K v Immigration and Protection Tribunal
[2014] NZHC 1800
•1 August 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-003520 [2014] NZHC 1800
UNDER the Judicature Amendment Act 1972 and
the Immigration Act 2009
IN THE MATTER
of an application for leave to bring judicial review proceedings
BETWEEN
K Plaintiff
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Defendant
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Second Defendant
Hearing: 12 June 2014 Counsel:
Plaintiff in person
RE Savage for DefendantsJudgment:
1 August 2014
JUDGMENT OF ASHER J
This judgment was delivered by me on Friday, 1 August 2014 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell, Auckland.
Copy to: Plaintiff.
K v IMMIGRATION AND PROTECTION TRIBUNAL [2014] NZHC 1800 [1 August 2014]
Introduction
[1] The plaintiff who I will refer to as “K” applies for leave to judicially review a decision of the Immigration Protection Tribunal (IPT) dated 21 June 2013.1 That decision dismissed an appeal against a decision of a Refugee and Protection Officer of the Refugee Status Branch (RSB) declining to grant refugee and protected person status to K.
[2] K is a Romanian citizen. He has a significant immigration history. He initially arrived in New Zealand on 12 November 2008. On 26 November 2008 he was sentenced by an appellate court in Romania to four years and two months’ imprisonment for his part in a fraudulent transaction in which a VAT refund of
€120,000 was procured by a company in which he had an interest. On 2 December
2008 he applied for refugee status.
[3] His application was declined on 17 April 2009. There then followed a very lengthy history of court hearings or applications involving on my calculation no less than 44 steps in the Refugee Status Appeals Authority, High Court, Court of Appeal and Supreme Court. Total costs have been awarded against him of $19,663.83. They have not been paid.
[4] The plaintiff filed his appeal against the RSB’s decision on 20 April 2012. The IPT heard his appeal on 24 January 2013, and it was dismissed on 21 June 2013. On 17 July 2013 K filed this application for judicial review of the IPT’s decision.
[5] K’s most recent work visa expired on 11 September 2013. The plaintiff would appear to be presently unlawfully in New Zealand.
[6] The plaintiff ’s statement of claim in his application for leave to appeal on a point of law in summary alleges:
(a) The IPT erred in law in its application of ss 130 and 131 of the
Immigration Act 2009 (the Act) with reference to Article 7 of the
International Covenant on Civil and Political Rights and the
1 M v RSB [2013] NZIPT 800339.
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention Against Torture);
(b) The IPT incorrectly weighed the evidence adduced by the defendant;
and
(c) The decision of the IPT was unreasonable.
The leave gateway
[7] The hurdle K faces is s 249 of the Act. Section 249 limits when a judicial review of an IPT decision may be brought and imposes a leave requirement. In determining whether to grant leave, s 249(1C) provides that the Court must have regard to whether:
(a) Review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b)If paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
[8] An appeal against the IPT under s 245 must be on a point of law. Although s 249 does not state that a review proceeding that involves issues that could have been dealt with by appeal and which are not of general or public importance should not be granted leave, this is the clear implication of the requirement that the Court “must” have regard to those factors. It is possible that a Court could grant leave even if either or indeed both of these two factors were not made out, but that would
be a rare circumstance given the emphasis on the two criteria.2
2 Allada v Immigration and Protection Tribunal New Zealand [2014] NZHC 953 at [32].
Sections 130 and 131
[9] An error of law involves the application of an incorrect legal test or the wrong answer to a legal question. It includes an error in statutory interpretation.3
K, in his submissions in relation to the application of s 130 of the Act and Article 7 of the International Covenant on Civil and Political Rights, asserts that the IPT made mistakes in understanding his claim. He submits that it did not correctly interpret Article 7 of the International Covenant on Civil and Political Rights and there was reference to Article 1 of the Convention Against Torture. This is a matter of law that could have been dealt with on appeal.
[10] Section 130(1) recognises that a person must be recognised as a protected person under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand. The IPT held that there was insufficient evidence to demonstrate that the appellant was likely to face torture should he return to Romania and there
was a good deal of evidence that supported that conclusion.4 This is plainly not a
matter of general or public importance and could have been dealt with on appeal.
[11] In relation K’s reliance on s 131, that section provides:
131 Recognition as protected person under Covenant on Civil and
Political Rights
(1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.
…
(5) For the purposes of this section,—
(a) treatment inherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivation of life or cruel treatment, unless the sanctions are imposed in disregard of accepted international standards:
(b) the impact on the person of the inability of a country to provide health or medical care, or health or medical care of a particular
3 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [52].
type or quality, is not to be treated as arbitrary deprivation of life or cruel treatment.
[12] The IPT summarised the relevant principles as follows:
[129] The prohibitions of torture and cruel, inhuman or degrading treatment or punishment are a species of ill-treatment within the same genus. In AC (Syria) [2011] 800035, the Tribunal found their association together in Article 7 of the ICCPR cast a hue and pointed towards their “being some particularly reprehensible quality or treatment or punishment in question”, see AC (Syria) [2011] 800035, at [85] and [86].
[130] The Tribunal in AC (Syria) referred to the New Zealand Supreme Court cases of Taunoa v Attorney-General [2008] 1 NZLR 429, where it was unanimously found that, to fall within the right as a whole, the ill-treatment or harm needed to be of a serious kind. Blanchard J also observed that the inherent seriousness of cruel, inhuman or degrading treatment or punishment was reinforced by their appearance in section 9 of the New Zealand Bill of Rights Act 1990 which also dealt with torture. Tipping J, at [297], considered that section 9 was “reserved for truly egregious cases which call for a level of denunciation of the same order as that appropriate to torture”. McGrath J commented that there is a “high threshold” to be met before a breach of section 9 can be found.
…
[135] It may be extrapolated from this that an act which causes serious harm to a person’s dignity and physical or mental integrity may fall within the meaning of cruel, inhuman, or degrading treatment or punishment.
[13] The issue of whether the IPT decision was correct is plainly a question of law involving as it does the interpretation of s 131 and the assessment of the application of Taunoa v Attorney-General.5
[14] It is true that the European Court of Human Rights in Lăutaru v Romania has stated of Romanian prison conditions in Colibaşi prison:6
Even though in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court concludes that the conditions of his detention caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment proscribed by Article 3.
5 Taunoa v Attorney-General [2008] 1 NZLR 429.
However, that was in a different context in relation to cell size and individual cell size and hygiene, and this jurisdiction follows the approach in Taunoa v Attorney- General.7
[15] Moreover, the IPT was aware of the plaintiff’s particular characteristics and made the following conclusions in relation to the totality of conditions (following a summary in the second defendant’s submissions):
(a) The plaintiff would be likely to be placed in a small cell space in comparison with European standards but this is to be viewed in relation to other characteristics such as the availability of light, ventilation and temperature control. There was no suggestion that there is a shortage of beds, the plaintiff will be entitled to exercise time outside the cell and there is a likelihood that the plaintiff would be placed in a semi-open regime where he may get the opportunity to work in the in-house farm and partake in other social or education programmes;
(b)The diet is simple but there was no evidence that the nutrition is such that the plaintiff will suffer any particular health condition. While medical conditions are lacking in some respects, there is no evidence that given the plaintiff ’s health and the period of time he will be imprisoned, he will face any serious health problems that cannot be treated; and
(c) It was accepted that hygiene in the facility is insalubrious with toilets not working properly, the shower area needing better cleaning and the presence of parasites. However, the IPT considered that these conditions were troubling but that the plaintiff would be serving a
sentence of four years or less (possibly less if granted parole).
7 Taunoa v Attorney-General, above n 5, at [161]-[169] and [171] per Blanchard J with whom
Tipping J agreed at [275] as did McGrath J at [340].
[16] The IPT carefully considered the relevant jurisprudence and determined that the plaintiff would not be subject to arbitrary deprivation of life or poor treatment if deported from New Zealand. Not only is this not a question of law, but the issue is straightforward and in light of Taunoa v Attorney-General it would seem that the plaintiff’s case is hopeless. There is no point of public or general importance that arises.
[17] The IPT decision ran to 109 paragraphs. It is an exhaustive analysis of the arguments that could be mustered in K’s support. K in his very general submissions has failed to demonstrate any legal error. In my view neither of the s 249(1C) criteria have been shown to exist in relation to these legal arguments. For these reasons the application for leave to bring the judicial review must fail.
Argument that the Tribunal wrongly weighed the evidence
[18] K submitted as evidence a decision of the Refugee Review Tribunal of Australia relating to an application by his wife. He was unable to point to any admissible aspects of that decision that assisted his case. The basic problem he faced, which he did not address, was that his evidence before the IPT was not accepted. The IPT carried out its own exhaustive analysis of the factual material. There is nothing to suggest its conclusions were wrong. The IPT specifically took into account credibility findings made against K including that of Courtney J in M v Refugee Status Appeals Authority, where his evidence about his participation in
the wrongdoing in Romania was regarded as inherent improbable.8
[19] The IPT in fact considered the Refugee Review Tribunal of Australia decision and its relevance.9 A difficulty in dealing with K’s submissions is that he tends to make assertions of error of law without explaining why the error has occurred. I do not propose dealing with all K’s assertions of error, given that they are statements made without reasons, and thus not possible to evaluate. They do not appear to be points of law, and undoubtedly have no general or public importance. They are very
specific to this case, do not stand for any point of significance, and appear to be
without merit. So the criteria are not met on this ground.
8 M v Refugee Status Appeals Authority HC Auckland CIV-2010-404-3298, 17 September 2010.
9 M v RSB, above n 1, at [68]–[83].
Unreasonableness
[20] As I understand it, his overall argument is the decision of the IPT was unreasonable.
[21] However, K did not address this point in written submissions and did not identify any particular aspect of the decision that was unreasonable. The IPT decision was carefully reasoned and its conclusions appear to be sound. This point has no general or public importance, and is without merit.
Conclusion
[22] The IPT carefully and thoroughly reviewed the claim for refugee or protected person status. No error has been pointed to. The issues raised are either points of law, or meritless and unreasoned factual assertions that have no general or public importance.
Result
[23] The application for leave to judicially review the IPT’s decision is refused.
……………………………..
Asher J
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