AR (INDIA) v ATTORNEY-GENERAL [2022] NZSC 55

AR (INDIA) v ATTORNEY-GENERAL [2022] NZSC 55 [6 May 2022]NOTE: THE CONFIDENTIALITY OF THE NAME AND IDENTIFYINGPARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT2009. SEEhttp://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440836.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 15/2022[2022] NZSC 55BETWEEN AR (INDIA)ApplicantAND ATTORNEY-GENERALRespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: R S Pidgeon for ApplicantC P Paterson and A-R C Davies for RespondentJudgment: 6 May 2022JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is granted.B Leave to permit Mr Pidgeon to act for the applicant isgranted.C The application for leave to appeal is dismissed.D There is no order as to costs.____________________________________________________________________REASONS[1] The applicant applies for leave to appeal against a decision of theCourt of Appeal.1 In that decision, the Court of Appeal upheld a decision of theHigh Court striking out the applicant's claim against the respondent.2[2] The applicant has applied three times for refugee status in New Zealand. Hehas also unsuccessfully sought refugee status in both the United Kingdom andAustralia.[3] The applicant was granted a visa to remain in New Zealand while proceedingsrelating to his first application for refugee status were conducted. An immigrationofficer entered a notation on the visa in the applicant's Indian passport which referredto the fact that the applicant was awaiting a High Court decision on refugee appealstatus. This was, on its face, a breach of s 151 of the Immigration Act 2009, whichrequires the fact that a person is a refugee or is claiming refugee status to be keptconfidential. When the error was realised, immigration officers attempted to remedythe error by blocking out the notation in stamping "cancelled without prejudice" overthe visa.[4] After this occurred, the applicant made a third application for refugee status.He claimed that the notation in his passport would alert Indian authorities to the factthat he had sought refugee status in New Zealand. In the alternative, he claimed theconspicuous stamps in his passport would prompt Indian authorities to investigate hiscircumstances and conclude he had sought refugee status. That application wasunsuccessful.[5] Prior to the determination of the third application for refugee status theapplicant commenced proceedings in the High Court pleading misfeasance in publicoffice and breaches of ss 8 and 23(5) of the New Zealand Bill of Rights Act 1990 (theBill of Rights). Both of these causes of action were based on the notation made byimmigration officers to the visa in the applicant's Indian passport. The respondent1 AR (India) v Attorney-General [2021] NZCA 291 (French, Brown and Collins JJ) [CA judgment].2 AR (India) v Attorney-General [2020] NZHC 421 (Associate Judge Bell) [HC judgment].applied to strike out both causes of action. The applicant abandoned the misfeasancecause of action, and the Associate Judge struck out the cause of action based on allegedbreaches of the Bill of Rights.[6] In the Court of Appeal, the applicant did not pursue the cause of action alleginga breach of s 23(5) of the Bill of Rights, accepting that the Associate Judge had beencorrect to point out that that provision applied only to people deprived of liberty, and,as the applicant had not been deprived of liberty, the provision was not engaged.3[7] Section 8 of the Bill of Rights provides: "No one shall be deprived of lifeexcept on such grounds as are established by law and are consistent with the principlesof fundamental justice". The applicant pleaded that this provision had been breachedbecause his life was placed at risk in the event he was required to return to India(because it may become apparent to the Indian authorities that he had sought refugeestatus) and because the quality of his life in New Zealand was decreased. TheCourt of Appeal referred to the latter claim as a claim for diminution of dignity, andwe will use the same terminology.[8] The Court of Appeal rejected the applicant's claim as to the risk to his life onreturn to India, given that he would become entitled to a new passport within a shortperiod of time and also because the Immigration and Protection Tribunal and theHigh Court had both found there would be no such risk.4 Raising the same issue againwas, it said, an abuse of process. The Court of Appeal also found that the diminutionof dignity claim was untenable and therefore properly struck out.5[9] The Court of Appeal also refused to allow the applicant to amend his pleadingsto allege that the failure by the immigration officers to comply with s 151 of theImmigration Act amounted to a tort of breach of statutory duty. However, the Courtsaid this did not prevent new proceedings alleging such a breach being commenced.63 HC judgment, above n 2, at [37]; and CA judgment, above n 1, at [24].4 CA judgment, above n 1, at [63]–[65].5 At [57].6 At [66]–[70].[10] The applicant wishes to challenge all three aspects of the Court of Appealdecision if leave to appeal is granted. He also wishes to raise a new argument basedon Tikanga Māori and Te Ao Māori and to expand his argument in relation to s 8 ofthe Bill of Rights in light of a recent authority of the England and Wales High Court.7[11] The applicant argues that the Court of Appeal took an unduly narrowinterpretation of s 8 of the Bill of Rights and that this is a matter of public importancejustifying the grant of leave.8 We accept that the scope of s 8 is a matter of publicimportance. However, we do not consider that this is an appropriate case to addressthe issue because, on any definition of s 8, the applicant's case could not succeed onthe facts. We prefer to leave open the question of the correct interpretation of s 8 ofthe Bill of Rights for a future case in which the outcome could be affected.[12] We do not consider that the applicant's argument that the Court of Appeal'sfinding that it would be an abuse of process to allow the applicant to argue that his lifewas endangered in the face of clear findings to the contrary by theImmigration and Protection Tribunal is a matter of public importance. Rather, it is amatter particular to the facts of the case. We do not see any appearance of miscarriagein the way the Court of Appeal addressed this issue.9[13] In relation to the argument as to the amending of the pleadings to include apleading of breach of statutory duty, we see that as specific to the present case and asraising no point of public importance. Given the clear indication by theCourt of Appeal that there was no impediment to the commencement of a new actionfor breach of statutory duty, we do not see any appearance of miscarriage in the waythe Court of Appeal addressed this issue. In particular, we reject the applicant's claimthat the Court of Appeal dismissed the proposed breach of statutory duty claim.Rather, the Court did not permit the claim to be made in the appeal when it had notbeen raised in the High Court.7 R (Morahan) v West London Assistant Coroner [2021] EWHC 1603 (Admin), [2021] QB 1205.8 Senior Courts Act 2016, s 74(2)(a).9 Senior Courts Act, s 74(2)(b).[14] The argument relating to Tikanga Māori and Te Ao Māori is not particularised.We do not consider it would be appropriate for this Court to deal with any suchargument as a first and last Court in circumstances where it is far from apparent as tohow it could be applied to the facts of the particular case.[15] The applicant's counsel requires leave to act because he filed an affidavit inthe High Court. He was given leave to appear in the Court of Appeal and, in light ofthat, we see no impediment to his acting in this Court as well.10 We therefore give thenecessary leave.[16] The applicant also requires an extension of time to apply for leave to appeal.The respondent's objection to the applicant's application for an extension of time isbased only on the merits of the application itself. We have addressed the merits andin those circumstances we grant the extension of time.[17] The application for leave to appeal is dismissed.[18] As the applicant is legally aided, there is no order as to costs.Solicitors:Integritas Law Firm, Auckland for ApplicantMeredith Connell, Auckland for Respondent10 AR (India) v Attorney-General [2020] NZCA 467 (Clifford J).