NA (India) v Refugee and Protection Officer

[2023] NZHC 1345

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 HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2259 CIV-2022-404-2261

[2023] NZHC 1345

UNDER

the Immigration Act 2009 and the Judicial Review Procedure Act 2016

IN THE MATTER

of applications for leave to appeal and

leave to bring judicial review proceedings

BETWEEN

NA (INDIA)

Appellant/applicant

AND

REFUGEE AND PROTECTION OFFICER

First respondent

IMMIGRATION AND PROTECTION TRIBUNAL

Second respondent

Hearing:

16 May 2023

Appearances:

SRG Judd for appellant/applicant

IMG Clarke and NNA El-Sanjak for first respondent Second respondent abiding, appearance excused

Date of judgment:

31 May 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 31 May 2023 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

NA (INDIA) v REFUGEE AND PROTECTION OFFICER [2023] NZHC 1345 [31 May 2023]

[1]    NA, claiming refugee and protected person statuses in New Zealand, seeks leave both to appeal the Immigration and Protection Tribunal’s 16 September 2022 decision declining to grant him such status,1 and for judicial review of its decision(s) not to adjourn the substantive hearing for a 12-week period to accommodate counsel sought newly to be instructed.

Background

[2]    NA contended he risked persecution by police if deported from New Zealand to India. After their two-day interview of NA in the company of his representative, and receiving NA’s response to their interview report, two refugee and protection officers jointly concluded on 25 March 2022 there was “not a real chance of [NA] being persecuted if he returns to India now”. As his fear of being persecuted therefore was not well-founded, and there were not substantial grounds for believing he would be in danger of either being tortured, or arbitrary deprivation of life or cruel treatment, if deported from New Zealand, NA was not recognised as a refugee or as a protected person under the relevant Conventions. NA’s claim turned on “its credibility”, which the refugee and protection officers found lacking.

[3]    NA’s 4 April 2022 appeal to the Immigration and Protection Tribunal from the refugee and protection  officers’ decision was to  be heard on 9 August 2022.2  On  25 July 2022, observing they had limited information about the appeal, NA’s intending new counsel sought the appeal’s adjournment for 12 weeks to enable them “to take instructions, [and] obtain and prepare evidence along with submissions”. The Tribunal offered “a short adjournment to any date in August”. NA’s intending new counsel declined the offer “due to our already at capacity schedules over August and September 2022”, explaining their late involvement was because:

[NA]’s former representative … had applied to be admitted to the court, with an expected date of admission of 31 July 2022. Unfortunately [his] admission has now been delayed and changed. As he holds an IA license, [he] is unable to take on legal aid cases and as [NA] requires support from the Ministry of Justice, [he] was unable to assist [NA] in his appeal.

1      NA India [2022] NZIPT 802052.

2      By email of 23 June 2017 to “members of the refugee bar”, the Chair of the Tribunal explained “[t]he standard notice period for refugee appeal hearings, without prior consultation with counsel as to their availability, will be at least 12 weeks”. Requests for adjournments “will not be granted without strong and cogently presented grounds”, sought “as early as possible”.

[The former representative] is expecting to obtain his practising certificate later this year, and had his admission been on 31 July 2022, [he] would have applied for legal aid certification to allow him to represent [NA] at appeal. Unfortunately this has not been able to happen, and [the former representative] has been left in an impossible position whereby he was required to refer [NA] onwards. The appellant did not know that this may be a possibility until very recently, and was only once the former representative was told by the Law Society in late July that [NA] was aware he needed to seek alternative counsel. The Tribunal will be able to see that [NA] has not been remiss in his preparation, and until recently was of the understanding [the former representative] would be capable of representing him in his appeal.

As such [we] made contact with the Tribunal to see whether an adjournment would be possible, as unless the appeal was adjourned to a time which [we] could assist, we would not be in a position to represent [NA].

[4]    The Tribunal adjourned the appeal hearing to 29 August 2022. NA’s intending new counsel advised they were “simply unable to accept instructions for a hearing that soon”, observing NA would need to respond to the refugee and protection officers’ decision “and will likely need to call overseas witnesses”, meaning “his appeal is complex and requires legal representation”. Counsel proposed escalating her concern to the Tribunal’s Chair. The Chair directed the matter “relates to a procedural issue in a current appeal. It is not a matter in which the Chair should interfere with the judicial independence of the presiding member”. Counsel then formally sought adjournment to a date after 10 October 2022, which the Tribunal declined, observing “[o]ver four months has elapsed since filing the appeal. The Tribunal must determine matters with all reasonable speed”, referring to s 222(1) of the Immigration Act 2009. Counsel affirmed they were not instructed on the matter, but understood NA “has been unable to instruct alternative counsel or to prepare for his appeal”.

[5]    At the appeal hearing, NA was accompanied by other counsel, “instructed solely for the purpose of seeking an adjournment”, and two supporters. The Tribunal’s 1 September 2022 minute recorded at [28]–[29]:

The Tribunal declined to adjourn the hearing and indicated that it would proceed with the hearing. The Tribunal then indicated to the appellant that it would begin to take his oral evidence, to which the appellant replied he could not do so without a lawyer. The Tribunal indicated that if he did not give oral evidence, the appeal would be determined on the available evidence on the file.

In response, the appellant indicated that he wanted to withdraw the appeal. The Tribunal confirmed that was what he wished to do, and the hearing concluded.

[6]    Given counsel’s post-hearing further application for adjournment, the minute set out the Tribunal’s “reasons for refusing to further adjourn the appellant’s hearing and the circumstances of the withdrawal”. With reference to r 9 of the Immigration and Protection Tribunal Regulations 2010, which provides withdrawal of any appeal may be done by the appellants “giving written notice to the Tribunal”, the Tribunal determined at [37]:

[T]he fairest position to adopt is that the appellant’s statement at the hearing that he withdrew the appeal has been retracted, prior to informing the Tribunal in writing that he has formally withdrawn the appeal. Therefore, the Tribunal remains seized of jurisdiction and can proceed to consider the merits of the application to further adjourn the appeal.

On such consideration — at [39], assessing the appeal as “a typical appeal which, while factually idiosyncratic, involves no great complexity”, but adjournment sought “because of lack of preparation by the appellant and his representative, despite the Tribunal advising as early as 6 April 2022, that steps should be taken to begin to prepare” — the Tribunal refused the further application to adjourn and proceeded “to determine the appeal on the basis of the available evidence”.

[7]    In reliance on NA’s file before the refugee and protection officers,3 the Tribunal’s 16 September 2022 decision concluded:4

The appellant’s failure to give evidence at the oral hearing of his appeal has meant that no finding can be made as to the credibility of the core aspects of his claim. Having regard to his obligation under section 226 of the Act to establish his case, the Tribunal finds that the events at the core of the claim (that he is being persecuted by police because [Redacted]) can be given no weight. In particular, his claims raise issues of credibility which require assessment following an oral hearing at which the veracity of his evidence can be tested. His evidence to the Refugee Status Unit that he faced a risk of harm, if he returned to India, can be given no weight. His failure to give evidence at the hearing has made such an assessment impossible. [Redacted] The appellant has, therefore, not discharged his responsibility to establish his claim.

and found NA was neither a refugee nor a protected person as defined.

3      NA (India), above n 1, at [28].

4      At [32]–[36].

Approach to leave

[8]    Under the Immigration Act, leave is required both to appeal against or to obtain judicial review of Tribunal decisions, and is available respectively if the question:5

… of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision

or:6

… would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and … 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.

[9]    Appeal thus is the primary means for challenging Tribunal decisions, and presents a determinedly high threshold.7 Review nonetheless remains available.8 But in either case, leave only is obtainable on “stringent” criteria: (a) qualifying subject matter; (b) of importance beyond the particular case; or (c) otherwise warranting this Court’s decision on grounds of individual injustice.9 This presents a “high hurdle” for those who seek leave to appeal or for review of the Tribunal’s refusal to adjourn, requiring “fair trial rights [to be] ‘irretrievably compromised’”.10

Discussion

[10]For NA, Simon Judd would argue the Tribunal erred in law by concluding :

… without an evidential basis that there was no real chance of [NA] being harmed as claims, in circumstances where [NA] had not had a meaningful opportunity to present his claim

5      Immigration Act 2009, s 245(3).

6      Section 249(6).

7      See, for example, Smith v Minister of Immigration [2020] NZHC 1510 at [34]–[41] and the cases cited there.

8      H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [78].

9      P v Minister of Immigration [2022] NZCA 188 at [16]–[17], citing Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].

10     P v Minister of Immigration, above n 9, at [24], citing Kumar v Minister of Immigration [2013] NZHC 546, [2013] NZAR 529 at [21].

and would contend such qualified also for judicial review as relating to natural justice and rights to an oral hearing and legal representation, or otherwise so individually unjust I should not countenance the decision standing.

[11]   If those give reason for the impugned decision’s appeal or review must be assessed in the decision’s statutory context. It is well recognised the right to natural justice in any case depends on the context,11 and its extent varies “with the power that is exercised and the particular circumstances, including the statutory context, in which a decision is made”.12

[12]   Section 226 makes it NA’s responsibility “to establish his … case”, to which end he:

… must ensure that all information, evidence, and submissions that he … wishes to have considered in support of the appeal … are provided to the Tribunal before it makes its decision on the appeal ….

and refugee and protection officers may lodge similarly. Section 228(1)–(2) provide “[w]hen considering an appeal or a matter, the Tribunal may seek information from any source”, but:

… the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant … and … a refugee and protection officer (as the case may be), and may determine the appeal … only on the basis of the information, evidence, and submissions provided by those persons.

[13]   The Tribunal was “fully entitled to restrict its enquiry to the material provided by the appellant … or a refugee and protection officer”.13 It is not the Tribunal’s “responsibility … to provide appellants with iterative opportunities to marshal further evidence”.14 Neither is it the case “something relatively obvious” has gone unaddressed.15 Rather it was clear, from the time of the refugee and protection officers’

11     Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].

12     Lyttelton v Police [2016] NZHC 22, [2016] NZAR 493 at [35].

13     Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217 at [42].

14 At [53], citing Lal v Removal Review Authority HC Wellington AP95/92, 10 March 1994 at [24] and Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [27] and referring to DO v Immigration and Protection Tribunal [2016] NZHC 3158 at [65]–[66].

15 Ye v Minister of Immigration, above n 14, at [48]; Fernandes v Immigration and Protection  Tribunal [2014] NZCA 52, [2014] NZAR 544 at [27] and [33]. Notably, s 228(2) was enacted after the Supreme Court’s decision in Ye.

report, NA himself would need to bolster the credibility of his account on any appeal. There is no evidence of what enquiries had been made, or identification of particular issues as to which potential witnesses were intended to be called, in the period from April to August 2022 by NA’s former representative. Rather the Tribunal only was told by his intending counsel the matter was “complex and requires legal representation”.

[14]   Before the Tribunal, NA declined to give oral evidence at all, meaning the Tribunal was unable to test the credibility of his own account (let alone, in the circumstances, to decide if further information may have been desirable, which it may have chosen to seek).16 It was for the Tribunal to decide if adjournment was necessary in the context of its procedures,17 and not for NA effectively to force that result under the guise of ‘natural justice’, however that may apply in the “procedurally informal”, “primarily inquisitorial” Tribunal.18 Mr Judd’s proposition is NA’s position mirrors that of the successful applicant in H v Refugee and Protection Officer denied first instance merit assessment by interview; the better characterisation is of the unsuccessful applicant in Singh v Attorney-General seeking to avoid de novo merit assessment on appeal.19

[15]   Particularly in the statutory context, the Tribunal’s determination discloses nothing “erroneous in point of law” for appeal or “that could not be adequately dealt with” on appeal.20 The matters intended to be brought to this Court’s attention on appeal or for review exclusively are created by NA’s (inferentially advised) position not further to participate in the Tribunal’s hearing without the sought adjournment and therefore lack any general or public importance.

[16]   Although not directly applicable here, as illustrated by s 233(3)(a), the Act anticipates non-participation has consequences. NA could have participated in the Tribunal’s enquiry, to try to convince it further time was required adequately to substantiate his credible narrative. He may or may not have been successful. But on

16     Immigration Act, s 228(1).

17     Section 222(1) and (4).

18     Immigration and Protection Tribunal, Practice Note 2/2019 (refugee and protection) at [21] and [26].

19     See Singh v Attorney-General [2000] NZAR 136 (CA), referred to in H v Refugee and Protection Officer at [83].

20     Immigration Act, ss 245(1) and 249(6)(a).

appeal or for review he then would have had a foundation for this Court’s “anxious consideration”,21 rather than the void in which my intervention now is sought. Without that foundation any claim to individual injustice rings hollow.22 Taken together with the absence of explanation as to his former representative’s activity from April to August 2022, and intending counsel’s assertion effectively they wished to start anew, there is no basis on which to conclude NA’s fair trial rights may have been undermined.

Result

[17]   NA   is    declined   leave    to   appeal    or    for   review    of   the Tribunal’s 16 September 2022 decision or for review of prior decisions for its adjournment.

—Jagose J

Counsel/Solicitors:

Simon Judd, Barrister, Auckland Isabella Clarke, Barrister, Wellington McLeod & Associates, Auckland

Crown Law, Wellington

21     H v Refugee and Protection Officer, above n 8, at [63].

22     Ochibulu v Immigration and Protection Tribunal [2022] NZCA 278 at [46]–[47].