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Amarverinder Singh v Refugee Status Appeals Authority

High Court Auckland M891/98
5 & 8 June 1998; 8 June 1998
Randerson J

Judicial review - Interim order - Disposal of case on undertakings by Crown

In 1988 the applicant, an Indian national of the Sikh faith, arrived in New Zealand.  In 1992 a removal order was made and on 16 July 1993 he applied for refugee status.  When that application was declined, he lodged an appeal with the Refugee Status Appeals Authority (RSAA).  On 13 October 1995 the appeal was dismissed.  Later the applicant sought a rehearing of the appeal but this was declined on 15 August 1996, the RSAA determining that it had no jurisdiction to consider a rehearing under its Terms of Reference.  No further action was taken to remove the applicant from New Zealand until he was arrested whereupon judicial review proceedings were brought on 29 May 1998 for a review of the decision declining a rehearing.  In the course of the interim order hearing the attention of the court was drawn to the fact that it was open to the applicant to lodge a second refugee application and from that application there was a right of a second appeal to the RSAA.  The Crown was prepared to give certain undertakings which would allow the applicant to make a fresh application to the Refugee Status Branch for refugee status.  In the circumstances it became unnecessary for the High Court to consider the question whether the refugee determination procedures should make provision for a rehearing to take place when new and important evidence comes to light and which could not reasonably have been available at the time of the initial hearing.

Terms of settlement:

The following undertakings were given by the Crown on behalf of the New Zealand Immigration Service:

1    That if the applicant were to make a fresh application to the Refugee Status Branch of the New Zealand Immigration Service for refugee status, it would be considered pursuant to paragraph 3 of the Terms of Reference for the Refugee Status Branch.

2    That if the initial determination is against the applicant and he appeals to the RSAA, any such appeal would be considered in accordance with paragraph 5(1)(f) of the Terms of Reference of the RSAA.

3    Generally, the procedure to be followed would be in accordance with Refugee Appeal No. 2245/94 Re SS (28 October 1994) which sets out the procedures and principles adopted.

4    Nothing in these undertakings shall be construed as restricting the RSAA in the exercise of its discretion within the bounds of its Terms of Reference.

5    It is recorded that it is anticipated that an oral hearing would be held before the RSAA.

6    If an application is made to the Refugee Status Branch, then the New Zealand Immigration Service will not remove the applicant from New Zealand until the final determination of the appeal to the RSAA, on the assumption that an appeal is made.

For clarity, para 5 above is not in the form of an undertaking but records the anticipation of the applicant that an oral hearing would be held before the RSAA in accordance with its usual practice (see paras [7] & [8]).

Interim order application adjourned.

Other cases mentioned in judgment:

[No other cases were mentioned]

Counsel
R J Hooker for the applicant
M Woolford for the respondents

[Editorial note:  The New Zealand refugee determination system was placed on a statutory footing by the Immigration Amendment Act 1999, s 40 which inserted a new Part VIA into the principal Act.  However, neither the new statutory provisions nor the Immigration (Refugee Processing) Regulations 1999 (SR1999/285) make provision for a rehearing of a refugee claim or appeal.  The Commissions of Inquiry Act 1908, s 4(1) does not confer inherent jurisdiction on the RSAA to order a rehearing: Browne v Minister of Immigration [1990] NZAR 67 (Eichelbaum CJ); P v ACC [1993] NZAR 416 (Doogue J) and B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 (Williams J).  However, the ability to lodge a second refugee application has been preserved by ss 129F(2), 129J, 129O(1) and 129P(9) of the Immigration Act 1987.]

RANDERSON J [1] This is an application by the applicant for an interim order restraining the New Zealand Immigration Service from removing him from New Zealand until further order of the Court.

[2] The applicant arrived in New Zealand on 20 April 1988 from India, he having been born in the Punjab and being a Sikh by religion.  In 1992 a removal order was made and on 16 July 1993 he applied for refugee status.  That application was declined by the Refugee Status Section of the Immigration Service on 29 September 1993.  An appeal was filed against that decision on 8 October 1993 but was dismissed by the Refugee Status Appeals Authority on 13 October 1995.  Later the applicant sought a rehearing of the appeal but this was declined on 15 August 1996, the Authority determining that it had no jurisdiction to consider a rehearing under its terms of reference.  No further action was taken to remove the applicant from New Zealand until recently when he was arrested.  He is currently in custody.  Upon these developments, the applicant filed the present proceedings in this Court on 29 May 1998 for a review of the decision declining a rehearing.

[3] The substantive grounds of the proceedings in this Court are first that the Authority erred in law in deciding it had no jurisdiction to grant a rehearing and second that the Authority made a mistake of fact in relation to the applicant.  This latter issue amounts to an attempt to reverse a credibility finding against the applicant in relation to his assertion that he would have a well founded fear of persecution if he were to return to India.

[4] The application before me has been supported by an affidavit sworn by Mr Gurdawar Singh who is an acquaintance of the applicant.  He has deposed that in October 1995 when he returned to India he was mistaken for the applicant and was arrested and beaten.  The applicant wishes to rely on this affidavit in support of a rehearing in the hope that he will be able to persuade the relevant authorities that the credibility finding was in error and that he should be accorded refugee status.

[5] In the course of this hearing, it has emerged that there is jurisdiction for the New Zealand Immigration Service through the Refugee Status Section (now called Refugee Status Branch) to reconsider the matter in the form of a fresh application in terms of paragraph 3 of the terms of reference of that body which is in the following terms:

[6] Mr Woolford has referred me to the decision of the Refugee Status Appeals Authority No.2245/94 which sets out the procedures and principles which the Authority adopts where there is a second application and a second appeal.  In particular, the Authority has stated in that decision that "the case must be looked at in the round and with the humanitarian purpose of the Refugee Convention in mind".  I am advised that the normal procedure is that the Authority would conduct a fresh hearing and in appropriate cases may be prepared to accept that an individual may at any subsequent hearing be able to establish a well founded fear of persecution even if he or she could not do so at the earlier stage.

[7] Given these principles, the parties are now agreed that the present application for interim relief can be disposed of on the basis of the following undertakings which the Crown gives on behalf of the New Zealand Immigration Service:

1. That if the applicant were to make a fresh application to the Refugee Status Branch of the New Zealand Immigration Service for refugee status, it would be considered pursuant to paragraph 3 of the terms of reference for the Refugee Status Branch.

2. That if the initial determination is against the applicant and he appeals to the Refugee Status Appeals Authority, any such appeal would be considered in accordance with paragraph 5 (1)(f) of the terms of reference of the Authority.

3. Generally, the procedure to be followed would be in accordance with Refugee Appeal No.2245/94 which sets out the procedures and principles adopted.

4. Nothing in these undertakings shall be construed as restricting the Authority in the exercise of its discretion within the bounds of its terms of reference.

5. It is recorded that it is anticipated that an oral hearing would be held before the Authority.

6. If an application is made to the Refugee Status Branch, then the New Zealand Immigration Service will not remove the applicant from New Zealand until the final determination of the appeal to the Authority, on the assumption that an appeal is made.

[8] For clarity, paragraph 5 above is not in the form of an undertaking but records the anticipation of the applicant that an oral hearing would be held before the Authority in accordance with its usual practice.

[9] The substantive proceedings will remain on foot and the matter should be called again for mention in the Duty Judge list on Monday 10 August 1998.

[10] A point of interest which has arisen during the course of this case is whether the procedures adopted by the Refugee Status Board and the Refugee Status Appeals Authority comply fully with the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol, and with the "highest standards of fairness since questions of life, personal safety and liberty are at stake" as referred to by Fisher J in Khalon v Attorney-General [1996] 1 NZLR 458.  In particular, Mr Hooker has raised the question whether the procedures should, in fairness, have a clear provision that enables a rehearing to take place where new and important evidence comes to light which could not reasonably have been available at the time of the initial hearing of an appeal under these provisions.  I do not wish to express any view on this matter as it is a difficult question which has not been fully argued.  However, the Crown may wish to consider the point and decide whether it is appropriate for any change in the procedures to be adopted which would take account of the situation faced by this applicant where new and important evidence comes to light.  It may be that there will be cases of this kind which cannot easily fit within paragraph 3 of the terms of reference of the Refugee Status Branch.  Obviously questions of practicality and the desirability of finality in litigation will need to be considered but it may be possible to devise a procedure which would satisfactorily meet the competing considerations.  I simply note that it is common in many statutes in New Zealand to have a provision allowing for a rehearing where new and important evidence comes to hand which was not reasonably available at the time of the original hearing.

[11] Mr Hooker advises that the applicant is on legal aid.  In those circumstances I make no order as to costs in the present application.

Solicitors for the applicant: Vallant Hooker & Partners (Auckland)
Solicitors for the respondents: Crown Solicitor (Auckland)