Refugee Status Appeals Authority
REFUGEE APPEAL NO. 72462/00
AT AUCKLAND
Before: S Joe (Chairperson)
DJ Plunkett (Member)
Date of Minute: 12 April 2001
MINUTE ON THE WITHDRAWAL OF AN APPEALCONTENTS
INTRODUCTIONWITHDRAWAL OF A REFUGEE CLAIM OR APPEAL
Statutory provisions
The position at common lawWHETHER A WITHDRAWAL MAY BE RETRACTED
THE EFFECT OF MISLEADING ADVICE
CONCLUSION
The effect of the Minute of 1 March 2001
Summary of holdings
INTRODUCTION [1] The issue for determination in this decision is whether an appellant who has given written notice to the Authority withdrawing the appeal may later retract that withdrawal.
BACKGROUND [2] The background against which this issue falls to be determined is generally set out in the earlier decision of this Authority published on 1 March 2001. For the sake of convenience, the salient features follow.
[3] The appellant, a national of the Czech Republic, arrived in New Zealand on 16 August 2000. Her claim to refugee status was lodged with the Refugee Status Branch on 21 August 2000. She was interviewed by a refugee status officer on 24 October 2000. By decision dated 30 November 2000 the refugee claim was declined. From this decision she appealed.
[4] The appeal was heard on 25 January 2001. The Authority also heard on that day (concurrently) refugee claims by other members of the appellant’s family, being Refugee Appeal No. 72463/2000 and Refugee Appeal No. 72464/2000. All appellants were represented by counsel (Mr Martin Hine).
[5] Subsequent to the hearing the Authority sent to Mr Hine further country information and stipulated that all comment or submission by the various appellants should be filed no later than 5pm on 15 February 2001.
[6] On 16 February 2001, being the day following the expiration of the deadline, the Authority received from the appellant a notice of withdrawal addressed to the Refugee Status Branch of the New Zealand Immigration Service and apparently dated 15 January 2001, some ten days prior to the appeal hearing. The Authority by letter dated 19 February 2001 wrote to Mr Hine seeking clarification of the appellant’s intentions. The letter was in the following terms:
“The Authority heard the above appellant’s appeal on 25 January 2001.
[7] By letter dated 21 February 2001 the appellant wrote to the Authority confirming that she wished to withdraw her refugee claim. She explained that on 26 January 2001 (the day after the appeal hearing) she had married a New Zealand resident and now wished to apply for a residence permit on marriage grounds. She asked the Authority to send confirmation of her withdrawal as she needed this as evidence in her residence application.We attach for your information a “confirmation of withdrawal of refugee claim” form which was addressed to the Refugee Status Branch and dated 15 January 2001 signed by the appellant. That notice was received by the Refugee Status Branch on 15 February 2001 and forwarded on to the Authority, which we received on 16 February 2001. We note that the appellant purports to withdraw her refugee claim as at 15 January 2001 on the basis that she married on 26 January 2001. Bearing in mind that the appellant’s appeal was heard by the Authority on 25 January 2001, it would appear that the appellant may have mistakenly dated the withdrawal form 15 January 2001 instead of 15 February 2001.
In view of the ambiguity of this notice, the Authority would appreciate it if you could confirm with your client whether or not she wishes to withdraw her refugee appeal. If so, the Authority requires that the appellant submit in writing confirmation that she wishes to withdraw her refugee appeal signed in her own name.
Should the Authority not receive any written notification of the appellant’s desired withdrawal of her refugee appeal within ten days, of the date of this letter, by Friday 2 March 2001, the Authority will assume that the appellant wishes the Authority to proceed to determine her refugee appeal.”
[8] Accordingly, by decision dated 1 March 2001 the Authority recorded the background circumstances and purported to dismiss the appeal. The last paragraph read:
“In light of the above circumstances, it is appropriate that this appeal be disposed of given that the appellant has now acknowledged clearly her desire to withdraw her refugee claim, and in the general circumstances outlined, the appeal is dismissed.”
[9] Whether there is jurisdiction for the Authority to dismiss an appeal which has been withdrawn prior to the decision being notified to the appellant is an issue to which we will later return.[10] Almost immediately the appellant changed her mind and by letter dated 4 March 2001 wrote to the Authority retracting the withdrawal of her appeal. The text of her letter follows:
“My husband and I are writing this letter to withdraw my first & second letter I sent you. Asking for my reffugee status appeal claim to be withdraw. Me and my husband where miss informed about how we should go about getting an extension of my work permit as it was due to finish on the 2-03-01. We were told by Imergration that we must withdraw my appeal. Now having spock with a new lawyer which I have appointed to handle my case this is not so. His name is Mr Simon Laurent, his phone no is (09) 379 6565. If you ring him he will explain to you what happened. I’m glad to say I have now got a exstension of my work permit until 28-04-01. So as from this date 04-03-01 I wish for my appeal of refugee claim No. 24702882 to be reinstated and go ahead as planed. As before, we made this terrible mistake. I am sorry if this has corsed problem’s but like I stated in this letter it was not my fault. Both myself and my husband where miss informed at this stage I must state that my husband [name deleted] helped me write this letter as my English is not to good and we write this letter under advic from my lawyer Mr Simon Laurent [sic].”
[11] By letter dated 7 March 2001 (a copy of which was sent to Mr Laurent by facsimile) the Authority advised the appellant that as the Authority on 1 March 2001 had delivered a decision acknowledging the withdrawal, the appeal was now considered to be at an end.[12] Mr Laurent replied by facsimile drawing attention to the fact that, unbeknown to the Authority, the Authority’s decision of 1 March 2001 had not been notified to the appellant as required by s 129Q(4) of the Immigration Act 1987. He submitted that the Authority was bound to accept the retraction of the withdrawal of the appeal.
[13] Before the Authority could deliver a ruling, it received on 20 March 2001 a facsimile from an immigration consultant (Mr Lecky) advising that he was now acting for the appellant. The Authority was asked to reinstate the appeal. The ground given was:
“The reason why she wishes the application to be reinstated is that she and her husband were misled by the Visa and Permits Branch NZIS officer who advised them to withdraw their appeal and they would be granted a work permit as a spouse of a NZ citizen. This evidently did not eventuate and was incorrect advice.”
[14] Against this background the Authority must determine whether the withdrawal of a refugee claim or appeal can be retracted.
WITHDRAWAL OF A REFUGEE CLAIM OR APPEAL [15] While there is no reference in Part VIA of the Immigration Act 1987 to the withdrawal of a refugee claim or appeal, the making of regulations specifying “the manner in which a claim or other matter may be withdrawn” is specifically authorised by s 129Y(2)(k) of the Act. Pursuant to this provision the Immigration (Refugee Processing) Regulations 1999 (SR1999/285), Reg 21 specifically allows a claim or appeal to be withdrawn:
21. Withdrawal of claim or appeal—
A claimant or an appellant may at any time withdraw a claim to refugee status or an appeal to the Authority by giving written notice to a refugee status officer or the Authority, as the case may require.
[16] The provision that a claimant or an appellant may “at any time” withdraw a claim to refugee status must be read in context. The effect of the various statutory provisions is that once a refugee claim or appeal has been finally determined, the person can no longer be described as a refugee status claimant or appellant. It follows that a claim or appeal may not be withdrawn once the claim or appeal has been determined. At first instance, this follows from the definition in s 129B(1) of “claimant” and “refugee status claimant”:“Claimant”, or “refugee status claimant”, means a person who has made a claim in New Zealand to be recognised as a refugee in New Zealand and whose claim has not been finally determined under this Act:
[17] A claim cannot be treated as finally determined before the expiry of the appropriate appeal period. See s 129B(2):For the purposes of this Part, a claim may not be treated as finally determined at any time before the expiry of the appropriate appeal period specified in section 129O(3).
[18] These provisions are reinforced by s 129I which provides that once a decision on the claim is made by a refugee status officer and notified to the claimant, the claim cannot be re-opened for further consideration:129I. Decisions on claims—
[19] On appeal, decisions of the Authority are final once notified to the appellant. See s 129Q(4) and (5):
(1) The decision of a refugee status officer on a claim is final, except insofar as it is overturned by the Refugee Status Appeals Authority on an appeal under section 129O.(2) An officer must notify a claimant, in the prescribed manner, of—
(a) The officer's decision on the claim; and
(3) Once the decision is made and notified to the claimant, the officer may not re-open the claim for further consideration.
(b) The reasons for that decision; and
(c) The claimant's right of appeal to the Authority.
(4) The Authority must notify the appellant or other affected person of its decision, and provide a copy of the decision.
[20] The significance of the phrase “once notified” in s 129Q(5) is that until the appellant is notified of the decision, the appellant is free to exercise the right under Regulation 21 of the Immigration (Refugee Processing) Regulations 1999 to withdraw the appeal.(5) A decision of the Authority is final once notified to the appellant or other affected person.
[21] Once the decision has been notified, however, the appeal has been determined and the power to withdraw under Regulation 21 no longer exists as the person can no longer be described as a claimant or an appellant.
[22] This accords with the common law position.
[23] At common law (depending on the context) an application may be withdrawn, whereupon it ceases to exist. See generally the cases reviewed in Raru v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 314, 320-321 (Burchett J). There a withdrawal of a residence application had been handed by Ms Raru to two immigration officers who had called at her home. It was retracted the following day. After reviewing several authorities Burchett J noted that on those facts the issue turned on the concept of “completeness”. That is, the incompleteness of the effect of a notice was significant to the question whether it could be withdrawn. In the context of the Migration Act 1958 (Cth), it was held that the withdrawal was not effective until it reached the Minister or a delegate. Until so communicated, it was incomplete and was competently revoked by the solicitor’s letter which had been sent the following day. See further C v T (1995) 136 ALR 703, 723 (Burchett J).
[24] More relevantly, but again in the immigration context it has been held that an appeal may be withdrawn at any time before the tribunal gives its decision. See Akikur Rahman v Immigration Appeal Tribunal [1995] Imm AR 372, 379-380 (CA):
“In the case of Saleh [1975] Imm AR 154, the adjudicator had refused to allow an appeal to be withdrawn before being embarked upon. The Immigration Appeal Tribunal held that the appellant’s application to withdraw should have been granted because there was no reason why an appellant who had a right of appeal by law should not also have the right to withdraw his appeal unless this was expressly prevented by statute. That, as I have indicated, was a case where the appeal had not in fact been embarked upon. But in the course of the judgment of the Tribunal reference was made to a decision of this court in the case of R v Hampstead and St Pancras Rent Tribunal ex parte Goodman [1951] 1 KB 541 where Lord Goddard CJ said this:
[25] It follows from these two decisions that where an appeal is withdrawn, the effect of the withdrawal is that the appeal is no longer live and there is nothing before the appellate tribunal. It has no further jurisdiction over the appeal. See also the Supplement (1997) to Macdonald & Blake, Immigration Law and Practice in the United Kingdom (4th ed 1995) at para 18.80 and the cases cited therein. In Boal Quay Wharfingers Limited v King’s Lynn Conservancy Board [1971] 3 All ER 597, 605 (CA) the principle was stated by Salmon LJ in the following terms:It seems to me that, in the absence of strong words in the section to the contrary, a tribunal only has jurisdiction so long as an application subsists. In my view, an applicant may withdraw his application at any time. So if the parties to an application choose to withdraw it by consent, the tribunal is not under any duty to, and, indeed, cannot, proceed with the hearing ... One other point has been mentioned by the Attorney-General on which he says it is desirable that we should give a decision, and that is: Up to what time can an application be withdrawn? this does not strictly arise in this case, but for my part I think it can be withdrawn up to any time before the tribunal gives its decision.
That was a case under the rent tribunal provisions, and it related to an application rather than an appeal, but in my judgment there is no distinction in principle between the two. I respectfully adopt that statement of the law.”
“But quite independently of authority it seems to me to follow in principle that in the absence of a statutory prohibition, once one has made an application one can always withdraw it; and once one has withdrawn the application, it ceases to exist. It think that this application having been withdrawn, it was no longer before the Minister, and when the letter was written - not, of course, by the Minister personally - that part of the letter which stated that the application was refused was a nullity. One cannot refuse an application which is not before one, and this application was not before the Minister.”
[26] The New Zealand Court of Appeal in Mullen v Parkbrook Holdings Limited [1999] 2 NZLR 312, 322-324 (CA) has affirmed these principles in the context of an appeal under the Resource Management Act 1991. After reviewing a number of cases including Goodman and Boal Quay Wharfingers, the Court concluded at 322:“What emerges from these authorities is that it is crucial to examine the statutory framework in which the issue of withdrawal or abandonment arises. Generally, those initiating proceedings have a right to withdraw or abandon them, but in some instances it may be apparent from the terms of the legislation and the policies and values which the legislation seeks to enhance that this general right is, in some way, circumscribed.”
[27] In the context of multiple-party adversarial proceedings under the Resource Management Act 1991 the Court found at 324:“We agree with the submissions of counsel for the respondents that there is nothing in the scheme, purpose or text of the Act to justify the view that leave is required for the withdrawal or abandonment of an appeal. Such indications as there are suggest the contrary. It would not be in accordance with the policy of the Act, nor of its efficient, prompt and inexpensive administration to read into the legislation the requirement for leave which the Environment Court favoured and which Salmon J rejected.”
[28] Applying this unbroken line of authority, we can find nothing in the scheme, purpose or text of the Immigration Act 1987 or in the inquisitorial setting of refugee claims to justify the view that anything more is required of a refugee claimant or an appellant to withdraw an appeal than the filing of a written notice of withdrawal under Regulation 21 of the Immigration (Refugee Processing) Regulations 1999. In the appellate context the only proviso is that referred to earlier, namely that the notice of withdrawal must be given prior to notification of this Authority’s decision to the appellant. This means, for example, that if a notice of withdrawal is received between the signing of the decision and notification to the appellant, the withdrawal is effective. See s 129Q(4) and (5) of the Immigration Act 1987. But neither the Regulations nor the common law require that the leave of the Authority be obtained before a withdrawal becomes effective.
WHETHER A WITHDRAWAL MAY BE RETRACTED [29] The Immigration (Refugee Processing) Regulations 1999 do not explicitly address the question whether it is possible to retract a withdrawal. The answer provided by the common law is that retraction is possible in certain circumstances with the leave of the tribunal.
[30] The leading decision is R v Medway [1976] 1 All ER 527 (CA) in which application was made for leave to withdraw a notice of abandonment of proceedings in the Court of Appeal in relation to certain orders made under the Mental Health Act 1959 (UK). It was conceded (529d-e) that the Court had jurisdiction to allow a notice of abandonment of an application for leave to appeal to be withdrawn. However, a full Court of five judges was convened to reconcile a number of different approaches which had been taken to the question of the conditions for the exercise of this jurisdiction. The conclusion reached at 543b was that the Court must be satisfied:
“... that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible for foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and suchlike, which purports to be exhaustive of the types of case where this jurisdiction can be exercised. Such headings can only be regarded as guidelines, the presence of which may justify its exercise.”
[31] And at 543e:“... the test of the jurisdiction to allow the withdrawal of a notice of abandonment is whether or not the abandonment can be treated as a nullity in the sense we have just employed....”
[32] The Medway test was expressly adopted and applied by the New Zealand Court of Appeal in R v MacKay [1980] 2 NZLR 490, 491 (CA). After referring to the first passage from Medway cited above, the Court of Appeal stated:“With respect we are satisfied that the foregoing statement correctly represents the law as it should be applied in this country. There is a helpful note concerning the matter in Archbold which is referred to in the Medway case, where it is said:
[33] See also Eschbank v Police (1989) 5 CRNZ 157 (Tipping J) and R v Shepherd (1990) 6 CRNZ 154 (CA).“... an appellant cannot, in the strict sense, withdraw a notice of abandonment ... He can, however, place before the court sufficient facts to satisfy it that the abandonment was a nullity. Where he has been given bad legal advice the court will only treat his notice of abandonment as a nullity if it is satisfied that, in consequence of the advice, he was acting under a fundamental mistake when he purported to give the notice: see Archbold’s Criminal Pleading, Evidence and Practice (39th ed, 1976) para 897, p 614.”
[34] Applying these authorities we conclude that the withdrawal of an appeal may in certain circumstances be retracted with the leave of the Authority. Those circumstances are set out in Medway. The basic question is whether the mind of the applicant went with the act of withdrawal.
THE EFFECT OF MISLEADING ADVICE [35] In the present case the Medway test falls to be applied in the context of an unusual set of facts. The appellant’s appeal was heard on 25 January 2001 and all that remained was for her then counsel to respond to an invitation from the Authority to make submissions on further country information discovered in the course of the Authority’s own researches. It would appear, however, that following the appellant’s marriage on 26 January 2001 to a New Zealand citizen or the holder of a residence permit, she was advised by an immigration officer to withdraw her refugee claim in order to become eligible for a temporary permit as the spouse of a New Zealand citizen or permanent resident.
[36] If such advice was given, it was plainly misconceived and wrong. Section 129U of the Immigration Act 1987 was specifically intended to preclude refugee status claimants from applying from within New Zealand for a permit (whether a residence permit or a temporary permit) other than a permit to maintain lawful status in New Zealand while the refugee claim is determined. The section provides:
129U. Special provision relating to refugee status claimants granted temporary permits—
[37] Where a person who has appealed to the Authority withdraws that appeal, they revert to the status of a person who, in terms of section 129U(1)(b) was once a refugee status claimant whose claim to be recognised as a refugee has been declined [by a refugee status officer]. The prohibition in s 129U(2)(a) on the lodging of an application for a further temporary permit thereby also continues. Any advice given by an immigration officer to the contrary was mistaken and could not legally oblige the Minister or the immigration officer to grant any permit. See Tay v Attorney-General [1992] 2 NZLR 693, 704-705 (Hillyer J). The Minister or immigration officer would, however, be obliged in dealing with the appellant to investigate exactly what was said and to ascertain what detriment the appellant has suffered as a result. Hillyer J at 704 noted:
(1) This section applies to any person who—(a) Is a refugee status claimant to whom a temporary permit has been granted on or after 1 October 1999 (whether before or after the person became a claimant); or
(2) A person to whom this section applies may not, whether before or after the expiry of the temporary permit,—
(b) Having been a person to whom paragraph (a) applies, ceases to be a refugee status claimant by virtue of having his or her claim under this Part to be recognised as a refugee declined.(a) Apply for a further temporary permit or for a permit of a different type while in New Zealand; or
(3) Despite subsection (2)(a), a claimant may apply for a further temporary permit for such period as may be required to maintain the claimant's lawful status in New Zealand while the claim is determined.
(b) While in New Zealand, request a special direction, or a permit under section 35A; or
c) Bring any appeal under this Act to the Residence Appeal Authority.(4) Nothing in this section prevents a person from bringing an appeal to the Removal Review Authority under Part II.
(5) This section ceases to apply to a person if and when his or her claim under this Part to be recognised as a refugee is successful.
“I am of the view that a misrepresentation made by an immigration officer as to the department’s policy cannot operate to give a substantive protection. In other words, the Minister would not be bound to follow the advice wrongly given by one of his officers. What he must do, however, and in my view has not done in this case, because the facts were not put before him, is consider the circumstances and the detriment undoubtedly suffered by Mr Tay. He must investigate exactly what the officer said and exactly what detriment Mr Tay suffered and make his decision with all the facts before him.”
[38] There is no cause for us to examine these issues in any detail as we have no jurisdiction to judicially review the dealings between the appellant and the New Zealand Immigration Service. Our task is to determine the effect on our jurisdiction of the withdrawal of the appeal and the later retraction of that withdrawal.[39] The circumstances of this case are unusual in that the appeal had already been heard by the time the purported notice of withdrawal was received. That notice was retracted a short time later. In terms of the Medway test, and accepting the evidence of the appellant, the withdrawal was a nullity in the sense that the abandonment was not the result of a deliberate and informed decision. The mind of the appellant did not go with the act of abandonment.
CONCLUSION [40] Our ruling is that the purported notice of withdrawal under Regulation 21 of the Immigration (Refugee Processing) Regulations 1999 was a nullity and that the appellant’s appeal has been unaffected by the procedural problems which have arisen.
[41] While in terms of Mullen v Parkbrook Holdings Limited [1999] 2 NZLR 312, 324 (CA) leave of the Authority was not required for the withdrawal of the appeal, the Medway test certainly requires leave of the Authority to be granted for the retraction of the withdrawal.
[42] Our decision is that for the reasons given, leave to retract the withdrawal is granted.
The effect of the Minute of 1 March 2001
[43] It is true that the Minute of 1 March 2001, in recording the purported withdrawal, does state that the appeal is “dismissed”. See para 10:
“In light of the above circumstances, it is appropriate that this appeal be disposed of given that the appellant has now acknowledged clearly her desire to withdraw her refugee claim, and in the general circumstances outlined, the appeal is dismissed.”
[44] With the benefit of hindsight the use of the word “dismissed” was inappropriate as once the appeal was withdrawn before a final decision was made and notified, there was nothing before the Authority to dismiss. This much is clear from the cases cited at paras 24 and 25 and in particular R v Hamstead and St Pancras Rent Tribunal; Ex parte Goodman [1951] 1 KB 541 and Boal Quay Warfingers Limited v King’s Lynn Conservancy Board [1971] 3 All ER 597 (CA).[45] By way of summary our holdings are:
(a) Leave of the Authority is not required for an appeal to be withdrawn;
(b) An appeal may be withdrawn at any time prior to the decision being notified to the appellant. The fact that the decision has been signed is immaterial. Section 129Q(5) identifies notification as the relevant cut-off point;
(c) Once an appeal has been withdrawn, there is nothing to dismiss or grant. The Authority can only issue a Minute recording the receipt of the withdrawal and any other relevant circumstance;
(d) A withdrawal may in certain circumstances be retracted with the leave of the Authority. Those circumstances are set out in R v Medway [1976] 1 All ER 527 (CA). The basic question is whether the withdrawal can be treated as a nullity in the sense discussed in that case.
FUTURE CONDUCT OF THE APPEAL [46] The effect of our ruling is that this appeal is restored to the status it possessed immediately prior to the receipt by the Authority on 16 February 2001 of the purported notice of withdrawal, namely:
(a) The appeal has been fully heard;
(b) The appellant has been afforded an opportunity to file further submissions by 5pm on 15 February 2001.
[47] As to (b) above, the appellant has clearly not addressed her mind to the country information in question. To enable her to focus on this information she is granted an extension of time of one month to file such evidence and submissions she wishes either in relation to that information or on any other aspect of her case. We direct that all such further evidence and submissions be filed by 5pm on 8 May 2001.
OVERALL CONCLUSION [48] In summary, the appellant has been successful in restoring her appeal to the status it possessed immediately prior to the receipt by the Authority on 16 February 2001 of the purported notice of withdrawal. Any further evidence and submissions she wishes the Authority to take into account in the determination of her appeal are to be filed by 5pm on 8 May 2001.
[49] As it is entirely unclear as to who currently represents the appellant, we direct that a copy of this decision be sent to the appellant personally, to Mr Hine, Mr Laurent and to Mr Lecky.
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[S Joe]
Chairperson