AR (INDIA) v ATTORNEY-GENERAL [2021] NZCA 291

AR (INDIA) v ATTORNEY-GENERAL [2021] NZCA 291 [2 July 2021]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF HIS/HER CLAIM ORSTATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THEIMMIGRATION ACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA135/2020[2021] NZCA 291BETWEEN AR (INDIA)AppellantAND ATTORNEY-GENERALRespondentHearing: 10 June 2021Court: French, Brown and Collins JJCounsel: R S Pidgeon, M J Mellin and L I E Tothill for AppellantC P Paterson and A-R C Davies for RespondentJudgment: 2 July 2021 at 10.30 amJUDGMENT OF THE COURTA The application to adduce further evidence is granted in part.B The appeal is dismissed.C No order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Two questions underpin this appeal:(a) Did the High Court err when it struck out AR's proceeding on the basisthat he could not succeed in his claim that, when immigration officersmade notations in his passport, they deprived AR of the right to lifeaffirmed in s 8 of the New Zealand Bill of Rights Act 1990(the NZBORA)?(b) Should we allow AR to further amend his statement of claim to pleadthe actions of the immigration officers amounted to an actionablebreach of statutory duty?AR has also applied to adduce further evidence. We deal with that application at[25] to [27].[2] From the outset we record we are applying the strike-out principles articulatedby the Supreme Court in Couch v Attorney-General and,1 in particular, we areconscious of the need to determine whether or not AR's cause of action is clearlyuntenable, but at the same time, recognise need for greater caution where the claiminvolves a developing area of the law.Background[3] AR is a member of the Muslim faith. He was born in India in 1973, apredominantly Hindu country. AR claims he faced persecution while living in Indiaand, that this persecution was accentuated when he joined Tanzeem Allah-o-Akbar, aMuslim political party.1 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [30]–[40].[4] In 1996, AR went to Australia and applied for refugee status. That applicationwas declined, and AR was deported to India. In 2008, he went to the United Kingdomwhere AR again applied for refugee status. That application was declined, and ARwas again deported to India. He says that on each occasion he was deported to Indiahe was detained and beaten by authorities in that country.[5] In 2014, AR says he was working for a Hindu group called "Shiv Sena". Hemaintains that while working for Shiv Sena he was robbed of a significant sum ofmoney. According to AR, he and his family were persecuted by members ofShiv Sena, who thought AR had stolen the money. Soon afterwards, AR arrived inNew Zealand and applied for refugee status, citing his concern that he and his familywere being persecuted by Shiv Sena.First refugee application[6] AR made his first refugee application in New Zealand in 2014. The Refugeeand Protection Officer who considered the application declined AR's request forrefugee status. The officer concluded AR's accounts of his life were not credible. Inparticular, the officer did not accept AR had been detained and beaten by authoritiesor that AR had been associated with Shiv Sena.[7] AR's appeal to the Immigration and Protection Tribunal (the Tribunal) wasdismissed.2 AR then applied for judicial review. That application was dismissed bythe High Court.3 His application for leave to appeal to this Court was declined by theHigh Court.4Second refugee application[8] AR made a second refugee application in 2015. The Refugee and ProtectionOfficer refused to reconsider AR's application, holding that there had been no materialchange in circumstances since AR's first refugee application and that AR was merely2 BY (India) [2015] NZIPT 800819.3 AR v Immigration and Protection Tribunal [2017] NZHC 2039, [2017] NZAR 1524.4 AR v Immigration and Protection Tribunal [2017] NZHC 2982.repeating the claims he had made in his failed application. An application for judicialreview was also dismissed by the High Court.5Notation in passport[9] In 2017, when AR was awaiting the outcome of his first High Court applicationfor judicial review, he sought and was granted a visa to remain in New Zealand,pending the determination of his High Court proceeding. In granting AR a temporaryvisa to remain in New Zealand, an immigration officer entered a notation on the visain his passport, saying that AR was entitled to stay in New Zealand "for the expresspurpose of awaiting High Court decision on refugee appeal status". On its face, thisappeared to constitute a breach of s 151 of the Immigration Act 2009, which requiresthe fact that a person is a claimant, a refugee, or a protected person to be keptconfidential. We set out s 151(1) of the Immigration Act at [67]. When immigrationofficers realised that the notation disclosed that AR was seeking refugee status inNew Zealand, they endeavoured to remedy their error by blocking out the notation andstamping "CANCELLED WITHOUT PREJUDICE" over the visa.[10] AR's passport will expire in approximately four months' time. We understandAR is entitled to receive a "clean" passport from the Indian High Commission, whenhe seeks a new passport.Third refugee application[11] In 2018, AR made his third refugee application. He claimed that, if he returnedto India, his current passport would be examined by Indian authorities who would thenrealise that he had made an application for refugee status in New Zealand. In thealternative, AR claimed Indian authorities would see the conspicuous stamps in hispassport and undertake a closer investigation of his circumstances and conclude thathe had sought refugee status in this country.5 AR v Refugee and Protection Officer [2016] NZHC 2916.[12] As part of his claim in support of his third refugee application, AR maintainedthat he would be viewed as a Muslim traitor by authorities and Hindu people in Indiaand that as a consequence he would be persecuted.[13] The Refugee and Protection Officer agreed the passport notations constituteda material change in circumstances that warranted reconsidering AR's application.However, the officer again declined AR's application, holding that the passportnotations would not draw undue attention to him if he returned to India and that, inany event, AR's previous allegations of persecution lacked credibility.[14] AR's appeal to the Tribunal was again dismissed.6 A Tribunal decision can befurther appealed or judicially reviewed, but this requires leave from the High Courtand must be brought within 28 days.7 This time has now passed and AR has made noattempt to challenge the Tribunal's latest decision.Civil proceeding[15] While awaiting the outcome of his third refugee application, AR commenceda proceeding in the High Court. Two causes were pleaded:(a) misfeasance in public office; and(b) breaches of ss 8 and 23(5) of the NZBORA.[16] Both causes of action were based upon the notations made by immigrationofficers to the visa in AR's current passport.[17] When the Attorney-General applied to strike out both causes of action, ARabandoned his claim based upon misfeasance in public office. Associate Judge Bell,who heard the strike-out application, therefore only determined whether the secondcause of action based upon the alleged breaches of the NZBORA was sufficientlyarguable to survive strike-out.6 KF (India) [2021] NZIPT 801808.7 Immigration Act 2009, ss 245 and 247.[18] There were two parts to the claim based upon breaches of the NZBORA in theamended statement of claim that were considered by the Associate Judge.[19] Section 8 of the NZBORA provides:8 Right not to be deprived of lifeNo one shall be deprived of life except on such grounds as are established bylaw and are consistent with the principles of fundamental justice.[20] AR pleaded that his right to life had been breached in two ways by the notationsmade to the visa in his passport:(a) by placing his life at risk in the event that he was required to return toIndia; and(b) by decreasing the quality of his life in New Zealand.For convenience, we will refer to the first of these claims as the s 8 risk to life claimand the second as the deprivation of dignity claim.[21] Deprivation of dignity was said by counsel for AR to be the essence of thediminution of quality of life claim. It is said to be actionable because the notations toAR's passport meant he could not work, travel, live with dignity in New Zealand andthat as a consequence his mental health had deteriorated, and he felt unworthy in theeyes of others in this country. The s 8 deprivation of dignity claim is said to beactionable without any reference to AR's life being placed at risk.High Court judgment[22] The argument that the notations in the passport placed AR's life at risk in Indiawas not pursued in the High Court because those issues were still being considered aspart of his third refugee application.[23] The s 8 deprivation of dignity claim was, however, the subject of argument inthe High Court. That claim was rejected by the Associate Judge, who concluded s 8did not have the broad meaning ascribed to it by AR and that, it was not arguable thatAR had a claim based upon a breach of s 8 of the NZBORA.8[24] The claim based upon the alleged breach of s 23(5) of the NZBORA was ableto be promptly disposed of in the High Court. That section provides everyone deprivedof liberty shall be treated with humanity and with respect for the inherent dignity ofthe person. The Associate Judge correctly noted that s 23(5) of the NZBORA onlyapplies to people deprived of liberty and that, as AR had not been deprived of liberty,s 23(5) was not engaged.9 The arguments advanced in the High Court concerning theapplication of s 23(5) of the NZBORA to AR's circumstances were not pursued beforeus and need not be considered further.Application to adduce further evidence[25] AR filed in this Court an affidavit dated 11 May 2021, which annexed:(a) the Refugee and Protection Officer's decision declining AR's mostrecent refugee status application;(b) the Tribunal's decision to dismiss AR's appeal from his thirdapplication;(c) further country information relating to India which AR has indicated hemay rely upon to make a fourth application for refugee status; and(d) a decision of Downs J declining AR's application to compel aRefugee and Protection Officer to provide information regarding anincident in 2018 when AR was alleged to have made use of his passportcontaining a work visa not issued to him.108 AR (India) v Attorney-General [2020] NZHC 421 [High Court judgment] at [36].9 At [37].10 AR (India) v Refugee and Protection Officer [2020] NZHC 1025.[26] Ms Paterson, senior counsel for the Attorney-General, advised that she took noobjection to the first two documents being produced as further evidence in this Courtand would abide the Court's decision in relation to the other documents.[27] We allow the application to admit as further evidence the documents referredto in [25(a), (b) and (c)]. We do not, however, admit the judgment of Downs J asevidence because a judgment of a New Zealand court is not normally treated as"evidence" in other proceedings in this country. Nor is the judgment in questionrelevant to the issues that we need to resolve.Summary of argument on appeal[28] AR's principal argument before us was that s 8 can be construed to include adiminution of his dignity on the basis that loss of dignity constitutes a reduction in thequality of life AR is living in New Zealand. This argument was based in part uponacademic commentary on the meaning of s 8, and cases from jurisdictions in which"right to life" provisions in constitutional documents have been broadly construed.[29] Before us, AR also said he wished to pursue his s 8 risk to life claim which, aswe have noted, is based on the proposition that his life will be put at risk if AR isreturned to India.[30] As we have noted at [1], the third broad argument advanced in front of us wasthat the actions of the immigration officer in entering the notations on AR's visabreached s 151 of the Immigration Act and that as such, he should be permitted toamend his statement of claim to plead a cause of action based upon the tort of breachof statutory duty.Scope of s 8 of the NZBORA[31] Decisions relating to the scope of s 8 of the NZBORA have generallyproceeded on the basis that the words "deprived of life" in s 8 refer to actual loss oflife, or an increase in the likelihood of death.[32] Thus, in Shortland v Northland Health Ltd,11 this Court held s 8 could not beinvoked to assist a man dying of kidney disease who wished to receive dialysistreatment in circumstances where New Zealand medical specialists had determineddialysis treatment was inappropriate. This Court concluded that because the decisionnot to provide the patient with dialysis treatment was in accordance with standardmedical practice, the patient was not deprived of his life within the meaning of s 8.[33] In Seales v Attorney-General,12 the High Court held the right to life affirmedby s 8 could be engaged where the criminal law or actions of the state increased therisk of the patient's death or may have the effect of inducing the premature end of thepatient's life.13[34] A similar approach to the scope of s 8 can be discerned from the SupremeCourt's judgment in Zaoui v Attorney-General (No 2),14 in which the Court held in thecontext of a claim for refugee status that New Zealand authorities could not order thedeportation of Mr Zaoui without having regard to ss 8 and 9 of the NZBORA. TheSupreme Court held that the exception to refoulement based upon national securitycould not be invoked where officials were "satisfied that there are substantial groundsfor believing that, as a result of the deportation, [Mr Zaoui] would be in danger ofbeing arbitrarily deprived of life".15[35] Shortland v Northland Health Ltd, Seales v Attorney-General and Zaoui vAttorney-General (No 2) concerned cases that involved the loss of life or the potentialfor loss of life. They were paradigm s 8 cases. Those cases can be contrasted withtwo other New Zealand cases, in which an attempt was made by plaintiffs tosignificantly expand the meaning of deprivation of life in s 8.[36] In Lawson v Housing New Zealand,16 an attempt was made to extend s 8 tocover a claim in which a significant increase in state house rentals was said to have11 Shortland v Northland Health Ltd [1998] 1 NZLR 433 (CA) at 444–445.12 Seales v Attorney-General [2015] NZHC 1239, [2015] 3 NZLR 556.13 At [164]–[165], citing Carter v Canada (Attorney-General) 2015 SCC 5, [2015] 1 SCR 331 at[57].14 Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289.15 At [93].16 Lawson v Housing New Zealand [1997] 2 NZLR 474 (HC).deprived a tenant of adequate and affordable shelter. It was pleaded that the tenant'sloss of state housing breached her right to life under s 8. The High Court held:17It is not necessary in the present case to decide whether social and economicfactors are entirely excluded from the ambit of s 8: all that is at issue iswhether the defendants' acts deprived the plaintiff of her "life". Whilst thisCourt should have regard to international human rights norms in interpretingand applying the New Zealand Bill of Rights Act 1990, and whilst a liberalinterpretative approach is warranted, the Court is ultimately constrained bythe wording of s 8 itself. It requires an unduly strained interpretation of s 8itself to conclude that the right not to be deprived of life encompasses a rightnot to be charged market rent for accommodation without regard toaffordability and impact on the tenant's living standards. Suffice to say thereare strong policy arguments in favour of their exclusion.[37] In S v Midcentral District Health Board,18 an Associate Judge struck out aclaim that s 8 of the NZBORA extended to circumstances where the plaintiff, a patientin a psychiatric hospital, had been raped by another patient. The strike-out decisionwas reviewed by William Young J, who held the claim alleging a breach of s 8 of theNZBORA had been properly struck out, but for different reasons to those relied uponby the Associate Judge. William Young J was satisfied that the alleged breach of s 8could not lead to an award of damages in the circumstances of that case.19[38] The relatively narrow approach taken by New Zealand courts to date towardsthe scope of s 8 of the NZBORA reflects the intentions of the drafters of the NZBORA.[39] The long title of the NZBORA specifies that it was enacted in part "to affirmNew Zealand's commitment to the International Covenant on Civil and PoliticalRights" (ICCPR). Article 6 of the ICCPR states that:20Every human being has the inherent right to life. This right shall be protectedby law. No one shall be arbitrarily deprived of his life.[40] At the time the NZBORA was enacted, New Zealand was a signatory to theInternational Covenant on Economic, Social and Cultural Rights (ICESCR). TheICESCR recognised a wider range of rights than those in the ICCPR. For example,17 At 494.18 S v Midcentral District Health Board HC Wellington CP237/02, 18 March 2003.19 S v Midcentral District Health Board [2004] NZAR 342 (HC) at [56].20 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).the ICESCR recognises the right to work,21 adequate standards of living22 and theenjoyment of the highest attainable standard of mental health.23 These rights overlapwith most of the elements of AR's loss of dignity claim.[41] When Parliament's Justice and Law Reform Committee reported on theGovernment's White Paper proposing the Bill of Rights, it recommended that any Billof Rights drafted by the Government should include some of the major social andeconomic rights.24 The Government of the day however, rejected thisrecommendation. As a consequence, when the Bill which became the NZBORA wasintroduced in 1989, its explanatory note stated:25The rights and freedoms set out in the Bill are confined to civil and politicalrights The bill does not cover social, economic, and cultural rights. In thisrespect it departs from the recommendation of the Justice and Law ReformCommittee, which recommended that certain social and economic rights beincluded in the Bill.[42] As a consequence, when Parliament enacted s 8 of the NZBORA it adoptedwording that was narrower than Bills of Rights in a number of cognate countries.Section 8 of the NZBORA, which was based on art 6 of the ICCPR, can be contrastedto s 7 of the Canadian Charter of Rights and Freedoms, which affirms the right ofCanadian citizens to "life, liberty and security of the person".[43] Notwithstanding the narrow scope of the language of s 8 of the NZBORA andthe deliberate intention of Parliament to not follow an expansive approach in s 8,counsel for AR argued that we should interpret the right to life as meaning a right notto be deprived of a person's dignity. In doing so, counsel suggested that such anapproach would constitute a permissible incremental change to the way s 8 has hithertobeen interpreted.[44] Two sources of authority were relied upon to support the submission that s 8should be interpreted as encompassing AR's alleged loss of dignity in circumstances21 International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened forsignature 16 December 1966, entered into force 3 January 1976), art 6(1).22 Art 11(1).23 Art 12(1).24 "Final Report of the Justice and Law Reform Committee on a White Paper for a Bill of Rights forNew Zealand" [1987-1990] XVII AJHR I8c at 4.25 New Zealand Bill of Rights Bill 1989 (203-1) (explanatory note) at i–ii.where there was no suggestion his life is in peril. The first source of authority is aleading textbook on the NZBORA. The second source is jurisprudence from Canada,India and South Africa.Academic commentary[45] In the second edition of The New Zealand Bill of Rights Act: A Commentary,26Drs Andrew and Petra Butler resiled from the position they had adopted in the firstedition of their book in which they endorsed the narrow meaning of the right to lifethat we have described at [31]. Now, the learned authors argue:27A purposive and human rights–friendly interpretation of the phrase "deprivedof life" [should] include deprivations of certain elements of living that arecrucial to a person's ability to live a dignified, meaningful life.[46] We have no hesitation in reaffirming that the fundamental rights in theNZBORA are to be given full effect and require generous interpretations.28 We alsoacknowledge that the meaning of the rights in the NZBORA may gradually expand inways that accord with international jurisprudence.[47] We reject, however, the submission advanced on behalf of AR that interpretingthe right not to be deprived of life means the right not to be deprived of dignity incircumstances where there is no suggestion of the plaintiff's life being placed at risk.The suggestion that deprivation of life means an unqualified deprivation of dignitycannot be reconciled with the plain meaning of s 8 of the NZBORA and Parliament'sintention when it adopted the comparatively narrow formulation in s 8.Other jurisdictionsCanada[48] As we have noted, s 7 of the Canadian Charter is framed wider than s 8 of theNZBORA and encompasses "life, liberty and security". That phrase, in s 7 of theCanadian Charter, has been interpreted so as to render unconstitutional laws which26 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015).27 At [9.4.1] (footnote omitted).28 See for example, Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 268, 277 and 292.restrict access to abortion,29 assisted suicide30 and the criminalisation of the possessionand use of marijuana where its use is medically justified.31[49] For completeness, we record that counsel for AR endeavoured to rely uponHunt v Carey Canada Inc,32 to support the proposition that s 7 of the Canadian Charterhas been held to apply to a claim by a plaintiff suffering disease caused by exposureto asbestos fibres. Section 7 of the Canadian Charter was not, however, referred to inthat judgment which focused solely on whether the plaintiff's claim that he was thevictim of the tort of conspiracy should have been struck out.India[50] Counsel for AR submitted to us that "[t]he provision of the Indian Constitutiondealing with 'right to life' is in very similar terms to that [in] s 8 of the [NZBORA]".[51] Article 21 of the Constitution of India reads as follows:21 Protection of life and personal liberty.—No person shall bedeprived of his life or personal liberty except according to procedureestablished by law.[52] It will be immediately apparent that art 21 of the Indian Constitution is framedmore broadly than s 8 of the NZBORA. Thus, art 21 of the Indian Constitution hasbeen interpreted to guarantee the protection of personal autonomy of an individual33and that it encompasses the rights of transgender people not to be excluded from self-determination, "personal autonomy and self-expression".34South Africa[53] Counsel for AR relied on a 1999 article by Marius Pieterse, who is now aProfessor of Law at the University of Witwatersrand. Counsel submitted that29 R v Morgentaler [1988] 1 SCR 30.30 Carter v Canada (Attorney-General), above n 13.31 R v Parker (2000) 49 OR (3d) 481 (ONCA).32 Hunt v Carey Canada Inc [1990] 2 SCR 959.33 Anuj Garj v Hotel Association of India (2008) 3 SCC 1.34 National Legal Services Authority v Union of India (2014) 5 SCC 438 at [69].Professor Pieterse had "commend[ed] the [Constitutional Court of South Africa] forits construal of the constitution to include socio-economic entitlements".35[54] Missing however from counsel's analysis of Professor Pieterse's article wasany reference to the observation that "[t]he South African Bill of Rights is also uniquein that it contains socio-economic rights alongside civil and political rights, therebyreflecting the interdependence of these rights".[55] Professor Pieterse referred in his article to the judgment of the ConstitutionalCourt of South Africa in Soobramoney v Minister of Health (Kwazulu-Natal),36 inwhich the right to life enshrined in s 11 and the right not to be refused access toemergency medical treatment in s 27(3) of the 1996 Constitution of the Republic ofSouth Africa did not afford assistance to the appellant when he was denied access todialysis treatment in circumstances that were almost identical to those considered bythis Court in Shortland v Northland Health Ltd. While Soobramoney v Minister ofHealth (Kwazulu-Natal) needs to be considered in the context of Government of theRepublic of South Africa v Grootboom37 and Minister of Health v Treatment ActionCampaign,38 the latter cases did not undermine what the Constitutional Court hadpreviously said about the scope of the right to life in s 11.[56] The foregoing summary of the cases and constitutional instruments from otherjurisdictions relied upon by counsel for AR illustrates that "right to life" provisions inother jurisdictions are often supplemented by wider socio-economic rights and, in thecase of South Africa, have so far been interpreted in a way that is consistent with theapproach that New Zealand courts have taken to the meaning of the right to life in s 8of the NZBORA.[57] We agree with the Associate Judge that AR's deprivation of dignity claim isclearly untenable and was therefore properly struck out.35 Marius Pieterse "A Different Shade of Red: Socio-economic Dimensions of the Right to Life inSouth Africa" (1999) 15 SAJHR 372 at 376.36 Soobramoney v Minister of Health (Kwazulu-Natal) (1998) 1 SA 765 (ZACC).37 Government of the Republic of South Africa v Grootboom (2001) 1 SA 46 (ZACC).38 Minister of Health v Treatment Action Campaign (2002) 5 SA 721 (ZACC).Section 8 risk to life claim[58] Section 8 of the NZBORA is properly engaged in extradition cases wheresubstantial grounds exist for believing the deportee faces a real risk of being killedupon being returned to their homeland.39 It may also be possible to extend s 8 to caseswhere there is a real risk of life threatening harm being inflicted upon the deportee onbeing returned to their country of origin.[59] There are, however, two reasons why AR's risk to life claim must be struckout.[60] First, the suggestion AR is at risk of losing his life or even being physicallyharmed upon being deported to India has been firmly rejected by the Tribunal.[61] In its third decision, the Tribunal found AR's claims that he was at risk of beingharmed in India were "vague", "mobile", "inconsistent" and "contradictory".40 TheTribunal also rejected AR's claim that he was at risk of being harmed by Shiv Sena41and found that there was not a "real chance" of him being at risk of persecution.42 TheTribunal made clear that there was no evidence to suggest AR would even be detainedby authorities in India because of the notations in his passport. The finding that AR'saccounts lacked credibility had previously been upheld by the High Court whendismissing AR's earlier applications for judicial review.[62] AR's s 8 risk to life claim constitutes a challenge to the Tribunal's very clearfindings and to the earlier conclusions of the High Court. As noted at [14], AR did notchallenge the Tribunal's decision through the statutory process. He has not advancedcredible arguments to explain why the High Court could or should now entertain a re-litigation of the Tribunal's decision or the earlier decisions of the High Court.[63] We agree with Ms Paterson's submission that AR's s 8 risk to life claim shouldbe struck out as an abuse of process because it constitutes an unequivocal challenge to39 Zaoui v Attorney-General (No 2), above n 14; and Soering v United Kingdom (1989) 11 EHRR439 (ECHR).40 KF (India), above n 6, at [78].41 At [81].42 At [104].the findings of a New Zealand Tribunal of competent jurisdiction and the High Court,both of which have carefully considered and fully rejected the arguments that AR nowwishes to pursue.43[64] In this respect, we endorse the observations of the authors of another textbookon the NZBORA when they said:44Expulsion of unsuccessful asylum seekers raises similar issues under s 8.Here, the routine application of New Zealand law and the Refugee Conventionought to be a complete answer, since the purpose of that procedure is todetermine the likelihood of persecution if the claimant is returned to his or herhome country. Persons whose status is not accepted on credibility groundswill not be able to relitigate on s 8 grounds, since the notion of finality to legalproceedings is consistent with fundamental justice [65] The second difficulty with AR's s 8 risk to life claim is that he will, in a shortperiod of time, be entitled to receive a new passport from the Indian High Commission.That passport will not contain the notations that formed the basis of the s 8 risk to lifeclaim. As soon as AR receives his new passport his s 8 risk to life claim based on thenotations in his current passport will be rendered moot.Application to amend the statement of claim[66] Counsel for AR submitted that he should be permitted to further amend thestatement of claim to encompass a new cause of action. The new cause of actionwould, if permitted, allege the tort of breach of statutory duty based on the apparentfailure of immigration officers to comply with s 151 of the Immigration Act when theymade the notations to AR's visa in his passport.[67] Section 151(1) of the Immigration Act provides:151 Confidentiality to be maintained in respect of claimants, refugees,and protected persons(1) Confidentiality as to the fact that a person is a claimant, a refugee, ora protected person, and as to the particulars relating to the person'sclaim or status, must at all times during and subsequent to thedetermination of the claim or other matter be maintained by all43 W v W [1999] 2 NZLR 1 (PC); Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581(HC); and Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541.44 Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne,2003) at 232.persons and, in a particular case, may require confidentiality to bemaintained as to the very fact or existence of a claim or case, ifdisclosure of its fact or existence would—(a) tend to identify the person concerned; or(b) be likely to endanger the safety of any person.[68] We have, however, received no submissions on whether or not failure tocomply with s 151 of the Immigration Act can lead to a private action for breach ofstatutory duty particularly where the statute contains an offence provision that coverss 151.45 Nor have we received any assistance on whether or not the Attorney-Generalis the appropriate defendant to such a claim in circumstances where it is alleged thatthe tortfeasors were individual immigration officers who may have the benefit of s 104of the Public Service Act 2020.46[69] This does not prevent AR from commencing new proceedings alleging breachof statutory duty. Ms Paterson responsibly acknowledged that in the absence of anyproperly pleaded breach of statutory duty cause of action the Crown would not allegeissue estoppel/res judicata if AR were to commence such a new proceeding.[70] Absent analysis by counsel on whether or not the tort of breach of statutoryduty can properly be pleaded in the circumstances of this case, we refrain fromauthorising a further amendment of the statement of claim to permit such a pleading.Result[71] The application to adduce further evidence is granted in part.[72] The appeal is dismissed.45 Immigration Act, s 354. See X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL) at731; Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 (HL); and see generallyStephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at [8.2]–[8.6].46 Formerly State Sector Act 1988, s 86. See Crown Proceedings Act 1950, s 6; andStrathboss Kiwifruit Ltd v Attorney-General [2020] NZCA 98, [2020] 3 NZLR 247.[73] AR is in receipt of legal aid. Accordingly, we make no order as to costs.Solicitors:Integritas Law Firm, Auckland for AppellantMeredith Connell, Auckland for Respondent