RM v Immigration and Protection Tribunal
[2016] NZHC 735
•20 April 2016
NOTE: THE CONFIDENTIALITY OF THE NAME AND IDENTIFYING PARTICULARS OF THE APPLICANTS AND OF THEIR CLAIM AND STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-2336
CIV-2015-404-2337 [2016] NZHC 735
UNDER the Judicature Amendment Act 1972 and
the Immigration Act 2009 and the 1951
Convention Relating to the Status of
Refugees and its 1967 ProtocolIN THE MATTER
of an application for leave to appeal and bring judicial review proceedings under ss 245 and 249 of the Immigration Act
2009
BETWEEN
R M
First ApplicantAND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
[Continued over]
Hearing: 15 March 2016 Counsel:
R S Pidgeon for applicants
B Charmley for respondents
B A Johnson, McKenzie Friend for third and fourth applicantsJudgment:
20 April 2016
JUDGMENT OF PALMER J
This judgment was delivered by me on 20 April 2015 at 5 pm2336/2337 pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
R M v IMMIGRATION AND PROTECTION TRIBUNAL [2016] NZHC 735 [20 April 2016]
AND BETWEEN S M
Second Applicant
T M
Third Applicant
U M
Fourth Applicant
ANDTHE REFUGEE AND PROTECTION OFFICER, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT Second Respondent
Summary
[1] RM and SM have lived in New Zealand since 1997 on the basis of false documentation. They have had children here, TM and UM, who are New Zealand citizens. None of them wish to return to Indonesia. They apply for leave to bring an appeal, and to bring a judicial review, of the decision to turn down the applications of RM and SM for refugee and protected person status.
[2] I hold that the test for granting leave to appeal includes judicial discretion to grant leave in the interests of justice. I also hold that the court’s exercise of its discretion to grant leave to bring judicial review must be consistent with the New Zealand Bill of Rights Act 1990 (Bill of Rights) which protects the right to judicial review.
[3] The applicants’ best argument is that the decision here did not take into account the implications for the children, who were born in New Zealand and are New Zealand citizens. I hold that, in rare situations, it is possible that the interests of citizen children will be relevant to a refugee or protected person status decision and must be taken into account. However, that is not the case here. The consequences are difficult for the family but that is the effect of the law and the parents’ actions. I decline leave to bring either an appeal or a judicial review.
The Facts
The Parents Visit New Zealand
[4] RM was born and raised a Catholic in Indonesia. SM was born and raised a strict Muslim in Indonesia though he attended a Catholic school for financial reasons. They began a relationship around 1992. Both of their families disapproved because they were of different religions. The phrase “star-crossed” suggests itself.
[5] In July 1994 RM arrived in New Zealand to visit her brother, who lives here, on a visitor visa that was valid until 30 October 1994. She remained in New Zealand after that and was served with a Deportation Liability Notice in late 1994. SM arrived in New Zealand in July 1995 on a visitor visa valid to 8 October 1995. In
New Zealand he began to convert to Catholicism in order to be accepted by RM’s family so they could be together. On 3 October and 4 November 1995, respectively, SM and RM returned to Indonesia.
[6] In November 1995 SM returned to New Zealand on another visitor’s visa valid until 21 February 1996. He got a job but resigned in January 1996 when Immigration New Zealand gave him 42 days to leave New Zealand on learning of his employment. He did not leave. In February 1996 RM obtained a new Indonesian passport based on false Indonesian documentation. She used it to enter New Zealand on a visitor’s visa valid until 13 May 1996. On 18 September 1996
Immigration New Zealand caught up with both of them, serving them with removal orders for overstaying their visas. Instead of leaving, they moved house to evade Immigration New Zealand, got married at the Takapuna Registry office and SM found work again.
[7] On 20 March 1997 RM and SM were arrested and told they were being removed and could not re-enter New Zealand for five years. The next day they returned to Indonesia. In Indonesia RM and SM stayed with RM’s mother who insisted that SM be adopted by her relatives and given a Batak name. He was adopted into the family and continued his Christian studies. On 20 June 1997 RM and SM were married in a Church in Indonesia and SM was baptised. SM did not tell his biological family.
RM and SM move to New Zealand and have children
[8] In July 1997 SM got a new Indonesian passport under his new name and RM got a new Indonesian passport under a false identity in order to re-enter New Zealand. They arrived in New Zealand under visitor visas valid until 29 October
1997. They went to church, rented a flat, and SM found a job.
[9] In May 1999 TM, daughter of RM and SM, was born in New Zealand. RM and SM applied for residency; SM using a false education document from Indonesia. In February 2003 RM and SM were granted residency. In April 2003 UM, son of
RM and SM, was born in New Zealand. TM, now 16 and UM, now 13, are both
New Zealand citizens.1
[10] RM and SM took the children back to Indonesia to visit their families at the end of 2003 and beginning of 2004. SM promised his siblings he would raise his family as Muslims and RM presented as Muslim. SM says he was afraid that, otherwise, he would be disowned. Since then RM and SM have bought a house in New Zealand. They have visited Indonesia on several occasions to visit relatives in hospital, for a funeral and wedding anniversary.
The Parents are Charged, Sentenced and Subject to Deportation
[11] In 2012 Immigration New Zealand charged RM and SM with offences relating to the use of a document with intent to defraud and producing forged or fraudulently obtained passports. They pleaded guilty and were sentenced to 10 months home detention and 200 hours community work.
[12] On 13 June 2014 RM and SM were served with Deportation Liability Notices. Around July 2014 they learnt that Immigration New Zealand sent their false passports to the Indonesia Embassy in New Zealand.
[13] RM and SM claimed refugee status and protected person status on 12 August
2014. When SM’s adoptive father died that month SM explained to his adoptive family the immigration situation for the first time.
The Decision
Refugee and Protection Officers’ Decision
[14] On 19 December 2014 Refugee and Protection Officers (Officers) in the Ministry of Business, Innovation and Employment declined the applications of RM and SM for refugee status and protected person status.
[15] The Officers introduced RM’s and SM’s claim as follows: 2
1 Section 6 of the Citizenship Act 1977 now provides that children born on or after 1 January 2016 to parents not entitled to be in New Zealand are not New Zealand citizens.
[RM and SM] do not wish to return to Indonesia because they fear they will face harm because of their inter-religious marriage and because [SM] converted from Islam to Christianity.
[16] The Officers said RM presented as an uncooperative witness though SM was more forthcoming. In assessing their credibility the Officers noted the couple had a “long history of deceiving immigration officials” and that there remain concerns about SM’s identity.3 The Officers considered that:
(a) the couple’s “savviness and knowledge of the immigration system” undermines their claim that they did not apply for refugee status earlier because they did not know of the option of doing so.4
(b)At no point between 1994 and 2014 did the couple “mention their fear of returning to Indonesia on the basis of their inter-religious marriage”. If they “were truly fearful of returning to Indonesia, it could reasonably be expected that they would have raised their claim earlier, rather than waiting until their immigration options became
exhausted”.5
[17] The Officers’ decision canvassed the situation for Christians and for inter- religious marriages in Indonesia. The couple claim:6
(a) The couple fear that SM’s family would discover his conversion to
Christianity and he would be disowned, physically assaulted or killed.
(b) They also fear detention by Indonesian authorities because of SM’s
conversion to Christianity and their use of false identities.
[18] The Officers’ decision assessed the couple’s claims against the Refugee
Convention, Convention Against Torture (CAT) and International Covenant on Civil
2 Refugee and Protection Status Decision, claims 12984889/12984998, Refugee Status Branch, Ministry of Business, Innovation and Employment (19 December 2014) at 3.
3 At 15.
4 At 17.
5 At 17.
6 At 22.
and Political Rights (ICCPR). In relation to the Refugee Convention the Officers found:7
(a) There is generally sufficient state protection in Indonesia of Christianity to deal with violations of religious freedom when they occur. There is no evidence SM will be unable to access state protection. Neither SM nor RM have suffered persecution in Indonesia in the past. It is unlikely they will face serious harm on the basis of inter-religious marriage or because of SM’s conversion.
(b)It is unlikely SM’s family would learn of his conversion unless he tells them and even if they do there is no evidence their reaction would amount to violence.
(c) There is no evidence the couple will face further charges from the
Indonesian authorities.
(d) Consequently:
For the reasons set out above it is considered that there is not a real chance of [RM and SM] being persecuted if they return to Indonesia now. Their fear of being persecuted is not therefore considered to be well-founded.
(e) And “[f]or these reasons [RM and SM] are not recognised as a refugee within the meaning of the Convention”.
[19] In relation to the CAT the Officers found RM and SM are not recognised as protected persons because:8
There is no evidence to suggest that [RM and SM] have faced harm, or are likely to face harm from state agents on the basis of her religion. It has been found that [RM and SM] do not have a well-founded fear of being persecuted. On the same facts there is no evidence to suggest that there are substantial grounds for believing they would be at risk of being tortured if they were deported from New Zealand.
7 At 23-24.
8 At 25.
[20] In relation to the ICCPR the Officers found RM and SM are not recognised as protected persons because:9
there is no evidence to suggest that there are substantial grounds for believing [RM and SM] would be at risk of being subject to cruel, inhuman or degrading treatment if they were deported from New Zealand.
[21] Consequently, on 19 December 2014, the Officers declined the applications by RM and SM for refugee status and for protected person status within the meaning of the CAT and ICCPR.
Appeal to the Immigration and Protection Tribunal
[22] RM and SM then appealed to the Immigration and Protection Tribunal (the Tribunal). They were heard on 11 and 14 August 2015 and Tribunal dismissed the appeals in a decision of 9 September 2015.10 The Tribunal’s findings and reasoning were similar to that of the Officers. If anything they were more strongly worded, with additional findings that:
(a) SM’s publicly accessible Facebook page used his Batak name and referred to his Catholic faith even though his Indonesian nephews and nieces, who he said he was worried would discover his conversion, were Facebook friends. The Tribunal rejected his explanation for this
and found his evidence contradictory and implausible.11
(b)The Tribunal rejected, as fabricated, RM’s evidence that RM and SM were asked by SM’s sister about their Islamic practice during telephone calls.12
(c) RM and SM gave inconsistent evidence to the Tribunal and the
Officers on whether he was baptised which “strengthen the Tribunal’s
9 At 25.
10 RM & SM [2015] NZIPT 800817-818.
11 At [41]-[46]
12 At [48].
view that the appellants are willing to present fabricated evidence in
support of their claims”.13
(d)The Tribunal rejected RM and SM being at any real risk from SM’s family and considered they had “developed the desire to live in New Zealand in preference to Indonesia and have persistently attempted to deceive INZ by the use of false identity and other documents.”14 It considered “[t]he present claim for refugee and protected person status is yet another attempt to maintain their presence in New Zealand now that their identity fraud has been discovered”,15 describing any risk as “speculative and falls demonstrably short of the real chance threshold”.16
(e) The couple’s claims they would have other problems because of their inter-religious marriage are not well-founded as they are not now of different religions.17
Application for Further Leave to Appeal and Review
[23] On 7 October 2015 RM, SM, TM and UM applied for leave under ss 245 and
249 of the Immigration Act 2009 (the Act) to appeal and to judicially review the Officers’ decision. I have to decide whether to grant or decline the applications. TM and UM also apply to be joined to the judicial review should it proceed. TM is acting as litigation guardian for UM, pursuant to a minute by Woodhouse J.
The Law
[24] In order to understand what has happened here, and the process in which the applicants find themselves, it is useful to set out the relevant law relating to refugee
and protected persons status decisions under the Immigration Act 2009.
13 At [52].
14 At [54].
15 At [54].
16 At [70].
17 At [71].
Purpose of Act
[25] Section 3(1) of the Act provides that “[t]he purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”. Section 3(2) outlines the immigration system established by the Act to achieve this purpose. In particular it states the system:
(d) provides a process for implementing specified immigration-related international obligations; and
(e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—
(i) enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and
(ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and
(f) establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals; and
(g) supports the settlement of migrants, refugees, and protected persons.
Refugee and Protection Status Determinations
[26] The purpose of part 5 of the Act, entitled “Refugee and protected status determinations”, is stated as follows:
The purpose of this Part is to provide a statutory basis for the system by which New Zealand—
(a) determines to whom it has obligations under the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees; and
(b) codifies certain obligations, and determines to whom it has these obligations, under—
(i) the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment:
(ii) the International Covenant on Civil and Political Rights.
[27] Section 127 provides that every claim under this part of the Act must be determined by a refugee and protection officer who must act:
(a) in accordance with this Act; and
(b) to the extent that a matter relating to a refugee or a person claiming recognition as a refugee is not dealt with in this Act, in a way that is consistent with New Zealand’s obligations under the Refugee Convention [which is set out in, and incorporated into, Schedule 1 of the Act]
[28] I examine the powers, duties and matters to be determined by an officer later, where relevant.
Appeals and Reviews
[29] Part 7 of the Act governs appeals and reviews. Relevantly, according to s
184, its purpose is stated to be:
(a) to provide comprehensively for the system of appeal and review in respect of decision making under this Act, including by providing for—
. . .
(iii) appeals in respect of decisions concerning recognition of a person as a refugee or a protected person; and
(iv) appeals against liability for deportation; and
(b) to establish the Immigration and Protection Tribunal, a specialist tribunal to determine appeals and other matters under this Act; and
(c) to provide for appeals from the decisions of the Tribunal, and deal with judicial reviews of decisions made under this Act.
[30] Section 194 provides for appeals of officers’ decisions on refugee or protected person status to the Tribunal, a specialist body. The provision relevant here is s 194(1)(c) – an appeal of a decision to decline the person’s claim to be recognised as a refugee or protected person. The Tribunal’s proceedings may be inquisitorial or adversarial. The Tribunal finds facts, applies the law and makes determinations (s 218).
[31] Section 175A(2) prohibits deportation until after resolution of an application under s 245 for leave to appeal. Ms Charmley for the Crown confirmed that applies to the applicants here.
[32] It should also be noted that a person who can appeal a decision on refugee or
protected person status may also be able to make a “humanitarian appeal” under s
206 – an appeal to the Tribunal against liability for deportation on humanitarian grounds. Section 194(6) and 206(3)(a) require that humanitarian appeals must be filed alongside other refugee or protected person status appeals. Section 207(1) provides:
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that —
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
Appeals on questions of law by leave
[33] Section 245(1) of the Act allows for appeal to the High Court from a decision of the Tribunal only with leave and only on a question of law. The first limb of s
245(3) sets out a mandatory relevant consideration for the court in considering whether to grant leave but the second limb is an open-ended alternative consideration that there simply be a reason for appeal:
… the court … must have regard to whether the question 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.
[34] As the Court of Appeal has recognised, the test for leave here is similar to that applying to second appeals to that Court under s 67 of the Judicature Act 1908.18
That approach to leave to appeal on questions of law is well established and informs
interpretation of the phrase “any other reason”. There has to be raised “some
18 Guo v Minister of Immigration [2014] NZCA 513 at [12] and Minister of Immigration v Jooste [2014] NZCA 23 at [5]. The Court of Appeal’s decision in Guo was overturned on appeal in Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 but the Supreme Court made no reference to the application of the leave test.
question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal”.19 Despite the difference between s 67 appeals, which have already had an appeal to a superior court, and appeals here which haven’t, it is correct that not every alleged error of law will satisfy either test.20
[35] Kós J has noted that the introduction of the leave provision “indicates
Parliament’s intent to limit appeals in immigration decisions” which must be right.21
But I consider the “any other reason” limb preserves judicial flexibility in the considerations relevant to granting leave. The subsection sets out what a court must have regard to; it does not purport to set out the test a court must apply. As Asher J recognised in Allada v Immigration and Protection Tribunal New Zealand, in relation to the equivalent clause in s 249(6), it is conceivable in rare circumstances that a Court could grant leave even if the factors to which regard must be had were
not made out.22 Indeed, the Ministry of Justice’s advice to the Attorney-General that
the wording of the s 239(6) clause was consistent with the Bill of Rights was based on it noting that “the courts have a wide discretion to grant leave for judicial review where it is a matter of ‘general or public importance or any other reason”.23
[36] Parliament’s use of this phrase indicates that it intended to allow judges to use their discretion when encountering situations it could not envisage. The essence of that is allowing judges to make decisions in the interests of justice, especially in a field in which human rights may be at stake. I consider further assistance is available from the criteria which guide the Supreme Court in considering applications for leave to appeal. Section 13 of the Supreme Court 2003 provides that Court must be satisfied an appeal is “necessary in the interests of justice”. That
phrase is defined (non-exhaustively) to include several situations including,
19 E.g. Waller v Hider [1998] 1 NZLR 412 (CA) at 413 applied in an Immigration Act context by
Woodhouse J in Tong v Chief Executive of the Department of Labour [2011] NZHC 1433 at [10].
20 Waller v Hider, above n 19, at [2].
21 Taafi v Minister of Immigration [2011] NZHC 1768, [2013] NZAR 1037 at [18].
22 Allada v Immigration and Protection Tribunal New Zealand [2014] NZHC 953 at [32].
23 Legal Advice from Ministry of Justice to Attorney-General “Consistency with the New Zealand Bill of Rights Act 1990: Immigration (Mass Arrivals) Amendment Bill (3 April 2012), at [29] (emphasis in the original).
relevantly, an appeal involving a matter of general or public importance or a substantial miscarriage of justice.24
[37] For these reasons, and with respect, I do not consider s 245(3) needs to be, or should be, interpreted nearly as narrowly as does Duffy J in LMN v Immigration and Protection Tribunal New Zealand nor, probably, as narrowly as does Kós J in Taafi v Minister of Immigration: 25
(a) Duffy J considers that “by enacting s 245, Parliament has vested the Tribunal with a jurisdiction that permits it to make errors of law on the fact of the record, providing such errors have no effect beyond that of the appellant.”26 I consider the “any other reason” wording has more life in it than that.
(b)Kós J, in a case where an applicant imprisoned for rape advanced arguments wholly based on criticisms of factual findings by the Tribunal, considered that “it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met”.27 It is (just) possible that application of this approach would be similar in practice to that I propose above. But the tone of its description, no doubt
deriving from the context of the case, leaves room for doubt such that the potential difference in approach should be noted.
Judicial Review by leave
[38] In addition to restricting appeals, the Act also restricts the availability of judicial review. It is unusual in New Zealand, and some would say constitutionally
24 Section 13 also explicitly extends the definition of “necessary in the interests of justice” to include matters of general commercial significance and significant issues relating to the Treaty of Waitangi.
25 LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [2] and [33] and [34]. Taafi v Minister of Immigration, above n 21. Both approaches were adopted by Faire J in SK v The Immigration and Protection Tribunal [2014] NZHC 2693 at [6] and [9], in relation to judicial review under s 249.
26 At [34].
27 Taafi v Minister of Immigration, above n 21 at [19].
undesirable, for an application for judicial review to require the leave of Court. However, this is what s 249 provides:
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
(2) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
(4) An application to the High Court for leave to bring review proceedings must be made—
(a) not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5) A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
(a) whether 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.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
(8) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[39] The Crown’s helpful supplementary submissions on the legislative history of s 249 make clear that leave for judicial review was not required until its insertion by the Immigration Amendment Act 2013, the primary purpose of which was to enhance New Zealand’s ability to manage a mass arrival of illegal migrants. There was parliamentary opposition to the proposal. However Ms Charmley, for the Crown, observes that neither the parliamentary debates nor the explanatory note explain the insertion of the leave provision. The departmental advice to the select committee provides insight into officials’ belief that consistency between the appeal
and judicial review provisions was desirable:28
Providing consistency between the two forms of legal challenge may be considered by some to be contentious. This is because the net effect will be that an application for judicial review to the High Court will no longer be as of right.
However judicial review is not generally excluded and the High Court will control, through the leave requirement, what legal challenges of immigration decisions may be pursued in that court by appeal and/or judicial review. Either way, an avenue for legal challenge remains.
[40] A desire for consistency is understandable. As Gilbert J noted in Songmia v Minister of Immigration the previous inconsistency, between the requirement of leave for appeals and no such requirement for judicial reviews, encouraged issues of appeal to be addressed in applications for judicial review.29 The Ministry of Justice’s advice to the Attorney-General that the clause appeared consistent with the right to judicial review was based on a similar understanding of its purpose: “to remove the incentive to take review proceedings instead of using the normal appeal process”.30
[41] The High Court has recognised that s 249 reflects a deliberate intention by
Parliament to restrict the availability of judicial review, as indicated by its title.31
The Court of Appeal has, briefly, expressed a similar view.32 And that must be correct. And there are good reasons why, in an immigration context, judicial review
proceedings can be a problem for immigration authorities. Judicial review can be a
28 Department of Labour Briefing to the Transport and Industrial Relations Committee: Immigration Amendment Bill (31 May 2012) at [27]-[30].
29 Songmia v Minister of Immigration [2013] NZHC 3233 at [12].
30 Legal Advice from Ministry of Justice to Attorney-General, above n 23 at [27].
31 For example, Liu v Immigration New Zealand [2014] NZHC 195 at [16]-[23]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5].
32 SK v The Immigration and Protection Tribunal [2015] NZCA 26 at [13] and K v Immigration and Protection Tribunal [2014] NZCA 585 at [2].
means by which even those with hopeless claims can try to slow down decision- making in order to delay the inevitable order that deports them. And there is little incentive on the deportable not to do that.
[42] The statutorily mandated considerations relevant to leave under s 245(3) and
249(6)(b) are worded similarly and I interpret them similarly, as outlined above in relation to s 245(3). However appeal and judicial review are quite different legal mechanisms. There are constitutional and Bill of Rights considerations relevant to applications for leave for judicial review that do not impact applications for leave to appeal in the same way. I respectfully disagree with Faire J in SK v The Immigration and Protection Tribunal that the grounds for granting leave to judicial review are as narrow as Duffy J’s interpretation of the latitude for granting leave to appeal (with
which I also disagree, as noted above).33
[43] Interpretation of s 249(6) requires appreciation of the constitutional and Bill of Rights implications of restrictions on the right to judicial review.
[44] The right to judicial review is a core element by which the judiciary holds the executive branch of government accountable for acting according to law. As McGrath J and Elias CJ stated in Tannadyce Investments Ltd v Commissioner of Inland Revenue:34
Our constitutional arrangements recognise that the Parliament of New Zealand is the supreme law maker and has “full power to make laws”. The courts of higher jurisdiction, however, have constitutional responsibility for upholding the values which constitute the rule of law. A central aspect of that role is to ensure that when public officials exercise the powers conferred on them by Parliament, they act within them. Judicial review is the common law means by which the courts hold such officials to account. It provides the public with assurance that public officials are acting within the law in exercising their powers, and are accountable if they depart from doing so. Statutes limiting recourse to judicial review to challenge statutory decisions accordingly raise issues of constitutional concern. This concern is reflected in the presumption of the courts, when interpreting such legislation, that it
33 SK v Immigration and Protection Tribunal, above n 25. In LMN v Immigration and Protection Tribunal New Zealand, above n 25, Duffy J recognised at [34] that the scope of leave to bring judicial review under s 249 is wider than that to appeal under s 245.
34 Tanndyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR
153 at [3] (internal citations omitted). McGrath J and Elias CJ were in the minority in this case but the majority did not disagree with, and is not inconsistent with, the constitutional orthodoxy in the passage quoted. See the judgment of Tipping, Blanchard and Gault and JJ at [56], [60] and [70].
was not Parliament’s purpose to allow decision-makers power conclusively to determine any question of law. Furthermore, in the present context, tax legislation will not readily be read as enabling imposition of a liability for tax without also allowing the opportunity of access to a judicial process to show that, in law, the tax should not have been imposed or imposed in the amount assessed.
[45] That passage indicates the presumption courts will apply to interpreting provisions restricting judicial review: the presumption that Parliament did not intend to allow decision-makers power conclusively to determine any question of law. And, indeed, while it diminishes the dimensions of the window of availability for judicial review, s 249 still leaves the window open and, constitutionally appropriately, provides the judiciary with the discretion to open and close it.
[46] Furthermore, the importance of the window of judicial review remaining in working order is conveyed directly to the judiciary by Parliament’s protection of the right to judicial review in s 27(2) of the Bill of Rights:
Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
[47] Section 27(2) is, of course, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”, according to s 5 of the Bill of Rights. Importantly, s 6 provides that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”.
[48] The Bill of Rights represents a statutory and constitutional requirement on the judiciary in deciding how to interpret and apply s 249. References to ss 6 and 27(2) have not featured significantly in cases examining s 249 issues to date.35 But they could be important where s 249 falls to be interpreted and more and less rights consistent meanings are available. The Bill of Rights’ interpretative imperative also
directly affects application of the s 249 leave test by the judiciary. The judiciary is
35 An exception is Liu v Immigration New Zealand [2014] NZHC 195 at [15], though Fogarty J does not consider whether and how s 6 of the Bill of Rights applies to the question of leave. In Wang v Xiao [2013] NZHC 2059, Brown J responded to a Bill of Rights argument at [44] but this was before s 249 was amended in 2013 to include the leave requirement.
bound by the Bill of Rights under s 3(a) and must make its decisions consistently with the Bill of Rights.36
[49] The plain words of s 249(1) and (2) are effective to require, ordinarily, judicial review to await final determination of an appeal to, or other matter before, the Tribunal. And, ordinarily, s 249(4) (as amended in 2015) imposes time limits on applications for leave to bring judicial review proceedings, though I leave open whether there might be exceptions to those requirements in some circumstances, consistent with the remedial constitutional function of judicial review.
[50] But where, those hurdles having been passed, a court considers a ground of review is potentially arguable, ss 6 and 27(2) of the Bill of Rights militate in favour of leave to bring proceedings being granted. Otherwise the leave requirement could have the effect of restricting the availability of judicial review without justification.
[51] In most circumstances, these constitutional considerations may not make a difference to the result of considering applications for leave to bring judicial review. The judiciary will not give leave to hopeless cases and the Bill of Rights does not require them to do so, given the demonstrable justification in conserving public resources and in not delaying execution of immigration law in the public interest. A case where a ground of judicial review is clearly available will get leave and the Bill of Rights endorses that. And, where the issues can be dealt with adequately in an
appeal, s 249(6) suggests “that is the appropriate route”,37 and the Bill of Rights does
not suggest otherwise. But in marginal cases, it is important to bear in mind that the leave decision is one which impacts the fundamental right to judicial review, that is protected by the Bill of Rights and the constitutional function of judicial review. That might make a difference to the leave decision, as it does to my approach to the
leave decision compared with that of Duffy J.
36 As explained in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [5.6.6] “[t]he weight of judicial authority in New Zealand supports this position”.
37 See Songmia v Minister of Immigration, above n 29, at [13] regarding the predecessor provision.
Analysis
Appeal
[52] There are eight grounds of appeal identified in RM’s and SM’s application for leave to appeal under s 245. The case does involve an important private interest to the applicants. But I consider that all but one of the grounds do not rise to the level of a question capable of bona fide and serious argument or which must be heard in the interests of justice.
[53] Seven of the proposed grounds are clearly not sustainable and, to be fair, were not seriously pursued in written or oral submissions:
(a) The Tribunal is said to have elevated credibility to the primary basis for the Tribunal’s determination rather than corroboration of testimony. The credibility findings are questions of fact, not law, and may be a “legitimate and important consideration” in the overall evaluation of the claim according to the Supreme Court.38 The Tribunal is clear in setting out, and conceiving of, its assessment of
credibility separately from its determination under each of the conventions. It was entitled to base its determination on the facts as it found them, including credibility (s 137(5)). That is its role. It did not err in law.
(b)The Tribunal is said to have failed to adequately evaluate the personal circumstances of the applicants and the country information. This is not a question of law. It is a question of the weight given to facts. The applicant’s stated intention to return to the Samosir region entitled the Tribunal to examine evidence in relation to that region, as it could reasonably have been expected to do.
(c) Three grounds challenge the lack of, or process of considering, an adjournment or inadequate preparation time. But the applicants had
eight months between the Officers’ decision in December 2014 and
38 Attorney-General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 at [44].
the Tribunal hearing in August 2015. They were advised of the desirability of finding counsel, and were provided with the Tribunal’s advocate list, in April 2015. The process of considering whether to adjourn is not an error of law in the substantive decision. The Tribunal is empowered to regulate its own process under s 222(4). And there is no evidence of further information that could have made a difference to the decision.
(d)Two grounds challenge what is characterised as the Tribunal’s fixation on “serious harm” as the relevant test for the CAT and ICCPR which excluded other lesser restrictions and did not adequately consider the separate test in ss 130-131. But the Tribunal did not use “serious harm” as the relevant test. It found on the facts that RM and SM are not at risk of being seriously harmed in Indonesia. It used that as a basis for its assessment that they do not face either the danger of being subjected to torture, in terms of the CAT, or in danger of being subjected to arbitrary deprivation of life or cruel treatment, in terms of ICCPR.
[54] The proposed ground of appeal that Mr Pidgeon, for RM and SM, properly identified as his best point was that the Tribunal failed adequately to take into account the interests of the two children. I deal with this below as that is also a potential point of judicial review.
Judicial Review
[55] The application for judicial review identifies ten proposed grounds of judicial review. The accompanying Statement of Claim identifies in more detail five related omissions or findings of the Tribunal that are said to have led to its decision being invalid for six reasons.
[56] I dismiss five of the ten proposed grounds on the same basis as I dismissed them as ground of appeal (in paragraphs 53(a),(b),(c) and (d)).
[57] Another two proposed grounds are so barely pleaded that is it difficult to establish their content, even by relating them to the draft Statement of Claim or the applicants’ written submissions. And such challenges that seek to turn questions of fact into questions of law face a particularly high legal hurdle:39
(a) the Tribunal came to a conclusion on the basis of evidence which could not reasonably have supported the conclusion; and
(b) the Tribunal came to a conclusion it could not reasonably have.
[58] The grounds that have most potential to be sustainable are those that Mr Pidgeon pressed in his oral submissions and that are the focus of his written submissions. They are related to the potential ground of appeal of not taking into account the interests of the children:
(a) the Tribunal breached natural justice by omitting to join the children to its proceeding;
(b)the Tribunal breached natural justice by not consulting or otherwise inquiring into the effect of the decision on the children;
(c) the effect of the decision on the children is a mandatory relevant consideration or a legitimate expectation and was not considered;
[59] I deal with these, and the ground of appeal, together. If required, I would then consider whether to grant leave for an appeal and/or review proceedings.
The Relevance of the Interests of the Children
[60] Mr Pidgeon for the parents says that if the parents are deported the children will be faced with a very difficult choice: stay in New Zealand, as they are entitled to do as citizens, and board; or return to Indonesia with their parents as a family. Since the children’s interests are directly affected by the Tribunal’s decision Mr Pidgeon
submits that the Tribunal must take them into account. Mr Pidgeon submits the
39 Taafi v Minister of Immigration, above n 21 at [19].
Tribunal is bound to take into account the interests of the children in accordance with New Zealand’s international obligations. In particular articles 3 and 9 the United National Convention on the Rights of the Child (UNCROC) say:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
[61] Article 23 of the ICCPR could also be thought to be relevant:
Article 23
1.The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2.The right of men and women of marriageable age to marry and to found a family shall be recognized.
[62] There is New Zealand authority, both high and good, from the Supreme Court in Ye v Minister of Immigration that:40
It is appropriate, in the light of New Zealand’s obligations under art 3(1) [of UNCROC], to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making process. The words “a primary consideration” in art 3(1) do not denote how this consideration ranks against any other relevant consideration such as the public interest. The child’s interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any applicable statutory test.
40 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [25] (emphasis added).
[63] The context there was similar to that here: the children were New Zealand citizens whose parents were unlawfully in New Zealand and were the subject of removal orders. The difference was that that case involved a humanitarian appeal and this one involves a refugee and protected person status appeal.
[64] The Crown says that difference makes all the difference to what’s required of the Tribunal and what is possible under law. Ms Charmley for the Crown submits that “the interests of the children are not directly relevant to the question before the Tribunal, namely whether the applicants were at risk of persecution, torture or cruel and inhuman punishment”. And the children, as New Zealand citizens, could not themselves have applied for refugee or protected person status (s 132(1)). Ms Charmley contrasts this situation with humanitarian appeals to which the interests of children are of greater relevance to the question in issue and which involves a different inquiry. She says that is where the interests of children are properly taken into account. That is recognised by the Supreme Court’s judgment in Guo v Minister
of Immigration41 and is also the case in Canada and the United Kingdom, for
example.42
[65] I should note that it seems that the applicants here are now precluded from making a humanitarian appeal. Section 194(6) requires a person appealing a refugee or protected person status decision to also lodge a humanitarian appeal at the same time. If they do not they are not entitled to a humanitarian appeal. It appears that RM and SM did not lodge a humanitarian appeal at the same time as their refugee or protected person status appeal. It is not clear to me whether a subsequent decision to effect deportation, or not to cancel it, without humanitarian arguments having been heard at all in the process leading up to it, would be susceptible to judicial review for failing to take into account a relevant consideration.
[66] This is the key substantive issue of the case: are the interests or views of New
Zealand citizen children relevant or irrelevant to a decision on the refugee or protected person status of their parents?
41 Guo v Minister of Immigration, above n 18.
42 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (SCC), affirmed in Uhuangho v Canada 2005 FC 50. ZH (Tanzania) v SS'HD [2011] UKSC 4, [2011] 2 AC 166.
[67] The nature of the decision is important. The statutory criteria under which a refugee or protected person status decision is taken are prescriptive:
(a) For a person to be recognised as a refugee under s 130 he or she must satisfy the definition under the Refugee Convention:
. . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country: or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
(b)For a person to be protected under the CAT there must be substantial grounds for believing that he or she would be in danger of being subjected to torture if deported and must not be able to access meaningful domestic protection ( s130);
(c) For a person to be protected under the ICCPR there must be substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment if deported (other than under lawful sanctions if they are not imposed in disregard of accepted international standards) and must not be able to access meaningful domestic protection (s 131).
[68] Section 137 of the Act provides that an officer must determine whether to recognise the claimant under each of those sections. Under s 138, if the officer is satisfied that there are such grounds for recognition the officer “must” recognise a person as a refugee or protected person unless other specified conditions of fact are present that are not relevant here. So the discretion exercised by the officer, and the Tribunal on appeal, is essentially confined to the finding of facts according to criteria in international instruments.
[69] This means there is force in the Crown’s submission. It is difficult to see how the interests or views of citizen children of those assessed for refugee or protected status are likely to bear on their parents’ status. And I have located no case in New Zealand, Canada or the United Kingdom where they have been found to do so.
[70] But I consider it is possible to envisage circumstances in which children of a persecuted faith, race or other characteristic might themselves create the pre- conditions of persecution of parents who do not share that characteristic. Or some circumstances may legitimately lead parents to fear cruel treatment of their children if they would be returned to another country. For example a child may face female genital mutilation if returned whereas the parents might not.
[71] US courts have faced such claims though the different circuits of the Court of Appeals are at odds as to the outcomes.43 For example, the US Sixth Circuit Court of Appeals found in Abay v Ashcroft in such circumstances that a mother and child were both refugees and eligible for asylum.44 The Seventh Circuit Court of Appeals in Olowo v Ashcroft did not consider a similar situation to warrant asylum though it certainly considered the interests of the child in its decision.45
[72] In New Zealand I consider that in such circumstances, and possibly others, the interests of a child would be relevant to the assessment of the status of the parents and must be considered in the way the Supreme Court requires of a humanitarian appeal in Ye v Minister of Immigration.46 Such children may also require separate representation as is sought here.
[73] So I do not hold that the interests and views of children can never be relevant to refugee and protected status decision. It is possible that they can be, though that is likely to be rare. As ever, it depends on the circumstances. The possibility should not be ruled out. And officers and the Tribunal will need to be alert to that
possibility.
43 See Bridgette A Carr “Incorporating a ‘Best Interests of the Child’ Approach into Immigration
Law and Procedure” (2009) 12 Yale Hum Rts & Dev L J 120 at 139-145.
44 Abay v Ashcroft 368 F 3d 634 (6th Cir. 2004).
45 Olowo v Ashcroft 368 F 3d 692 (7th Cir. 2004).
46 Ye v Minister of Immigration, above n 40.
[74] The difficulty for the family here is that is not the case here. The parents share the status of the children, aside from nationality, and that has been the subject of assessment. The interests and views of the children do not add anything to the considerations relevant to the strictly prescribed decision the Tribunal has to make, which is the application of the statutory criteria for determining whether RM and SM have the status of refugees or protected persons.
[75] Unfortunately, for the family, I do not consider that the matter is even potentially arguable in their circumstances. It is not capable of bona fide serious argument. This means that the issues in an appeal or judicial review would not be a matter of general or public importance. Nor is it in the interests of justice that they be litigated. And declining leave to bring the judicial review proceedings in those circumstances is not inconsistent with the Bill of Rights.
[76] Accordingly, it follows that the applications for leave to bring an appeal or a judicial review must be declined. The question of whether the children should be joined to the judicial review proceedings therefore falls away; otherwise I would have been inclined to grant that application. I recognise that the consequences of this decision are difficult for the family but that is the effect of the law and the parents’ actions.
Result
[77] I decline the applications for leave to bring the appeal and the judicial review. If costs cannot be agreed between the parties I reserve leave for them to file and serve memoranda within 15 working days of the date of this judgment.
Palmer J
Solicitors: Pidgeon Law, Auckland (J Pidgeon) Crown Law, Wellington (R Garden)
To: International Justice Advocates Ltd, Auckland
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