High Court Cases 

High Court Auckland M1162/97
22 August 1997; 22 August 1997
Morris J (oral judgment)

Judicial review - Interim order - Removal order - Application for interim order pending determination of substantive claim for judicial review against the decisions of the Refugee Status Branch and the Refugee Status Appeals Authority - Judicature Amendment Act 1972, s 8(1).

In 1989 the plaintiff, an Indian national of the Sikh faith, arrived in New Zealand. He lodged an application for refugee status in 1991. When his application was declined by the Refugee Status Branch of the New Zealand Immigration Service, he lodged an appeal with the Refugee Status Appeals Authority (RSAA). In 1995 the appeal was dismissed. The RSAA held that the appellant's fear of police was localized and that he could relocate to another part of the Punjab. In 1996 the appellant filed a second application for refugee status, and when this was declined by the Refugee Status Branch, he appealed for the second time to the RSAA. In 1997 the appeal was dismissed, the RSAA holding that the appellant's account was not credible. The Immigration Service sought to remove the appellant from New Zealand. The appellant applied for an interim order under s 8(1) of the Judicature Amendment Act 1972 preventing his removal from New Zealand pending the determination of his judicial review proceedings. The appellant submitted that the Court could not decide whether there was any merit to the challenge to the RSAA decision until it had before it the complete transcript of the evidence given before the RSAA and all the documentary and other evidence produced at the RSAA hearing.

Held:

1    The Court did have the power under s 8(1) of the Judicature Amendment Act 1972 to make the interim order sought. However before that power was exercised, the applicant had to satisfy the Court that there was a real possibility that his substantive claim would succeed. It is not sufficient for an applicant to simply make broad allegations with no evidence or material to back them up. An applicant must be able to point to and place before the Court some matter of substance from which the Court can assess the initial worth of his claim for judicial review. An allegation, without more, that the defendant has acted improperly is not sufficient (see para [9]).

Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) and Esekielu v Attorney-General (1993) 6 PRNZ 309 applied.

2    There was nothing in the decision of the RSAA to suggest that it had erred in any way whatsoever. None of the material put before the Court raised any basis to conclude that the plaintiff had any possibility of succeeding in his substantive proceedings (see para [15]).

Application dismissed.

Other cases mentioned in judgment

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J)
Kumar v Associate Minister of Immigration [1991] NZAR 555 (Anderson J)

Counsel
K P Khambatta for the plaintiff
M A Woolford for the defendants

MORRIS J [1] The plaintiff has been arrested and is about to be removed from this country pursuant to a removal order issued under the provisions of the Immigration Act 1987. He seeks an interim injunction restraining the authorities from acting upon the order and removing him from this country. The application is brought relying on the provisions of s 8 of the Adjudicature Amendment Act.

Circumstances

[2] The plaintiff is an Indian citizen of the Sikh faith. He arrived in this country on 26 June 1989. He was given or granted a visitor's permit. He is 34 years of age. Due to fears he had for his safety should he return to India, he applied to the defendant, the Refugee Status Branch of the NZ Immigration Service, (hereinafter referred to as "the Service") for refugee status on 22 May 1991. Subsequent to the lodging of his application he was interviewed by a member of the Service on 17 June 1993. His application was subsequently declined on 29 July that year. He appealed this decision to the second defendant, the Refugee Status Appeals Authority (hereinafter referred to as "the Appeals Authority"). His appeal was heard on 25 July 1995. The Authority reserved its judgment. In its decision on 21 December 1995, it dismissed the appeal. In doing so, having regard to his claim namely his fear of being prosecuted or ill-treated by the local police force, the Authority described the police interest in him as "of low level" and it held the problem was “localised" and the plaintiff could avoid it by living in another part of the Punjab.

[3] The plaintiff did not return to India. He filed a second application for refugee status on 11 February 1996, again with the Service. This application was denied, essentially on the basis the application was not based on different grounds from his original application. Again the plaintiff appealed to the Authority. This appeal was heard on 17 December 1996. Again the Authority took time to consider the matter. It delivered its judgment on 22 May this year dismissing the appeal. It did so - and I am here quoting from the summary supplied by the plaintiff's counsel - stating: "the plaintiff was not a credible witness and it rejected his evidence of renewed police interest in him and said there was no change of circumstances". In plain language it did not believe what the plaintiff told them.

[4] The enforcement order which it is now sought to injunct was subsequently obtained by the third defendant, the Branch Manager of NZ Immigration Services (hereinafter called "NZ Immigration Service") whose task it is to enforce the removal from New Zealand of such persons as the plaintiff to whom permits have not been issued.

[5] The plaintiff on 6 August issued proceedings in this Court seeking a review of practically every decision to which I have made reference and a review also of the actions of the NZ Immigration Service. The grounds detailed in the statement of claim are numerous and it is fair to say virtually every conceivable challenge envisaged by the textbooks on Administrative Law are raised by the proceedings.

[6] On 7 August the plaintiff issued an ex parte notice seeking an interim injunction restraining the authorities from acting on the enforcement order pending hearing of his substantive claim. Giles J granted such an injunction pending hearing of the inter-party application for grant of the interim injunction. Before me Mr Khambatta sought an interim injunction on the basis if the plaintiff is deported before the judicial review is heard and determined, his legal rights to judicial review will be of no avail. He sought only to mount a challenge to the decision of the Appeals Authority given on 22 May 1997 and he advised the challenge would be there was no basis before the Appeals Authority for the findings it made; they were wrong and the Appeals Authority should have concluded the plaintiff was a credible witness. It would, of course, follow the Appeals Authority should have allowed the plaintiff's appeal and permitted him to remain in New Zealand.

[7] Mr Khambatta sought the interim injunction on the basis it was not possible for me to decide whether there was merit in the substantive claim until I had before me the complete transcript of the evidence given before the Appeals Authority and the documentation and/or other evidence produced at the hearing before it. In support counsel cited Khalon v Attorney-General (1966) 1 NZLR 458 and Kumar v Associate Minister of Immigration (1991) NZAR 555. He referred me to the principle that in refugee cases, only the highest standards of fairness will suffice since questions of life, personal safety and liberty are at stake.

[8] The application is opposed by the third defendant and indeed the first and second defendants. I do not doubt I have power to make the order sought under s 8(1) of the Judicature Amendment Act. The section enables this Court at any time before the final determination of an application for review and on the application of any party to make an interim order of the kind sought here by the plaintiff if, in the Courts opinion it is necessary to do so for the purpose of preserving the position of the plaintiff. The discretion is a broad one: Carlton United Breweries Ltd v Minister of Customs (1988) 1 NZLR 423.

[9] But before I can exercise the power under s 8, a party in the position of the applicant must place before me some evidence from which I can conclude there is a real possibility his challenge/claim will succeed: Esekielu v Attorney-General (1993) 6 PRNZ 309. It is not sufficient for an applicant to simply make broad allegations with no evidence or material to back them up. An applicant must be able to point to and place before the Court some matter of substance from which the Court can assess the initial worth of his claim in the case for review as set out in the substantive proceedings file. An allegation, without more, a party such as the defendants, have acted improperly is not sufficient.

[10] The claims against the second defendant are in the present case specified in paragraphs 34-43 of the statement of claim. They are as follows:

"34. THAT the second defendant in arriving at its decision committed an error on the face of the record.

35. THAT the second defendant's decision was so unreasonable that no reasonable tribunal properly deciding its mind to the matters in issue could have arrived at.

36. THAT the decision of the second defendant was invalid null and void.

37. THE plaintiff repeats paragraphs 1 to 36 hereof.

38. THAT albeit the second defendant's membership constituency on 2 December 1996 and 12 December 1996 when the appeal was respectively heard and determined by the second defendant was different from the Appeal Authority which delivered a decision on 14 December 1995 for the purposes of these proceedings (save as otherwise stated herein to affect the decision making process) the Appeal Authority sitting on 2 and 12 December 1996 shall be referred to as the second defendant.

39. ON 7 August 1996 the plaintiff lodged an appeal with the second defendant against the decision of the first defendant dated the 19 July 1996.

40. THAT on 12 December 1996 the second defendant dismissed the plaintiff's appeal based on the issue of credibility of the plaintiff.

41. THAT the second defendant failed to give due regard and placed undue weight upon the documentary evidence produced by the plaintiff at the hearing of the appeal.

42. THAT the plaintiff was not given an opportunity to properly or adequately address the matters in issue in the appeal and thereby there was a breach of the principles of natural justice and/or fairness.

43.THAT the second defendant in its decision making process acted outside its jurisdiction and further committed an error on the face of the record."

"THAT the second defendant failed to consider various important matters raised by me and which I would be in a position to refer to on receipt of the transcripts from the second defendant".

"THAT the Authority in its decision of 22 May 1997 wrongly concluded my claims were invented and that I was not a truthful witness and was again wrong in concluding that the police had no interest in me since my first appeal was declined. This to me was an easy way out for the second defendant to allow it to use these assumptions (unsupported by the evidence) to reach the desired findings that there had been no change in circumstances or that I was not a refugee".

"THAT the second defendant in both its decisions wrongly and unfairly assumed that I somewhat or somehow whether directly or indirectly had been involved in the issuance of the arrest warrants (apart from the fact that I was the subject of these warrants)".

[15] Despite this lack of evidence, I have considered whether there is any merit in the allegations. I have considered the judgment of the second defendant. It is a very careful and detailed judgment. There is nothing in it which suggests the Authority has erred in any way whatsoever. There is nothing in it to suggest it has wrongly taken into account matters it should not have considered or overlooked matters which it was bound to consider. To the contrary. It has, in my view, acted impeccably.

[16] Mr Woolford has submitted it is very easy for an applicant to make allegations of this nature unsupported by any evidence in the hope of obtaining a stay of execution of a warrant such as is involved here. It is very easy, it is submitted, to make this submission in the hope something will turn up which may possibly enable him to base an action or support the pleadings he has issued. There is considerable weight, in my view, in this submission and I have borne it in mind when considering the matters to which I have just referred.

[17] A perusal of the papers before me indicates the plaintiff has had the benefit of the very full process available under the Immigration Act and in each case, on the face of it, appears to have received every consideration. In addition to the affidavit of the plaintiff, his counsel has asked me to consider the affidavit of one Gian Singh. Despite Mr Woolford's objection, I have thought it proper in the circumstances of this case to consider the affidavit. Having done so it does not assist the plaintiff and does not raise any matter which can assist him in the claims he levels in the substantive proceedings. The affidavit talks of the police and its actions in India but of course in its judgment, the second defendant accepted some problems faced the plaintiff in this regard.

[18] In conclusion, the material before me raises no basis upon which I can conclude the plaintiff has any possibility of success in his substantive proceedings and accordingly the application is refused. I make no order as to costs.
 

Solicitors for the plaintiff: Patel Law (Hamilton)
Solicitors for the defendants: Crown Solicitor (Auckland)