M v Attorney-General
[2024] NZHC 3721
•9 December 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-419-000342
[2024] NZHC 3721
UNDER Judicial Review Procedure Act 2016 IN THE MATTER OF
An application for judicial review
BETWEEN
M (PROTECTED PERSON)
Applicant
AND
ATTORNEY-GENERAL on behalf of DEPARTMENT OF CORRECTIONS
First Respondent
Hearing: 26 November 2024 Appearances:
A O B Spense and X Wang for Applicant
D P Neild and A A A Ghandour for First Respondent
Judgment:
9 December 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 9 December 2024 at 3.30 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………..
M v ATTORNEY-GENERAL [2024] NZHC 3721 [9 December 2024]
Introduction
[1] The applicant, M, is a Brazilian national and a protected person under s 131(1) of the Immigration Act 2009. Between February 2017 and May 2020, he was detained in Waikeria Prison under the Immigration Act.
[2] In these judicial review proceedings, he contends that during his detention the Department of Corrections failed to adequately assist him with his claim for refugee and protected person status; it failed to provide him access to research materials, including the internet. M contends that the respondent breached his right to natural justice and that departmental staff breached their obligations under cl 193 of the Corrections Regulations 2005 to assist prisoners detained under the Immigration Act.
[3] In the present interlocutory application, the respondent Attorney-General applies for leave to cross-examine M. She seeks to cross-examine M on the factual issue of whether he ever made a request for access to the internet. The Attorney- General’s application is opposed. However, should the application be granted, M seeks leave to cross-examine a respondent witness, Mr Christiaan Cronjé, on related issues.
Relevant legal principles
[4] Cross-examination is not permitted as of right in judicial review proceedings but by leave.1 This reflects the nature of judicial review, which is intended to be simple, untechnical, and prompt and where primary facts will often not be in dispute. The focus of judicial review is on the lawfulness of the exercise of the statutory power.2
[5] Leave to cross-examine will be granted and when it is necessary in the interests of justice for the case to be disposed of fairly. As the Court of Appeal held in Geary v Psychologists Board, the criteria for leave—necessity and the requirements of justice
1 New Zealand Fishing Industry Inc v Minister of Agriculture & Fisheries [1988] 1 NZLR 544 (CA) at 554; Wallace v Chief Executive of the Department of Corrections [2023] NZHC 2248 at [7] (footnote omitted).
2 Wallace v Chief Executive of the Department of Corrections, above n 1, at [7]. See also Geary v Psychologists Board [2009] NZCA 134 at [22]–[23], in which the Court of Appeal noted that a right to cross-examination in judicial review would risk an “unwarranted dalliance into factual assessments by the courts”.
– are not unduly onerous.3 If a party can point with sufficient particularity to a basis upon which cross-examination is necessitated by the shape of the case, then leave will be granted.
[6] The courts have identified that cross-examination may be appropriate when there is a material conflict of interest or a dispute about a primary fact,4 or where the credibility of a deponent is in issue.5
[7] This Court has recently held that the following questions may be useful when considering whether a factual dispute justifies cross-examination:6
(a)Whether there is a factual dispute that needs to be resolved by the Court to fairly decide a particular ground of judicial review.
(b)Whether cross-examination is necessary to resolve that factual dispute or whether it can be resolved by the Court addressing the matter on the affidavit evidence and contemporaneous documentation.
(c)Whether it is likely that the dispute as to fact will be able to be resolved by the cross-examination in question.
[8] These reflect that factual issues should be resolved on the affidavit evidence if possible and the courts:7
… should not hesitate in adopting… a robust approach to making findings based on the affidavit evidence, and only grant leave when it is truly necessary. This can include drawing adverse inferences where appropriate.
Analysis and decision
[9] The Attorney-General contends that in order to determine these judicial review proceedings, the Court must be able to identify (and analyse) the relevant exercise of a statutory power.8 She says that identifying whether the applicant made requests for assistance and, if he did, when those requests were made and to whom, is necessary to enable that analysis. She contends that if the Court finds that M never requested
3 Geary v Psychologists Board, above n 2, at [22]–[23].
4 Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 656–657; Geary v Psychologists Board, above n 2, at [25]–[26].
5 Edwards v Toime (No 1) [2005] NZAR 140 at [23].
6 Wallace v Chief Executive of the Department of Corrections, above n 1, at [7].
7 Wallace v Chief Executive of the Department of Corrections, above n 1, at [8] (footnotes omitted).
8 See Judicial Review Procedure Act 2016, ss 3 and 5.
research materials or access to the internet, it is unlikely that there is a judicially reviewable action or omission in this case.
[10] It is important to focus on both the pleadings and the evidence to identify the particular nature of the dispute and whether there is a live factual issue for which cross- examination might be necessary.
[11] At [15] of the amended statement of claim, M alleges that he did not have access to research material, in particular the internet, to allow him to establish his claim for refugee and protection status. At [16], he says that the particular material needed was evidence illustrating the extent of corruption in Brazil. He also lists other topics.
[12] At [20] of the amended statement of claim, he specifically alleges that being deprived of access to research materials has had a direct causative effect on the success of his application for refugee and protected status. He further says that in turn, being deprived of such access caused his lengthy remand in custody.
[13] It is not disputed that in his time in detention M made three applications for refugee and protected person status. It is likewise not disputed that he was legally represented throughout and that ultimately, his application for protected person status was granted.
[14]In his affidavit of 7 June 2024, M says:
At some stages, I was sending in PCO.01 forms or asking for access to the internet on a daily basis.
[15] M also says that he did not receive responses to his PCO.01 request forms or oral requests for access to research material or the internet.
[16] By contrast, the evidence of the Department of Corrections is that none of its records indicate that M requested the Department to provide him access to research materials or the internet.
[17] None of the respondent’s deponents can recall M making any requests or complaints concerning help with preparing for legal proceedings, access to the internet or research materials.
[18] The respondent’s evidence further establishes that Department staff assisted M by facilitating contact with his lawyer and assisting him to find new legal representation. The evidence also establishes that staff assisted M with the exchange of legal documents between M and his lawyer, contact with Immigration New Zealand, and contact with friends and family, including those in his home country. The Department records also establish that M made various complaints about other matters, that were escalated to the Department’s ministerial services team, prison expectorate, the Privacy Commissioner, the Human Rights Commission, and the Ombudsman’s Office. These included complaints about:
(a)the quality of water in prisoner’s cells and yards;
(b)access to a haircut;
(c)correct payment for his work in the ‘kit locker’;
(d)access to medical assistance;
(e)the prison protocol regarding the provision of food to prisoners;
(f)access to prisoner complaints/PCO.01 forms;
(g)property missing from his property list; and
(h)investigative steps taken in respect of his complaint about his property list.
[19] I find that the issue of whether M requested and was denied access to the internet is a fundamental factual issue that the Court will have to resolve. There is direct conflict in the evidence between M’s claims that he repeatedly sought access to the internet and the evidence for the respondent that it has no record or recollection of such requests ever being made.
[20] I accept that there is some evidence already before the Court, that might shed light on this issue. However, I reject the contention of counsel for M that on the existing material and without cross-examination, the Court could properly conclude, as a matter of inference, that M did make repeated requests for access but that such requests were denied. Some of the evidence, including for example, the length of time
in detention and the number of applications (three applications) for refugee and protected status, support that submission. So, too, does the note of Ms Michelle Doran of 27 November 2017, which notes M’s limited ability to get the evidence he needed to put before the Immigration and Protection Tribunal. On the other hand, however, some of the evidence points in the other direction, namely that M did not make any request and certainly not on a repeated basis. As noted, M was legally represented throughout, and the Department facilitated his access to counsel. As Mr Neild submitted, restricted access to the internet is inherent in detention and it is reasonable to expect that the lawyers would have raised this issue had it been a live one.
[21] In my view, the factual dispute cannot be resolved without cross-examination. Cross-examination is necessary to resolve this fundamental issue and it is likely to be of assistance to the trial Judge.
[22] I conclude, therefore, that the grounds for the application have been made out. I grant the application by the Attorney-General to cross-examine M.
[23] I also grant the reciprocal application by M for leave to cross-examine Mr Cronjé, the DOC custodial systems manager, and witness for the Attorney-General. He gives relevant evidence on the disputed issue of whether in fact M made repeated requests for access to the internet. Again, I find that the “necessary” test is made out.
[24] The cross-examination of Mr Cronjé should be confined to the relevant factual dispute at issue. That might, of course, extend to the absence of a record of any request by M and the reasons for that. It might also include questions on the specific form
F.07, which is a form for prisoners to fill out to request access to facilities to assist in litigation. However, I agree with the submission of the Attorney-General that cross- examination should not extend to the broader operation of the system for people detained under the Immigration Act.
Result
[25] I grant the application by the Attorney-General for leave to cross-examine M in relation to the disputed issue of requesting access to the internet.
[26] I also grant the reciprocal application by M for leave to cross-examine Mr Cronjé. Again, the cross-examination is to be limited to and focus on the disputed issue of access to the internet.
[27]Costs are reserved.
Andrew J
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