High Court Cases
High Court Auckland M1459/97
8 October 1997; 8 October
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 Minister of Immigration and the Refugee Status Appeals Authority - Judicature Amendment Act 1972, s 8(1) - Immigration Act 1987, s 63(3).
In 1989 the applicant, an Indian national of the Sikh faith, arrived in New Zealand. He breached the terms of his permit and was served with a removal order in February 1990. In April 1990 he applied for refugee status, claiming a fear of persecution at the hands of a non-state agent of persecution. He also appealed against the removal order to the Minister of Immigration, an appeal which was declined in 1991. In 1992 the application for refugee status was declined by the Refugee Status Service. The applicant appealed to the Refugee Status Appeals Authority (RSAA). In 1993 the appeal was dismissed, the RSAA holding that there was no real chance of persecution. The applicant 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 against the Minister of Immigration and the RSAA. It was submitted that the Minister had misdirected himself as to the statutory criteria under the Immigration Act 1987, s 63(3) and that the RSAA had incorrectly determined certain facts.
Held:
1 The Minister had to reach his decision under the Immigration Act 1987, s 63(3) taking into account the prescribed statutory criteria referred to in the section. However, on the facts, there was nothing to indicate that the Minister had acted improperly or had failed to consider the prescribed criteria (see paras [18] & [19]).
Madlener v Lester & Birch (High Court, Christchurch, CP263/91, 31 July 1996, Tipping J) discussed.
2 There was nothing in the decision of the RSAA to suggest it could have reached any other conclusion than the one it did, and there was nothing before the Court to justify a contrary finding. A supporting affidavit put to the Court did not alter this conclusion. Taking the affidavit at face value, it did not contain material which would justify the Court concluding or even considering it probable that there was a real likelihood that the RSAA would have reached or would reach a different conclusion if the evidence was put before it, i.e., it would not conclude, even with this material before it, there was a real prospect of the applicant being persecuted if he returned to India (see paras [23] & [25]).
3 Before the discretion under the Judicature Amendment Act 1972, s 8(1) can be exercised, the applicant must place before the Court some evidence showing that there is a real possibility that the claim will succeed. It is not sufficient for an applicant simply to make allegations with no substantive evidence or proper material to back them up. The applicant was unable to provide the Court with any basis for concluding that he had a real possibility of success in his judicial review proceedings (see paras [29] & [30]).
Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA); Esekielu v Attorney-General (1993) 6 PRNZ 309 and Singh v Refugee Status Branch (High Court, Auckland, M715/97, 25 August 1997) applied.
Application dismissed.
Other cases mentioned in judgment:
Tay v Attorney-General [1992] 2 NZLR 693
Gholami v Minister of Immigration [1994] NZAR 257
Counsel
R J Hooker for the
applicant
M Woolford for the
respondents
MORRIS J [1] The applicant 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 order from this Court prohibiting further steps being taken to have him removed from New Zealand pending a hearing by this Court by way of review of two decisions involved in the procedure leading up to his present incarceration.
Circumstances
[2] The applicant is an Indian citizen of the Sikh faith. He is 35 years of age. He is single with no dependants. In 1984 he joined the All India Sikh Student Federation. He sought to resign from this Federation in mid 1988. The Federation did not take kindly to this proposed course of action on the part of the applicant. Threats of violence were made against him. Members of his family were visited by and pestered by members of the Federation anxious to know the applicant's whereabouts. Fearing for his safety the applicant left his father's home which I understand is in the village of Bahua, Mehli, Jalandhar, Punjab, India. Eventually, as things got no better for him and his fears increased, he left India for New Zealand arriving in this country on 29 May 1989. He was granted a visitor's permit which after an extension, allowed him to remain in New Zealand until 20 March 1990. He broke a condition of this permit by working. The Immigration Department discovered this fact. It revoked his permit effective from 14 February 1990. The applicant did not leave this country before 14 February 1990. The Department accordingly made application for a removal warrant. The applicant was served with the warrant in February 1990. On 20 April 1990 the applicant lodged an appeal for refugee status with the Ministry of External Relations and Trade. On 3 July 1990 a removal order was made by consent in the Papakura District Court on an undertaking by the Immigration Service not to remove the applicant until his application for refugee status had been determined.
[3] The applicant lodged an appeal to the Ministry of Immigration (Second Respondent) against the grant of the removal order made on 3 July 1990. The appeal was brought pursuant to provisions of the Immigration Act on humanitarian grounds. On 22 February 1991, the Minister of Immigration declined the appeal against the removal order (this decision is challenged by the applicant in these and in his substantive proceedings).
[4] On 4 September 1991 the applicant was interviewed by an immigration officer from the Refugee Status section of the Immigration Department. On 26 May 1992, the applicant's application for refugee status was declined by an immigration officer of the same division of that Department. The applicant appealed to the first respondent from such determination. The appeal was heard on 11 May 1993. The first respondent reserved its decision. On 5 November 1993 its decision was delivered declining the applicant's appeal on the basis there was no real chance of persecution being visited upon the applicant should he return to India.
[5] The applicant failed to leave New Zealand following receipt of the first respondent's decision. The Department of Immigration agreed no action to remove the applicant would be taken for a period of one month from, I understand, 10 January 1995 to enable review proceedings to be taken by the appellant. No proceedings were filed. I understand the Department, on learning recently the applicant was serving a prison sentence and due for release on 1 October this year, continued with removal proceedings which have resulted in the present application. The applicant is at present in custody.
[6] In his substantive proceedings, the applicant seeks a review of:
1. The decision of the Minister given on 22 February 1991 dismissing the applicant's appeal against the removal order made in the Papakura District Court on 3 July 1990; and
2. The decision of the first respondent given on 5 November 1993.
[7] The applicant has sworn an affidavit in support of his application in which he details his history prior to coming to New Zealand and subsequent to his arrival. The facts to which I have earlier referred have been, in the main, taken from matters deposed to by him. Annexed to his affidavit are copies of all the relevant correspondence and papers to assist the hearing of this application. In support of his case an affidavit from one Durdawar Singh sworn on 25 September this year has also been filed.
[8] The respondents oppose the application. No affidavits have been filed on their behalf.
Review of the Minister's Decision
[9] For the applicant it is submitted the evidence establishes the Minister, in reaching his decision, failed to determine the applicant's appeal in accordance with the statutory criteria detailed in s 63(3) of the Immigration Act 1987. The section provided:
(a) Because of exceptional
circumstances of a humanitarian nature, it would be unjust or unduly harsh
for the appellant to be removed from New Zealand, or for the removal warrant
to remain in force for the full period of 5 years following the appellant's
removal from New Zealand; and
(b) It would not in all
the circumstances be contrary to the public interest to allow the appellant
to remain in New Zealand or (as the case may require) to reduce the period
during which the removal warrant would otherwise remain in force following
the appellant's removal from New Zealand."
[11] I note the form records the Minister has before him:
1. The applicant's appeal
form;
2. Any letters;
3. Summary of facts; and
4. The relevant file or
files.
[12] Items 1, 2 and 3 above are, as I understand it, annexed to the applicant's affidavit. Item 4 does not appear to have been discovered but clearly would relate to the relevant Departmental file on the applicant. The summary of facts appears on p 30 in annexure H of the applicant's affidavit. It is in the following form:
On 11 December 1989 Mr Singh was interviewed by the Service. During the interview Mr Singh stated he was working as a farm labourer at Wallabh and Sons, Bombay, Auckland (Tag 'A').
On 19 February 1990 an application for a removal warrant to be issued respect of Mr Singh was made to the Papakura District Court.
On 3 July 1990 a removal warrant was issued in respect of Mr Singh and served on him the same day.
On 9 July 1990 an appeal against removal in respect of Mr Singh was received in the Minister's office. This appeal and supporting documentation is tagged 'B' for your consideration.
On his appeal form Mr Singh declares his father and brother as living in India and his sister as being in Canada.
Mr Singh bases his appeal on the humanitarian factors raised in an application for refugee status he has lodged with the Ministry of External Relations and Trade. Mr Singh claims in this application that he joined the All India Sikh Students Federation (AISSF) in 1984, but left the AISSF in August 1988 because he disagreed with the violent activities of the Federation. Mr Singh claims that after he left the AISSF, attempts were made by that organisation to find him, and that his father was told the AISSF were going to kill Mr Singh because he set a bad example by leaving the Federation. Mr Singh believes he would be subjected to similar threats on his life if he were to return to India and this forms the basis of his appeal.
Enquiries made by the Immigration Service with the police have established that no criminal convictions are recorded against Mr Singh in New Zealand."
[14] Page 2 of the Appeal Form is headed "Part 3 (to be completed by Minister)" and was completed as follows:
Section 63(3) of the Immigration
Act 1987 provides that on any appeal made within the prescribed 21 day
period, the Minister may cancel the removal warrant, or may reduce the
period during which the removal warrant would otherwise remain in force
following the appellant's removal from New Zealand, if the Minister is
satisfied that -
(b) It would
not in all the circumstances be contrary to the public interest to allow
the appellant to remain in New Zealand or (as the case may require) to
reduce the period during which the removal warrant would otherwise remain
in force following the appellant's removal from New Zealand.
- Removal warrant to remain
in force
but reduce removal period
to yrs [ ]
- Cancel removal warrant [ ]
Minister's Signature
Minister’s Signature
(signed)
29/1/91
3. Other Instructions/comments,
if any
Circumstances of this case
do not justify overturning Department's decision.
Ministers Signature
(Signed) 29/1/91"
Dear Mr Chambers
TEERATH SINGH (DOB 30.5.62)
I refer to Mr Singh's appeal of 5 July 1990 to have the removal warrant which was served on him cancelled under section 63 of the Immigration Act 1987.
Section 63(3) of the above Act provides that the Minister of Immigration may:
..."cancel the removal warrant, or may reduce the period during which the removal warrant would otherwise remain in force following the appellant's removal from New Zealand, if the Minister is satisfied that -
(a) Because of exceptional circumstances of a humanitarian nature, it would be unjust or unduly harsh for the appellant to be removed from New Zealand, or for the removal warrant to remain in force for the full period of 5 years following the appellant's removal from New Zealand; and
(b) It would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand or (as the case may require) to reduce the period during which the removal warrant would otherwise remain in force following the appellant's removal from New Zealand."
I have studied the New Zealand
Immigration Service's files and have given full consideration to the grounds
that were put forward in Mr Singh's appeal. However, the grounds are not
such as to satisfy me that this is a case where I should cancel the removal
warrant served on him, or where I
should reduce the period
during which the removal warrant would otherwise remain in force.
This means that Mr Singh must leave New Zealand and will not be allowed to return to New Zealand or be eligible for an exemption or the grant of a permit until the period of five (5) years from the date of his removal from New Zealand has expired, unless the Minister of Immigration, by special direction, directs otherwise. Should your client wish to return to New Zealand before this period has elapsed, he would need to make an application for a special direction at a New Zealand diplomatic office overseas. You will appreciate that at this stage no assurances can be given about the outcome of any such application.
Mr Singh will not be removed from New Zealand while his application for refugee status is under consideration.
Yours sincerely,
(Sgd) ROGER FH MAXWELL
Associate Minister of Immigration."
[17] In support of his submissions counsel cited Tay v Minister of Immigration [1992] 2 NZLR 693; Gholami v Minister of Immigration [1994] NZAR 257 and the judgment of Tipping J in Madlener v Lester & Birch (unreported Christchurch High Court, CP 263/91, 31 July 1996). He specifically referred me to those parts of the judgment of the learned Judge which appeared at pp 19 and 21 which refer to the three steps he considered the Minister was required to consider in the hearing of any such appeal.
[18] Although Madlener's case (supra) involved a very different set of facts and of finding the removal order was invalid and the Minister, on his own affidavit, had failed to correctly take into account matters which he should have considered, I accept I must be satisfied from the material before me the Minister has reached his decision in this case taking into account the statutory matters referred to in the section of the Act and stressed by Tipping J. To such extent I accept and agree with Mr Hooker's submissions.
[19] I cannot, however, agree with his submission the words relied upon by him are the decision of the Minister. I am of the clear mind the Minister's decision is recorded in panel 1 on p 29 of Part 3. I consider the comment relied upon by Mr Hooker and which appears in panel 3 following the words "other instructions/comments if any" are no more than comments. Furthermore, the Minister's actions and his decision which immediately follow the quotation of the relevant sections of the Immigration Act were referred to by the Minister in a letter which he wrote to the then counsel for the applicant on 19 February 1991. I am not prepared to accept I cannot consider the terms of this letter in determining whether the Minister did, on 29 January, consider the statutory criteria. I appreciate the letter was no doubt prepared by a member of the Departmental staff for the Minister's signature. This seems perfectly clear from the stamp which appears on the top righthand corner of the first page of the letter. But, I am not prepared to conclude the Minister has signed a letter wrongly setting out the matters which he was required to consider and take into account and which he says he took into account. There is nothing in the material before me to indicate the Minister has acted improperly or failed to consider statutory criteria.
[20] There is no basis for my concluding the applicant can possibly succeed at any stage in challenging the decision of the Minister on the basis of the matters advanced.
Decision of the First Respondent
[21] In his substantive pleadings, the applicant sets out his cause of action against the first respondent as follows in paragraph 21:
In the case of this appellant, he appeared before us without the outward trappings of a devout Sikh and we noticed from his identity card issued by the JCT Mills (where he worked from 1983 to 1988) that he then wore his hair short and his beard and moustache trimmed. To our mind he would not, therefore, be immediately identified as a Sikh. He has worked on a farm and in the above factory and we have no doubt he could, if he wished, put his sporting skills to good use in earning a living. In addition to Punjabi, he speaks some Hindi. We, therefore, believe he could relocate elsewhere without undue difficulty.”
Further Evidence
[24] In essence,
the affidavit from Mr Singh says he knew the applicant. He claims to have
visited the applicant's family when he was in India in 1995. He claims
he was in the applicant's village when he was arrested by the police in
a case of mistaken identity. He claims he was detained by the police for
several days and during the course of these several days was beaten with
fists and sticks. He claims to have been released only when the police
accepted he was not the applicant. The police apparently were slow to accept
this despite numerous members of the applicant's family speaking to them.
No doubt also Mr Gurdawar Singh had with him his passport, which would
contain his photograph and other details, which he would have produced
to the police during the course of these enquiries. Despite all of that
material the police, for some reason unbeknown to me or unexplained, appear
to have considered this Mr Singh was the applicant. Mr Gurdawar Singh deposes
he believes if the applicant is returned to India, he will be arrested,
detained and tortured.
[25] Taking the affidavit at its face value, as I must, it does not in my view contain material which would justify me concluding or even considering it probable there is a real likelihood the first respondent would have reached or would reach a different conclusion if this evidence was put before it i.e. it will not conclude, even with this material before it, there was a real prospect of the applicant being persecuted if he returned to India.
[26] Mr Hooker accepts, perfectly properly, in this context I must look at the whole of India and not just the applicant's village or thereabouts. It is his submission the applicant will when being processed by customs on arrival at Delhi Airport or another Indian airport, faces a real likelihood of being arrested. I have considered carefully the material contained in the affidavit. I have considered it against the fact, as found by the first respondent, the applicant would not now be immediately identified as a Sikh as appears on p 7 of its judgment. The affidavit in my view makes it plain the police, be they local or international, have no real appreciation of what the applicant looks like and the affidavit also makes it plain this deponent was not stopped at Delhi Airport or elsewhere in India when in that country. It does not suggest to me there is any likelihood at all of the applicant, should he be returned to India, being stopped at the airport by the police. The affidavit, at the very best, can only suggest if the applicant returns to his village he may, and I say "may" quite deliberately, face the possibility of a visit from the police.
[27] In these circumstances I see no real likelihood, even given further time, of the applicant being able to satisfy me the Tribunal has either reached the wrong conclusion or would reach any other different conclusion should this material be placed before it.
[28] The order is sought under s 8(1) of the Judicature Amendment Act. This section enables the Court at any time before the final determination of an application for review and on the application of a party to make an interim order of the kind sought here by the applicant if in the Court's opinion it is necessary to do so for the purpose of preserving the position of the applicant. The discretion is a broad one; Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423.
[29] 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 and Singh v Refugee Status Branch of the New Zealand Immigration Service & Ors (Auckland Registry, M 715/97, 25 August 1997).
[30] It is not sufficient for an applicant simply to make allegations with no substantive evidence or proper material to back them up. In my view the applicant has failed to put before me any basis on which I can properly conclude he has any possibility of success at all in quashing either of the two decisions referred to. The application is accordingly dismissed. I make no order for costs.
Solicitors for the applicant:
Vallant Hooker & Partners (Auckland)
Solicitors for the respondents:
Crown Solicitor (Auckland)