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K v Attorney-General

K v Attorney-General

Case [2015] NZHC 2380 30 September 2015

Judicial Review

Natural Justice & Procedural Fairness

Immigration & Refugee Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003375 [2015] NZHC 2380

BETWEEN
K

Plaintiff

AND

ATTORNEY-GENERAL Defendant

Hearing: 10 August 2015

Appearances:

G M Illingworth QC & G Ghahraman for the Plaintiff
J Foster, T Westaway & C J Pendleton for the Crown

Judgment:

30 September 2015

JUDGMENT OF NATION J

The issues in summary

[1] These are judicial review proceedings. Mr K is asking this Court to overturn a decision of a Refugee Protection Officer refusing to keep information provided by Mr K’s witnesses confidential to the officer and a limited number of people within the Refugee Status Branch. He is also seeking a declaration or order to effectively bring an end to the current enquiry because of delay.

Background

[2] These events began when the Immigration Act 1987 was current, the immigration issues were dealt with within the Department of Labour and Mr K’s situation was being dealt with by a refugee status officer.

K v ATTORNEY-GENERAL [2015] NZHC 2380 [30 September 2015]

[3] On 29 November 2009, the Immigration Act 2009 came into effect.1 Mr K’s status has been the subject of an inquiry by a Refugee Protection Officer (RPO) who operates within the Refugee Status Branch (RSB) which is part of the Ministry of Business, Innovation and Employment (MBIE).

[4] In this judgment, references to the RPO and RSB should, when appropriate, be taken as references to the immigration refugee status officer and offices dealing with Mr K’s situation under the 1987 Act and when this was within the Department of Labour.

[5] […] [6] […] [7] […] [8] […] [9] […] [10] […]
[11] […]2

[12] […] [13] […] [14] […] [15] […]
[16] […]3

1      Immigration Act 2009, s 2(1) with exceptions listed at s 2(2)-(5).
2      […]
3      […]

[17] […] [18] […]4 [19] […]
[20] […]

The pleadings as to confidentiality

[21] Mr K claims the RSB’s refusal means he cannot effectively answer the allegations that have been made against him in the RSB proceedings. He complains that the refusal, as contained in a letter from the RSB of 5 December 2014, constituted the exercise of a statutory power and was:

· unreasonable;

· a breach of natural justice;

· contrary to the New Zealand Bill of Rights Act 1990 (NZBORA);

· based on errors of law; and

· based on irrelevant considerations.

[22] Mr K asks the Court to set the RSB’s decision aside and for the Court to remit the case back to the RSB with such directions as the Court deems fit. He also asks the Court to exercise its inherent power to make such orders as might be necessary to protect the confidentiality of Mr K’s witnesses if the Court found the RSB should have taken the measures which Mr K wanted to protect his witnesses.

[23] The RSB acknowledges it has corresponded with Mr K and his lawyers as claimed. It has not pleaded to matters of law as alleged in the statement of claim…

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.

Continue reading K v Attorney-General

Details

AGLC: K v Attorney-General [2015] NZHC 2380
Case: [2015] NZHC 2380
Decision Date: 30 September 2015

CaseChat Overview and Summary

K, a refugee from Rwanda, has brought judicial review proceedings against the Attorney-General for the Minister of Immigration seeking to overturn a decision of a Refugee Protection Officer (RPO) refusing to keep information provided by his witnesses confidential to the officer and a limited number of people within the Refugee Status Branch (RSB). He also seeks a declaration or order to effectively bring an end to the current enquiry because of delay. The RSB operates within the Refugee Status Branch which is part of the Ministry of Business, Innovation and Employment (MBIE). The RPO is considering whether to cancel K’s refugee status because of information which suggests he may have been involved in genocide in Rwanda. The RPO refused to agree to confidentiality undertakings sought by K’s lawyers, namely that disclosure of witness statements would be restricted to certain people and that the identity, whereabouts or evidence of K’s witnesses would not be disclosed to Rwandan authorities or any other person, Government department, agency or entity without notice to K’s counsel. The RSB argued that any binding undertaking not to share confidential witness statements was outside its powers because it was bound by section 151 of the Immigration Act 2009. The RPO also considered s 151 required the RSB to share information with those agencies or persons to whom s 151 applied. The RSB contended that s 151(2) was not merely “permissive” but required the RSB to share information with those agencies or persons to whom s 151 applied. The letter also referred to the RSB seeing “the exercise of the discretion provided by s 151(2) as being able to be exercised freely each time a request to share information with another agency or individual arises”. The RSB saw that interpretation as precluding it from providing any binding confidentiality framework with respect to witness information in any given case. The Court found the RPO was in error in thinking it could not, pursuant to an undertaking, limit the power it has to disclose what would otherwise be confidential information to third parties pursuant to s 151(2). However, the Court exercised its discretion not to set aside the RPO’s ultimate decision and require it to reconsider how it dealt with the request. The Court found the decision the RPO ultimately reached was one it was lawfully entitled to reach having regard to s 151 and the judgment of the Supreme Court in Attorney-General v X. The decision the RPO ultimately reached was not unreasonable for the reasons already stated. Given the way in which the RPO was willing to deal with information it received, there would be an opportunity for K and his advisers to take further legal steps to prevent disclosure if there is a real risk that such disclosure could be in breach of the RPO’s statutory obligations under s 151. If K chooses not to put the statements obtained from witnesses before the RPO because of the RPO’s refusal to provide the undertakings K seeks, it is most unlikely that he will have lost the opportunity to have that information considered if the RPO decides to cancel his refugee status or appropriate Ministers or their delegates make decisions as to whether or not K is deported to Rwanda or whether he faces charges either within or outside New Zealand. The likelihood is that he would have served on him a deportation liability notice and that he would ultimately have a right of appeal to the Immigration and Protection Tribunal. The Court found that, on the basis of its inherent jurisdiction or through the Court’s jurisdiction on judicial review proceedings under the Judicature Act, it would not be appropriate for it to effectively stay the RSB’s inquiry to prevent an RPO from determining whether K’s refugee status should be cancelled. The inquiry which the RPO had embarked on had serious consequences for all concerned, not just K but also for the New Zealand Government and the United Nations in terms of maintaining the integrity of the legislation and international conventions which provide protection for those who genuinely require refugee status. A stay of the inquiry because of delay would have to be based on the requirements of natural justice. It would be wrong for the Court to bring the present inquiry being made by the RPO to an end when neither K nor the RPO had put before the Court the detailed information on which the RPO were relying. The current inquiry by the RPO may result in K seeking to challenge decisions that might be made by the RPO, the Immigration and Protection Tribunal, a Minister with regard to deportation or some other agency such as Crown Law with regard to the prosecution of K. It would be more appropriate for the effects of delay to be considered if and when the Court was required to review any such decision. On such occasion, the Court should have before it all the information that had been considered in reaching that decision. For that reason, the Court agreed with the submission made for the RPO that the application to stay the inquiry by reason of delay was premature. The Court denied K’s claim for the relief detailed in the statement of claim.

Orders