AR (India) v Attorney-General - [2022] NZSC 55

NOTE: THE CONFIDENTIALITY OF THE NAME AND IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 15/2022
[2022] NZSC 55

BETWEEN	AR (INDIA) Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	R S Pidgeon for Applicant C P Paterson and A‑R C Davies for Respondent
Judgment:	6 May 2022

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.
BLeave to permit Mr Pidgeon to act for the applicant is granted.
C The application for leave to appeal is dismissed.
DThere is no order as to costs.

____________________________________________________________________

REASONS

The applicant applies for leave to appeal against a decision of the Court of Appeal.[1] In that decision, the Court of Appeal upheld a decision of the High Court striking out the applicant’s claim against the respondent.[2]
[1]AR (India) v Attorney-General [2021] NZCA 291 (French, Brown and Collins JJ) [CA judgment].
[2]AR (India) v Attorney-General [2020] NZHC 421 (Associate Judge Bell) [HC judgment].
The applicant has applied three times for refugee status in New Zealand. He has also unsuccessfully sought refugee status in both the United Kingdom and Australia.
The applicant was granted a visa to remain in New Zealand while proceedings relating to his first application for refugee status were conducted. An immigration officer entered a notation on the visa in the applicant’s Indian passport which referred to the fact that the applicant was awaiting a High Court decision on refugee appeal status. This was, on its face, a breach of s 151 of the Immigration Act 2009, which requires the fact that a person is a refugee or is claiming refugee status to be kept confidential. When the error was realised, immigration officers attempted to remedy the error by blocking out the notation in stamping “cancelled without prejudice” over the visa.
After this occurred, the applicant made a third application for refugee status. He claimed that the notation in his passport would alert Indian authorities to the fact that he had sought refugee status in New Zealand. In the alternative, he claimed the conspicuous stamps in his passport would prompt Indian authorities to investigate his circumstances and conclude he had sought refugee status. That application was unsuccessful.
Prior to the determination of the third application for refugee status the applicant commenced proceedings in the High Court pleading misfeasance in public office and breaches of ss 8 and 23(5) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). Both of these causes of action were based on the notation made by immigration officers to the visa in the applicant’s Indian passport. The respondent applied to strike out both causes of action. The applicant abandoned the misfeasance cause of action, and the Associate Judge struck out the cause of action based on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZSC 55
Decision Date: 6 May 2022

CaseChat Overview and Summary

In the case of AR (India) v Attorney-General, the applicant sought leave to appeal against a decision of the Court of Appeal, which upheld a decision of the High Court striking out the applicant’s claim against the respondent. The applicant had applied for refugee status in New Zealand on three occasions, and also unsuccessfully sought refugee status in the United Kingdom and Australia. The applicant alleged that an immigration officer’s notation on a visa in his Indian passport, which referred to his claim for refugee status, was a breach of s 151 of the Immigration Act 2009, which requires the fact that a person is a refugee or is claiming refugee status to be kept confidential. The applicant commenced proceedings in the High Court, which were subsequently struck out by the Court of Appeal. The applicant sought leave to appeal to the Supreme Court of New Zealand against the decision of the Court of Appeal.

The legal issues the court was required to decide were whether the applicant's arguments were matters of public importance that justified the grant of leave to appeal, and whether the applicant's counsel required leave to act in the proceedings. The court found that none of the applicant's arguments were matters of public importance, and that the applicant's counsel required leave to act in the proceedings. The court also granted the applicant an extension of time to apply for leave to appeal. The application for leave to appeal was dismissed, and there was no order as to costs.

In summary, the Supreme Court of New Zealand dismissed the applicant's application for leave to appeal against a decision of the Court of Appeal, which had upheld a decision of the High Court striking out the applicant’s claim against the respondent. The court found that none of the applicant's arguments were matters of public importance, and that the applicant's counsel required leave to act in the proceedings. The court also granted the applicant an extension of time to apply for leave to appeal. The application for leave to appeal was dismissed, and there was no order as to costs.

Orders