High Court Cases

High Court Auckland M187/SW00; [2001] NZAR 584
7 March 2001; 8 March 2001
O'Regan J

Habeas corpus - whether detention in custody pending removal lawful

Interpreter - whether refugee claimant substantially prejudiced - whether presence of an interpreter would have led to a different conclusion

Judicial review - credibility findings - whether RSAA able to make findings of credibility different to those made by the refugee status officer

Judicial review - extension of time - whether fact that applicant not aware of need to bring application for judicial review within three months a special circumstance - Immigration Act 1987, s 147A

Judicial review - fairness - credibility findings - whether notice must be given of a proposed adverse credibility finding

Procedure of RSAA - decisions - whether decision must be signed by all members hearing appeal

Procedure of RSAA - legal representation - whether RSAA has obligation to arrange legal representation

All three plaintiffs had been refused refugee status and were held in Mt Eden Prison preliminary to their removal from New Zealand.  They applied for habeas corpus and for an extension of time to apply for judicial review.  In relation to Mr Achhido, the Refugee Status Appeals Authority (RSAA) had found his account completely lacking in credibility.  In relation to Mr Fiagadzi, the RSAA determined that he was not a Rwandan as claimed.  In relation to Ms Adiza, the RSAA found that her fear of persecution in Liberia was not well-founded.

Held:

1.    No grounds for habeas corpus had been established (see para [17]).

2.    The simple assertion that an applicant was not aware of the need to bring an application for judicial review within the prescribed period is not sufficient to amount to special circumstances.  Applicants must not be given an incentive to pursue their appeal and review rights until the eleventh hour, which is what the Immigration Act 1987, s 146A appears aimed at preventing.  No special circumstances had been established to justify further time to commence judicial review proceedings (see para [26]).

Naidu v Minister of Immigration (High Court, Auckland, M 1661-SW99, 23 March 2000, Rodney Hansen J) and Thomas v Removal Review Authority (High Court, Rotorua, AP 39/00, 26 October 2000, Fisher J) referred to.

3.    In the circumstances the RSAA had no obligation to arrange legal representation (see para [35]).

4.    The hearing before the RSAA is a de novo hearing and it is entitled to make findings at odds with the findings of the Refugee Status Branch (see paras [36] & [37]).

Malkit Singh v Attorney-General [2000] NZAR 136 (CA); Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) and Refugee Appeal  No. 523/92 Re RS (17 March 1995) referred to.

5.    Where it is obvious from the decision of the RSAA that it is unanimous, the decision may be signed by one member on behalf of the Authority rather than signed by all members hearing the appeal (see para [38]).

6.    The RSAA does not have an obligation to give notice of a proposed adverse credibility finding in order that an appellant may comment on it (see para [47]).

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) applied.

7.    While it would have been preferable for the appeal by Ms Adiza to have been conducted with an interpreter, she had not been substantially prejudiced by the absence of an interpreter and the Court was not persuaded the presence of an interpreter would have led to a different conclusion.
 

Applications for habeas corpus and extension of time under s 146A dismissed

Other cases mentioned in judgment

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

Counsel

DE Dorbu for the plaintiffs
M Woolford for the defendants
 

O'REGAN J

[1] This case involves applications on behalf of Daniel Achhido, Jean Fiagadzi and Abena Adiza for:

(a)    an extension of time to apply for judicial review of decisions of the Refugee Status Appeals Authority (the "Authority") dated 21 October 1999 (Fiagadzi), 31 March 2000 (Adiza) and 6 April 2000 (Achhido);

(b)    judicial review of those decisions of the Authority;

(c)    habeas corpus.

[3] The application for habeas corpus was filed on 22 February 2001, and came before Baragwanath J on 23 February 2001.  He issued a minute on that day indicating that the evidence provided by the Crown appeared to indicate a complete answer to the habeas corpus claim.  However, he decided to allow Mr Dorbu, counsel for the plaintiffs, an opportunity to confer with the lawyer who represented the plaintiffs in relation to their refugee status claims and the opportunity to have access to the departmental files.  He therefore adjourned the matter to Wednesday 28 February 2001.

[4] On 27 February 2001, a statement of claim was filed on behalf of the plaintiffs seeking an injunction against the Governor of Mt Eden Prison and the Department of Labour/NZIS, prohibiting them from removing the plaintiffs from the jurisdiction, an injunction preventing the defendants from seeking further to commit the plaintiffs to prison or detention, an order releasing the plaintiffs from detention, an order quashing the decision of the Authority and directing a re-hearing, a declaration that the order of commitment to prison was in breach of the rules of natural justice and such further relief as the Court deemed fit.

[5] The matter came before me on 28 February 2001.  I issued a minute after that hearing, and adjourned the hearing so that the pleadings could be amended and the claims could be considered under the Judicature Amendment Act 1972.  Mr Woolford gave an undertaking on behalf of the Crown that the plaintiffs would not be deported before 8 March 2001 so that their claims could be heard on 7 or 8 March 2001.

[6] On 2 March 2001, an amended statement of claim was filed, seeking relief under the Judicature Amendment Act 1972, in particular:

(a)    an order quashing the decisions of the Authority;

(b)    an order setting aside those decisions;

(c)    or alternatively, a declaration that the decisions were invalid and any other relief as the Court deemed appropriate.

[8] In view of the time restriction in s 146A of the Immigration Act 1987, an application for extension of the time to apply for judicial review on behalf of all three plaintiffs was also made on 2 March 2001.

[9] The plaintiffs did not make an application for interim orders under s 8 of the Judicature Amendment Act 1972, but Mr Dorbu made an oral application for an interim declaration that the New Zealand Immigration Service not remove the plaintiffs from New Zealand pending determination of the judicial review application.  As this application had been anticipated by Mr Woolford, I did not believe there is any prejudice to the Crown in allowing the application for interim orders to be made in this way.  I therefore agreed to consider the application for a declaration under s 8.  It is also subject to s 146A of the Immigration Act 1987.

Applications before the Court

[10] Accordingly, the applications before me were:

(a)    the applications for habeas corpus;

(b)    the applications for extension of time under s 146A;

(c)    the applications for judicial review of the decisions of the Authority;

(d)    the (oral) applications for interim declarations under s 8 of the Judicature Amendment Act 1972.

[11] The Crown filed an affidavit from the Immigration Officer in charge of the case, Mr Jessup.  He records that all the plaintiffs applied for Ghanaian travel documents on the basis of being born in Ghana.  This contrasts with their earlier claims to be Rwandan, (Achhido and Fiagadzi) and Liberian (Adiza).

Habeas Corpus

[12] Mr Dorbu, counsel for the plaintiffs, made a written submission that s 45 of the Immigration Act 1987, which was inserted by s 34 of the Immigration Amendment Act 1999, came into force on 1 October 2000 and was therefore not in effect at the time the permits of the plaintiffs expired.  In fact, as Mr Woolford submitted, s 45 came into effect on 1 October 1999 and was therefore clearly in effect when the permits of the plaintiffs expired.  The transitional provision in s 70 did not apply to any of the plaintiffs.  The plaintiffs' argument that the application of s 45 to the plaintiffs amounted to retrospective application of the law, in breach of s 26 of the New Zealand Bill of Rights Act 1990, therefore has no validity.  The argument that the plaintiffs still have the right to apply to the Removal Review Authority to cancel the removal orders against them is incorrect.  That being the case, the plaintiffs, having been the subject of removal orders, were able to be arrested without warrant under s 59 of the Immigration Act 1987, as occurred in this case.

[13] At the hearing before me, Mr Dorbu argued on behalf of Ms Adiza that s 47(2)(b) of the Immigration Act applied and that she therefore still had a right of appeal to the Removal Review Authority.  However, Mr Woolford pointed out that s 47(2)(b) applied only where notification of the confirmation of a decision to decline to issue a permit under s 31 is in issue, which is not the case here.  Accordingly s 47(2)(a) applies which means that Ms Adiza was required to bring her appeal within 42 days after she became unlawfully in New Zealand.  In her case that happened, at the latest, on the day that her permit expired on 21 August 2000.  In the circumstances, therefore, I find that she was, at the time of her arrest, unlawfully in New Zealand.

[14] Mr Dorbu also argued that the commitment of Ms Adiza was unlawful because she had been granted bail by a District Court Judge on a police charge.  I do not believe that the granting of bail on another charge affects the application of the Immigration Act 1999 and accordingly reject that submission.

[15] Mr Dorbu argued that the arrest of the plaintiffs was arbitrary and in contravention of ss 21 and 22 of the New Zealand Bill of Rights Act 1990, and that the fact that the plaintiffs did not have legal representation when their warrant of commitment was renewed for a further seven days on 22 February 2001 was unlawful and contravened fundamental principles of justice in s 23 of the New Zealand Bill of Rights Act.  He pointed out that Mr Fiagadzi had not tried to abscond from the Immigration officers.  However, the warrants of commitment (including that of Mr Fiagadzi), were all renewed after the date on which the case first came before me, at a time when the plaintiffs were represented by counsel.  So if there had been any defect in the original process, it would have been cured at the time of renewal.  The fact that Mr Fiagadzi did not abscond would have been a relevant issue before the Judge who signed the warrant of commitment.  Overall, I do not believe there is any substance to the ground that the original arrests or that the process under which the plaintiffs are not committed were unlawful.

[16] At the hearing, Mr Dorbu also raised the possibility that an amnesty was available to the plaintiffs.  However, I had no evidence of this before me and did not believe it affected my decision in relation to habeas corpus, given my finding that the process mandated by the Immigration Act 1987 had been complied with and the plaintiffs had been committed pursuant to validly issued warrants of commitment.

[17] Accordingly, I do not believe there is any substantial basis for the habeas corpus application, which is dismissed.

Applications for extension of time under s 146A

[18] Each applicant seeks an extension of time to make their judicial review claims.  Their grounds are that they were unable to bring their applications for judicial review within time, due to a misunderstanding between them and their legal adviser.  They argue that, in all the circumstances, it is just, fair and reasonable that the Court exercises its discretion under s 146A of the Immigration Act 1987 and its inherent jurisdiction to grant extension of time and to hear their applications on their merits.  The affidavits from the three plaintiffs indicate that, in each case, the applicant expected to hear from his/her counsel, and was not told about the time limit.  In the case of Mr Fiagadzi, he alleges that he contacted his lawyer twice (at intervals of some months) but his calls were not returned.

[19] The Crown opposed the extension of time on the basis that delay in bringing judicial review proceedings is simply because the plaintiffs did not know of the time limit.  Mr Woolford submitted that little or no weight should be given to the affidavits of the plaintiffs.  He drew the Court's attention to the fact that the plaintiffs declined to waive privilege, in order to permit the defendants to file an affidavit from the plaintiffs' former legal counsel as to the circumstances leading to the misunderstandings between the plaintiffs and that counsel to which the plaintiffs referred in their affidavit.

[20] He also drew the Court's attention to the comments of Hammond J in Esekielu v Attorney-General (1993) 6 PRNZ 309.  In that case Hammond J referred to the matters which would be considered in the context of an application for interim orders under s 8 of the Judicature Amendment Act 1972.  Included among those factors were delay, and the punctiliousness of the plaintiffs and due observance of the procedures involved.  He then commented: (at p 313):

"In saying all of that, due allowance has to be made for the fact that many persons will have an inadequate appreciation (at least initially) of 'the New Zealand Immigration system'.  But, of course, those persons must take responsibility for the conduct of their own affairs.  If they have an inadequate appreciation, it surely rests on persons who seek privileges of statehood and State support to gain the requisite understanding."

[21] Section 146A was inserted into the Immigration Act 1987 by s 53 of the Immigration Amendment Act 1999.  Section 146A came into force on 1 April 1999.  The relevant provision is s 146A(1) which says:

"Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced within three months after the date of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed."

[23] I was referred to Naidu v Minister of Immigration (High Court Auckland, M1661-SW99, 23 March 2000) in which a similar application was made to Rodney Hansen J.  That case involved judicial review of a decision of the Removal Review Authority.  Section 146A applied in the same way as it does in this case.  In that case Rodney Hansen J said:

"[30] It [the application for judicial review] was brought well outside the three month limitation period.  Mrs Woodroffe submitted that special circumstances exist which justify an extension of time.  She informed me from the bar that the applicants had relied on the advice of immigration consultants who had not advised them of their rights to appeal or of the time limit on applications for judicial review.  No affidavit was filed in support of this because, it was said, there was insufficient time after the limitation defence was raised in a statement of defence filed on 25 January.  Mrs Woodroffe also referred to the loss of the immigration file.  The husband's evidence is that several requests for the file had been made to the Immigration Service by his lawyers since May 1999.  A letter from the Immigration Service records that after an extensive search the file could not be located.  Mrs Woodroffe said this impeded both the institution and prosecution of the review proceedings.

[31] I have concluded that the cumulative effect of the matters referred to by Mrs Woodroffe are sufficient to constitute special circumstances.  I take into account also that the legislation was new and that both consultants and lawyers may not have been aware of the newly introduced time limit.  Some latitude is called for on that account.  The loss of the file seems at least to have been a distraction.  I also consider that it would be anomalous and contrary to commonsense if I were to review the earlier decisions [which were not subject to the time limit in s 146A] but not the critical final decision which was their culmination."

[25] I was also referred to Thomas v Removal Review Authority (AP 39/00 High Court Rotorua, 26 October 2000, Fisher J).  In that case, Fisher J held that the proceedings would have no prospect of success, and therefore declined leave under s 146A of the Immigration Act 1987 to allow the proceedings to be brought.  Mr Woolford submitted that the proceedings in this case were bereft of merit and that this was another factor against granting leave under s 146A.  I accept that there is little merit in the proceedings for the reasons which I outline below, and I also accept that this weighs against granting an extension of time under s 146A.

[26] In all the circumstances, I am not satisfied that "special circumstances" exist in this case.  I am mindful of the fact that the long title to the Immigration Amendment Act 1999 refers to an objective of improving the effectiveness of the removal regime for persons unlawfully in New Zealand by streamlining procedures, ensuring a higher level of compliance and that persons who do not comply are not advantaged in comparison with persons who do comply.  It seems to me that a simple assertion that an applicant was not aware of the need to bring an application for judicial review within the time period is not sufficient to amount to special circumstances.  The plaintiffs' own evidence reveals that they made minimal efforts to contact their counsel or find out the time limits from another source.  I would be concerned that the contrary finding would give applicants an incentive not to pursue their appeal and review rights until the eleventh hour, which is what s 146A appears to be aimed at preventing.  Accordingly, I do not believe that any of the plaintiffs have made a case for the extension of time.

[27] However, I indicated to Mr Dorbu that it would be appropriate for him to outline to me the arguments on behalf of the plaintiffs for judicial review and interim relief so that I could determine the merits of them if I decided to grant the application for extension of time.  I also heard counsel for the Crown.  This also allowed me to evaluate the merits for the purposes of considering the s 146A applications.

Application for interim declaration

[28] As already indicated, I accepted an oral application for interim orders on behalf of each of the three plaintiffs.  I did so because I had been informed that the plaintiffs would be removed from New Zealand on 8 March 2001, and an interim declaration that this not occur pending determination of the substantive application for judicial review would be needed to preserve the plaintiffs' position.

[29] Mr Woolford referred me to the cases on the approach to be taken in exercising the discretion under s 8.  I respectfully adopt the standard outlined by Hammond J in Esekielu v Attorney-General to which I have already referred.  Hammond J said (p 313):

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

The judicial review applications

Daniel Achhido

[31] Mr Achhido's application for refugee status was rejected by the Refugee Status Branch on 19 May 1999.  The Refugee Status Officer accepted Mr Achhido's account of his background but found there was not a real chance that he would be persecuted if he returned to Rwanda.  Mr Achhido appealed to the Authority.  The Authority interviewed Mr Achhido.  It determined that, before assessing the issues relating to the Refugee Convention, it needed to assess his credibility.  It found his account to be completely lacking in credibility, and therefore, determined that refugee status should be declined.

[32] In the first amended statement of claim, Mr Achhido alleges bias on the part of the Authority in that:

(a)    the Authority failed to ensure that Mr Achhido was represented by a lawyer;

(b)    the Authority misdirected itself on applicable law;

(c)    the decision was irrational and inconsistent with established facts.

[34] At the hearing Mr Dorbu reiterated the concern about lack of legal representation and also argued there were a number of other failings.  In particular, he argued that the Authority had failed to comply with s 129Q of the Immigration Act 1987, had failed to give sufficient consideration to materials before them, citing as an example the fact that the Authority received a report from the UNHCR without giving proper weight to it, failure to consider all the issues raised on appeal and giving them proper weight, and upsetting a finding of the Refugee Status Branch on credibility without giving proper reasons.  He also argued that there was a failure properly to consider Article 1E of the Convention.

[35] In response, Mr Woolford argued that there was no requirement to arrange legal representation for Mr Achhido, referring me to the Authority's Practice Note 1/99 which applied at that time, and which expressly contemplates the possibility that appellants to the Authority may be represented, but equally may not be.  He also drew my attention to the fact that the Authority recorded in its decision that Mr Achhido had confirmed that he wished to proceed with hearing, notwithstanding that he appeared without a representative.  I accept Mr Woolford's submission that the Authority had no obligation to arrange legal representation for Mr Achhido in these circumstances.

[36] Mr Woolford also argued that the allegation that the questions asked were not fair indicates a misunderstanding about the role of the Authority.  He referred me to Refugee Appeal No. 523/92 Re RS dated 17 March 1995, in which the Authority specifically stated that its proceedings were in the nature of a de novo hearing.  He also referred me to the decision of the Court of Appeal in Malkit Singh v Attorney-General [2000] NZAR 136.  In that case the Court of Appeal referred to the fact that a hearing of the Authority would be de novo and recorded that no issue was taken with that.  This appears to be an endorsement by the Court of Appeal of the approach taken by the Authority itself.  The Court noted that there would be no significant difference whether the situation was governed by the Immigration Amendment Act 1999 (which was in force at the time of the hearings).  Mr Woolford also submitted, citing the decision of Fisher J in Khalon v Attorney-General [1996] 1 NZLR 458, that credibility findings are fundamental to the work of the Authority.

[37] In view of the fact that the Authority conducted a de novo hearing, Mr Woolford suggested there was no substance in Mr Dorbu's criticism of the Authority for making credibility findings which were at odds with the findings of the Refugee Status Branch.  I agree with that submission, which is also consistent with the analysis of the Court of Appeal in Malkit Singh to which I refer above.

[38] Mr Woolford submitted that there was no non-compliance with s 129Q because the decision of the Authority was signed by one member and it was clear from the decision itself that it was unanimous.  In the circumstances therefore, there was no question of a minority view to which s 129Q could apply.  In a situation where it is obvious from the decision that it is unanimous, I do not believe that there can be any criticism made of the Authority where the decision is signed off by one member on behalf of the Authority rather than signed by all members hearing the appeal.

[39] I do not believe there is any particular significance in the fact that the Authority did not apply Article 1E of the Convention.  As Mr Woolford pointed out, the application of that Article would be relevant only where an entitlement to refugee status in New Zealand was established, but previously obtained rights of residence in another country (for example Brazil), disentitled the applicant.  I do not believe that there is anything in the way in which the Authority dealt with Article 1E that can be said to be prejudicial to Mr Achhido.

[40] The decision of the Authority involves a detailed analysis of the credibility of Mr Achhido, based on the Authority's face to face interview with him. There is nothing on the face of the decision which indicates any unfairness or bias and I do not believe there is any substance in that allegation.  I do not believe it was unfair of the Authority to test Mr Achhido's knowledge of the native language of Rwanda, because this was relevant to the credibility of his claim that he was of Rwandan nationality.

[41] Overall, I find that the Authority acted correctly in assessing the credibility of Mr Achhido and do not accept there is substance in his allegations of unfairness or bias.  I am conscious that the Authority heard Mr Achhido and  made the assessments of credibility which are an integral part of the Authority's work.  I do not believe that Mr Achhido has a respectable chance of succeeding in substantive judicial review proceedings or that there would be a real contest between the parties.

[42] If I had granted an extension of time under s 146A, I would have declined to grant a declaration under s 8.  The delay in bringing these proceedings would have been a relevant factor in that refusal.  In the context of the exercise of my discretion under s 146A, I find that Mr Achhido's substantive claim has little merit.

Jean Fiagadzi

[43] Mr Fiagadzi's application for refugee status was rejected by the Refugee Status Branch on 28 April 1999.  The Refugee Status Officer recorded that there were some aspects of his claim which caused concern, which led to "major doubt" as to whether he was either a Tutsi or, indeed, a Rwandan.  However, he decided to accept Mr Fiagadzi's testimony.  He determined that there was not a real chance that Mr Fiagadzi would be persecuted if he returned to Rwanda, and, since this fear of persecution was not considered to be well-founded, he rejected his application for refugee status.

[44] On appeal, the Authority determined that Mr Fiagadzi was not Rwandan.  Mr Fiagadzi had claimed to speak "Tutsi" but the Authority found that there was no such language.  In the end, the Authority concluded that Mr Fiagadzi was not a refugee, and declined refugee status.  The decision of the Authority is dated 21 October 1999.

[45] In the statement of claim, it was claimed on behalf of Mr Fiagadzi that the Authority showed an element of bias against him, that it misdirected itself on the law and applied the wrong test of established fact that the decision was therefore irrational and that the decision was tainted with procedural impropriety.

[46] In his affidavit, Mr Fiagadzi says that he was not given the opportunity to explain contradictions in his statements, and that he did not know his application was rejected until told by his counsel after his arrest.

[47] In response, Mr Woolford submitted that the Authority did not have an obligation to give notice to an appellant of a proposed adverse credibility finding, in order that an appellant may comment on it, citing Khalon v Attorney-General to which I have already referred.  I accept that submission.

[48] The version of events outlined by Mr Fiagadzi is, in any event, inconsistent with the decision of the Authority, which makes it clear that the Authority's concerns about his true origins were put to him, particularly its concern about his claim to speak an unknown language called "Tutsi", and more generally, his claims to be Rwandan.  For example the Authority records that, in view of his lack of knowledge of the Kinyarwanda language, "the Authority suggested that he is not who he claims to be" (p 2).  The Authority challenged aspects of his account of events, quoting his traverse of Zaire over a two day period and other aspects of his account.  I do not believe that there is any reason to believe that the Authority acted in a way which is consistent with with its obligation to act fairly.

[49] At the hearing, Mr Dorbu argued that the Authority had acted with bias in relation to Mr Fiagadzi.  In particular he drew attention to the following statement by the Authority:

However, we do note that the Authority has heard a number of appeals from Africans who have come to this country after living for a period in Brazil where they all claimed to have been granted refugee status.  Most have claimed to be Liberians, although the Authority has rarely been convinced of this answer has been able to firmly establish in at least one case that the appellant was in fact from another West African country.  Whether this appellant is also from a French speaking West African country, we cannot say with any certainty.

[51] Overall, I do not believe that statement exhibits bias when considered in the context of the whole decision, which is clearly based on a careful assessment of Mr Fiagadzi's credibility.  I therefore do not accept that submission.

[52] Mr Dorbu also argued that the Authority had failed to act fairly, in particular he said that given the statement quoted above, which established that the Authority was not sure which country Mr Fiagadzi was from, it should have found that he had discharged the burden of proof and given him the benefit of the doubt.

"I did not understand the English at all and the interpreter was Lebanese, I didn't understand if he was Lebanese I couldn't understand if he was Lebanese or Egyptian or whatever, and although I thought I could understand some of what he was saying, I was not able to give him the right replies, I spoke in a very broken dialect."

[54] I agree that the Authority's doubt as to which country Mr Fiagadzi was from was secondary to its clear finding that he was not Rwandan.  Once that finding had been made his claim for refugee status necessarily failed, since it was based on his claim to being a citizen of Rwanda.  He therefore failed to discharge the burden imposed on him, even the low burden applicable in these types of proceedings.

[55] Mr Dorbu also made similar arguments made in relation to Mr Achhido, which I reject on the same basis as I did for Mr Achhido.

[56] Accordingly, I find that Mr Fiagadzi does not have a respectable chance of succeeding in the substantive judicial review proceedings, or that there would be a real contest between him and the Crown in relation to those proceedings.  I would have declined interim relief if I had granted an extension of time.  Delay in bringing the proceedings would have been a relevant factor.  For the purposes of considering the application for extension of time under s 146A, I find that the substantive proceedings have little merit.

Abena Adiza

[57] Ms Adiza had her application for refugee status rejected by the Refugee Status Branch in a decision dated 25 January 1999.  It accepted her account of events as credible, but found that, given the situation in her claimed country of origin (Liberia), at the time of the decision, there was not a real chance that she would be persecuted if she returned there and her fear of persecution was not, therefore considered to well-founded.  Accordingly her refugee status was declined.

[58] She appealed to the Authority.  The Authority considered her case, and corresponded with her counsel about the information it had on the situation in Liberia.  It recorded concerns about her account, and noted the difficulties faced in dealing with her hearing in English, because of the difficulty in obtaining a translator.  Having considered all the information available to it, it made a finding that, if Ms Adiza were to return to Liberia, she would face difficulties but that these amounted to a remote risk and fell short of the required threshold that there be a real chance of persecution.  Accordingly, it dismissed her appeal and declined refugee status.

[59] In the statement of claim, it is claimed on behalf of Ms Adiza that:

(a)    the Authority committed an error of law and its decision is therefore illegal;

(b)    the Authority misdirected itself on the issues canvassed before it.  The decision is therefore irrational;

(c)    the decision-making process was unfair and contained an element of bias.

[61] Mr Dorbu suggested that, if Ms Adiza had been able to participate in the hearing in her own language, she may have been able to say more about the situation of her family in Liberia, which may have swayed the Authority to take a more favourable view of her claim.  While it would obviously have been preferable for the appeal to have been conducted with an interpreter, I do not believe that the absence of an interpreter substantially prejudiced Ms Adiza, or that the presence of an interpreter would have led to a different conclusion.

[62] The Authority appears to have correctly applied the requirements of the Convention and reached the decision based on information about Liberia from reputable sources and on its assessment of Ms Adiza based on its interview with her.  I do not believe there is any substance in the allegations of bias or unfairness.

[63] Accordingly, I find that Ms Adiza would not have a respectable chance of succeeding in the substantive judicial review proceedings and that there would not be a real contest between her and the Crown in relation to those proceedings.  If I had agreed to extend the time for the making of the application, I would have declined to grant an interim declaration.  Again, delay would have been a factor in that decision.  For the purposes of considering the s 146A application, I find that her substantive claim has little merit.

Conclusion

[64] I therefore decline the applications of all three plaintiffs for habeas corpus.  I also decline the applications of all three plaintiffs for an extension of time under s 146A based on my finding in paragraph [26] and my findings that none of the plaintiffs' claims has merit.

[65] Mr Woolford applied for costs on behalf of the Crown.  I reserve that issue so that Mr Woolford can make a formal application if he wishes to do so, after which Mr Dorbu should have an opportunity to respond.  I record, however, that I do not believe that an award of costs against counsel would be appropriate in this case.
 

Solicitors for the plaintiff: Saseve (Papatoetoe)
Solicitor for the defendants: Meredith Connell & Co (Auckland)