High Court Cases
High Court Auckland
CRI2006-404-001046
26 June 2006; 28 August
2006
Cooper J
Judicial review -
approach to judicial review of RSAA decisions
Judicial review -
commencement of proceedings within three months - whether special
circumstances for allowing further time - Immigration Act 1987, s 146A
Procedure of RSAA -
procedural issues - whether error of law to determine procedural issues
at substantive hearing rather than in advance
Procedure of RSAA -
provision of particulars - whether an appeal should not proceed because
insufficient particulars given of case appellant required to meet
Held:
1. The
delay in commencing the judicial review proceedings was very short and
half of its length was attributable to the quirk in the calendar that
arises at the end of February. The implication was that the solicitors
acting for the applicant had overlooked the need to commence the
proceedings within the three month statutory period. While it was
difficult to point to "special circumstances" justifying further time
to be allowed, in view of the complete absence of any prejudice flowing
from allowing the matter to proceed and having regard also to the very
short delay that was involved, an extension of time was granted to the
date on which the proceedings were in fact commenced (see paras [12] to
[15]).
2.
Although it is not a court, the RSAA is a specialist body and the High
Court ought not to interfere with procedural decisions that it has made
unless it is established that they have resulted in an adverse effect
on the rights of someone appearing before it (see para [22]).
3. There
were no proper grounds upon which the High Court could at this stage
review the RSAA's "decision" of 29 November 2005. The rulings that
counsel for the applicant sought from the RSAA were entirely procedural
in nature. No substantive decision had been made in relation to the
matters raised. The RSAA had simply said that it would consider those
matters at the substantive hearing. There was no respect in which the
applicant could argue at this point that he was in any way embarrassed
or that his position had been unfairly prejudiced by anything that had
been done. The applicant was unable to point to any reviewable error
(see paras [27] & [29]).
Observations:
1. Cases
might arise where it could be said that an appeal should not proceed
before the RSAA because insufficient particulars had been given of the
case that the appellant was required to meet, and that the matter
should be adjourned for that to be done. However, the present facts
were a long way from such a case. The decision of the refugee status
officer was comprehensive. For reasons that were amply set out in the
decision, it had been concluded that the applicant's grant of refugee
status on 4 April 2002 had been improperly made and that it may have
been procured through fraud, false representation or concealment of
relevant information. It could not be credibly argued in the face of
the
detailed decision that the applicant was unaware of the substance of
the case against him (see para [26]).
Application dismissed
Other cases mentioned in judgment:
Mercury Energy Ltd v
Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385
(PC)
Rajan v Minister of
Immigration [2004] NZAR 615 (CA)
Reihana v
Christchurch Maori Land Court (High Court Christchurch,
CP151/00, 13 December
2000, Panckhurst J)
Zaoui v Attorney-General
[2004] 2 NZLR 339 (Williams J)
Counsel
R J Hooker and M Clark
for the applicant
A R Longdill for
the second respondent
COOPER J [1] The applicant M was born in Tehran, Iran. On 28 August 1996, he arrived in New Zealand, and made a claim for protection as a refugee. On 22 May 2000, he was interviewed by an officer of the Refugee Status Branch (RSB) of the New Zealand Immigration Service. On 4 April 2002, he was granted refugee status. Following that, he was granted permanent residence in New Zealand on 21 January 2002, and subsequently became a New Zealand citizen.
[2] On 7 April 2005, the RSB determined that M’s original grant of refugee status should be cancelled. M then appealed to the Refugee Status Appeals Authority, the first respondent (“the Authority”).
[3] On 12 August 2005, there was a “directions hearing” held at the office of the Authority. Both M and the RSB were represented by counsel. Counsel for M advised the first respondent that he wished to make submissions on a preliminary point which he claimed might circumvent the need for a substantive hearing of the appeal. He was invited to make submissions in writing on that point.
[4] The submissions were filed in a
letter dated 2 September 2005. In a
minute that was issued on 29 November 2005, the first respondent
summarised
those submissions as follows (at [12]):
[5] The first respondent responded
to counsel’s submissions in its
minute of 29 November 2005. Those rulings were in the following terms:
[6] There were then a number of directions, under the heading “Timetable”. These were made “with a view to bringing the matter to a hearing in the most convenient and effective manner”. M was directed to file with the Authority and serve on the RSB any evidence upon which he wished to rely at the hearing. At the directions conference, it had been contemplated that this might comprise a brief of his evidence, and witness statements from two witnesses currently in Iran. The RSB was then directed to file and serve, two weeks later, any evidence upon which it wished to rely at the hearing. It had been evidently contemplated at the hearing that such evidence might comprise a brief from the Refugee Status officer concerned, Mr Tulp. It was directed that, after the documents to be filed had been received in accordance with the minute, the matter would be set down for a hearing of three days’ duration.
[7] In the present proceeding, M applies for review under s 4 of the Judicature Amendment Act 1972. He claims that the minute was a decision declining the application to have a preliminary hearing to determine matters of law. It is contended that the contents of the minute amounted to the exercise of a statutory power to make a decision that affected M’s rights.
[8] In essence, the applicant
alleges that he has been affected
prejudicially by the decision because:
[9] The Authority has not taken any steps. On behalf of the second respondent, Ms Longdill has raised as a preliminary issue the fact that the application for review was commenced out of time, beyond the period of three months stipulated in s 146(1) of the Immigration Act 1987. On the substantive issues, she submits amongst other things that the Authority’s minute of 29 November 2005 contains no reviewable error of law.
[10] Section 146A of the Immigration
Act provides:
[11] Ms Longdill pointed out that
the decision which the applicant
seeks to review was made on 29 November 2005. The appeal period runs
from the date of
the decision. There was no 29 February 2006. Ms Longdill submitted that
in
the circumstances the proceeding should have been commenced on Tuesday
28 February. It was not commenced until 2 March, and consequently was
two
days out of time. She referred to the discussion of the appropriate
approach to
take to applications to extend time under s 146A: Rajan v Minister of
Immigration [2004] NZAR 615. At [24] the Court referred to the
strict time limits
applicable under the Immigration Act in respect of rights of appeal. It
continued:
[12] In the present case of course the delay is very short, and half of its length is attributable to the quirk in the calendar that arises at the end of February. At the end of the day Ms Longdill indicated that the second respondent did not wish to press the issue and was content to abide the Court’s decision on the extension of time. Certainly, there was no suggestion that the second respondent had been prejudiced.
[13] In addressing this issue, Mr Hooker submitted that the delay was attributable in part to the Christmas holiday vacation which had intervened. Unlike other proceedings where the holiday period is excluded from the time calculation, that is not the case of course with judicial review proceedings under the Immigration Act. The implication was simply that the solicitors acting for the applicant had overlooked the need to make the application, although counsel acting for the RSB had been advised of the intention to do so by the end of December 2005.
[14] There is no affidavit evidence that deals with the issue or offers any other explanation for the fact that the proceeding was not commenced in time. In the circumstances, it is difficult to point to “special circumstances” (the requirement of s 146A(1)) justifying further time being allowed.
[15] Nevertheless, in view of the complete absence of any prejudice flowing from allowing the matter to proceed, and having regard also to the very short delay that was involved, I extend the time allowed to the date that the proceeding was in fact filed, on 2 March 2006.
[16] As to the question of where
there has been a reviewable error, Ms
Longdill referred to what was said by the Privy Council in Mercury Energy Ltd v
Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385,
at 388-389:
[17] She argued that in accordance with that formulation of the law, it is incumbent upon the applicant to plead and substantiate an allegation that the Authority has committed a reviewable error, that is exceeded its powers, erred in law in some other respect, or made an unreasonable decision. She could have added the obligation not to take into account irrelevant matters or failed to take into account relevant ones.
[18] She submitted that no reviewable error was alleged in the statement of claim. She pointed out in fact that the Authority had simply decided that it was neither necessary nor appropriate to set the matter down for a preliminary fixture to address the issues that had been raised by the applicant. It specifically noted that those matters could be argued at the substantive hearing and that the applicant could then seek rulings on those issues. No decision would be made until that point was reached.
[19] Section 129N of the Immigration Act sets out the functions of the Authority, deals with its membership and provides, in subsection (8), that the provisions set out in Schedule 3C are to apply in relation to the Authority. Schedule 3C deals amongst other things with the procedure to be adopted by it. It provides:
[20] Ms Longdill submitted that there is nothing in either the Immigration Act or its subordinate regulations which requires the Authority to accede to requests by appellants for preliminary hearings or rulings on legal issues. In the circumstances, the Authority had simply exercised its power to make a decision not to hold a preliminary hearing. As the Authority had not actually decided any of the legal issues raised by the applicant, it could not be argued in the circumstances that the Authority had committed any error or law. Nor was its decision able to be criticised as being unreasonable, or subject to any other defect. For these reasons, Ms Longdill submitted that there was no reviewable error and that the application for judicial review must be dismissed.
[21] Those submissions were
bolstered by an argument that this Court
should not respond to the applicant’s effective invitation to embark
upon a wide
ranging inquiry into the correct procedural and evidential approach to
be taken in
cases such as this in a vacuum, without any assistance from the
Authority and without
having the benefit of its considered rulings on the various matters
that the
applicant seeks to raise. She referred to observations made by
Panckhurst J in Reihana v
Christchurch Maori Land Court (HC Chch CP151/00, 13 December
2000) at [17]:
[22] I accept that although it is not a court, the Authority is a specialist body and this Court ought not to interfere with procedural decisions that it has made unless it is established that they have resulted in an adverse effect on the rights of someone appearing before it.
[23] Mr Hooker, in reply, referred to authorities that establish that interlocutory decisions made by statutory bodies can be subject to review. As an example, he referred to the decision of Williams J in Zaoui v Attorney-General [2004] 2 NZLR 339. At [69]-[71] Williams J said:
[24] Those paragraphs, however, do
not answer the point that Ms
Longdill makes. The issue is not whether interlocutory decisions by a
body such as the
Authority are amenable to review. Rather, the issue presented here is
whether there
has been a reviewable error in the “decision” that has been made, when
on the face
of it, no determination has been made on the issues that the applicant
wishes to
raise.
[25] Mr Hooker referred to the fact that s 4 of the Judicature Amendment Act 1972 contemplates amongst other things that an application for review may be made in respect of the “proposed … exercise by any person of a statutory power …”. He argues that the applicant’s rights include knowing in advance of the hearing the grounds being relied upon by the RSB officer to revoke or cancel the grant of refugee status. He submitted that he did not know whether the refugee status officer would rely solely on what was in the file and the documentation already available. He asserted that in the notice that been issued on 2 December 2004 of an intention to make a determination in accordance with s 129L of the Immigration Act, the Refugee Status Officer had simply referred to unspecified false statements or misrepresentations. He argued that neither the notice, nor the subsequent decision that had been made by the RSB, pointed to or identified a particular false statement or misrepresentation.
[26] I accept that cases might arise where it could be said that an appeal should not proceed before the Authority because insufficient particulars had been given of the case that the appellant was required to meet, and that the matter should be adjourned for that to be done. However, the present facts are a long way from such a case. The decision of the RSB is comprehensive. For reasons that were amply set out in the decision, it was concluded that the applicant’s grant of refugee status on 4 April 2002 was improperly made, and that it may have been procured through fraud, false representation, or concealment of relevant information. The reasoning that led to those conclusions is set out at pages 12-20 of the decision. In brief terms, the applicant sought refugee status on the basis of a fear of persecution by the Iranian authorities because of his alleged involvement in anti-regime activities. He had claimed that he had never been issued an Iranian passport, and that he had left illegally in 1996. Since being granted refugee status (and residence) in New Zealand he had applied for and obtained an Iranian passport in his own name, from the Iranian embassy in Wellington. Despite his alleged fears, he had returned to Iran on two separate occasions, in 2003 and 2004 using that passport. He had encountered no difficulties returning to or departing from Iran. It cannot in my view be credibly argued in the face of the detailed decision that the applicant is unaware of the substance of the case against him.
[27] That being the case, there are in my view no proper grounds upon which this Court could at this stage review the Authority’s “decision” of 29 November. The rulings that counsel for the applicant sought from the Authority were entirely procedural in nature. No substantive decision has been made in relation to the matters raised. The Authority has simply said that it will consider those matters at the substantive hearing. There is no respect in which the applicant can argue at this point that he is in any way embarrassed or that his position has been unfairly prejudiced by anything that has been done.
[28] I note that in accordance with the Authority’s rulings, further evidence is to be served on behalf of the RSB, but after the applicant’s evidence has been filed and served. At least theoretically, something might be contained in the RSB evidence that might surprise or embarrass the applicant, although I do note that it is only after the evidence exchange has been completed that the Authority envisaged that the matter would be set down for a hearing. Presumably, if there is anything that takes the applicant by surprise in the material that is received from the RSB, Mr Hooker would be in a position to urge on the Authority that the appeal should be adjourned if, in the meantime, it had been set down.
[29] I consider, however, for the reasons I have given, that the applicant has been unable to point to any reviewable error and the application for review is dismissed.
[30] If any question of costs arises
I will receive memoranda on that
subject from the second respondent within 15 working days, and from the
applicant
within ten working days of receipt of the second respondent’s
submissions.