High Court Cases
High Court Auckland M 965/94;
[1996] 1 NZLR 458
1 November 1995; 1 November
1995
Fisher J
Judicial review - fairness - credibility findings - whether notice must be given of a proposed adverse credibility finding
Judicial review - fairness - whether in refugee cases only the highest standards of fairness suffice
Judicial review - legitimate expectation - whether expectation that Minister would consider possible qualification by unsuccessful refugee claimant for a residence permit on general humanitarian grounds
Immigration Act - residence permit on humanitarian grounds - whether expectation that Minister would consider possible qualification by unsuccessful refugee claimant for a residence permit on general humanitarian grounds
The plaintiff, a citizen of Pakistan, arrived at Auckland International Airport and sought refugee status. Following the decline of his application at first instance he appealed to the Refugee Status Appeals Authority (RSAA). In a reserved decision the RSAA dismissed the appeal on the grounds that it did not accept the plaintiff as a credible witness. The RSAA stated that it found the plaintiff an unconvincing and insincere witness, that his demeanour led the RSAA to conclude that he was untruthful when giving evidence, that there were a lengthy series of discrepancies in his evidence and that since he was not to be believed his grounds for refugee status could not be sustained. On judicial review it was submitted that the RSAA had an obligation to disclose to the plaintiff each item of evidence which caused the RSAA concern and further to disclose to the plaintiff in a direct fashion the possibility of an adverse inference which could be drawn in consequence.
Held:
1. The RSAA performs a function which requires it to observe natural justice in general. It is a fundamental requirement of natural justice that a party be given a reasonable opportunity to present his or her case with knowledge of the case which he or she has to meet. The way in which that fundamental requirement is implemented will depend upon the context including the nature of the function which the decision-maker is called upon to perform and the circumstances of the particular case which has come before that decision-maker. In refugee cases only the highest standards of fairness will suffice since questions of life, personal safety and liberty are at stake. (See para [15])
Benipal v Minister of Foreign Affairs (High Court, Auckland, A 878/83, 29 November 1985, Chilwell J); Chen v Minister of Immigration [1992] NZAR 261 (CA); Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA); Kanda v Government of Malaya [1962] AC 322 (PC); Kioa v West (1985) 159 CLR 550 (HCA); R v Home Secretary; Ex parte Bugdaycay [1987] AC 514 (HL); Russell v Duke of Norfolk [1949] 1 All ER 109 (CA); Santokh Singh v Refugee Status Appeals Authority (No. 2) (High Court Auckland, M 1224/93, 9 February 1994, Smellie J) and Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 (FC:FC) referred to.
2. There is no rule of natural justice of general application that a decision-maker must disclose that which he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he makes a final decision. Nor is there any general rule that the decision-maker must give notice of the provisional view taken of information sourced from the applicant. An adverse credibility finding would therefore not normally attract the need for advance warning and opportunity to respond. However, each case must be individually considered. (See para [16])
Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 (HL) and Barina Corporation Limited v Deputy Commissioner of Taxation (NSW) (1985) 59 ALR 501 (Wilcox J).
3. A party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted. The converse will generally be true if the risk of an adverse finding was always foreseeable, particularly if the challenge to the finding relates to the way in which the tribunal had exercised a value judgment rather than the completeness of the material which had been placed before the tribunal. The key elements are surprise and potential prejudice. If an adverse finding is foreseeable there is no surprise. Even where there is surprise, there could be no prejudice unless better notice might have allowed the affected party to do something about it. Those principles seem applicable whether the hearing is adversarial or inquisitorial. (See para [25]).
4. Applying these principles specifically to credibility, an adverse finding will usually be foreseeable without the necessity for express notice of that possibility. In addition, there will usually be little that the affected party could have done to stave off an adverse credibility finding with or without prior warning. This will be particularly so where the finding rests upon demeanour, inconsistencies and general propensities demonstrated during the hearing. Consequently it will not usually be necessary for a tribunal or decision-maker to give credibility warnings, either generally or as to the particular grounds upon which an adverse credibility finding might rest. However the key elements of surprise and potential prejudice would seem to apply in this context as well. In the unlikely event that a party could show that he or she had been unfairly taken by surprise on a matter relating to credibility, and that with adequate notice it might have been possible to rebut the adverse inference, the fact that the issue concerns credibility would not of itself seem to preclude a remedy. (See para [26]).
5. On the question whether the RSAA's ultimate decision on credibility ought to have been foreseeable to the plaintiff and whether in any event absence of notice could have made any difference, four matters were relevant:
(b) Second, the way in which the hearing was conducted must have made it clear to the plaintiff that his credibility was being probed by the Authority;
(c) Third, during the hearing the plaintiff was effectively warned that an adverse credibility finding was a real possibility;
(d) Fourth, opportunity was given to the plaintiff to redress any points bearing upon credibility which had arisen earlier in the hearing and counsel for the plaintiff had exercised his right to re-examine his client.
6. There were no grounds to support the plaintiff's claimed legitimate expectation that the Minister would consider the plaintiff's possible qualification for a residence permit on general humanitarian grounds. (see para [42]).
Application for review dismissed
Other cases mentioned in Judgment
Browne v Dunn (1894) 6 R 67 (HL); Gaima v Secretary of State for the Home Department [1989] Imm AR 205 (CA); Gracielone v Canada (Minister of Employment & Immigration) (1989) 9 Imm LR (2nd) 237 (FC:CA); Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 367 (FC:FC); Marelic v Comcare (1993) 121 ALR 114 (Beazley J); R v Secretary of State for the Home Department; Ex parte Bolat [1991] Imm AR 417 (QBD); R v Secretary of State for the Home Department; Ex parte "K" [1990] Imm AR 393 (QBD); Re Erebus Royal Commission; Air New Zealand Limited v Mahon [1983] NZLR 662 (PC); Re Erebus Royal Commission; Air New Zealand Limited v Mahon (No. 2) [1981] 1 NZLR 618 (CA); Refugee Appeal No. 523/92 Re RS (17 March 1995) (NZRSAA); Santokh Singh v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J); Society for the Prevention of Cruelty to Animals (Auckland) Inc v District Court at Auckland (High Court Auckland, M No. 1247/92, 30 March 1993, Tomkins J); Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 (FC:FC).
Counsel
R Hooker & G Monk
for the plaintiff
MA Woolford for the
defendants
[Editorial note:
At para [42] it is stated that there is nothing to stop a refugee applicant
from simultaneously applying for a residence permit. It should be
noted, however, that from 1 October 1999 refugee status claimants who are
granted a temporary permit may not, before or after expiry of the temporary
permit apply for a further temporary permit or for a permit of a different
type, request a special direction or bring any appeal to the Residence
Appeal Authority. See Immigration Act 1987 s 129U as inserted by
the Immigration Amendment Act 1999, s 40. The only permit for which
application may be made is a temporary permit to maintain lawful status
in New Zealand while the refugee claim is determined. See Immigration
Act 1987, s 129U(3). The right to appeal to the Removal Review Authority
under Part II is unaffected: Immigration Act 1987, s 129U(4).]
FISHER J
Introduction
[1] This case raises the question whether there are any circumstances in which notice must be given where a decision-maker proposes to make an adverse credibility finding against a party. It arises in proceedings by the plaintiff to review decisions denying him refugee status and permanent entry to New Zealand. The principal decision under challenge is that of the Refugee Status Appeal Authority ("the Authority") declining the plaintiff refugee status. The other is the decision of the Minister of Immigration ("the Minister") acting through one of his immigration officers denying the plaintiff's residence permit.
Immigration and refugee procedures
[2] To remain permanently in New Zealand immigrants require a residence permit issued by the Minister under s 35(1) of the Immigration Act 1987. It provides:
(a) No person is entitled to a residence permit as of right;
and
(b) Any question whether
or not -
(ii) To impose any requirement on the holder of a residence permit in accordance with section 18A of this Act, -
[5] It is against that statutory background that New Zealand's refugee determination scheme falls to be considered. New Zealand is a party to the 1951 Convention on the Status of Refugees and the 1967 Protocol thereto. As a result it has treaty obligations with respect to international refugees. Those obligations have not been translated into domestic legislation. Instead direct effect has been given to the terms of the treaty through Ministers of the Crown and their departments.
[6] Initially this was done by the Ministers of Foreign Affairs and Immigration who acted on the recommendation of a committee known as the Inter-Departmental Committee on Refugees. Then on 17 December 1990 the Government approved new procedures which were incorporated in a cabinet minute. The terms of reference endorsed by that minute have thereafter represented the rules by which the Refugee Determination Scheme has been administered. These have operated as the exercise of the Crown prerogative rather than preliminary or subordinate legislation: see in that regard Singh v Refugee Status Appeal Authority [1994] NZAR 193 per Smellie J.
[7] Essentially the scheme which came into force in 1991 divides the sequence into two parts. In the first instance refugee applications are considered by a section within the New Zealand Immigration Service known as the Refugee Status Section. It is staffed by immigration officers with special training in refugee issues. From any refusal of refugee status at that level there is a right of appeal to the Authority. The Authority is an independent body the members of which have been appointed by the Minister of Immigration. Its decisions are treated by the Government as binding. The terms of reference for the authority are contained in the cabinet minute. They relevantly provide:
(c) The Authority shall consider only those claims to refugee status where the claimants have been declined refugee status by officers of the Refugee Status Section and are not otherwise granted residence in New Zealand and where the claimants have lodged written appeals with the Secretariat of the Authority within 15 working days of being notified of the decision of their claims.
Procedure
(d) In determining claims to refugee status, the Authority shall consider each written decision of the officers of the RSAA that is subject to appeal and any material submitted in writing by the claimant in support of the appeal and by the Refugee Status Section in support of its decision.
(e) The Authority shall interview the claimant and consider any evidence presented by the claimant unless the claim is prima facie manifestly unfounded or frivolous or vexatious, or manifestly well-founded.
(f) Where the Authority interviews claimants (who may be accompanied by their representatives should they so wish), officers of the Refugee Status Section shall also be entitled to give evidence in person to the Authority. The Authority may question officers of the Refugee Status Section and, if necessary, other officers of government on the issues before the Authority, provided however that any information to be used by such officer before the Authority which may be prejudicial to the claimant's appeal shall be put to the claimant within a reasonable time before the interview for comment unless it is necessary to withhold that information for any of the reasons specified in Section 6(a) to (d) of the Official Information Act 1982."
[9] Even if refugee status is refused, the discretion under s 35 remains unimpaired. There is nothing to stop a refugee applicant from simultaneously applying for a residence permit. But one can anticipate that without the assistance of refugee status an applicant will find it more difficult to obtain a residence permit. He or she would then need to come within the more conventional grounds for entry on a humanitarian basis discussed earlier.
Factual background in the present case
[10] The plaintiff was born in Pakistan on 11 May 1955 and continues to be a citizen of Pakistan. In 1985 he entered Australia on a 24 hour transit visa and stayed on there for three years as an overstayer. In 1988 he returned to Pakistan for two years before embarking for New Zealand. Upon arrival in New Zealand on 8 December 1990 he applied for refugee status. He was interviewed in full by the New Zealand Immigration Service on 24 October 1991. On 11 April 1991 he made formal written applications for refugee status and also for a work permit to permit him to cover living costs pending determination of the refugee status application. At no stage either then or since has he applied for a residence permit.
[11] The plaintiff's application for refugee status was declined by the Refugee Status Section of the Immigration Service in a written decision of 3 July 1992. The stated reasons for the decision were silent as to possible eligibility for a residence permit. In the same month the applicant lodged an appeal with the Authority. This was heard on 23 September 1993 at a hearing where the plaintiff was represented by legal counsel. The Authority had before it a detailed written statement of the plaintiff running to some 17 typed pages, this having accompanied his original formal application of 11 April 1991. The hearing took the general form of explanations by the Authority to the plaintiff and his counsel as to the nature of the intended process, some opening submissions by the plaintiff's counsel, lengthy questioning of the plaintiff by the Authority and then re-examination of the plaintiff by his own counsel.
[12] In a reserved decision of 27 May 1994 the Authority dismissed the appeal and declined the plaintiff refugee status. The thrust of the decision was that the Authority did not accept the plaintiff as a credible witness. Without that foundation the grounds he had advanced to support refugee status evaporated. The Authority stated that it found the plaintiff an unconvincing and insincere witness, that his demeanour led the Authority to conclude that he was untruthful when giving evidence, that there was a lengthy series of discrepancies in his evidence and that since he was not to be believed his grounds for refugee status could not be sustained.
Inadequate notice of credibility allegations
[13] In this Court the principal ground for review was the Authority's alleged failure to warn the plaintiff that his application was at risk for credibility reasons. Mr Hooker submitted that the Authority had not adequately indicated to the appellant that the various conflicts and discrepancies in the evidence might lead the Authority to its conclusion. He submitted that the Authority had an obligation to disclose to the plaintiff each item of evidence which caused the Authority concern and further to disclose to the plaintiff in a direct fashion the possibility of an adverse inference which could be drawn in consequence.
Legal Principles re credibility notice
[14] I am grateful to both counsel for their helpful review of legal authorities. One begins with the scholarly discussion of hearings before the Authority in the decision of the Authority delivered by RPG Haines Esq in RE RS, Refugee Appeal No 523/92. The Authority's approach is summarised at p 27 as follows:
2. The proceedings before the Authority are non-adversarial and are in the nature of a de novo hearing.
3. On appeal, a refugee claimant does not have to establish that the decision at first instance by the Refugee Status Section was wrong.
If at the conclusion of the hearing the Authority is in a state of equipoise, the benefit of the doubt principle requires that the appellant receive the benefit of that doubt.
4. The role played by the Refugee Status Section of the New Zealand Immigration Section and their counsel at the hearing of this appeal was entirely in accord with the Terms of Reference of 30 August 1993.
5. By appearing by counsel, neither the Refugee Status Section nor the Immigration Service became a party to the appeal, nor was an onus of proof thereby assumed by them."
(b) It is a fundamental requirement of natural justice that a party be given a reasonable opportunity to present his or her case with knowledge of the case which he or she has to meet: ibid; Kanda v Government of the Federation of Malaya [1962] AC 322, 337; Kioa v Minister for Immigration and Ethnic Affairs (1984) 55 ALR 669.
(c) The way in which that
fundamental requirement is implemented will depend upon the context including
the nature of the function which the decision-maker is called upon to perform
(see in particular the well-known dictum of Tucker LJ in Russell v Duke
of Norfolk [1949] 1 All ER 109, 118D) and the circumstances of the
particular case which has come before that decision-maker (Sinnathamby
v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, 506).
(d) In refugee cases only
the highest standards of fairness will suffice since questions of life,
personal safety and liberty are at stake: R v Secretary of State for
the Home Department, Ex parte Bugdaycay [ 1987] AC 514 531G (HL); Benipal
v Ministers of Foreign Affairs and Immigration (High Court Auckland,
29 November 1985, A993/83, Chilwell J and Santokh Singh v Refugee Status
Appeals Authority (High Court Auckland, M1224/93, 9 February 1994,
Smellie J).
[17] However, as Tucker LJ signalled in Russell v Duke of Norfolk each case must be individually considered. Mr Hooker submitted that when it carne to credibility there was a critical distinction between adversarial and inquisitorial hearings. He submitted that warning and opportunity to respond were required in the special circumstances of the latter. The first decision he relied upon in that respect was Re Erebus, Royal Commission Air New Zealand Limited v Mahon (No 2) [1981] 1 NZLR 618. In that case Woodhouse P said at p 628:
[19] Mr Hooker went on to refer to a number of other cases which come closer to the position which he espoused. Two were Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 367. In both, the applicants had written letters critical of their home governments. They proffered these as evidence of the risks which they would now face if they were returned home. In both cases the Minister for Immigration or his delegate contemplated a finding that the letters had not been sent in good faith. In both it was held that procedural fairness required notice of such a possibility and opportunity to comment. Cases of that sort touch upon credibility but still seem to me to essentially turn upon the bona fides of conduct on another occasion. The essential question was whether the letters were bona fide ones. That goes beyond mere credibility to a fact in issue for its own sake.
[20] Closer to credibility observations during the hearing itself was the Australian case of Marelic v Comcare (1993) 121 ALR 114. There a worker’s compensation tribunal was held to have given inadequate warning where it announced at the end of a three day hearing that the claimant's actions and demeanour observed during the hearing were inconsistent with the claimed injury. That would seem close to an unsignalled adverse credibility finding but there too there are differences. The most important is probably that whereas adverse credibility findings will nearly always be foreseeable following a defended hearing, the same could not be said of the possibility that the tribunal would arrive at a medical conclusion based upon personal observations of the claimant, The other is that because it was an adversarial hearing one might have expected that in accordance with the rule in Browne v Dunn counsel for the defence would have cross-examined the applicant on the point if it proposed to rely upon the allegation later sustained by the tribunal. It must also be said that Marelic was not supported by any cited authority.
[21] Counsel also cited a number of other decisions drawn from the United Kingdom (Gaima v Secretary of State for the Home Department [1989] Imm AR 205, R v Secretary of State for the Home Department ex parte “K” [1990] Imm AR 393 and R v Secretary of State for the Home Department ex parte H Bolat [1991] Imm AR 417) and Canada (Gracielone v Canada (Minister of Employment and Immigration (1989) 9 Imm LR (2nd) 237 (FC:CA). As one would expect, they reveal a variety of approaches appropriate to a variety of circumstances. But all reflect the notion that the necessity for notice turns on the foreseeability of an adverse finding on the point in question. Notice must be given only if the applicant could not reasonably be expected to foresee the hazard he or she faces.
[22] Recognising that an adverse credibility finding will normally be foreseeable in oral hearings which are analogous to litigation, Mr Hooker returned to his suggested distinction between adversarial and inquisitorial hearings. He pointed out that in The Society for the Prevention of Cruelty to Animals (Auckland) Inc & Anor v The District Court at Auckland & Anor (Auckland High Court M No 1247/92, 30 March 1993) Tompkins J appeared to accept such a distinction. Reviewing a district court judge's findings as to costs His Honour referred to Re Erebus and stated (p 12):
[24] I do not think that on this point Mr Hooker's suggested distinction between adversarial and inquisitorial hearings is supported by authority. Nor is it easy to see the policy reasons for it. Mr Hooker submitted that there was a greater need for credibility notice in an investigative setting due to lack of formal notice as to the issues (there being no formal charges or pleadings) and the different role of the decision-maker (a judge in an adversarial setting being neutral and it being left to the parties adequately to put allegations to witnesses). But at least in a case like the present one, it is inevitable that the applicant's general credibility will be of central importance. In such cases it can be expected that there will be a free-ranging examination on unsignalled collateral topics for the purpose of testing credibility per se. Whether a person's character is such that he or she is likely to tell the truth is not a matter which has any necessary connection to the facts in issue. The extent to which the facts in issue had been well-defined before the hearing is therefore largely immaterial for present purposes. There is no greater reason for expecting prior notice of collateral issues in that setting than there would be in an adversarial one. And it is difficult to see why it should make any difference that the questions may be asked by the tribunal or its counsel rather than counsel for the parties. The effect upon the witness in terms of notice and opportunity to respond will be the same.
[25] There is a single underlying principle which I believe emerges from both the decisions and the policy which underlies them: a party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted. The converse will generally be true if the risk of an adverse finding was always foreseeable, particularly if the challenge to the finding relates to the way in which the tribunal had exercised a value judgment rather than the completeness of the material which had been placed before the tribunal. The key elements are surprise and potential prejudice. If an adverse finding is foreseeable there is no surprise. Even where there is surprise, there could be no prejudice unless better notice might have allowed the affected party to do something about it. Those principles seem applicable whether the hearing is adversarial or inquisitorial.
[26] Applying those principles specifically to credibility, an adverse finding will usually be foreseeable without the necessity for express notice of that possibility. In addition, there will usually be little that the affected party could have done to stave off an adverse credibility finding with or without prior warning. This will be particularly so where the finding rests upon demeanour, inconsistencies and general propensities demonstrated during the hearing. Consequently I do not think that it will usually be necessary for a tribunal or decision-maker to give credibility warnings, either generally or as to the particular grounds upon which an adverse credibility finding might rest. However the key elements of surprise and potential prejudice would seem to apply in this context as well. In the unlikely event that a party could show that he or she had been unfairly taken by surprise on a matter relating to credibility, and that with adequate notice it might have been possible to rebut the adverse inference, the fact that the issue concerns credibility would not of itself seem to preclude a remedy.
Credibility warnings in the present case
[27] The two questions in the present case are therefore whether the Authority's ultimate decision on credibility ought to have been foreseeable to the plaintiff and whether in any event absence of notice could have made any difference. In answering those questions four matters seem relevant.
[28] The first is that credibility findings would seem fundamental to this Authority's work. Mr Woolford submitted, without challenge from Mr Hooker, that it lay at the heart of this Authority's function to decide whether a refugee applicant's version of events ought to be accepted. Although the Authority has some opportunity for independent inquiry as to the political and social conditions prevailing in the country of origin, it will nearly always lack independent knowledge of those facts and matters personal to the applicant. Credibility must therefore be to the very forefront of cases of this nature. One would expect that to be well appreciated by applicants, particularly those who are professionally represented.
[29] The second matter is that the way in which the hearing was conducted must have made it clear to the plaintiff that his credibility was being probed by the Authority. Mr Woolford's summary of the hearing was as follows:
Page 3 Refugee definition emphasised
Page 4 The need to give evidence truthfully
Page 4-9 Opening submissions by appellant's counsel
Pages 9-10 Advice on legal issues
Page 24 Clear challenge to appellant's claim to have remembered form of declaration
Page 28 Appellant not answering question
Page 31 Appellant's attention
drawn to the fact that he was not answering Chairperson's
questions
Page 32 Appellant challenged
on issue whether the injuries suffered were serious or only minor
Page 33 Appellant's attention
drawn to the fact that he had given different accounts of graveyard incident
Page 38 Appellant's attention
drawn to inconsistent statements as to nature of Ahmadi convention
Page 47 Appellant not answering question
Page 48-9 Appellant not answering question
Page 55 Appellant's attention
drawn to inconsistent claims concerning his return to Pakistan
from Australia
Page 56 Appellant's attention
drawn to unusual timing
Page 57 Appellant reminded to listen to the question
Page 58 Scepticism voiced
as to the appellant's claim to have used an Islamic form of greeting to
village maulvi
Page 59 Appellant reminded
to listen to the question
Page 62 Appellant asked whether he had any other reason for leaving Pakistan. This lead to a number of questions as to why refugee status was not sought in Australia. Scepticism on part of the Authority evident.
Page 71 Questions concerning the airport interview were pointed. In particular, the appellant was asked whether the officer made up the record of the interview.
Page 71 Appellant's attention drawn to fact that people tell lies at the airport
Page 72 Appellant challenged on inconsistent explanations given concerning the airport interview
Pages 75-6 Appellant pressed on the credibility issue and told expressly that questions were being asked to test his credibility.
Pages 88-90 Issues of credibility and adverse inferences specifically discussed with counsel for appellant during his re-examination. He was clearly aware that credibility was an issue.
Page 99 Appellant told that until counsel's written submissions were filed, the Authority would be unable to consider his case and arrive at a decision.”
Mr Haines: Why not?
Mr Kahlon: I’m an overstayer (....?)
Mr Haines: What's that got to do with it?
Mr Kahlon: Sorry?
Mr Haines: What's that got to do with it? There's nothing to say that you have to be a legal person or on a valid permit to apply for refugee status.
Mr Hooker: With all due respect Sir.
Mr Haines: Just let your client answer the question Mr Hooker. You’ll have an opportunity to make submissions.
Mr Kahlon: Best of my knowledge, what I thought, if I apply for refugee status they can catch me and send me back to Pakistan.
Mr Haines: What was the reason for coming to New Zealand?
Mr Kahlon: What was the reason?
Mr Haines: What was your reason for corning to New Zealand?
Mr Kahlon: Just seeking for refugees.
Mr Haines: Did you have a
permit to come to New Zealand, or a visa to come to New
Zealand?
Mr Kahlon: No I haven’t at that time.
Mr Haines: But if you apply the same logic that you used in Australia, if you came to New Zealand, you were an illegal here, and they would send you back to Pakistan. So what’s the difference between coming to New Zealand and applying for refugee status as an illegal and not applying for refugee status in Australia as an illegal?
Mr Kahlon: When I came at Sydney airport, I didn’t mention any sort of thing over there. When I came to Auckland I let them to the people at the airport straightaway what I am you know.
Mr Haines: When you were in Australia did you ever consult a lawyer about your immigration status?
Mr Kahlon: No.
Mr Haines: About applying for refugee status?
Mr Kahlon: No.
Mr Haines: Did you contact the United Nations High Commissioner for Refugees in Australia?
Mr Kahlon: No.
Mr Haines: You lived in Sydney most of the time didn't you?
Mr Kahlon: Yes.
Mr Haines: Did you know that you could get free legal advice on refugee issues in Sydney?
Mr Kahlon: I don’t think so.
Mr Haines: Did you make enquiries to find out?
Mr Kahlon: No, I don't know."
Mr Haines: That is why we've been asking you these questions to test your credibility.
(Mrs Khambatta translates)
Mrs Khambatta: Whatever I’m telling you today is the truth.
Mr Haines: Unless you are able to explain why you told lies at the airport, it's difficult to make an assessment of your credibility.
(Mrs Khambatta translates)
Mr Haines: That is why we are asking for your explanation for telling the officer a number of things which are not true.
(Mrs Khambatta translates)
Mrs Khambatta: Whatever came to my mind at that time, I said it"
Well Sir, as always in these
cases, the Authority is able to consider the credibility of the Appellant,
and if there are discrepancies which may arise in the course of his evidence,
or he may give explanations to aspects which test the credibility of members
of the Authority it can be
indications of a lack of
credibility.
Mr Haines
We cannot, in the course of a hearing, give indications of credibility assessments which we don't reach until after the hearing is over.
Mr Hooker
Sir.
Mr Kahlon
...
Mr Haines
We have made no credibility finding either for your client or against him.
Mr Hooker
I accept that Sir, but in the greatest things which the Authority may take into account, it did not wish it to be taken by the Authority that it was of the view that it seemed like an unlikely explanation as to why he was released then I would need to ask more questions to clarify.
Mr Haines
Well, the position that we are in Mr Hooker, is if you believe there is a danger of us taking the view that it is an unlikely explanation, then you have to address it. We can't look at each cross examination point and say, 'don't worry about that don't worry about that, oh yes, you’d better worry about this’. No Court works that way and certainly as an informal tribunal, we certainly do not operate in that way either. We wait until the hearing is completely over then make our assessment of credibility, and our findings of fact are based on that assessment”
[34] In the end the requirements of natural justice must be tailored to the individual case. I am satisfied that in this case the plaintiff was left in no doubt over the credibility risk which he faced. Consequently no formal notice was necessary in that regard. It ought to have been obvious from the nature of proceedings of this kind. This was reinforced by the way in which the hearing was conducted. With or without notice, there was also little or nothing which the plaintiff could have done to dispel the impression he had made as a result of his demeanour and inconsistencies. As to collateral issues and inherently unlikely propositions in his prior written statement, he was given the opportunity for further comment during questioning by the Authority and then again in re-examination. There was neither surprise nor prejudice. This ground fails.
Failure to consider humanitarian grounds
[35] The plaintiff's other complaint is that in declining the refugee status application the Minister failed to fulfil the plaintiff's legitimate expectation that the Minister would go on to consider possible qualification for a residence permit on general humanitarian grounds and would give the plaintiff prior notice that that was what was proposed.
[36] It was not suggested that upon receiving a refugee status application the Minister had any statutory obligation to treat it as a simultaneous application for a residence permit. Section 35 of the Immigration Act provides merely that "on an application for a permit made in the prescribed manner the Minister may grant or refuse to grant a permit...". The section itself plainly contemplates that the duty to consider eligibility for a residence permit will be triggered only upon the lodging of a residence permit application. It is common ground that to this day no such application has ever been filed by or on behalf of this plaintiff.
[37] The plaintiff nevertheless argues that the situation was governed by a publicly known practice. The practice was said to be that in refusing refugee status the Minister would, th[r]ough the Service, go on to make a preliminary assessment as to eligibility on humanitarian grounds. If there were such grounds the applicant would be invited to file a formal residence application for the purposes of s 35. I accept that there was such a practice. An exhibited Immigration Service Policy Manual extract related to an earlier practice which had applied to joint advice from Ministers rather than the Refugee Status Section of the Immigration Service. However in her affidavit an immigration officer, Jackie Tims, accepted that at the times relevant to this case there was a practice along those lines, albeit not reduced to writing.
[38] There is no evidence that effect was not given to the practice when it came to this plaintiff. As to notification Ms Tims said this:
[40] From the bar Mr Monk challenged Ms Tims's description of practice at the time. He submitted that the humanitarian grounds referred to by Ms Tims (absence of close family member as a New Zealand citizen or resident) were more narrow than the humanitarian grounds which would have been considered on a conventional residence application at that time. But even if broader humanitarian grounds had been available on a conventional residence application, the present complaint is confined to practice in the treatment of refugee status applications. On that subject I must confine myself to the sworn evidence as to practice at the time. One could not take practice with respect to general residence applications and convert that into a legitimate expectation with respect to the peculiar situation of a refugee applicant who had not in fact filed a residence application.
[41] The other leg of this complaint was that the Minister had failed to give effect to a legitimate expectation on the plaintiff's part that he would be given prior notice of the Minister's intention to consider qualification for a residence permit thereby allowing opportunity for submissions thereon. There is an inherent contradiction in this argument. Legitimate expectation is based upon the assumption that a plaintiff knows and expects that a given approach will be taken and is then disappointed by the decision-maker's failure to pursue it. That is the very antithesis of the complaint that no notice was given. Either the plaintiff knew that this approach would be taken, in which case he could have made humanitarian submissions without notice calling for them, or he did not know in which case there was no legitimate expectation.
[42] The true situation was and has always been that the plaintiff could have applied for a residence application under s 35. I do not understand why he has not done so. I do not consider that the screening process carried out by the Immigration Service in the peculiar content of refugee applications gave rise to any legitimate expectation which was not in fact implemented. Certainly there is no evidence before me to suggest it. This ground fails also.
Discretion as to remedies
[43] Mr Monk objected to lack of notice with respect to an assumed "decision" declining residence promulgated in the affidavit of Ms Tims. Ms Tims says that on current criteria the plaintiff would not qualify. Mr Woolford agrees that the affidavit should not be regarded as any form of decision or other act of legal consequence. He relies upon that aspect of the affidavit to support the submission that even if the technical grounds for review had been made out the court should now exercise its discretion against a remedy. The notion is that the remedy would be pointless if the ultimate outcome would be the same.
[44] The courts will generally be slow to refuse a remedy merely on the basis that the decision-maker has predicted that the remit would be the same in any event: see in that regard Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA). However in the present case I would have been reluctant to grant a remedy for breach of legitimate expectation in view of the unexplained failure to apply for a residence permit either before or after the refugee application refusal.
Result
[45] The plaintiffs case for judicial review fails. There will be judgment for the defendants.
[46] Without opposition from the plaintiff, the plaintiff is ordered to pay to the defendants costs in the sum of $1,500 inclusive of GST.
Solicitors for the applicant:
Valant Hooker & Partners (Auckland)
Solicitors for the defendants:
Crown Solicitor (Auckland)