WK v The Refugee Protection Officer, MBIE, Auckland
[2018] NZHC 683
•11 April 2018
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS OR HER CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE
IMIMGRATION ACT 2009.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1012
[2018] NZHC 683
UNDER the Immigration Act 2009, ss 129-131, s 140 IN THE MATTER
of an appeal of a decision of the Refugee Status branch to decline an application for refugee status
BETWEEN
WK
Applicant
AND
THE REFUGEE PROTECTION OFFICER, MBIE, AUCKLAND
Respondent
Hearing: 11 April 2018 Appearances:
R Pidgeon for the Applicant
S Jerebine and T Burgess for the Respondent
Judgment:
11 April 2018
Reasons:
16 April 2018
JUDGMENT (REASONS) OF WOODHOUSE J
(Application for interim relief pending appeal)
This judgment was delivered by me on 16 April 2018 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
WK v THE REFUGEE PROTECTION OFFICER, MBIE, AUCKLAND [2018] NZHC 683 [16 April 2018]
[1] The applicant, WK, has appealed against a decision of mine (the substantive judgment) dismissing his application for judicial review of a decision of a Refugee and Protection Officer (RPO).1 The RPO, pursuant to s 140(3) of the Immigration Act 2009 (the Act), had refused to consider what was WK’s fourth claim for recognition as a refugee or protected person.2
[2] WK is liable for deportation. On filing his appeal he also applied, in this Court, for interim relief in respect of the deportation liability pending determination of the appeal. I heard that application and delivered an oral judgment granting interim relief, but without reasons.3 These are my reasons.
The results judgment
[3] At the end of the hearing I advised counsel that I had concluded that interim relief should be granted to the applicant, to remain in place until, in broad terms, the conclusion of WK’s appeal to the Court of Appeal. The interim relief sought was a declaration that the Crown ought not to take steps to deport WK until 5:00 pm on the day following delivery of the judgment of the Court of Appeal. Ms Jerebine, for the respondent, and for the Crown in respect of the statutory power of deportation, advised that the Crown would agree not to take action to deport WK until determination of the appeal. Mr Pidgeon advised that the Crown’s agreement not to deport WK was acceptable in place of a declaration from the Court.
[4] In the course of discussion in court, the terms of the Crown’s agreement were formulated and recorded in the results judgment, which is as follows:
The Crown will not take any action to deport the applicant until the earliest of the following events:
(a)5:00 pm on the first working day following delivery of the judgment of the Court of Appeal in appeal CA150/2018; or
1 WK v The Refugee Protection Officer, MBIE, Auckland [2018] NZHC 514.
2 Section 140 is recorded below at [11].
3 WK v The Refugee Protection Officer, MBIE, Auckland [2018] NZHC 651.
(b)on discontinuance or dismissal of the appeal for any reason; or
(c)on release of the Crown from its agreement by the Court of Appeal on application by the Crown in the event of an adjournment, for any reason, of the current appeal fixture in the Court of Appeal on 17 May 2018.
For the avoidance of doubt, the Crown’s agreement will not in any event extend beyond the conclusion of the appeal in the Court of Appeal, and whether or not there is an application for leave to appeal to the Supreme Court.
Procedural background
[5] WK is a Turkish national. He arrived in New Zealand in 2011. Since 2012 he has made four unsuccessful claims for refugee and protected person status in New Zealand. Details of those claims, and of appeals to the Immigration and Protection Tribunal (the Tribunal) against the first three decisions of an RPO, are set out in the substantive judgment.4
[6] The third Tribunal decision was delivered on 27 February 2017. A deportation notice to WK was issued on 6 March 2017.
[7] WK’s fourth claim was made on 21 March 2017 and determined by the RPO on 8 May 2017.
[8] WK’s judicial review application was heard in this Court on 11 October 2017 and judgment was reserved. Before delivery of the substantive judgment steps had been taken for WK’s deportation. He was due to be deported on 13 March 2018. He applied for interim relief under s 15 of the Judicial Review Procedure Act 2016 pending delivery of my judgment. On 12 March 2018, Courtney J made an order by consent under s 15(3)(b)(i) of the Judicial Review Procedure Act declaring:5
4 WK v The Refugee Protection Officer, MBIE, Auckland, above n 1, at [7]-[44].
5 WK v Refugee and Protection Officer HC Auckland CIV-2017-404-1012, 12 March 2018.
… that the Crown ought not to take any further action that is or would be consequential on the exercise of its statutory power in relation to the deportation of WK until 5:00 pm on the first full working day following delivery of Woodhouse J’s substantive decision.
[9]The substantive judgment was delivered on 23 March 2018.
[10] On 26 March 2018 WK filed a notice of appeal in the Court of Appeal. On the same date he filed his application for interim relief. This was an application without notice, but it was served on Crown counsel. I convened a telephone conference on 26 March. The Crown at that point agreed not to take any further steps to deport WK until a full hearing of the application for interim relief.
The statutory framework
[11] The RPO concluded under s 140(3) that WK’s claim was manifestly unfounded, clearly abusive, and repetitive of claims previously made. The interpretation and application of s 140, including the relationship between s 140(1) and s 140(3), are matters raised by WK on his appeal.
[12]Section 140 is as follows:
140 Limitation on subsequent claims
(1)A refugee and protection officer must not consider a subsequent claim for recognition as a refugee or a protected person unless the officer is satisfied—
(a)that there has been a significant change in circumstances material to the claim since the previous claim was determined; and
(b)the change in 1 or more of the circumstances was not brought about by the claimant—
(i)acting otherwise than in good faith; and
(ii)for a purpose of creating grounds for recognition under any of sections 129 to 131.
(2)For the purposes of determining the matter in subsection (1), the refugee and protection officer must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.
(3)A refugee and protection officer may refuse to consider a subsequent claim for recognition as a refugee or a protected person if the officer is satisfied that the claim—
(a)is manifestly unfounded or clearly abusive; or
(b)repeats any claim previously made (including a subsequent claim).
[13] Section 142 of the Act bears directly on a question central to the application for interim relief; that is, whether the appeal will be rendered nugatory if interim relief is not granted. Section 142 is as follows:
142 Claim treated as withdrawn if claimant leaves New Zealand
If a claimant leaves New Zealand, his or her claim (including any subsequent claim) under this Part must be treated as withdrawn.
[14] Section 142 is in Part 5 of the Act. Part 5 is the part of the Act dealing with refugee and protection status determinations. The effect of s 142 is discussed below.
[15] Section 195 provides that there is a right of appeal to the Tribunal against a decision under s 140(1). There is a further right of appeal on a point of law to the High Court and a right to seek judicial review of the Tribunal decision, subject in both cases to some restrictions.6
[16] There is no right of appeal against a decision under s 140(3) unless the claimant’s most recent previous claim had been declined under Part 6A of the Immigration Act 1987. The saving in respect of claims under the 1987 Act has no application in this case. Although there is no right of appeal against a refusal under s 140(3), there is an unrestricted right to apply for judicial review.
[17] Section 164(1) of the Act was given some emphasis by the Crown. This provides that no person who is recognised as a refugee or protected person in New Zealand, or who is a claimant, may be deported under the Act. I have emphasised the words because the Crown submitted that WK is no longer a claimant. The reasons were summarised in the written submissions for the Crown as follows:
6 Sections 245 and 249.
(a)A “claimant” means a person who has made a “claim”, but does not include a “person whose claim has been finally determined (within the meaning of section 128”.7
(b)Section 128 of the Act provides that a matter under Part 5 “Refugee and protection status determinations” must not be treated as finally determined until the expiry of the appeal period for any appeal relating to the matter, or, if the person lodges an appeal, the appeal is determined.
(c)Section 128 does not provide for any judicial review (or “review proceedings”, the defined term in s 4 of the Act) to be filed or determined before a claim is finally determined.
(d)The applicant did not have any right of appeal to the Immigration and Protection Tribunal against the 8 May 2017 decision of the RPO.8
(e)Accordingly, the applicant’s claim was finally determined when the RPO released the 8 May 2017 decision. He ceased to be a “claimant” and the limitation on deportation in s 164(1) of the Act ceased to apply.
Interim relief: jurisdiction and principles
[18] It was not in issue that there is jurisdiction to grant interim relief directed to the liability for deportation pending determination of the appeal. WK’s application was made in reliance on r 12(3)(b) of the Court of Appeal (Civil) Rules 2005, which enables the Court of Appeal and the court appealed from to grant “any interim relief” pending determination of an application for leave to appeal, or an appeal.9 The Crown also referred to the Court’s inherent jurisdiction to grant interim relief, applying the same principles as set out in s 15 of the Judicial Review Procedure Act 2016.10 I am satisfied that r 12(3)(b) is the applicable provision.
[19] Ms Jerebine submitted that, in determining interim relief applications in the context of the Immigration Act, there is a two-step approach recently affirmed in Singh (Kulbir) v An Immigration Officer:11
7 Section 4, definition of “claimant”. See also s 4, definition of “claim”.
8 Section 195(1)(b).
9 As applied, for example, in Parmanadan v Minister of Immigration [2010] NZCA 136, [2010] NZAR 424 at [2].
10 Faavae v Minister of Immigration (1997) 11 PRNZ 168 (HC) at 169-170. Under s 15 of the Judicial Review Procedure Act, before the final determination of an application, the Court may, when the Crown is a respondent, make an order declaring that the Court ought not to take any further action that is, or would be, consequential on the exercise of the statutory power.
11 Singh (Kulbir) v An Immigration Officer [2016] NZCA 435, [2016] NZAR 1419 at [32].
The Court asks first whether the adverse consequences of deportation before the judicial review application is determined are such that it is necessary to preserve the appellants’ position in the interim and, secondly, whether there is a respectable case for judicial review.
[20] In Singh (Kulbir), the Court doubted “the utility in a public law context” of the interim injunction principles discussed in Klissers Farmhouse Bakeries case.12
[21] Mr Pidgeon submitted that the appropriate approach is to weigh the range of factors usually referred to for an assessment of competing interests when an appellant applies for stay of a judgment. He referred to a recent summary of relevant factors (not exclusive) by the Court of Appeal in Broadspectrum (New Zealand) Ltd v Nathan.13
[22] There are material differences between an application for stay and the interim relief sought in this case, but it is unnecessary to discuss those differences. Ms Jerebine accepted that at least most of the factors noted in Broadspectrum provide a useful checklist. I am satisfied those factors, save one, do provide a useful checklist and can be used, to the extent appropriate. The relevant checklist factors referred to in Broadspectrum are noted below. The one factor in Broadspectrum which would not appear to be applicable, in a case such as the present, is the overall balance of convenience. This is because of the observation in Singh (Kulbir) that the interim injunction principles discussed in Klissers Farmhouse Bakeries are of doubtful utility in a public law context.
[23] Ms Jerebine placed some emphasis on broad statements of principle by the Court of Appeal in Parmanadan v Minister of Immigration in relation to applications for interim orders preventing removal (now deportation) of a person from New Zealand pending determination of that person’s appeal.14 Parmanadan was a decision under the Immigration Act 1987, but the principles remain applicable under the Act. Indeed, the Court of Appeal has said, in Chief Executive of the MBIE v Nair, that the 2009 Act “reinforces the Parmanadan approach”.15
12 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).
13 Broadspectrum (New Zealand) Ltd v Nathan [2017] NZCA 434 at [34].
14 Parmanadan v Minister of Immigration, above n 9.
15 Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA 248, [2016] NZAR 836 at [16].
[24]The observations in Parmanadan of direct relevance are as follows:
[9] ... In previous cases where interim relief has been sought, the assumption has usually been that unless the status quo (ie the overstayer's continuing presence in New Zealand) is maintained, the overstayer's right to challenge removal will (or may) be irretrievably damaged on the basis that the overstayer, even if successful in the review proceedings, may not be permitted to return to New Zealand. In contrast, s 58(4) contemplates that a removal order may be cancelled despite an overstayer having left New Zealand. And once it is appreciated that the corollary of the cancellation of a removal order under s 58 will be a grant of permission to reside in New Zealand, the need for an interim order in cases such as the present might be thought to fall away, at least in large measure.
[10] To be more specific, the corollary of an ultimately successful challenge by the appellant to his removal will be a grant of permission to reside in New Zealand. In other words, the end point of the whole process (which may include reconsideration of his case by an immigration officer) will be either the appellant's removal, or him being permitted to stay in New Zealand. Armed with such permission, the appellant, even if removed in the meantime, will be able to return to New Zealand. So allowing him to be removed would not compromise his legal rights should his challenge to removal be ultimately successful.
[11] This is not to deny that there may be particular adverse consequences of a proposed removal which might warrant the making of an interim order. But the likelihood of such adverse consequences should be established by evidence and assessed in the context of both a legislative scheme under which the overstayer is necessarily illegally in New Zealand and is under a legal duty to leave16 (subject to a right of “appeal” to the Removal Review Authority on humanitarian grounds17), and also a legislative policy under which those who break the rules are not to be advantaged over those who comply.18
[25] In my judgment Parmanadan, and the subsequent Court of Appeal decisions applying principles stated in Parmanadan to the 2009 Act, are distinguishable from cases such as the present. This is because the statutory framework relevant to Parmanadan is materially different from that applying in the present case. I explain this in my evaluation, which follows.
Evaluation
[26] The principal reasons for my conclusion that interim relief should be granted were that, if WK is deported, his appeal will be rendered nugatory and there are grounds of appeal which should be considered by the Court of Appeal.
16 Immigration Act 1987, s 45. See also ss 4 and 34.
17 Section 47.
18 As expressed in the Long Titles to the Immigration Amendment Acts 1991 and 1999.
[27] There are other considerations which provide support for the granting of interim relief. Countervailing arguments for the Crown, including strong submissions that none of the grounds of appeal have any chance of success, did not persuade me that relief should be declined. I will address those further points, to the extent necessary, after considering the primary reasons for my decision.
[28] The Crown acknowledged that if there is no interim relief and WK succeeds in his appeal, the appeal, as Ms Jerebine put it, “will become moot when [WK] leaves New Zealand”. This is because the relief sought by WK on appeal is for orders that the RPO’s decision on WK’s fourth claim be set aside and that the fourth claim be reheard. But the claim cannot be reheard. This is because of the effect of s 142, as noted earlier: if WK is deported he will have left New Zealand and his claim “must be treated as withdrawn”. The appeal will be rendered nugatory.
[29] In addition to being central to my decision, this statutory result is the principal reason why, in my opinion, Parmanadan and subsequent cases have no application. The statutory framework is materially different in this case. In particular, s 142 had no application in cases such as Parmanadan, Nair and Broadspectrum because those cases were not concerned with persons making claims for refugee or protected person status and to whom Part 5 of the Act applies. Parmanadan and the other cases concerned persons who had been granted permits to enter and remain in New Zealand, but whose rights through those permits had expired. The appellants were seeking to challenge directly the validity of the order for removal (under the 1987 Act) or a deportation notice (under the 2009 Act). There is no challenge by WK to the issue of the deportation notice, except in a very indirect sense.
[30] In Parmanadan, for the reasons recorded in the citation above at [24], and further explained in Nair under the present Act,19 deportation of a person challenging a deportation order, and not subject to the provisions in Part 5 of the Act, will not usually have “statutory effects … sufficiently adverse to meet the threshold for interim relief”.20 In this case the statutory effect of deportation is that no benefit can be obtained from a successful appeal. It may be that this is an unintended consequence
19 Chief Executive of the MBIE v Nair, above n 15, at [14]-[15].
20 At [15].
of s 142, but there was no argument for the Crown that s 142 can be interpreted so as to exclude from its effect a person who leaves New Zealand through deportation, as opposed to a person who leaves New Zealand voluntarily.
[31] I considered that deportation of WK could also have adverse consequences for him, in respect of his appeal, in another way. There is evidence, contained in material advanced on the fourth claim, and further evidence I admitted for the purpose of the judicial review hearing, that WK could be arrested on re-entry to Turkey. If he is arrested he may remain in custody for a period which will make it impossible for Mr Pidgeon to obtain any further instructions for the appeal. This is not a conclusion of risk contrary to conclusions reached by the Tribunal up to the third Tribunal decision. It is an assessment made for the purpose of determining whether WK’s statutory right of appeal could be materially impeded if he is deported.
[32] Those consequences for WK would be sufficiently adverse to meet the threshold for interim relief unless it could be said that there are no grounds of appeal which should be considered by the Court of Appeal. As earlier indicated, I am satisfied that there are grounds of appeal which should be considered by the Court of Appeal.
[33] Ms Jerebine submitted that various grounds of appeal “must … fail” or “cannot succeed”. Notwithstanding my conclusions in the substantive judgment, I am not persuaded that all grounds of appeal can be dismissed in such categorical terms.
[34] The starting point for consideration of this aspect is that it appears that the Court of Appeal has not on any previous occasion considered the meaning and application of s 140 of the Act. There are important issues which I consider warrant consideration by the Court of Appeal. These include the relationship between s140(1) and s 140(3); the meaning of “a significant change in circumstances material to the claim” as used in s 140(1)(a); how that provision is to be interpreted in light of s140(3)(b) which refers to repetition of “any claim previously made”; and what is meant by a claim that is “manifestly unfounded” and a claim that is “clearly abusive”.
[35] There are further considerations going beyond points on appeal directed to the substantive judgment. In particular, Mr Pidgeon has given notice of an intention to seek to adduce and rely on new evidence. The Court of Appeal has given directions in that regard. As I understand it, the proposed new evidence will be evidence of facts and circumstances existing up to the date of the decision of the RPO on the fourth claim (pre RPO evidence) and evidence of facts and circumstances coming into existence after that decision (post RPO evidence).
[36] Pre RPO evidence, if it is material, in terms of s 140, and if leave is granted to rely on it, may have a bearing on the appeal.
[37] The admission of post RPO evidence would seem to be more problematic. In addition to the need to meet the usual test for admission of new evidence on an appeal, it may be said that it would be unusual to admit new evidence on an application for judicial review, and even more unusual to admit new evidence of facts and circumstances arising after the original decision was made. It may be a novel point. But there would also appear to be some support for it. In AI (Somalia) v Immigration and Protection Tribunal, Palmer J said:21
[63] Finally Mr Pidgeon sought to adduce additional evidence of country information regarding Somalia, in submitting that there is a clear and enduring risk of harm to Mr AI from returning there, given his clan lineage. I have not needed to rely on that in coming to my conclusion above, given the evidence considered by the Tribunal. But I accept that the Court considering the appeal, or relief under judicial review, may consider the ends of justice would be served by receiving further updating information, whether of country information or in relation to Mr AI’s nuclear family.22 Either party may apply for leave to adduce such evidence as part seeking the timetabling directions.
[38] There is one further consideration bearing on my conclusion that WK should have an opportunity to have the Court of Appeal reconsider the decision of the RPO and the substantive judgment. This is that, on the application to the RPO, WK’s lawyer had to withdraw at a critical stage so that WK was unrepresented from that point, and in the hearing before me WK was unrepresented. In the hearing before me WK was assisted by Mr Brian Johnson, as a McKenzie friend, and had earlier been assisted by
21 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471.
22 CD (CA27/2015) v Immigration and Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494 at [24].
Mr Johnson and Mr David Lewis in preparation of pleadings and some submissions. But there was no legal representation. WK is now represented by Mr Pidgeon, counsel with experience in this field. I consider it appropriate to take account of the possibility that persuasive points may be put to the Court of Appeal which were not put to me and on the first occasion s 140 has been assessed by the Court of Appeal.
[39] As noted in my outline of the statutory framework, the Crown placed some emphasis on s 164(1) of the Act.23 The underlying point, as I understood it, was as follows. Section 164 is a provision intended to provide some additional protection against deportation for persons claiming recognition as refugees or protected persons. Given this special statutory regime, if the limitation on deportation no longer applies, the Court should, at the least, be particularly cautious in making an interim order contrary to the normal statutory consequence.
[40] I was not persuaded that this argument was a strong countervailing factor, let alone one which should result in the application for interim relief being refused. And I note that Ms Jerebine did not argue for the latter result. Section 164 regulates exercise of the power of deportation within the Act, but there is nothing to suggest that it modifies powers found in other enactments, or subordinate legislation such as the Court of Appeal Rules.
[41] It might also be argued, in terms of s 128 of the Act, that the “matter” of relevance in this case has not been “finally determined”. The relevant part of s 128 is as follows:
A matter under this Part must not be treated as finally determined until—
(a)the expiry of the appeal period for any appeal relating to the matter.
A broad interpretation of that part of s 128 could support a conclusion that the reference to “any appeal” includes an appeal from a judicial review decision relating to “the matter”. However, it is unnecessary to determine this point.
23 Above at [17].
[42] There are some remaining considerations arising from the summary of considerations in the Broadspectrum case, to the extent that they have not already been covered and to the extent that they have relevance in this case. I will briefly note these under appropriate sub-headings.
Injury or detriment to the successful party/respondent if the stay is granted
[43] Adapting that to the nature of the present proceeding, the opposing interests to be considered are those of the Crown. The issue here is a practical one, in respect of cost if WK remains in New Zealand, as opposed to the fundamental point of principle, articulated in Parmanadan amongst other cases, that persons who are illegally in New Zealand, and who do not voluntarily leave, should be deported. WK has, more recently, been in custody. There will be cost to the State as a consequence of the grant of interim relief, and assuming an application I understand is being made for WK’s release is not granted by the District Court. I did not consider that this cost is sufficient to outweigh the adverse consequences for WK.
The bona fides of the appellant as to the prosecution of the appeal
[44] It was plain, in my judgment, that WK, through Mr Pidgeon, was acting with all due diligence to have the matter brought before the Court of Appeal and determined as expeditiously as reasonably as possible. This is made sufficiently apparent from the earlier reference to the hearing date now secured in the Court of Appeal, accompanied by timetable directions.
Any public interest in the proceeding
[45] I take this heading from Broadspectrum to include reference to matters of public importance. I considered that the broad issue raised by this appeal, being the application of s140 to persons claiming to be recognised as refugees or persons in need of protection, is a matter of public importance because of New Zealand’s international obligations as well as domestic human rights legislation. This consideration supports the granting of leave because for the Court of Appeal’s first assessment of s 140. Section 140 is a provision of consequence which seeks to balance the interests of persons claiming refugee or protected person status, and who contend that the risks
they assert have intensified since an earlier claim was made, and the public interest in ensuring that time is not spent on claims lacking in any merit.24
[46]Those are my reasons.
Woodhouse J
Solicitors / Counsel:
Mr R Pidgeon, Barrister, Auckland
Mr P Pang, Integritas Law Firm, AucklandMs S Jerebine and Ms T Burgess, Crown Law, Wellington
24 This aspect was touched on in the substantive judgment, above n 1, at [65].
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