INTRODUCTION

THE COMMON ERRORS

GETTING THE FULL PICTURE - AND THE FILE

REASONS
Publication of Decisions

EXHAUSTION OF ALTERNATIVE REMEDIES
Effect of a Right of Appeal
Temporary Permits - Reconsideration
Reconsideration - Decision Within a Reasonable Time

GLASS HOUSES
Concealment of Information, Fraud
If an Appeal to a Tribunal, is it in Time?
If an Appeal to the High Court, is it in Time?
If Judicial Review, is it in Time?

LEGAL AID

GLASS HOUSES II - HAS THE DECISION-MAKER COMPLIED WITH THE ACT

INTERNATIONAL OBLIGATIONS - CHILDREN AND FAMILY

THE DEPORTATION REVIEW TRIBUNAL

LEGITIMATE EXPECTATION

DETENTION AND TURNAROUND

REFUGEE STATUS APPEALS AUTHORITY
Interpreters
Whether a duty to inquire
Well-founded fear
The meaning of persecution
Refugee Appeal No. 71427/99 (16 August 2000); [2000] NZAR 545
Internet resources
 

[1] Generally speaking immigration and refugee decisions are made at three levels: first instance (by the Minister of Immigration, an immigration officer or refugee status officer); appeal (Refugee Status Appeals Authority, Residence Appeal Authority, Removal Review Authority, Deportation Review Tribunal) and by the High Court on judicial review.  The focus of this paper is on the third level and in particular on how to maximise the prospects of success in the High Court.  The second part of the seminar (to be held on 5 April 2001) will focus on the second level of decision making.

[2] A survey of immigration and refugee cases decided by the High Court and Court of Appeal and reported in the New Zealand Law Reports, New Zealand Administrative Reports, Butterworths Current Law and The Capital Letter in the period 1 January 2000 to 31 January 2001 reveals an approximate total of twenty nine cases.1  Of the twenty nine, a mere five succeeded in the sense that the decision in question was set aside and the case remitted for reconsideration.  The other twenty four were dismissed.  The success and failure rates, expressed as percentages are 17.25% and 82.75% respectively.

[3] Not only are the statistics depressing, there are unmistakable signs that the High Court is becoming impatient with meritless challenges to decisions of the various immigration appeal authorities.  Solicitors and barristers have received clear warning that they may have costs awarded against them personally.  See for example Butler v Removal Review Authority [1998] NZAR 409, 420 (Giles J); Fa’tafa v Chief Executive, Department of Labour (High Court, Wellington, AP 120/97, 26 April 1999, Gendall J); Butler v Removal Review Authority [1999] NZAR 68, 79 (Wild J); A v Refugee Status Appeals Authority (High Court, Auckland, M 757-SW00, 25 August 2000, Nicholson J) at [40] and M v Refugee Status Appeals Authority (High Court, Auckland, M 1101-SW00, 28 November 2000, Nicholson J) at [30] to [32].

[4] Jurisdiction to make an order for costs against a barrister was affirmed in Harley v McDonald [1999] 3 NZLR 545 at [22] to [54] (CA).  The criterion for the exercise of the jurisdiction is serious dereliction of the barrister's duty to the Court.  In Harley at [57] it was established that negligence or incompetence on the part of a barrister or a solicitor at an appropriately high level is capable of amounting to serious dereliction of duty to the Court.  Serious incompetence resulting in a failure to appreciate that a claim is untenable is also capable of amounting to a serious dereliction of duty to the Court (see [58]).  The Court of Appeal emphasised that there is therefore a duty resting on both barristers and solicitors (as officers of the Court) to achieve and maintain appropriate levels of competence and care.  If in serious dereliction of such duty, the officer is properly amenable to the costs jurisdiction of the Court (see [59]).  The Court of Appeal went on to hold that it is neither necessary nor desirable to attempt to define the level of incompetence or negligence at which the costs jurisdiction can be invoked beyond saying that such incompetence or negligence must amount to a serious dereliction of duty to the Court.

[5] In dismissing the review proceedings in M v Refugee Status Appeals Authority (High Court Auckland, M 1101-SW00, 28 November 2000) at [30] to [32] Nicholson J found that the review application was unfounded and bereft of merit.  He directed that memoranda be filed on the question whether it was an appropriate case in which to order the payment of costs by the plaintiff and/or his lawyers who made and pursued the review proceedings.  In the decision on the costs application (M v Refugee Status Appeals Authority (High Court, Auckland, M 1101-SW00, 2 February 2001)) Nicholson J decided to make no costs order but warned that he would have awarded sanction costs of $4,000 against the plaintiff’s counsel and $1,000 against the plaintiff’s solicitor had this not been the first time that such a situation had arisen on the dismissal of a review application in respect of a decision of the Refugee Status Appeals Authority.

[6] For a recent comment on Harley, see Duncan Webb,“Harley” Costs: A Note of Caution [2000] NZLJ 453.
 

[7] In general terms, the most common errors emerging from decisions decided over the past twelve months are a failure to identify the issues and (more importantly) the failure to take only those points which have a realistic prospect of success.  In the background, however, is a pervasive failure to understand the Immigration Act 1987 itself, a failure to understand the fundamental principles of judicial review and the limited role of the High Court under the Judicature Amendment Act 1972.  The reality is that it is not possible to practice immigration and refugee law without a sound understanding of administrative law.

[8] It is not realistic, in the seminar context, to attempt the depth of instruction in administrative law available only in a more formal setting.  It is strongly recommended that those with little or no knowledge of administrative law enrol as COP students in the Administrative Law paper taught at the Faculty of Law, Auckland University by Professor Mike Taggart in the second semester (July-November).  Alternatively, there is the more rudimentary Immigration and Refugee Law paper taught in the first semester (March-June) and for which enrolment is still possible.

[9] The points which follow are therefore not to be seen as a prescription for success, but rather as suggestions how immigration and refugee law problems may be approached in a more focussed manner with a view to making the two big decisions: Is there a live issue? And does it have a realistic prospect of success on judicial review?
 

[10] Frequently legal advice will be taken only after an application has been declined or a problem has arisen.  The first step should be to obtain a copy of the New Zealand Immigration Service (NZIS) file by submitting a request (accompanied by a signed authority from the client) under Principle 6 of the Privacy Act 1993.  Even if the practitioner has acted for the applicant from the beginning, a Privacy Act request (they may be made at any stage) will be useful in obtaining disclosure of internal memoranda, correspondence and file notes which may possibly identify weaknesses in the applicant’s case or errors by the officers processing the application.  If no decision has been made, it may be possible to remedy the weakness or shortcoming by further evidence or submissions.  But it must be remembered that the entire permit application system places the onus on the applicant to submit all information, evidence and submissions at the time the application is made and the Minister of Immigration (or immigration offier) may determine the application on the basis of the information, evidence and submissions provided.  See for example the Immigration Act 1987, ss 17A(3) (residence permits), 18F(2) (appeal to Residence Appeal Authority), 50(2)(a) (appeal to Removal Review Authority), 129G(5) (refugee application), 129P(1) (appeal to Refugee Status Appeals Authority).  Note also the Immigration Regulations 1999 (SR 1999/284), Regs 4(1)(e), 6(1)(e), 7(1)(f), 8(1)(g), 10(1)(e) & (i), 13(1)(e), 14(3), 15(1)(f), 19(2), 29(3) and 30(3).

[11] Time, however, is of the essence as the Privacy Act 1993, s 40(1), while imposing a duty on the NZIS to make a decision on the request “as soon as reasonably practical”, allows a maximum period of twenty working days for compliance.  Experience shows that the maximum is in fact treated as the minimum.  See further Eagles, Taggart & Liddell, Freedom of Information in New Zealand (Oxford, 1992) 80.

[12] An interim order application under the Judicature Amendment Act 1972, s 8 has little prospect of success if the only ground of the application is that a request for a copy of the file has been made and for that reason no basis for judicial review can yet be identified.  The principle is that interim relief should not be granted so that an applicant for judicial review may go on a fishing expedition.  The applicant must show circumstances which justify the relief and these would normally need to include the nature and an indication of the strength of the challenge.  Unless it is possible to point to a factual situation which establishes that there are grounds for judicial review and some reasonable prospect of success, no interim order will be made: Avtar Singh v Refugee Status Branch (High Court, Auckland, M 715/97, 25 August 1997, Paterson J); Amarjit Singh v Refugee Status Branch (High Court, Auckland, M 965/97, 25 August 1997, Paterson J); Pargat Singh v Refugee Status Branch (High Court, Auckland, M 1162/97, 22 August 1997, Morris J).  More recently it was stated that to grant an interim order simply on the basis that the applicant should have time to obtain legal advice about the availability and appropriateness of judicial review would set a precedent to allow any person in a similar situation to get further time in New Zealand: Salvador v Minister of Immigration [2000] NZAR 214, 219 (Nicholson J).

[13] The rationale for giving reasons is usefully articulated in Singh v Chief Executive Officer, Department of Labour [1999] NZAR 258, 262-263 (CA) though the New Zealand courts have not explicitly identified a general duty on decision-makers to give reasons for a decision.  See  the recent critique of the latest cases by Professor Michael Taggart in “Administrative Law” [2000] NZ Law Review 439-442.

[14] A duty to give reasons may, however, be imposed by statute.  There are two such provisions relating to immigration decisions.  First, the Immigration Act 1987, s 36 requires reasons to be given (only on request) for a limited category of decisions, namely the refusal to grant a permit or a permit of a particular type.  Leaving aside the various appeal tribunals, there is no duty under the Immigration Act 1987 to give reasons for the multitude of other immigration decisions outside the narrow ambit of the grant or refusal of a permit.  This omission, however, is remedied by the Official Information Act 1982, s 23 which is generous in its terms.  This provision is, however, specifically excluded from applying to certain decisions under the Immigration Act 1987, particularly decisions made by the Minister of Immigration under the special direction or similar powers.  See for example ss 7(4), 35A(2) and 130(6).  A decision under these provisions not to give reasons is beyond the reach of judicial review: Sloser v Minister of Immigration (1997) 11 PRNZ 26, 33 (Fisher J); Patel v Minister of Immigration [1997] 1 NZLR 252, 254 (Greig J); Hasmeer v Removal Review Authority (High Court Auckland, HC 134/98, 15 March 2000, Nicholson J) at [82] and Ruben v Minister of Immigration [2000] NZAR 289 at [20] (Williams J).

[15] Where reasons are given for a decision and they are bad or unintelligible reasons, it may not be wise to make a request for reasons under either the Immigration Act 1987 or the Official Information Act 1982 as this may allow the decision-maker to “cure” the earlier defects.  It is certainly not permissible for the decision-maker to later say what reasons would have been given had the decision-maker been aware of certain facts or had the opportunity to better express him or herself: Chiu v Minister of Immigration [1994] 2 NZLR 541, 551 line 41, 552 line 10 (CA) and Gurlal Singh v Minister of Immigration (High Court, Auckland, M 1478/99, 9 September 1999, Randerson J) at 6-7.

Publication of Decisions

[16] While the Immigration Act 1987, ss 18D(4) & 51(1) oblige the Residence Appeal Authority and Removal Review Authority to give reasons for their decisions, neither Authority publishes its decisions.  This is a disgraceful state of affairs given that the Residence Appeal Authority is the final arbiter as to the interpretation and application of Government residence policy and further given that the Removal Review Authority does not disclose how it is interpreting and applying the “exceptional circumstances of a humanitarian nature”, “unjust or unduly harsh” and “public interest” criteria of s 47(3).  This has attracted adverse judicial criticism, at least in the case of the Residence Appeal Authority.  See Naidu v Minister of Immigration (High Court, Auckland, M 1661-SW99, 23 March 2000) where Rodney Hansen J at [91] said:

“The full decisions of the Authority should be ... as widely available and accessible as the New Zealand Immigration Service Operational Manual.  The decisions comprise an important body of information as to the way in which the Government residence policy is interpreted and applied by the Residence Appeal Authority.  I note that the practice of the Residence Appeal Authority in this respect differs from that of the Refugee Status Appeals Authority which has published its decisions since its inception.”

[18] The fact that fundamental errors can be made by an appeal authority is all the more reason to require publication of its decisions so that the errors can be exposed more readily and corrected.  See further in this regard Martin v Chief Executive of the Department of Labour (High Court, Auckland, HC 113/98, 4 November 1998, Cartwright J) at [22] and Joseph v Chief Executive of the Department of Labour (High Court, Wellington, AP 171/97, 2 March 1998, McGechan J), both of which cases concerned misdirections by the Residence Appeal Authority in applying the special circumstances provision of s 18D(1)(f).
 

[19] Examination of the NZIS file and of the decision (if any) will usually allow an informed assessment to be made of the options available to the applicant.  Not all of these options will involve judicial review.  The Immigration Act 1987 contains generous rights of appeal and in some circumstances a reconsideration can be sought.

Effect of a Right of Appeal

[20] Generally speaking, where the Act prescribes a right of appeal (to the Refugee Status Appeals Authority, the Residence Appeal Authority, the Removal Review Authority or the Deportation Review Tribunal), that right must be exercised before recourse is had to the High Court by way of judicial review: Malkit Singh v Attorney-General [2000] NZAR 125, 132 (Randerson J).  In that case a refugee claimant who had established a clearly arguable case of denial of natural justice in relation to a decision by a refugee status officer was nevertheless denied relief on the grounds that he would have a full de novo hearing before the Refugee Status Appeals Authority.  In a passage later approved by the Court of Appeal, Randerson J set out at 132 the relevant principles when considering the effect of an appeal hearing upon a prior breach of natural justice:

The relevant principles when considering the effect of an appeal hearing upon a prior breach of natural justice may be summarised as follows:

[a] An appeal following a first instance hearing or decision does not normally oust the jurisdiction of this Court on review to redress breaches of natural justice or other administrative law error by the body at first instance and does not necessarily cure any prior breach: Reid v Rowley and Anor [1977] 2 NZLR 472, 481 (CA) approved by the Privy Council in Calvin v Carr [1980] AC 574, 595-596.

[b] But the existence of an appeal may be a factor relevant to the exercise of the discretion to grant relief Reid v Rowley at 483-484; Calvin v  Carr at 596; Wislang v Medical Practitioners' Disciplinary Committee [1974] 1 NZLR 29, 44; and Taylor on Judicial Review (1991) paragraph 2.40.

[c] In considering the exercise of discretion, much will depend upon:
 

[i] The gravity of the error or breach at first instance.

[ii] The likelihood that the prejudicial effects of the error may also permeate the appeal hearing.

[iii] The seriousness of the consequences for the individual.

[iv]  The nature and extent of the powers of the appellate body.

 
[v] Whether the appellate decision is reached only on the basis of material before the original decision maker or by way of rehearing de novo: De Smith, Woolf and Jowell- Judicial Review of Administrative Action (5th ed) paragraph 10.022.
 
[d] The circumstances may range from a situation where the parties may be taken to have assented to the appellate hearing as superseding the hearing at first instance and to have accepted the fairness of such a procedure (for example, by the rules of a social or sporting club) to those where there is a right to expect nothing less than a fair hearing in both instances: see the discussion by Lord Wilberforce in Calvin v Carr at 592, 593.

[e] It may be that, in the end, as observed in De Smith at 10-022:
 

... Recent case law indicates that the Courts are increasingly favouring an approach based in large part on an assessment of whether, in all the circumstances of the hearing and appeal, the procedure as a whole satisfied the requirements of fairness.
[f] The mere existence of review proceedings alleging invalidity at the first instance stage does not deprive the appeal body of jurisdiction to hear the appeal: Slipper Island Resort Limited v No. 1Town and Country Planning Appeal Board [1981] 1 NZLR 143, 145 (CA).

[g] For the purposes of granting interim relief to restrain the Authority from proceeding with the appeal, Mr Singh must demonstrate under s 8 of the Judicature Amendment Act 1972 that the relief sought is necessary to preserve his position pending the substantive hearing of his application for judicial review.

[22] Given the extensive rights of appeal conferred by the Immigration Act 1987, the principles stated in Malkit Singh are important.  Without attempting an exhaustive analysis, the rights of appeal, in broad outline are:
 
 

[23] The provisions governing appeals to the High Court (ss 115, 115A & 117) restrict the right of appeal to questions of law only.  There has been a tendency in recent times for plaintiffs to ignore this restriction and to run the appeal as an appeal on the facts.  While the High Court has repeatedly drawn attention to the point, plaintiffs continue to make the same mistake.  See for example Amosa v Chief Executive of the Department of Labour (High Court, Wellington, AP 208/98, 3 April 2000) where Gendall J at [15] said:

“By way of preliminary remarks I note that it is becoming increasingly common for appeals from decisions of the Removal Review Authority, or the Deportation Review Tribunal, for appellants’ counsel to engage in a minute and detailed analysis of the facts and, often, a sentence by sentence semantic scrutiny of decisions of the respective Tribunal.  It is often difficult for this Court to discern exactly what is the point or points of law upon which the appellant relies.  I suspect that is because, in truth, the challenges relate to factual findings and conclusions that the Tribunal draws from the evidence, rather than to points of law.  This is a matter to which I referred in De Borja v Removal Review Authority [1999] NZAR 471, adopting the views expressed by Giles J in Butler v Removal Review Authority [1998] NZAR 409 at 412 where he said:
At the outset, it has to be stressed that the jurisdiction of this Court on appeal is quite confined.  The legislature has not conferred a right of general appeal but limits an appellant to an appeal on points of law only.  It is not the function of this Court to revisit facts unless it can be properly contented that findings of fact lack probative evidence such that an error of law has occurred (see Edwards v Bairstow [1956] AC 14; [1955] 3 All ER 48).”

“Quintessentially, error of law involves the application of an incorrect legal test or a wrong answer to a legal question upon unchallenged facts.  Here, an obvious example would be Tribunal misinterpreting or mis-applying relevant provisions of the Immigration Act.  Under the label “question of law” a limited incursion is now permitted into the factual area where either the Tribunal has:

1. Come to a conclusion without any evidence or upon evidence which could not reasonably support its conclusion, or

2. Failed to draw from unchallenged primary facts an inference favourable only to the appellant, when such inference is the only one reasonably open.

What the Court may not do under guise of a question of law is concern itself with whether the Tribunal was right or wrong in its conclusion ie with the merits of the case.  Further, the weight to be given to the assessment of relevant considerations is for the Tribunal alone and not for consideration by the Court as a point of law.  Recent authorities include Nicholls v District Council of Papakura [1998] NZRMA 233 at 235 and Auckland City Council v Wotherspoon [1991] NZLR 76 at 85-86.  Specifically in the immigration area, there is the judgment of Giles J in Butler v Removal Review Authority [1998] NZAR 409.”

[26] It is not possible to convert a value judgment open to the decision-maker on the material before it into some error of law unless it appears the decision-maker has misunderstood the statutory language or misapplied the law in relation to it, or has made a finding for which there is no evidence or which is inconsistent with the evidence and contradictory of it: De Borja v Removal Review Authority [1999] NZAR 471, 476 (Gendall J) and Kumar v Minister of Immigration (High Court, Wellington, AP 101/99, 14 June 2000, Young J) at [46].

Temporary Permits - Reconsideration

[27] The Immigration Act 1987, s 31 provides that where an application for another temporary permit under the Immigration Act 1987, ss 29 or 30 has been declined, the applicant may, at any time while the applicant is the holder of a current temporary permit, apply in the prescribed manner for a reconsideration of the decision.  This is a significant provision even though s 31(2) goes on to provide that the fact that an application for reconsideration has been made does not of itself entitle the applicant to remain in New Zealand after the date of expiry of the current temporary permit.  But until the application for reconsideration has been determined, no removal order can be made or (if already made) served in respect of that person and that person is not liable to be removed under Part II of the Act.  The reconsideration must be by an immigration officer of equal grade or senior to the one who made the decision, or by the Minister of Immigration.

[28] The policy of the Act is to provide an incentive for people to apply for temporary or residence permits while they are lawfully in New Zealand and not to produce applications at the last minute after a long period of overstaying.  So persons in New Zealand unlawfully cannot apply for a residence permit (s 17(2)), a temporary permit (s 25(3)), for a change of temporary permit (s 29(1)), a further temporary permit (s 30(1)), for a reconsideration (s 31(1)), or for a limited purpose permit (s 34B(3)).

Reconsideration - Decision Within a Reasonable Time

[29] One of the few successful cases on judicial review in the past year concerned the application of s 31 of the Act.  In Awan v Minister of Immigration [2000] NZAR 655 (Potter J) Mr Awan’s work permit was due to expire on 8 February 2000.  On 10 November 1999 he applied for a further permit.  That application was declined on 10 February 2000.  As a person unlawfully in New Zealand, Mr Awan was ineligible to apply for a reconsideration.  He accordingly submitted an application under s 35A which is available to persons in New Zealand unlawfully, but s 35A does not confer a right to a reconsideration.  The issue of a permit is at the discretion of the Minister of Immigration and if a reconsideration is not undertaken, there is no obligation on the Minister to give reasons for that refusal.

[30] Potter J set aside the decision of the NZIS, holding that it could not unreasonably frustrate access to the right to a reconsideration.  It had an obligation to do what is reasonable to preserve the applicant’s right to a reconsideration.  See para [28]:

“Parliament has provided for a right to a reconsideration where an application such as the applicant’s is declined.  The Immigration Service may not unreasonably frustrate an applicant’s access to that right.  To allow them to do so would equally frustrate the intention of Parliament.  Thus, where the applicant submits an application reasonably in advance of the expiry of the current permit the Service must act reasonably in the processing of the application, so to respect and protect the right conferred on the applicant by s 31.  On the other hand, it would be entirely unreasonable to expect the Immigration Service to process the application where it was submitted, for example, only a few days or hours before the current permit expired.”

[32] Awan illustrates how the points on judicial review must be chosen with care.  The wide terms of the discretion conferred on the Minister of Immigration by s 35A make it difficult to mount a successful challenge to the refusal of a permit.  But by shifting the focus to s 31 and the duty to decide within a reasonable time and to the frustration of the right to reconsideration, Awan is an example of how an immigration case can have a happy ending.  As an aside, it is ironic that Mr Awan would have succeeded even if he had challenged only the s 35A decision.  The officer processing the application had in fact offered reasons for the decline and in so doing mistakenly stated that Mr Awan’s work permit had expired “almost two years ago”.  Potter J observed that this clear error of fact made the decision reviewable, citing Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA).
 

[33] The identification of alternative remedies is not, however, the only pre-litigation check that must be carried out.  There must also be a candid degree of self-criticism to ensure that the intending litigant has not disqualified him or herself from obtaining relief via judicial review.

Concealment of Information, Fraud

[34] There is a clear duty on an applicant to deal with the NZIS in good faith and to make full disclosure of relevant information.  It is an offence under s 142(a) to make any statement or provide any information, evidence or submission knowing that it is false or misleading in any material respect.  The same duty of good faith attaches to those advising or assisting the applicant.  Section 142(f) provides that it is an offence to wilfully mislead any person or to act negligently or unprofessionally (including charging excessively) while assisting an applicant for financial reward.  Section 34G goes so far as to impose a continuing obligation to inform all relevant facts, including changed circumstances.  Failure to comply with the obligation renders any visa or permit granted subject to cancellation or revocation:

34G. Obligation to inform all relevant facts, including changed circumstances—
 
(1) Every person who applies for any type of visa, permit, or exemption under this Act has the obligation to inform an immigration officer of any relevant fact, including any material change in circumstances that occurs after the application is made, if that fact or change in circumstances—
(a) May affect the decision on the application; or
(b) May affect a decision to grant a permit in reliance on the visa for which the application is made.
(2) Without limiting the scope of the expression ``material change in circumstances'' in subsection (1), such a change may relate to the applicant or another person included in the application, and may relate to any matter relevant to the applicable policy.

(3) Failure to comply with the obligation set out in subsection (1)—

(a) Amounts to ``concealment of relevant information'' for the purposes of sections 20(1)(b) and (c) and 20A(1)(b) and (c); and
(b) Renders any visa or permit granted subject to cancellation or revocation.

“On applications for judicial review, certiorari and declaration, the Court has a discretion whether or not to grant relief.  In the circumstances of this case, even if there had been one or more of the alleged breaches, I would not exercise my discretion to grant relief because Mr Hasmeer created the situation that he and his family are in by deceit and has achieved a stay in New Zealand far exceeding the nine months after arrival which extended work permits could allow and the three years after arrival which a work visa approval in principle could allow.  Mr Hasmeer and his family have been in New Zealand for well over four years.”

If an Appeal to a Tribunal, is it in Time?

[37] There are strict time limits for appealing to the Refugee Status Appeals Authority (depending on the circumstances, five or ten working days), though the Authority may grant an extension of time where there are special circumstances.  See s 129O(3) & (4).  There are also strict time limits for lodging appeals to the Residence Appeal Authority (forty-two days after notification) and the Removal Review Authority (within forty-two days after the person became unlawfully within New Zealand).  See ss 18C(3) and 47(2).  In addition, the appeal must be made in the prescribed manner and the prescribed fee must be paid.  See ss 18C(3) and 48(1) and the Immigration Regulations 1999 (SR 1999/284), Regs 29 &30.  The requirements are strict and strict compliance is necessary.  Substantial compliance is insufficient: Ruben v Minister of Immigration [2000] NZAR 289 at [28] (Williams J).

If an Appeal to the High Court, is it in Time?

[38] The time prescribed by ss 115 and 115A for appeals to the High Court from the Residence and Removal Authorities is twenty-eight days, but the High Court may extend this period on application made before the expiry of the twenty-eight day period: ss 115(2) & 115A(2).  A twenty-eight day period is also prescribed for appeals from decisions of the Deportation Review Tribunal (s 118(1)) while under s 123 the power of the High Court to extend time is not subject to any restriction.

If Judicial Review, is it in Time?

[39] Unique in New Zealand administrative law, any judicial review proceedings in respect of a statutory power of decision arising out of or under the Immigration Act 1987 must be commenced within three months after the date of the decision, unless the High Court decides that by reason of special circumstances, further time should be allowed.  See the Immigration Act 1987, s 146A(1).

[40] As is well known, on an application for leave to bring proceedings out of time, the High Court will not extend time to bring proceedings which would have no prospect of success: Thomas v Removal Review Authority (High Court, Rotorua, AP 39/00, 26 October 2000, Fisher J) at [5].

[41] Section 146A came into effect on 1 April 1999.  See the Immigration Amendment Act 1999, s 1(2).  In Naidu v Minister of Immigration (High Court, Auckland, M 1661-SW99, 23 March 2000, Rodney Hansen J) it was conceded by the Minister that s 146A did not have full retrospective effect, applying to all decisions which had been made as at 1 April 1999 (see para [15]).  The Minister did argue, however, that for such decisions a three month time limit began on 1 April 1999 with the result that any application to review decisions made before 1 April 1999 had to be made by 1 July 1999 (see para [17]).  Hansen J found that there was no retrospective operation and that s 146A did not apply to decisions made before 1 April 1999.  See paras [28] to [30].  The result was that of the various decisions challenged by Mr Naidu, only that relating to the decision of the Removal Review Authority was out of time.  As to this, the Court decided that further time should be allowed in the special circumstances of the case.  See para [31].
 

[42] The Immigration Amendment Act 1999 also made important changes to the legal aid regime for immigration and refugee cases.

[43] For refugee cases, legal aid has been restored across the board with the result that first instance applications under Part VIA of the Immigration Act 1987 now qualify for legal aid.  Appeals before the Refugee Status Appeals Authority continue to be eligible.  See the Legal Services Act 1991, s 19(1)(j) and (ja).  Legal aid is also available for judicial review proceedings where an application for refugee status has been declined: Legal Services Act 1991, s 19(1)(jb).  However, legal aid is not available for appeals to the Residence Appeal Authority and Removal Review Authority: Legal Services Act 1991, s 19(4A).  Nor is legal aid available to a person who is unlawfully in New Zealand or, not having already been granted civil legal aid for the purpose of any particular proceedings in New Zealand before the person arrived in New Zealand, is lawfully in New Zealand only by virtue of being the holder of a temporary permit or a limited purpose permit: Legal Services Act 1991, s 28(3).  In short, refugee cases aside, legal aid is available only to holders of a residence permit.
 

[44] The Immigration Act 1987 imposes quite specific obligations on the Minister and immigration officers.  In deciding whether there are grounds to take judicial review proceedings it is worthwhile examining whether the statutory steps which precondition the exercise of a power have been duly taken.  There are also the implied obligations of the decision-maker, such as the duty to make a decision within a reasonable time and the duty to comply with the rules of fairness.

[45] Examples of specific statutory obligations are:
 
 

There are also the detailed requirements of the Immigration (Refugee Processing) Regulations 1999 (SR 1999/285).
 

[46] The decision in Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA) opened a number of possibilities concerning the reception of international conventions into New Zealand domestic law.  In the immigration context, the issue is far from resolved as can be seen from Puli’uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA), Puli’uvea v Removal Review Authority [1996] 3 NZLR 538 (CA) and Rajan v Minister of Immigration [1996] 3 NZLR 543 (CA).  However, at High Court level the Convention on the Rights of the Child 1989 continues to have prominence in the immigration context.  In Gurlal Singh v Minister of Immigration (High Court, Auckland, M 1478/99, 9 September 1999, Randerson J) an immigration officer, in a pre-removal interview came to the conclusion (on the information provided to him) that the plaintiff’s relationship with his de facto wife and her four children was somewhat remote.  In this he was mistaken.  The relationship was substantially closer and more solid and in addition there was a close relationship between the plaintiff and his baby son.  Randerson J accordingly found that the officer had inadvertently proceeded on a wrong assumption of fact as to the true nature of the relationship between the plaintiff and the total family unit comprising himself, his partner, his son and his “step” children.  As a consequence the officer had not addressed the correct questions in terms of the Convention on the Rights of the Child and in particular the policy guidelines adopted by the NZIS known as Attachment 11.  In particular he had not addressed himself to the effects which the removal of the plaintiff would have on the entire family unit, nor had he made contact with other members of the family to ascertain their views on that issue.  A reconsideration was ordered and the plaintiff was directed to be released from custody.

[47] The interests of the children as a primary consideration must be given proper weight and not discounted without adequate reason: M v Minister of Immigration (High Court, Wellington, AP 84/99, 17 August 2000, Goddard J).   However, the courts will not require explicit reference to the Convention on the Rights of the Child, provided the interests protected by it have been taken into account: Faifai v Chief Executive, Department of Labour (High Court, Wellington, AP 217/99, 7 June 2000, Young J); Kumar v Minister of Immigration (High Court, Wellington, AP 101/99, 14 June 2000, Young J) at [42].
 

[48] Where the holder of a residence permit has committed serious criminal offences, the Minister of Immigration may make a deportation order in the circumstances set out in s 91.  There is a right of appeal to the Deportation Review Tribunal which may quash the deportation order in the circumstances set out in s 105:
 

105. Tribunal may quash deportation order—
 
(1) On an appeal under section 104 of this Act, the Tribunal may, by order, quash the deportation order if it is satisfied that it would be unjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.

(2) In deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand, the Tribunal shall have regard to the following matters:

(a) The appellant's age:
(b) The length of the period during which the appellant has been in New Zealand lawfully:
(c) The appellant's personal and domestic circumstances:
(d) The appellant's work record:
(e) The nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose:
(f) The nature of any other offences of which the appellant has been convicted:
(g) The interests of the appellant's family:
(h) Such other matters as the Tribunal considers relevant.

[50] Uncharted international human rights law waters were tested in Rahman v Minister of Immigration (High Court Wellington, AP 56/99, 26 September 2000, McGechan J).  Mr Rahman, from Bangladesh obtained a residence permit by using forged educational qualifications.  Following revocation of that permit he appealed to the Deportation Review Tribunal.  One of the arguments advanced was that as Mr Rahman would be returned to a standard of living inferior to that he experienced in New Zealand, it would be an injustice or undue hardship.  He relied on Article 11 of the International Covenant on Economic, Social and Cultural Rights, 1966 which provides:

Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a)To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

(b)Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

“However, the law does not say in unqualified fashion that it is unjust or unduly harsh to require return to impoverished conditions.  Poverty existing in the country to which a person is returned is a factor in that assessment, but no more.  Questions of degree inevitably will arise.  If circumstances are such that there is a high probability of death, that would be a weighty factor.  However, in less extreme situations, other factors may well outweigh.  Where the person resisting removal has entered New Zealand by calculated fraud, or has become a burden on New Zealand society, it might well be just, and not unduly harsh (or indeed harsh at all) to require that person to return to relative or even absolute poverty.  It is not New Zealand’s duty to allow the rest of the world to be safer or more comfortable.  If R.’s submission is correct, once a person from an impoverished country gained entry to New Zealand it would always be unjust or unduly harsh to compel his or her return home.  That is an absurdity which could not have been intended and is not the law.  There was no error of law in the Tribunal assessing injustice or undue hardship to R by considering Bangladeshi standards from which he had come, and to which he would return, rather than assessing on the basis of arguably better basic international standards or certainly better New Zealand standards.”

[52] Where a public authority charged with the duty of making a decision has promised to follow a certain procedure before reaching a decision, good administration requires that it should act by implementing the promise, provided the implementation does not conflict with the authority’s statutory duty: Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (PC).

[53] The ambit of the legitimate expectation concept is reviewed by Professor Taggert in “Administrative Law” [2000] NZ Recent Law 439 at 446-450.  In this present paper there is room only for a brief sketch of recent immigration cases in which legitimate expectation has played a prominent part in the decision.

[54] Given the central role of policy in immigration decisions and further given the statutory obligation in the Immigration Act 1987, ss 13A and 13B to publish immigration policy, the legitimate expectation concept has a potent role in the immigration context.  Statements of government immigration policy are representations on which individuals may rely.  There is a legitimate expectation that permit applications will be dealt with only according to the criteria set out in the policy and not affected by reference to some different or additional factors.

[55] In E v Attorney-General [2000] NZAR 354 (Fisher J) a group of refugee claimants, having been refused temporary permits, were detained in custody while their individual cases for refugee status were considered.  In challenging the permit refusal the plaintiffs relied on published policy which stated that “normally” claimants for refugee status will be granted visitor permits.  Evidence established that the practice of the NZIS mirrored the policy statement.  Drawing on this evidence and the UNHCR Guidelines on Detention of Asylum-Seekers Fisher J concluded at [38] that there was a strong, though rebuttable presumption in favour of granting temporary permits to refugee claimants pending the determination of their refugee status and the plaintiffs were entitled to expect that that principle would be applied to their cases.  This legitimate expectation had been frustrated because the decision to refuse had not taken account of the presumption referred to.  See para [45].

[56] On appeal by the Crown, the decision of Fisher J was reversed in Attorney-General v E [2000] 3 NZLR 257 (CA).  The majority (Richardson P, Gault, Henry & Keith JJ) concluded at [41] that the facts did not raise a legitimate expectation.  In their view there was no justification for requiring the Minister of Immigration or his delegate to apply a presumptive approach to a temporary permit application by a refugee claimant in cases where there is a discretion to grant one.  Their finding was that the Immigration Act 1987 does not support such approach, the NZIS Operational Manual does not require it, nor does the Refugee Convention, even when read with the UNHCR Guidelines on Detention of Asylum-Seekers.  See para [47].  The Guidelines are about the detention of applicants for refugee status and not directly about the grant of immigration permits.  Being non-obligatory material, the Guidelines, although possibly relevant for interpretation purposes, could not themselves provide a basis for imposing obligations on the Minister and his delegate.  There was nothing in the evidence to indicate that the Guidelines had been adopted, either as a matter of policy by the Minister or by the NZIS in carrying out its functions in considering applications for temporary permits by those seeking refugee status.  See paras [38] & [39].

[57] The dissenting judgment delivered by Thomas J takes issue with what Thomas J describes as the unacceptably minimalist approach adopted to the resolution of the appeal; the extreme breadth of the discretion vested in the Immigration Service; the narrow interpretation placed on the Immigration Act 1987 and Government policy published pursuant to that Act; the limited perception of the international  obligations to which the Act is designed to give effect; and the ultimate reliance placed on an "operational instruction", which has no statutory basis and which is contrary to the above obligations (see para [53]).  As to the last point Thomas J was of the view that any operational instruction made by the Manager of the Border and Investigations Section cannot fall within the description of Government policy.  It is not published by the Minister and it is not made available to the public.  It is, indeed, an administrative direction.  The notion that an administrator was able to make policy, as distinct from working within Government policy, by simply issuing an internal office circular was totally unacceptable.  See para [124].

[58] Neither the majority judgment nor the dissenting decision addresses in any substantive way the legitimate expectation concept, the majority holding that on the facts there was no such expectation while Thomas J at [106] took the view that it was simply one of several available grounds of review.  In the result the Court of Appeal did not advance in this decision the question whether the expectation extends to results as opposed to process or procedure.  By way of contrast, Fisher J in E held at [22] that it did not seem necessary to confine legitimate expectation to procedural, as distinct from substantive, expectations.  It is to be noted that his view has been adopted in other High Court judgments, particularly Hasmeer v Removal Review Authority (High Court, Auckland, HC 134/98, 15 March 2000, Nicholson J) at [52]; Naidu v Minister of Immigration (High Court, Auckland, M 1661-SW99, 20 March 2000, Rodney Hansen J) at [40] and Awan v Minister of Immigration [2000] NZAR 655 at [26] (Potter J).

[59] The success rate of legitimate expectation cases is not encouraging.  Most fail on the facts.  See for example E, Hasmeer; Naidu; Te’o v Minister of Immigration (High Court, Wellington, CP 6/99, 26 June 2000, Durie J) and Webster v Attorney-General (High Court, Auckland, M 682-SW00, 28 September 2000, Potter J).

[60] An exception is Chellaiya v New Zealand Immigration Service (High Court, Auckland, M 1084-SW99, 27 September 1999, Barangwanath J) where the letter declining a s 35A application concluded (unwisely) with the statement that Mr Chellaiya “is able to lodge a second or subsequent application under Section 35A if he wishes”.  The letter was dated 26 May 1999.  However, on 31 May 1999 a removal order was served, rendering Mr Chellaiya statutorily ineligible to lodge a second s 35A application.  Baragwanath J held that this defeated the expectation created by the letter.  While it was possible that the Immigration Service intended the letter simply to conclude with a courtesy, because it could reasonably be read, and was read by the plaintiff, as offering him a further opportunity to apply under s 35A, he must for a reasonable period be permitted to retain the status to do so.

[61] The legitimate expectation can therefore arise not only from policy, but also from correspondence.
 

[62] The detention and turnaround provisions of the Immigration Act 1987, ss 128, 128A and 128B cannot be readily summarised.  Generally speaking, however, it can be said that it is s 128 which empowers the detention and expulsion of those who at the border are refused a permit.  If the person concerned commences judicial review proceedings, s 128A freezes certain statutory time limits in s 128 and allows bail to be granted by the District Court.  In those cases where no immediate decision can be made at the border as to whether a person falls within any of the prohibited classes specified in s 7, an “interim” detention is permitted by s 128B pending investigation of the s 7 issue.

[63] But these provisions do not of course apply to those who are permitted to enter the country, issued with a permit and who are later removed under Part II of the Act.  Such persons may be detained under ss 59 and 60.  Again, there are statutory limits to the purpose and duration of the custody.

[64] In F v Superintendent of Mt Eden Prison [1999] NZAR 420, 424-425 (Anderson J) it was held that the power in s 128(5) to detain pending that person’s departure on “the first available craft” must be interpreted and applied with regard to circumstantial reality.  The section does not envisage the first craft leaving New Zealand but the first craft which is able to be used having regard to the circumstances of the case.  Those circumstances may include New Zealand’s obligation to examine and determine the detainee’s claim to refugee status.  A craft could not be considered available until the refugee claim had been examined and determined unfavourably.  Only following such disposition could some craft be the “first available craft” within the meaning of s 128(5).  The decision in Abu v Superintendent Mt Eden Women’s Prison [2000] NZAR 260 at [36] (Potter J) helpfully warns, however, that an otherwise lawful detention may become unlawful if it extents beyond a period of time which is reasonable in all the circumstances of the case such that the detention becomes arbitrary.  See also Tishkovets v Minister of Immigration (No. 3) [2000] NZAR 505 at [17] (Salmon J) and McAlpine v Tishkovets [2000] NZAR 638 (Harvey DCJ).  For a general discussion of the duration of detention, see David Clark & Gerard McCoy, The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth (Oxford, 2000) 123-144 and David Clark & Gerard McCoy, Habeas Corpus - Australia, New Zealand, The South Pacific (Federation Press, 2000) 103-112
 

[65] While the Refugee Status Appeals Authority (RSAA) has been recognised in several High Court decisions as a specialist tribunal (eg A v Refugee Status Appeals Authority, High Court Auckland, CP 310/98, 6 November 1998, Nicholson J), it is not immune from error.

[66] In K v Refugee Status Appeals Authority (High Court, Auckland, M 1586-SW99, 22 February 2000, Anderson J) it was held that the RSAA had reached an untenable view of the evidence and in addition it had failed to have regard to, notwithstanding its significance, uncontradicted medical evidence.  Anderson J, while conscious that the proceedings were for judicial review and not by way of appeal, concluded that the decision should be set aside and the matter remitted for rehearing.

Interpreters

[67] The participation of an independent interpreter is a necessary and integral part of the RSAA’s exercise of its statutory power of decision.  In A v Refugee Status Appeals Authority (High Court, Auckland, M 757-SW00, 25 August 2000, Nicholson J) counsel had applied, on the second day of the RSAA hearing, for a different interpreter to be appointed.  Holding that no proper basis had been established for the challenge to the interpreter, the RSAA declined the application.  The hearing of the appeal having been adjourned part heard, the refugee claimant commenced judicial review proceedings challenging the refusal to change the interpreter.  On the threshold question whether a refusal to change the interpreter can be reviewed Nicholson J at [22] held that there are logical and practical reasons for restricting the challenge until after the hearing has finished.  What is said at the hearing is recorded on audio tape.  The written transcript records the contemporaneous English interpretation of what is said in the other language.  Consideration of whether that interpretation was adequate can be done best by comparing what was actually said as recorded on the audio tape with the English transcript.  Comparison by another interpretation could take considerable time to arrange and do and thereby cause substantial delay.  Also the comparison is likely to be more helpful if it is considered all of what was said at the hearing and not just the early part of it.  Furthermore the result of the appeal might be in the claimant’s favour and the cost, delay and inconvenience of pre-decision review proceedings would have been unnecessary.  His Honour recognised, however, at [24] that there may be exceptional circumstances where a decision made by the RSAA during the course of the hearing may be of such importance and so obviously wrong as to justify its review before the hearing is finished.  He gave as an example the provision of an interpreter who could only understand the English and French languages and the appellant could only understand the German language.  But the holding is nevertheless that a challenge by review proceedings to the independence or competence of an interpreter arranged by the RSAA should not be made until the hearing has finished and decision given unless there are exceptional circumstances (para [25]).  Because of the risk of claimants unjustifiably delaying the appeal process by raising spurious objections to the interpreter arranged, Nicholson J cautioned that it is appropriate for the RSAA, when dealing with an application for another interpreter, to require the appellant to provide clear and convincing evidence that the interpreter does not meet the appropriate standard.  That standard, while it should be high, need not be one of perfection.  In determining adequacy of interpretation, a qualitative evaluation over the entire hearing should be made and should not be confined to just selective passages.  See paras [32] & [33].  On the facts no significant inadequacy of interpretation appeared from the transcript and the Court concluded that the challenge was spurious (para [40]).

Whether a duty to inquire

[68] In A v Refugee Status Appeals Authority (High Court, Auckland, CP 310/98, 6 November 1998, Nicholson J) it was held that bearing in mind the RSAA’s specialist knowledge and function and the difficulties of obtaining authentication of some documents, a Court should not find the RSAA was wrong in failing to make enquiries about or investigating the authenticity of a document so as to be in breach of the principles of natural justice, unless it is clear that the RSAA’s failure to make enquiries or to investigate was so unreasonable and unfair that no reasonable Authority would forego the making of such further enquiry or investigation.  The practicability of reliably and promptly authenticating or updating a document would be a major factor in deciding reasonableness.  The result of such a stringent test will always depend upon the facts and circumstances of each particular case.  On the facts, the RSAA was not in breach of the rules of fairness in failing to make enquiries about or investigating the authenticity of the documents in question.

[69] In Don v Refugee Status Appeals Authority (High Court, Auckland, M 917-SW00, 20 September 2000, Chambers J) it was held, after reference to the Immigration Act 1987, s 129P(1), that the obligation was on the refugee claimant to ensure that all information, evidence and submissions in support of the refugee claim are provided to the Authority.  The RSAA was not obliged to seek any information, evidence or submissions further to that provided by the plaintiff and was entitled under s 129P(2) to determine the appeal on the basis of the information, evidence and submissions provided by the plaintiff.  There was no obligation on the RSAA to cross-examine the author of a medical certificate which stated that the claimant had been diagnosed as having post-traumatic stress disorder.

Well-founded fear

[70] In Naremanov v Refugee Status Appeals Authority (High Court, Wellington, CP 354/98, 7 April 2000, Gendall J) it was recognised that the Refugee Convention speaks not of a fear of being persecuted, but of a well-founded fear.  That is, the definition decisively introduces an overriding objective test for determining refugee status.  The focus of the Convention is not on the facts as subjectively perceived by the refugee claimant, but on the objective facts as found by the decision-maker.  For a more detailed treatment of the subject see Refugee Appeal No. 71404/99 (29 October 1999) at [23] to [40].

The meaning of persecution

[71] The brief decision in Q v Refugee Status Appeals Authority (High Court, Wellington, CP 57/2000, 24 October 2000, Durie J) may be noted for the holding that it is not necessary for the RSAA in every case to “scope” the meaning of persecution or provide some exhaustive definition of the term in order to dispose properly of the particular matter before it.  In so holding the High Court referred, with approval to the approach adopted by the RSAA to the persecution issue as  recently explained in Refugee Appeal No. 71404/99 (29 October 1999) and Refugee Appeal No. 71427/99 (16 August 2000); [2000] NZAR 545.  The Court emphasised that not every breach of a human right is persecution.

[72] The decision of the RSAA in Refugee Appeal No. 71427/99, is indeed a significant decision and has received favourable comment at the international level.  See Deborah Anker, “Refugee Status and Violence Against Women in the ‘Domestic’ Sphere: The Non-State Actor Question” (paper given to the International Association of Refugee Law Judges Conference, Berne, Switzerland, October 2000 and David A Martin, “Gender Cases - Doubts and Questions”, a paper delivered at the same conference.  Because of the significance of the decision, the headnote is set out below.

Refugee Appeal No. 71427/99 (16 August 2000); [2000] NZAR 545

[73] The appellant, a citizen of the Islamic Republic of Iran, had been regularly beaten by her husband, an officer in the Revolutionary Guards.  Immediately after birth, her son had been given away without her knowledge and she was expelled from the family home.  She believed her son had died at birth.  In divorce proceedings she learnt that her son was alive but custody was awarded to her husband.  After the divorce she was subjected by the former husband to a campaign of harassment, leading to a breakdown in her health.  After a long struggle she was eventually awarded informal custody of the child, but on terms requiring her not to leave the child’s home town or Iran.  If she broke these conditions or remarried, custody would be forfeited.  Notwithstanding these requirements, the appellant subsequently entered into a temporary marriage.  The former husband continued to harass the appellant but was initially unaware of her re-marriage.  However, after discovering what had happened he went in search of the appellant and assaulted members of her family as well as her temporary husband.  The appellant left Iran illegally, taking her son with her.  Her refugee claim was based on the Convention grounds of religion, political opinion and membership of a particular social group.

[74] The holdings were:

1. The interpretive approach to be followed was that prescribed by Article 31 of the Vienna Convention on the Law of Treaties, 1969.  That is, the interpretation must be in good faith.  Second, the ordinary meaning of the words of the treaty are presumed to be the authentic representation of the parties’ intentions.  Third, the ordinary meaning of the words is not to be determined in a vacuum removed from the context of the treaty or its object or purpose.  Primacy is to be given to the written text of the Refugee Convention, but the context, object and purpose of the treaty must also be considered (paras [43] & [44]).

Golder v United Kingdom (1975) 1 EHRR 524, 544 (ECHR) and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (HCA) applied.

2. The refugee scheme is surrogate or substitute protection, activated only upon failure of national protection.  Given that refugee law ought to concern itself with actions which deny human dignity in any key way, persecution may be defined as the sustained or systemic violation of human rights demonstrative of a failure of state protection.  Core norms of international human rights law may be relied upon to define forms of serious harm within the scope of persecution.  The core human rights are those contained in the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1966 and the International Covenant on Economic, Social and Cultural Rights, 1966, the Convention on the Elimination of All Forms of Racial Discrimination, 1966, the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 and the Convention on the Rights of the Child, 1989.  The universality of these international human rights instruments will not permit social, cultural or religious practices in a country of origin from escaping assessment according to international human rights standards (paras [47] to [52]).

Canada (Attorney General) v Ward [1998] 2 SCR 689 (SC:Can) applied; R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 (HL) and Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 (HL) referred to.

3. Various threats to human rights, in their cumulative effect, can deny human dignity in key ways and should properly be recognised as persecution for the purposes of the Refugee Convention.  The need to recognise the cumulative effect of threats to human rights is particularly important in the context of refugee claims based on discrimination.  The determination whether the treatment feared in any particular case amounts to persecution will involve normative judgments going beyond mere fact-finding (para [53]).

Damouni v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 97, 101 applied.

4. Discrimination per se is not enough to establish a case for refugee status.  A distinction must be drawn between a breach of human rights and persecution.  Not every breach of a refugee claimant’s human rights constitutes persecution.  The intention of the drafters of the Convention was not to protect persons against any and all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by a state to its own population.  However, decision-makers should consciously strive both to recognise and to give proper weight to the impact of discriminatory measures on women (paras [54] and [55]).

5. The Refugee Convention does not require that the state itself be the agent of harm.  Persecution at the hands of “private” or non-state agents of persecution equally falls within the definition.  There are four situations in which it can be said that there is a failure of state protection.  First, persecution committed by the state; second, persecution condoned by the state; third, persecution tolerated by the state and fourth, persecution not condoned or not tolerated by the state but nevertheless present because the state either refuses or is unable to offer adequate protection (paras [56] to [60]).

Canada (Attorney General) v Ward [1993] 2 SCR 689 (SC:Can) applied.  R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 (HL) and Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 (HL) referred to.

6. The standard against which the sufficiency of state protection is to be measured is whether the protection available from the state will reduce the risk of serious harm to below the level of well-foundedness, or, as it is understood in New Zealand, to below the level of a real chance of serious harm.  The duty of the state is not, however, to eliminate all risk of harm.  We live in a highly imperfect world and hardship and suffering remains very much part of the human condition for perhaps the majority of humankind.  (Paras [62] to [67])

Canada (Attorney General) v Ward [1993] 2 SCR 689 (SC:Can) applied.   Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 (HL) not followed.
 
7. A finding of persecution can only be made if the facts establish both serious harm and an absence of state protection.  Persecution = Serious Harm + The Failure of State Protection (paras [72] & [73]).

R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 (HL) and Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 (HL) applied.

8. On the question of serious harm, the evidence established that the policy of gender discrimination and the enforcement of gender-based norms against women as a group in Iran was of a nature which permitted a finding of persecution in the sense of a sustained or systemic violation of basic human rights.  On the question of failure of state protection, the evidence established that the state itself had put in place the very legislative framework which to a large measure was the source of the serious harm faced by the appellant.  In addition, the state itself condoned, if not encouraged the “private” or domestic violence which comprised the balance of the serious harm faced by the appellant.  The evidence also established that the state would fail to protect her should she return to Iran.  On her return she would face both serious harm and a failure of state protection (paras [74] to [82]).

9. On the facts, subject to the appellant being able to satisfy the nexus requirement, the religion and political opinion Convention grounds were directly applicable to her case (para [88]).

10. While the Iranian laws on marriage, divorce and custody rights are designed, with supposed Islamic justification, to maintain political power, the overarching characteristic of the disenfranchised is their gender, that is the fact that they are women.  Whether women are a particular social group as that term is understood in Article 1A(2) of the Refugee Convention depends on the application of agreed principles.  First, the ambit of the social group ground of the definition must be evaluated on the basis of the basic principles underlying the Refugee Convention.  International refugee law was meant to serve as a substitute for national protection where the latter was not provided.  The Convention has built-in limitations to the obligations of signatory states which reflect the fact that the international community did not intend to offer a haven for all suffering individuals.  Second, the particular social group category is limited by anti-discrimination notions inherent in civil and political rights.  Third, the ejusdem generis approach developed in Re Acosta provides a good working rule in that it properly recognises that the persecution for reason for membership of a particular social group means persecution that is directed toward an individual who is a member of a group of persons all of whom share a common immutable characteristic.  That characteristic must be either beyond the power of an individual to change, or so fundamental to individual identity or conscience that it ought not be required to be changed.  What is excluded by this definition are groups defined by a characteristic which is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights.  Fourth, while the social group ground is an open-ended category which does not admit of a finite list of applications, three possible categories can be identified, namely groups defined by an innate or unchangeable characteristic, groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association and groups associated by a former voluntary status, unalterable due to its historical permanence.  Fifth, the social group category is not an all encompassing category.  Not every association bound by a common thread is included.  Sixth, there can only be a particular social group if the group exists independently of, and is not defined by, the persecution.  Seventh, cohesiveness is not a requirement for the existence of a particular social group.  Finally, members of the group must share an internal defining characteristic.  (paras [90] to [106]).

Canada (Attorney General) v Ward [1993] 2 SCR 689 (SC:Can); Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 252-253 (HCA) and R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 (HL) applied.

11. Applying these principles, it is indisputable that gender can be the defining characteristic of a social group and that women may be a particular social group (para [106]).

12. The evidence relating to Iran establishes that the overarching characteristic of those fundamentally disenfranchised and marginalised by the state is the fact that they are women.  This is a shared, immutable, internal defining characteristic.  On the facts, the particular social group was women (para [108]).

13. The words “for reasons of” in the refugee definition require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution.  It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution.  The persecution must be feared for reason of the person’s membership or perceived membership of the particular social group (para [111]).

14. Accepting that Persecution = Serious Harm + The Failure of State Protection, the nexus between the Convention reason and the persecution can be provided either by the serious harm limb or by the failure of the state protection limb.  This means that if a refugee claimant is at real risk of serious harm at the hands of a non-state agent (eg husband, partner or other non-state agent) for reasons unrelated to any of the Convention grounds, but the failure of state protection is for reason of a Convention ground, the nexus requirement is satisfied.  Conversely, if the risk of harm by the non-state agent is Convention related, but the failure of state protection is not, the nexus requirement is still satisfied.  In either case the persecution is for reason of the admitted Convention reason.  This is because “persecution” is a construct of two separate but essential elements, namely risk of serious harm and failure of protection.  Logically, if either of the two constitutive elements is “for reason of” a Convention ground, the summative construct is itself for reason of a Convention ground.  (Para [112])

R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 (HL) applied.

15. It was therefore important in a case where there is more than one agent of persecution to examine separately, in relation to each agent, the cause of the risk of serious harm or, as the case may be, the failure of state protection, such failure being established if the anticipated response of the state does not bring the risk of harm to below a well-founded fear.  (Para [113]).

16. As to the feared serious harm at the hands of the husband, no nexus had been established in relation to the religion, political opinion and social group grounds.  However, as to the feared serious harm at the hands of the state, the evidence clearly established that the appellant was at risk of serious harm at the hands of the state and because the state was totalitarian in nature, no state protection would be available to her.  The reason why the appellant was exposed to serious harm and to lack of state protection both from the husband and from the state itself was because she is a woman.  While the cloak under which this persecution would ostensibly take place was religion and political opinion, the overarching reason why she was at risk of persecution was because she is a woman.  The social group category was therefore the primary Convention ground in relation to which a nexus had been established (paras [116] to [120]).

[75] The major development of the past twelve months has been the launch of The University of Michigan Law School Refugee Caselaw Site <http://www.refugeecaselaw.org>.

This is the world’s first on-line collection of leading decisions on refugee status from the highest courts of major asylum countries.  Cases can be located by a full text search, or by using a unique indexing system linked to the topics covered in Professor James C Hathaway’s leading treatise, The Law of Refugee Status (Butterworths, 1991).  Helpful summaries are provided to allow a decision as to which cases to view.  Once the choice has been made, the judgments appear in full text format, ready to down-load or print.

[76] The New Zealand refugee law site, RefNZ <http://www.refugee.org.nz> is in the process of being substantially upgraded.  Shortly the full text of all High Court refugee decisions will be provided together with detailed headnotes and a comprehensive index.  Court of Appeal decisions in full text are already available.  The Statistics Page now contains forty two tables and the News Page continues to be updated on a weekly basis.
 

1. Excluded from this total are some eight decisions belatedly reported in [2000] NZAR 171 to 240, being decisions spanning the period 1994 to 1999.