Aziz v Chief Executive of the Ministry of Social Development HC Wellington CIV 2007-485-1271

[2010] NZHC 1019

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2007-485-1271

UNDER  the Social Security Act 1964

IN THE MATTER OF     an appeal by way of Case Stated from the determination of the Social Security Appeal Authority at Wellington under s 12Q of the Social Security Act 1964

BETWEEN  FRAIDOON AZIZ Appellant

ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:         15 April 2010

Counsel:         P D McKenzie QC for Appellant

L M Fong for Respondent

Judgment:      15 April 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr Aziz moves for leave to appeal on a point of law from my judgment of 17

March 2009.

[2]      The application raises two issues of law:

(a)Whether an appellant before the Removal Review Authority, who may not be removed from New Zealand while his appeal is pending, is  unlawfully  present  in  the  country  for  purposes  of  the  Social Security Act.  If he is lawfully present, he is eligible subject to s 61

for a benefit under that Act;

FRAIDOON AZIZ V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV 2007-485-1271  15 April 2010

(b)       Whether denial of an emergency benefit breached s 9 of New Zealand

Bill of Rights Act 1990.

[3]      The application is opposed, the respondent maintaining that the proposed appeal is not seriously arguable, that the judgment is NZBORA-consistent, and that there never was any evidence that Mr Aziz was destitute so as to raise a factual foundation for violation of s 9.

[4]      No point is taken about the long delay, which is attributable to the loss of legal aid, leading to the withdrawal of former counsel.  Mr McKenzie has brought this application on a pro bono basis.

[5]      I have decided that the application should be granted.  I can state my reasons shortly, with no disrespect to Ms Fong’s thoughtful argument.

[6]      First, I thought the legislation clear, but others might disagree.  In particular, the Social Security Act does not specify when presence is unlawful, so the issue requires the exercise of judicial judgement.   Mr McKenzie emphasis that the two statutes have different objects and use slightly different language to address the concept of unlawful presence.   The case raises an issue in respect of which the English Courts, admittedly in a different legislative context and when dealing with persons  who  are  still  refugee  status  claimants,  have  taken  the  contrary  view, reasoning that to deny a benefit to a person who cannot be removed may be to violate human rights by reducing him or her to destitution.  That is an issue of some moment.   If the Court of Appeal accepts that s 9 may be breached in such circumstances, the Court might be willing to adopt a different interpretation of the legislation.

[7]      Second, the NZBORA issue was not argued before the Authority, but it was argued before me, and I do not think there is any prejudice to the respondent in allowing it to go forward.   It is common ground that there is no evidence that Mr Aziz was destitute.   He had found support in the community.   I decline for that reason to limit the scope of the second appeal by eliminating the Bill of Rights ground.

[8]      Third, the issue is not confined to Mr Aziz, although the size of the class affected by this issue is controversial.   The Immigration Act 2009 is expected to come into force this year, but it has not yet done so.

Miller J

Solicitors:

Witten-Hannah Howard, Auckland for Appellant

Crown Law Office, Wellington for Respondent