High Court Cases
High Court Auckland M 1224/93
15 & 16 December 1993;
9 February 1994
Smellie J
Judicial review - fairness
- whether adequate notice must be given of evidence and of earlier decision
to be relied upon by the RSAA
After upholding the constitutional validity of the Refugee Status Appeals Authority (RSAA) in Santokh Singh v Refugee Status Appeals Authority (High Court Auckland, M 1224/93, 20 October 1993) the High Court considered the complaint that the RSAA had breached the rules of fairness. Counsel representing the applicant before the RSAA was blind. Approximately ten to fifteen minutes before the hearing, at the direction of the RSAA, he had been handed a magazine article and an earlier decision of the RSAA which addressed the competence of militant groups in Punjab to track potential victims throughout India and the availability of an internal protection alternative. During the hearing the RSAA put to the applicant matters raised in the two documents and no request for an adjournment was made. Counsel later regretted this decision. On judicial review it was agreed that notice must be given when earlier findings of fact are to be relied upon. There was, however, disagreement on the adequacy of the notice given in this particular case.
Held:
1. Adequate notice had not been given because the full significance of earlier cases on the relocation issue were not apparent from the decision and more than ten to fifteen minutes was required to allow analysis and assessment of the information (see para [42]).
Application for Review granted. Rehearing ordered.
Other cases mentioned in Judgment
R v Milk Board [1944] VLR 186; Re Erebus Royal Commission; Air New Zealand Limited v Mahon [1983] NZLR 662 (PC)
Counsel
MA Roche for the applicant
N Pender for the
first respondent
V Shaw for the second
respondent
FINAL JUDGMENT OF SMELLIE J ON CAUSES OF ACTION 8, 9 AND 10
INTRODUCTION
[1] I gave judgment in this matter in respect of causes of action 1 to 7 inclusive on 22nd October last. In that judgment I upheld the constitutional validity of the First Respondent and defined the status of its decision.
[2] The procedural fairness and reasonableness of that decision now falls for consideration.
[3] When adjourning the matter at the conclusion of four days of hearing on 1st October last I issued a Conference Minute allowing the Applicant to file a third amended statement of claim and providing a timetable for the filing of further pleadings, including affidavits. My Minute also covered the possibility of the Applicant transcribing part of the record of what transpired at the hearing as recorded on a retained tape. It appears, however, that the Applicant decided against advancing material from that source in respect of these remaining three causes of action.
THE AMENDED PLEADINGS
[4] The third amended
statement of claim alleges in para 13 of the same that immediately prior
to the hearing of the appeal the Secretary of the First Respondent handed
to Counsel for the Applicant a copy of an article from the Economist published
on 22nd May 1993 and a copy of the Refugee Status Appeal Authority's (RSAA)
decision in case no 163192. Further, in paras 14 and 15 of the pleading
it is alleged that the Secretary did not state to Counsel that the Authority
would be relying on the article and the decision but that in fact during
the course of the hearing the Authority addressed questions to the Applicant
arising out of the matters referred to in the article and the decision.
[5] On that basis
the eighth cause of action pleads that not only was the Applicant not informed
of the use to be made of the article and decision but additionally he was
not provided with a fair opportunity to consider this additional material,
produce evidence in rebuttal, or prepare himself to answer questions in
relation to it. As a consequence the contention is that the Applicant was
deprived of a fair hearing.
[6] The ninth cause of action alleges that the Authority's decision was unreasonable and the tenth contends that the Authority wrongly concluded that the Plaintiff could "without infringement of his basic rights to civil, political and social economic human rights, live permanently in places in India other than his village in Punjab."
[7] The First Respondent filed a statement of defence to the third amended statement of claim. I interpolate to say that the First Respondent played no part in the earlier hearing relating to causes of action 1 to 7 inclusive but, as presaged in my judgment of 22nd October, consequent upon the third amended statement of claim the Authority itself carried the argument on this second part of the case. Ms Pender for the Minister substantially adopted Ms Shaw's submissions.
[8] The statement
of defence to the amended pleading admitted paras 13 and 14 and provided
a qualified admission in respect of para 15. So far as the three causes
of action that are to be dealt with in this judgment, namely 8, 9 and 10,
the statement of defence simply denied the relief claimed.
THE FIRST RESPONDENT'S
PRACTICE NOTE
[9] The circumstances under which the RSAA was set up are discussed in my earlier judgment in this matter. At the hearing before me in late September, early October 1993, there was produced as an exhibit Practice Note No 2 of 1991, issued by the First Respondent on 2nd July 1991. The opening paragraph refers to the setting up of the Tribunal and the following numbered paragraphs then deal with procedure:-
4. The hearing will be inquisitorial
rather than adversarial in nature so that the Authority will question Appellant
and witnesses. However the Authority recognises that on occasions the need
for cross-examination of a witness by an Appellant or by a representative
of the Immigration Service may arise and will consider requests from those
involved to conduct cross-examination.
5. In general the hearing
will take the following order:-
(b) A prepared and typed statement of the evidence of the Appellant and of each of his or her witnesses (if any) may be presented to the Authority and interpreted if necessary. Alternatively the Appellant may simply adopt his or her statement made to the Refugee Status Section.
(c) The Appellant and each witness will then be questioned by Members of the Authority.
(d) After questioning the Appellant's Counsel or Representative will be able to re-examine the Appellant or witness to clarify any matters arising from the Authority's questions.
(e) The Authority will then invite the Immigration Service to offer evidence and submissions and in particular may request the Service for information as to the state of affairs in the country of nationality of the Appellant.
(f) The Appellant or his or her Counsel will then have the opportunity to make a final submission on the case.
(g) The Authority will reserve
its decision and provide a written decision with reasons as soon as practicable.
[10] Pursuant to the leave granted the Applicant has caused to be filed two further affidavits. One by Mr Ashok Kumar Sharma, Counsel appearing for the Applicant before the First Respondent, and the other by the Applicant's brother, Balihar Singh, who is a permanent resident of New Zealand.
[11] Mr Sharma is a Barrister who practises in South Auckland in both the criminal and immigration fields. He estimates 10% of his practice involves immigration cases. He appeared for the Applicant on 6th July 1993 when his appeal was heard and that was perhaps the tenth time that he had appeared before the RSAA. He had actually lodged the Appellant's appeal in June of 1992 and subsequently received a full copy of the Department's file pursuant to the provision of the Practice Note. He was also advised of the necessity of providing in advance in writing the statement of the Appellant.
[12] The hearing was actually adjourned from 15th June to 6th July and then from 2 pm on the day of hearing to 3 pm. Mr Sharma attended with his client, the Applicant's brother, and also Mr Sharma's wife. He says that they arrived at approximately 2.50 pm. He then explains in his affidavit in paras 12, 13 and 14, what happened after his arrival and before the commencement of the hearing. This evidence was not challenged or contradicted. The paras read as follows:-
13. I am blind and cannot read. My wife, the Applicant, his brother and I, were standing outside the door of the room where the hearing was to take place in five or ten minutes. My wife started to read the articles to me in English. First she read the article from the Economist to me. I then translated the article to the Applicant in Hindi line by line. The Applicant speaks very little Hindi but as I do not speak Punjabi this was the best I could do. I believe the Applicant was able to understand the gist of the article.
14. My wife then started to read me the decision. She read the first half of the decision to me and then because we were almost out of time she read the concluding pages. I did not have time to translate the decision to the Applicant but I explained to him in Hindi what the decision was about."
[14] In the Memorandum the Chairperson records his function on the day and names the other Member of the Authority who sat with him. He then provides the following information in paras 2 and 3 of the document:-
3. An article from a recent issue of the "Economist" was also given to Mr Sharma. A copy of the article is annexed. I recall that I had only recently seen the article myself. For this reason I also arranged for it to be given to Mr Sharma because it is the practice of the Authority to make available to practitioners prior to a hearing any newly received country of origin information. Such information could be in the form of Government reports, such as the US State Department Country Reports, reports from a non-Governmental organisation such as Amnesty and other human rights groups, as well as a wide range of newspaper and magazine articles. Again, the Secretariat provides copies of country and origin information held by the Authority to practitioners on request." (emphasis added)
[15] Decision 163/92
was provided to me along with the article by consent as a hand up from
the Solicitor-General at the earlier hearing.
[16] The decision
concerns another Sikh who left the Punjab because of alleged harassment
by separatists and the police, relocated in Delhi, and then left there
because the separatists had tracked him down and he once again found himself
having to submit to police interrogation. The Authority found that he had
a well founded fear of persecution if he remained in the Punjab or New
Delhi, but it reached the conclusion that he could relocate elsewhere in
India without difficulty. At page 6 of the decision the Authority then
addressed more generally the issue of relocation as follows:-
The Authority has recently received a copy of a report "India; Sikhs outside Punjab" compiled by the Research Directorate of the Immigration and Refugee Board in Ottawa, Canada, dated December 1990. This report had been furnished to Counsel for the Appellant prior to the hearing. The Canadian report does not specifically deal with the ability of a terrorist to track down potential victims wherever they may go in India, but does deal generally with the condition of Sikhs outside the Punjab.
It is clear from the report that the activities of militants have spread outside the borders of the Punjab States, certainly to neighbouring states and on occasions to other cities. There have been sporadic incidents of violence in cities as far away as Bombay and Calcutta involving relatively small numbers of Sikhs. Contrary to the Appellant's belief these cities do have substantial Sikh communities. The estimates for the Sikh population in Bombay, for example, vary between 100,000 and 200,000. It does appear that in respect of prominent Government officials and politicians whose whereabouts are normally easy to trace, militants have been able to target them on occasions. But for persons in the Appellant's situation there does not appear to have been fresh information since our decision In Re S.J. (supra) which alters our view that the militant groups lack the competence to trace all their potential victims or recruits throughout India."
To our knowledge, no appeal based on fear of persecution by terrorists operating in the Punjab or the neighbouring states has been successful on the facts we have heard so far. This is because we have found that in a large and populous country such as India, both Sikhs and Hindus are able to access effective protection either in different parts of the Punjab or in different parts of India.
As at 30 June 1992, of all cases heard by the Authority involving appellants from India, the only successful cases (11.32%) have been those involving state agents of persecution. Those cases involving non-state agents of persecution (66%) have had a success rate to date of zero per cent.
We emphasise that the foregoing represents a general summary only of the jurisprudence to date. If conditions in India or the Punjab change, or new evidence bearing on the issues comes to hand, we will, of course, always be prepared to re-evaluate the situation. Furthermore, no case is ever identical on its facts. We recognise that as conditions in the country of origin change, so too must the assessment of the particular case on appeal. We recently considered this very issue in Refugee Appeal No 90/92 Re RRF (11 June 1992) 7-9, a case involving a Sri Lankan national of the Tamil race who feared persecution at the hands of the JVP (a non-state agent of persecution). In dismissing that appeal we referred to new evidence concerning the strength of the JVP. That evidence established that the JVP had become far weaker than when we allowed an appeal ten months earlier in Refugee Appeal No 9/91 Re AMR (27 August 1991)."
[19] The article goes on to state that as a result things have improved dramatically in the Punjab with people again going out at night and enjoying themselves, land values rising and high percentage turnouts for municipal and village elections whereas previously the terrorists had inhibited electors from casting their votes.
THE USE MADE OF THE DECISION AND ARTICLE IN THE APPELLANT'S CASE
[20] The decision of the Authority, handed down on 23rd July 1993, records first the Appellant's case which is not so dissimilar from the situation of the Appellant in decision 163/92. Mr Singh had belonged to a religious organisation in the Punjab from 1969 to 1980. Its objectives were to promote Sikhdom. The Applicant was away from the Punjab in the Lebanon up to 1988 and in the mean time the organisation he had belonged to had, in his view, become tainted with terrorism. At least that was how the Indian Government tended to view it.
[21] Shortly after the Applicant returned to his family farm in the Punjab he was visited by armed men demanding food. A week or two later another group returned which included one man from the previous group. They demanded that he rejoin the Shiromani group. He said that he would, although in fact he did not want to, and agreed to start with them in two or three weeks time. He did not, however. Instead he left the farm property and has never returned to it. He has left a wife and children behind in the Punjab. He entered New Zealand in September of 1989 on a visitors permit and remained after it had expired. He was first located in January of 1991 by the Immigration Department and interviewed, and from there the matter has moved rather slowly. However a removal warrant was issued in March of 1991 and it was at that stage that the Appellant first applied for refugee status and it took from then until 6th July 1993 for that application to be processed through the Immigration Department and the appeal to be heard before the Appeal Authority.
[22] The decision then went on to identify the issues to be addressed and then to assess the Applicant's case as an Appellant. And at page 10 of its decision the Authority said:-
The most up to date statement of the Authority's findings in relation to relocation in other parts of India is contained in Refugee Appeal no 163/92 Re F.S. (28 April 1993). A copy of this decision and also a copy of the recent article from the "Economist" magazine published 22nd May 1993, entitled "India - Peace at last in the Punjab" was also put to the Appellant. This article had been noted by the Authority and states that a situation of relative peace has returned to the Punjab in 1993."
[24] The Authority's conclusion is summarised as follows on pages 11 and 12 of the decision:-
1. The Authority has serious doubts as to the credibility of this appellant but is prepared to give the benefit of the doubt to the appellant.
2. The appellant does hold a bona fide subjective fear of returning to India.
3. The harm feared by him is of sufficient gravity to constitute persecution.
4. That harm is for a Convention reason, namely the appellant's imputed political beliefs.
5. The fear is well-founded, only in relation to the precincts of his home village. Outside of these precincts the appellant does not have a well-founded fear and there is no real chance that the harm feared by him will occur were he to relocate.
6. It cannot be assumed that the authorities in India will fail in their duty to protect the appellant from the harm feared.
7. As the appellant can access effective protection in some part of his country of origin, and it is not unreasonable for him to do so, he cannot be said to be at risk of persecution.
For these reasons we find the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is declined. The appeal is dismissed."
16. During the hearing the Authority put matters to the Applicant that had been raised in the two documents. I do not believe the Applicant was adequately prepared to have these matters put to him. Had I received prior notice that the Authority intended to rely on these documents I would have gathered evidence in rebuttal of the documents.
17. The Economist article alleged that relative peace had returned to the Punjab in 1993. I believe that there were in existence articles and reports which conflict with the viewpoint expressed in the Economist article. Through my discussions with members of the Punjabi Sikh community based in Auckland I am aware that a large number of Punjabi Sikhs do not believe that peace has in fact returned to the Punjab. Had I had the chance I would have gathered evidence in the form of conflicting articles and affidavits to counter the Economist article which I do not believe accurately represents the current situation in the Punjab.
18. I did not have the chance to adequately prepare my client's case on this economist article and I believe the Applicant's case was severely prejudiced as a result.
19. I refer to the Authority's decision referred to as exhibit C in the affidavit of Mr Paul Coates. I refer in particular to page 10 where the Authority relies on both documents. On the decision, as a basis for the Authority's view on relocation of Sikhs in other parts of India and on the "Economics" article as evidence that relative peace has returned to the Punjab in 1993.
20. I believe that the handing of the documents to me ten minutes prior to the hearing and the subsequent reliance on the documents by the Authority during the hearing and in their decision constituted procedural unfairness.
21. The Applicant is not familiar with court room situations and his natural anxiousness was exacerbated by what happened. The Applicant was very nervous before the hearing because he understood that if his appeal was unsuccessful he would be denied refugee status. I believe that having regard to his state of mind before the hearing it was difficult for him to understand the information he was presented with or to rebut it. It was difficult for him to concentrate in the circumstances."
[26] At the close of submissions on 17th December last I gave leave to Counsel to file further written submissions on an aspect of the case which identified in a Minute issued at the time as follows:-
And if so, was it obliged to give notice of its intention to do so?"
2 ONE case directly
on point is R v Secretary of State for the Home Department ex parte
Roj Singh [1992] Imm AR 607 which concerns a decision by the Secretary
of State to refuse asylum to a Sikh from the Punjab. On the applicant's
behalf it was argued that he had been deprived of a fair hearing before
the Secretary of State in that he had not been given all the information
upon which the Secretary of State had relied in forming an opinion as to
the conditions in the country. Pill J, at page 610, stated:-
The issue, in counsel's submission, is whether the manner in which the decision 163/92 was given to counsel could be said to be proper notice to afford the fair hearing.
It is counsel's submission that the manner in which the material was provided to counsel at the hearing, and the content of the material resulted in the failure to provide a fair opportunity to a proper hearing."
[35] Later in the article when summarising his conclusions, at page 84, the author says:-
NOTICE INADEQUATE: NO FAIR OPPORTUNITY TO REBUT
[38] I deal first with a submission by Ms Shaw to the effect that Mr Sharma, as Counsel who had previously appeared before the Authority, ought to have known of the earlier decisions and, in particular, Appeal No 18/92, Re J.S. (5 August 1992). I am unable to accept that submission. As the Chairperson of the Tribunal hearing Mr Singh's appeal acknowledged towards the end of para 2 of his memorandum:-
[40] It is clear beyond argument in my judgment also that providing copies of the April 93 decision and the article from the Economist ten to fifteen minutes before the hearing, could not amount to adequate notice. First because the full significance of the previous decisions on relocation is not apparent from decision 163/92. It is only when the earlier fuller guideline decision 18/92 is analysed, that the enormity of the task confronting the Appellant if he seeks to dissuade the Authority from its earlier conclusions, becomes apparent. Secondly, all three Counsel appearing before me advised that it took them approximately ten minutes to read both the decision and the article. A careful reading of both items took me rather longer. Be that as it may, however, and leaving aside for the moment Mr Sharma's blindness and the Appellant's limited grasp of English, a mere reading of the documents would not be enough. The decision in particular would have to be analysed and its significance in terms of the way the case was to be presented, assessed.
[41] Mr Sharma says he was given the documents ten minutes before the hearing. The Chairperson of the Authority on the day says that he asked the Secretary to provide the information to Counsel "some fifteen minutes prior to the hearing". Either way the time for consideration was grossly inadequate, and although Mr Sharma concedes that he did not apply for an adjournment, I should have thought in the circumstances, when the Authority became aware upon him entering his appearance, (if the fact was not already known to it) that he was blind, some inquiry should have been made as to whether he had had adequate time to consider and discuss with his client the information which out of "fairness" had been provided to him before the hearing.
[42] I am quite satisfied that the notice was inadequate and that no fair opportunity was accorded the Applicant or his advisers to deal with the material. In G.D.S. Taylor, Judicial Review, para 13.33, under the heading "Adjournment", the author states:-
[44] The First Respondent is directed to reconsider Mr Singh's appeal after he has been given adequate notice of all material that is to be relied upon by the Authority in reaching its decision. It would be appropriate if on this further hearing, the composition of the Authority is different from that which dealt with the matter in July of 1993.
THE REMAINING CAUSES OF ACTION AND COSTS
[45] In view of my conclusion that the decision must be set aside for failure to comply with the rules of natural justice it is not necessary for me to consider further the allegations of unreasonableness and incorrect factual conclusion alleged in the other two causes of action. I indicate, however, that if they had been the only bases upon which the decision was challenged I doubt that they would have been sufficient to justify an order for review.
[46] So far as costs are concerned, although the application has succeeded, it failed in respect of the challenge to the constitutional legitimacy of the RSAA which, as the record shows, took three days to argue and was the rather more demanding aspect of the matter. In the circumstances there will be no order for costs either way.
Solicitors for the applicant:
Vallant Hooker & Partners (Auckland)
Solicitors for the first
respondent: Crown Law Office (Wellington)
Solicitors for the second
respondent: Crown Solicitor (Auckland)