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High Court Cases
Isak v Refugee Status
Appeals
Authority
High Court Auckland
CIV-2009-404-5923; [2010] NZAR 535
22 March 2010; 4 June 2010
Asher J
Judicial review -
approach to judicial review of RSAA decisions - intensity of review
Judicial review -
ineffective counsel - whether fault on part of counsel gives right to
judicially review decision
Judicial review -
quashing a decision where no unlawfulness, irrationality or procedural
error by tribunal - whether possible - error by counsel
Refugee Status
Appeals Authority - imperfections in decision - quashing a decision
where no unlawfulness, irrationality or procedural error by RSAA -
whether possible - error by counsel
Refugee status
determination - fair procedures - whether duty to provide - whether
high level of procedural fairness required
Treaties -
interpretation of domestic legislation to be consistent with
international obligations - New Zealand Bill of Rights Act 1990, ss 6
& 9
The plaintiff, a citizen
of Somalia, was recognised as a refugee in South Africa and lived in
that country between February 2000 and April 2008. He left South Africa
because of xenophobic violence, arriving in New Zealand in June 2008.
At the airport he claimed refugee status, offering a false story in
support. A decision was made to detain him in custody. After
instructing counsel he submitted to the Refugee Status Branch of
Immigration New Zealand a confirmation of claim form setting out a new
account of his circumstances in Somalia. Seeking to be
released from detention he tendered to the Compliance section of
Immigration New Zealand (in whom the discretion to release from
detention was vested) a letter from the president of the NZ Somali
Federation Community Inc stating that the plaintiff was of the Ogaden
Clan. This letter was never used by the plaintiff in the context of the
refugee claim and was not given to the refugee status officer at first
instance or to the Refugee Status Appeals Authority (RSAA) on appeal.
The plaintiff was released from custody on 8 October 2008.
On 21 November 2008 the refugee claim was declined at first instance by
a refugee status officer. On appeal, the RSAA concluded that the
plaintiff's account of events that caused him to leave Somalia and then
South Africa was not truthful. The RSAA's rejection of the plaintiff's
membership of the Ogaden Clan was based on the general lack of
credibility of his evidence and not because of any material indicating
that he was not a member of the Ogaden Clan.
On judicial review the primary argument was that because the letter
from the president of the Somali Federation Community Inc showing the
plaintiff was a member of the Ogaden Clan was not before the Authority,
procedural unfairness had occurred.
Asher J concluded (see judgment para [59]) that:
(a) The letter which was not before the Authority was material
and could well have affected the outcome of the appeal by corroborating
the plaintiff's claim to be a member of the Ogaden Clan.
(b) There was no error by the refugee status officer or the RSAA
in not placing this letter before the RSAA. That was the job of the
plaintiff's counsel.
(c) The RSAA conducted the hearing fairly and without error on
its part.
The issue was whether, in the absence of procedural unfairness, or any
error or reasoning or of law, the failure by counsel to place material
information before the RSAA was a sufficient ground to warrant quashing
the decision and directing a re-assessment by the RSAA.
Held:
1 As to the
intensity of review, the starting point is the fact that if the
plaintiff is right, his life is in danger if he is returned to Somalia.
The New Zealand Bill of Rights Act 1990 at ss 8 and 9 recognises the
rights in New Zealand not to be deprived of life and not to be
subjected to torture or cruel treatment. Guided by the observations of
Keith J in R v Zaoui, the
Court would proceed on the basis that, as directed by s 6 of the Bill
of Rights Act 1990, relevant provisions of the Immigration Act 1987
must be
given a meaning consistent with the rights and freedoms in the Bill of
Rights, and those rights will be interpreted and the powers conferred
exercised, so as to be consistent with international law, both
customary and treaty based (see para [22]).
R v Zaoui [2006] 1 NZLR 289 (NZSC)
referred to.
2 It is
central to the Refugee Convention that persons arriving in New Zealand
must be given a fair opportunity to obtain asylum from persecution,
which will be granted if a well-founded fear is made out (see para
[23]).
3 The New
Zealand decisions are not to be interpreted as requiring a variable
standard of
examination of the actual facts or the procedure followed. It
is easiest to avoid adjectival categorisation of the intensity of the
court's level of scrutiny of the facts and law. Rather, the
issues are
the court's assessment of whether the process was lawful and
fair, and then its willingness to provide a remedy following an error
or procedural unfairness being established (see para [29]).
4 In an
application for review which reviews a decision likely to lead to the
compulsory return of a resident to an ungoverned state where there is
no rule of law and a risk to life, the Court should require a high
level of procedural fairness. Further, it will be at its most ready to
intervene and provide a remedy to ensure that the decision is lawful
and that fair procedures have been adopted. Such an approach will
ensure that the chance for error in the ultimate decision is minimised.
Thus, while avoiding the adjectives of "hard look" or "intense
scrutiny" other than in relation to Wednesbury
unreasonableness, it is nevertheless accepted that in a judicial review
application of this type, involving real risks to the applicant
immigrant's life and liberty, the court should require a high level of
procedural fairness. It should be generous in its approach, and very
willing to uphold an application and provide a remedy if the
consideration of the applicant's position by the Authority has been,
for whatever reason, significantly unfair (see para [30]).
5 On the
facts, while there was no fault by the decision-maker in its processes,
there had been a material error were the process to be looked at as a
whole. There had been an error by counsel in not ensuring that the
material evidence was before the RSAA. That error may have led to a
result that was unfair to the plaintiff, if he were to be viewed in
isolation from his lawyer (see para [63]).
6 While in
none of the examined case law had the successful ground for review
specifically been an error by counsel that had resulted in a possible
mistake of fact by the Tribunal, two New Zealand decisions and one
English decision appeared to contemplate that a circumstance could
arise in a refugee context where judicial review would be granted on
the basis of counsel error, where that had resulted in the Tribunal not
having material information or a proper understanding of the material
information before it. In R v
Criminal Injuries Compensation Board, Ex parte A [1999] 2 AC 330
(HL) it was
accepted obiter dicta that
where no one was at fault but there was unfairness, there could be
intervention (see para [75]).
Lal v Removal Review Authority
(High Court Wellington, AP95/92, 10 March 1994, McGechan J); Amosa v Secretary for Justice (High
Court Wellington, CP317/94, 22 December 1997, Heron J) and R (Haile) v Immigration Appeal Tribunal
[2001] EWCA Civ 663 referred to.
7 The
observation in R v Criminal Injuries
Compensation Board, Ex parte A
that it is a ground of review if there has
been a breach of the rules of natural justice and unfairness, and that
it is not necessary, at least in refugee cases such as these, to find
that the Tribunal or government body was at fault, is to be adopted.
The mistake could been seen as a mistake of fact (there was no
corroboration of clan membership) by the Authority, although it was not
the fault of the Authority. But it was best categorised as a
procedural error in the process as a whole leading to manifest
unfairness. Here there has been an explicit failure to present relevant
available evidence obtained to support the plaintiff's application and
that was a failure on the part of counsel and not the plaintiff.
In Jiao v Refugee Status Appeals
Authority [2003] NZAR 647 (CA) the Court recognised the
unusual nature of a refugee status hearing and the need for
particular efforts to be made to ensure that the claimant's case was
properly presented (see para [77]).
Jiao v Refugee Status Appeals Authority
[2003] NZAR 647 (CA) referred to.
8 There
must be a concern about using judicial review to quash a decision where
there has been no unlawfulness, irrationality or procedural error, by
or of the Authority. It is most unfortunate that an error by counsel
will lead to a further hearing. If the factual issue had been less
fundamental, or the evidence less cogent, the result might have been
different. However, this was very important evidence relating to the
fundamental plank of the plaintiff's case. The consequences of the
wrong decision might be dire. There was a real risk that not leading
this
evidence could lead to a very grave injustice being done to him. The
cost and delay of a rehearing was a small price to pay, if such an
outcome is avoided. A generous approach to intervention was warranted.
A
little additional fairness was called for (see paras [78] and [79]).
Lal v Removal Review Authority
(High Court Wellington, AP95/92, 10 March 1994, McGechan J) referred to.
Application granted
Other cases
mentioned
in judgment
A v Chief Executive of the
Department of Labour (High Court Auckland,
CIV-2004-404-6314, 19 October 2005, Winkelmann J)
Al Mehdawi v Home Secretary
[1990] 1 AC 876 (HL)
Associated Provincial Picture
Houses v Wednesbury Corporation [1948]
1 KB 223
Attorney General v X [2008]
2 NZLR 579 (NZSC)
Butler
v Attorney General [1999]
NZAR 205 (CA)
Council
of Civil Service Unions v Minister
for the Civil Service
[1985] AC 374 (HL)
Discount Brands Ltd v Northcote
Mainstreet Inc. [2004] 3 NZLR 619 (CA)
Discount Brands Ltd v Northcote
Mainstreet Inc [2005] 2 NZLR 597 (NZSC)
Electoral Commission v Cameron
[1997] 2 NZLR 421 (CA)
FP v Secretary of State for the Home
Department [2007] EWCA Civ 13
Gordon v Auckland City Council
(High Court Auckland, CIV-2006-404-4417, 29
November 2006)
Hassan v Department of Labour
(Immigration) (High Court Wellington,
CRI-2006-485-101, 4 April 2007, Mallon J)
Khalon v Attorney General
[1996] 1 NZLR 458 (Fisher J)
K v Refugee Status Appeal
Authority (High Court Auckland, M1586-SW99, 22
February 2000, Anderson J)
Lab Tests Auckland Ltd v Auckland District
Health Board [2009] 1
NZLR 776 (CA)
Mihos v Attorney General
[2008] NZAR 177 (Baragwanath J)
N v Refugee Status Appeals
Authority (High Court Auckland, CIV-2007-404-7932, 26
August 2008, Priestley J)
New Zealand Fishing Industry
Association Inc v Minister of
Agriculture and Fisheries [1988] 1 NZLR 544 (CA)
New Zealand Public Service
Association Inc. v Hamilton City Council
[1997] 1 NZLR 30
Pharmaceutical Management Agency
Ltd v Roussel Uclaf Australia Pty
Ltd [1998] NZAR 58 (CA)
Progressive Enterprises Ltd v
North Shore City Council [2006] NZRMA
72 (HC)
R v Chief Executive of the
Department of Labour (High Court Wellington,
CIV-2008-485-123, 10 June 2008)
R v Immigration Appeal Tribunal
Ex parte Enwia [1984] 1 WLR 117 (CA)
R v IAT Ex Parte Mehta
(1976) Imm AR 38 (CA)
R (Tofik) v
IAT [2003] EWCA Civ 1138
R v West Sussex Quarter Sessions;
Ex parte Johnson (Albert and
Mand)
Trust Co. Ltd [1973] 3 All ER 289
Rahmani v Diggines; R v Diggines;
Ex parte Rahmani [1986] 2 WLR 530 (CA)
Refugee Appeal No. 71346/99 (28
October 1999) (NZRSAA)
Refugee Appeal No. 71427/99 (16
August 2000); [2000] NZAR 545 (NZRSAA)
Refugee Appeal No. 76062
(15 October 2007) (NZRSAA)
Refugee Appeals Nos. 76335 and
76364 (29 September 2009) (NZRSAA)
Shaqlane v The Minister of
Immigration DRT 019/02, 29 August 2003 (NZDRT)
T
v Refugee Status Appeals
Authority [2004] NZAR 552 (Miller J)
Thames Valley Electric Power
Board v NZFP Pulp and Paper Ltd [1994]
2 NZLR 641 (CA)
Wellington City Council New Zealand
Limited v Woolworths New Zealand
Limited (No. 2) [1996] 2 NZLR 537 (CA)
Wolf
v Minister of Immigration
[2004] NZAR 414 (Wild J)
X v Refugee Status Appeals Authority
[2010] 2 NZLR 73 (CA)
Counsel
D Ryken for plaintiff
P
McCarthy for
defendants
ASHER J
Preliminary
[1] On 4 August
2009, the Refugee Status Appeals Authority dismissed an appeal by
Mursal Abdi Isak from the decision of a Refugee Status officer,
declining to grant him refugee status. The Refugee Status Appeals
Authority ("the Authority") had determined that the first principle
issue before it was:
Objectively, on the
facts as found, is there a real chance of the appellant being
persecuted if returned to the country of nationality?
It answered
that question in the negative, and dismissed Mr Isak‘s appeal. Mr Isak,
who is from Somalia, now challenges the decision of the Authority by
way of judicial review proceedings. He asks that the decision be set
aside or quashed, and a new hearing ordered.
General factual background
[2] The Authority set
out the background facts in detail at paragraphs [5]-[33] of its
decision. It is clear that Mr Isak was born in 1973 in Somalia. Beyond
that, there are no accepted facts. He asserts that he grew up in
Mogadishu. His family moved south to Afmadow in 1991 when the civil war
broke out. In October 1997 to January 1998 Mr Isak returned to
Mogadishu, to collect his two half-sisters. He asserts that while he
stayed there with his step-mother he married his first wife. He then
left Mogadishu. He says that in 1999 he returned to Mogadishu in an
unsuccessful attempt to bring his wife back to Afmadow. In June 2000,
Mr Isak travelled to Kismayo to see his father, and then travelled to
South Africa. Between February 2000 and April 2008 he lived in South
Africa. He was granted refugee status in South Africa, and his
certificate recording this status was before the Authority.
[3] He says he was allowed to
work in South Africa, being employed in a
fabric shop between 2001 and 2004, and co-owning a grocery shop between
2004 and 2008. Mr Isak married his second wife in 2005, and their
daughter was born in 2006. The wife and daughter rejoined the wife‘s
mother, who is based in Kenya, in 2007.
[4] Mr Isak asserts that in
April 2008 he was robbed in his shop in
South Africa and became afraid of xenophobic violence. He left South
Africa for Beijing in April 2008, intending to go to Europe. Instead he
appears to have changed his mind and came to New Zealand, arriving on
22 June 2008.
[5] On his arrival in New
Zealand at Auckland International Airport, he
claimed refugee status. He had deliberately destroyed his South African
passport and travel document. In his interview he said that he had been
asked to interpret for the Ethiopian Army, having fled from Somalia in
2008 and having been provided with a false South African passport. He
did not say he had lived in South Africa. He was detained under a
Warrant of Commitment at the Mangere Accommodation Centre.
[6] On 25 June 2008, Mr Isak
filled out a "Confirmation of Claim" form, in which he admitted
spending time in South Africa. He briefed Ms J Hindman to represent
him. On Mr Isak‘s behalf she
filed a statement of
claim. Mr Isak was interviewed by a Refugee Status officer between 31
July and 1 August 2008 with Ms Hindman attending. On 18 August 2008 the
Refugee Status officer provided a report, summarising the information
relating to Mr Isak‘s claim. Ms Hindman provided submissions in reply.
Mr Isak remained in custody.
[7] On 22 September 2008 Ms
Hindman wrote to Compliance Operations
seeking Mr Isak‘s release pending his hearing. She enclosed a letter of
support of 21 September 2008 from Mr Mohamed, the President of the
Somali Federation Community Incorporated, confirming Mr Isak was of the
Ogaden Clan. The Ogaden clan has been subject to some persecution in
Somalia. For reasons that I will traverse in detail later in the
judgment, that letter was never given to the Refugee Status officer or,
later, the Authority.
[8] Following two further
extensions of the Warrant of Commitment Mr
Isak was released from custody on certain conditions on 8 October 2008.
The Refugee Status officer issued a decision on 21 November 2008. While
accepting Mr Isak‘s evidence, he was declined refugee status because of
his ability to return to South Africa. Ms Hindman lodged an appeal on
24 November 2008. The hearing before the Authority proceeded on 2 March
and 7 April 2009. The Authority
issued the decision, which is now challenged, on 4 August 2009.
The decision
[9] The Authority in a
clear and carefully reasoned decision set out in
full the appellant‘s case and the facts he relied on, and outlined the
material that had been submitted by Mr Isak in detail. It noted that
the appellant had been provided with the files of the Refugee Status
Branch of the New Zealand Immigration Service. It then proceeded to
assess the appellant's case under the headings "Living and working in M
Town", "Claim that wife lives in refugee camp", "The notebook", Events
in Somalia prior to leaving", and False claims on arrival and in
Confirmation of Claim form". The analysis showed that fundamental
aspects of Mr Isak's evidence were inconsistent and unreliable.
[10] The Authority concluded:1
… that the false
information provided on arrival and then later in the
claim form (at which point he no longer denied having been in South
Africa and therefore had no discernable motivation to lie about his
departure date from there), illustrates his willingness to use false
information to support his created claim. It strengthens the overall
finding that no part of his account can be believed.
The Authority
went on to conclude that Mr Isak‘s account of events that
caused him to leave Somalia and then South Africa was not truthful. It
held:2
Nor, in the context
of his false account of life in Somalia, does the
Authority accept his assertions to belong to the Reer Abdile
sub-sub-clan of the Ogaden Sub-clan.
In summary, then, the
Authority finds that the appellant at the time of
determination, is a male Somali national who would be returning there
unaccompanied. In the absence of credible evidence, no other findings
as to the profile or circumstances of the appellant on return to
Somalia can be made.
The issues
[11] There are five
causes of action raised in the statement of claim.
These are:
a) error of fact as
to the plaintiff‘s origins and Clan membership;
b) unfairness, namely failure of the Chief Executive of the Department
of Labour ("the Chief Executive") to put before the Authority "the
evidence as to the plaintiff's identity and Clan affiliation";
c)
unreasonableness (based on the same allegation of failure to put
information before the Authority);
d)
procedural unfairness, being the failure of the Authority to put to
the plaintiff its concern about his Somali origins and Clan membership;
and
e)
unreasonableness on the basis that the credibility findings were
unreasonable.
[12] In essence, the appellant‘s
claims came down to three fundamental
points. First, procedural unfairness, because the material that was
available showing that Mr Isak was a member of the Ogaden Clan of
Somalia was not before the Authority. Secondly, that the Authority did
not fairly put Mr Isak on notice that the credibility of his assertion
of Ogaden Clan membership was at issue. As a third issue, not greatly
pressed in submissions, Mr Ryken for Mr Isak argued that the
Authority‘s credibility findings were unreasonable.
Statutory framework
[13] New Zealand is a party to
the United Nations Convention Relating to the Status of Refugees and
the 1967 Protocol to that Convention ("the Convention"). The Convention
is Schedule 6 to the Immigration Act 1987 ("the Act"). Under the
Convention a refugee is defined as any person who:
… owing to a
well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence as a result of
such events, is unable or, owing to such fear, is unwilling to return
to it.
[14] Part 6A of the Act gives
effect to New Zealand‘s obligations under
the Convention. Under this part of the Act, claims to recognition as a
refugee are dealt with by departmental employees who are described as
Refugee Status officers. Their statutory function is to determine
refugee claims. They require a claimant to attend an interview so that
a decision concerning refugee status at the first stage may be made on
the papers alone, or following a hearing. They are required by statute
to provide reasons for their decisions.
[15] Appeals are to the
Authority. The Authority is a statutory body
constituted under s 129N of the Act, and deals with refugee issues.
Schedule 3C of the Act sets out provisions relating to the Authority.
Section 8 of that Schedule provides that, subject to any regulations
the procedure of the Authority is to be such as the Authority thinks
fit. Section 9 provides that the Authority may make such inquiries and
obtain such reports as it considers necessary, and is not bound by any
rules of evidence but may inform itself in such manner as it thinks
fit. It conducts hearings of an inquisitorial nature: X v Refugee
Status Appeals Authority,3 N
v Refugee Status Appeals Authority,4 T v
Refugee Status Appeals Authority.5 The
Authority is required to
give
reasons for its decisions: s 129Q(3). There is no statutory right of
appeal from decisions of the Authority, even on questions of law.
However, application for judicial review is not excluded: s 146A.
[16] In carrying out their
functions under the Act in relation to a
claim to refugee status, immigration officers must have regard to the
provisions of the relevant part of the Act
"and of the Refugee Convention": s 129X(2). Refugee Status officers and
the Authority are obliged to "act in a manner that is consistent with
New Zealand's obligations under the Refugee Convention": s 129D(1): X v Refugee Status Appeals Authority,6
Attorney General v X,7 Hassan v Department
of Labour (Immigration).8
[17] If ultimately not granted
refugee status, a refugee claimant has
some further avenues available. As the Crown notes in its submissions,
these are limited to a request for a permit under s 35A if there is no
deportation or removal order in force or special direction, although
there is no right to apply. Also, a further claim for refugee status
may be possible where a change of circumstances in the home country
creates significantly different grounds to the original claim: s 129J.
These remedies are highly discretionary.
Approach to be adopted
[18] Mr Ryken for Mr
Isak submitted that the highest intensity of
review should apply. He relied on observations of Wild J in R v Chief
Executive of the Department of Labour,9 and
Winkelmann J in A v Chief
Executive of the Department of Labour.10
[19] Mr McCarthy for the Crown
submitted that there is no reason to
depart from the traditional Wednesbury
standard. This was consistent
with the detailed statutory scheme of the Act, the Authority‘s
acknowledged expertise, and because the Authority does not
automatically engage fundamental rights. The Crown submitted that the
subject matter of the decision was refugee status and that there was no
right to be recognised as a refugee. It was pointed out that under
articles 1A(2), 1C – F of the Convention, certain people are excluded
from refugee status, and that the Authority has no power to remove or
deport any person (s 129W(d)), and does not have the function, power or
jurisdiction to address any issue of a humanitarian nature beyond the
recognition of refugee status (s 129W(e)). The fact that fundamental
human rights are not automatically engaged by an Authority‘s
declaration is, it was submitted, a factor pointing to a low intensity
of review.
[20] It was submitted by the
Crown that the "right to be free from persecution" referred to in A v The Chief Executive of the Department
of Labour,11 does not in fact exist, and that
there is no such
right.
Rather, it was submitted there was a right to enjoy asylum from
persecution for a Convention reason, and a qualified duty not to expel
or return a refugee to the frontiers of territories where his or her
life or freedom would be threatened. Mr McCarthy asserts that there is
no right to be free from persecution recorded in any of the leading
domestic or international rights instruments.
Intensity of review?
[21] The concept of
intensity of review has traditionally been applied
to the analysis of Wednesbury
unreasonableness,12 which is concerned
with the reasonableness of the outcome and not the process. The Crown
discussed it on that basis. Mr Ryken applied it more generally,
referring to the continuum of approaches to judicial review, adopting
the approach of Baragwanath J in Progressive
Enterprises Ltd v North
Shore City Council.13 Mr Ryken sought to place
the intensity of
review
at the highest level in that continuum.
[22] The starting point is the
fact that if Mr Isak is right, his life
is in danger if he is returned to Somalia. The New Zealand Bill of
Rights Act 1990 ("Bill of Rights") at ss 8 and 9 recognises the rights
in New Zealand not to be deprived of life and not to be subjected to
torture or cruel treatment. There is no provision which gives a right
to freedom from persecution. The Universal Declaration of Human Rights,
which New Zealand has not ratified or incorporated into legislation
provides:
Article
14
(1)
Everyone has the right to seek and to enjoy in other countries
asylum from persecution.
(2)
This right may not be invoked in the case of prosecutions genuinely
arising from non-political crimes or from acts contrary to the purpose
and principles of the United Nations.
The Convention Relating to the Status of Refugees in Schedule 6 to the
Act is ratified by New Zealand and the references to it in Part 6A of
the Act (s 129A, s 129E and s
129D) make it clear that it is the core policy document. In addition to
Article 1(2), which refers to a "well-founded fear of being
persecuted", Article 33(1) provides:
Article
33 Prohibition of expulsion or return ("refoulement")
1. No
Contracting State shall expel or return ("refouler") a refugee in any
manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion ...
Guided by the observations of Keith J in R v Zaoui,14 I
proceed on the
basis that, as directed by s 6 of the Bill of Rights Act 1990, relevant
provisions of the Immigration Act must be given a meaning consistent
with the rights and freedoms in the Bill of Rights, and those rights
will be interpreted and the powers conferred exercised, so as to be
consistent with international law, both customary and treaty based.
[23] It is central to the
Convention that persons arriving in New
Zealand must be given a fair opportunity to obtain asylum from
persecution, which will be granted if a well-founded fear is made out.
I am cautious about going further, and proceeding on the basis that
there is a "right to freedom from persecution". The reference to such a
right in A v The Chief Executive of
Labour was an aside in a broader
context. There is no doubt that the human rights to life and freedom
referred to in Article 33 and our Bill of Rights are relevant to this
application, involving as it does likely refoulement to an ungoverned
State. The formulation of the Refugee Status Appeals Authority, (RPG
Haines QC and L Tremewan), in Refugee
Appeal No. 71427/9915 is helpful,
where, after a careful review of relevant authorities, it was stated in
relation to refugee appeals:
… persecution may be
defined as the sustained or systemic violation of
basic human rights demonstrative of a failure of State protection …
"Freedom from persecution" is an imprecise phrase and can cover many
actions and consequences. In the refugee context it is best seen as a
phrase concerning freedom from breaches of core human rights,
rather
than a right itself.
[24] The courts have
frequently indicated their willingness to
intervene in relation to decisions that may involve a person in New
Zealand being returned to a jurisdiction where that person‘s right to
life may be threatened. Thus, in
Butler v Attorney General,16 Keith J
observed that in relation to a process followed by the Refugee Status
Appeal Authority where the decision may put an individual‘s right to
life at risk, the courts reviewing any such decision have a special
responsibility to see that the law is complied
with. In Jiao v Refugee Status
Appeals Authority,17 Keith J emphasised the
need for a "generous
approach". He observed:18
The need for that
generous approach is reinforced by the consideration
that the applicant‘s right to life may be put at risk if the refugee
status is declined, a matter emphasised by this Court in Butler v
Attorney-General [1999] NZAR 205, 211.
[25] Fisher J stated in Khalon v Attorney General,19 that
in refugee
cases only the "highest standards of fairness will suffice since
questions of life, personal safety and liberty are at stake". Similar
remarks have been made in various High Court decisions: K v Refugee Status Appeal Authority,20
and A v The Chief Executive of the
Department of Labour. In the latter decision Winkelmann J
observed that the impugned decision should be examined with "great
care".
[26] Mr Ryken argues for the
"hardest look". As Wild J observed in the immigration context in Wolf v Minister of Immigration,21
it has long been recognised that the intensity of the judicial review
of reasonableness is adjusted with regard to context. In Thames Valley Electric Power Board v
NZFP Pulp and Paper Ltd,22 Cooke P stated:
The depth of judicial
review and the deference due to administrative
discretion vary with the subject matter.
[27] A variable approach to
reasonableness was recognised in Wellington
City Council New Zealand Limited v Woolworths New Zealand Limited (No.
2),23 where the most stringent standard from
the applicant‘s
perspective was applied. In Electoral
Commission v Cameron,24 Gault J
applied "
… a
somewhat lower standard of reasonableness than 'irrationality' in the
strict sense". So too in Pharmaceutical
Management Agency Ltd v Roussel Uclaf Australia Pty Ltd,25 where
a "less restricted" approach was adopted. In Wolf v Minister of Immigration,
Wild J adopted a "lesser test"26 favourable to the
applicant because
the decision involved the deportation of the appellant and the
consequent break up of a family unit. In a case such as this, the
threshold of "reasonableness" will be, from the applicant's
perspective, at its lowest, involving as it does a decision which may
indirectly relate to his right to life.
[28] Wednesbury unreasonableness is
unique as a judicial review cause
of action in that it focuses on the substantive outcome rather than the
process of decision-making. In some decisions the language of varying
standards of "intensity of review" or "hard" and "soft" look can be
seen as extending to all judicial review causes of action: Progressive
Enterprises Limited v North Short City Council,27
Mihos v Attorney
General,28 and
X v Refugee
Status Appeals Authority.29 Mr Ryken did not
limit his plea for a "hard look" to Wednesbury
unreasonableness, but sought to extend it to all his other causes of
action. However, while what is procedurally fair may vary according to
context, a court‘s
actual process of examination of the facts and legal requirements will
not vary in its intensity. While the issue may in the end be only
semantics, I consider it artificial to grade the court‘s assessment of
process. As Fogarty J observed in Gordon
v Auckland City Council:30
Glossing this natural
diversity of judicial review process, with
notions of the court scrutinising legality more or less carefully, is
difficult to grasp conceptually.
It has also been observed by Hammond J in Lab Tests Auckland Ltd v Auckland District
Health Board,31 that concepts such as
"spectrums of response"
and "deference" are ultimately quite unhelpful and even unworkable.
Although the Court of Appeal in Discount
Brands Ltd v Northcote Mainstreet Inc32
considered the issue of
special intensity of
review, the Supreme Court33 did not adopt such an
approach. Rather, it
approached the issue as one of statutory interpretation and the
application of law to the facts. Michael Taggart in Administrative
Law,34 having considered the comments of
Hammond J in New Zealand
Public Service Association Inc. v Hamilton City Council,35
observed:
"Hard look" is one
transplant that is unnecessary and should be rejected. Ultimately, as
Hammond J pointed out in Hamilton
City Council, its fatal flaw is that it does not tell a judge
how hard to
look in a particular case. Administrative law has too many doctrines
like that already!36
[29] I do not interpret the New
Zealand decisions as requiring a
variable standard of examination of the actual facts or the procedure
followed. I find it easiest to avoid adjectival categorisation of the
intensity of the court‘s level of scrutiny of the facts and law.
Rather, I see the issues as the court‘s assessment of whether the
process was lawful and fair, and then its willingness to provide a
remedy following an error or procedural unfairness being established.
[30] I acknowledge that in
this application for review, which reviews a
decision which is likely to lead to the compulsory return of a resident
to an ungoverned state where there is no rule of law and a risk to
life, the Court should require a high level of procedural fairness.
Further, it will be at its most ready to intervene and provide a remedy
to ensure that the decision is lawful and that fair procedures have
been adopted. Such an approach will ensure that the chance for error in
the ultimate decision is minimised. Thus while avoiding the adjectives
of "hard look" or "intense scrutiny" other than in relation to Wednesbury unreasonableness, I
nevertheless accept that in a judicial review application of this type,
involving real risks to the applicant
immigrant‘s life and liberty, the court should require a high level of
procedural fairness. It should be generous in its approach, and very
willing to uphold an application and provide a remedy if the
consideration of the applicant‘s position by the Authority has been,
for whatever reason, significantly unfair.
The relevance of the letter
[31] Mr Mohamed‘s letter
of 21 September 2008 read as follows (set out
without change to his punctuation or grammar):
On behalf of Somali
Federation Community we would like to confirm you
that, Mr Mursal Abdi is a well known person of Somali Federation
Community in Auckland. We take this opportunity to inform that Mursal
is Somali national and belongs to ogoden clan resides in lower-juba and
his family were suffered a traumatic experience since the civil war
broken up in Somalia.
We had
constant interviews with mr mursal and we figured out that he is
innocence, honest young male that deserves to be helped. We would also
like to remind you that he is married, and has one daughter, and his
daughter suffers sickness (asthma).
Therefore,
as a community we are committed to provide assistance to
this young man. If you like further detail about this issue please do
not hesitate to contact us.
[32] Mr Mohamed has deposed in the
subsequent affidavit filed in these
proceedings that prior to drafting this letter he had spoken to Mr Isak
on at least ten occasions about details of life in Somalia. In his
affidavit he sets out certain particular names and facts that Mr Isak
knew in detail, relating to the Ogaden Clan. He confirmed that he had
no doubt that he was a member of the Ogaden Clan.
[33] Mr Ryken submitted that if
the Authority had known of Mr Mohamed‘s
letter it may have reached a different conclusion on Mr Isak‘s Ogaden
Clan membership. It is necessary to evaluate that submission. The
letter and indeed the affidavit from Mr Mohamed, do no more than set
out an expression of his opinion. It is possible that Mr Isak lied to
Mr Mohamed as well, and that Mr Mohamed is wrong.
[34] Nevertheless, in an area
of inquiry where there are few
touchstones, a letter from an apparently senior and credible member of
the Somali community with knowledge of the Ogaden Clan confirming from
his personal investigation that Mr Isak was an Ogaden Clan member, was
significant information. While it is possible that on an examination
the evidence might turn out to be of little value, on its face it is of
considerable value. It is likely to have been of real interest to the
Authority and may have led to more enquiries. **Its value is confirmed
by the affidavit subsequently filed by Mr Mahomed where he sets out the
inquiries that he made of Mr Isak, which appear to have been extensive.
According to him Mr Isak is privy to knowledge and information that he
would have only obtained if he was a member of the Ogaden Clan. Mr
Mahomed‘s father was a member of the Clan. His assessment could be seen
as vital corroboration of Mr Isak‘s claim.
[35] If Mr Isak is a member of
the clan, there is a significant body of
evidence on which the Authority can conclude he faces persecution. In
Refugee Appeal No. 71346/99,37
where the appellant was a member of the
Ogaden Sub-clan, it was observed at p 14 that the Ogaden Clan, and
particularly the sub-clans, have over the period of 1991 to 1999 been
progressively more and more marginalised. In a Deportation Review
Tribunal case, Shaqlane v The
Minister of Immigration,38 it was
observed that there is a pattern of gross flagrant or mass-violation of
human rights in Somalia, and the Tribunal appeared to implicitly accept
that a member of the Ogaden Clan was at risk as to personal safety in
Somalia. In Refugee Appeal No. 76062,39
the Refugee Status Appeals
Authority reviewed clan rivalry in Somalia and observed that there had
been open clan-based civil war through the 1990s, and that while the
situation had changed since then there was still clan-based conflict.40
In Refugee Appeals Nos. 76335 and
76364,41 a very recent decision, it
was observed that parts of Southern and Central Somalia are currently
characterised by violence and chaos,42 and that
status of a clan (in
that case the Midgan Clan), increased the applicant‘s risk of violence.
[36] Mr McCarthy submits that
even if it was established that Mr Isak
was a member of the Ogaden Clan, this would not be a trump card. This
may be so. It is impossible for this court to assess that. It is,
however, quite clear from the material before me that membership of a
particular clan can considerably increase the risk of violence in
Somalia. Membership of a clan has been treated as a pivotal issue in
other decisions relating to refugee status or deportation.
[37] In particular, it must be
noted that the Authority‘s rejection of
Mr Isak‘s membership was based on the general lack of credibility of
his evidence, and not because of any material indicating that he was
not a member of the Ogaden Clan. The Refugee Status officer believed
that he was a member of the Clan. If he had provided credible evidence
that he was a member of the Clan, his general failure to provide
credible evidence on other issues may have been irrelevant. The lies on
other aspects of his life could not be material to the risk to him if
he was indeed a member of the Ogaden clan. A well-founded fear of
persecution may have been established. The Authority, if it had
concerns about the assertion in the letter, could have asked questions
about it, and Mr Mahomed may have been summoned to give evidence. There
is a real possibility that if the Authority had had Mr Mahomed‘s letter
before it and had accepted as a consequence that Mr Isak was a member
of the Ogaden Clan, that it would have upheld his refugee status.
The Authority’s lack of knowledge of
the letter
[38] It is necessary to
go into the facts relating to the provision of
the letter in more detail. In September 2008, following his arrival in
New Zealand, Mr Isak was being held in custody, and his release from
custody was being sought pending a decision on his status. A letter was
obtained from Mr Abdikadar Ali Mohamed dated 21 September 2008, about
Mr Isak‘s membership of the Ogaden Clan. Mr Mohamed is the President of
the Somali Federation Community Incorporated and had lived in New
Zealand since 4 November 1998. Somali Federation Community Incorporated
was previously known as the Auckland Ogaden Community Incorporated. Mr
Mohamed has filed an affidavit in which he deposes that through his
father‘s side he belongs to the Ogaden Clan, and has extensive
knowledge of the Somali community in New Zealand.
[39] The letter was provided to
Mr Isak‘s counsel, Ms Hindman. She
enclosed it in a letter she sent the following day, on 22 September
2008, to "Janene Smith – Technical
Adviser, Compliance Operations, Auckland". The letter read as follows
(again without changes to punctuation or grammar):
Our recent
conversations requesting the abovenamed is Released on
Conditions refers.
In
support of this we enclose a letter of support from Abikadar Mohamed
– President of the Somali Federation Community Incorporated.
Additionally we provide a copy of Mr Isak‘s republic of South Africa
Certificate of Refugee Status.
As Mr
Isak has been detained since arriving in New Zealand over three
months ago, we seek favourable consideration of this request.
Should
there be any further queries please contact the writer on the
details above. Thanking you.
[40] Ms Hindman has deposed that
having sent that letter to the
Department of Labour she assumed that it would go to the Refugee Status
Branch or to the Authority. Mr Newth, who is a Refugee Status officer,
has deposed that in fact the Refugee Status Branch and Compliance
Operations are two separate parts of Immigration New Zealand. He states
that each has very different roles and the officers who work in each
branch have different delegations under the Immigration Act. The
Refugee Status Branch is concerned only with determining status claims,
and has no power to detain or remove individuals. Compliance Operations
officers have delegated power to detain and to remove individuals. He
stated that it was his understanding that Compliance Operations kept
separate files on individuals, and material held in the Compliance
Branch is only passed on to other branches where there is a need to do
so. He deposed that it was the usual practice to send Refugee Status
Branch files to the Authority and that this was done. The Compliance
Operations file was not from the Refugee Status Branch, and was not
sent to the Refugee Status officer for the initial enquiry, or the
Refugee Status Appeals Authority.
[41] Ms Hindman in her
affidavit deposed that she was totally unaware
that not all information given to the Department of Labour is passed on
to the Refugee Status
Branch or the Authority. She thought that it had been placed before the
Authority. There was no challenge to the credibility of Ms Hindman‘s
assertion.
[42] In Appendix 1 of the
Refugee Status decision, the documents
tendered are listed. Neither Ms Hindman‘s nor Mr Mohamed‘s letters are
mentioned. This should have alerted her to the fact that the letters
were not before the Authority. Mr McCarthy for the Chief Executive
submitted further that it ought to have been clear to Ms Hindman that
she could not assume that the letter of support would be forwarded by
Compliance Operations to the Refugee Status Branch. He points out that
Ms Hindman was corresponding with different individuals in the Refugee
Status Branch and Compliance Branch, at different postal addresses. He
submitted that it was disclosed by the documents before the court that
on 17 July 2008, at the outset of her involvement, she had complained
about a breakdown in communication between the two branches. He also
submits that although she had sent a copy of Mr Isak‘s South Africa
Certificate of Refugee Status to the Refugee Status Branch on 28 July
2008, she did not assume that Compliance Operations had that, and sent
a further copy when she wrote to it on 22 September 2008.
[43] These matters show that
as an expert in the area, Ms Hindman
should have been aware that there was a difference between the
evaluation branch (Refugee Status), and the Compliance branch. It
should have been obvious that there was at least a significant risk
that neither the Refugee Status officer nor the Authority had a copy of
the letter to Compliance Operations, as it had not gone to the Refugee
Status Branch. Further, the lack of any reference to the letter in the
appendix should have alerted her to the fact that it was not before the
Authority.
[44] The Refugee Status Branch
does not assume a maternalistic burden
to assure all evidence is before it. This is clear from s 129P of the
Act. Section 129P(1) and (2) provide:
129P
Procedure on appeal
(1) It
is the responsibility of an appellant to establish the claim,
and the appellant must ensure that all information, evidence, and
submissions that the appellant wishes to have considered in support of
the appeal are provided to the Authority before it makes its decision
on the appeal.
(2) The
Authority—
(a) May seek
information from any source; but
(b) Is
not obliged to seek any information, evidence, or submissions
further to that provided by the appellant; and
(c) May
determine the appeal on the basis of the information, evidence,
and submissions provided by the appellant.
It is explicit,
therefore, that the obligation is on the appellant to
provide all information and evidence to the Authority, and that the
Authority is not obliged itself to seek any information or evidence,
but may determine the appeal on the basis of the material provided by
the appellant. This was recognised in Jiao
v Refugee Status Appeals Authority where it was observed by
Keith J that, while avoiding words such as "onus" and "burden", the
applicant must prove its case.43 It was for the
applicant to make an
effort to support his statements by
any available evidence, and make an effort to procure that evidence and
supply all pertinent information.44
[45] The obligation on the
applicant is also clear from the Authority‘s
procedures. Prior to the hearing Ms Hindman received a letter from a
case officer of the Authority, dated 12 January 2009. It was a letter
that presumably followed a standard form and contained a number of
statements relevant to this application. It advised that the applicant
must file submissions and evidence, and bring the Department of Labour
file to the hearing. It stated that it was the applicant‘s
responsibility to establish a claim to refugee status.
[46] Also, the Authority‘s
Practice Note 1/2008 specifically stated at
paragraph 2 that it was the responsibility of the appellant to
establish the claim for refugee status (paragraph 2.1), and that the
appellant must ensure that all information, evidence and submissions
that the appellant wished to have considered in support of the appeal
are provided to the Authority before it makes its decision. It confirms
that the appellant should tender all available evidence in support of
the appellant‘s claim (paragraph 15.1).
[47] It should have been
entirely clear to Mr Isak‘s counsel,
therefore, that it was the appellant‘s obligation to provide the
submissions and evidence to be relied on before the Authority. This was
the express direction of the standard form letter, and the Practice
Note. Further, it was clear that the hearing being de novo, it was for
the appellant to make out his case. At the hearing the Authority would
make its own assessment of the claim, and the appellant would be asked
questions by the Authority, and the answers would be critical in the
assessment process and the decision.
[48] It is provided at
Regulation 15(2) of the Immigration (Refugee
Processing) Regulations 1999 that:
A Refugee Status
officer or the Authority must ensure that an appellant
is provided with a copy of any Departmental file or other material or
information relevant to the appeal at least five working days before
the date on which the appeal is to be considered or the appellant is to
be interviewed.
Mr Ryken placed
some reliance on this clause. However, the Regulation
is directed to the provision of information to the appellant, not to
the Authority. There is no suggestion that the appellant was not
provided with a copy of all relevant Departmental information.
[49] The procedural scheme that
is created by the Act, the Regulations,
and the specific procedures and advice given by the Authority, place
the obligation squarely on an appellant to provide all information to
be relied upon to the Authority. This is in accord with the usual
appeal practice procedures, where it is for the appellant to make out
the claim. The general rule that those who apply for a remedy have the
obligation to ensure that the relevant material is before the Tribunal,
must apply. An applicant or appellant must make out its case. This is
no less true in a refugee context, although the difficulties of
language and resource that refugee appellants face will be recognised.
Those difficulties can generally be met by the inquisitorial nature of
the procedure, the low threshold of proof (a "well-founded fear"), and
by the provision of funded counsel and interpreters. These safeguards
were in place for this appeal.
[50] Before traversing the
implications of these findings it is
necessary to consider in more detail the other central ground of the
judicial review application; that during the Authority hearing Ms
Hindman and Mr Isak were not fairly put on notice that the credibility
of Mr Isak‘s assertion that he was a member of the Ogaden Clan was at
issue.
Alleged failure to advise Mr Isak that
membership of Ogaden Clan at
issue
[51] The Refugee Status
officer in his decision accepted Mr Isak‘s
evidence. He stated:45
Mr Isak was an
articulate and co-operative witness. He showed knowledge
of the Clan system in Somalia and gave sufficient evidence to establish
his Clan affiliation.
He confirmed this further at p 15, and indeed found that he was a
member of certain sub-clans including the Ogaden sub-clan. He concluded:
For all the reasons
set out above it is considered that there is a real
chance of Mr Isak being persecuted if he returns to Somalia now. His
fear of being persecuted is therefore considered to be well-founded.
Ultimately, however, the Refugee Status officer decided against Mr
Isak‘s application for refugee status on the basis that he could avail
himself of the protection of the South African Government. That issue
was not considered by the Authority, when it effectively reversed the
Refugee Status officer‘s credibility findings and did not believe Mr
Isak.
[52] Issues of fairness must be
seen against the background of the fact
that Mr Isak went into the Authority hearing having had his assertions
about his membership of the Ogaden Clan accepted unreservedly at the
previous hearing.
[53] The proceeding before the
Authority was effectively a new hearing,
rather than the traditional rehearing on appeal. In fact the Authority
made little reference to the decision of the Refugee Status officer
through the course of its decision, and effectively decided the matter
afresh without reference back. The Authority member was a barrister
with special expertise in refugee issues. In this case,
which is presumably typical, there were no documents from Somalia or
other hard facts relating to Mr Isak before the Authority, save for the
South African document recognising his refugee status. Inevitably then,
the assessment of the facts came down to a process of inquiry and
deduction against the benchmark of known facts about Somalia.
[54] At the outset of its
consideration the Authority advised Mr Isak:46
Now, this is a fresh
start to your case in that you do not have to
prove to me that the RSB decision was wrong. In other words, I don‘t
take any notice of the reasons for their decision but I do take notice
of the evidence which you have given during your interview with the
RSB. And you will see that I have your immigration service file which
contains the evidence you have previously given. This is the same file
that your lawyer has. Alright?
And then a
little later:47
Because this is your
last opportunity to present case for refugee
status, it is very important that you give truthful answers. Part of my
function is to determine whether or not your evidence is credible and
if you exaggerate or invent parts of your account, it becomes difficult
to know what to believe.
And later,48
the Authority questioned Mr Isak about his affiliation
with the Ogaden Clan. The questions were detailed and answered in
detail. There was nothing in the questions to indicate that the
Authority was challenging Mr Isak‘s claims to membership of the Ogaden
Clan. However, the evidence must be considered against the backdrop of
the initial warnings, and specific challenging exchanges on specific
background matters.
[55] In its decision the
Authority assessed Mr Isak‘s case in detail.
It found what on any analysis appeared to be very significant
inconsistencies in his evidence. There were differences between what he
asserted and known geographical facts, internal inconsistencies in his
evidence and in the sequences that he put forward. It was also noted
that in addition to destroying his passport, he provided false
information in his first interview. He said then that he had left
Somalia in
January 2008, and that his wife and child were in Somalia and that he
was at risk in Somalia because he had refused to work as an interpreter
for the Ethiopian Army. This was all untrue. The Authority noted that
when asked by the RSB to explain why he had provided this false
information he said that it was because he was frightened of being
returned to South Africa where he would be killed on return.49 He also
gave false information as to the events in South Africa which led to
his departure.
[56] Mr Ryken submitted that an
explicit warning that the Authority
might not believe Mr Isak about his membership of the Ogaden Clan
should have been given. He relied on the statement of Fisher J in
Khalon v Attorney-General,50
that only the highest standards of
fairness will suffice since questions of life and personal safety are
at stake.
[57] I consider that it had
been made clear by the Authority to Mr Isak
in the presence of his lawyer at the outset of the hearing that his
credibility on all matters was at issue. It cannot be said that Mr Isak
could not reasonably have been aware that his membership of the Ogaden
Clan, which was part of his evidence, was one of those issues. As Mr
McCarthy pointed out, it was not Mr Isak‘s answers to questions about
whether he was a member of the Ogaden Sub-clan that caused the
Authority to reject his evidence. Rather, it was his general lack of
credibility on a large number of other issues which led the Authority
to conclude that it could not rely on anything that Mr Isak said.
[58] I conclude that the
Authority fairly gave notice of its intention
to review all issues, and that Mr Isak‘s credibility was in issue on
such matters. Mr Isak and his counsel should have been in no doubt that
when he was being questioned about his membership of the Ogaden Clan as
well as all other factual matters, he might not be believed. There was
nothing unfair in the way in which the Authority proceeded. It tested
Mr Isak‘s evidence very thoroughly over two days. In addition to him
having lied extensively to immigration officials when he first came to
New Zealand, his detailed evidence before the Authority had many major
flaws only explicable on the
basis that at least large portions of his story were inventions. It was
perfectly rational and fair for the Authority, not knowing of the
letter, to reject his claim to Ogaden Clan membership, despite the fact
that no specific flaws had been exposed in his evidence on that point,
because his evidence generally appeared to be self-serving and untrue.
As the Authority stated, the only matter that it could accept was that
Mr Isak was a male Somali national.
Summary of conclusions to this point
[59] I conclude,
therefore:
a) Mr Mahomed‘s
letter that the Authority did not have before it was
material and could well have affected the outcome of the appeal by
corroborating Mr Isak‘s claim to be a member of the Ogaden Clan.
b)
There was no error by the Refugee Status Branch or the Authority in
not placing Mr Mahomed‘s letter before the Authority. That was the job
of Mr Isak‘s counsel.
c) The
Authority conducted the hearing fairly and without error on its
part.
[60] The issue before the court at
this point is, therefore, whether in
the absence of procedural unfairness, or any error or reasoning or of
law, the failure by counsel to place material information before the
Authority is a sufficient ground to warrant quashing the decision and
directing a re-assessment by the Authority.
Evaluation
[61] Mr Ryken, as well
as arguing procedural unfairness, has pleaded
error of fact constituting an error of law as his first ground for
review. He submits that irrespective of issues of unfair procedure and
unreasonableness, the fact that there was a mistake of fact on a
material matter is a sufficient basis for review. Of course at this
point I do not know if there was an error of fact as to membership of
the Ogaden Clan. That cannot be determined at this hearing. The only
error, if it can be called that, was the Authority not considering Mr
Mahomed‘s letter.
That was the error caused by Mr Isak‘s counsel in not providing it.
[62] In Lord Diplock‘s widely
recognised categorisation of judicial
review grounds as being illegality or unlawfulness, irrationality and
procedural impropriety,51 there is no obvious place
for counsel error
causing a possibly incorrect decision. Nor is there in Cooke J‘s
statement in New Zealand Fishing
Industry Association Inc v Minister of
Agriculture and Fisheries,52 that a Minister
is bound to act in
accordance with law, fairly and reasonably, any indication that counsel
error would be an appropriate basis for a court to intervene.
Traditionally the focus has been on the decision-making process, and
the courts will not interfere where there has been no discernable fault
in that process.
[63] However, in this appeal,
while there was no fault by the
decision-maker in its processes, there has been a material error if the
process is looked at as a whole. That has been an error by counsel in
not ensuring that the material evidence was before the Authority. This
error may have led to a result that is unfair to Mr Isak, if he is
viewed in isolation from his lawyer.
[64] Traditionally, given that
lawyers are generally agents for their
clients, the knowledge and actions of lawyers are attributed to clients
on principles of agency law. However, the concept of agency is not
necessarily apt in the context of a state funded lawyer who is given
the task of defending a possible refugee who does not speak English, is
not familiar with the New Zealand customs, and if unsuccessful is
likely to be immediately removed from New Zealand. Such a person has
little ability to chose counsel, understand counsel‘s actions, or seek
redress at a later point.
[65] In the context of asylum
and refugee cases in England and New
Zealand counsel error has been the subject of some attention. The Crown
relied on Al Mehdawi v Home Secretary.53
There, the appellant‘s
solicitors had failed to correctly advise the appellant of the date of
hearing. There was no appearance at the hearing by the appellant or the
solicitor. The Tribunal had decided
that adequate notice had been given, by notice to the solicitors, and
proceeded to consider and dismiss the appeal. The appellant sought
judicial review on the basis of breach of natural justice through
denial of a hearing. He succeeded at first instance, and in the Court
of Appeal but failed in the House of Lords. The issue was defined by
Lord Bridge as being:54
Whether a party can
complain of a denial of natural justice where he
has been afforded by the decision-maker an opportunity of presenting
his case, but through the fault of his own advisers the opportunity has
not been taken.
Lord Bridge set
out the answer of the House as follows:55
…. A party to a
dispute who has lost the opportunity to have his case
heard through the default of his own advisers to whom he has entrusted
the conduct of the dispute on his behalf cannot complain that he has
been the victim of a procedural impropriety or that natural justice has
been denied to him.
[66] Al Mehdawi v Home Secretary and
other cases are considered in Wade
& Forsyth Administrative Law
10 ed at 424-425 under the heading of "Relief refused in discretion".
The learned authors noted in relation to Al Mehdawi v Home Secretary:56
Where it is by the
applicant‘s own default, or by that of his advisers,
that his case cannot be heard, the courts will sometimes be willing to
exercise discretion in his favour. But the House of Lords reversed such
a decision in a deportation case where the applicant missed the hearing
of his appeal because his solicitor wrote to him at the wrong address,
and this decision appears to make the end of these indulgences.
[footnotes omitted]
[67] In Reg v Criminal Injuries Board Ex parte A,57
the House of Lords
considered judicial review of a decision of the Criminal Injuries
Compensation Board, made in the absence of a relevant police doctor‘s
report, which had not been submitted to it. Al Mehdawi v Home Secretary
was referred to, but not given any detailed consideration. This was not
a case of counsel error and the failing was by the police. It was
accepted that acting upon an incorrect basis of fact could be
regarded as a ground of review.58 However, Lord Slynn
of Hedley
preferred to decide the case on the alternative basis argued, which was
that what occurred was in breach of the rules of natural justice and
constituted unfairness. He observed:59
It does not seem to me to be necessary to
find that anyone was at fault
in order to arrive at this result. It is sufficient if objectively
there is unfairness. Thus, I would accept that it is in the
ordinary
way for the applicant to produce the necessary evidence. There is no
onus on the Board to go out to look for evidence, and nor does the
Board have a duty to adjourn the case for further inquiries if the
applicant does not ask for one.
[emphasis added]
Ultimately, the
House of Lords considered that there had been fault on
the part of the police in not presenting the report and decided the
case on that basis.
[68] In R (Haile) v Immigration Appeal Tribunal,60
judicial review was
sought by an Ethiopian national seeking asylum on the basis that the
special adjudicator did not have before him a significant piece of
evidence, which affected his decision. Simon Brown LJ observed:61
Nor am I persuaded
that the House of Lords‘ decision in Al
Mehdawi v
Home Secretary precludes this court having regard to the wider
interests of justice here, not less given that this is an asylum case
rather than a student leave case as was Al Mehdawi v Home Secretary.
Aspects of that decision may, in any
event, now need to be reconsidered
in the light of the House of Lords’ speeches in R v Criminal Injuries
Board Ex parte A [1999] 2 AC 330.
[emphasis
added]
A re-hearing
was ordered. It was held that the special adjudicator had
made a mistake.
[69] In FP v Secretary of State for the Home
Department,62 the
appellant‘s lawyers had failed to notify the Asylum and Immigration
Tribunal of a change of his address, so that the appellant did not know
of the appeal hearing, which was determined against her. The grounds
put forward in support of the review were error of fact or the
emergence of new facts. Sedley LJ in his decision referred to R (Tofik)
v IAT,63 an asylum case where he had said,
with the support of
other
members of the court:
A client is not
necessarily fixed with his or her solicitor‘s errors in
seeking to oppose removal from the United Kingdom, at least when the
client has been in no way responsible for them.
[70] Sedley LJ in FP v Secretary of State for the Home
Department dealt
with the question of whether in the field of refugee law the errors of
representatives are to be imputed to their clients. He called that form
of imputed fault the "surrogacy principle".64 He
distinguished Al Mehdawi v Home
Secretary on the
basis that the case involved asylum
seekers who were not making a first appeal, or had lost their first
appeal and were making a second appeal to establish their claim. He
noted that the "surrogacy principle" had not been uniformly adopted or
applied by the courts. He was of the view that Al Mehdawi v Home Secretary did
not necessarily govern asylum cases.65 In
distinguishing
the case of the applicants before the court he observed:66
Although Lord
Bridge‘s opinion is carefully framed in terms of
principle and not of pragmatism, the case before the House was far
distant from the kind of case we are concerned with. These cases do not
only involve asylum-seekers who are either making a first appeal or
have lost their first appeal and are making a second endeavour to
establish their claim: they include asylum-seekers who have won their
initial appeal before an immigration judge and are seeking to hold the
decision against the Home Secretary‘s appeal. For some of these, the
exercise of the right to be heard may literally be a matter of life and
death; for all of them save the bogus (and even they have to be
identified by a judicially made decision) it is in a different league
from the loss of a student‘s right to remain here. The remedial
discretion which afforded Mr Al Mehdawi a fallback is absent from the
asylum law.
He quoted Lord
Denning MR from R v IAT Ex Parte
Mehta,67 holding that a
solicitor‘s mistake might amount to special circumstances for enlarging
time. Lord Denning said:
We never let a party suffer because their solicitors have made a
mistake and are a day or two late in giving notice of appeal ... all
the more so ... where [the appellant] would have no remedy against
their solicitor for any negligence. If she
is out of time for appeal, she will be removed from
this country, and it would be of no consolation to her to say that she
has a remedy against her solicitor.
[71] The appeals were allowed in FP v The Secretary of State for the
Home Department, although on the grounds that the rules
themselves were
productive of irremediable procedural unfairness. In their separate
decisions Lady Justice Arden and Lord Justice Wall also distinguished
Al Mehdawi v Home Secretary,68
on the basis that in England removal in
an immigration case is very different from removal in an asylum case
where Articles 2 and 3 of the Geneva Convention are engaged.69
[72] Al Mehdawi v Home Secretary was
considered and distinguished in
New Zealand by McGechan J in Lal v
The Removal Review Authority.70 A
defective appeal document had been filed, and this was material to the
Refugee Removal Authority‘s decision adverse to the appellant. McGechan
J found that there had not been requisite procedural fairness. It was
held that the appeal document in that case was so plainly incomplete
that this should have been obvious to the Refugee Removal Authority,
which should have made inquiries. It should have been clear that the
notice of appeal failed to address the necessary criterion, and the
Removal Review Authority should have informed the appellant of that. He
allowed the application for review, but on broader grounds than just
error by counsel.
[73] In the New Zealand
decision of Amosa v Secretary of
Justice,71
Heron J relied on three earlier English cases: R v West Sussex Quarter
Sessions; Ex parte Johnson (Albert and Mand) Trust Co. Ltd,72 Rahmani v
Diggines; R v Diggines; Ex parte Rahmani,73
and R v Immigration Appeal
Tribunal Ex parte Enwia.74 In relation to the
latter case he
quoted
Stevenson LJ who in Diggines said:
We have considered
also the four or five categories of case to which
judicial review applies, which Mr Collins submits, contrary to the
judgment of Comyn J, are exhaustive, and the possibility that they may
be extended in a proper case to cover errors in law, not only of the
decision-making body, but of the other party,
for which R v Leyland Justices, Ex
part Hawthorn
[1979] QB 283 is an authority, and even of the party complaining of the
decision by way of judicial review, for which there is no authority.
Bearing in mind the judgments of Orr and Lawton LJJ in Reg v West
Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd
[1974] QB 24, 39 and 42, and of Lord Hailsham of St Marylebone LC and
Lord Brightman in Chief Constable of
the North Wales Police v Evans
[1982] 1 WLR, 1155, 1160-1161 and 1174-1175, we can see that it might
be permissible to quash a decision seriously affecting a person who by
mistake or misunderstanding due to his own defects or those of his
advisers was deprived of the opportunity of being fully heard before
the decision was reached. However, we find it unnecessary and
undesirable to decide whether judicial review would lie in such a case,
because we are clearly of the opinion that this is not such a case.
[emphasis added]
Heron J also
quoted Stephenson LJ from later in Diggines:
But the remedy and
the jurisdiction are not to be confined too
rigorously by precedent and I respectfully agree with the observation
of Lord MacDermott LCJ in Reg
(Burns) v County Court of Judge of Tyrone
[1961] NI 167, 172:
Though the main
branches of certiorari have long since been shaped and
fixed by precedent, they are still alive and capable of growth in the
furtherance of their established purposes.
[74] Heron J in Amosa v Secretary of Justice did
not in that case refer
to Al Mehdawi v Home Secretary.
In Amosa v Secretary of Justice
the
plaintiff in an application for review was seeking to review a decision
of the Deportation Review Tribunal. Two reports and a reference
favourable to the plaintiff were not put in evidence before the
Tribunal. Heron J stated:75
I think the law
correctly draws the line at exercising any right of
judicial review over a tribunal which acts properly and fairly but for
reasons totally unrelated to its function is not given important
evidence which if presented would be essential to discharging … its
statutory role and function.
In Amosa v
Secretary of Justice Heron J held that there was sufficient
in the handling of relevant evidence to think that there was a basic
failure of the rules of natural justice, and he determined that the
court should intervene.
[75] In none of these cases
has the successful ground for review
specifically been an error by counsel that has resulted in a possible
mistake of fact by the Tribunal. However, the two New Zealand
decisions, and the English decision of R
(Haile) v Immigration Appeal Tribunal, appear to contemplate
that a
circumstance could arise in a refugee context where judicial review
will be granted on the basis of counsel error, where that has resulted
in the Tribunal not having material information or a proper
understanding of the material information before it. In R v Criminal
Injuries Board it was accepted obiter dicta that where no one
was at
fault but there was unfairness, that there could be intervention.
[76] Standing back, Mr Isak
has not been treated fairly. There is no
suggestion that it was his error that led to Mr Mahomed‘s letter not
being put before the Authority. Indeed, he could have fairly expected
that it was before the Authority. There was a procedural error, and it
was not his fault. If we assume for a moment that Mr Isak is a member
of the Ogaden Clan and that it is dangerous to his liberty and life to
be returned to Somalia, one can imagine his bafflement as he returns.
He will have failed because highly relevant information that had been
provided to his lawyer was not before the body that had decided his
status. It is not entirely irrelevant to note that the Refugee Status
officer did believe his evidence that he was a member of the Ogaden
Clan.
[77] I adopt the observation in
R v Criminal Injuries Compensation
Board that it is a ground of review if there has been a breach
of the
rules of natural justice and unfairness, and that it is not necessary,
at least in refugee cases such as these, to find that the Tribunal or
government body was at fault. The mistake could be seen as a mistake of
fact (there was no corroboration of clan membership) by the Authority,
although it was not the fault of the Authority. But I think it is best
categorised as procedural error in the process as a whole leading to
manifest unfairness. I do not ignore s 129P(1) and (2) of the Act which
make it clear that it is the responsibility of the appellant to
establish the claim and ensure that all evidence is before the
Authority, and that the Authority is not obliged to seek information or
evidence. The position would have been different if the evidence was
only of a failure by counsel to make inquiries from Mr Mahomed or a
person in a similar position. But here there has been an explicit
failure to present relevant available evidence obtained to support Mr
Isak‘s application, and that has been a failure on the part of counsel
and not Mr Isak. In Jiao v Refugee
Status Appeals Authority Keith J,
while referring to the responsibility on the applicant to provide
information, observed also
that there was an obligation on the person charged with determining the
applicant‘s status to:76
(i) Ensure that the applicant presents his
case as fully as possible
and with all available evidence.
(ii)
Assess the applicant‘s credibility and evaluate the evidence (if
necessary giving the applicant the benefit of the doubt), in
order to
establish the objective and the subjective elements of the case.
(iii)
Relate these elements to the relevant criteria of the 1951
Convention, in order to arrive at a correct conclusion as to the
applicant‘s refugee status.
[emphasis
added]
This comment
recognises the unusual nature of a refugee status hearing
and the need for particular efforts to be made to ensure that the
applicant‘s case is properly presented.
[78] There must be a concern
about using judicial review to quash a
decision where there has been no unlawfulness, irrationality or
procedural error, by or of the Authority. But I comfort myself with the
observations of McGechan J in Lal v
The Removal Review Authority in
quashing a decision of the Authority, although on somewhat different
grounds:77
Lest this decision be
misunderstood, and taken too widely, I add a
footnote. First, I am considering
only the position of the RRA. This is
not some universal ruling. I am not
considering the position of other
statutory tribunals, with different statutes, functions, and
procedures. Nor am I considering the position of traditional
Courts of
Justice, with their own rules and established procedures. The
traditional adversary situation between subject litigants could raise
further issues. It may be the conclusion reached in relation to
the RRA
sometimes will translate to some extent into other fields; or it may
not. A little additional fairness
never hurts, but time will tell.
Second, the finding reached, as relating to the RRA, is based on the
facts noted. This was a clear case: total omission, likelihood of
oversight, immediate contact available, and no obvious likelihood of
delay. It called for response. Less obvious cases, such as slight
coverage, or ambiguity, or appeals plainly hopeless on other grounds,
could generate a different response, particularly given resource
implication and the need for expedition. I am certainly not directing
the RRA must make an immediate and minute examination of all appeals
filed, with reference back to appellants of all minor or speculative
difficulties, real or conceivable. Registry‘s are not revising
barristers. There is room for common sense
administration. I go no further, at this point, than the clear case;
where there is a clear possibility of unfairness if a vital omission is
not pointed out, that small step should be taken.
[emphasis added]
[79] This case is not as strong
for the appellant as in Lal v The
Removal Review Authority in that I do not feel able to criticise
any
aspect of the Authority‘s conduct of this matter as did McGechan J in
that case. It is most unfortunate that an error by counsel will lead to
a further hearing. If the factual issue had been less fundamental, or
the evidence less cogent, the result might have been different.
However, this was very important evidence relating to the fundamental
plank of Mr Isak‘s case. The consequences of the wrong decision may be
dire. I consider there is a real risk that not leading this evidence
could lead to a very grave injustice being done to him. The cost and
delay of a rehearing is a small price to pay, if such an outcome is
avoided. A generous approach to intervention is warranted. A little
additional fairness is called for.
Wedenesbury
unreasonableness
[80] It is not necessary
given my conclusions to consider in detail Mr
Ryken‘s submissions relating to Wednesbury
unreasonableness. Suffice to
say, I found none of them made out; indeed on the material before the
Authority the decision was entirely reasonable. Although there was no
evidence to show that Mr Isak was lying about his membership of the
Ogaden clan, there was ample material before the Tribunal for it to
reject his other evidence as lacking in credibility. The Authority‘s
rejection of Mr Isak‘s evidence was based on a solid number of clear
changes in his story, contradictions in his evidence and differences
between what he said and what are known facts. The Authority‘s
reasoning and outcome on the material before it cannot be criticised.
Result
[81] I, therefore, set
aside the dismissal of the plaintiff‘s appeal
before the Refugee Status Appeal Authority, and direct that there is to
be a rehearing before it. I emphasise that it may well be that when the
Authority explores Mr Mahomed‘s evidence, that it again declines to
grant refugee status. That will be
a matter for the Authority.
Costs
[82] This would not
appear to be a case for costs, but as I have not
heard counsel on the topic, I reserve costs for further submissions, if
costs are sought. If they are sought by either party a memorandum
should be filed and I will make timetable orders.
Solicitor for the
plaintiff: Ryken and Associates (Auckland)
Solicitor for the
defendant: Crown Law Office (Wellington)
1 At [70].
2 At [71]-[72].
3 X v Refugee Status Appeals Authority
[2010] 2 NZLR 73, at [271].
4 N v Refugee Status Appeals
Authority HC Auckland CIV-2007-404-7932 26
August 2008, Priestley J, at [55].
5 T v Refugee Status Appeals
Authority [2004] NZAR 552, at [17].
6 At
[57].
7 Attorney General v X [2008]
2 NZLR 579, at [15].
8 Hassan v Department of Labour
(Immigration) HC Wellington
CRI-2006-485-101 4 April 2007, Mallon J, at [24].
9 R v Chief Executive of the
Department of Labour HC Wellington
CIV-2008-485-123, 10 June 2008, at [24]-[29].
10 A v Chief Executive of the
Department of Labour HC Auckland
CIV-2004-404-6314 19 October 2005, at [33].
11 A v The Chief Executive of the Department
of Labour HC Auckland
CIV-2004-404-6314 19 October 2005, at [33].
12 Associated Provincial Picture
Houses v Wednesbury Corporation [1948]
1 KB 223.
13 Progressive Enterprises Ltd v
North Shore City Council [2006] NZRMA
72 (HC) at [70].
14 R v Zaoui [2006] 1 NZLR 289 (SC)
[90]-[91].
15 Refugee Appeal No. 71427/99
Refugee Status Appeals Authority
Auckland, 16 August 2000, at [47].
16 Butler v Attorney General [1999]
NZAR 205 (CA), at 211.
17 Jiao v Refugee Status Appeals
Authority [2003] NZAR 647.
18 At [27].
19 Khalon v Attorney General
[1996] 1 NZLR 458 at 463.
20 K v Refugee Status Appeal
Authority HC Auckland M1586-SW99 22
February 2000, Anderson J, at [40].
21 Wolf v Minister of Immigration
[2004] NZAR 414, at [48].
22 Thames Valley Electric Power
Board v NZFP Pulp and Paper Ltd [1994]
2 NZLR 641, at 643.
23 Wellington City Council New Zealand
Limited v Woolworths New Zealand
Limited (No. 2) [1996] 2 NZLR 537 at 545, 552 and 556.
24 Electoral Commission v Cameron
[1997] 2 NZLR 421.
25 Pharmaceutical Management Agency
Ltd v Roussel Uclaf Australia Pty
Ltd [1998] NZAR 58 at 66.
26 At [65].
27 At [70].
28 Mihos v Attorney General
[2008] NZAR 177 at [107]-[108].
29 At [272].
30 Gordon v Auckland City Council
HC Auckland CIV-2006-404-4417 29
November 2006, at [11].
31 Lab Tests Auckland Ltd v Auckland District
Health Board [2009] 1
NZLR 776, at [379].
32 Discount Brands Ltd v Northcote
Mainstreet Inc. [2004] 3 NZLR 619.
33 Discount Brands Ltd v Northcote
Mainstreet Inc [2005] 2 NZLR 597.
34 [2006] NZ
Law Review at 75.
35 New Zealand Public Service
Association Inc. v Hamilton City Council
[1997] 1 NZLR 30.
36 At 87.
37 Refugee Appeal No. 71346/99 Refugee
Status Appeals Authority,
Auckland, 28 October 1999.
38 Shaqlane v The Minister of
Immigration DRT 019/02, 29 August 2003 at
28.
39 Refugee Appeal No. 76062
Refugee Status Appeals Authority, Auckland,
15 October 2007.
40 At [86].
41 Refugee Appeals Nos. 76335 and
76364 Refugee Status Appeals
Authority, Auckland, 29 September 2009.
42 At [54].
43 At
[23].
44 At [28].
45 At p
13.
46 At p
2.
47 At p 3.
48 At pgs 29
and 30.
49 At
[68].
50 At 463.
51 See Council of Civil Service Unions v Minister
for the Civil Service
[1985] AC 374.
52 New Zealand Fishing Industry
Association Inc v Minister of
Agriculture and Fisheries [1988] 1 NZLR 544 (CA).
53 Al Mehdawi v Home Secretary
[1990] 1 AC 876.
54 At p
897.
55 At p 898.
56 At 425.
57 Reg v Criminal Injuries Board Ex
parte A [1999] 2 AC 330.
58 At
344-345.
59 At 345.
60 R (Haile) v Immigration Appeal
Tribunal [2001] EWCA Civ 663.
61 At [26].
62 FP v Secretary of State for the Home
Department [2007] EWCA Civ 13.
63 R (Tofik) v
IAT [2003] EWCA Civ 1138.
64 At [32].
65 At [45].
66 At [43].
67 R v IAT Ex Parte Mehta
(1976) Imm AR 38.
68 At
[43].
69 At [91].
70 Lal v The Removal Review Authority
HC Wellington AP 95/92 10 March
1994 at 23.
71 Amosa v Secretary of Justice HC
Wellington CP 317/94 22 December
1997, Heron J.
72 R v West Sussex Quarter Sessions;
Ex parte Johnson (Albert and
Mand)
Trust Co. Ltd [1973] 3 All ER 289.
73 Rahmani v Diggines; R v Diggines;
Ex parte Rahmani [1986] 2 WLR 530.
74 R v Immigration Appeal Tribunal
Ex parte Enwia [1984] 1 WLR 117.
75 At 12.
76 At [28].
77 At p 24.