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Santokh Singh v Refugee Status Appeals Authority (No. 2)

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:-

EVENTS PRIOR TO THE HEARING OF THE APPEAL

[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] The Chairperson of the Authority hearing the Applicant's appeal on 6th July 1993 filed a memorandum with the Court. I interpolate to say that no objection was taken by the Applicant to the Memorandum being filed, rather than the information therein being conveyed by way of affidavit. I have therefore received it but my decision to do so does not establish a precedent. Prima facie I should have thought that such information should be placed before the Court by way of affidavit but that is a matter which can be addressed on some other occasion when a decision on the point is required.

[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:-

THE SUBSTANCE OF DECISION 163/92 AND THE ARTICLE

[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:-

[17] The reference in the above paragraphs to decision no 18/92 Re S.J. (5 August 1992) while recording that it reviews the earlier cases and reaches certain conclusions, does not alert the reader to the fact that the decision is so emphatic on the issue of relocation that an onus is effectively placed upon subsequent appellants to bring fresh evidence or fail on that point. The decision occupies 18 pages. The result of the appeal is recorded at page 9. In the other nine pages the Authority sets out to "summarise the jurisdiction we have developed in this area". At pages 17 and 18 the final four paragraphs of the decision read as follows:- [18] So far as the Economist article is concerned, it is said to have been provided by the Economist's New Delhi correspondent, although the name and qualifications of that correspondent are not disclosed. The article appeared in the May 22nd 1993 issue of the Economist. The thrust of the article is that, whereas a year earlier the terrorists were in control in the Punjab in the towns after dark and in the countryside at all times, that position had changed. In addition the article contended that whereas previously the police were demoralised, now their numbers have been approximately doubled and they have been provided with firearms and transport and other facilities that have enabled them to aggressively combat the terrorists. In addition it is recorded that the Indian army had sealed the border with Pakistan, thereby making it harder for terrorists to buy weapons and seek sanctuary.

[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:-

[23] The judgment then goes on to make certain quotes from the article and concludes by declining to accept Mr Singh's claim that protection is absent in other parts of the Punjab or in other States of India. The Authority then concluded that whilst the Applicant had a bona fide subjective fear which was well founded in respect of his home village, there was no reason why he could not live happily and safely by relocating elsewhere in other parts of the Punjab or in the other States of India.

[24] The Authority's conclusion is summarised as follows on pages 11 and 12 of the decision:-

[25] Of the hearing Mr Sharma says (and again this evidence was not challenged or contradicted) in paras 15 to 21 inclusive of his affidavit:- THE RSAA'S RELIANCE UPON THE EARLIER DECISIONS AND NOTICE IN THAT REGARD

[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:-

[27] Miss Shaw's submissions opened with the following two paragraphs:- [28] Later in her submissions Ms Shaw referred to Flick, Natural Justice (2nd ed) (1984). In chapter 5 of this work the author discusses "The Use of Extra-Record Facts and Official Notice". The 2nd paragraph reads:- [29] Later in the same chapter at page 105, under the heading "Notice and Rebuttal" the author states:- [30] Having discussed the above proposition and other case law, Ms Shaw, in para 13(d) of her submissions, when summarising the principles which emerge, said:- [31] Counsel's final submission, however, in para 17, was as follows:- [32] Ms Roche for the Applicant submitted on the basis of her researches at para 2(c):- [33] Ms Roche submitted that an article by Prof. J A Smillie "The Problem of "Official Notice": Reliance by Administrative Tribunals on the Personal Knowledge of their Members" [1975] Public Law 64 provides the best exposition of the law in this area. The author commences his article by observing that this issue has received but scant attention in Commonwealth jurisdictions to date. At page 67, having recognised the undesirability of imposing evidentiary restrictions on administrative tribunals, he said:- [34] The text then proceeds to observe that this "obvious ... requirement of prior disclosure is a fundamental procedural safeguard against arbitrary decision-making ...".

[35] Later in the article when summarising his conclusions, at page 84, the author says:-

[36] In further elaboration of her submission that no fair opportunity was given to rebut the predetermined view of the Authority on the question of relocation Ms Roche quoted from the judgment of Lowe J in R v Milk Board [1944] VLR 186 at page 188:- [37] As can be seen from the above brief summary of the submissions made on either side, Counsel were in agreement on the necessity to give notice when earlier findings of fact are to be relied upon, but they disagreed on the adequacy of the notice in this case and the way in which the earlier conclusions on relocation were applied to it.

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:-

[39] I interpolate to say that I was informed during the course of the hearing that as a result of this case arrangements have now been made for the Authority's decisions to be available for research at the Auckland District Law Society Library in the High Court. I consider it would have been clearly unfair and unreasonable in the circumstances to have expected Mr Sharma to be aware of the August 1992 decision. And the Chairperson of the Authority recognised that fairness required that at least he should have the later April 1993 decision brought to his attention. It would have been so easy for the Authority to have arranged for Mr Sharma to receive that material, (together with an appropriately worded covering memorandum), at the time that he received the complete copy of the file of the Refugee Status Section of the New Zealand Immigration Service. Had that been done Counsel would have had fair notice that the onus was on the Appellant to persuade the Authority to depart from its earlier conclusions on relocation.

[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:-

[43] My conclusion is that in all the circumstances the rules of natural justice were not observed on this occasion. And that as a consequence the Appeal Authority's decision must be quashed. I wish to add, however, as was pointed out by the Privy Council in Re Erebus Royal Commission [1983] NZLR 662, that when a decision is overturned because of non-compliance with the rules of natural justice, those who made it should not be regarded as singled out for criticism. (see page 685 between lines 33 and 50).

[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)