WK v THE REFUGEE PROTECTION OFFICER, MBIE, AUCKLAND [2018] NZHC 683

WK v THE REFUGEE PROTECTION OFFICER, MBIE, AUCKLAND [2018] NZHC 683 [16 April 2018]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF HIS OR HER CLAIM ORSTATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THEIMIMGRATION ACT 2009.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-1012[2018] NZHC 683UNDER the Immigration Act 2009, ss 129-131, s 140IN THE MATTER of an appeal of a decision of the RefugeeStatus branch to decline an application forrefugee statusBETWEEN WKApplicantAND THE REFUGEE PROTECTION OFFICER,MBIE, AUCKLANDRespondentHearing: 11 April 2018Appearances: R Pidgeon for the ApplicantS Jerebine and T Burgess for the RespondentJudgment: 11 April 2018Reasons: 16 April 2018JUDGMENT (REASONS) OF WOODHOUSE J(Application for interim relief pending appeal)This judgment was delivered by me on 16 April 2018 at 4:45 p.m.pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy Registrar[1] The applicant, WK, has appealed against a decision of mine (the substantivejudgment) dismissing his application for judicial review of a decision of a Refugeeand Protection Officer (RPO).1 The RPO, pursuant to s 140(3) of the Immigration Act2009 (the Act), had refused to consider what was WK's fourth claim for recognitionas a refugee or protected person.2[2] WK is liable for deportation. On filing his appeal he also applied, in this Court,for interim relief in respect of the deportation liability pending determination of theappeal. I heard that application and delivered an oral judgment granting interim relief,but without reasons.3 These are my reasons.The results judgment[3] At the end of the hearing I advised counsel that I had concluded that interimrelief should be granted to the applicant, to remain in place until, in broad terms, theconclusion of WK's appeal to the Court of Appeal. The interim relief sought was adeclaration that the Crown ought not to take steps to deport WK until 5:00 pm on theday following delivery of the judgment of the Court of Appeal. Ms Jerebine, for therespondent, and for the Crown in respect of the statutory power of deportation, advisedthat the Crown would agree not to take action to deport WK until determination of theappeal. Mr Pidgeon advised that the Crown's agreement not to deport WK wasacceptable in place of a declaration from the Court.[4] In the course of discussion in court, the terms of the Crown's agreement wereformulated and recorded in the results judgment, which is as follows:The Crown will not take any action to deport the applicant until the earliest ofthe following events:(a) 5:00 pm on the first working day following delivery of the judgment ofthe Court of Appeal in appeal CA150/2018; or1 WK v The Refugee Protection Officer, MBIE, Auckland [2018] NZHC 514.2 Section 140 is recorded below at [11].3 WK v The Refugee Protection Officer, MBIE, Auckland [2018] NZHC 651.(b) on discontinuance or dismissal of the appeal for any reason; or(c) on release of the Crown from its agreement by the Court of Appeal onapplication by the Crown in the event of an adjournment, for anyreason, of the current appeal fixture in the Court of Appeal on 17 May2018.For the avoidance of doubt, the Crown's agreement will not in any event extendbeyond the conclusion of the appeal in the Court of Appeal, and whether or notthere is an application for leave to appeal to the Supreme Court.Procedural background[5] WK is a Turkish national. He arrived in New Zealand in 2011. Since 2012 hehas made four unsuccessful claims for refugee and protected person status in NewZealand. Details of those claims, and of appeals to the Immigration and ProtectionTribunal (the Tribunal) against the first three decisions of an RPO, are set out in thesubstantive judgment.4[6] The third Tribunal decision was delivered on 27 February 2017. A deportationnotice to WK was issued on 6 March 2017.[7] WK's fourth claim was made on 21 March 2017 and determined by the RPOon 8 May 2017.[8] WK's judicial review application was heard in this Court on 11 October 2017and judgment was reserved. Before delivery of the substantive judgment steps hadbeen taken for WK's deportation. He was due to be deported on 13 March 2018. Heapplied for interim relief under s 15 of the Judicial Review Procedure Act 2016pending delivery of my judgment. On 12 March 2018, Courtney J made an order byconsent under s 15(3)(b)(i) of the Judicial Review Procedure Act declaring:54 WK v The Refugee Protection Officer, MBIE, Auckland, above n 1, at [7]-[44].5 WK v Refugee and Protection Officer HC Auckland CIV-2017-404-1012, 12 March 2018. that the Crown ought not to take any further action that is or would beconsequential on the exercise of its statutory power in relation to thedeportation of WK until 5:00 pm on the first full working day followingdelivery of Woodhouse J's substantive decision.[9] The substantive judgment was delivered on 23 March 2018.[10] On 26 March 2018 WK filed a notice of appeal in the Court of Appeal. On thesame date he filed his application for interim relief. This was an application withoutnotice, but it was served on Crown counsel. I convened a telephone conference on 26March. The Crown at that point agreed not to take any further steps to deport WKuntil a full hearing of the application for interim relief.The statutory framework[11] The RPO concluded under s 140(3) that WK's claim was manifestlyunfounded, clearly abusive, and repetitive of claims previously made. Theinterpretation and application of s 140, including the relationship between s 140(1)and s 140(3), are matters raised by WK on his appeal.[12] Section 140 is as follows:140 Limitation on subsequent claims(1) A refugee and protection officer must not consider a subsequent claimfor recognition as a refugee or a protected person unless the officer issatisfied—(a) that there has been a significant change in circumstancesmaterial to the claim since the previous claim was determined;and(b) the change in 1 or more of the circumstances was not broughtabout by the claimant—(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognitionunder any of sections 129 to 131.(2) For the purposes of determining the matter in subsection (1), therefugee and protection officer must not treat the actions of any otherperson in relation to the claim or the claimant as a mitigating factor.(3) A refugee and protection officer may refuse to consider a subsequentclaim for recognition as a refugee or a protected person if the officeris satisfied that the claim—(a) is manifestly unfounded or clearly abusive; or(b) repeats any claim previously made (including a subsequentclaim).[13] Section 142 of the Act bears directly on a question central to the applicationfor interim relief; that is, whether the appeal will be rendered nugatory if interim reliefis not granted. Section 142 is as follows:142 Claim treated as withdrawn if claimant leaves New ZealandIf a claimant leaves New Zealand, his or her claim (including any subsequentclaim) under this Part must be treated as withdrawn.[14] Section 142 is in Part 5 of the Act. Part 5 is the part of the Act dealing withrefugee and protection status determinations. The effect of s 142 is discussed below.[15] Section 195 provides that there is a right of appeal to the Tribunal against adecision under s 140(1). There is a further right of appeal on a point of law to the HighCourt and a right to seek judicial review of the Tribunal decision, subject in both casesto some restrictions.6[16] There is no right of appeal against a decision under s 140(3) unless theclaimant's most recent previous claim had been declined under Part 6A of theImmigration Act 1987. The saving in respect of claims under the 1987 Act has noapplication in this case. Although there is no right of appeal against a refusal unders 140(3), there is an unrestricted right to apply for judicial review.[17] Section 164(1) of the Act was given some emphasis by the Crown. Thisprovides that no person who is recognised as a refugee or protected person in NewZealand, or who is a claimant, may be deported under the Act. I have emphasised thewords because the Crown submitted that WK is no longer a claimant. The reasonswere summarised in the written submissions for the Crown as follows:6 Sections 245 and 249.(a) A "claimant" means a person who has made a "claim", but does notinclude a "person whose claim has been finally determined (within themeaning of section 128".7(b) Section 128 of the Act provides that a matter under Part 5 "Refugeeand protection status determinations" must not be treated as finallydetermined until the expiry of the appeal period for any appeal relatingto the matter, or, if the person lodges an appeal, the appeal isdetermined.(c) Section 128 does not provide for any judicial review (or "reviewproceedings", the defined term in s 4 of the Act) to be filed ordetermined before a claim is finally determined.(d) The applicant did not have any right of appeal to the Immigration andProtection Tribunal against the 8 May 2017 decision of the RPO.8(e) Accordingly, the applicant's claim was finally determined when theRPO released the 8 May 2017 decision. He ceased to be a "claimant"and the limitation on deportation in s 164(1) of the Act ceased toapply.Interim relief: jurisdiction and principles[18] It was not in issue that there is jurisdiction to grant interim relief directed tothe liability for deportation pending determination of the appeal. WK's applicationwas made in reliance on r 12(3)(b) of the Court of Appeal (Civil) Rules 2005, whichenables the Court of Appeal and the court appealed from to grant "any interim relief"pending determination of an application for leave to appeal, or an appeal.9 The Crownalso referred to the Court's inherent jurisdiction to grant interim relief, applying thesame principles as set out in s 15 of the Judicial Review Procedure Act 2016.10 I amsatisfied that r 12(3)(b) is the applicable provision.[19] Ms Jerebine submitted that, in determining interim relief applications in thecontext of the Immigration Act, there is a two-step approach recently affirmed in Singh(Kulbir) v An Immigration Officer:117 Section 4, definition of "claimant". See also s 4, definition of "claim".8 Section 195(1)(b).9 As applied, for example, in Parmanadan v Minister of Immigration [2010] NZCA 136, [2010]NZAR 424 at [2].10 Faavae v Minister of Immigration (1997) 11 PRNZ 168 (HC) at 169-170. Under s 15 of theJudicial Review Procedure Act, before the final determination of an application, the Court may,when the Crown is a respondent, make an order declaring that the Court ought not to take anyfurther action that is, or would be, consequential on the exercise of the statutory power.11 Singh (Kulbir) v An Immigration Officer [2016] NZCA 435, [2016] NZAR 1419 at [32].The Court asks first whether the adverse consequences of deportation beforethe judicial review application is determined are such that it is necessary topreserve the appellants' position in the interim and, secondly, whether there isa respectable case for judicial review.[20] In Singh (Kulbir), the Court doubted "the utility in a public law context" of theinterim injunction principles discussed in Klissers Farmhouse Bakeries case.12[21] Mr Pidgeon submitted that the appropriate approach is to weigh the range offactors usually referred to for an assessment of competing interests when an appellantapplies for stay of a judgment. He referred to a recent summary of relevant factors(not exclusive) by the Court of Appeal in Broadspectrum (New Zealand) Ltd vNathan.13[22] There are material differences between an application for stay and the interimrelief sought in this case, but it is unnecessary to discuss those differences. MsJerebine accepted that at least most of the factors noted in Broadspectrum provide auseful checklist. I am satisfied those factors, save one, do provide a useful checklistand can be used, to the extent appropriate. The relevant checklist factors referred toin Broadspectrum are noted below. The one factor in Broadspectrum which would notappear to be applicable, in a case such as the present, is the overall balance ofconvenience. This is because of the observation in Singh (Kulbir) that the interiminjunction principles discussed in Klissers Farmhouse Bakeries are of doubtful utilityin a public law context.[23] Ms Jerebine placed some emphasis on broad statements of principle by theCourt of Appeal in Parmanadan v Minister of Immigration in relation to applicationsfor interim orders preventing removal (now deportation) of a person from NewZealand pending determination of that person's appeal.14 Parmanadan was a decisionunder the Immigration Act 1987, but the principles remain applicable under the Act.Indeed, the Court of Appeal has said, in Chief Executive of the MBIE v Nair, that the2009 Act "reinforces the Parmanadan approach".1512 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).13 Broadspectrum (New Zealand) Ltd v Nathan [2017] NZCA 434 at [34].14 Parmanadan v Minister of Immigration, above n 9.15 Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZCA248, [2016] NZAR 836 at [16].[24] The observations in Parmanadan of direct relevance are as follows:[9] ... In previous cases where interim relief has been sought, theassumption has usually been that unless the status quo (ie the overstayer'scontinuing presence in New Zealand) is maintained, the overstayer's right tochallenge removal will (or may) be irretrievably damaged on the basis that theoverstayer, even if successful in the review proceedings, may not be permittedto return to New Zealand. In contrast, s 58(4) contemplates that a removalorder may be cancelled despite an overstayer having left New Zealand. Andonce it is appreciated that the corollary of the cancellation of a removal orderunder s 58 will be a grant of permission to reside in New Zealand, the needfor an interim order in cases such as the present might be thought to fall away,at least in large measure.[10] To be more specific, the corollary of an ultimately successfulchallenge by the appellant to his removal will be a grant of permission toreside in New Zealand. In other words, the end point of the whole process(which may include reconsideration of his case by an immigration officer) willbe either the appellant's removal, or him being permitted to stay in NewZealand. Armed with such permission, the appellant, even if removed in themeantime, will be able to return to New Zealand. So allowing him to beremoved would not compromise his legal rights should his challenge toremoval be ultimately successful.[11] This is not to deny that there may be particular adverse consequencesof a proposed removal which might warrant the making of an interim order.But the likelihood of such adverse consequences should be established byevidence and assessed in the context of both a legislative scheme under whichthe overstayer is necessarily illegally in New Zealand and is under a legal dutyto leave16 (subject to a right of "appeal" to the Removal Review Authority onhumanitarian grounds17), and also a legislative policy under which those whobreak the rules are not to be advantaged over those who comply.18[25] In my judgment Parmanadan, and the subsequent Court of Appeal decisionsapplying principles stated in Parmanadan to the 2009 Act, are distinguishable fromcases such as the present. This is because the statutory framework relevant toParmanadan is materially different from that applying in the present case. I explainthis in my evaluation, which follows.Evaluation[26] The principal reasons for my conclusion that interim relief should be grantedwere that, if WK is deported, his appeal will be rendered nugatory and there aregrounds of appeal which should be considered by the Court of Appeal.16 Immigration Act 1987, s 45. See also ss 4 and 34.17 Section 47.18 As expressed in the Long Titles to the Immigration Amendment Acts 1991 and 1999.[27] There are other considerations which provide support for the granting ofinterim relief. Countervailing arguments for the Crown, including strong submissionsthat none of the grounds of appeal have any chance of success, did not persuade methat relief should be declined. I will address those further points, to the extentnecessary, after considering the primary reasons for my decision.[28] The Crown acknowledged that if there is no interim relief and WK succeeds inhis appeal, the appeal, as Ms Jerebine put it, "will become moot when [WK] leavesNew Zealand". This is because the relief sought by WK on appeal is for orders thatthe RPO's decision on WK's fourth claim be set aside and that the fourth claim bereheard. But the claim cannot be reheard. This is because of the effect of s 142, asnoted earlier: if WK is deported he will have left New Zealand and his claim "must betreated as withdrawn". The appeal will be rendered nugatory.[29] In addition to being central to my decision, this statutory result is the principalreason why, in my opinion, Parmanadan and subsequent cases have no application.The statutory framework is materially different in this case. In particular, s 142 hadno application in cases such as Parmanadan, Nair and Broadspectrum because thosecases were not concerned with persons making claims for refugee or protected personstatus and to whom Part 5 of the Act applies. Parmanadan and the other casesconcerned persons who had been granted permits to enter and remain in New Zealand,but whose rights through those permits had expired. The appellants were seeking tochallenge directly the validity of the order for removal (under the 1987 Act) or adeportation notice (under the 2009 Act). There is no challenge by WK to the issue ofthe deportation notice, except in a very indirect sense.[30] In Parmanadan, for the reasons recorded in the citation above at [24], andfurther explained in Nair under the present Act,19 deportation of a person challenginga deportation order, and not subject to the provisions in Part 5 of the Act, will notusually have "statutory effects sufficiently adverse to meet the threshold for interimrelief".20 In this case the statutory effect of deportation is that no benefit can beobtained from a successful appeal. It may be that this is an unintended consequence19 Chief Executive of the MBIE v Nair, above n 15, at [14]-[15].20 At [15].of s 142, but there was no argument for the Crown that s 142 can be interpreted so asto exclude from its effect a person who leaves New Zealand through deportation, asopposed to a person who leaves New Zealand voluntarily.[31] I considered that deportation of WK could also have adverse consequences forhim, in respect of his appeal, in another way. There is evidence, contained in materialadvanced on the fourth claim, and further evidence I admitted for the purpose of thejudicial review hearing, that WK could be arrested on re-entry to Turkey. If he isarrested he may remain in custody for a period which will make it impossible for MrPidgeon to obtain any further instructions for the appeal. This is not a conclusion ofrisk contrary to conclusions reached by the Tribunal up to the third Tribunal decision.It is an assessment made for the purpose of determining whether WK's statutory rightof appeal could be materially impeded if he is deported.[32] Those consequences for WK would be sufficiently adverse to meet thethreshold for interim relief unless it could be said that there are no grounds of appealwhich should be considered by the Court of Appeal. As earlier indicated, I am satisfiedthat there are grounds of appeal which should be considered by the Court of Appeal.[33] Ms Jerebine submitted that various grounds of appeal "must fail" or "cannotsucceed". Notwithstanding my conclusions in the substantive judgment, I am notpersuaded that all grounds of appeal can be dismissed in such categorical terms.[34] The starting point for consideration of this aspect is that it appears that theCourt of Appeal has not on any previous occasion considered the meaning andapplication of s 140 of the Act. There are important issues which I consider warrantconsideration by the Court of Appeal. These include the relationship between s140(1)and s 140(3); the meaning of "a significant change in circumstances material to theclaim" as used in s 140(1)(a); how that provision is to be interpreted in light ofs140(3)(b) which refers to repetition of "any claim previously made"; and what ismeant by a claim that is "manifestly unfounded" and a claim that is "clearly abusive".[35] There are further considerations going beyond points on appeal directed to thesubstantive judgment. In particular, Mr Pidgeon has given notice of an intention toseek to adduce and rely on new evidence. The Court of Appeal has given directionsin that regard. As I understand it, the proposed new evidence will be evidence of factsand circumstances existing up to the date of the decision of the RPO on the fourthclaim (pre RPO evidence) and evidence of facts and circumstances coming intoexistence after that decision (post RPO evidence).[36] Pre RPO evidence, if it is material, in terms of s 140, and if leave is granted torely on it, may have a bearing on the appeal.[37] The admission of post RPO evidence would seem to be more problematic. Inaddition to the need to meet the usual test for admission of new evidence on an appeal,it may be said that it would be unusual to admit new evidence on an application forjudicial review, and even more unusual to admit new evidence of facts andcircumstances arising after the original decision was made. It may be a novel point.But there would also appear to be some support for it. In AI (Somalia) v Immigrationand Protection Tribunal, Palmer J said:21[63] Finally Mr Pidgeon sought to adduce additional evidence of countryinformation regarding Somalia, in submitting that there is a clear and enduringrisk of harm to Mr AI from returning there, given his clan lineage. I have notneeded to rely on that in coming to my conclusion above, given the evidenceconsidered by the Tribunal. But I accept that the Court considering the appeal,or relief under judicial review, may consider the ends of justice would beserved by receiving further updating information, whether of countryinformation or in relation to Mr AI's nuclear family.22 Either party may applyfor leave to adduce such evidence as part seeking the timetabling directions.[38] There is one further consideration bearing on my conclusion that WK shouldhave an opportunity to have the Court of Appeal reconsider the decision of the RPOand the substantive judgment. This is that, on the application to the RPO, WK's lawyerhad to withdraw at a critical stage so that WK was unrepresented from that point, andin the hearing before me WK was unrepresented. In the hearing before me WK wasassisted by Mr Brian Johnson, as a McKenzie friend, and had earlier been assisted by21 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471.22 CD (CA27/2015) v Immigration and Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494at [24].Mr Johnson and Mr David Lewis in preparation of pleadings and some submissions.But there was no legal representation. WK is now represented by Mr Pidgeon, counselwith experience in this field. I consider it appropriate to take account of the possibilitythat persuasive points may be put to the Court of Appeal which were not put to me andon the first occasion s 140 has been assessed by the Court of Appeal.[39] As noted in my outline of the statutory framework, the Crown placed someemphasis on s 164(1) of the Act.23 The underlying point, as I understood it, was asfollows. Section 164 is a provision intended to provide some additional protectionagainst deportation for persons claiming recognition as refugees or protected persons.Given this special statutory regime, if the limitation on deportation no longer applies,the Court should, at the least, be particularly cautious in making an interim ordercontrary to the normal statutory consequence.[40] I was not persuaded that this argument was a strong countervailing factor, letalone one which should result in the application for interim relief being refused. AndI note that Ms Jerebine did not argue for the latter result. Section 164 regulatesexercise of the power of deportation within the Act, but there is nothing to suggest thatit modifies powers found in other enactments, or subordinate legislation such as theCourt of Appeal Rules.[41] It might also be argued, in terms of s 128 of the Act, that the "matter" ofrelevance in this case has not been "finally determined". The relevant part of s 128 isas follows:A matter under this Part must not be treated as finally determined until—(a) the expiry of the appeal period for any appeal relating to the matter.A broad interpretation of that part of s 128 could support a conclusion that thereference to "any appeal" includes an appeal from a judicial review decision relatingto "the matter". However, it is unnecessary to determine this point.23 Above at [17].[42] There are some remaining considerations arising from the summary ofconsiderations in the Broadspectrum case, to the extent that they have not already beencovered and to the extent that they have relevance in this case. I will briefly note theseunder appropriate sub-headings.Injury or detriment to the successful party/respondent if the stay is granted[43] Adapting that to the nature of the present proceeding, the opposing interests tobe considered are those of the Crown. The issue here is a practical one, in respect ofcost if WK remains in New Zealand, as opposed to the fundamental point of principle,articulated in Parmanadan amongst other cases, that persons who are illegally in NewZealand, and who do not voluntarily leave, should be deported. WK has, morerecently, been in custody. There will be cost to the State as a consequence of the grantof interim relief, and assuming an application I understand is being made for WK'srelease is not granted by the District Court. I did not consider that this cost is sufficientto outweigh the adverse consequences for WK.The bona fides of the appellant as to the prosecution of the appeal[44] It was plain, in my judgment, that WK, through Mr Pidgeon, was acting withall due diligence to have the matter brought before the Court of Appeal and determinedas expeditiously as reasonably as possible. This is made sufficiently apparent fromthe earlier reference to the hearing date now secured in the Court of Appeal,accompanied by timetable directions.Any public interest in the proceeding[45] I take this heading from Broadspectrum to include reference to matters ofpublic importance. I considered that the broad issue raised by this appeal, being theapplication of s140 to persons claiming to be recognised as refugees or persons in needof protection, is a matter of public importance because of New Zealand's internationalobligations as well as domestic human rights legislation. This consideration supportsthe granting of leave because for the Court of Appeal's first assessment of s 140.Section 140 is a provision of consequence which seeks to balance the interests ofpersons claiming refugee or protected person status, and who contend that the risksthey assert have intensified since an earlier claim was made, and the public interest inensuring that time is not spent on claims lacking in any merit.24[46] Those are my reasons.__________________________________Woodhouse JSolicitors / Counsel:Mr R Pidgeon, Barrister, AucklandMr P Pang, Integritas Law Firm, AucklandMs S Jerebine and Ms T Burgess, Crown Law, Wellington24 This aspect was touched on in the substantive judgment, above n 1, at [65].