BE (NIGERIA) v REFUGEE AND PROTECTION OFFICER [2023] NZCA 372

BE (NIGERIA) v REFUGEE AND PROTECTION OFFICER [2023] NZCA 372 [16 August 2023]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA39/2023[2023] NZCA 372BETWEEN BE (NIGERIA)ApplicantAND REFUGEE AND PROTECTION OFFICERFirst RespondentIMMIGRATION AND PROTECTIONTRIBUNALSecond RespondentCourt: Courtney and Mallon JJCounsel: S R G Judd, D A Manning and S Lamain for ApplicantM Deligiannis and S M Perera for First RespondentNo appearance for Second Respondent (abides)Judgment:(On the papers)16 August 2023 at 11.30 amJUDGMENT OF THE COURTA The application for leave to adduce the evidence of Dr Iwilade is granted.B The application for leave to appeal to the High Court is granted.C Leave is granted on the following question:Did the Tribunal err in its approach to risk assessment and, as aresult, did it improperly exclude material information fromconsideration?D The application for leave to commence judicial review proceedings in theHigh Court is declined.E There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] BE is a Nigerian national and New Zealand resident. He was served with adeportation liability notice following his convictions arising from his involvement ina substantial methamphetamine importation.1 His claims for refugee or protectedperson status were rejected by a Refugee and Protection Officer and his subsequentappeals were dismissed by the Immigration and Protection Tribunal.2 His applicationsto the High Court for leave to appeal, to bring a judicial review proceeding, and toadduce further evidence were declined by that Court.3 He now applies to this Courtfor leave to appeal to the High Court and to bring a judicial review proceeding.4 Healso seeks leave to adduce further evidence in support of those applications.Background[2] BE travelled to Australia in 2007 on a temporary visa. Shortly after arrivingin that country he married a New Zealand citizen and they later had a child together.BE was granted New Zealand residence in February 2011 on the basis of this marriage.In December 2011, BE, his wife and their child travelled to New Zealand. His wifeand child returned to Australia soon afterwards. BE could not return with thembecause he had overstayed in Australia and was barred from re-entry. BE has remainedin New Zealand since then.[3] BE became involved in a failed attempt to import substantial quantities ofmethamphetamine into this country. His role was to collect a bag which would contain1 Immigration Act 2009, s 161(1)(a)(iii).2 Re AR (Nigeria) [2019] NZIPT 801379; and Re BE (Nigeria) [2022] NZIPT 801929.3 BE (Nigeria) v Refugee and Protection Officer [2022] NZHC 3371 [High Court judgment].4 Immigration Act, ss 245(1) and 249(3).the drugs from a person arriving at Auckland Airport. He was recruited for this roleby a Nigerian drug syndicate at the last minute as a replacement for someone else.The person with the bag was intercepted by New Zealand Customs on arrival.He agreed to assist the police by cooperating with a controlled delivery. Not knowingthis, BE arranged for someone to collect the bag and hide it near the airport.When BE returned with others to the hiding place the bag with the drugs had beenremoved by the police.[4] BE and the others were charged in relation to the failed importation and stoodtrial in the High Court. BE's defence was that he did not know the bagcontained drugs. He was convicted on importation and possession for supply charges.On 18 June 2015 he was sentenced to 15 years and 10 months' imprisonment.Conviction and sentence appeals to this Court were dismissed. Leave to appeal tothe Supreme Court was declined.First Tribunal hearing[5] Immigration New Zealand served BE with the deportation liability notice on20 December 2017. BE claimed refugee or protected status on the basis that, if he issent back to Nigeria, he will be killed by members of a Nigerian organisedcriminal group. An appeal from the rejection of that claim by a Refugee and ProtectionOfficer was dismissed by the Tribunal in a decision given on 21 January 2019.5[6] In dismissing the appeal, the Tribunal accepted that initially there had been afalling-out between BE and other members of the drug syndicate. It also accepted thatsome members of the drug syndicate believed BE had retained the drugs and that BEhad been sent threatening texts prior to his trial with his co-offenders, who includedmembers of the drug syndicate.6[7] However, the Tribunal concluded that after the trial there was no ongoing riskto BE. This was because the co-offenders at the trial would have become aware thatthe drugs had been intercepted by New Zealand Customs and that it was another5 Re AR (Nigeria), above n 2.6 At [47].person (not BE) who had cooperated with the police. Additionally, BE's defence attrial did not seriously implicate anybody else.7[8] Further, the Tribunal did not accept that BE's elder brother who lived in Nigeriahad experienced any retribution or threats following the trial as had been claimed.8BE's claim relied on the evidence of BE's younger brother, who gave evidence tothe Tribunal via telephone from Nigeria. The younger brother said that the elderbrother had been on the run for three years because the drug syndicate wanted to harmhim in revenge for BE having caused the drugs to be seized.9 This evidence wasregarded by the Tribunal as implausible for reasons it explained.10[9] The Tribunal went on to assess BE's claim to refugee status. This requiredthe Tribunal to assess whether there was a real chance of BE being persecuted if hereturned to Nigeria. The Tribunal accepted that Nigeria was experiencing a prevalenceof drug syndicates, whose activities had a global impact. The Tribunal also acceptedthe common use of violence by drug gangs in Nigeria and that state protection wasseverely compromised in that country due to government inefficiency andcorruption.11 However, the Tribunal considered there were no objective grounds forbelieving that BE was at risk of serious harm on this basis. This was because therewas "simply no reason for members of the syndicate to harbour ill-feeling against[BE]" following the trial.12 Further, given the period of time that would elapse beforeBE was eventually released, it was "no more than speculative" that any antipathytowards him in Nigeria would still exist by then.13[10] This conclusion meant that BE was not a refugee under the RefugeeConvention.14 It also meant there was no basis for BE's claim to be a protected person7 At [49]–[51].8 At [52].9 At [34].10 At [52]–[58].11 At [67]–[68] and [70].12 At [70].13 At [73].14 At [76]. Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature28 July 1951, entered into force 22 April 1954).under the Convention Against Torture or the International Covenant on Civil andPolitical Rights (ICCPR).15 BE's appeal was therefore dismissed by the Tribunal.Second Tribunal hearing[11] BE went on to make a second claim for refugee or protected person status.The Tribunal's decision on the appeal from the dismissal of this second claim wasgiven on 30 May 2022.16 One of the issues was the correct approach to assessing theevidence when determining whether to recognise BE as a refugee under the RefugeeConvention or as a protected person under the Convention Against Torture or theICCPR.[12] BE contended that New Zealand decision makers approached their task by firstassessing the credibility of the evidence and making findings on the relevant factsbefore proceeding to assess the risk to the claimant. BE contended this approach wasmisconceived. Relying on the decision of the Court of Appeal of England and Walesin Karanakaran v Secretary of State for the Home Department, BE contended that a"single stage approach" was the appropriate one.17 That approach involved allevidence capable of being given some weight being brought forward into the riskassessment. This was to be contrasted with an approach that examined the evidenceand accepted or rejected it as true on the balance of probabilities. The Tribunalexplained that it considered its approach was a single-stage assessment, consistentwith Karanakaran.18[13] At the first Tribunal hearing, one of the factors going to the implausibility ofthe account of the older brother having to go into hiding was that the older brother hadnot given evidence.19 At the second hearing, the Tribunal heard evidence by video-linkfrom BE's older brother as well as from BE and his younger brother. The older brothergave an account of sustained threats and harassment from the drug syndicate and an15 At [81] and [84]. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatmentor Punishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force26 June 1987); and International Covenant on Civil and Political Rights 999 UNTS 171 (openedfor signature 16 December 1966, entered into force 23 March 1976).16 Re BE (Nigeria), above n 2.17 Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 (CA).18 Re BE (Nigeria), above n 2, at [40]–[46].19 Re AR (Nigeria), above n 2, at [56].incident in 2019 when he was kidnapped for three days, culminating in his foot beingdeliberately punctured with a metal object. This injury was intended to be a reminderto get the drug money to the syndicate. The elder brother, who before then had movedaround within Nigeria, said he had moved to another country to stay safe.[14] For reasons which it traversed, the Tribunal did not accept that the evidence ofthe older brother's harassment, kidnapping and mistreatment was credible. In relationto the injury to the foot in particular, the Tribunal accepted the elder brother hadsustained such an injury. It was supported by photographs, a medical certificate andevidence from a Nigerian lawyer who observed the wound. However, under theheading "[f]anciful assertion of origin of injury to foot", the Tribunal said:[64] Quite why, of all the harms that the drug syndicate could inflict onhim to motivate him to get the syndicate its money, Schoolboy [the alleged"thug" for the drug syndicate] would choose to injure him in the unusual wayof a puncture wound to the sole of one foot, is difficult to fathom.Even allowing for a degree of irrationality and unpredictability, this strikesthe Tribunal as far-fetched. The location and nature of the injury suggest thatit is far more likely to have been caused by [the elder brother] stepping onsomething sharp by accident. When considered alongside the other credibilityissues, the Tribunal is satisfied this injury was sustained in othercircumstances than is claimed.[15] The Tribunal agreed with the view of the first Tribunal panel that, although thedrug syndicate may have thought that BE was involved in the drugs being seized bythe police, the trial would have made it very clear that this was not the case.20 It did,however, accept that in 2018 BE's younger brother was visited by an unknown personand moved from his former residence as a precautionary measure, but noted that hehad not encountered any problems since then.21[16] The Tribunal went on to find that that BE was not entitled to refugee status asthere was no credible evidence that he remained a person of interest to the drugsyndicate.22 The same conclusion applied to BE's claim under the Convention AgainstTorture and the ICCPR.2320 Re BE (Nigeria), above n 2, at [74].21 At [68] and [74].22 At [76].23 At [79] and [81].Proposed evidence of Dr Iwilade[17] In support of his applications to the High Court for leave to appeal and forleave to commence review proceedings, BE also applied for leave to adduce theevidence of Dr Akin Iwilade. He is a social scientist and is presently a lecturer inAfrican Studies at the University of Edinburgh. His research projects have includedresearch on the role of violent gangs and death practices in Nigeria and the role ofgangs in Lagos.[18] His proposed evidence includes the following:What is key to determining the likelihood of a person being targeted by thegroup is therefore not necessarily the passage of time, but factors such aswhether the key aggrieved individuals remain active in the group, whether thegroup retains a viable structure through which they could plan an attack andwhether the target person is considered an ongoing threat or source ofdisrespect.[19] Dr Iwilade expresses the view that it is reasonable to expect that, at the veryleast, BE will be viewed as an inept participant in the importation attempt and willlikely receive some blame regardless of BE's evidence at trial. That is simply becausehe did not complete his role successfully. Simply failing to deliver is enough to markhim out for blame for the significant loss experienced by the syndicate. If he isblamed, it is plausible that he will be at risk upon his return to Nigeria if he is unableto make up for the lost drugs.[20] Dr Iwilade also addresses the reasons why the Tribunal rejected the elderbrother's evidence. He does not regard the elder brother's claim of being recognisedand attacked at a busy Lagos intersection as implausible as such attacks in broaddaylight are not uncommon. He also discusses the type of violence Nigerian gangsinflict and regards a wound inflicted to the foot as "neither unusual nor implausible".[21] Lastly, he expresses the view that the ability of these groups to track a personacross Nigeria is limited, meaning the chances of discovery can be significantlydecreased by relocation to a different part of Nigeria. If BE is unable to relocate then,in Dr Iwilade's view, it is plausible that the gang would be able to easily locate andharm him should it choose to do so.High Court decision[22] The two issues on which leave was sought to appeal or judicially reviewthe Tribunal's decision were:24(a) whether the Tribunal erred in conducting a two-stage inquiry into thefacts and the refugee claim, rather than a single-stage one involving anoverall risk assessment (as described in Karanakaran v Secretary ofState for the Home Department), and whether, as a result, it improperlyexcluded material information from consideration;25 and(b) whether the Tribunal erred in its assessment of the evidence by takinginto account irrelevant considerations, failing to take into accountrelevant considerations, acting unreasonably, basing its decision onmistaken facts and/or wrongly relying on its own opinion as to how aNigerian drug syndicate might behave.[23] On the first question, Wylie J accepted that the correct approach to refugeestatus determination was a question of law or issue of general public importance.26However, he was not persuaded that the issue was seriously arguable. This wasbecause the Judge considered that:(a) The Tribunal had in effect applied Karanakaran albeit without thelabels used in that case. It had found, in effect, that the elder brother'sevidence fell into the fourth category described in that case — that is,evidence to which it could attach no credence to at all. It had done soby reference to internal inconsistencies and inherent implausibility, andthere was nothing objectionable about this.27(b) It was not seriously arguable that there was a difference in approachbetween the relevant New Zealand cases and Karanakaran, and the24 High Court judgment, above n 3, at [25].25 Karanakaran v Secretary of State for the Home Department, above n 17.26 At [39].27 At [40(a)] and [42].New Zealand courts had cautioned against prescription as to approachand the use of labels. Even if there was a difference in approach,this Court had noted in BV v Immigration and Protection Tribunal thatit could not possibly be said that the Tribunal had erred in law byfollowing a different analytical path.28(c) The ultimate question in deciding whether to grant leave was whetherthe question of law "ought to be" submitted to the Court forconsideration. The Judge was not persuaded that a different approachwould lead to a different outcome for BE.29[24] The Judge considered the second question did not raise a question of law.Rather it sought to challenge the Tribunal's factual assessment of the elder brother'sevidence as to how the injury to his foot occurred and its view that the drug syndicatewould no longer be interested in BE given the passage of time.30 The Judge consideredit would have been preferable if the Tribunal had not speculated as to the cause of theelder brother's injury, but this was simply one of several observations which causedthe Tribunal to doubt the credibility of the elder brother's injury.31 In any event,the Tribunal's factual finding was that, as a result of the trial, the drug syndicate wouldno longer have viewed BE as involved in the seizure of the drugs. BE could not showthat it was seriously arguable that this factual finding was incorrect.32[25] Leave to appeal was therefore declined. Leave to bring judicial reviewproceedings was also declined. That leave would have been declined in any eventbecause the issues BE sought to raise would have been ones able to be dealt withadequately in an appeal.33 Leave to adduce Dr Iwilade's evidence was also declined.The Judge viewed that evidence as neither fresh nor cogent. It was generalisedevidence and did not undermine the Tribunal's finding that the drug syndicate would28 At [40(c)–(d)]. BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139at [14].29 At [40(e)].30 At [43]–[44].31 At [44]–[45].32 At [44].33 At [47].have understood, as a result of the trial, that BE was not involved in the seizure ofthe drugs.34Leave sought of this Court[26] Leave is sought in this Court to commence proceedings (an appeal andan application for judicial review) in the High Court. The questions on which leave issought remain in essence those considered and rejected in the High Court.35 Leave isalso sought to adduce the evidence of Dr Iwilade.Leave to adduce Dr Iwilade's evidence[27] To be admitted in support of applications under ss 245 and 249 of theImmigration Act 2009, further evidence should be fresh (in that it could not, with duediligence, have been produced at first instance), credible (that is, reasonably capableof belief) and cogent (likely to have an important influence on the result).36[28] We grant leave to adduce Dr Iwilade's evidence in support of BE'sapplications. While it could have been adduced earlier and so is not fresh, it respondsdirectly to views expressed by the Tribunal, that were based on the Tribunal's ownassessment of plausibility and not on evidence of what actually may occur in Nigeria,in rejecting the evidence of BE and his elder brother. We consider the evidence iscogent in that it adds some support for the arguments that BE wishes to advance onthe appeal. The evidence, provided by an independent expert, is also clearly credible.We consider it is in the interests of justice to grant leave in these circumstances.Leave to appeal[29] A person dissatisfied with the Tribunal's determination may, with the leave ofthe High Court, or, if the High Court refuses leave, with the leave of this Court, appealto the High Court on a question of law.37 In determining whether to grant leave,34 At [51]–[52].35 See [22] above. The only notable change to the proposed questions of law is the simplification ofthe second question, which is now: "whether the Tribunal erred in its assessment of BE's evidenceby wrongly relying on its own opinion as to how a Nigerian drug syndicate might behave."36 CD (CA27/2015) v Immigration and Protection Tribunal [2015] NZCA 379 at [23]–[24]; andHai v Minister of Immigration [2019] NZCA 55 at [24]–[25].37 Immigration Act 2009, s 245(1).the Court must have regard to whether the question of law is one that by reason of itsgeneral or public importance, or for any other reason, ought to be submitted to theHigh Court for its decision.38[30] There is no doubt that the first question on which BE seeks leave is a questionof law. The issues are whether it is of general importance and whether it ought to besubmitted to the High Court.[31] The first respondent says that the general approach to assessing credibility inthe context of determining refugee status is well-settled by appellate authority inNew Zealand.39 It says the Tribunal's approach was consistent with that authority andit is not seriously arguable that the Tribunal erred in its approach. It further says thatthe New Zealand approach is not inconsistent with Karanakaran.[32] BE says the New Zealand appellate authorities, with the exception ofDY (Pakistan) v Refugee and Protection Officer,40 did not address a challenge to theunderlying premise of a two-staged analysis where the Tribunal first determines thefacts and then determines whether there is a real chance of persecution on the basis ofthose facts. He says that Karanakaran requires a single-stage inquiry and that thetwo-staged approach leads to exclusion of relevant evidence in the assessment ofwhether there is a real chance of persecution.[33] The single-stage inquiry as it is put in the judgment of Sedley LJ inKaranakaran is as follows:41 how [convention questions] are approached and evaluated shouldhenceforward be regarded not as an assault course on which hurdles of varyingheights are encountered by the asylum seeker with the decision-maker actingas umpire, nor as a forum in which the improbable is magically endowed withthe status of certainty, but as a unitary process of evaluation of evidentialmaterial of many kinds and qualities against the convention's criteria ofeligibility for asylum.38 Section 245(3).39 Referring to Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011]1 NZLR 721; Jiao v Refugee Status Appeals Authority [2003] NZAR 647; and BV v Immigrationand Protection Tribunal, above n 28.40 DY (Pakistan) v Refugee and Protection Officer [2021] NZCA 522.41 Karanakaran v Secretary of State for the Home Department, above n 17, at 479–480. See alsoBrooke LJ at 459, 461 and 465.[34] This was to be contrasted with an approach where at the first stage the Tribunaldetermines proof of present and past facts followed by a second stage involving theassessment of risk.42 The one-stage approach enables the assessment of risk only onthe ultimate evaluation of the case when all the evidence and the varying degrees ofbelief or disbelief are being assessed.43 If the assessment is only on the factsestablished as more likely than not to have occurred, then that removes much of thebenefit of uncertainty that the applicant has in the determination of refugee status.44[35] In DY (Pakistan) leave was sought to appeal on essentially the same questionof law as that for which leave is sought by BE.45 This Court accepted that the applicanthad "possibly identified an arguable question of law of general importance".46It declined leave, however, because the ultimate question was whether the question oflaw "ought to be submitted to the High Court".47 It considered that this requirementwas not met in DY's case because it was not satisfied that a different approach wouldhave led to a different outcome.48[36] In this case, BE contends that the Tribunal's approach led it to exclude relevantinformation from the risk assessment at the second stage. He says that the Tribunalaggregated a number of discrete concerns to reach a cumulative finding that theevidence regarding BE's elder brother as a whole should be rejected. It then proceededto consider whether there was a real chance of the appellant being persecuted if he wasreturned to Nigeria. Added to this, and which is the basis for the second proposedquestion, BE says the Tribunal rejected BE's evidence and that of his elder brotherbased on its own opinion as to the likely behaviour of a Nigerian drug syndicate wherethere was no evidential foundation for doing so.[37] BE says the first example of this is the Tribunal's rejection of BE's accountthat the drug syndicate maintained a grudge against him. Its view that the syndicatewould not maintain a grudge following the events at the trial was elevated not just to42 At 459.43 At 459.44 At 459.45 DY (Pakistan) v Refugee and Protection Officer, above n 40, at [4(a)].46 At [23].47 At [23].48 At [23].giving rise to scepticism of BE's account but to a positive assertion that the syndicatewas not interested in him. Further, BE says that the Tribunal did not address thepossibility that BE's co-offenders attributed blame to BE when speaking to theirsuperiors in order to deflect their own responsibility, nor the possibility that thesyndicate would take an ill-view of those who cooperated with the police regardlessof the impact of that on the proceedings.[38] BE says the second example is the Tribunal's rejection of BE's elder brother'saccount of the injury to his foot. BE says the Tribunal's opinion that it was unlikelythat a drug syndicate would inflict an injury on the foot of the elder brother wascontrary to the evidence of BE and the elder brother and inconsistent with publicinformation regarding the behaviour of drug syndicates.49 It is further rebutted by theexpert evidence sought to be adduced from Dr Iwilade. BE also refers to theUnited Kingdom Home Office's guidance to refugee decision makers not to constructtheir own theories of how an applicant or others ought to have behaved and not toassess their behaviour against what would be plausible in the United Kingdom.50[39] As this is an application for leave we do not engage in detail with thesesubmissions. We are satisfied, however, that the correct approach to the riskassessment, and in particular whether a two-stage or a single-stage inquiry isappropriate, is a question of law of general importance.[40] We are also satisfied that this question of law is one that ought to be consideredby the High Court, for the following reasons:(a) First, it is apparent from the submissions made to the Tribunal for itssecond decision that both parties differed from the Tribunal's ownassessment as to whether the Tribunal's approach was consistent with49 Referring to United Nations High Commissioner for Refugees Guidance Note on Refugee ClaimsRelating to Victims of Organized Gangs (March 2010).50 Citing James A Sweeney "Credibility, Proof and Refugee Law" (2009) 21 IJRL 700 at 705, wherethe author discussed the United Kingdom Asylum Policy Instruction which was current at the timethe article was published. See also the current UK guideline: Home Office Assessing credibilityand refugee status in asylum claims lodged on or after 28 June 2022 (June 2023) at 51–52, stating:"You must not base implausibility findings solely on your own assumptions, conjecture, orspeculative ideas of what ought to have happened, what you might think someone genuinelyfleeing for their life should have done, how you think a person would have behaved, or how youthink a third party would have acted in the circumstances."Karanakaran.51 This suggests it is not clear that the Tribunal'sapproach is consistent with Karanakaran and that further clarity fromthe Court may be helpful.(b) Secondly, BE has analysed the Tribunal's decisions since the date of thesecond decision and found that the Tribunal has altered the wording ofhow it approaches its task. BE acknowledges that this may bethe Tribunal simply clarifying its existing position but considers thechange reinforces the need for clarity from the Court.(c) Thirdly, BE has given examples of evidence he says ought to have beenpart of the risk assessment but was excluded by the approach taken bythe Tribunal. BE has supported those examples with expert evidence.It is not for us to engage with those examples in detail. However, weconsider that they may provide a context against which the Court canassess the question of law BE raises.[41] The proposed first question of law considered in the High Court includeswhether the Tribunal's approach led to an error in excluding from the risk assessmentevidence that should have been included in that assessment. Phrased in that way, thefirst question will in effect incorporate the proposed second question of law. That isbecause the first question will include whether evidence about the risk faced by BEbecause he was part of a failed drug importation arranged by a Nigerian drug syndicatewas wrongly excluded because of the way the Tribunal approached its task. Weconsider the first question of law can incorporate the relevant issues and that leaveshould not be granted in respect of the second question.51 Re BE (Nigeria), above n 2, at [40], where the Tribunal said that "contrary to the submissions ofthe parties, the model taken in New Zealand refugee status determination is, in reality, already asingle assessment along the lines of that suggested in Karanakaran."Leave to commence review proceedings[42] We decline leave to commence judicial review proceedings. It is apparent fromthe application for leave that the matters it wishes to raise through review proceedingsare captured by an appeal.52Result[43] The application for leave to adduce the evidence of Dr Iwilade is granted.[44] The application for leave to appeal to the High Court is granted.[45] Leave is granted on the following question:Did the Tribunal err in its approach to risk assessment, and, as a result,did it improperly exclude material information from consideration?[46] The application for leave to commence judicial review proceedings in theHigh Court is declined.[47] There is no order as to costs.Solicitors:McLeod & Associates, Auckland for ApplicantCrown Law Office | Te Tari Ture o te Karauna, Wellington for First Respondent52 Immigration Act, s 249(6)(a).