AR v Immigration and Protection Tribunal

[2017] NZHC 1401

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003142

CIV-2015-404-003143 [2017] NZHC 1401

UNDER

ss 249 and 245 of the Immigration Act

2009 and the Judicature Amendment Act
1972

IN THE MATTER

of the 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol

BETWEEN

AR Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

REFUGEE AND PROTECTION OFFICER

[Second] Respondent

Hearing:	9 May 2017
Appearances:	The Applicant in Person, with B Johnson, McKenzie Friend J D Simpson for the Refugee and Protection Officer
Judgment:	22 June 2017

JUDGMENT OF HINTON J

[RE APPOINTMENT OF AMICUS CURIAE]

This judgment was delivered by me on 22 June 2017 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Solicitors:

……………………………………………………………………

Registrar/Deputy Registrar

Meredith Connell, Auckland

Party:

The Applicant

AR v IPT AND REFUGEE AND PROTECTION OFFICER [2017] NZHC 1401 [22 June 2017]

[1]      This is an appeal under the Immigration Act 2009 and the 1951 Convention Relating to the Status of Refugees against a decision of the Tribunal refusing to grant Mr AR refugee status.

[2]      At an Appeals Case Management Conference, the appellant requested that the

Court appoint amicus curiae.

[3]      Amicus curiae means “friend of the Court”.  An amicus is appointed by the Court at its discretion.1   Their role is to “assist the Court in a way in which the Court would not otherwise have been assisted”.2    Ferguson J in Grice v R referred to the role of amicus as:3

… one who as a stander-by, where a judge is doubtful or mistaken in a matter of law, may inform the Court. In its ordinary use the term implies the friendly intervention of counsel to remind the Court of some matter of law which has escaped its notice and in regard of which it is in danger of going wrong.

[4]      An amicus does not “represent” a party to the proceedings in a traditional sense and does not owe duties to them.  Often though, and it would apply here, they may in a very balanced way, present the arguments that a party would normally present, as well as weighing up the contrary arguments.

[5]      The scope of the role varies according to the circumstances of the particular case.4

[6]      I accept that the Court in this instance will be materially assisted by amicus in a way in which it would not otherwise be assisted.

[7]      In this case, Duffy J has held that the appeal raises a question of law of general and public importance.5   I agree with Mr Simpson, that factor in itself would

1      Beneficial  Owners  of  Whangaruru  Whakaturia  No  4  v  Warin  [2009] NZCA 60, [2009] NZAR 523 at [21].

2      Levy v Victoria (1997) 189 CLR 579 (HCA) at 604 per Brennan CJ. See also Solicitor-General v Moodie HC Wellington CIV-2005-485-1026, 25 July 2006 at [6].

3      Grice v R (1957) 11 DLR (2d) 699 at 702.

4      Registered Securities Ltd (in liquidation) v C (1999) 13 PRNZ 699 at 705-706.  An appointing Judge should delineate the role of amicus.   This also contains the cost which is met by the Crown Fund.  The Court has power under s 99A(1)(b) of the Judicature Act 1908 to order that the costs of amicus be met by any party to the proceedings.

not generally be enough to lead to appointment of amicus.  Leave to appeal is only granted where there is an important point of law.  If that were enough on its own, it would mean that in any case where leave to appeal was granted under the Immigration Act 2009, a party might be able to seek appointment of amicus.

[8]      Duffy J described the relevant question of law as nuanced.  She said that to her knowledge, the New Zealand Courts have not considered in great detail how credibility assessments should be made in claims for refugee status and whether those assessments require a particular approach that differs from that adopted in other legal proceedings.  She said that the legal questions in issue here are important, as  they  impact  on  how  well  New  Zealand  discharges  its  obligations  under  the

relevant international conventions.6   It seems there is some overseas case law on this

matter, but little within this jurisdiction.

[9]      I  have  considered  the  fact  that  the  applicant  has  come  this  far  and  has managed to obtain leave to appeal with the assistance of a McKenzie Friend7  or Friends, and whether the case could not therefore continue on that basis.  It seems to me, to the contrary.

[10]     I am advised that the two McKenzie Friends who assist the applicant, do so on an entirely unpaid basis.  This indicates some faith by them in his application and it seems unreasonable that they should continue to solely carry that load.   Also, McKenzie Friends cannot address the Court themselves, other than in very exceptional circumstances.   The applicant is from India, and while his English is reasonable, he clearly has very limited ability to speak on his own behalf.

[11]     In appointing amicus, there is always a concern not to circumvent the legal aid system, which has rules in place to ensure that needy litigants are  properly identified and treated fairly inter se.   However, I am advised by the applicant and

Mr Johnson, his current McKenzie Friend, that they have made no application for

5      AR v Immigration and Protection Officer [2017] NZHC 132.

6 At [27].

7      A McKenzie Friend is a term that arose from McKenzie v McKenzie [1970] 3 WLR 472 (CA). It refers to a litigant’s ability to apply to have an associate accompany them in Court. The associate may not make submissions or ask questions of the Court, but may sit with the litigant, offer advice regarding how the case should be handled and take notes. See also Mihaka v Police [1981] 1 NZLR 54 (HC).

legal aid because they have been unable to secure a lawyer who was prepared to conduct the case on legal aid.   Mr Johnson said that they have approached about seven lawyers, a number of whom he named.

[12]     In these circumstances, and conscious of the perfectly valid point that Duffy J inferentially makes with regard to true compliance with relevant international conventions, as opposed to lip service, I have decided it is appropriate to appoint amicus.

[13]     The task of amicus in this instance will be to assist with drafting the amended statement of claim and to provide submissions to the Court and to the parties ahead of  the  parties’ submissions.    The  applicant  may  elect  not  to  file  submissions, following those of amicus, but will have the opportunity to do so.  The submissions of amicus should also address the application to adduce further evidence.  Amicus will also attend the hearing on 15 August 2017 to address the Court orally first, followed by the applicant and respondent, unless the hearing Judge directs a different order.

[14]     The Registry will notify the parties once an appointment has been made.

[15]     Finally, I make or record the following directions:

(a)      The appeal and judicial review proceeding are set down for a half-day hearing on Tuesday, 15 August 2017.

(b)The  applicant’s  application  to  adduce  further  evidence  is  to  be determined  as  a  preliminary  issue  at  the  appeal  hearing.    This direction was proposed by the respondent, who does not seek to file evidence in reply.   The evidence sought to be adduced is already before the Court.

(c)      No order is made for security for costs.  The applicant is unemployed and has a back injury.  He was receiving ACC, but I am advised is no longer.

(d)Directions   and   timetable  orders  are  made  in   accordance  with paragraph  7(b)-(f)  of  the  second  respondent’s  memorandum  dated

4 May 2017, except that the relevant dates shall be as set out below. Submissions of amicus have been included.

(i)       Amended statement of claim and common bundle by 6 July

2017.

(ii)      Statement of defence and further documents by 13 July 2017. (iii)     Amicus  to  file  and  serve  submissions  and  authorities  by

27 July 2017.

(iv)     Applicant’s submissions and authorities (if any) by 2 August

2017.

(v)      Respondent’s submissions and authorities by 8 August 2017.

(e)       All  submissions  should  address,  as  far  as  possible,  any  relevant overseas case law.

[16]     If the parties have any issues with the condensed timetable, they are to notify the case officer and a telephone conference will be allocated forthwith.

––––––––––––––––––––––––––––

Hinton  J