H (SC 52/2018) v Refugee and Protection Officer

[2018] NZSC 85

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 52/2018

[2018] NZSC 85

BETWEEN

H (SC 52/2018)

Appellant

AND

REFUGEE AND PROTECTION OFFICER

Respondent

Court:	Elias CJ, William Young, Glazebrook, O’Regan and Ellen France JJ
Counsel:	F M Joychild QC and D Mansouri-Rad for Appellant U R Jagose QC and K F Gaskell for Respondent
Judgment:	24 September 2018

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is dismissed.

BWe make no award of costs.

REASONS

[1]        The appellant has applied to adduce further evidence in relation to his appeal to this Court pursuant to r 40(1)(b) of the Supreme Court Rules 2004.

[2]        The background to the application is as follows. The appellant applied for refugee status. The Refugee and Protection Officer dealing with his application set a

H (SC 52/2018) v REFUGEE AND PROTECTION OFFICER [2018] NZSC 85 [24 September 2018]

time for the appellant to present himself for an interview. The appellant asked for an adjournment of the interview but the Refugee and Protection Officer refused the adjournment and determined the appellant’s case without an interview taking place. The appellant commenced judicial review proceedings challenging the decision of the Refugee and Protection Officer. His application was dismissed in the High Court1 and that decision was upheld by the Court of Appeal.2 Both Courts found that the appellant’s rights to apply for judicial review was deferred until after he had appealed against the decision to the Immigration and Protection Tribunal and the appeal had been dealt with, applying s 249(1) of the Immigration Act 2009.

[3]        At issue in the appeal to this Court is whether the Courts below were correct to find that the appellant could not seek judicial review of the Refugee and Protection Officer’s decision without first resorting to the statutory appeal process provided for in the Immigration Act.

[4]        The proposed evidence would be an affidavit from the Deputy Chair of the Tribunal, responding to a request from the appellant that he advise this Court on matters relating to:

(a)The Tribunal’s jurisdiction in relation to de novo refugee appeals from a Refugee and Protection Officer and the ambit and nature of its hearings in practice.

(b)The use and relevance for the Tribunal, when assessing the merits of an appeal, of:

(i)the interview of the refugee applicant, undertaken by the Refugee and Protection Officer; and

(ii)the comments of the refugee applicant on that interview record.

1      H v Refugee and Protection Officer [2017] NZHC 2160, [2017] NZAR 1518 (Gordon J), which upheld an application by the respondent to dismiss the judicial review proceeding on the basis that the Court did not have jurisdiction to hear it.

2      H v Refugee and Protection Officer [2018] NZCA 188 (Cooper, Brown and Clifford JJ).

(c)Any other matters relating to the issues in the appeal which the Tribunal considers helpful for the Court to be aware of.

[5]        The appellant acknowledges that the evidence is not fresh and that it would have been best practice to have made application for this evidence to be adduced for the Court of Appeal hearing. However the appellant says that there is a gap in the relevant facts which is pertinent to a key issue on one of the appeal points, namely whether the de novo right to appeal to the Tribunal cures the procedural defect made by the Refugee and Protection Officer in declining the appellant an interview.

[6]        The appellant’s counsel, Ms Joychild QC, advises that she has contacted the Deputy Chair of the Tribunal who has indicated he would be prepared to swear an affidavit addressing the above points if this Court found it useful, on the basis of a neutral report that was independent of the parties.

[7]        The respondent opposes the application for leave to adduce this evidence, submitting that:

(a)The proposed evidence deals with matters of law, and therefore falls outside r 40 of the Supreme Court Rules, which allows for the admission of evidence “on questions of fact”.

(b)Even if the evidence were evidence of fact, it is not fresh (as the appellant acknowledges) and is not cogent.

(c)The fundamental issue before the Court is whether s 249(1) of the Immigration Act 2009 defers the appellant’s ability to commence judicial review proceedings, pending determination of the appellant’s de novo appeal to the Tribunal. This is a question of statutory interpretation of the Immigration Act and wider legal principle, and the proposed evidence is of insufficient relevance to the issue on appeal and incapable of affecting the correctness of the Court of Appeal decision.

[8]        The respondent points out that the Court of Appeal was provided with the Immigration and Protection Tribunal’s practice note dealing with refugee appeals and that this will also be provided to this Court. The respondent accepts that there would be no prejudice to the respondent if the proposed evidence were admitted.

[9]        We decline leave to adduce the proposed evidence. We do not consider that the proposed evidence would be helpful to us. We agree with the respondent’s submission that the appeal is essentially a matter of statutory interpretation and, to the extent that the scope of the right of appeal to the Immigration and Protection Tribunal affects that analysis, that is a question on which submission can be made.

[10]      We make no award of costs. To the extent that any question of costs arises, that can be addressed in the judgment on the substantive appeal.

Solicitors:

Mansouri Law Office, Auckland for Appellant Crown Law Office, Wellington for Respondent