refugees, that Convention now appearing in the Sixth Schedule to the Immigration Act, supports the fundamental point.  Article 16 of the Convention provides that a refugee shall have free access to the Courts of law in the territory of all contracting parties.  There has been nothing to prevent the applicants having access to the Courts in this country as is evidenced by the present application.  What tells particularly against the applicants on this point are the provisions of the Act itself.  A claimant under the Act as defined in s 129(B) is a person who has made a claim to be recognised as a refugee in New Zealand and "whose claim has not been finally determined under this Act".  Under s 129(X) no person who has been recognised as a refugee, or is a refugee status claimant, may be removed or deported from New Zealand unless the provisions of certain Articles of the Convention allow the removal or deportation.  These particular provisions have not, in my view, been breached.  The appropriate machinery in the Act for the processing of a refugee status claim has been followed.  The applicants have exhausted their last right with the appeal to the Authority.  They, along with all citizens of New Zealand, have a right of judicial review but this is a right under the Judicature Amendment Act 1972, and not a right given specifically by the Act although its existence is recognised by the Act and there are no privative provisions in this Act.  It therefore follows that the applicants cannot rely upon judicial review as being part of the process given to them by the Act itself.  If they have any right to interim relief they must satisfy the Court that the threshold test which applies to all interim applications under s 8 of the Act has been met.

[25] In this respect, the first submission made was that the Authority was blinkered in dealing with Nigerians and has not granted refugee status to Nigerians.  This submission is unsupported by evidence.  I have read the decision of the Authority with this submission in mind, and there is no suggestion in it that the fact that both applicants are Nigerian played any part in its reasoning.  The granting of refugee status to Nigerians may not be common, but it is not unknown and to this Court's knowledge, refugee status has been granted to Nigerians.  There is nothing which can satisfy me in either the decision or the evidence that there can be a real contest between the parties on this point in the judicial review sense.

[26] The next ground was that the Authority may not have given adequate weight to certain matters relating to the Bakassi Boys.  Membership of the Bakassi Boys would normally not be a matter which would assist an applicant for refugee status.  The Authority's decision refers to the violent propensity of the Bakassi Boys and gives the authority for that view.  However, the Authority also disbelieved the applicants when they said they were members of the Bakassi Boys.  As it had previously referred to the Bakassi Boys as being infamously brutal, a finding that the applicants were not members of the Bakassi Boys would, in one sense, be in their favour.

[27] The Authority's main reason for dismissing the appeal was one of credibility.  The first issue it addressed was whether the applicants were credible witnesses.  It concluded that they were not.  Credibility findings are fundamental in a case such as this.  Much of the information upon which the Authority is required to make a decision on refugee status is within the knowledge of the applicant.  Only limited independent checking is possible on most applications.  If the Authority determines that the applicants are not credible, it would be difficult, if not impossible, to review its decision unless the credibility finding itself can be set aside.  This is a specialist tribunal which this Court is entitled to note has considerable experience in immigration matters, including the need to assess credibility.

[28] The only possible attack on credibility is not against the manner in which the Authority assessed credibility, but the suggestion that the prior detention may have been a factor in the manner in which the applicants gave evidence.  This is a matter of which the Authority was conscious.  It noted that there was criticism of the applicants' treatment in custody and also noted counsel's submission that the horrible circumstances in which the applicants were being held in custody, and the great pressure they were under, affected their ability to give evidence.  The Authority concluded:

"However, the level of stress they feel at being held in detention away from each other and particularly with inmates yelling abuse at them, cannot explain the discrepancies and implausabilities of their evidence identified above."

[29] The point relating to persecution because of religious membership was also considered by the Authority.  It found the fears of the applicants as Christians against actions of Muslim radicals were not well founded.  The area in Nigeria where the applicants live is predominantly Christian.  Their tribal group is predominantly Christian.  The Authority concluded that the risk of serious harm, tantamount to persecution, in that part of Nigeria for a Christian is remote.  In my view, this point does not have substance.  There was no procedural impropriety on this matter.

[30] The final point relates to the interpreter.  The Authority noted that at the request of each applicant, much of the evidence was given in English.  Their counsel was confident that each of them could fully explain his case in English.  The interpreter remained throughout the hearing and was occasionally used by each applicant.  They, in the view of the Authority, had a reasonable command of English.  At one stage, one of the applicants raised concerns about the accuracy of an interpretation during the evidence of the other applicant.  This was explored and found by the Authority to be immaterial.  At the time this issue was raised, that particular applicant confirmed he understood the interpretation.  The answers given by the applicants at the time appeared in the Authority's view to relate directly to the question.  The Authority concluded it had no concerns about the standards of interpretation.  It is therefore difficult to see there is any ground for judicial review on this point in the circumstances.

[31] In summary, there are no grounds advanced in the affidavits or the statement of claim upon which the applicants can mount a successful judicial review application.  I find it somewhat surprising that if there are grounds for judicial review, these neither appear in the pleadings or the affidavits of the applicant.  The statement of claim appears to place emphasis on getting compensation rather than judicial review.  Further, on the grounds advanced in the submissions, it is my view for the reasons given, that there is no contest between the parties upon which the applicants have a respectable chance of succeeding.  In these circumstances, I have come to the conclusion that the applicants have not reached the required threshold test and the application for an interim order is therefore dismissed.

Result

[32] The interim orders of habeas corpus and restraint made on 28 June 2002 are set aside.

[33] The application for an interim order under s 8 of the Judicature Amendment Act 1972 is dismissed.

[34] For the sake of completeness, Mr Amery has asked for a decision on the habeas corpus application.  Habeas corpus is available when there is an unlawful detention.  On 31 May the Authority declined the applicants' appeal, thereby bringing to an end their rights under the Act.  From that time they were eligible for immediate deportation.  They were not, in my view, unlawfully detained after the decision was given on 31 May 2002.  The application for habeas corpus could therefore not succeed and, assuming the procedural irregularities have now been rectified, is dismissed.

Publication

[35] This Court would have been prepared to suppress the names of the applicants but Mr Amery has requested that no suppression order be made.

Solicitors for the applicants: Amery Law Politics (Auckland)
Solicitors for the respondent: Crown Solicitor (Auckland)