Court of Appeal Cases 

Court of Appeal, Wellington CA252/99; [2000] NZAR 136
16 November 1999; 16 November 1999
Richardson P, Gault & Tipping JJ

Judicial review - interim order - discretion to grant relief - effect of right of appeal - whether full de novo
hearing before Refugee Status Appeals Authority sufficient to deny interim relief - New Zealand Bill of Rights Act 1990, s 27

New Zealand Bill of Rights Act - Access to Lawyer - Whether detained under any enactment - whether refugee claimant denied right to consult and instruct a lawyer - denial of refugee claimants or immigrants of prompt access to a lawyer

The plaintiff arrived in New Zealand on 2 September 1999 shortly before the commencement of the APEC Conference held in Auckland that month.  He was not in possession of a passport or other appropriate travel documents and immediately indicated an intention to apply for refugee status.  He was taken into custody under the Immigration Act 1987, s 128.  The following day a lawyer instructed to act for the plaintiff was denied access to the plaintiff.  At the airport the plaintiff completed an application for refugee status and a two page statement was taken from him despite the absence of the lawyer.  On the same day he was refused a visitor's permit and a warrant of commitment was issued by the District Court on 4 September 1999.

The lawyer first saw the plaintiff on 6 September 1999 at Mt Eden Prison.  That same day a refugee status officer advised that it was intended to interview the plaintiff on 8 September 1999.  The plaintiff requested a postponement for six weeks to obtain evidence and to prepare his case.  This request was declined and the interview took place at prison under protest.  On 9 September 1999 an interview report was sent to the plaintiff's lawyer and a response requested by 5.00pm on Friday, 10 September 1999.  The plaintiff sought an extension of four weeks to reply as he wished to obtain medical reports.  An extension was granted to 5.00pm on Monday, 13 September 1999, after the weekend of the APEC Conference.  Due to the time constraints the plaintiff filed no submissions.  On 14 September 1999 a decision was made by a refugee status officer declining refugee status on the grounds that the claimed fear of persecution was not well-founded and in addition, there were concerns as to the credibility of certain of the plaintiff's claims.  The plaintiff appealed to the Refugee Status Appeals Authority (RSAA) which scheduled the appeal for hearing on 30 September 1999 but this fixture was subsequently postponed until 20 October 1999 in view of the plaintiff's application to the High Court for an interim order restraining the RSAA from hearing the appeal.

The plaintiff's proceedings in the High Court claimed that the New Zealand Immigration Service (NZIS) had acted contrary to natural justice in declining to grant refugee status, that he had been unlawfully denied access to a lawyer, that he had had insufficient time to prepare his case and had been declined a temporary permit contrary to published immigration policy for refugees.  The Minister of Immigration denied there was any breach of natural justice and in the alternative, submitted that any such breach would be cured by the de novo hearing which was about to take place before the RSAA.

In a judgment delivered on 2 November 1999 Randerson J, while concluding that the plaintiff had a clearly arguable case of denial of natural justice in relation to the decision of the refugee status officer declining refugee status, nevertheless refused to grant an interim order directing the RSAA not to proceed with the appeal hearing.  On appeal to the Court of Appeal it was submitted that denial of an interim order to enable the substantive application for review to be heard and determined before the appeal to the Authority (1) deprived the plaintiff of access to a genuine two stage hearing and effectively meant that there was not a two stage hearing but a one stage hearing; (2) made the first stage hearing immune from review; (3) deprived the plaintiff of his lawful right guaranteed to him under the New Zealand Bill of Rights Act 1990, s 27 to have the determination of the NZIS judicially reviewed.  If his appeal was heard and dismissed by the RSAA (principally on lack of credibility grounds brought about by the conduct of the NZIS) then he would be immediately removed to India.  His right of review, therefore, was an empty right which had been removed from him by the actions of the NZIS; (4) permitted the NZIS in their denial of natural justice to disadvantage a refugee claimant to the extent that his credibility was damaged by the actions of the NZIS which they had taken in bad faith; (5) compelled an appellant to lodge an appeal, not by election but by compulsion.

Held:

1    The contention inherent in the first three stated grounds, that it is not open to deny the opportunity for review by the courts of a process even where the process will be repeated by an expert and independent tribunal, is contrary to authority and to common sense.  The preferable approach is that of overall consideration.  The court should first identify the error, or errors, which are said to vitiate the first instance decision.  The second step is to examine what effect the appeal has had on the error, or errors, found at the first stage.  If the appeal has in substance removed the prejudice which would otherwise have resulted to the complaining party, the court should exercise its discretion against relief, because overall no continuing prejudice from what went wrong at first instance can be shown.  Where there has been review by way of a rehearing, which is said to have cured any earlier problems, the onus is on the applicant for judicial review to demonstrate continuing prejudice.  It is only if there is continuing prejudice that the first instance error, or errors, have continuing relevance (see Judgment para 15).

Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385, 436 (CA) followed and applied.

2    There is no call for a compartmentalised approach to the two stages of consideration of applications for refugee status.  The whole scheme of the legislation indicates the adoption of a process designed to ensure overall the fair consideration of applications in accordance with international obligations.  There is nothing in the legislation indicating any need to regard the process before the refugee status officer as requiring special consideration separate from the scheme as a whole (see Judgment para 17).

3    Nothing in the New Zealand Bill of Rights Act 1990, s 27 requires any different approach.  In practical terms the appellant will suffer no prejudice.  Nothing gave concern that the RSAA will be unfairly influenced on issues of credibility, particularly since, as the judge at first instance pointed out, the appellant will be able to refer to the view expressed by that judge that arguably there was a denial of natural justice by the Immigration Service.  There was also assurance to be drawn from a recent decision of the RSAA referred to in argument in which in somewhat similar circumstances, the RSAA plainly reached its own view on credibility in favour of that particular appellant (see Judgement para 18).

Observations:

To the extent that the argument for the appellant proceeded on an assumption that persons arriving at an airport and applying for refugee status are, even before a decision is made to permit or deny entry, entitled to the right accorded by the New Zealand Bill of Rights Act 1990, s 23(1)(b), it may be overstated (see Judgment para 7).

Appeal dismissed.

Other cases mentioned in the Judgment

Refugee Appeal No. 71684/99 (29 October 1999)

Counsel

R J Hooker for the appellant
M A Woolford for the respondents

[Editorial note:  Both the decision of the Court of Appeal and the decision of Randerson J at first instance are significant judgments.  The decision of Randerson J is reported as Malkit Singh v Attorney-General  [2000] NZAR 125 and is also headnoted on the High Court page of this website.

There is no indication in the judgment delivered by the Court of Appeal as to whether reference was made by counsel to the Immigration Act 1987, s 140(4) which imposes an independent obligation on those holding a detainee in custody to inform the detainee of the detainee's right to contact a solicitor or counsel and to take reasonable steps to enable the solicitor or counsel to visit the detainee and to communicate with the detainee in private.]
 
The judgment of the Court was delivered by

GAULT J  [1] The appeal is against the decision of Randerson J given in the High Court at Auckland on 18 October refusing in an application for judicial review an interim order under s 8 Judicature Amendment Act 1972.

[2] The appellant was denied refugee status by the New Zealand Immigration Service in a decision issued by The Refugee Status Branch on 14 September.  Events leading up to that decision and following the appellant's arrival in New Zealand on the evening of 2 September led Randerson J to conclude that the appellant had a clearly arguable case of denial of natural justice in relation to the decision.  Upon his arrival the appellant had no travel documents.  Although he sought refugee status claiming persecution in India, he was detained.  He was interviewed on 3 September and refused a temporary permit.  Up to that time a lawyer who had sought access to the appellant was refused.  It seems this was in accord with policy at the time because of security considerations arising from the presence of numerous heads of government at the APEC meeting in Auckland.

[3] The appellant was taken into custody, it seems pursuant to s 128(5) Immigration Act 1987.  Thereafter he had access to a lawyer.  The formal interview for the purpose of determining whether refugee status should be granted was held on 8 September against protests at the lack of time properly to prepare.  After the interview the Immigration Officer asked for further information but declined to allow the appellant time beyond 13 September to provide it.  It is said the appellant had little facility with the English language.

[4] The appellant immediately filed an appeal to the Refugee Status Appeals Authority.  That was to be heard on 30 September.  On 29 September the appellant commenced the present proceeding for review of the decision of 14 September and applied for an interim order that the appeal hearing not proceed pending substantive determination of the application for review.  The appeal hearing before the Authority was adjourned to 20 October.  The application for interim relief came before Randerson J as Duty Judge on 13 October.  On 18 October he issued a minute declining the application and indicating that reasons would follow.  The appellant then sought and obtained a further adjournment of his appeal to the Authority.  That now is scheduled for 6 and 7 December.

[5] The appeal to this Court initially was listed among miscellaneous motions for hearing on 28 October but it could not then proceed because Randerson J's reasons were not available.  They were issued on 2 November.

[6] There has been no attempt in the meantime to have the substantive application for review determined in the High Court.

[7] It is unnecessary to review the alleged failure to accord natural justice and the contentions of the Immigration Service to be advanced should the matter reach a substantive hearing.  It is sufficient to adopt the finding of the Judge and note the disputes are as to access to legal advice and time adequately to prepare for the formal interview conducted on 8 September or otherwise to support the application.  In doing this, we do not wish to be taken as expressing any view on the competing assertions.  We mention, however, that to the extent that the argument for the appellant proceeded on an assumption that persons arriving at an airport and applying for refugee status are, even before a decision is made to permit or deny entry, entitled to the right accorded by s 23(1)(b) of the New Zealand Bill of Rights Act 1990 it may be overstated.

[8] Randerson J declined to make the interim order sought notwithstanding his preliminary finding of an arguable case.

[9] As he said in his reasons, central to his decision was his finding that there would be a full de novo hearing before the Authority and any natural justice concerns would be overtaken.  The Judge set out what he regarded as the relevant principles when considering the effect of an appeal hearing upon a prior breach of natural justice as follows:

(a) An appeal following a first instance hearing or decision does not normally oust the jurisdiction of this Court on review to redress breaches of natural justice or other administrative law error by the body at first instance and does not necessarily cure any prior breach: Reid v Rowley and Anor [1977] 2 NZLR 472, 481 (CA) approved by the Privy Council in Calvin v Carr [1980] AC 574, 595-596.

(b) But the existence of an appeal may be a factor relevant to the exercise of the discretion to grant relief: Reid v Rowley at 483-484; Calvin v Carr at 596; Wislang v Medical Practitioners Disciplinary Committee [1974] 1 NZLR 29, 44; and Taylor on Judicial Review (1991) paragraph 2.40.

(c) In considering the exercise of discretion, much will depend upon:

[i] The gravity of the error or breach at first instance.

[ii] The likelihood that the prejudicial effects of the error may also permeate the appeal hearing.

[iii] The seriousness of the consequences for the individual.

[iv] The nature and extent of the powers of the appellant body.

[v] Whether the appellate decision is reached only on the basis of material before the original decision maker or by way of rehearing de novo. De Smith, Woolf and Jowell-Judicial Review of Administrative Action (5th ed) paragraph 10.022.

(d) The circumstances may range from a situation where the parties may be taken to have assented to the appellate hearing as superseding the hearing at first instance and to have  accepted the fairness of such a procedure (for example, by the rules of a social or sporting club) to those where there is a right to expect nothing less than a fair hearing in both instances: see the discussion by Lord Wilberforce in Calvin v Carr at 592, 593.

(e) It may be that, in the end, as observed in De Smith at 10-022:

... Recent case law indicates that the Courts are increasingly favouring an approach based in large part on an assessment of whether, in all the circumstances of the hearing and appeal, the procedure as a whole satisfied the requirements of fairness.
 
(f) The mere existence of review proceedings alleging invalidity at the first instance stage does not deprive the appeal body of jurisdiction to hear the appeal: Slipper Island Resort Limited v No 1 Town and Country Planning Appeal Board [1981] 1 NZLR 143, 145 (CA).

(g) For the purposes of granting interim relief to restrain the Authority from proceeding with the appeal, Mr Singh must demonstrate under s 8 of the Judicature Amendment Act 1972 that the relief sought is necessary to preserve his position pending the substantive hearing of his application for judicial review.

On behalf of Mr Singh, Mr Hooker submitted that notwithstanding the availability of a de novo hearing before the Authority, Mr Singh would be disadvantaged particularly because of the adverse credibility findings made by the Immigration officer. He submitted that the question of credibility was often critical in refugee status hearings and I accept that is so.  Mr Hooker also submitted that the consequences to his client of refusal of refugee status could be severe and potentially life threatening.  Certainly, it must be accepted at this stage that there may be a potential for serious consequences to Mr Singh.  Finally, Mr Hooker submitted that his client was entitled to a proper hearing at first instance and that the result might have been different had adequate time been allowed for preparation.  In that case, there would have been no need for an appeal.

I acknowledged the force of Mr Hooker's submission in this respect. Nevertheless, I decided that, as a matter of discretion, it would be inappropriate to grant relief to Mr Singh prior to the determination of his appeal by the Authority.  In particular, I was influenced by the nature of the hearing before the Authority.  By the time the appeal is heard, Mr Singh will have had a significantly longer period to gather material and prepare his case.  By that date of the then proposed hearing (20 October) he had been released from custody for nearly three weeks so that any necessary medical or psychiatric examinations could have been undertaken.  By then he would also have had time to obtain proper briefs of evidence from family members.  As well, time would have been available to assess the country information material and to make any response to it.

No doubt the Authority would also have before it the decision of this Court, including my finding that there was a clearly arguable case of breach of natural justice in Mr Singh's case.  The Authority would be entitled to take that into account in considering what weight, if any, should be given to any prior findings by the RSB or any prior statements by Mr Singh.

Given these factors, I did not consider that Mr Singh would be materially disadvantaged by permitting the appeal to the Authority to proceed.  He would still have available to him at the end of the appeal the ability to attack in this Court the whole of the process, including both the initial and appellate stages.  Put simply, I concluded that the interim order sought was not necessary to preserve his position.

[12] It was submitted that the Judge did not consider the statutory test in s 8 of whether an interim order was necessary to preserve the applicant's position.  That cannot be accepted.  The Judge included in his summary of the applicable principles the precise statutory test and, after reviewing the grounds advanced, concluded that the order sought was not necessary to preserve his position.

[13] The further submission was that the Judge failed to take into consideration that unless the appeal was lodged the appellant risked being removed from New Zealand.  The suggestion is that because he was compelled to appeal to avoid removal, the existence of the appeal should not have prevented the appellant from entitlement to the interim relief he sought.  This requires acceptance that the appeal would not otherwise have been filed and there is no evidence to that effect.  We do not accept this is a material consideration such that failure to take it into account constitutes a ground for interfering with the exercise of the Judge's discretion.  Whatever the reason, he was presented with an impending de novo appeal hearing which he regarded as rendering interim relief unnecessary and that view was clearly open to him.

[14] For the appellant it was submitted that denial of an interim order to enable the substantive application for review to be heard and determined before the appeal to the Authority:

(i) is to deprive him of access to a genuine two stage hearing and effectively means that there is not a two stage hearing but a one stage hearing.

(ii) makes the first stage hearing immune from review.

(iii) deprives the appellant of his lawful right guaranteed to him pursuant to Section 27 of the New Zealand Bill of Rights to have the determination of the Immigration Service judicially reviewed.  If his appeal is heard and dismissed by the Refugee Status Appeals Authority (principally on lack of credibility grounds brought about by the conduct of the Immigration Service) then he will be immediately removed to India.  His right of review, therefore, is an empty right which has been removed from him by the actions of the Immigration Service.

(iv) permits the Immigration Service in their denial of natural justice to disadvantage a refugee to the extent that his credibility is damaged by the actions of the Immigration Service which they have taken in bad faith.  It is part of the pleading and claim by the appellant that the actions of the Immigration Service in declining to grant him a temporary permit have been taken in bad faith. This led to the truncated procedure.

(v) compels an appellant to lodge an appeal, not by election, but by compulsion.

To my mind, the correct approach is this.  This Court should first identify the error, or errors, which are said to vitiate the first instance decision.  The second step is to examine what effect the appeal has had on the error, or errors, found at the first stage.  If the appeal has in substance removed the prejudice which would otherwise have resulted to the complaining party, the Court should exercise its discretion against relief, because overall no continuing prejudice from what went wrong at first instance can be shown.  Where, as here, there has been review by way of a rehearing, which is said to have cured any earlier problems, I would put the onus on the applicant for judicial review to demonstrate continuing prejudice.  It is only if there is continuing prejudice that the first instance error, or errors, have continuing relevance.

Nevertheless, it is well established that the existence of certain types of appeal rights may affect the application, or at least enforcement, of the requirements of natural justice.  It is worth pausing to consider why this might be.  Two lines of argument are commonly suggested.  One approach holds that the presence of a right of appeal is in some way indicative of a legislative intention to exclude natural justice.  It is said that the appeal shows that the legislature "turned its mind" to the question of the manner in which persons affected should be heard.  The other approach focuses on the potential of a full right of appeal to redress unfairness in the initial decision.  If there is an appeal on the merits by way of de novo hearing, to a person who is unlikely to be affected by what occurred at first instance, the appeal may be able to provide all that procedural fairness requires.  If so, it is a far superior remedy for breach of natural justice than judicial review, since it will not only redress the initial unfairness more effectively and quickly than judicial review can, but also replace the initial decision with a fresh decision on the merits.  This provides a strong justification for courts allowing such appeals to cure defects and requiring those complaining of breach of natural justice to exercise their rights of appeal instead of seeking judicial review.

[18] We see nothing in s 27 of the Bill of Rights Act that requires any different approach.  In practical terms the appellant will suffer no prejudice.  Nothing Mr Hooker was able to submit to us gave us concern that the Authority will be unfairly influenced on issues of credibility, particularly since, as the Judge pointed out, the appellant will be able to refer to the view expressed by the Judge that arguably there was a denial of natural justice by the Immigration Service.  There is also assurance to be drawn from the recent decision of the Authority referred to us by Mr Woolford in which in somewhat similar circumstances the Authority plainly reached its own view on credibility in favour of the appellant: see Refugee Appeal No 71684/99, 29 October 1999.

[19] For the reasons given the appeal is dismissed.

[20] The respondent is entitled to costs which we fix at $3,000 together with disbursements including the reasonable travel and accommodation expenses of counsel approved, if necessary, by the Registrar.

Solicitors for the appellant: Vallant Hooker & Partners (Auckland)
Solicitors for the first and second respondents: Crown Solicitor (Auckland)