CD v IMMIGRATION AND PROTECTION TRIBUNAL & ANOR CA27/2015 [2015] NZCA 379

CD v IMMIGRATION AND PROTECTION TRIBUNAL & ANOR CA27/2015 [2015] NZCA 379 [17 August 2015]NOTE: THE CONFIDENTIALITY OF THE NAME AND IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDCA27/2015[2015] NZCA 379BETWEEN CD (CA27/2015)ApplicantAND IMMIGRATION AND PROTECTIONTRIBUNALFirst RespondentCHIEF EXECUTIVE, MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTSecond RespondentHearing: 27 July 2015Court: Ellen France P, Randerson and Miller JJCounsel: Applicant in person (B A Johnson as McKenzie friend)No appearance for First RespondentM G Coleman for Second RespondentJudgment: 17 August 2015 at 3.30 pmJUDGMENT OF THE COURTA The application for leave to bring judicial review proceedings in the High Court is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)Introduction[1] The applicant, whom we will call CD, twice claimed refugee status on the ground that he faces persecution should he be refouled to his home country, Iran, where Islam is the state religion and adherents of his own non-Islamic faith are discriminated against.[2] The factual foundation for CD's claims differed substantially between the twoclaims; in the first he claimed that he had always been an adherent of his present faith and had been persecuted for it in Iran, and in the second he claimed that he was formerly a Muslim and converted after arriving in New Zealand, so implicitly abandoning his claim to having been persecuted in Iran.[3] Both claims failed on the facts, the Immigration and Protection Tribunal finding that CD had lied about his conversion and numerous other matters, that if returned to Iran he would abandon his pretended apostasy from Islam, and that he faces no real risk of persecution there.[4] CD did not appeal either decision of the Tribunal1 and is now out of time to do so. He instead sought leave to pursue judicial review of the second decision. Leave was refused in the High Court.2 He now invokes this Court's jurisdictionunder s 249 of the Immigration Act 2009 to grant leave to pursue judicial review in the High Court.[5] CD now says that in Iran he had become an apostate from Islam and was persecuted there for it, that as a known apostate he will be considered a political opponent of the theocratic Iranian regime and as such will be at risk of persecution1 The right of appeal to the High Court is found in s 245 of the Immigration Act 2009. It is by leave and confined to questions of law.2 Having regard to the grounds on which leave was sought in this Court, we will not reference the decisions below.and torture upon refoulement, and that Iranian authorities know he is an apostate,partly because the Tribunal's published decisions, although anonymised, containedinformation that readily identifies him to Iranian officials.Jurisdiction[6] Section 249 of the Immigration Act 2009 (the Act) provided at the relevant time3 that:249 Restriction on review(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.(1A) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.(1B) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (1A) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.(1C) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.(2) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.[7] It will be seen that when determining whether to grant leave the Court must consider whether the issues could not adequately be dealt with in an appeal, and if3 The section has been the subject of a series of amendments in recent years, but the differences are not material. We have used the version in force when CD filed his application for leave in this Court.they could be, whether they ought to be submitted to the High Court for review, by reason of general or public importance or for any other reason.The facts as found by the Tribunal[8] CD entered New Zealand in 2010 using a false foreign passport and claimed refugee status at the airport. He said that he was an adherent of an alternative faith from birth, that he was badly beaten for his faith when serving in the Iranian military, that he later received 75 lashes after being caught with religious books, and that he was being sought by the authorities when he fled Iran on foot. The Refugee Status Branch rejected his claim.[9] CD appealed to the Tribunal. It dismissed the appeal in 2012, having determined CD's evidence was false in numerous particulars and inconsistent withaccounts that he had given previously. It did not accept that he had followed a faith other than Islam when in Iran, still less that he had been persecuted for it then fled the country; he left lawfully on his Iranian passport and his conversion was a pretext advanced subsequently to establish a claim for refugee status. Nor did he have an adverse profile with the Iranian authorities or any reason, even if he was a known asylum-seeker, to anticipate persecution on his return there.[10] In 2013 CD lodged a second application for refugee status. Under s 231 ofthe Act, he was not permitted to challenge the Tribunal's previous adverse findings of fact and credibility. He did not seek to do so; on the contrary, he conceded that he had lied about the religious beliefs he held in Iran. He claimed rather that he converted in New Zealand soon after the first appeal hearing, so now had a genuine reason to fear persecution should he return to Iran.[11] CD said that during his travels from Iran to New Zealand he had posted his Iranian passport to an agent in Thailand and never got it back. When seeking a new passport from the Iranian Embassy after the first appeal hearing with a view to travelling to some other country, he was told that he was entitled only to a one-way travel document to return to Iran. He claimed that officials already knew details of his case because they maintain records of almost all Iranians in New Zealand. He admitted to officials that he was a failed asylum-seeker and cursed the prophet Ali inanger after an altercation as he left the premises. For that reason he will now be considered an apostate and opponent of the Iranian regime and will be persecuted should he return. Having fled the Embassy he went to the nearest police station and told an officer there that he had to return to Auckland urgently because he had encountered problems at the Embassy.[12] The Refugee Status Branch rejected the application and CD appealed. Before the Tribunal he advanced two further grounds: he said that he suffered from ill-health as a result of the beating he received in the military and he was suffering from stress, anxiety and depression; and he claimed he had been publicly identified as an adherent of his new faith because he had created a Facebook page that identified him as such.[13] The Tribunal accepted that without an existing passport CD might be entitled only to one-way travel documents, that he did attend the Embassy, that he was beaten while in the Iranian military and that he is under psychological care, although it did not accept that ill-health explained inconsistencies in his evidence.[14] However, it rejected CD's evidence on numerous grounds. It found that his conversion is not genuine but a pretext, and that were he to return to Iran he would abandon any pretence that he was an adherent of his new faith. It found that CD had not disclosed his asylum-seeker status to officials at the Iranian Embassy. Nor was there any confrontation with Embassy officials or act of apostasy. Among numerous reasons for these findings, the Tribunal noted that the police officer CD spoke to had been located and said that he did not report any problem at the Embassy or say he needed to leave Wellington urgently; he simply wanted to know how to change his flight. Even if the Iranian authorities did know that he had been denied refugee status there was no evidence, either from CD or in the form of country evidence obtained by the Tribunal, that he would face serious harm as a consequence, there being no country evidence to suggest that returned failed asylum seekers are at risk unless they are considered political dissidents, which CD is not. He has no history of political activity in Iran and no profile with authorities there, nor is there any evidence that Iranian authorities are carrying out surveillance of social media websites for persons such as the applicant. Any risk of harm through the Facebookpage was remote and speculative, since the page was never activated and did not identify CD.The application for leave to commence judicial review[15] As noted, the applicant did not seek to appeal either of the Tribunal decisions. In 2014 he instead applied for leave to seek judicial review of the second decision, saying that the Tribunal erred in several respects: it did not appreciate that his expressed desire to abandon Iran and Islam might in itself be interpreted as a political opinion putting him at risk of persecution; it effectively required him to have experienced discrimination in Iran in order to hold a well-founded fear of persecution; and it failed to consider whether an opportunistic decision to reject Islam might in itself create a real risk of persecution.[16] In support of the application, CD filed an affirmation containing a good deal of factual material. The High Court Judge considered it but ultimately appears tohave accepted the second respondent's complaint that judicial review should normally rest on the evidence available to the Tribunal at the time of the decision.[17] The High Court dismissed the application for leave, finding that the Tribunal did consider the matters raised and its alleged errors were not seriously arguable, and that the application raised no question of general or public importance. The claimthat review was warranted for "any other reason" rested on CD's assertion that hehad converted but it failed on the evidence before the Tribunal.The application before us[18] CD now says, not that he had converted in Iran, but that he had ceased to practise Islam there. The Tribunal focused too much on his alleged conversion and did not consider the consequences of an apostate being returned to Iran. He also says that the Tribunal was irrational to conclude that he did not face a real risk of persecution, for he bears visible marks of torture from the beating administered while he was in the military. He connects that to religion by saying that he was beaten for refusing to attend prayers because the place of prayer was unclean. He maintains that he has now converted, having been formally accepted into his newfaith a few weeks after his failed second appeal (the Tribunal was aware of this last development but declined to delay its decision on account of it, characterising as"uncritical" the stance of the religious leaders concerned). He says that the Iranian authorities in New Zealand know of his asylum claim and the grounds for it, partly because he disclosed it to them during the incident at the Iranian Embassy and partly because the Tribunal published its decisions and the first one contained details tending to identify him. He also complains the High Court published its decision in terms tending to identify him.[19] CD also says that he should have leave to seek judicial review because his rights under the New Zealand Bill of Rights Act 1990 to legal advice and to legal process have been breached.Admissibility of new evidence on a leave application under s 249[20] Much of the material relied on before us is contained in an affidavit sworn by CD and filed in this Court. He also has filed an affidavit of his McKenzie friend, Bryan Johnson. The second respondent, the Chief Executive, argued that this evidence is inadmissible.[21] It appears that no decision of this Court addresses the admissibility of evidence on a leave application under s 249.4 We make several points about such applications. First, they do not involve an appeal from the High Court or an application for leave to appeal; rather, that Court having refused leave to seek judicial review, this one considers the leave application afresh. The Court of Appeal (Civil) Rules 2005 do not provide expressly for such applications. The Court is guided in such cases by analogous rules,5 and r 18, which provides for applications for leave to appeal, contemplates that an application may be accompanied by any affidavit relevant to the application. However, that rule is not directly analogous,4 Several judgments of the High Court have addressed the question, directly or indirectly:D v Immigration and Protection Tribunal [2014] NZHC 3017; AL v Immigration and Protection Tribunal [2014] NZHC 1810, [2014] NZAR 1079 at [44]–[45]; and Guo v Immigration and Protection Tribunal [2014] NZHC 804.5 Rule 5(4) of the Court of Appeal (Civil) Rules 2005 allows the Court to dispose of any matternot provided for in such manner as it thinks best calculated to promote the ends of justice andcontemplates that the Court will do so as nearly as practicable in accordance with any rulesaffecting similar matters.because it deals with leave applications generally and does not apply to judicial review cases, in which appeals are normally brought as of right. We take the view that the Rules neither authorise nor prohibit affidavits in applications under s 249. Rather, the Court may, but need not, receive them.[22] Second, leave is being sought to pursue judicial review, which is not a merits appeal and is normally decided on the record before the decision-maker.6 Evidence is routinely admitted in judicial review, but it is normally confined to evidence showing what material was put before the decision-maker and explaining what considerations were taken into account.7 The Court will not embark on a broad appraisal of the decision-maker's factual findings.8[23] Third and of particular importance in this context, the 2009 Act provides that fact-finding is ultimately the responsibility of the Tribunal. Appeal from the Tribunal is by leave and confined to questions of law.9 The Act also specifies that the applicant must put before the Tribunal everything that he or she wants considered, and it allows the Tribunal to decide appeals solely on the basis of the information it has before it.10 Faced with an application for judicial review of a Tribunal decision, the court may accordingly reject or discount new evidence on the ground that it is irrelevant and its admission contrary to the scheme of the legislation.11[24] We conclude that when an applicant seeks to file affidavits in support of a leave application under s 249 this Court will exercise its discretion to receive or reject them in such manner as it thinks best serves the ends of justice. The Court will consider whether the evidence would be admissible on judicial review, should the application be granted, and whether its admission is consistent with the scheme of the immigration legislation. The Court will also recognise that the applicant has6 Wilfred v Chief Executive of the Department of Labour [2007] NZAR 237 (HC).7 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 561–562.8 Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 at [45].9 Immigration Act 2009, s 245.10 Sections 135 and 226; and Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) at [27].11 AL v Immigration and Protection Tribunal, above n 4; D v Immigration and Protection Tribunal,above n 4; and Guo v Immigration and Protection Tribunal, above n 4.already made one application for leave in the High Court and ought to have put any such evidence before that Court. For these reasons this Court may well refuse to receive new affidavits.[25] We have considered the new evidence filed in this Court, and we discuss it below. Some of it concerns matters that could not have been the subject of evidencebefore the Tribunal, such as CD's allegations about disclosures made in the Tribunal's decision. We have taken evidence of that kind into account to the extentwe find it relevant. But most of the evidence was placed before the Tribunal, or could have been, and it has not been tested. Where that is the case we have discounted the evidence as we think appropriate.Merits of the application[26] We agree with the High Court Judge that the proposed grounds of review raise questions of law that could and should have been advanced on appeal. It is now too late to appeal, but responsibility for that lies with the applicant.[27] We turn to consider whether the issues nonetheless ought to be submitted to the High Court for review, having regard to general or public importance or for any other reason.Apostasy and associated risk of torture[28] We do not accept that the Tribunal was wrong to focus on CD's allegedconversion to another faith rather than his rejection of Islam; it was responding to the claims made before it. As noted, he first sought refugee status on the basis that he was an adherent of his new faith in Iran and fled the country because he feared persecution. The Tribunal found for cogent reasons that his evidence was false and he subsequently admitted it, advancing the very different claim that he converted in New Zealand. It appears that CD has not previously claimed that he became non-Muslim years ago, before entering the military, let alone relied on apostasy as the basis for refugee status. Nor has he previously claimed that he was tortured or persecuted for abandoning Islam, as opposed to being an adherent of an alternative faith.[29] CD now says that the Tribunal was wrong to reject his account, given the evidence that he had been tortured in Iran while serving in the military. The Tribunal accepted that he had been beaten badly enough to leave him with pain and a slight stutter, but in its first decision it rejected his claim that he was beaten because of his faith, and in the second it found the reasons were not known. In its first decision it did not accept that he had been tortured and in the second it seems he did not allege it. In both decisions the Tribunal found that he was not at risk of torture on his return. The reason now advanced for the beating — that the place of worship was unclean — is new. It could and should have been put before the Tribunal for assessment. Further, it does not on its face entail rejection of Islam. We do not consider that this evidence would be entertained on judicial review.[30] We add that in our opinion rejection of the claimed apostasy in Iran isnecessarily implicit in the Tribunal's unequivocal findings. It did not accept that CDever abandoned his Muslim faith. It seems highly likely that the Tribunal would confirm that finding if the claim was returned to it for reconsideration following judicial review.Reviewable findings of fact[31] CD maintains that the Tribunal's findings of fact are judicially reviewable because they are irrational or unreasonable. For the reasons just given, we reject that submission as untenable. We add that the Tribunal found that since his first application for refugee status was dismissed CD had continued to lie about his claim in his dealings with others, continuing to allege, for example, that he had been arrested by Iranian authorities for possessing religious books and subjected to 75 lashes. He reiterated his false first claim when seeking ministerial intervention. When confronted with these lies he blamed third parties. This conduct troubled the Tribunal. It has acknowledged that refugee claimants sometimes find themselves in circumstances where there is little option but to lie, but there was no need to do so on these subsequent occasions.[32] CD also argues that it was unreasonable of the Tribunal to reject his account about what happened at the Embassy, saying that as a result of the confrontationthere he will be treated as an apostate and opponent of the regime. We do not agree.The Tribunal's findings of fact were carefully reasoned. It did not accept that CDwould volunteer the nature of his refugee claim to Embassy staff, it noted that there was no evidence of this claim in an account that he had given to a third party afterhis visit to the Embassy, and it recorded that the police officer denied CD's claimsabout what he reported to her.Identification of CD as an asylum-seeker[33] CD deposes that he faces a risk of persecution because the Iranian authorities now know that he has sought refugee status and the grounds of his application. It is not in dispute that he did seek a new passport at the Embassy in Wellington and that the Iranian authorities declined to issue one but offered him one-way travel documents, which would allow him to return to Iran but not to go to other countries.[34] CD claimed before us that the Tribunal's first decision contained informationthat allowed the Iranian Embassy to identify him from the published version. The Tribunal publishes its decisions but uses made-up initials so as not to identifyapplicants or other potentially vulnerable persons. CD's complaint is that the Iranianauthorities monitor such decisions and could, and did, identify him. He contends that the Tribunal's practice of publishing its decisions must be stopped.[35] The first decision contains a number of details about CD: his approximate age; his upbringing in Tehran; the fact that at some point he began his military service but left the military, and why; the fact that he left the country on his own passport; and the date of his entry to New Zealand (the latter after travelling for an indefinite period in other countries). The Tribunal was imprecise about dates and flight details. Its decision contained many other details proffered by CD, but they were found to be false. We do not accept that the details the Tribunal accepted are sufficient to identify CD; they must be true of many people. In any event, the Tribunal found that even if the Iranian authorities did know of his claim for asylum there was no real chance that he would be persecuted for it on his return.[36] CD also complained that the Tribunal's second decision, which was also published on the Tribunal's website, tends to identify him. He alleged that it waspublished using his full name, but there is no evidence of that. The parties received an unredacted copy but the published version used initials.[37] However, the decision did recite a number of facts about CD that the Tribunal accepted (we put to one side those factual allegations that it found to be untrue). It stated that he sought a new passport from the Embassy in a particular month and again, after his first application was declined, some months later. In order to make these applications he had to disclose his name and other identifying details, and on the second occasion he presented in person at the Embassy. The decision again mentioned the reason why he apparently left the military.[38] It seems plausible that the Tribunal's decision to include these details would allow officials to connect CD to its decision, if they were minded to monitor Iranians living in New Zealand. As noted, CD claims that they are so minded. Mr Johnson recounts a discussion of his own with an Embassy official to that effect, and the Tribunal noted country evidence that the Iranian government has monitored dissidents in the past.[39] CD failed to satisfy the Tribunal that he was at risk of being identified as an asylum-seeker. That may be why the Tribunal did not redact those facts that it accepted and which might identify him. It noted that there was no evidence of current surveillance of social media and no evidence that CD has any profile with Iranian authorities. For example, there have been no known attempts to contact CD or his connections in Iran.[40] We accept that were there a real chance that CD would come to harm because of his status as a failed asylum-seeker, the Tribunal's decision to publish these detailsmight warrant leave to seek judicial review, on the ground that the High Court might opt to refer the matter back to the Tribunal to assess whether its own disclosure gave rise to a fresh risk of persecution.[41] To grant review on that ground would be unusual. The Act requires that the Tribunal publish its decisions, although it must edit them so as to remove theapplicant's or affected person's name and any particulars likely to identify thatperson.12 The questions would be whether the inclusion of any given particulars risks identifying the applicant and further gives rise to a new risk of persecution, one that the Tribunal did not address in its decision. Review would be sought, presumably, on the ground that the Tribunal had overlooked the new risk or had failed to comply with natural justice obligations by hearing from the parties about it.13[42] There are no New Zealand authorities on point, although Butler v Attorney- General recognised that there are compelling reasons for confidentiality in refugee claims.14 There is also an instructive decision of the Refugee Status Appeals Authority, Refugee Appeal No 76204, in which the applicant was found by his publicity-seeking actions to have waived confidentiality,15 and the Supreme Court has held that the confidentiality required by (what is now) s 151 should be modified only to the extent necessary to give effect to the limited disclosure that the legislation permits.16 The Tribunal in this case has rejected CD's dramatic claims about whathappened at the Embassy and he has no option but to present himself and disclose his identity in order to get travel documents, so to that extent Refugee Appeal No 76204 appears to be distinguishable.[43] Further, there are examples from overseas jurisdictions of relief being granted in consequence of a disclosure by immigration authorities. In the United States the position is governed by a federal regulation17 that is analogous to s 151, and there are a number of authorities, of which the leading example is Lin v United States Department of Justice.18 There a government disclosure to country-of-origin12 Immigration Act, sch 2, cl 19; and Immigration and Protection Tribunal "Practice Note 2/2015: Refugee and Protection" (8 June 2015) at [32.3].13 We note in passing that judgments of the courts have usually been redacted or written in such a way as to exclude identifying details. See AB v Chief Executive of the Department of Labour[2011] 3 NZLR 60 (HC) at [37]; S v Chief Executive of the Department of Labour [2007] NZCA 182; and Z v Attorney-General HC Auckland CIV-2007-404-330, 3 March 2007. We observe that English practice is to anonymise by assigning two initials and the country of origin, as in re AB (country name), followed by the case number: see Practice Note (Court of Appeal: Asylum and Immigration Cases) [2006] 1 WLR 2461.14 Butler v Attorney-General HC Auckland M37/93, 22 January 1993 at 8–9.15 Refugee Appeal No 76204 Refugee Status Appeals Authority 76204, 16 February 2009 at [101]; and Refugee Appeal No 76299 Refugee Status Appeals Authority 76299 and 76297, 17 July 2009.16 Attorney-General v X [2008] NZSC 48, [2008] 2 NZLR 579 at [18].17 8 CFR § 208.6.18 Lin v United States Department of Justice 459 F 3d 255 (2d Cir 2006). We note that a differentauthorities to the effect that the applicant had sought asylum was found capable ofcreating a new risk of persecution, one that was independent of the applicant'soriginal claim.19 Because of the risk that inquiries made of the country of origin will create or exacerbate a risk of persecution, New Zealand decisions often rely on theapplicant's responsibility to establish the claim and on country information obtainedby the authorities.20[44] In this case, however, the Tribunal found, after making its own investigations,that even if Iranian officials know of CD's application for refugee status there is noevidence that he would face serious harm as a consequence; he is not a dissident or opponent of the regime.21 CD provided no country evidence to the contrary. In the circumstances, the Tribunal found, the risk of any harm on repatriation was remote and speculative. We do not consider, on the material before us, that this factual conclusion is susceptible to review. That being so, we decline to grant leave topursue judicial review on the ground that the Tribunal itself has disclosed CD'sstatus as an asylum-seeker.[45] With respect to CD's claim regarding the High Court decision, we areadvised that the decision has never been published. The details of which he complains were adopted at the suggestion of his counsel, and we do not accept that they are apt to identify him.standard of review applies in that jurisdiction (see n 1, above), but that distinction is not material for our purposes.19 See too Anim v Mukasy 535 F 3d 243 (4th Cir 2008). The cases show that not every communication or disclosure is considered sufficient. See for example Che v Mukasey 532 F 3d 778 (8th Cir 2007) and Ghasemimehr v Gonzales 427 F 3d 1160 (8th Cir 2005).20 See the valuable discussion in Jiao v Refugee Status Appeals Authority [2009] NZAR 647 (CA), notably at [8], [26] and [32]; and A v Refugee Status Appeals Authority [2001] NZAR 209. Authority to seek information from any source is conferred by sections 149 and 229 of the 2009 Act. The difficulties that inquires of a country of origin can present were discussed in A v Refugee Status Appeals Authority HC Auckland CP310/98, 6 November 1998 at 16–20, per Nicholson J.21 A similar result was reached in Jiao v Refugee Status Appeals Authority, above n 20, at [18]. We observe that there are factually analogous US decisions: see Dai v Mukasey 296 Fed Appx 204 (2d Cir 2008); Ghasemimehr v Gonzales, above n 19; and Averianova v Mukasey 509 F 3d 890 (8th Cir 2007).New Zealand Bill of Rights Act breaches[46] CD also contends that ss 24 and 27(2) of the New Zealand Bill of Rights Act1990 apply and have been breached. We accept the Chief Executive's submissionthat he has not been charged with an offence so s 24 does not apply, and that it is not a breach of s 27(2) to require that leave be sought to bring a judicial review application.Decision[47] The application for leave to bring judicial review proceedings in the High Court is dismissed.[48] There is no order as to costs.Solicitors:Crown Law Office, Wellington for Second Respondent