AR v Refugee and Protection Officer - [2016] NZHC 2916

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001032 [2016] NZHC 2916

UNDER
The Judicature Amendment Act 1972

The Immigration Act 2009

The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol The International Covenant on Civil and Political Rights

The Convention Against Torture

BETWEEN

AR Applicant

AND

REFUGEE AND PROTECTION OFFICER

Defendant

Hearing: 7 October 2016

Appearances:

Applicant on own behalf with D Lewis as McKenzie Friend
R E Savage for the Defendant

Judgment:

2 December 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 2 December 2016 at 4 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Crown Solicitors, Auckland
Copy To: Applicant

AR v REFUGEE AND PROTECTION OFFICER [2016] NZHC 2916 [2 December 2016]

Introduction

[1] The applicant seeks judicial review of a decision of a Refugee and Protection Officer (RPO) refusing to consider a second claim for recognition as either a refugee or protected person under the Immigration Act 2009 (Act).

[2] The judicial review proceeding was filed outside the 28 day timeframe prescribed by the Act.1 The applicant therefore seeks an extension of time to commence the review proceedings by reason of special circumstances pursuant to s 247(1)(a).

Background

[3] The applicant is a citizen of India. His parents and four siblings live in

Mumbai.

[4] He arrived in New Zealand in August 2014 and claimed refugee and/or protected person status under the Act. He did so on the grounds that he feared serious harm at the hands of the leader of the Shiv Sena political party, Uddhav Thackeray, and his associates. He claims to have worked as a hawala money courier for that group. In January 2014, he says he was robbed while couriering approximately NZD 2 million. The group he was working for believes he stole the money, and consequently, he says his personal safety is at risk.

[5] The applicant also claims he is at risk of harm by extremist Hindu groups as a result of him being a Shi’a Muslim and having been involved with a pro-Muslim political party in the 1990s.

[6] The applicant also states that he has previously been detained, questioned and beaten upon return to India from Australia in 2006, and again when returning from the United Kingdom in 2011. He has been denied refugee status in both of those countries and has convictions in the United Kingdom. Those convictions were not
disclosed on the claim form for refugee and protected person status.

1 Section 247(1).

First claim

[7] The applicant’s first claim was declined by a RPO on 18 December 2014. The applicant appealed to the Immigration and Protection Tribunal (Tribunal).

[8] The Tribunal traversed the applicant’s claim in some detail. It concluded that there was no credible evidence establishing that the applicant was at risk of serious harm if he returned to India.

[9] The applicant’s evidence was rejected as false, and core aspects of his evidence were found to be…

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: [2016] NZHC 2916
Decision Date: 2 December 2016

CaseChat Overview and Summary

The case of AR v Refugee and Protection Officer [2016] NZHC 2916 involved a judicial review of the Refugee and Protection Officer's (RPO) decision to refuse to consider a second claim for recognition as a refugee or protected person under the Immigration Act 2009. The applicant, a citizen of India, sought an extension of time to commence the review proceedings due to the filing being outside the 28-day timeframe prescribed by the Act. The legal issues that the court was required to decide were whether there were special circumstances justifying the extension of time and whether the RPO erred in law in interpreting and applying s 140 of the Act. The court found that although the delay was not short, it was not substantial when considering the applicant's circumstances and the fact that the application for leave was filed within time. However, the court also found that the RPO did not err in law in interpreting and applying s 140 of the Act. The court concluded that the additional material offered by the applicant did not establish a significant change in circumstances or mean that the claim was not repetitious of the first claim. Therefore, the application for leave to extend time to apply for judicial review was dismissed.

The court's decision was based on a thorough analysis of the relevant statutory provisions and case law. The court considered the three factors identified in Rajan v Minister of Immigration for determining whether special circumstances exist: the length of the delay, the reason for the delay, and in marginal cases, a brief examination of the merits. The court found that the length of the delay in this case was not substantial, and the reason for the delay was due to personal circumstances and miscommunication between the applicant's legal representative and counsel for the RPO. The court also found that the RPO did not err in law in interpreting and applying s 140 of the Act. The court concluded that the additional material offered by the applicant did not establish a significant change in circumstances or mean that the claim was not repetitious of the first claim. Therefore, the application for leave to extend time to apply for judicial review was dismissed.

Orders