Refugee Status Appeals Authority
REFUGEE APPEAL NO. 70387/97
MSI
AT AUCKLAND
Before: R.P.G. Haines (Chairman)
D J Plunkett (Member)Counsel for the Appellant: B Burson
Appearing for the NZIS: No appearance
Date of Hearing: 21 April 1997
Date of Decision: 14 May 1997
DECISION
This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a citizen of the Republic of Bangladesh.
INTRODUCTION
This is the second time that the appellant has appealed to this Authority.The appellant arrived in New Zealand on 9 March 1993. On 15 March 1993, he filed his first application for refugee status. He was interviewed by the Refugee Status Branch of the New Zealand Immigration Service on 19 May 1993. By letter dated 14 June 1993, he was advised that his application had been declined. From that decision, the appellant appealed.
The first appeal to this Authority was heard on 9 March 1995. In a decision delivered on 23 November 1995 (Refugee Appeal No. 1655/93 Re MSI) the appeal was dismissed. The grounds of the decision were that:
(a) The appellant did not meet the requirements of the refugee definition as set out in the Inclusion Clause of the Refugee Convention (Article 1A(2)), as the facts disclosed no Convention reason for the persecution feared by the appellant;(b) The Refugee Convention did not in any event apply to the appellant as in terms of Article 1F(a) there were serious reasons for considering that the appellant had committed a crime against humanity. This finding was based on the appellant's admission to having taken part in inflicting physical and psychological torture on persons arrested by the Bangladesh Directorate General of Forces Intelligence (DGFI). In particular, he admitted to having personally tortured a large number of persons. The techniques used included beatings and pouring water down the nostril. He was also present when needles were placed under fingernails and he knew that the victims were also deprived of food, subjected to unbearable noise and to electric shocks.As will be seen, in his second appeal, the appellant seeks to challenge this finding.After instructing new solicitors, the appellant filed a second refugee application on 17 September 1996. Apart from asserting that the appellant feared harm were he to return to Bangladesh, the second refugee application was bereft of detail. In answer to most of the questions in the application form the appellant stated "please see statement to follow". In fact, no statement ever followed.
By letter dated 18 September 1996 the Refugee Status Branch drew the appellant's attention to the fact that under the Terms of Reference (TR) under which both the Refugee Status Branch and the Refugee Status Appeals Authority operate, the Refugee Status Branch only has jurisdiction to accept for consideration a second refugee application if it is shown that since the original determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim. Part 1, para 3 of the TR provides:
"A person who has previously had a claim to refugee status finally determined by the Refugee Status Branch or the Authority has no right to have a further claim accepted for consideration by the Refugee Status Branch, unless since the original determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim."The Refugee Status Branch letter dated 18 September 1996 stated that in order to determine whether the appellant's further refugee application could be accepted, the appellant was required to provide, within 10 working days, evidence which demonstrated that his further claim to refugee status fell within the criteria prescribed by para 3.By letter dated 30 September 1996 the appellant's solicitors responded that the request for evidence conflicted with a decision of this Authority in Refugee Appeal No. 2245/94 Re SS (28 October 1994). The particular passage of the decision relied on was:
"Whether there is jurisdiction in the particular case to entertain a second refugee application is a question of mixed fact and law. In most cases, the second application will have to be heard in its entirety before a determination under para 3 can be made."The appellant's solicitors accordingly declined to provide the information requested.No Refugee Status Branch interview was held.
By letter dated 23 December 1996 the appellant's second application was declined by the Refugee Status Branch on the grounds that the jurisdictional criteria specified by Part 1, para 3 of the TR had not been satisfied in that there had been no relevant change of circumstances.
From the Refugee Status Branch decision dated 23 December 1996, the appellant has appealed. It will be referred to as his second appeal. The hearing on 21 April 1997 was concerned only with the issue of the jurisdiction of the Authority to hear the appeal. Subsequent to the hearing, further written submissions were filed. Those submissions have been taken into account in the preparation of this decision.
Before addressing the issues raised by the second appeal, we will address the refusal to provide the information requested by the Refugee Status Branch.
REFUSAL TO PROVIDE EVIDENCE TO THE RSB
With respect, the stance taken by the appellant's solicitors was misguided, bearing in mind the following circumstances:(a) A commendable feature of the New Zealand refugee status determination procedures is that a second refugee application is permitted. We say "commendable" because the procedures thereby recognize the special circumstances of refugees sur place. See further Refugee Appeal No. 2254/94 Re HB (21 September 1994) 35-36 and James C Hathaway, The Law of Refugee Status (1991) 33-39.
(b) Unfortunately, however, a provision which allows the lodging of a second refugee application is vulnerable to abuse. Regrettably, abuse of this provision is now endemic. We are not able to comment on the position at the Refugee Status Branch level, but as far as the Refugee Status Appeals Authority is concerned, the picture is an altogether depressing one. The first second-time appeal was determined by this Authority on 21 September 1994. By 17 March 1997 a further 217 second appeals had been determined. Of that number, only seven (or 3.6%) have been successful. This represents an extravagant waste of resources. We hasten to add that the appellant's solicitors have in no way whatever been involved in this abuse. However, the figures explain why the Refugee Status Branch requested that the appellant provide evidence demonstrating that his second refugee application met the prescribed criteria.
(c) In addition, the Refugee Status Branch has a duty in terms of Part 1, para 3 of the TR to ensure, before a further claim is "accepted for consideration" that the applicant demonstrate at least a prima facie case that there has been a change in circumstances in the home country of a kind which would allow it to be said that the further claim is based on significantly different grounds to the original claim. In short, the Refugee Status Branch has an obligation to ensure that it has jurisdiction to receive and consider a second refugee application. This it can only do by requiring evidence where virtually none has been filed.
(d) The request for further information was therefore an entirely reasonable one and it is regrettable that the information was not provided.
(e) The reliance by the appellant's solicitors on the Authority's decision in Refugee Appeal No. 2245/94 Re SS (28 October 1994) at 17 was misguided. When the Authority in that case stated that in most cases the second application will have to be heard in its entirety before a determination under para 3 can be made, it was not in any way suggesting that a claimant can lodge a pro forma second refugee application and, by keeping the facts up his sleeve, force the Refugee Status Branch to conduct a face to face interview. For the reasons already stated, the Refugee Status Branch has an administrative law duty to ensure that it acts within jurisdiction, and Part 1, para 3 of the TR specifically excludes jurisdiction to accept a further claim for consideration unless the prescribed criteria are present. If the papers disclose no arguable case that the prescribed criteria are present, the Refugee Status Branch cannot accept the application. The request for further information was therefore entirely proper and there is nothing in Refugee Appeal No. 2245/94 Re SS (28 October 1994) to suggest to the contrary, particularly as the point which has now arisen was not before the Authority on that occasion.
Before addressing the appellant's main submissions a preliminary jurisdictional issue must be disposed of, namely whether a person excluded from the Refugee Convention can, as a matter of law, bring a second refugee application followed by a second appeal.
JURISDICTION AND EXCLUSION UNDER ARTICLE 1F
In Refugee Appeal No. 70050/96 Re BS (20 February 1997) at 9 the Authority held that neither the Refugee Status Branch nor the Authority is empowered by any jurisdiction to accept or determine any second claim or second appeal for refugee status in which the Authority has ruled that the appellant is excluded from the protection of the Convention by Article 1F. The decision states that this applies irrespective of which sub-article of Article 1F was invoked as the basis of exclusion, and irrespective of whether the basis of exclusion was the only ground of the decision or given as an additional ground for the decision.
The ruling must be viewed in the light of the particular facts then before the Authority. The appellant in that case did not assert that the alleged changed circumstances in the home country bore on the Exclusion Clause issue. That being so the appellant remained a person to whom the provisions of the Refugee Convention did not apply and for that reason there was no jurisdiction for either the Refugee Status Branch or this Authority to entertain a second claim or second appeal for refugee status.
In the present case, the alleged change of circumstances is said to bear directly on the issue of exclusion and as it cannot be said with any degree of certainty that changed circumstances in the country of origin cannot in fact or in law bear on the exclusion clause issue, we do not see Refugee Appeal No. 70050/96 Re BS (20 February 1997) as an impediment to this Authority's jurisdiction to entertain this second appeal.
However, whether the present appellant is able to satisfy the changed circumstances/significantly different grounds criteria is an entirely separate issue. It is to this question that we now turn.
GROUNDS OF THE SECOND APPEAL
The Terms of Reference
The Authority's jurisdiction to entertain a second appeal is circumscribed by Part 2, para 5(1)(f) and para 5(1)(g) of the TR. The Authority is given power by these provisions:"(f) To determine an appeal, by a person who has made a further claim to refugee status, against the decision of the RSS not to accept the claim for consideration because, since the original determination, circumstances in the claimant's home country have not changed to such an extent that the further claim is based on significantly different grounds to the original claim.(g) To determine an appeal, in respect of a person who has had a further claim to refugee status accepted and considered by the RSS on the grounds set out in paragraph 3 of the Terms of Reference of the RSS, against the decision of the RSS, following consideration of the merits of that further claim, that the person does not meet the criteria for refugee status."Unless the criteria prescribed by these two paragraphs are met, the Authority has no jurisdiction to consider a second appeal. See Part 2, para 7(1) of the TR.The very limited nature of the Authority's jurisdiction to entertain a second refugee application is also emphasised by the fact that Part 2, para 5(4) of the TR specifically provides that a decision of the Authority is final and that there shall be no right of appeal or re-hearing on that matter. The paragraph is in the following terms:
"The Authority's decision on any matter properly before it shall be final and there shall be no right of appeal or re-hearing on that matter, and the Minister of Immigration agrees to be bound by the decision."The point is reinforced by Part 2, para 15 of the TR, which provides:"15 A decision of the Authority shall be a decision of the member(s) hearing a case. Where more than one member hears a case and members are unable to reach a unanimous decision, the decision of the majority shall prevail. Where members are evenly divided on a decision, the outcome shall be in favour of the appellant. A decision of the Authority shall not be reconsidered by the Authority once conveyed to the appellant (except as provided for in paragraph 5(1)(c) - (g) of these Terms of Reference)."[emphasis added]The Case for the Appellant
Given these provisions, prima facie, it might be thought that where on a first appeal a refugee application has been dismissed because no Convention ground has been established and that, in any event, the individual is excluded from the Convention by Article 1F(a), that on any second appeal the issue is necessarily whether the claimed change of circumstances in the home country impacts on the twin issues of Convention reason and exclusion. For these reasons the Authority directed by letter dated 15 April 1997 that counsel's memorandum address the changed circumstances in the appellant's home country which bore on the Exclusion Clause issue.However, neither in counsel's memorandum nor in counsel's oral submissions at the appeal hearing was the Authority's attention drawn to any such change of circumstance in Bangladesh. Rather, the appellant's second appeal was said to be founded on a complaint that the findings of fact made by the Authority at the first appeal were erroneous by reason of their being based on a fundamental misunderstanding of the appellant's evidence regarding his role in the DGFI. Specifically, it was submitted that the appellant had not been involved in systematic torture and at no stage had shared with others the common purpose of torturing suspects. Rather, all that he had intended to admit to at the first appeal hearing was that he had questioned student leaders about basic details such as their family, place of residence, courses and ambitions. On one occasion, and one only, he had been asked to hit three students with a bamboo stick and this he did. He felt compelled to do so as he was being watched by more senior officers and feared for his safety if he did not comply with their demands. This was the only occasion on which he had used physical violence in the course of his questioning. The appellant did not himself administer torture. It was argued on his behalf that his admissions at the first appeal hearing as to torture were intended to be a reference to this single event only.
A two-fold submission was developed:
(a) The requirement of changed circumstances in Part 1, para 3 and Part 2, para 5(1)(f) and para 5(1)(g) of the TR are satisfied not only when there has been an actual change in circumstances in the country of origin, but also where there has been a qualitative change in the Authority's perception of the appellant's case. It was submitted that the Authority's decision in Refugee Appeal No. 70027/96 Re SMI (19 September 1996) was authority for the proposition that the phrase "a change in circumstances" can encompass for the purpose of founding jurisdiction in respect of a second appeal, a change in the perception of the circumstances by the Authority based on new evidence of a compelling and demonstrably true nature.
(b) In the alternative, it was submitted that even if the changed circumstances criterion was not met, the Authority still had jurisdiction to entertain a second appeal by virtue of a discretion said to arise where natural justice so demanded.
We will deal with each of these submissions in turn.
MISUNDERSTANDING OF EVIDENCE AS A CHANGE OF CIRCUMSTANCES
Part 1, para 3, and Part 2, para 5(1)(f) and para 5(1)(g) of the TR are quite explicit in requiring a second-time refugee claimant to show that since the original determination:"...circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim."What weight is to be given to the requirement that the change of circumstances be "in" the claimant's country?While the Authority has emphasised that a narrow or legalistic approach to para 3 is to be avoided (see Refugee Appeal No. 2245/94 Re SS (28 October 1994) 17 and Refugee Appeal No. 70027/96 Re SMI (19 September 1996) 8), in the final analysis, the words used in the Terms of Reference must be given their ordinary meaning. See generally J F Burrows, Statute Law in New Zealand (1992) 145-158. The more so when the language is clear and unambiguous and neither the purpose nor the context of the relevant paragraphs indicate a need to depart from the ordinary meaning of the words.
For the reasons explained in Refugee Appeal No. 2254/94 Re HB (21 September 1994) at 23, the assessment whether a fear of persecution is well-founded at any particular point in time must necessarily focus on the attitude of the agent of persecution. As that attitude changes, so will the strength or weakness of the claimant's case. In these circumstances it is appropriate that proper weight be given to the requirement of the TR that the change of circumstances occur in the claimant's home country.
In the present case it is not claimed that any such changes have occurred in the home country (ie, Bangladesh). Rather, the claim is that this Authority at the hearing of the first appeal misunderstood the facts and if the appellant is correct in making that submission, for this second Authority to now come to what is said to be the correct understanding of the facts would amount to a qualitative change of a kind that meets the requirement that:
"...circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim."The Authority cannot accept this submission given the considerable violence that is required to be done to the plain and unambiguous requirement that there be a change of circumstances in the country of origin. A "reinterpretation" of a claimant's case is neither a change of circumstances, nor is it a change of circumstances "in" the claimant's home country. Furthermore, it cannot be said that the claim is based on significantly different grounds to the original claim. The appellant's first and second claims are based on identical facts and grounds. The only point at issue is the correct interpretation of the evidence given by the appellant on the torture issue.The appellant relies on a submission that "a change in circumstances" can encompass, for the purpose of founding jurisdiction, a change in the perception of the circumstances by the Authority based on new evidence of a compelling and demonstrably true nature. In support there is cited Refugee Appeal No. 70027/96 Re SMI (19 September 1996) at 8-9. This submission founders for two reasons:
(a) It is not a permissible construction of Part 1, para 3 and Part 2, para 5(1)(f) and para 5(1)(g) of the TR. The reasons have just been explained. The language is clear and unambiguous and must be given its ordinary and natural meaning. Neither the purpose nor the context of the paragraphs indicate a need to depart from this approach.
(b) Refugee Appeal No. 70027/96 Re SMI (19 September 1996) is not authority for the proposition for which it is cited. The Authority in that case merely gave recognition to the fact that if it be established that there has been a change in circumstances in the home country, it may well be that the fresh information now relied on by the refugee claimant will permit a previously adverse credibility finding to be revisited. The Authority affirmed, however, that neither the Terms of Reference nor common sense can be stretched to the extent to permit a second appeal to be used as a pretext to revisit adverse credibility findings made in the course of determining the first appeal. This much is clear from the passage relied on by the present appellant:
"Before a second refugee application can be entertained, it must be established that there has been a change in circumstances in Iran to such an extent that the second claim was based on significantly different grounds from the original claim. The Authority's approach, in a general way, is set out in the decision cited above, Refugee Appeal No. 2245/94 Re SS. Neither the Terms of Reference nor common sense can be stretched to the extent to permit a second appeal to be used as a pretext to revisit adverse credibility findings made in the course of determining a prior appeal. It may well be, as counsel for the appellant correctly submitted, that fresh information will cause previous evidence or narrative to be viewed in a new light. A narrow or legalistic approach is to be avoided. Conceptually, it might well be possible for a claimant, during the course of a second claim, to produce evidence which is so compelling and demonstrably true that an adverse credibility finding made during the determination of the first claim would have to be revisited. Such a situation would be exceptional, however. In the absence of such exceptional evidence it is not permissible for the determination procedures of the second claim to be used as a vehicle for a de novo hearing of the first claim."It must be observed that in the present case credibility issues did not arise at the first appeal hearing and we are therefore at a loss to see the relevance of Refugee Appeal No. 70027/96 Re SMI (19 September 1996), especially given that the appellant does not in any event rely on fresh information.In this context we must return to Part 2, para 5(4) and para 15 of the TR which expressly provide that the Authority's decision on any matter properly before it shall be final and there shall be no right of appeal or rehearing on that matter. The appellant's submission that on a second appeal a refugee claimant can invite the Authority to revisit the first hearing and decision and to correct "misunderstandings" is in fact an invitation for the second panel to sit as if it were an appellate authority in relation to the first panel's decision and to rehear the matter. This much emerged from counsel's careful submissions. The Authority was taken through the transcript of the first appeal hearing with a view to persuading the Authority to reach the conclusion that the apparently clear and unambiguous admissions made by the appellant to personal involvement in torture were not such admissions at all and that the evidence had been misunderstood. In this respect counsel's submissions were reminiscent of those presented in appeals from the District Court to the High Court under section 115 of the Summary Proceedings Act 1957, which by reason of section 119 of that Act proceed by way of rehearing on the notes of evidence made by the District Court judge, the High Court having the same jurisdiction and authority as the District Court, including the power to receive further evidence. Unfortunately for the appellant, Part 2, para 5(4) and para 15 of the TR specifically preclude the Authority from exercising such jurisdiction.
The dangers inherent in the approach advanced by the appellant are illustrated in a significant way by one specific example. In the transcript the following brief passage occurs:
Mr Nicolson: Did you pour water down the nose yourself?Appellant: Yes.Ms Clapham: Did you beat people yourself?Appellant: Yes.Mr Nicolson: What about the needles under the fingernails?Appellant: No.In addition to submitting that these apparently clear and unambiguous admissions should be treated with some caution, counsel told the Authority that in relation to the question whether he poured water down noses of detainees, the appellant actually replied "I saw this".Asked by the Authority whether it was now contended that the transcript was inaccurate, counsel properly accepted that at the first appeal hearing the word actually used by the appellant was "Yes" and that the transcript therefore accurately records his answer. Counsel further accepted that there were no relevant typographical errors in the transcript nor was it submitted that to the very limited extent that the appellant gave his evidence through an interpreter, there were inaccuracies in the interpretation. As developed, the submission was that the appellant, while answering "Yes" in fact meant to say "I saw this". Thus the Authority on this second appeal is being asked not only to reinterpret the evidence given by the appellant on another occasion before a differently constituted panel of the Authority, but also to allow the appellant to alter or change his evidence. With respect, the exercise is unorthodox, unprecedented and entirely unreal. Quite apart from these difficulties, the second panel has not had the benefit of seeing and hearing the appellant and of weighing his evidence in the light of the nuances inherent in the dynamic process of viva voce evidence. This is a common place observation, but an important one at that, as recently illustrated by Director of Public Prosecutions v Sabapathee [1997] 1 WLR 483, 486B (PC). A reading of the transcript shorn of the nuances, the colour and tones so evidently visible to the first panel will lead, almost inevitably, to "revisionism", as illustrated by the example just given. The appellant accepts that he gave the answer "Yes" but now says that he would have liked to have given a different answer. In this context we have not been called upon to make a credibility finding. Indeed on the issue of jurisdiction the appellant was not called to give evidence. Counsel was content to rely entirely on his memorandum, parts of which set out what the appellant now claims to have been the true situation.
Overall, our conclusion in relation to this first limb of the appellant's argument is that it is clear that the Authority has no jurisdiction under the Terms of Reference to embark upon a hearing of this second appeal given the express provisions of the TR prohibiting the rehearing of cases.
If there is jurisdiction, it must be found under the second limb of the appellant's argument.
IS THERE A DISCRETION TO REHEAR AN APPEAL?
For the appellant it is submitted that the Authority has a discretion to hear the second appeal in circumstances other than those prescribed by Part 2, para 5(1)(f) and para 5(1)(g) of the TR. Reliance is placed on the fact that Part 2, para 16 of the TR provides that the Authority may regulate its own procedure and conduct any hearings in such manner as it thinks fit:
"16. Subject to these Terms of Reference, the Authority may regulate its own procedure and receive such evidence and conduct any hearings in such manner as it thinks fit."The difficulty with this submission is that the power to rehear a case is a significant aspect of jurisdiction, not a matter of procedure. The Authority is not competent to add to its jurisdiction via para 16. The decision of Browne v Minister of Immigration [1990] NZAR 67, 70 (Eichelbaum CJ) is directly on point. See also P v ACC [1993] NZAR 416 (Doogue J). Contrast B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95, 100, 102 (Williams J) where the matters in issue related to procedure only, not jurisdiction.Counsel for the appellant then drew on Refugee Appeal No. 59/91 Re R (19 May 1992). In that decision the Authority held that it did not have jurisdiction to reopen an appeal where an appellant was in receipt of new evidence. This was because the Terms of Reference did not confer powers of a continuing character. Rather, the power to make
"a final determination on appeal" as to refugee status was an adjudicative function and the Authority was functus officio once a decision had been given. This holding was reinforced by an established line of Canadian authority which allows only one exception to the rule, namely, where there has been a decision rendered contrary to the rules of natural justice. In Refugee Appeal No. 59/91 Re R (19 May 1992) at 14 the Authority held that it did not need to decide whether the Authority itself had jurisdiction to reopen a decision in the situation where there has been a denial of natural justice at the first hearing.
Since then the only exception to the finality principle which has been recognized by the Authority is where the Authority hears and determines an appeal in the absence of an appellant who is unaware of the hearing. See Refugee Appeal No. 680/92 Re DS (27 February 1995). In that case the Authority held that where an appellant does not appear at the hearing of a first appeal, the appeal will be dismissed without consideration of the merits of the appeal on the basis that the Authority cannot satisfy itself whether the requirements of the Convention definition are met. Where such dismissal takes place, the Authority is of the view that it has jurisdiction to entertain a rehearing application should such application be made by the appellant.
The reasons for the Authority adopting this stance are fully explained in the decision and no point would be served by repeating what is said there. It is sufficient to note that the decision is based on strong policy grounds which are explained at pp 9-10, 20, 21, 22 and 23 of the decision. In essence, the ruling as to jurisdiction attempts to reconcile the Authority's mandatory duty under Part 2, para 8(3) of the TR to give an appellant an opportunity to attend an interview and the abuse of the appeal process by those who put themselves beyond the reach of service in order to delay the disposal of their appeal, or to force the Authority to determine the appeal on the papers, without the Authority having a proper opportunity to make a credibility assessment and requiring the Authority to accept a "perfect" or "boilerplate" set of facts without credibility being tested, or by requiring the Authority to apply the benefit of the doubt principle "sight unseen".
It must be recognized that for an administrative tribunal to find jurisdiction to rehear a case in the absence of express authority to do so would be unusual, to say the least. The precise limits to the finality or functus officio principle are hard to define, as exemplified by the contrasting approaches adopted by the majority and minority judgments delivered in Chandler v Alberta Association of Architects [1989] 2 SCR 848 (SC:Can). But neither the researches of counsel nor those of the Authority have turned up any case which supports the proposition contended for by the appellant, namely that an administrative tribunal which has no express power to rehear and which operates under terms of reference which expressly provide that decisions of the Authority are to be final and without right of appeal or rehearing, can nevertheless rehear a case on the basis that at the first hearing the appellant's evidence was misunderstood.
There is little, if anything, in the point that the absence of a "right" to a rehearing does not exclude the "power" to grant one. Part 2, para 5(4) of the TR provides:
"The Authority's decision on any matter properly before it shall be final and there shall be no right of appeal or re-hearing on that matter, and the Minister of Immigration agrees to be bound by the decision."The natural and ordinary meaning of the phrase "there shall be no right of appeal or re- hearing" is that the word "right" qualifies only "appeal". It is natural to speak of a right of appeal, but not of a right of rehearing. Confirmation of this interpretation is to be found in Part 2, para 15 of the TR which precludes the Authority from reconsidering its decisions:"15 A decision of the Authority shall be a decision of the member(s) hearing a case. Where more than one member hears a case and members are unable to reach a unanimous decision, the decision of the majority shall prevail. Where members are evenly divided on a decision, the outcome shall be in favour of the appellant. A decision of the Authority shall not be reconsidered by the Authority once conveyed to the appellant (except as provided for in paragraph 5(1)(c) - (g) of these Terms of Reference)."The Authority is therefore of the view that the appellant's submission that there is a discretion to rehear an appeal must inevitably fail in the face of the express provisions of the Terms of Reference and in the face of the legal principles which confine administrative tribunals strictly within the bounds of their jurisdiction. There are no policy considerations justifying any other conclusion. The appellant is not without remedy. Decisions of the Authority are amenable to judicial review by way of the prerogative writs, especially certiorari and mandamus. The Judicature Amendment Act 1972 has no application as the Authority does not exercise a statutory power of decision, but the scope of review afforded by a prerogative writ application is no less extensive. See for example Benipal v Ministers of Foreign Affairs and Immigration (High Court, Auckland, A993/83, 29 November 1985, Chilwell J) (Final Judgment) and the more recent decision of Patel v Chief Executive of the Department of Labour [1997] 1 NZLR 102, 108 (Baragwanath J). The fact that the appellant has available the most powerful of remedies to correct the alleged shortcomings of the first appeal hearing emphatically precludes the Authority from succumbing to the temptation to enlarge its jurisdiction beyond its proper bounds.[emphasis added]In view of these conclusions it is not necessary for the Authority to deal at length with the further submission advanced by the appellant, namely that the first panel committed an error of law in categorizing the appellant's actions as a crime against humanity. The success of this submission largely depends on the ability of the appellant to overturn the first panel's findings of fact. For the reasons given earlier, his attempt must fail. But in any event, if the first panel erred in law in the manner alleged, the appellant's remedy lies in judicial review proceedings, not in a forced reading of the TR.
CONCLUSION
In view of the explicit provisions contained in the Terms of Reference and the general principles of administrative law, the Authority finds that it has no jurisdiction to entertain this, the appellant's second appeal. On the facts, there has been no change in circumstances in the appellant's home country so as to bring into operation the Authority's jurisdiction under Part 2, para 5(1)(f) of the TR. Furthermore, given the express provisions as to finality contained in Part 2, para 5(4), para 7(1) and para 15 of the TR, the Authority has no jurisdiction to entertain a second appeal in circumstances outside of those permitted by Part 2, para 5(1)(f) and para 5(1)(g) of the TR.In view of the finding of absence of jurisdiction, the appeal is dismissed.
“R P G Haines”
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[Chairman]