Rafiq v Chief Executive for the Department of Internal Affairs

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 115/2023
[2024] NZSC 69

BETWEEN	RAZDAN RAFIQ Applicant
AND	CHIEF EXECUTIVE FOR THE DEPARTMENT OF INTERNAL AFFAIRS First Respondent
AND	MINISTER OF INTERNAL AFFAIRS Second Respondent

Court:	Glazebrook, Ellen France and Miller JJ
Counsel:	Applicant in person A P Lawson for Respondents
Judgment:	17 June 2024

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment of 19 April 2024 (Rafiq v Chief Executive for the Department of Internal Affairs [2024] NZSC 36) is dismissed.
BThere is no order as to costs.

____________________________________________________________________

REASONS

Introduction

Mr Rafiq applies for recall of this Court’s refusal[1] to grant him leave to appeal against a decision of Katz J in the Court of Appeal.[2]

Background

[1]Rafiq v Chief Executive for the Department of Internal Affairs [2024] NZSC 36 (Glazebrook, Ellen France and Miller JJ) [Leave decision].

[2]Rafiq v Chief Executive for the Department of Internal Affairs [2023] NZCA 495 [CA decision].

In 2017 the Minister of Internal Affairs declined to grant Mr Rafiq citizenship on the basis that he did not satisfy the good character requirements. In 2022 Mr Rafiq applied for judicial review of the Minister’s decision. The High Court allowed Mr Rafiq’s claim with regard to the error in refusing him citizenship. Mr Rafiq’s claim for damages was dismissed.[3] The Judge recorded that Mr Rafiq could make a fresh application for citizenship but declined to direct the Minister to grant Mr Rafiq’s application for citizenship.[4]
[3]Rafiq v Secretary for Internal Affairs and Chief Executive for Department of Internal Affairs
[2023] NZHC 127 at [23]–[24] (Downs J).
[4]At [22].
Mr Rafiq appealed against that decision to the Court of Appeal and security for costs was set. In the decision referred to above, Katz J dismissed an application for review of the Deputy Registrar’s decision declining to waive security for costs and declining to grant Mr Rafiq a stay of his appeal.[5]
[5]CA decision, above n 2.
Katz J held that the Deputy Registrar was correct that, even if the applicant were impecunious, that would not justify dispensing with security in this case because the appeal is not one that a solvent appellant would reasonably prosecute. Specifically, the prospect of the applicant persuading the Court on appeal that the High Court should have made an order requiring the Minister to grant him citizenship and award him $2 million in damages was negligible.[6] As to the stay, Katz J held that the proper route was for Mr Rafiq to apply to the Deputy Registrar for an extension of time to file his case on appeal.[7]
[6]At [22].
[7]At [28].
Leave to appeal to this Court against Katz J’s decision was refused by this Court on the basis that the appeal related entirely to the circumstances of Mr Rafiq’s case, no issue of general or public importance arose and the standard for miscarriage of justice in civil cases was not met.[8]
[8]Leave decision, above n 1, at [10].
As further background, Mr Rafiq had asked for and been granted multiple extensions to file submissions in support of his application for leave to appeal. The last extension granted had been to 4 March 2024. Mr Rafiq had been told that no further extension would be granted. Mr Rafiq did not file any submissions. The respondents had been directed to file any submissions by 13 March 2024, whether or not Mr Rafiq had filed his submissions. They did so.

Recall application

Mr Rafiq submits that this Court was wrong to dismiss the leave application as there was a real force in the merits of the intended appeal warranting dispensation for security for costs in the Court of Appeal. He says that this Court failed to consider a number of matters, including his right to judicial review under section 27 of the New Zealand Bill of Rights Act 1990 and the multiple errors made by the Minister in refusing him citizenship. Mr Rafiq seeks damages “on the basis of harm and significant injury to the feelings suffered due to the adverse decisions of [the Minister]”. Overall, he says that the orders he seeks are in the interests of justice.
Mr Rafiq also submits that this Court should have granted him an extension of time to file his submissions.

Our assessment

We do not accept the submission that this Court should have granted Mr Rafiq an extension of time to file his submissions in support of his leave application. As noted above, he had been granted numerous extensions and warned there would be no further extensions. He chose not to file submissions.
We have nevertheless considered the grounds put forward in his recall application. His grounds relate in large part to errors in the decision of the Minister not to grant him citizenship. Mr Rafiq’s claim in that regard has been allowed. Nothing put forward by Mr Rafiq throws doubt on Katz J’s assessment that the prospects of success are negligible with regard to the refusal to award damages and to make an order directing the Minister to grant him citizenship.
Recall is an exceptional procedure; recall apart, a decision of this Court — whether concerned with leave to appeal or a substantive appeal — is, and must be, final.[9] A judgment will only be recalled in exceptional circumstances, being those identified in Horowhenua County v Nash (No 2), as applied by this Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2).[10]
[9]Wong v R [2011] NZCA 563 at [13]; and Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [20].
[10]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2]; and Green Growth No 2 Ltd v Queen Elizabeth the Second National Trust [2018] NZSC 115 at [20].
Mr Rafiq’s application does not meet the high threshold necessary for a recall application to be granted.

Result

The application for recall of this Court’s judgment of 19 April 2024 (Rafiq v Chief Executive for the Department of Internal Affairs [2024] NZSC 36) is dismissed.
The respondents opposed the recall application but were content to rely on their submissions on Mr Rafiq’s leave application. In these circumstances, we make no order as to costs.

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

The case of Rafiq v Chief Executive for the Department of Internal Affairs involved Mr Rafiq, who was appealing against a decision made by the Court of Appeal regarding his application for citizenship. The Supreme Court was asked to recall its earlier decision that denied Mr Rafiq leave to appeal against the Court of Appeal's decision. The primary legal issue before the court was whether the Supreme Court should recall its judgment that dismissed Mr Rafiq's application for leave to appeal. Mr Rafiq argued that the Supreme Court should have granted him leave to appeal on the grounds that there was merit in his case and that he had been denied a fair hearing due to the security for costs requirement.

The Supreme Court examined the grounds for the recall application, which primarily related to the Minister's errors in refusing Mr Rafiq citizenship and his right to judicial review. However, the court found that the prospects of success on appeal were negligible, as previously assessed by Katz J in the Court of Appeal. The Supreme Court noted that recall is an exceptional procedure and only granted in exceptional circumstances, such as when there is a significant error affecting the outcome of the case. The court concluded that Mr Rafiq's application did not meet the high threshold for recall, as it did not bring to light any new evidence or argument that would change the earlier assessment of the appeal's prospects. Consequently, the Supreme Court dismissed the application for recall. The respondents opposed the recall but did not submit new arguments, so no order was made as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established