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Teerath Singh v Refugee Status Appeals Authority

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:

[10] The Minister's decision is recorded on p 2 of a form headed "Appeal Processing Form" both pages of which appear as pp 28 and 29 of the annexures to the applicant's affidavit.

[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:

[13] I do not consider it necessary to set out in detail the correspondence before the Minister and annexed to the affidavit suffice it for me to say in my opinion it would give a clear view to the Minister or, for that matter, any person(s) considering the file the applicant's position and the basis of his appeal to the Minister.

[14] Page 2 of the Appeal Form is headed "Part 3 (to be completed by Minister)" and was completed as follows:

[15] Subsequent to the decision of the Minister, on 22 February 1991, the Minister wrote to the then applicant's counsel in the following terms: [16] It is Mr Hooker's submission the Minister's decision is contained in the words "circumstances of this case do not justify overturning Departmental decision". He submits the only conclusion I can draw from these words is the Minister has failed to consider the criteria which he is required to consider by virtue of the provisions of the Immigration Act. The Minister therefore, submits Mr Hooker, has failed in his statutory duty and his decision should be quashed.

[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:

[22] The first respondent is a specialist tribunal. Its judgment in this case - which again is annexed to the affidavit of the applicant - covers in detail each of the issues raised by the applicant. It accepted the applicant was genuinely in fear. I accepted likewise, albeit with some scepticism, it was a fear of persecution by the AISSF, a fear possibly amounting to death for having left the Federation. It did not accept there was a real chance of the applicant being persecuted should he return to India. The judgment states in this regard: [23] It appears plain to me from the judgment the possible persecution of him by the police was something of an afterthought by the applicant. It seems plain from the judgment - and I do not understand it to be disputed - the principal plank of his appeal and his case was persecution by members of the AISSF. Was the Tribunal justified in concluding as it did the applicant stood no real chance of being persecuted should he return to India? There is nothing in the judgment to suggest it could have reached any other conclusion and there is nothing which has been put before me to justify a finding to the contrary.

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)