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…

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: [2020] NZHC 421
Decision Date: 25 February 2020

CaseChat Overview and Summary

AR, an Indian national who has been in New Zealand since 2014, brought a claim against the Attorney-General for misfeasance in public office and for breaches of the New Zealand Bill of Rights Act 1990. AR’s previous applications for refugee status in Australia and the United Kingdom were unsuccessful. His application in New Zealand was also unsuccessful and he has remained in the country despite the expiry of his visa. AR sought to challenge the actions of immigration officers who had altered his visa and he claimed this put him at risk of harm if he were deported to India. AR commenced this proceeding against the chief executive of the Ministry of Business, Innovation and Employment but later sought to substitute the Attorney-General as the defendant. The defendant applied to strike out both causes of action. The court found that AR’s claim for breach of the New Zealand Bill of Rights Act was not sound in law and struck it out. AR’s first cause of action had been withdrawn and, as he had not disclosed a viable second cause of action, the proceeding was dismissed. AR had legal aid and the defendant did not seek costs against him.

Orders