High Court Cases
High Court Auckland CIV
2007-404-330
8 March 2007; 30 March 2007
Andrews J
Cancellation of
refugee status - confidentiality - genocide - confidentiality of
evidence given by refugee - Immigration Act 1987,
s 129T
Confidentiality - cancellation of refugee status - genocide - confidentiality of evidence given by refugee - Immigration Act 1987, s 129T
Exclusion - Article 1F(a) - genocide - cancellation proceedings - confidentiality of evidence given by refugee - Immigration Act 1987, s 129T
Immigration Act -
confidentiality - genocide - cancellation proceedings -
confidentiality of evidence given by refugee - Immigration Act 1987, s 129T
Judicial review -
interim order - application to prevent refugee status officer
determining cancellation proceedings prior to meaning of
confidentiality provision being determined in the Court of Appeal in a
related case
Refugee Status Branch - adjournment application - genocide - cancellation proceedings - confidentiality of evidence given by refugee - Immigration Act 1987, s 129T
Refugee Status Branch - confidentiality - genocide - cancellation proceedings - confidentiality of evidence given by refugee - Immigration Act 1987, s 129T
The plaintiff wished to
reply to the notice, rejected the allegations in it and identified at
least fifty witnesses from whom he wished to call evidence. Forty of
those lived outside Rwanda while ten still lived in that country. He
alleged, however, that he and those witnesses would be at severe risk
if their identity was disclosed to the current regime in Rwanda. He
further asserted that if any of the witnesses whose evidence he wished
to provide to the refugee status officer were to be killed or
threatened or targeted by the Rwandan government in any other way, then
he would lose any prospect he might have of a fair criminal trial in
that country at some time in the future. Unless he could assure
witnesses that they might give evidence confidentially they were
unlikely
to assist him. The plaintiff was also concerned that if he provided his
own statement of defence to the notice and if details from it were
disclosed to the Rwandan Government, this also might damage any
prospect he might have of a fair criminal trial at some time in the
future in Rwanda or elsewhere. In the circumstances he sought from the
refugee status officer an undertaking that particulars of his defence
would not be released outside of the refugee process, particularly in
any extradition procedures or prosecution (whether in or
outside New Zealand). In so requesting he relied on X v Refugee Status Appeals Authority
[2006] NZAR 533 (Baragwanath J) which held that s 129T of the
Immigration Act 1987 gave absolute confidentiality to the refugee
process and did not permit any evidence given in the refugee process to
be used in extradition or prosecution proceedings.
The refugee status
officer declined to give such undertaking. The Crown had appealed
against the decision in X v Refugee
Status Appeals Authority and intended arguing in the Court of
Appeal for a wider interpretation of s 129T of the Act and would
specifically seek the ability to disclose information for the purposes
of extradition and/or prosecution.
While the plaintiff had
a right of appeal to the Refugee Status Appeals Authority against any
decision of the refugee status officer, it was common ground that on
any such appeal the same issue as to the scope and application of s
129T would arise before that tribunal.
The plaintiff sought an
interim order preventing the refugee status officer from hearing the
cancellation proceedings until the proper interpretation of s 129T had
been
finally determined.
Held:
1 Until the
scope of the confidentiality provisions of s 129T of the Immigration
Act 1987 had been resolved in the Court of Appeal or Supreme Court the
plaintiff could not make a decision about presenting evidence and
submissions. Interim relief was necessary to preserve his position (see
para [44] to [48]).
2 Interim
relief should be granted:
(a) In the event that the plaintiff elected to present
evidence to the refugee status officer, he would not be able to retract
that evidence were the Crown to succeed on appeal in X v Refugee Status Appeals Authority.
Once the interpretation of s 129T had been settled, the plaintiff would
be able to make a true election whether to present evidence and
submissions. At present he did not have certainty as to possible
future disclosure of information and evidence presented to the refugee
status officer. There was accordingly a real contest between the
parties on the issue whether the refusal to postpone the cancellation
determination would result in a breach of natural justice, by
effectively depriving the plaintiff of his right to be heard (see paras
[58] & [59]).
(b) There was a real contest as to the possibility that
disclosure of the plaintiff's evidence and submissions in defence of
the notice would put in peril his right to a fair trial (see para [63]).
(c) The plaintiff had not delayed unduly in bringing his
proceedings for judicial review. It was possible that an interim order
may be
in place for an extended period of time and while the public interest
in the administration of the refugee cancellation process militated
against granting interim relief it was in the interests of justice that
there be consistency in the treatment of people who are in the same
circumstances. In X v Refugee Status
Appeals Authority proceedings before the Refugee Status Appeals
Authority had been stayed (see paras [69], [70], [74] & [77]).
(d) If the interim relief sought were not granted the
plaintiff would be placed in a worse interim position. He would have to
elect whether to present submissions and evidence in relation to
cancellation of his refugee status in a state of uncertainty as
to the confidentiality of the information he might present. It was not
in the interests of justice that he be prevented from making that
election on the basis of certainty, as X would be able to (see para
[78]).
X v Refugee Status Appeals
Authority [2006] NZAR 533 (Baragwanath J) referred to.
Interim order granted
Other cases
mentioned in judgment:
[Editorial note: The decision of Baragwanath J
was overruled in Attorney-General v X
[2008] NZSC 48 (20 June 2008). The text of that decision is provided on
this website.]
Counsel
IC Bassett and RP
McLeod for plaintiff
IC Carter and KM Howard
for Crown
ANDREWS J
Introduction
[1] The plaintiff seeks
an interim order by way of declaration that a determination not be made
as to cancellation of his refugee status, pending further order of the
Court.
Background
[2] The plaintiff is a
Rwandan national who arrived in New Zealand [Text deleted to prevent
identification, pursuant to s 129T Immigration Act 1987] as a “quota”
refugee. [Text deleted to prevent identification, pursuant to s
129T Immigration Act 1987].
[3] On 18 September 2006 a Refugee
Status Officer (RSO) of the Refugee Status Branch of the Department of
Labour (RSB), caused a Notice to be served on the plaintiff (the
Notice). The Notice advised the plaintiff that, for the reasons set out
therein, the RSB was to consider cancellation of the plaintiff’s
refugee status in New Zealand, under ss 129L(l)(a)-(c) of the
Immigration Act 1987. The grounds for cancellation set out in the
Notice were:
[4] The grounds were expanded on in
the Notice and may be paraphrased as being that neither the plaintiff
nor [Text deleted to prevent identification, pursuant to s 129T
Immigration Act 1987] had disclosed, when seeking recognition as
refugees by the UNHCR, that:
[5] Also annexed to the Notice was
a copy of a document that appears on its face to be an international
warrant for the plaintiff’s arrest, issued by the Deputy Prosecutor
General of the Republic of Rwanda, on charges of genocide and crimes
against humanity.
[6] The Notice also stated that the
plaintiff had been classified as a “Category 1 Genocide Suspect”.
Category “1” is said to apply to:
[7] Along with the Notice, the
plaintiff was served with a number of files said to contain the
evidence relevant to the possible loss of refugee status. One of these
files had been provided to the RSB by the International Criminal
Tribunal for Rwanda (ICTR) and the plaintiff was required to sign an
undertaking that that file not be used, duplicated or disclosed to any
person except his legal representative, who was also required to sign
an undertaking on the same terms.
[8] The Notice advised the plaintiff
of his rights, including within 20 working days of service of the
Notice to provide written submissions and to request an interview with
the RSO concerning the cancellation determination.
[9] The plaintiff consulted
solicitors who wrote to the RSB on 22 September 2006 advising of their
instructions. They requested that the deadline for the plaintiff to
provide written submissions and/or request an interview be extended. An
extension was granted to 15 December 2006. The Court was later advised
that the RSO’s determination would not in fact be made until 27
February 2007, then that it was to be delivered on 16 March 2007. I
record at this point that the hearing of the plaintiff’s application
for interim orders proceeded on the basis that, notwithstanding that
the deadline had not been extended beyond 15 December 2006, the
plaintiff would have the opportunity to decide whether to exercise his
right to present evidence and submissions, and/or request an interview,
before the RSO makes a determination as to cancellation.
[10] The plaintiff says that he
wishes to reply to the Notice and rejects the allegations in it. He
has, he says, spent many hours preparing a draft statement, which is
some 80 pages long. He has identified at least 50 witnesses from whom
he wishes to call evidence. Forty of these live outside Rwanda while 10
still live in Rwanda.
[11] However, he believes that he
and those witnesses will be at severe risk if their identity is
disclosed to the current regime in Rwanda. The lives of those witnesses
presently living in Rwanda would be endangered: he believes they would
very likely be killed or seriously harmed by agents of the current
regime. He also believes that the lives of witnesses currently living
outside Rwanda would be endangered, as the regime could “easily create
false genocide allegations against many of those witnesses”.
[12] Further, he believes that if
any of the witnesses whose evidence he wishes to provide to the RSB
were to be killed or threatened, or targeted by the Rwandan government
in any other way, then he would lose any prospect he might have had of
a fair criminal trial at some time in the future. It is also the case
that, unless he can assure witnesses that they may do so
confidentially, that is without fear of disclosure, then they are
unlikely to assist him.
[13] The plaintiff is also concerned
that if he provides his own statement of defence to the Notice, and if
details from it are disclosed to the Rwandan government, this too may
damage any prospect he might have had of a fair criminal trial at some
time in the future in Rwanda or elsewhere. I note the possibility that
the plaintiff’s trial could be conducted in New Zealand, under the
International Crimes and International Criminal Court Act 2000.
[14] Accordingly, the plaintiff is
concerned as to the confidentiality of any submissions or evidence
presented to the RSO in response to the Notice.
[15] By a letter dated 8 December
2006 the plaintiff’s solicitors advised the RSB as follows:
[16] The RSO responded by letter
dated 13 December 2006 as follows:
[17] A letter from the RSO to the
plaintiff’s solicitors, dated 20 December 2006, records that in a
telephone conversation on 19 December 2006 the plaintiff’s solicitors
confirmed to the RSO that, in the circumstances of the undertakings not
being given, he would not be supplying any information as to the
plaintiff’s defence, and that witness statements, in particular, could
not be provided to the RSB without a guarantee of confidentiality.
Plaintiff’s proceeding
[18] On 25 January 2007
the plaintiff filed a proceeding seeking judicial review of the
“decision” conveyed in the RSO’s letter of 13 December 2006, which is
set out above. It is alleged that the “decision” was:
[19] The allegations were further
particularised at paragraph 3.3 of the statement of claim as follows:
[20] The plaintiff’s application
for interim relief was dated 14 February 2007 and sought:
[21] The specified grounds referred
to were:
[22] An amended statement of claim
was filed on 28 February 2007. An allegation was added that the
“decision” was in breach of natural justice. Also, a further prayer for
relief was added, effectively seeking a declaration as to the correct
interpretation of s 129T of the Immigration Act 1987.
[23] Timetable orders have been made
in the proceeding. The defendant has filed a statement of defence to
the amended statement of claim. Both parties are to file and serve
lists of documents by 21 April 2007, and a further judicial conference
is to be set down on a date to be fixed, but not before 4 May 2007.
[24] The plaintiff’s
application for interim relief was heard on 8 March 2007. On 9 March
the plaintiff filed an application for leave to file further evidence
in support of the application. [Text deleted pursuant to Order made by
the High Court on 26 March 2007].
[25] The plaintiff’s application to
adduce post-hearing evidence was dealt with in telephone conferences on
9 and 13 March 2007. In my Minute issued on 9 March 2007 I noted that
the defendant did not oppose the application, but did not concede the
relevance and admissibility of that evidence. Orders were also made
prohibiting publication of the application, evidence and submissions.
Further orders prohibiting publication were made in my Minute issued on
13 March 2007.
[26] As recorded earlier, the
plaintiff has been advised that the defendant intends to the make a
cancellation determination on 16 March 2007, regardless of the
substantive proceedings for judicial review, unless the plaintiff is
granted the interim relief he seeks.
Statutory scheme: Cancellation of
refugee status
[27] Refugee status is
governed by Part 6A of the Immigration Act 1987. The starting point is
s 129A, which provides that the object of Part 6A is to “provide a
statutory basis for the system by which New Zealand ensures it meets
its obligations under the United Nations Convention Relating to the
Status of Refugees” (the Refugee Convention).
[28] Section 129C provides, as
relevant to this proceeding, that:
[29] Section 129E(1) provides that
every claim to be recognised as a refugee in New Zealand (which
pursuant to s 129C(2) includes the question whether a person should
continue to be so recognised) is to be determined by a RSO. RSO’s
powers are set out in ss 129G and 129H. These include the powers to
seek information from any source (s 129G(6)(a)), to determine their own
procedures on a claim (s 129G(7)), and to require a claimant to supply
information (s 129H(1)(a)) and produce documents (s 129H(1)(b)). I note
that the power to determine procedure under s 129G(7) is expressly
subject to Part 6A, any regulations made under Part 6A, and to “the
requirements of fairness”.
[30] It is relevant to note at this
point obligations imposed on claimants, in particular s 129G(3):
and s 129G(5):
[31] Finally, in relation to the
claims process, s129H(5) should be noted:
[32] Cancellation is covered by ss
129L(1)(a)-(c):
[33] Section 129M provides that
when carrying out any function under s 129L a RSO must take all
reasonable steps to notify the person concerned in the prescribed
manner of the matter that is being considered (s 129M(a)) and (as
relevant to this proceeding) that ss 129G and 129H apply as if the
matter being considered were a claim for refugee status and the person
concerned were a refugee claimant.
[34] Sections 129N to 129Q provide
for appeals to the Refugee Status Appeals Authority (RSAA). Section
129O(2) gives a right of appeal to the RSAA following a RSO’s decision
to cancel refugee status under s 129L(a)-(c).
[35] Section 129T has already been
referred to. It is headed “Confidentiality to be maintained”, and
provides that confidentiality is to be maintained as to the identity of
a claimant, or other person whose status is being considered, and as to
the particulars of their case (s 129T(1)). Compliance may require
confidentiality as to the very fact or existence of a case (s 129T(2)).
Section 129T(3) sets out certain instances where s 129T(1) does not
prevent disclosure. Section 129T was the focus of the judgment in X v RSAA.
[36] Determinations involving
cancellation of refugee status are also governed by the Immigration
(Refugee Processing) Regulations 1999. Regulation 11 relates to
notice. Regulation 12 relates to procedure. It provides as
follows:
[37] Regulation 13 relates to
notification of the RSO’s decision.
[38] The effect of the statute and
regulations is that the plaintiff, having been notified of the RSO’s
intention to make a cancellation determination under s129L, is entitled
to request an interview with and present written submissions to the
RSO. However, if no interview is requested, and/or no written
submissions provided, the RSO is entitled to make the determination.
Accordingly, if the plaintiff does not request an interview and/or
provide written submissions (and he has done neither as yet), then
unless the interim order is granted, the RSO will issue a
determination. In the absence of any evidence or submissions from the
plaintiff, it is likely, if not inevitable, that that determination
will be to cancel the plaintiff’s refugee status.
[39] The plaintiff would then have a
right to appeal to the RSAA. An appeal is a full de novo hearing. The plaintiff
would have the opportunity to be heard, and to present evidence and
submissions. However, it is again the responsibility of an appellant to
establish the claim (s129P(1)) and the RSAA may determine the appeal
without interview if the person affected fails, without reasonable
excuse, to attend a notified interview (s 129P(6)).
Interim relief in the context of
immigration cases
[40] Under s 8 of the
Judicature Amendment Act 1972 the Court may make an interim order by
way of declaration if it is necessary to do so for the purpose of
preserving the position of the applicant.
[41] The threshold is the necessity
to preserve the applicant’s position, and this must be satisfied before
any discretionary factors are taken into account. In Carlton & United Breweries v Minister
of Customs2 Cooke J (as he then was) said:
[42] In Esekielu v Attorney-General3 Hammond J considered the
principles which should be applied by a Court when considering an
application for an interim order under s 8, in the context of an
immigration case. His Honour said:
[43] Hammond J’s approach was
summarised by Heath J in Zakshevsky
v Minister of Immigration4 at [15] as follows:
Is interim relief necessary to preserve Z’s
position?
[44] What is the
plaintiff’s present position? He has been served with the Notice. He
has a right to request an interview and present evidence and
submissions but has not done so. At present, pursuant to the judgment
in X v RSAA, if he presents
evidence and submissions to the RSO in response to the Notice, there
could be no disclosure to anyone outside the strict confines of the
cancellation determination.
[45] However, the “present
position” must also take note of the Crown’s appeal in X v RSAA. The Crown is arguing for
a wider interpretation of s 129T. It is evident from the Notice of
Appeal (made available to me by Mr Carter) that the Crown is
specifically seeking the ability to disclose information for the
purposes of extradition and/or prosecution. The Notice of Appeal also
evidences the Crown’s clear intention to share information received. So
the plaintiff’s present position is one of uncertainty as to the
confidentiality of any evidence and submissions presented to the RSO.
[46] If, in light of that
uncertainty, the plaintiff were to decide against presenting evidence
and submissions, it is likely that the cancellation determination will
be made. It is correct that, as Mr Carter submitted for the defendant,
the plaintiff will then have a right to appeal to the RSAA. However, s
129T also applies to the appeal, so he will then be placed in exactly
the same position of having to decide whether to present evidence and
submissions. He will be faced with the same uncertainty as to the
confidentiality of any evidence and submissions.
[47] In this respect the plaintiff’s
position differs from that of the plaintiff in Malkit Singh v Attorney-General and Anor5 where it was held that, despite
there being an arguable case in on the plaintiff’s substantive claim,
interim relief was refused because it was not necessary to preserve the
plaintiff’s position. This was because the plaintiff had the
opportunity to present his case, in its entirety, to the RSAA. In the
present case, if the interpretation of s 129T is not finally determined
before any RSAA hearing (which appears to be possible), the plaintiff
will again have to decide whether to present evidence and submissions,
without any certainty as to confidentiality.
[48] I therefore conclude that
interim relief is necessary to preserve the plaintiff’s position. It is
now necessary to consider all the circumstances in order to determine
whether interim relief should be granted.
Is there a “real contest” between the
parties?
[49] I turn to consider
whether there is a “real contest” between the parties, and whether the
plaintiff has a reasonable chance of succeeding in that contest. To do
this it is necessary to consider the plaintiff’s claims that the RSO’s
decision was unreasonable, contrary to natural justice, or irregular in
the considerations taken into account. It is also necessary to consider
the plaintiff’s claim for a declaration as to the interpretation of s
129T.
The RSO’s decision
[50] There is a dispute
as to whether there has been the exercise of a statutory power of
decision that may be subject to judicial review. Counsel for the
defendant contends that the “decision” is the refusal of the RSO to
give the undertakings as to confidentiality sought by the plaintiff’s
solicitors. It was then argued that there is no statutory power of
decision to give such undertakings, so there has been no reviewable
exercise of a statutory power of decision. Mr Carter relied on the
decision of Cooper J in M v RSAA6.
[51] Mr Bassett for the plaintiff
contended that the “decision” under review is the RSO’s refusal to
postpone the cancellation determination pending the outcome of the
appeal in X v RSAA. He
submitted that there is clear authority that interlocutory and
preliminary decisions can be reviewed7, and that s 4(1) of the
Judicature Amendment Act expressly refers to judicial review of
“proposed” exercises of statutory power. He distinguished M v RSAA on its facts, on the basis
that the decision sought to be reviewed in that case did not affect the
applicant’s rights. He submitted that, in Z’s case, the RSO’s decision
not to postpone the determination very clearly affected his rights.
[52] It is not necessary at this
interim stage to decide which of the two characterisations of the
“decision” would prevail in the substantive hearing. It suffices to
note that there is a real contest, and that the plaintiff appears to
have a reasonable prospect of succeeding in his argument that the
“decision” under review is the decision not to postpone the
cancellation determination, and that it was one that affected the
plaintiff’s rights.
Breach of natural justice
Election whether to present
evidence and submissions
[53] Mr Bassett
submitted that Z had strong grounds for claiming a breach of natural
justice: that the refusal to postpone the cancellation determination
had the effect of denying Z the right to present submissions and
evidence in response to the Notice. He submitted that this was in
breach of s 27 of the New Zealand Bill of Rights Act 1990, and that the
RSB is required to observe a high level of natural justice and
fairness, as questions of life, liberty and personal safety are at stake8.
As has already been noted, s129G(7) is expressly subject to the
requirements of fairness.
[54] Plainly, as Mr Carter
submitted, the decision not to postpone does not, in and of itself,
deny Z his “right to be heard”, by way of the opportunity of an
interview with the RSO and presenting submissions and evidence in
response to the Notice. Z has had that right ever since the Notice was
served on him. The date of the cancellation determination has been
deferred to give him the opportunity to request an interview and
present submissions and evidence. He has elected not to do so.
[55] It may also be, as Mr Carter
submitted, that the provisions of ss 129G(5) (claimant’s responsibility
to establish claim) and 129H(5) (claims may be determined without an
interview if the claimant fails to appear at an interview) arguably do
not support an argument that the determination process may be “frozen”.
[56] However, it must be
questionable whether the plaintiff can be said to have a “true”
election (that is, informed by full knowledge of all of the
circumstances surrounding the election) when he has no certainty as to
the interpretation of the confidentiality requirements of s 129T.
[57] Baragwanath J held in X v RSAA that s 129T protected the
absolute confidentiality of a refugee claim. Information provided to
the RSB may be disclosed only to those people having a function in the
determination of Z’s status as a refugee. The information could not be
disclosed to any Crown officer or employee whose functions in relation
to him were for other purposes, such as extradition or prosecution.9
[58] However, X v RSAA is the subject of a
Crown appeal to the Court of Appeal. I was advised during the hearing
that the appeal is to be heard in late July 2007. If the judgment were
to be overturned on appeal, any evidence or information given to the
RSO may be able to be disclosed for the purposes of extradition or
prosecution. In the event that Z elected to present evidence to the
RSO, he would not be able to retract that evidence were the Crown to
succeed on appeal. Once the interpretation of s 129T has been settled,
Z will be able to make a true election whether to present evidence and
submissions. At present Z does not have certainty as to possible future
disclosure of information and evidence he presents to the RSO.
[59] In my view there is a “real
contest” between the parties on the issue whether the refusal to
postpone the cancellation determination will result in a breach of
natural justice, by effectively depriving the plaintiff of his right to
be heard.
Right to fair trial prejudiced
[60] Mr Carter
challenged the plaintiff’s submission that his right to a fair trial on
the charges of genocide and crimes against humanity would be prejudiced
if he were to provide information and evidence to the RSO, even if the
judgment in X v RSAA were to
be overturned. He pointed to evidence that judicial institutions in
Rwanda were being rebuilt, and fair trial procedures implemented, as
the ICTR proceeds to transfer hearings of cases from Tanzania (where
cases are presently heard) to Rwanda.10 He submitted
that as the plaintiff is listed as a “Category 1” suspect, he would not
be tried in the gacaca
(community) courts where many of the fair trial concerns have
arisen. He also referred to witness protection available through
the ICTR.
[61] In response, Mr Bassett
referred to the ICTR’s own concerns as to the maintenance of
confidentiality, shown by requiring the plaintiff, and his solicitors
and counsel, to sign confidentiality undertakings in respect of
material provided by the ICTR. He also referred to an Amnesty
International report11, to support his contention
that there are real questions concerning the possibility of his
obtaining a fair trial in Rwanda, and the safety of witnesses.
[62] The charges apparently brought
against the plaintiff are, without doubt, extremely serious. He has the
right to a fair trial, and that right should not be imperilled. In X v RSAA12
Baragwanath J said:
[63] I conclude that there is a
“real contest” as to the possibility that disclosure of the plaintiff’s
evidence and submissions in defence of the Notice would put in peril
the plaintiff’s right to a fair trial.
[64] Accordingly, I am satisfied
that the plaintiff has a reasonable prospect of succeeding in his
substantive claim for judicial review on the grounds of breach of
natural justice.
Unreasonableness/Irregularity
[65] The plaintiff also
claims that the decision of the RSO not to postpone the cancellation
determination was unreasonable, was made by taking into account
irrelevant considerations, and made by failing to take into account
relevant considerations. Essentially, this argument raised matters
already canvassed, in particular the issue of the “unfair election” as
to whether to give evidence and submissions in relation to the
cancellation determination, and the seriousness of the charges laid
against the plaintiff.
Declaration
[66] As noted
earlier, in his amended statement of claim filed on 28 February 2007,
the plaintiff included an additional prayer for relief, seeking a
declaration as to the correct interpretation of s 129T. This relies on
the judgment in X v RSAA.
There is clearly a “real contest” between the parties as to the
interpretation of s 129T. Given the factual similarities between the
plaintiff’s case and that of X,
it would have to be said that it is reasonably possible that the
plaintiff may succeed in the interpretation for which he contends.
Overall assessment of plaintiff’s
substantive claim
[67] I am satisfied that
there is a “real contest” between the parties in relation to the
plaintiff’s substantive claim for judicial review and, further, that
the plaintiff has a reasonable chance of succeeding in that contest.
Other factors
[68] There are other
factors that are relevant when considering whether to grant interim
relief.
Has the plaintiff delayed?
[69] In my view, it
cannot be said that the plaintiff has delayed unduly (if at all) in
bringing his proceeding for judicial review. Further, Mr Bassett
assured the Court that it is hoped that interlocutory steps will be
completed in a very short time – he indicated his intention that the
plaintiff’s discovery will be completed in advance of the date
presently set. Further, on the grounds that Z’s case raises identical
issues to those in X v RSAA,
he has applied for an order to transfer the proceeding to the Court of
Appeal, so that both cases may be heard in tandem.
Expected duration
[70] There was mention,
at the hearing, of the possibility that the interpretation of s 129T
may eventually be taken to the Supreme Court. It is therefore possible
that an interim order may be in place for an extended period of time.
That is a factor to be taken into account.
Public interest
[71] Mr Carter, for the defendant,
submitted that a grant of interim relief in this case would have a
significant impact on the administration of the refugee status
cancellation process by “effectively freezing, for a potentially very
lengthy period, the determination of a refugee cancellation”. He
further submitted that “many other applicants, not necessarily Rwandan,
will very likely line up wanting the same indulgence”.
[72] Mr Carter referred to the
decision of the Court of Appeal in Ziao
Qiong Huang & Ors v Minister of Immigration & Anor13 . That case concerned applications for stay of
removal orders against the applicants (who had been unlawfully in New
Zealand for some years) who were the parents of children born in New
Zealand. In dismissing an appeal against a refusal to grant interim
relief, the Court took particular cognisance of the very protracted
history of the applicants’ cases, the very clear High Court finding
against the applicants’ judicial review application (which confirmed a
decision given a year earlier on a similar application), the
applicants’ failure to pursue an appeal against the earlier decision,
and (at [18](d)):
[73] It is clear that the present
case is far removed from that of Xiao
Qiong Huang. First, there has been no “protracted history”.
Second, the “public interest” factor referred to in the extract set out
at [18](d) of the judgment is tied to the “class” of “illegal
immigrants with New Zealand citizen children”. In the present
case, the “class” is that of Rwandan nationals subject to allegations
of genocide and crimes against humanity. It was made clear at the
hearing that there are only three persons in that class.
[74] Accordingly, I cannot conclude
that the public interest of the administration of the refugee
cancellation process militates against granting interim relief in the
present case.
[75] As recorded above, it is
acknowledged that Z is charged with very serious crimes. New Zealand
should not stand in the way of his being tried on those crimes. But
this does not mean that proper processes of law ought not to be
followed in the meantime, to ensure a fair trial, when that is held.
Overall interests of justice
[76] In this context, it
is also relevant to note that pursuant to a direction given by
Baragwanath J in X v RSAA14 X is not required to file evidence and submissions,
pending determination of the appeal. I was advised at the hearing that
X’s proceeding, which is before the RSAA, is stayed. X will therefore
be able to elect whether to present evidence and submissions to the
RSAA on the basis of certainty as to the interpretation of s 129T.
[77] It is in the interests of
justice that there be consistency in the treatment of people who are in
the same circumstances. X applied for refugee status in New Zealand and
has appealed to the RSAA against refusal to grant it. Z was granted
refugee status outside New Zealand and now faces cancellation. In my
view, notwithstanding that the consideration of their status has been
arrived at by different routes, the plaintiff and X are in broadly the
same position, and they should receive consistent treatment. In
particular, the present plaintiff should not be placed in a worse
position than X.
[78] I conclude that if the
interim relief he seeks were not granted, then the plaintiff would be
placed in a worse interim position. He would have to elect whether to
present submissions and evidence in relation to cancellation of his
refugee status in a state of uncertainty as to the confidentiality of
the information he may present. It is not in the interests of justice
that he be prevented from making that election on the basis of
certainty, as X will be able to.
[79] Weighing up all the above
factors to be considered in the exercise of my discretion, I am
satisfied that it is appropriate, in this case, that interim relief be
granted.
Relief
[80] Accordingly, there
will be an interim order by way of declaration in the terms sought by
the plaintiff, until further order of the Court.
[81] The plaintiff sought costs. In
my view, it is appropriate that costs be reserved, pending the outcome
of the plaintiff’s substantive proceeding for judicial review.
Solicitors for the
plaintiff: McLeod & Associates (Auckland)
Solicitors for the Crown:
Crown Law Office (Wellington)