Be (Nigeria) v A Refugee and Protection Officer

[2022] NZHC 2064

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1157

[2022] NZHC 2064

UNDER

Section 245 of the Immigration Act 2009

IN THE MATTER OF

An application for leave to appeal a decision of the Immigration and Protection Tribunal

BETWEEN

BE (NIGERIA)

Applicant

AND

A REFUGEE AND PROTECTION OFFICER

Respondent

CIV-2022-404-001164

BETWEEN

BE (NIGERIA)

Applicant

AND

A REFUGEE AND PROTECTION OFFICER

Respondent

IMMIGRATION AND PROTECTION TRIBUNAL

Second Respondent

Hearing:

16 August 2022

Appearances:

S Lamain for the Applicant

S Perera and M Deligiannis for the First Respondent A Lawson for the Second Respondent

Date of Minute:

19 August 2022

JUDGMENT OF POWELL J

[Application for Stay of Humanitarian Appeals in Immigration and Protection Tribunal

BE (NIGERIA) v A REFUGEE AND PROTECTION OFFICER [2022] NZHC 2064 [19 August 2022]

This judgment was delivered by me on 19 August 2022 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]The applicant has applied:

(a)Under s 245 of the Immigration Act (“the Act”) for leave to appeal (“the appeal application”) a decision of the Immigration and Protection Tribunal (“the Tribunal”); and

(b)Under s 249 of the Act for leave to commence judicial review of that decision (“the judicial review application”).

[2]        In anticipation of the first call of the proceedings, on 12 August 2022 counsel filed a comprehensive joint memorandum which meant all but one issue could be dealt with by consent, and directions were issued to take the applications through to hearing on 6 December 2022.

[3]        The one remaining issue relates to the applicant’s deportation (non-resident) appeal (IPT number 600474) (“the humanitarian appeal”). The humanitarian appeal is due to be heard by the Tribunal on 18 and 19 October 2022, the Tribunal having declined an application for adjournment on behalf of the applicant. As a result, the applicant has sought interim orders to the effect that the humanitarian appeal be stayed pending the outcome of the present applications. In particular, the applicant seeks the stay on the grounds of natural justice and risk of prejudice given the Tribunal can rely on its earlier findings of fact, which are matters in dispute in these applications. The applicant also notes that a stay of proceedings would reduce the need for further Court action should the humanitarian appeal be declined on the same facts already under dispute.

[4]        There is no dispute that this Court has jurisdiction to make the orders sought whether pursuant to r 20.10(2)(c) of the High Court Rules 2016, s 15 of the Judicial Review Procedure Act 2016 and/or this Court’s inherent jurisdiction. However, unlike other similar applications where orders for stay have been made pending disposal of High Court challenges, in this case the first respondent actively opposes any stay on the basis that such is not in the interests of justice.

[5]        Having considered each parties’ submissions, I decline to order a stay. In effect the application for a stay serves as a de facto appeal against the decision by the Tribunal to decline to adjourn the humanitarian appeal. The statutory framework is therefore important. Of importance, s 222(1) of the Immigration Act 2009 requires the Tribunal to determine “an appeal or matter with all reasonable speed” while       s 222(3) provides:

No decision on an appeal or matter is to be called into question on the basis that the appeal or matter ought to have been heard or decided earlier or later than any other appeal, matter, or category of appeal or matter.

[6]        In addition to the relevant parts of s 222 which clearly weigh against any stay, and indeed fundamentally undermine any argument that the humanitarian appeal needs to follow the present applications, s 236 of the Immigration Act 2009 is also directly applicable because the appellant is currently serving a lengthy sentence of imprisonment (15 years 10 months) for drug importation charges, and is due to be considered for parole before the Parole Board in September or October 2022. This section provides:

(1)Where a person appealing against his or her liability for deportation is serving a sentence of imprisonment in a prison, the Tribunal must, with a view to determining the appeal before the person’s release, consider  and  determine  any  appeal  on   humanitarian   grounds  as soon as practicable after the appeal is lodged but before the person’s parole eligibility date or (in the case of a person serving a short-term sentence) before the person’s statutory release date.

(2)In   this   section, parole   eligibility   date, short-term   sentence,  and statutory release date have the meanings given in section 4 of the Parole Act 2002.

[7]        The specific instruction to “consider and determine” a humanitarian appeal “as soon as practicable” after it is lodged and before parole eligibility dates powerfully reinforces the emphasis on prompt hearings without regard to the order of categories of appeals, as contained in s 222.

[8]        Taking these provisions together I conclude the statutory framework does not support the exercise of the Court’s jurisdiction to stay the humanitarian appeal pending determination of the present application.

[9]        In any event it is difficult to see how proceeding with the humanitarian appeal in advance of the present applications will prejudice the applicant. In particular in the event he is successful in the High Court applications, the humanitarian appeal, even if unsuccessful, is likely to be moot, while in the event the applicant is unsuccessful in the High Court, there will be no change to the credibility findings previously made by the Tribunal and thus no prejudice to the applicant in the event those findings are relied upon by the Tribunal in the humanitarian appeal.

[10]The application for a stay is therefore dismissed.

Powell J

Solicitors/Counsel:

McLeod & Associates, Auckland

Deborah Manning, Landmark Chambers, Auckland Simon Judd, Kitchener Chambers, Auckland

Crown Law, Wellington (M Deligiannis / Sonali Perera)