Brantov v Removal Review Authority - [2006] NZCA 7

IN THE COURT OF APPEAL OF NEW ZEALAND
CA225/05
BETWEENASLANCHERIY BRANTOV

Applicant

ANDREMOVAL REVIEW AUTHORITY

First Respondent
ANDATTORNEY-GENERAL

Second Respondent

Hearing:13 February 2006

Court:Anderson P, Hammond and Ellen France JJ
Counsel:E Orlov for Applicant

R E Schmidt for Second Respondent

Judgment:23 February 2006

JUDGMENT OF THE COURT

A WE GRANT SPECIAL LEAVE SUBJECT TO THE FOLLOWING CONDITIONS:
(i)The Case on Appeal together with the applicant’s submissions are to be filed and served within two months.
(ii)Affidavit evidence is to be included by Mr Brantov in the Case on Appeal showing the current state of his application for a Russian passport. That evidence is to be updated by affidavit filed and served between 10 and 12 working days before the hearing date of the appeal.
(iii)The Attorney-General is to file submissions within 14 days after the Case on Appeal has been filed and served.
(iv)The Registrar is to allocate a fixture for hearing, as soon as same can be had thereafter.

B        Costs are reserved.
____________________________________________________________________
REASONS
(Given by Ellen France J)
[1]       This is an application under r 29(4) of the Court of Appeal (Civil) Rules 2005 for special leave to appeal out of time. The second respondent, the Attorney-General, opposes the application on the basis the proposed appeal has no merit. The Removal Review Authority, the first respondent, abides the decision of the Court.
Background
[2]       Mr Brantov, the intended applicant, is a seaman from the former Soviet Union. He arrived in New Zealand on 3 May 1997. He obtained a 12 month work permit as a member of the crew of a fishing vessel but absconded from his ship on 14 October 1997.
[3]       Mr Brantov then applied to the Refugee Status Branch (RSB) for refugee status. In the interim, he was granted a work permit as an asylum seeker. The RSB declined his application on 28 March 2002 when he did not appear for an interview.
[4]       Mr Brantov’s appeal to the Refugee Status Appeal Authority was dismissed by that Authority on 9 September 2004. Following that, his work permit was revoked.
[5]       On 14 November 2004, Mr Brantov appealed to the Removal Review Authority against the decision to remove him from New Zealand.
[6]       That appeal was dismissed on 4 April 2005. Although there was a right of appeal to the High Court on a question of law from that decision, Mr Brantov chose instead to file judicial review proceedings. He did so on 28 April 2005. On 7 September 2005, Lang J delivered a decision dismissing Mr Brantov’s application for judicial review of the decision of the Removal Review Authority.
The present application
[7]       Mr Brantov filed an application for leave to appeal against Lang J’s judgment in the Auckland High Court on 21 September 2005. That was in error. When it was realised a mistake had been made and that the appeal should have been filed in this Court, a notice of appeal and an application under r 29(4) for leave to appeal out…

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: [2006] NZCA 7
Decision Date: 23 February 2006

CaseChat Overview and Summary

In Brantov v Removal Review Authority, Aslancheriy Brantov, a former Soviet Union seaman who had arrived in New Zealand in 1997 and absconded from his ship, applied for special leave to appeal out of time against the Court of Appeal's decision dismissing his application for judicial review of the Removal Review Authority's decision to remove him from New Zealand. The legal issues before the Court were whether the appeal was filed out of time and whether it had sufficient merit to warrant special leave. The Court noted that the delay in bringing the appeal was not of Brantov's making and, as such, was not significant. The Court also found that the proposed appeal had sufficient merit, as the argument that statelessness was a relevant consideration in the decision to remove Brantov was not completely without merit. The Court granted special leave subject to conditions, including timely filing of the Case on Appeal and evidence of Brantov's application for a Russian passport.
The Court of Appeal granted special leave to Brantov to appeal out of time, subject to conditions. These conditions included the timely filing of the Case on Appeal and evidence of Brantov's application for a Russian passport. The Court also required the Attorney-General to file submissions within 14 days of the Case on Appeal being filed and served. The Registrar was instructed to allocate a fixture for hearing as soon as possible. The Court reserved costs.

Orders