AR (India) v Attorney-General

[2020] NZHC 421

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2781

[2020] NZHC 421

UNDER

the New Zealand Bill of Rights Act 1990 and the High Court Rules 2016

IN THE MATTER OF

a claim for misfeasance in public office and under the New Zealand Bill of Rights Act 1990

BETWEEN

AR (INDIA)

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing:

25 February 2020

Appearances:

M S P Pang for the Plaintiff

S Earl and M Mortimer for the Defendant

Judgment:

25 February 2020

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:

Integritas Law Firm (M S P Pang), Auckland, for the Plaintiff

Meredith Connell (S Earl/M Mortimer), Auckland, for the Defendant

AR (INDIA) v ATTORNEY-GENERAL [2020] NZHC 421 [25 February 2020]

Introduction

[1]    The plaintiff is an Indian national. He came to New Zealand in August 2014 and made a claim for refugee status. New Zealand is not the first country where he has applied to be recognised as a refugee. He went to Australia in 1996 and claimed refugee status in 1999 but was unsuccessful. He was deported to India in 2006. In 2008 he travelled to the United Kingdom and claimed refugee status – again without success. He was deported to India in 2011.

[2]    His application in New Zealand was also unsuccessful. His claim to have a well-founded fear of persecution in India was not accepted on credibility grounds. He appealed unsuccessfully to the Immigration and Protection Tribunal. He then appealed to this court and sought a judicial review of the decision of the Immigration and Protection Tribunal,1 but that was unsuccessful. His application for leave to appeal to the Court of Appeal was declined.2 He began a second application for refugee status and that was declined. He was unsuccessful in applying for leave to begin a judicial review of the decision refusing to consider his second claim.3

[3]    In May 2018, he began his third claim for refugee status. He has not returned to India but has remained in New Zealand. Immigration New Zealand says that his right to stay in New Zealand expired on 13 March 2018 and that he no longer has a valid visa to be in the country. Up until that time he had limited visas, and at least some of those visas allowed him to work in New Zealand.

[4]    This case concerns what happened to one of the limited visas. On 6 January 2017, Immigration New Zealand granted him a limited work visa for three months. The visa was recorded in his Indian passport. On the visa this condition was written:

The holder may stay in New Zealand for the express purpose of awaiting High Court decision on refugee appeal status. He must leave before visa expiry or face deportation. The holder may work for any employer, in any occupation in New Zealand.

1      AR v Immigration and Protection Tribunal [2017] NZHC 2039, [2017] NZAR 1524.

2      AR v Immigration and Protection Tribunal [2017] NZHC 2982.

3      AR v Refugee and Protection Officer [2016] NZHC 2916.

[5]    Under s 151 of the Immigration Act 2009, the fact that a person has claimed refugee status must be kept confidential. Later in 2017, immigration officers put stamps over the part of AR’s limited visa which recorded the condition. Their attention seems to have been to cover up the condition, but from copies of the visa put in evidence that does not appear to have been wholly successful.

[6]    AR began this proceeding against the chief executive of the Ministry of Business, Innovation and Employment over this. His statement of claim has two causes of action: for misfeasance in public office and breach of s 8 of the New Zealand Bill of Rights Act 1990, that is, the right not to be deprived of life except on such grounds as are established by law and are consistent with the principles of natural justice.

[7]    I was advised that his third application for refugee status has not yet been determined. There is another proceeding pending in this court to decide some evidential issues in relation to that application. Counsel agreed that I did not need to be concerned with that other proceeding.

[8]    The defendant applies to strike out both causes of action in AR’s amended statement of claim of 22 October 2019. During the hearing, AR withdrew the cause of action for misfeasance in public office. I shall deal with that later in this decision.

The amended statement of claim

[9]    The amended statement of claim of 22 October 2019 is AR’s third pleading. He filed it after the defendant requisitioned for particulars. The defendant is the Chief Executive of the Ministry of Business, Innovation and Employment. AR pleads his background. He has worked in New Zealand, as a trained bus driver; he has a heavy driver’s licence with passenger vehicle endorsements; he applied for a limited work visa under s 85 of the Immigration Act; that was granted on 7 January 2017 for three months; he took employment with a bus company but had to stop work on the expiry of his limited work visa. He records the special condition, which I have recited above and the Passport Act 1967 (India), which makes it an offence, without lawful authority, to alter or attempt to alter entries made in a passport or travel document. He alleges

risk of harm on refoulement, that is, on being deported to India on his refugee application being declined. On arriving back in India officials at the airport would notice the condition on his passport. It would be conspicuous because of the attempts to cover up the entry. He is a Muslim and stands to suffer adverse treatment because of prejudice against Muslims that has increased in India since 2015. He identifies a Hindu group that has it in for him because it believes that he stole monies from it. He relied on these matters in his earlier refugee applications. The pleading goes on to say that the recording of the condition referring to his refugee appeal breached s 151 of the Immigration Act. He asked Immigration New Zealand to replace the limited work visa with another visa which met the Crown’s international protection obligations. That resulted in Immigration New Zealand redacting the condition of the visa with stamps. On his case, they made matters worse. He had an interview with a refugee protection officer in July 2018. A further entry was made on the visa. He says it was in handwriting. (Immigration New Zealand says that it was another stamp.) Whichever it is, he says that this also increased the risk of Indian officials seeing the condition. He is apprehensive that, on that matter being known to Indian officials, other people could be tipped off who may want to take action against him.

[10]   In his pleading he describes the recording of the condition on the visa as the first breach. The stamping over of the condition is the second breach. The additional handwriting or stamping on 19 July 2019 was the third breach.

[11]   The first cause of action is for misfeasance in public office. Because that cause of action has been withdrawn, I do not need to go into that in any detail. But I record the circumstances in which the cause of action came to be withdrawn. A claim for misfeasance in public office requires the plaintiff to establish that the public officer acted with either targeted malice or non-targeted malice. Under either limb of the tort, a plaintiff is required to establish the intentions of the public officer. That requires the public officer to be identified, be it by name or function or title. AR was not present during the hearing. I gather from his counsel that AR appreciated that he would be required to identify the officers he complains about He believes that this will jeopardise his further dealings with the Immigration Service. I record that as his reason for withdrawing that cause of action and make no comment on it. For my part,

I would have thought that the officers of the New Zealand Immigration Service would deal with his further application for refugee status objectively.

[12]   That leaves the cause of action for breach of the New Zealand Bill of Rights Act. AR pleads that the defendant, the chief executive of the Ministry of Business Innovation and Employment, has a duty to protect AR’s safety under s 3(1), s 151 and s 354 of the Immigration Act.   Section 354 is the offence provision for a breach of   s 151. The chief executive is also alleged to owe a duty to protect AR’s safety from the acts or omissions of her staff. She is alleged to have failed to prevent the circumstances around the first, second or third breaches which were illegal, and that is said to have put the chief executive in breach of a duty under s 151. It is said to have reduced rather than promoted AR’s enjoyment of rights promoted by the New Zealand Bill of Rights Act. AR is said to have been unable to take employment and was unable to enjoy rights under the International Covenant on Economic and Social and Cultural Rights. He has been prevented from living a life with dignity. That also breached his rights under s 23(5) of the New Zealand Bill of Rights Act. AR seeks damages in vindication of his rights.

[13]   The remedies sought are a declaration that the first, second and third breaches constitute a breach of s 8 of the New Zealand Bill of Rights Act, public law compensation for breach of s 8 and public law compensation for breach of s 23(5).

A jurisdiction question

[14]   Before I consider the strike-out application, I deal with a jurisdiction question. I was concerned that AR had claimed declarations in both his first cause of action for misfeasance in public office and his second cause of action for breach of the New Zealand Bill of Rights Act. I was concerned whether I as an associate judge could hear the strike-out application. Under r 2.1 of the High Court Rules, an associate judge has jurisdiction and powers of a judge in chambers. Strike-out applications (such as this one) under r 15.1, are heard in chambers. I was concerned, however, with the bar in s 22(4)(i) of the Senior Courts Act 2016 which prevents rules conferring on associate judges the jurisdiction or power in relation to:

(i)a proceeding for a writ or an order in the nature of mandamus, prohibition or certiorari or for a declaration for an injunction.

It has been held that an associate judge does not have jurisdiction to hear an application to strike out an application for judicial review.4

[15]   I issued a minute, asking counsel to address the matter. The defendant referred to Clark v Governor-General (No.1)5 and Forrest v Chief Executive of the Department of Corrections.6 Those were decisions under s 26J of the Judicature Act 1908. Section 26J(4)(c) is in substantially similar terms to s 22(4)(i) of the Senior Courts Act 2016. Those two cases were claims for breaches of the New Zealand Bill of Rights Act. Both decisions held that the Judicature Act provision applied only to proceedings for judicial review under the Judicature Amendment Act 1972. The interpretation of the Judicature Act also applies to s 22(4) of the Senior Courts Act 2016. That is, following the reasoning in those other cases, s 22(4)(a) of the Senior Courts Act applies only to proceedings under the Judicial Review Procedure Act 2016.7 The cause of action under the New Zealand Bill of Rights Act is therefore not caught by s 22(4)(i). I issued a minute indicating that I would hear the application.   At the start of the hearing,   Mr Pang referred me to my decision in Thode v Turners & Growers Horticulture Ltd,8 and my observation that an associate judge ought not to make a declaration where the effect of the declaration is coercive. I do not resile from what I said in that decision, but I do not regard it as applying in the present case. The declarations that AR has sought go to findings that there have been breaches of the New Zealand Bill of Rights Act. They are declaratory of what has already happened and as to a present state of affairs. The declarations sought are not in the nature of injunctions directed at requiring the Crown to take steps in the future. I therefore do not regard the Thode case as authority to bar me from hearing the current application.

[16]   Accordingly, I am satisfied that I have jurisdiction, and the bar under s 22(4)(i) of the Senior Courts Act does not apply.

4      Reid v New Zealand Fire Service Commission (1995) 8 PRNZ 550.

5      Clark v Governor-General (No.1) HC Wellington CIV-2004-485-1902, 2 February 2006.

6      Forrest v Chief Executive of the Department of Corrections HC Wellington CIV-2011-409-1233, 2 December 2011.

7     Judicial Review Procedure Act 2016, ss 11 and 12.

8      Thode v Turners & Growers Horticulture Ltd [2018] NZHC 890 at [13].

A party question

[17]   There is a party question. AR sues the chief executive of the Ministry of Business Innovation and Employment as if he were liable under both causes of action. The question is whether he is the correct defendant. While the defence did not take the point, I raised it because I considered it relevant to AR’s claims under both causes of action.

[18]   AR pleads that the Chief executive of the Ministry of Business, Innovation and Employment is vicariously liable for the actions of the officers of Immigration New Zealand. That is not correct for either cause of action. In the case of the tort cause of action, the Crown is vicariously liable for torts committed by its servants or agents in the course of their functions.9 The chief executive is not liable in tort for the tortious actions of immigration officers. There is a useful explanation in the Court of Appeal’s decision in Commissioner of Inland Revenue v Chesterfield Pre-Schools Ltd.10 That was in relation to officers of the Inland Revenue Department. But the Court of Appeal’s reasoning is equally applicable to the claim against the Chief Executive of the Ministry of Business, Innovation and Employment and officers of the Immigration Service.

[19]   For the cause of action under the New Zealand Bill of Rights Act, the claim is against the Crown directly. There is no question of vicarious liability. Where the executive branch of the government has breached a right under the New Zealand Bill of Rights Act, the appropriate defendant is the Attorney-General. In this, I am applying s 14(1) of the Crown Proceedings Act 1950.11

[20]   After discussion, Mr Pang made an oral application to amend by deleting the chief executive as the defendant and substituting the Attorney-General. Although she did not have instructions on the point, Ms Earl did not object to the change. Accordingly, I remove the chief executive as the defendant and substitute the

9      Crown Proceedings Act 1950, s 6(1)(a).

10     Commissioner of Inland  Revenue  v  Chesterfield  Pre-Schools  Ltd  [2013] NZCA 53, [2013] 2 NZLR 679 at [49]-[62].

11     Crown Proceedings Act 1950, s 14(1)(c) – the other alternatives under s 14(1) do not apply.

Attorney-General. And, for good order, I confirm that there are no allegations in this case that the chief executive personally committed any wrongdoing.

Breach of the right not to be deprived of life

[21]   The defendant’s strike-out application is directed against both causes of action. The strike-out application against the first cause of action, for misfeasance in public office, is based primarily on procedural grounds, that is, that AR has not satisfied the procedural requirements for pleading a cause of action for misfeasance in public office. There were also suggestions that the claim was abusive.

[22]   For the strike-out cause of action under the New Zealand Bill of Rights Act, the grounds are based more on substantive issues, namely that what was pleaded was not sound in law. For that, the well-known test for strike-out is recorded in Attorney- General v Prince12 and Couch v Attorney-General.13 In such strike-out applications, the court considers questions such as whether the pleading shows a cause of action recognised by law, or whether on facts assumed to be true the plaintiff can hope to succeed.

[23]   Some tidying-up is required for the second cause of action. The pleading alleges that the chief executive personally breached her duties. But that is misdirected. The matter can be put more directly. The enquiry is whether the actions of immigration officers resulted in breaches of AR’s rights under the New Zealand Bill of Rights Act. That can be addressed without considering whether the Chief Executive was under a personal duty to AR.

[24]   The written submissions for the defendant express some perplexity as to how there was a breach of the right under s 8. After all, AR is still alive. Counsel for the defendant suggested that there may be two ways of thinking about the right under s 8. The first is whether there is a risk of loss of life, and the second is whether s 8 gives protection against a reduction in quality of life.

12     Attorney-General v Prince [1988] 1 NZLR 262 (CA).

13     Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725.

[25]   For his part, Mr Pang emphasised that AR was suing only over the reduction in his quality of life. His case is that there is a breach of s 8 if AR is not treated with humanity and with respect for the inherent dignity of a person because of actions of Immigration New Zealand.

[26]   Before I consider that, I must say something about the first aspect, the risk of loss of life. The Supreme Court has recognised that on deportation decisions the question of risk of loss of life may arise.14 That is the refoulement risk, that is, the risk that a person may suffer loss of life if he is made to return to his homeland. As I say, he does not ask the court to decide that, but I see difficulties if he were to re-fashion his case to make such a claim. That is because he has already made that claim in applying for refugee status. If he were to advance that as a ground in this proceeding, he would be asking this court to make determinations which are already awaiting determination in his refugee application under the Immigration Act. I express my concern about this court engaging in an enquiry whether AR would suffer a risk of loss of life if deported to India when that is a matter for determination by Immigration New Zealand under the Immigration Act 2009. Section 25(1) of the Immigration Act provides:

125     Refugee or protection status to be determined under this Act

(1) Every person who seeks  recognition  as  a  refugee in New Zealand under the Refugee Convention must have that claim determined in accordance with this Act.

This proceeding is not a recognised way of obtaining determination of refugee status. It would not be appropriate to allow the processes of this court to be used to pre-empt a decision under the Immigration Act.

[27]   Mr Pang contends that s 8 can be viewed more widely and is not restricted simply to a loss of existence. There can be deprivation when a person remains alive but suffers a reduced standard of living. He referred me to the discussion in Butler and Butler, The New Zealand Bill of Rights Act: A Commentary (2nd edition). The authors of that text note that in their first edition they had accepted the interpretation that s 8 was concerned only with human existence and not with the quality of

14     Zaoui v Attorney-General [2005] NZSC 38, [2006] 1 NZLR 289 at [79].

existence. They said that they have changed their minds in the light of the decisions made in courts overseas. The text refers to decisions in Canadian courts under s 7 of the Canadian Charter of Rights and Freedoms which provides that everyone has a right to life, liberty and security of person and the right not to be deprived of it except in accordance with the principles of natural justice. The Canadian courts have applied that provision to matters going to the quality of existence as well as the deprivation of existence itself. The Canadian approach can be distinguished because it deals with life, liberty and security of the person, whereas s 8 is concerned only with the right not to be deprived of life.

[28]   The text also refers to a provision of the Indian Constitution which is in very similar terms to s 8 of the New Zealand Bill of Rights Act. The Indian Supreme Court has taken a liberal approach to questions of “quality of life”. The text also refers to emerging case law in other jurisdictions as well.

[29]   The question has come before the New Zealand courts in two cases. The first is Lawson v Housing New Zealand.15 That was a proceeding by a state house tenant challenging the government’s decision to charge market rents for state houses. One of the arguments raised was that that was a breach of s 8 of the New Zealand Bill of Rights Act. Hugh Williams J considered the Canadian decisions and noted that there was a trend to take a wide view of s 8. He said:

It is not necessary in the present case to decide whether social and economic factors are entirely excluded from the ambit of s 8: all that is at issue is whether the defendants’ acts deprived the plaintiff of her “life”. While this Court should have regard to international human rights norms in interpreting and applying the New Zealand Bill of Rights Act 1990, and whilst a liberal interpretative approach is warranted, the Court is ultimately constrained by the wording of s 8 itself. It requires an unduly strained interpretation of s 8 itself to conclude that the right not to be deprived of life encompasses a right not to be charged market rent for accommodation without regard to affordability and impact on the tenant’s living standards. Suffice to say there are strong policy arguments in favour of their exclusion.

He accordingly held that there was not any claim for breach of s 8.

15     Lawson v Housing New Zealand [1997] 2 NZLR 474, at 494.

[30]   The other decision is S v Mid-Central District Health Board.16 In that case, the plaintiff had been raped by a patient of the defendant’s hospital where he had been receiving psychiatric treatment. In suing the District Health Board, the plaintiff alleged breach of s 8. Master Gendall rejected that:

Protection against rape is not a social or economic right but a civil right. However, it is difficult to categorise it as a risk to life. I do not think, even on a generous interpretation, that protection against rape falls under this right. Unlike other situations where there is a high risk to life, in rape there is no inevitability of death. Death is not a natural consequence of rape. Rape may lead to a risk of pregnancy and the risk of a potentially fatal sexually transmitted infections. Both pregnancy and sexually transmitted infections are not directly related to the act of rape, however, and I think they are still too remote to be considered risk to life in that rape is a risk to life. Further, though rape and murder unfortunately sometimes go hand in hand, it is too big a leap to say that rape is therefore a risk to life.

[31]   Mr Pang said that the adverse consequences that AR had suffered as a result of the entries in the passport were these: AR had become unemployed and unable to work; he stood to suffer adverse consequences as a result of disclosure of his passport which would indicate to people that he had applied for refugee status, and there would be adverse consequences for him as a result. Mr Pang made a passing reference to potential adverse consequences in India. Travel overseas could be more burdensome for AR, and there was a suggestion that he may need medical treatment.

[32]   None of this was fully developed in the pleadings, but for this decision I accept that the matter might be fixed by amendment. Nevertheless, I am not satisfied that any of those matters could properly bring this matter within s 8. I take a more restricted view of the scope of s 8. In my view it is concerned solely with not depriving someone of life in the sense of human existence. It does not extend more broadly to factors going to the quality of life. The two decisions I have cited are generally consistent with that approach.

[33]   There are matters within the New Zealand Bill of Rights Act which support this. Under s 9 there is a right not to be subject to torture, or to cruel, degrading or disproportionately severe treatment or punishment. The matters that AR complains about do not go as far as torture, cruel, degrading or disproportionately severe

16     S v Mid-Central District Health Board HC Wellington, CP237/02, 18 March 2003 at [67].

treatment or punishment. If s 8 were to be construed in the way that Mr Pang contends, it would not have been necessary to provide for the right against torture and cruel treatment under s 9. The only provision in the Act about requiring a person to be treated with humanity and respect for the dignity of the person is s 23(5). That deals only with the rights of persons arrested or detained. It does not mean that people who have not been deprived of their liberty have a right under the New Zealand Bill of Rights Act to be treated with humanity and respect for the inherent dignity of the person. In other words, those provisions are a pointer that s 8 is to have more limited scope, that is, dealing only with existence rather than quality of life.

[34]   It is important to recognise that the New Zealand Bill of Rights Act deals only with civil and political rights. Obviously human existence is essential to the enjoyment of other rights, and that explains why s 8 has been included in the Act. But the matters that AR contends for go to the quality of existence. They are more about economic, social and cultural rights.

[35]   In my judgment, while the New Zealand Bill of Rights Act makes it clear that it is concerned to uphold civil and political rights (see clause (b) of the long title), it is not aimed at upholding social, economic and cultural rights. It would, in my view, be opening s 8 too wide to say that it gives the court the power to make determinations as to social, economic and cultural rights. Those matters involve challenging decisions as to the allocation of resources when there are competing demands - for example, for housing, for schooling and for health. Those decisions are political. Under New Zealand’s constitutional system those matters are for determination by the elected representatives of the people of New Zealand, Members of Parliament. In short, the New Zealand Bill of Rights Act has been drafted to keep those matters non-justiciable under that Act.

[36]   Accordingly, I do not regard the matters that AR complains about as properly coming within s 8 of the New Zealand Bill of Rights Act and I do not regard that claim as seriously sustainable.

[37]   There is also plead a breach of s 23(5). It is acknowledged that AR is at liberty and has not been deprived of his liberty. He is asking the court to apply s 23(5) as if

it were not restricted to people who have suffered loss of liberty. That is equally unsound in much the same way as his argument for expanding s 8 is unsound.

[38]   Accordingly, I find that his claim for breach of the New Zealand Bill of Rights Act does not show a reasonable cause of action and I strike out the cause of action. As his first cause of action has been withdrawn, and as he has not disclosed a viable second cause of action, I also dismiss the proceeding.

Postscript

[39]   AR has legal aid. After the hearing, on 2 March 2020 the defendant filed a memorandum advising that the defendant did not seek costs against AR. There will accordingly be no order for costs on the strike-out application.

……………………………….

Associate Judge R M Bell