SK v THE IMMIGRATION AND PROTECTION TRIBUNAL CA694/2014 [2015] NZCA 26

SK v THE IMMIGRATION AND PROTECTION TRIBUNAL CA694/2014 [2015] NZCA 26 [25 February 2015]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 ZEALANDCA694/2014[2015] NZCA 26BETWEEN SKApplicantAND THE IMMIGRATION ANDPROTECTION TRIBUNALFirst RespondentCHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTSecond RespondentHearing: 17 February 2015Court: Randerson, Winkelmann and Venning JJCounsel: R S Pidgeon for ApplicantS K Earl for Second RespondentJudgment: 25 February 2015 at 2:30 pmReissued: 2 March 2015Effective dateof Judgment: 25 February 2015JUDGMENT OF THE COURTA The application for leave to bring review proceedings in the High Court is declined.B The applicant is to pay costs for a standard application on a Band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)Introduction[1] SK seeks leave under s 249 of the Immigration Act 2009 (the Act) to bring review proceedings against a decision of the Immigration and Protection Tribunal (the Tribunal) given on 28 May 2014.1 The Tribunal determined not to offer SK an oral hearing and dismissed, on the papers, his appeal against a decision of the refugee and protection officer declining to grant him refugee or protected person status. Justice Faire declined SK's applications for leave to appeal and for judicialreview to the High Court.2[2] SK does not pursue the application for leave to appeal. The present application is directed at the review. The first respondent abides the decision of the Court. The application is opposed by the second respondent.Background[3] The applicant is a Bangladeshi national. He claims to have become interested in and active in the Islami Chatra Shibir, the student wing of the Jamaat-e-Islami party, in 1997–1998 when he was at a secondary college in Chittagong. He says he took part in a number of protest activities for less than a year. He then gave up his involvement with the group because he was not sufficiently motivated to continue. His membership was subsequently revoked.[4] SK says that when at university in Dhaka he saw a pro-Shibir student beaten on one occasion and heard about the same happening at other residential halls.[5] Around 2003 SK briefly supported Hizb-ut-Tahir, an Islamic political party, but stopped on the advice of friends who considered it dangerous.1 [Re SK] [2014] NZIPT 800659.2 SK v Immigration and Protection Tribunal [2014] NZHC 2693.[6] In 2009 SK completed his university education and left Bangladesh for New Zealand.[7] SK was initially granted a student visa to study business. He was then granted a one year graduate job search visa which expired on 13 August 2011. On14 September 2011 SK's application for a graduate work experience visa wasdeclined. He has been unlawfully in New Zealand since that date.[8] On 26 October 2011 SK lodged a humanitarian appeal against liability for deportation on the basis of exceptional circumstances, specifically the particular financial hardship of his family in Bangladesh. The Tribunal declined his appeal on 15 November 2012. On 19 June 2013 Woodhouse J dismissed an application forleave to appeal the Tribunal's decision, finding the proposed grounds of appeal didnot amount to errors of law.3 SK applied for leave to appeal that decision to this Court but the application was later abandoned.[9] SK then made a claim to refugee or protected person's status on 2 September2013. The basis of his claim before the Tribunal was that he had become more religious in his views in recent years and that his mindset, views and opinions would mark him out as pro-Jamaat. He claimed there had been an escalation in violence against Jamaat supporters.[10] In its decision made on the papers, the Tribunal accepted SK's account ascredible but declined his appeal on the basis that:4(a) SK is not, and has never been, a high-ranking member of Jamaat or its student wing, Shibir. There is no evidence to substantiate a hardening of political (as opposed to religious) fervour or commitment to Jamaat politics.(b) The reported instances of human rights abuses against Jamaat members and supporters are comparatively small in number. The3 [SK] v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 1484.4 Re SK, above n 1, at [32]–[34].statistics do not show a significant risk of political violence. Over 99 per cent of Jamaat supporters were not the victims of political violence in 2013.(c) There are no substantial grounds for believing that SK would be in danger of being subjected to torture, arbitrary deprivation of life or cruel, inhuman or degrading treatment if deported.The application for leave[11] The appeal and application for leave are pursued on the grounds:(a) The Tribunal's failure to provide SK with notice it was proceeding to a hearing on the papers was a breach of natural justice and an incorrect application of "absolute discretion" to s 233(3)(b)(i) of the Act.(b) The High Court did not refer to information provided by SK in support of his claim, particularly newspaper and video links. It is implied that the High Court did not review them.Decision[12] Section 249(1C) of the Act provides:(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.[13] The purpose of s 249 is to limit judicial review to issues that could not be dealt with by an appeal or that are of general or public importance or for any other reason ought to be submitted to the High Court for review.5[14] Although Mr Pidgeon's submissions were in part directed at criticism of theHigh Court judgment, as he also noted, this appeal is essentially a rehearing of the application for leave to bring review proceedings. The focus is properly on the actions of the Tribunal.[15] SK's argument the Tribunal acted in a procedurally unfair way is based on thesubmission that he did not receive notice from the Tribunal that it intended to rely on s 233(b)(i) to deal with his application without an oral hearing. He says he lost the opportunity to respond.[16] In determining to proceed without an oral hearing the Tribunal relied on s 233(3):The Tribunal must provide an oral hearing in the case of an appellant or affected person currently or previously recognised as a refugee or a protected person, or a claimant for such recognition, unless—(a) the person was interviewed by a refugee and protection officer (or a refugee status officer under the former Act) in the course of determining the relevant issue at first instance or, having been given an opportunity to be interviewed, failed to take that opportunity; and(b) the Tribunal considers that the appeal or other contention of the person—(i) is prima facie manifestly unfounded or clearly abusive; or(ii) relates to a subsequent claim for refugee or protection status.[17] Mr Pidgeon submitted that the Judge had wrongly treated the Tribunal'sdecision not to hold an oral hearing as one involving an absolute discretion. Readingthe Judge's comments at [37]–[40] in context we do not accept that he considered the Tribunal had an absolute discretion under s 233(3)(b). The reference at [39] of hisdecision to the Tribunal's absolute discretion was a reference to s 233(2), not s 233(3)(b)(i). To the extent the Judge referred to s 233(2) he misdirected himself5 K v Immigration and Protection Tribunal [2014] NZCA 585 at [2].because this was not an appeal against liability for deportation. That subsection had no application.[18] However, nothing turns on that as the short point is that the Tribunal's obligation to provide an oral hearing in SK's case, as a claimant for recognition as arefugee or a protected person, was subject to s 233(3). Where, as here, SK had beeninterviewed and the Tribunal considered SK's appeal to be prima facie manifestly unfounded there was no need for it to hold an oral hearing. As there was no requirement for an oral hearing, whether the tribunal had a discretion or an absolute discretion to nevertheless hold an oral hearing is not the point. The issue is whetherthe Tribunal acted in a procedurally unfair way in communicating to SK that it didnot propose to hold an oral hearing.[19] The applicant's strongest argument in favour of procedural unfairness on this issue is the Tribunal's letter of 4 February 2014. On receipt of his refugee and protected person appeal the Tribunal wrote to him that day to advise that it would decide his appeal at an oral hearing and that he would be advised when and where the hearing would take place. That letter, which appears to be a standard form letter, could have created a reasonable expectation in SK (subject to further advice from the Tribunal), that he would receive an oral hearing.6[20] Given the terms of the letter of 4 February 2014, if the Tribunal were to change its position and deal with the appeal on the papers we consider it was obliged, for fairness reasons, to give notice to SK that its position had changed and that there would not be an oral hearing.[21] In its letter of 14 May 2014 the Tribunal did just that. It advised SK that, having reviewed the refugee status branch file, it considered his appeal may be prima facie manifestly unfounded and that it could be determined without an interview. It invited a response from him by 5.00 pm on 21 May 2014.6 In light of this decision the Tribunal may wish to revise the standard form letter to advise an appellant of the possibility of the Tribunal relying on s 233(3) of the Immigration Act 2009 to proceed on the papers rather than at an oral hearing.[22] The letter was sent to the address SK had provided to the Tribunal. The courier record discloses that an attempted delivery was made on the next day, 15 May. It was not delivered. The record shows the letter was held "awaitingreceiver to contact branch". It was ultimately redelivered on 22 May 2014. SK hasdeposed that he was away from the address from 6 or 7 May until 6 June 2014 and did not receive the letter. The Tribunal delivered its decision on the papers on 28 May in the course of which it concluded SK's case was prima facie manifestlyunfounded.[23] SK was required to provide details of his residential address in New Zealand in his appeal documents. The appeal form also contained the following directions:You must notify the Tribunal immediately if you change your address.And 1E:Where do you want us to send all documents and official notices relating to this appeal? (This cannot be a PO Box). Note that under s 225(2)(i) of the Immigration Act 2009 you must provide the Tribunal with a current address to which communications relating to your appeal may be sent.SK ticked the relevant box "to you, at the address above".[24] The appeal form repeated again at the bottom:You must notify the Tribunal immediately if you change your address.Note that under s 225(4) of the Immigration Act 2009 the Tribunal may rely on the latest address you provided for purpose of communications relating to your appeal.[25] Advice to a similar effect was provided in the letter of 4 February 2014:Tell us immediately and in writing if (a) you change where you live, or want the Tribunal to contact you at adifferent address from the one on your appeal form. In all these cases, tell us where you want us to send letters, documents and information about your appeal from now on. If you do not do this, the Tribunal will continue to send everything to the address you gave on your appeal form.[26] Any expectation that the Tribunal created by its letter of 4 February of an oral hearing was addressed in the letter of 14 May. The directions to SK about the importance of his address, any change in the address and that communications wouldbe sent to that address were clear. The fact the letter of 14 May did not come to SK'sattention was not due to any fault of the Tribunal. The evidence satisfies us that the Tribunal took all reasonable steps to give notice to SK that it did not intend to hold an oral hearing. The reason SK did not receive the letter was because he was away from his address for an extended period of time without making arrangements for his mail.[27] Mr Pidgeon suggested, somewhat faintly, that the Tribunal was obliged to try to contact SK at the contact telephone numbers SK had provided in the appeal form.Given the clear directions on the form and the statutory provisions referred to in theletter that was an unrealistic submission. There could be no such requirement.[28] Mr Pidgeon also sought to rely on s 386 of the Act, which provides for service. He submitted the section applied so that the letter of 14 May had to be served on SK and that it had not been served on him. Again, the answer lies in the relevant provision. Section 386(6) provides:Except in a case to which subsection (5) applies, if under this Act any notice or other document is to be given to, served on, or supplied to any person in New Zealand by registered post, the notice or other document is treated as having been given, served on, or received by that person 7 days after the date on which it was posted unless the person proves that, otherwise than throughfault on the person's part, the notice or other document was not so given, served, or received.7[29] In the present case, SK is not able to prove that it was otherwise than through his fault that the letter was not received by him before the response date (and subsequent delivery of the decision) had passed.[30] In any event, the issue that SK seeks to raise is not an issue of public or general importance. Nor could it be argued there is any other reason to support the grant of leave in this case. For the reasons given, the proposed review has no7 Section 4 of the Immigration Act confirms registered post includes a courier service where delivery is recorded.prospect of success. Parliament has made it clear that an oral hearing will not be required in every case. As s 233(3) applied, the Tribunal was not required to hold anoral hearing in SK's case.[31] SK also sought to raise a second ground, namely that the High Court (and the Tribunal before it) had failed to take account of newspaper and video links SK had provided to support his application.8 But as Mr Pidgeon properly conceded during submissions that proposed ground of review could have been dealt with on an appeal. To that extent the criterion in s 249(1C)(a) is not met. There is no basis for a review.[32] Again, in any event, it is a matter of record the Tribunal considered the material. The information was before it. The Tribunal refers to considering the evidence on behalf of SK.Result[33] The application for leave to bring review proceedings in the High Court is declined.Costs[34] The applicant is to pay costs for a standard application on a Band A basis with usual disbursements.Solicitors:Pidgeon Law, Auckland for ApplicantMeredith Connell, Auckland for Second Respondent8 While Mr Pidgeon referred to the High Court's failure to refer to the material, the real issue iswhether the Tribunal did. It is the Tribunal's decision that is sought to be reviewed.