Last Updated: Tuesday, 22 July 2014, 14:56 GMT

Refugee Appeal No. 71864/00

Publisher New Zealand: Refugee Status Appeals Authority
Publication Date 2 June 2000
Citation / Document Symbol No. 71864/00
Cite as Refugee Appeal No. 71864/00, No. 71864/00, New Zealand: Refugee Status Appeals Authority, 2 June 2000, available at: http://www.refworld.org/docid/3ae6b73e4.html [accessed 23 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

AT AUCKLAND

Before: A R Mackey (Chairperson) R P G Haines QC (Member) J M Priestley QC (Member)

Counsel for the Applicant: D J Ryken

Appearing for the NZIS: No appearance

Date of Hearing: 10 May 2000

Date of Decision: 2 June 2000

DECISION

INTRODUCTION

[1] This is an application for rehearing.

[2] The applicant is a citizen of Morocco who arrived in New Zealand by air on 17 October 1997. At the airport he claimed refugee status. The Refugee Status Branch interview took place on 18 March 1998 and a decline decision followed on 31 July 1998. From that decision the applicant appealed to this Authority.

[3] The hearing before a differently constituted panel of this Authority occupied four days, being 3 November 1998, 2, 9 and 15 December 1998. The applicant was represented by counsel (not Mr Ryken). In a lengthy decision published on 30 June 1999, the appeal was dismissed on credibility grounds.

[4] On 2 February 2000 the applicant, through his present solicitors, sought a rehearing of the appeal on the grounds that the evidence given in November and December 1998 had been affected by the applicant's mental illness and as a result a miscarriage of justice had occurred. The applicant accepts that at the hearing of the appeal the Authority did not know that he was mentally ill and that he withheld from both his then counsel and the Authority his past medical history.

[5] In support of the application four sets of submissions have been filed. They are supported by documentary evidence which includes statutory declarations by two witnesses and an unsworn statement signed by the applicant on 31 March 2000.

[6] The medical evidence of New Zealand origin shows that the applicant was admitted to the Acute Mental Health Admission Unit at Waitakere Hospital on 5 November 1999 and discharged on 13 December 1999. The discharge diagnosis was "Adjustment Disorder with depressed mood" and "PTSD". On discharge the applicant was prescribed medication which appears to have helped him regain some mental equilibrium. A more recent report from Dr T Wansbrough dated 5 May 2000 expands upon the Waitakere Hospital diagnosis:

"They found that he had post traumatic stress disorder and depressed mood, with psychotic features (persecutory ideas and hearing voices, with suicidal ideation). They also noted blunted affect (i.e. passive mood) and very little speech.

He improved somewhat, and was discharged to remain under care in the community on medication.

At present, he is still a passive man who tires quickly and will withdraw from stress."

[7] No direct medical evidence has been offered as to the degree to which (if at all) the applicant's medical condition disabled him from meaningful participation in the four day appeal hearing held in November and December 1998.

[8] For reasons which will become apparent, we do not intend exploring this issue or the other evidence tendered in support of the application.

[9] The central issue raised by this appeal is whether this Authority has jurisdiction to rehear an appeal after a full hearing and decision.

WHETHER THERE IS JURISDICTION TO REHEAR AN APPEAL

[10] In determining whether the Authority has jurisdiction to rehear an appeal account must be taken of the evolving sources of the Authority's jurisdiction and powers.

[11] Following the October 1990 general election the incoming administration, on 17 December 1990, approved new procedures for the determination of applications for refugee status. Those procedures included the setting up of the Authority. On 11 March 1991 the procedures were incorporated into Terms of Reference and the Authority heard its first appeal early in June 1991: Singh v Refugee Status Appeals Authority [1994] NZAR 193, 198-199 (Smellie J). Although the Terms of Reference were subsequently modified on three separate occasions, the basic outline of the procedures remained unchanged. In chronological order, the Terms of Reference were Terms of Reference (March 1991); Terms of Reference (1 April 1992); Terms of Reference (in force on 30 August 1993) and the Rules Governing Refugee Status Determination Procedures in New Zealand (in force from 30 April 1998).

[12] The unusual feature of the refugee determination system in its original form was that it operated on an extra-statutory basis. The view taken in the High Court was that the procedures were the creature of the prerogative but nonetheless amenable to judicial review: Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, A Nos. 878/83, 993/83 & 1016/83, 29 November 1985, Chilwell J) pp 264-273 (appeal by the Crown dismissed on other grounds in Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222 (CA)); Singh v Refugee Status Appeals Authority [1994] NZAR 193, 209-212 (Smellie J); Khalon v Attorney-General [1996] 1 NZLR 458, 461 (Fisher J); B v Refugee Status Appeals Authority (High Court Auckland, M 1600/96, 23 July 1997, Giles J) pp 3-4. However, the Court of Appeal twice expressed reservations as to both the reviewability of the Authority's decisions and as to the appropriateness of the procedures being extra-statutory: Butler v Attorney-General [1999] NZAR 205, 218-220 (Richardson P, Henry, Keith, Tipping & Williams JJ); S v Refugee Status Appeals Authority [1998] 2 NZLR 291, 294 (Henry, Keith & Blanchard JJ). Legislative reform was finally enacted in 1999 in the form of the Immigration Amendment Act 1999. Section 40 of that Act inserted a new Part VIA into the Immigration Act 1987. Section 129N(1) of the principal Act provides that the Authority is "continued" as a body. The powers and jurisdiction of the Authority under the legislative amendments will be examined shortly.

[13] Prior to these legislative changes the Authority had delivered decisions which addressed the issue of jurisdiction to rehear an appeal. As some of those decisions are relied upon by the applicant in the present case, they must be examined.

Jurisdiction to rehear under the Terms of Reference

[14] None of the four Terms of Reference conferred express power to rehear an appeal. To the contrary, all four Terms of Reference shared the following characteristics:

(a) The decision of the Authority was described as "final".

(b) The Authority was empowered to regulate its own procedure.

[15] It is the evolution of the finality clause which is of greatest relevance in the present context. The March 1991 Terms of Reference, para 5 simply provided:

"The Authority's function shall be to make a final determination on appeal...."

The April 1992 Terms of Reference, in addition to stipulating that the Authority's function was to make a final determination (see para 5), went on to provide in para 12 that:

"A decision of the Authority shall not be reconsidered by the Authority once conveyed to the appellant."

[16] In Refugee Appeal No. 59/91 Re R (19 May 1992) application was made to reopen a case on the grounds that the applicant was in receipt of new evidence. The Authority held that it had no jurisdiction to reopen the appeal. This was because the Terms of Reference did not confer powers of a continuing character. The power to make "a final determination on appeal" as to refugee status was held to be an adjudicative function and the Authority concluded that it was functus officio once a decision had been given. This holding was reinforced by an established line of Canadian authority which allows only one exception to the rule, namely, where there has been a decision rendered contrary to the rules of natural justice. The Authority held that it did not, on the facts of the case, need to decide whether the Authority itself had jurisdiction to reopen a decision in the situation where there had been a denial of natural justice at the first appeal hearing.

[17] Subsequent to the delivery of the Authority's decision on 19 May 1992, the third Terms of Reference came into force on 30 August 1993. For the first time the issue of jurisdiction to rehear an appeal was specifically addressed. Para 5(4) stipulated that there was to be no right of appeal or rehearing once the Authority had given a decision on any matter properly before it. It provided:

"The Authority's decision on any matter properly before it shall be final and there shall be no right of appeal or rehearing on that matter, and the Minister of Immigration agrees to be bound by the decision."

Paragraph 15 of those Terms of Reference also stipulated that a decision of the Authority was not to be reconsidered by the Authority once conveyed to the applicant. Certain exceptions were provided for but they are not presently relevant.

[18] The power to reopen a "final" decision was next examined in Refugee Appeal No. 680/92 Re DS (27 February 1995) in the context of the non-appearance of an appellant at the appeal hearing. The Terms of Reference required the Authority to give an appellant an opportunity to attend an interview, but the Terms of Reference did not facilitate the giving of notice of the date of hearing. The mandatory methods of service were described by the Authority at p 10 of the decision as both cumbersome and impracticable and it observed that for that reason neither of the prescribed methods of service were employed by the Authority's secretariat. As a result, the Authority could not rely on the deeming provisions of the Terms of Reference as to service of documents. In addition, the Terms of Reference made no provision for non-appearance cases. For these and other reasons discussed in the decision, the Authority was confronted with the fact that non-appearance of an appellant at a hearing could be due to the Authority's own failure to advise the appellant of the date of hearing. The issue for consideration was whether in relation to an appeal dismissed in such circumstances the Authority had jurisdiction to reopen an appeal. The Authority found that such jurisdiction did exist. No purpose would be served by repeating the reasoning process which led the Authority to that conclusion. It is sufficient to note only that the conclusion was based primarily on the rules of fairness, public policy grounds and the principle enunciated in R v Kensington and Chelsea Rent Tribunal; Ex parte MacFarlane [1974] 3 All ER 390, 396 (QBD).

[19] The exception recognized in Refugee Appeal No. 680/92 Re DS (27 February 1995) is a very narrow one and confined to those cases where an appeal has been disposed of in the absence of an appellant who is unaware of the date of hearing. There may be some significance in the fact that when the next version of the Terms of Reference appeared, being the Rules Governing Refugee Status Determination Procedures in New Zealand which came into force on 30 April 1998, the non-appearance problem remained unaddressed. One possible inference is that the New Zealand Government, through Cabinet accepted that the Authority's approach in Refugee Appeal No. 680/92 Re DS (27 February 1995) was correct. Certainly the Authority's approach was not negated by an express provision stipulating that in non-appearance cases an appeal could not be reopened.

[20] The next decision to address the jurisdiction to rehear was Refugee Appeal No. 2017/94 Re DRD (29 August 1996). Nothing new was added by this decision and the Authority affirmed its decision in Refugee Appeal No. 59/91 Re R (19 May 1992).

[21] The last decision to be considered is Refugee Appeal No. 70387/97 Re MSI (14 May 1997). In that case the submission was that a rehearing could be ordered if the findings of fact made by the Authority at the appeal hearing were erroneous by reason of being based on a fundamental misunderstanding of the applicant's evidence. Reliance was placed on the fact that the Terms of Reference provided that the Authority could regulate its own procedure and conduct hearings in such manner as it thought fit. The Authority held that the power to rehear a case is a significant aspect of jurisdiction and not a matter of procedure. It concluded that it was not competent to add to its jurisdiction and noted that the decision of Browne v Minister of Immigration [1990] NZAR 67, 70 (Eichelbaum CJ) was directly on point. The decision in B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95, 100, 102 (Williams J) was distinguished on the grounds that in that case the matters in issue related to procedure only, not jurisdiction. At p 17 the Authority stated:

"It must be recognized that for an administrative tribunal to find jurisdiction to rehear a case in the absence of express authority to do so would be unusual, to say the least. The precise limits to the finality or functus officio principle are hard to define, as exemplified by the contrasting approaches adopted by the majority and minority judgments delivered in Chandler v Alberta Association of Architects [1989] 2 SCR 848 (SC:Can). But neither the researches of counsel nor those of the Authority have turned up any case which supports the proposition contended for by the appellant, namely that an administrative tribunal which has no express power to rehear and which operates under terms of reference which expressly provide that decisions of the Authority are to be final and without right of appeal or rehearing, can nevertheless rehear a case on the basis that at the first hearing the appellant's evidence was misunderstood."

And later, a p 18:

"The Authority is therefore of the view that the appellant's submission that there is a discretion to rehear an appeal must inevitably fail in the face of the express provisions of the Terms of Reference and in the face of the legal principles which confine administrative tribunals strictly within the bounds of their jurisdiction. There are no policy considerations justifying any other conclusion. The appellant is not without remedy. Decisions of the Authority are amenable to judicial review by way of the prerogative writs, especially certiorari and mandamus. The Judicature Amendment Act 1972 has no application as the Authority does not exercise a statutory power of decision, but the scope of review afforded by a prerogative writ application is no less extensive. See for example Benipal v Ministers of Foreign Affairs and Immigration (High Court, Auckland, A993/83, 29 November 1985, Chilwell J) (Final Judgment) and the more recent decision of Patel v Chief Executive of the Department of Labour [1997] 1 NZLR 102, 108 (Baragwanath J). The fact that the appellant has available the most powerful of remedies to correct the alleged shortcomings of the first appeal hearing emphatically precludes the Authority from succumbing to the temptation to enlarge its jurisdiction beyond its proper bounds."

[22] It is relevant to record that apart from the non-appearance situation, the only other circumstance in which the Authority has found jurisdiction to reopen a case is where the Authority delivers a decision in ignorance of the fact that subsequent to the hearing, further evidence or submissions have been filed but not seen by the decision-maker. See Refugee Appeal No. 70537/97 Re GS (14 August 1997). In these circumstances the Authority will, after hearing from counsel:

(a) Order a rehearing de novo; or

(b) Order a reconvened hearing at which counsel is invited to present the case in the light of the Authority's earlier decision. This may on occasion need to embrace the possibility of the appellant giving further evidence and certainly includes counsel having an opportunity to make submissions on the case at large, including the first decision.

(c)  In other cases, counsel may seek only an opportunity to make submissions as to why the first decision was erroneous with a view to influencing the second decision.

[23] The final Terms of Reference which came into force from 30 April 1998 again expressly addressed the rehearing issue. Rule 5(4) stipulated that:

"The Authority's decision on any matter properly before it shall be final and there shall be no right of appeal or rehearing on the matter...."

Paragraph 17 further stipulated that a decision of the Authority could not be reconsidered by the Authority once conveyed to the applicant. While exceptions were provided for, they are not relevant for present purposes.

[24] It was in this context that the Immigration Amendment Act 1999 was enacted. It is significant that none of the provisions of the new Part VIA of the Immigration Act 1987 nor any of the provisions of the Immigration (Refugee Processing) Regulations 1999 (SR 1999/285) expressly confer power on the Authority to rehear an appeal. This is a matter that will be returned to shortly. First it is necessary to examine the terms of the new provisions.

Jurisdiction to rehear under Part VIA of the Immigration Act 1987

[25] The unique nature of the power to determine refugee status is emphasized by ss 129A and 129C of the Immigration Act 1987. Taken together these sections provide that the jurisdiction of the Authority is statutory and that its powers are drawn from Part VIA of the Immigration Act 1987 alone. This makes it especially difficult to advance an "inherent power" argument. The sections provide:

129A. Object of this Part—

The object of this Part is to provide a statutory basis for the system by which New Zealand ensures it meets its obligations under the Refugee Convention.

129C. Refugee status to be determined under this Part—

(1) Every person in New Zealand who seeks to be recognized as a refugee in New Zealand under the Refugee Convention is to have that claim determined in accordance with this Part.

(2) Every question as to whether a person in New Zealand should continue to be recognized as a refugee in New Zealand under the Refugee Convention is to be determined in accordance with this Part.

In carrying out its functions under Part VIA of the Act, the Authority is required to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention: s 129D.

[26] As in the case of the earlier Terms of Reference, the new legislation expressly provides that a decision of the Authority is final once notified to the applicant. See s 129Q(5):

A decision of the Authority is final once notified to the appellant or other affected person.

The applicant's argument

[27] It is not intended to summarize at length the argument developed over four sets of submissions. In essence, the applicant's argument points to the fact that nowhere in Part VIA is to be found phraseology of the kind employed in the last two Terms of Reference which, it will be recalled, expressly stipulated that there was to be no right of appeal or rehearing. The rehearing of an appeal not being expressly prohibited, so it was submitted, the easier it is to find that there is jurisdiction to rehear. Prayed in aid of this submission is the fact that the Immigration Act 1987, ss 18D(5) and 51(3) expressly forbid both the Residence Appeal Authority and Removal Review Authority from reconsidering an appeal after the decision has been notified to the appellant. The absence of such prohibition in the case of the Authority was said to be significant.

[28] It could also be observed that s 129I(1) and (3), in addressing the decision made at first instance by a refugee status officer, expressly provide that once a decision is made and notified to the claimant, the officer may not reopen the claim for further consideration. There is no such prohibition in the case of the Authority.

[29] In this limited way there is some support in the language of the statute for the applicant's submission that the Authority has jurisdiction to reopen an appeal where there has been, through no fault of the Authority, a fundamental misapprehension of the facts.

[30] The counter-argument to the applicant's case is that the powers the Authority was intended to receive under Part VIA of the Act are conferred in express terms. For example, s 129O(4) allows the Authority to grant leave to appeal out of time. This was a power fashioned by the Authority out of the previous Terms of Reference. See Refugee Appeal No. 59/91 Re R (19 May 1992) at 16 to 22 which now has the imprimatur of statute. But no express power is conferred to rehear an appeal after a full hearing and decision.

[31] The applicant also relies on the fact that by virtue of s 129N(8) and Schedule 3C, para 7, the Authority has the powers of a Commission of Inquiry. Paragraph 7 provides:

Authority to be Commission of Inquiry—

The Authority has the powers of a Commission of Inquiry under the Commissions of Inquiry Act 1908 within the scope of its jurisdiction, and, subject to Part VIA and any regulations made under it, all the provisions of that Act except sections 11 and 12 (which relate to costs) apply to the Authority as if it were a Commission of Inquiry.

[32] Section 4 of the Commissions of Inquiry Act 1908 provides that every Commission has the powers of the District Court, in the exercise of its civil jurisdiction in respect of conducting the inquiry:

4. Commissioners' powers—

(1) For the purposes of the inquiry, every such Commission shall have the powers of a [[District Court]], in the exercise of its civil jurisdiction, in respect of citing parties . . . and conducting and maintaining order at the inquiry.

(2) Repealed.

[33] The submission is that through this route the Authority has the power under Rules 493 and 494 of the District Courts Rules 1992 (SR 1992/109) to order a rehearing. The Rules provide:

493. Power to order rehearing—

(1) A rehearing may be ordered only where, in the opinion of the Court, there has been a miscarriage of justice that justifies a rehearing.

(2) An order under subclause (1) may be made on such terms as the Court thinks fit.

(3) Without limiting the circumstances in which the Court may hold that there has been a miscarriage of justice that justifies a rehearing, it is hereby declared that the Court may hold that there has been such a miscarriage of justice if—

(a) The judgment has been obtained by any unfair or improper practice of the successful party to the prejudice of the opposite party; or

(b) Material evidence has been discovered since the hearing which could not reasonably have been foreseen or known before the hearing; or

(c)  Any witness has been guilty of such misconduct as to effect the result of the hearing.

(4) If it appears to the Court that the miscarriage of justice affects part only of the matter in dispute, the Court may give final judgment as to the part not so affected, and direct a rehearing as to the affected part only:

Provided that no rehearing shall be ordered as to the affected part if the amount of damages awarded in respect thereof can be separately ascertained, and the plaintiff consents to reduce the whole sum awarded to him or her by that amount.

(5) A hearing may be ordered on any question in a proceeding, whatever be the grounds on which a rehearing is applied for, without interfering with the decision upon any other question.

(6) Where there is more than one defendant, a rehearing may be ordered against any one or more of them.

494. Application for rehearing—

(1) Application for a rehearing shall be made by interlocutory application filed within 14 days from the date of delivery of judgment.

(2) The application shall state the circumstances alleged to have resulted in a miscarriage of justice and no other circumstances will be considered by the Court.

(3) The application shall not operate as a stay of proceeding unless the Court so orders.

(4) The Court shall not receive—

(a) Any affidavit of any witness to explain or add to evidence given by the witness at the hearing; or

(b) An affidavit of any facts which might have been given in evidence at the hearing.

(5) Notwithstanding subclause (4), the Court may receive an affidavit from a material witness showing that he or she made a serious mistake in giving his or her testimony.

Discussion

[34] The fundamental flaw in the applicant's argument is that the Authority's powers under the Commissions of Inquiry Act 1908 (and the District Courts Rules 1992) expire once the inquiry comes to an end with the delivery by the Authority of its decision. This is the point made in Browne v Minister of Immigration [1990] NZAR 67 (Eichelbaum CJ). In that case the Deportation Review Tribunal had declined an application for re-hearing on the ground that it did not have the jurisdiction to order one. The Tribunal, like the Authority, is a creature of statute and by virtue of the Second Schedule of the Immigration Act 1987, para 7, is also a Commission of Inquiry:

7. Tribunal to be Commission of Inquiry—

The Tribunal shall, within the scope of its jurisdiction, be deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908, and, subject to the provisions of this Act and of any regulations made under this Act, all the provisions of that Act, except sections 11 and 12 (which relate to costs) shall apply accordingly.

[35] While the terms of para 7 of the Second Schedule are not in the ipsissima verba of Schedule 3C, para 7, the effect of the provisions is the same. They are indistinguishable. The submission in Browne is also indistinguishable from that advanced in the present case, namely that there is jurisdiction to order a rehearing by virtue of s 4(1) of the Commissions of Inquiry Act 1908 read together with the power of the District Court to order a rehearing in civil cases.

[36] The decision of Eichelbaum CJ that there is no power to rehear is accordingly directly in point. For that reason the relevant passage in the judgment bears repetition in full. We have chosen to commence the quote at the beginning of a passage in which the Court identifies the issue as being whether it is possible to order a rehearing after a full initial hearing and decision. That is precisely the issue before us. The answer to the applicant's submission is found at p 69 of Browne:

"The case does not concern, as will be obvious, the situation where it is desired to commence a hearing de novo because for some reason the initial one had to be aborted prematurely. What is in issue is a re-hearing after a full initial hearing and a decision, a procedure permitted, of course as a matter of discretion, under R230 of the District Court Rules 1948. I have a clear view that s 4(1) of the Commissions of Inquiry Act 1908 does not encompass a re-hearing in the last mentioned form. A re-hearing in the sense in which that question arises here is not concerned with "the inquiry". That by definition has been held and completed.

Like many other Tribunals, the Deportation Review Tribunal acquires the statutory powers of a Commission of Inquiry only in a secondary or, one might say, parasitic way. Its powers may be less than those of a Commission of Inquiry because cl 7 of the second schedule is stated to be subject to the provisions of the Act and any regulations made thereunder. Plainly, its powers cannot be greater. It follows that if the appellant's argument is correct, a Commission of Inquiry has the power to order a complete rehearing of the inquiry. That would be absurd. Commissions of inquiry are appointed by the Governor-General to enquire into and report upon specified subject matter, the appointment being by the Governor-General in Council pursuant to s 2 of the Commissions of Inquiry Act 1908, or under the Letters Patent constituting the office of Governor-General. While there is no right of appeal against the findings of a Commission of Inquiry, they are subject to judicial review. See for example Re Erebus Royal Commission [1981] 1 NZLR 618 and Re Royal Commission on Thomas Case [1982] 1 NZLR 252. Upon completion of the task for which they are constituted their authority is spent. It would be remarkable if of their own motion they could resurrect themselves and re-hear the whole subject matter. When one considers the scope and length and the consequent expense, of some of the notable Commissions of Inquiry of recent years the implications are obvious. The absurdity of the consequences destroys the premise of the argument."

[37] As in the present case, the alternative submission advanced in Browne was that jurisdiction to order a rehearing could be found in the power of the Tribunal to regulate its own procedure. This argument also failed. The Court stated at p 69:

"An alternative submission advanced on behalf of the appellant was based on cl 10 of the second schedule of the Immigration Act 1987. Subclause 1 reads:

(1) The procedure of the Tribunal shall, subject to this Act and to any regulations made under this Act, be such as the Tribunal thinks fit.

It was submitted that in regulating its procedure the Tribunal could and should include a power to rehear in appropriate cases. The short answer is that rehearing in the sense here in issue is not a matter of "the procedure of the Tribunal". It is a question of its powers. The power to re-hear a case completely in the present sense is a significant aspect of jurisdiction, not a matter of procedure."

[38] It is to be noted that Browne v Minister of Immigration has been cited with apparent approval in P v ACC [1993] NZAR 416, 420, 422 (Doogue J) and in B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95, 102 (Williams J). In the latter case Browne was distinguished as the power there exercised (to order that evidence be received by way of satellite video link-up) related to procedure, not jurisdiction.

[39] As an inferior tribunal the Refugee Status Appeals Authority is bound by decisions of the High Court where, as here, the ratio decidendi is directly in point. The inescapable conclusion, on the authority of Browne v Minister of Immigration, is that this Authority has no power to rehear a case after a full initial hearing and after a decision has been delivered. No departure from Browne would in any event be possible without producing the result that of two Commissions of Inquiry under the Immigration Act 1987 (the Deportation Review Tribunal and this Authority) one could order a rehearing but the other not. Apart from anything else, this would offend the principle of legal policy that law should be coherent and self-consistent: 44(1) Halsburys Laws of England 4th ed, Reissue, para 1435.

[40] In view of the clear terms of the Commissions of Inquiry Act 1908, s 4(1) and given that Parliament must be presumed to have been aware, when enacting the Immigration Amendment Act 1999, of the interpretation placed on this provision in Browne v Minister of Immigration, there was no need for the Immigration Amendment Act 1999, s 40 to have inserted in Part VIA of the Act a provision specifically addressing the power of the Authority to grant a rehearing after a full initial hearing and after a decision has been delivered. The fact that the last two Terms of Reference made such provision is explicable on the basis that under those instruments the Authority was not given the powers of a Commission of Inquiry and the Terms of Reference had to make explicit, in different language, the jurisdictional bar. The statutory prohibition on a refugee status officer reopening a claim (s 129I) is explicable on precisely the same basis. In short, given the past prohibition on the Authority rehearing an appeal and further given the statutory prohibition now imposed on refugee status officers, it is hardly surprising that the provisions introduced by the Immigration Amendment Act 1999 did not give to the Authority express jurisdiction to rehear. The decision in Browne makes it clear that the consequence of conferring on the Authority the powers of a Commission of Inquiry was to remove any possibility of implying a power to reopen a decision after a full hearing. In the circumstances, the provisions relating to the Residence Appeal Authority and Removal Review Authority are of no assistance.

[41] This conclusion is reinforced by the fact that Part VIA of the Act specifically addresses the question of reopening cases. It is therefore the more difficult to find, by a process of "interpretation", additional circumstances in which a case can be reheard. The Act permits a case to be reopened after a final decision has been delivered, but only by the submission of a second refugee application and only if prescribed criteria can be satisfied. The fact that these criteria are narrow is not an argument in favour of increasing the jurisdiction to rehear. On the contrary, it inhibits the implication of a power to rehear in circumstances beyond those permitted by the statute. Some background information is necessary.

[42] The original Terms of Reference of March 1991 were silent on the question whether a second refugee application could be lodged. The second Terms of Reference of April 1992 explicitly prohibited the Authority from considering claims to refugee status where the claimants were appealing to the Authority on a second occasion. Paragraph 7 provided:

"The Authority shall not consider claims to refugee status where the claimants are appealing to the Authority on a second occasion, or on any occasion in respect of a case at any stage decided by the Interdepartmental Committee on Refugees."

[43] The Terms of Reference which came into force on 30 August 1993 reversed the position and specifically allowed second applications, but only if it could be shown that since the original determination, circumstances in the claimant's own country had changed to such an extent that the further claim was based on significantly different grounds to the original claim. Under Part I, the Refugee Status Branch was given jurisdiction at first instance to consider a second or further refugee application provided the criteria specified by paragraph 3 were met. Paragraph 3 provided:

"A person who has previously had a claim to refugee status finally determined by the Refugee Status Section or the Authority has no right to have a further claim accepted for consideration by the Refugee Status Section, unless since the original determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim."

[44] Under Part 2 of the Terms of Reference, the Refugee Status Appeals Authority had jurisdiction to hear an appeal where the Refugee Status Branch had concluded that the criteria stipulated by paragraph 3 had not been met. Paragraph 5(1) of the Authority's Terms of Reference conferred on the Authority power:

"(f) To determine an appeal, by a person who has made a further claim to refugee status, against the decision of the RSS not to accept the claim for consideration because, since the original determination, circumstances in the claimant's home country have not changed to such an extent that the further claim is based on significantly different grounds to the original claim."

[45] Almost immediately, the refugee determination system became the victim of abuse by the repeat submission of utterly meritless refugee claims. At one point some 63% of all new appeals received by the Authority were second or third appeals. The level of abuse is described in Refugee Appeal No. 70951/98 (5 August 1998) at 19:

"The first "second appeal" by a claimant from the Punjab was heard by the Authority on 30 September 1994 and determined on 28 October 1994. See Refugee Appeal No. 2245/94 Re SS (28 October 1994). The appeal was successful. However, once the pattern of abuse was detected, it became rare for second appeals to succeed. Most failed on credibility grounds.

Regrettably, the abuse continues down to the present time and on a considerable scale. For example, in the period from 1 April 1995 to 31 March 1996 some 63% of all new appeals were second or third appeals: Refugee Appeal No. 70002/96 Re BS (7 May 1996) at 8 and see also Refugee Appeal No. 70387/97 Re MSI (14 May 1997) at 5. Of all second Punjabi appeals heard and decided by the Authority from October 1994 to 30 April 1998, and there are approximately 300 of such cases, only eight have succeeded. In percentage terms, the success rate has been 2.67%. There have been in the same period 21 third appeals (all unsuccessful) and even a fourth appeal (unsuccessful).

Abuse of the appeal system is not the sole prerogative of Indian nationals. Second or third appeals have been received from:

·        Iranians (37, of which one was successful)

·        People's Republic of China (14, of which none were successful)

·        Pakistan (4, of which none were successful)

·        Peru (3, of which none were successful)

·        South Africa (2, of which none were successful)

·        Bulgaria (2, of which none were successful)

·        Russia (2, of which none were successful)

·        Nigeria (1, which was unsuccessful)

It is significant that most of the refugee claimants who have lodged second (or subsequent) claims have been represented by immigration consultants. A particularly egregious example of the resubmission of a claim is Refugee Appeal No. 70476/97 Re SS (15 April 1997). Unfortunately, members of the legal profession do not have an entirely unblemished record: Refugee Appeal No. 70002/96 Re BS (7 May 1996) at 8-11."

[46] Almost contemporaneously, on 20 August 1998, the Immigration Amendment Bill was introduced. Ultimately, the Immigration Amendment Act 1999 was enacted and the statute materially came into force on 1 October 1999: Immigration Amendment Act 1999, s 1(3).

[47] It must be presumed that at the time the Immigration Amendment Act 1999 was enacted Parliament was aware of the chronic level of abuse to which the refugee determination system had been subjected to and in particular, the crippling number of cases in which disappointed claimants sought to reopen their cases. The short point is that given the level of abuse to which the refugee determination system has been subjected in the past there is a strong argument that the Authority was not intended to have a power to rehear an appeal after a full hearing and decision. Had a power to rehear been intended, it would have been a simple enough matter for the statute to have so provided, but it did not. In the circumstances, the fact that unlike the Refugee Status Appeals Authority, both the Residence Appeal Authority and Removal Review Authority are expressly prohibited from rehearing a case is hardly of significance. It is more relevant that the new ss 129J and 129O(1) strictly limit the circumstances in which a subsequent claim to refugee status can be brought. The conclusion the Authority draws is that the power to rehear has by necessary implication been excluded by the Immigration Act 1987.

[48] Our conclusion is that as a matter of statutory interpretation, it is clear beyond doubt that the Authority was not intended to have, and does not in fact possess, the power to order a rehearing after a full initial hearing and decision.

[49] It is now possible to turn to the argument based on the New Zealand Bill of Rights Act 1990.

THE NEW ZEALAND BILL OF RIGHTS ACT

[50] Two submissions were advanced by the applicant under the New Zealand Bill of Rights Act 1990:

(a) Browne v Minister of Immigration [1990] NZAR 67 was decided before the enactment of the New Zealand Bill of Rights Act 1990 and was therefore not binding on the Authority.

(b) The New Zealand Bill of Rights Act 1990, ss 8 & 9 require Part VIA of the Immigration Act 1987 to be interpreted so as to allow the Authority to rehear an appeal.

[51] Cited in support of these arguments was a line of Canadian cases, beginning with Kaur v Canada (Minister of Employment & Immigration) (1989) 64 DLR (4th) 317 (FC:CA) (Heald, Mahoney and Desjardins JJ.A) where it was held that a refugee adjudicator had jurisdiction under the Canadian Charter of Rights and Freedoms to rehear a refugee claim notwithstanding an acknowledged inability to reopen the case under the Immigration Act 1976 (Can). Mrs Kaur, under duress from her husband, had withdrawn her refugee claim. Later, after escaping from him, she sought a rehearing. Also cited to the Authority was Mattia v Canada (Minister of Employment and Immigration) [1987] 3 FC 492 (FC:TD) (McNair J) where the applicant was mentally ill during an inquiry which had resulted in the making of a deportation order. McNair J held that the adjudicator had jurisdiction under the Charter to reopen the inquiry. Both decisions were later referred to with approval in Grewal v Canada (Minister of Employment and Immigration) (1991) 85 DLR (4th) 166, 171 (FC:FC) (Heald, MacGuigan and Linden JJ.A). However, all of these decisions predate R v Seaboyer [1991] 2 SCR 577 (SC:Can) and we have not heard argument as to how far they are still good law in Canada.

[52] Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[53] Unlike the New Zealand Bill of Rights Act, the Charter is the supreme law of Canada and any law inconsistent with the provisions of the Charter is of no force or effect. See s 52(1) of the Constitution Act 1982 (Can) which provides:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[54] The reasoning process of the majority in Kaur (Heald and Mahoney JJ.A) at 325-327 was that Mrs Kaur's rights under s 7 of the Charter had been infringed by the exclusion order which was made after the refugee claim had been withdrawn. While s 35(1) of the Immigration Act 1976 (Can) did not allow the case to be reopened, the adjudicator had jurisdiction under s 52(1) of the Constitution Act 1982 (Can) to consider the request to reopen. The adjudicator had a duty not to apply the limitations contained in the Immigration Act provisions to the extent that the legislation contravened Mrs Kaur's rights.

[55] While the Canadian decisions cited do not articulate how the right to life provisions of s 7 of the Charter are engaged domestically when in the expulsion situation the anticipated breach will be in the receiving state, the principle is nevertheless clearly established in the jurisprudence of the European Court of Human Rights. See Soering v United Kingdom (1989) 11 EHRR 439, paras 85-91; Cruz Varas v Sweden (1991) 14 EHRR 1, paras 69-70; Vilvarajah v United Kingdom (1991) 14 EHRR 248, paras 107 & 108; Chahal v United Kingdom (1996) 23 EHRR 413, para 74; Ahmed v Austria (1996) 24 EHRR 278, paras 39-41. Each of these decisions concerned Article 3 of the European Convention on Human Rights which provides:

"No-one shall be subjected to torture or to inhumane or degrading treatment or punishment."

[56] In the Soering case, which concerned extradition, the European Court of Human Rights addressed the question whether extradition would engage the responsibility of the sending State under Article 3. The Court gave affirmative answer at paras 88 and 91:

"88 ...The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhumane or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3. That the abhorrence of torture has such implications is recognized in Article 3 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that "no State Party shall...extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture". The fact that a specialized treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention. It would hardly be compatible with the underlying values of the Convention that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court's view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.

91 In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. Insofar as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."

[57] In other cases the European Court of Human Rights has applied this principle to expulsion, and in particular the expulsion of refugee claimants: Cruz Varas v Sweden (1991) 14 EHRR 1, paras 69-70; Vilvarajah v United Kingdom (1991) 14 EHRR 248, paras 107 & 108; Chahal v United Kingdom (1996) 23 EHRR 413, para 74; Ahmed v Austria (1996) 24 EHRR 278, paras 39-41. As noted by van Dijk & van Hoof in Theory and Practice of the European Convention on Human Rights (3rd ed 1998) at 324, the reasoning is based on the idea that a returning State is itself violating Article 3 if its act of extradition or expulsion constitutes a crucial link in the chain of events leading to torture or inhuman treatment or punishment in the State to which the person is returned. Therefore, in such a case the State expelling or extraditing him must be held indirectly responsible for the imminent treatment in that other State, regardless of whether that treatment is to be expected from public authorities or from non-State actors, regardless of how great the efforts of the Government have been to prevent such treatment and regardless of whether the latter State is or is not a party to the Convention. The case-law shows that an applicant will have to advance strong arguments to convince the Convention organs that there really is a danger of a treatment contrary to Article 3 after he or she will be deported.

[58] While there may be an issue as to whether the Soering principle has application in the extradition context (see Kindler v Canada (Minister of Justice) [1991] 2 SCR 779 (SC:Can) and Poon v Commissioner of Police [2000] NZAR 70, 76 (Baragwanath J)), we are prepared to assume for the purposes of the present case that the principle identified by the European Court of Human Rights does allow the applicant in the present case to advance an argument that because of the potential engagement of ss 8 and 9 of the New Zealand Bill of Rights Act 1990, and indeed of New Zealand's obligations under the Refugee Convention and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Authority is under a duty, applying s 6 of the New Zealand Bill of Rights Act 1990, to interpret (if at all possible) the Immigration Act 1987 in such a way to find that there is jurisdiction to rehear an appeal. We refrain from commenting on whether there is in fact any evidence to support a claim under ss 8 and 9 of the New Zealand Bill of Rights Act 1990 and note that s 8 is more narrow in its application than s 7 of the Charter.

[59] Section 6 of the New Zealand Bill of Rights Act provides:

"6. Interpretation consistent with Bill of Rights to be preferred—

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning."

[60] The applicant's argument does not, we believe, overcome two fundamental difficulties.

[61] First, whereas the Canadian Charter of Rights and Freedoms prevails over any inconsistent statutory provision (and this is the ratio of Kaur), the position in New Zealand is to the contrary. Section 4 of the New Zealand Bill of Rights Act 1990 provides:

4. Other enactments not affected—

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

(b) Decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any provision of this Bill of Rights."

[62] Second, if as a matter of statutory interpretation it is clear that the Authority has no power under the Immigration Act 1987 to rehear an appeal after a full initial hearing and decision, neither s 6 of the New Zealand Bill of Rights Act nor the Canadian nor the European Court of Human Rights jurisprudence is of assistance.

[63] The narrow issue for determination is whether the provisions of Part VIA of the Immigration Act 1987 positively exclude the power to rehear after a full initial hearing and decision. For the reasons given earlier, we are of the view that they do. In essence those reasons are:

(a) The express power to rehear conferred on the Authority by the District Courts Rules 1992 via s 4(1) of the Commissions of Inquiry Act 1908 comes to an end once a final decision is given by the Authority: Browne.

(b) The statutory provisions specifically address the question of reopening a claim to refugee status. A second refugee application is permitted in narrow circumstances. It is not possible for the Authority, by a process of statutory interpretation, to substantially redraft the provisions of the 1999 amendment Act to enlarge the aperture prescribed by the Act.

(c)  The legislative history (including the successive Terms of Reference) also shows that no general power to rehear was intended.

(d) There are sound policy reasons for not "finding" a power to rehear. The Authority has a responsibility not to jeopardize the fair and expeditious disposal of refugee claims. The refugee determination system has in the recent past been dangerously imperiled by the lodging of meritless repeat applications. This warning cannot be ignored.

[64] This approach is, we believe, consistent with that adopted in Quilter v Attorney-General [1998] 1 NZLR 523 (CA) Richardson P, Gault, Keith and Tipping JJ; Thomas J dissenting), especially per Tipping J at 572 line 40; Reille v Police [1993] 1 NZLR 587, 592 (Eichelbaum CJ); Tapena v Police (1993) 10 CRNZ 614, 616 (Williams J); Birch v Ministry of Transport (1992) 9 CRNZ 83, 85 (Fisher J).

Recent Australian, Canadian and English case law

[65] The Authority's conclusion is also consistent with the trend of overseas case law which does not favour the implication of a power to rehear refugee claims.

[66] In Australia it has been held that the Refugee Review Tribunal has no power to reopen or reconsider a decision: Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, 443-444 (French J) and Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532, 541-547 (Goldberg J). In the latter case the Court considered determinative the fact that (as in New Zealand) a further refugee application could be made, albeit in restricted circumstances. The functus officio principle has been more recently discussed in Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 (Beaumont, Heerey and Finklestein JJ). See especially Heerey J at 77 and Finklestein J (with whom Beaumont J agreed) at 84-87.

[67] The view taken in Canada is also that a refugee decision cannot be reopened. This is because there are no indications in the Immigration Act 1985 (Can) that the legislature intended that a decision be reopened. Nor is there specific statutory grounding for the creation of a rule that would alter the substantive law of functus officio as far as refugee claimants are concerned: Chaudhry v Canada (Minister of Employment & Immigration) (1994) 25 Imm LR (2d) 139, 149 (FC:TD); Iqbal v Canada (Minister of Citizenship & Immigration) (1996) 33 Imm LR (2d) 179, 185 (FC:TD) and Zelzle v Canada (Minister of Citizenship & Immigration) (1996) 34 Imm LR (2d) 24, 36-38 (FC:TD). In addition, as the decision in Grewall v Canada (Minister of Employment and Immigration) (1991) 85 DLR (4th) 166 (FC:FC) itself shows, a contextual application of the requirements of fundamental justice militates against insisting on an unrestricted obligation under s 7 of the Charter to rehear refugee claims. See for example Chaudhry at 152-156.

[68] More recently the English Court of Appeal comprising Peter Gibson, Laws and Sedley LJJ in Akewushola v Secretary of State for the Home Department [2000] 2 All ER 148 (CA) was called on to decide whether the Immigration Appeal Tribunal had the power to rescind its own decision. The facts were that Ms Akewushola was granted leave to appeal to the Immigration Appeal Tribunal and a hearing date allocated. By now she was pregnant and the hearing date happened to be her expected date of confinement. Her representatives applied for an adjournment of the hearing, but because of an administrative error the tribunal was not made aware of this. No representative attended on her behalf, even though no adjournment had yet been granted. The tribunal, as it was entitled to do, proceeded in her absence. In a decision published a month later the appeal was dismissed. Sometime afterwards it came to the tribunal's notice that the adjournment application had been entirely overlooked. Accordingly the chairman of the tribunal purposed to rescind his own tribunal's determination on the ground that it would in all probability have granted the adjournment had the application been placed before it. He directed a fresh hearing before a differently constituted tribunal. When that new tribunal convened it ruled that a chairman sitting alone did not have the power to rescind his own tribunal's decision and order a fresh hearing. On judicial review the issue was whether a full tribunal can rescind its own or another tribunal's decision. The emphatic answer was that there was no such jurisdiction. While the English decision to some degree turns on the language of the Immigration Appeals (Procedure) Rules 1984 (SI 1984/2040), Sedley LJ, in delivering the judgment of the court stated at 153j:

"For my part I do not think that, slips apart, a statutory tribunal - in contrast to a superior court - ordinarily possesses any inherent power to rescind or review its own decisions. Accept where the High Court's jurisdiction is unequivocally excluded by privative legislation, it is there that the power of correction resides."

With that statement we would respectfully agree.

Miscellaneous

[69] The applicant also relied on s 27 of the New Zealand Bill of Rights Act 1990. We do not see how this provision can assist the applicant's case. While the Authority is undoubtedly under an obligation to observe the principles of natural justice, the remedy for any failure to discharge this obligation is for judicial review proceedings to be taken in the High Court, a point recognized by s 27(2) of the Act itself. Beyond that it is now clearly established that the superior courts of New Zealand have jurisdiction to provide a public law remedy for breaches of the New Zealand Bill of Rights Act: Simpson v Attorney-General [Baigent's case] [1994] 3 NZLR 667, 676-677; 691-629 (CA).

[70] Finally, the applicant prayed in aid s 129D of the Immigration Act 1987 which provides that in carrying out its functions under Part VIA of the Act, the Authority must act in a manner that is consistent with New Zealand's obligations under the Refugee Convention. We do not see how this provision assists in any way the determination of the question whether the Authority has jurisdiction to rehear an appeal. The section cannot be construed so as to give the Authority a jurisdiction which it so obviously does not have.

CONCLUSION

[71] The Authority finds that it has no jurisdiction to rehear an appeal after a full hearing and decision. In view of this finding, the application is dismissed.

[72] This finding does not, however, leave the applicant without remedy. As mentioned, all decisions of the Authority are amenable to judicial review under the Judicature Amendment Act 1972. While such proceedings must be brought within three months after the date of the decision, the High Court can allow further time where there are special circumstances: Immigration Act 1987, s 146A.

[Rodger Haines QC]

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