AR (India) v Refugee and Protection Officer

[2020] NZHC 1025

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002364

[2020] NZHC 1025

IN THE MATTER

of the High Court Rules 2016, Part 19;

Evidence Act 2006, ss 68 and 69; and Senior Courts Act 2016, s 12, the inherent
jurisdiction

IN THE MATTER

of a decision by the Refugee Status Branch to decline to disclose potentially prejudicial information relevant to an application made by the applicant in an RSB hearing

BETWEEN

AR (India) Applicant

AND

REFUGEE AND PROTECTION OFFICER

Respondent

Hearing:	14 May 2010 (via VMR)
Counsel:	RS Pidgeon for Applicant MJ Mortimer for Respondent
Judgment:	18 May 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 18 May 2020 at midday pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Integritas Law Firm, Auckland. Meredith Connell, Auckland. RS Pidgeon, Auckland.

AR (India) v REFUGEE AND PROTECTION OFFICER [2020] NZHC 1025 [18 May 2020]

An unusual application

[1]    AR is in the middle of a third application for refugee or protected person status.1 He seeks permission to bring an originating application compelling the Ministry of Business, Innovation and Employment to provide information he says he needs. AR contends the High Court has an inherent jurisdiction to do this. The Ministry opposes the application on several grounds, including mootness. It has told AR it will not rely on the information sought when determining refugee status.

Background

[2]    AR is from India and has twice sought refugee status. On 4 May 2018, he sought refugee status a third time. Rebecca Bartholomew was the Refugee and Protection Officer assigned  to  consider  AR’s  application.  She  interviewed  AR 19 and 20 July 2018. AR alleged Ms Bartholomew engaged in impropriety and sought to injunct the process. To resolve matters, it was agreed Bianca Atlas would replace Ms Bartholomew as the officer dealing with AR’s case.

[3]    Ms Atlas interviewed AR 4 June 2019. She questioned AR about a passport he allegedly showed a bank “towards the end of 2018”. Ms Atlas suggested the passport contained a false work visa. AR denied the allegation.

[4]    On 13 June 2019, AR wrote to Ms Atlas asking for a copy of the alleged visa, the identity of the bank (including the branch), and when AR was said to have presented the visa to the bank. On 20 June 2019, AR was given a copy of the alleged visa but not the other two pieces of information.

[5]On 26 June 2019, Ms Atlas wrote to AR. She said:

…

Later in the second interview, [AR] was informed that the RSB had received information that there is a work visa (valid from 11 August 2018 to 28 March 2022) in his passport (“the 2018 work visa”), which bears the same visa label number (13768785) as a limited visa (valid from 6 January 2017 to 6 April 2017) issued by INZ to [AR]. It was noted that the last visa issued by INZ to

1      Refugee status for short.

[AR] was a work visa, valid from 28 September 2017 to 28 March 2018, and that the 2018 work visa was not issued by INZ.

[AR] denied the existence of the visa, stating that there is no such visa on his passport, that the 2018 visa is not his work visa, and that he was never issued a visa in 2018. He later reiterated that he does not know where the 2018 work visa came from, it is not on his passport, and that he had seen it for the first time today.

The RPO advised [AR] that a bank had informed INZ that he had presented his passport containing the 2018 work visa to the bank. [AR] denied having done this, again stating that he was not issued this visa. After [AR’s] representative alluded to CCTV footage from the bank, [AR] became insistent that such footage would exonerate him from allegations that he had presented his passport and the 2018 work visa to the bank.

…

The combination of these concerns may lead to the view that [AR] inserted a fraudulent work visa into his passport and presented this to a bank. This information may undermine [AR’s] credibility.

[6]    AR replied 4 July 2019. He said he could not respond without knowing the bank’s name (and branch), when this occurred, and why he allegedly presented the visa. For ease of reference, I call this the “bank information”. AR sought the bank information under the Official Information Act 1982 and Privacy Act 1993.

[7]    Ms Atlas responded 24 July. She declined to provide the bank information, citing s 6(c) of the former and s 27(1)(c) of the latter. Ms Atlas said release would “likely prejudice the maintenance of the law”.

[8]Ms Atlas has since left the Ministry. Cameron Leslie is her replacement.

[9]    On 22 October 2019, AR filed this application. On 2 March 2020, Mr Leslie swore, by affidavit, he:

… will not rely on, or take into account, the information provided by the unnamed bank relating to the existence of a false work visa in the applicant’s name (number 13768785 with stated expiry date of 28 March 2022).

… will not pursue the concerns put to the applicant in the … letter under the first heading “Mr [AR’s] passport and the 2018 work visa”.

AR’s argument in a nutshell

[10]   On behalf of AR, Mr Pidgeon contends the High Court has a broad discretion to permit a claim by originating application procedure.2 Mr Pidgeon contends the Court’s inherent jurisdiction is similarly broad and extends to requiring provision of information by  a  government  official  or  department  absent  related  litigation.  Mr Pidgeon emphasises AR’s vulnerability, and the potential importance of the information sought.

Analysis

[11]   Rule 19.5 of the High Court Rules 2016 empowers the Court to permit use of originating application procedure “in the interests of justice”. The discretion is “broad and untrammelled”.3 However, it would be wrong to exercise that discretion here for reasons that can be brief, and which reduce to two.

[12]   First, the application is moot, premature, or both. The bank information forms no part of AR’s earlier refusals of refugee status, nor related adverse credibility determinations. The officer dealing with AR’s latest refugee application has sworn he will not consider the bank information when making a decision, nor tax AR with the allegation he presented a false work visa.4 And of course, no decision has yet been made about AR’s refugee status.

[13]   If AR is again declined this, he may appeal or seek review under the Immigration Act 2009. The unavailability of the bank information—and any associated procedural complaint—may be explored in this context. Moreover, AR may pursue the Ministry’s decision about the bank information under the Privacy Act, Official Information Act, or both.5

2      High Court Rules 2016, r 19.5.

3      Department of Internal Affairs v Qian Duoduo Ltd  [2016] NZHC 2544, [2016] 23 PRNZ 386 at [19].

4      Mr Pidgeon contends the bank information may help AR, as AR believes he can prove he did not produce a false visa to a bank. Again, the allegation is not live.

5 See [18].

[14]   Second, Part 7 of the Immigration Act provides “comprehensively for the system of appeal and review in respect of decision making under [the] Act”.6 Each is subject to a range of strict timeframes. So too leave requirements. For example, on appeal to the High Court, an appellant must identify a question of law of general or public importance.7 This system reflects the need “to manage immigration in a way that balances the national interest … and the rights of individuals”.8

[15]   Permitting an application of this nature—as an antecedent or allied step to the determination of refugee status—would encroach the statutory scheme and risk a form of pre-emptive judicial review. Furthermore, it is not clear the High Court can compel the Ministry to provide AR the bank information through exercise of inherent jurisdiction. This appears to be without precedent; AR could not cite any.

[16]   Such novelty underscores the undesirability of a free-wheeling application in this context, particularly when, as observed, AR has other means of redress and the Ministry has said it will not rely on the bank information when determining AR’s refugee status.

[17]   I do not overlook AL (Nigeria) v  Immigration  and  Protection  Tribunal.9  AL was declined refugee status. He sought permission to appeal and judicially review that decision. Concern arose as to whether AL had filed the claim for judicial review in time, as the Registry did not allocate a filing number. AL sought permission to use originating application procedure to address the concern. The respondent did not oppose the application or contest the timely filing of the judicial review claim. Edwards J granted the application by consent, observing use of “an originating application … may not have been necessary”.10 AL is distinguishable.

[18]   This leaves one matter mentioned in argument. On behalf of AR, Mr Pidgeon said if permission was given for an originating application, or if the bank information was sought under the Privacy Act or Official Information Act, the refugee application

6      Section 184(a) and YLS v Refugee and Protection Officer [2017] NZCA 582, [2018] NZLR 371 at [38].

7      Immigration Act 2009, s 245.

8      Section 3(1).

9      AL (Nigeria) v Immigration and Protection Tribunal [2018] NZHC 42.

10 At [6].

may need to be “stayed” or halted until the information was made available to AR. Given the Ministry’s stance in relation to the bank information and the availability of post-decision relief, the rationale for this suggestion is not obvious. Moreover, it is now five years since AR was first declined refugee status in New Zealand.11 Risk of tactical delay arises.

Recusal

[19]   On the Friday before the hearing, Mr Pidgeon asked me to consider recusing myself. This because in 2017 I dismissed an appeal by AR in relation to one of his earlier applications for refugee status.12 Mr Pidgeon said AR had asked him to raise the issue. I heard brief argument on the Monday (by telephone). Mr Pidgeon said AR was anxious but acknowledged “the legal test for recusal was not met”. On behalf of the respondent, Mr Mortimer abided while underscoring Mr Pidgeon’s unsolicited concession. I dismissed the recusal application and said I would give reasons when addressing the originating application. These can also be brief.

[20]   The 2017 appeal involved a question of law, more particularly, whether there was or should be a “test” for credibility in refugee cases. I held the question was settled by existing authority of the Court of Appeal, and further refinement undesirable. In the same context, I held it was open to the Immigration and Protection Tribunal to dismiss AR’s appeal based on its credibility determinations. I concluded that Tribunal did not err. Such modest involvement in AR’s affairs could not lead a fair-minded observer to reasonably apprehend a real possibility I may not bring an impartial mind to AR’s procedural application for the bank information.13

Costs

[21]I invite memoranda of not more than five pages:

(a)From the respondent, by 2 June 2020.

11     Re BY (India) [2015] NZIPT 800819.

12     AR v Immigration and Protection Tribunal [2017] NZHC 2039.

13     Saxmere Company Ltd v Wool Board Disestablishment  Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35.

(b)From AR, by 16 June 2020.

……………………………..

Downs J