Malkit Singh v. Attorney General

Court of Appeal, Wellington

Judicial review - interim order - discretion to grant relief - effect of right of appeal - whether full de novo hearing before Refugee Status Appeals Authority sufficient to deny interim relief - New Zealand Bill of Rights Act 1990, s 27 New Zealand Bill of Rights Act 1990, s 23(1)(b) - access to a lawyer - whether detained under any enactment - whether refugee claimant denied right to consult and instruct a lawyer - denial of refugee claimants or immigrants of prompt access to a lawyer.

The plaintiff arrived in New Zealand on 2 September 1999 shortly before the commencement of the APEC Conference held in Auckland that month. He was not in possession of a passport or other appropriate travel documents and immediately indicated an intention to apply for refugee status. He was taken into custody under the Immigration Act 1987, s 128. The following day a lawyer instructed to act for the plaintiff was denied access to the plaintiff. At the airport the plaintiff completed an application for refugee status and a two page statement was taken from him despite the absence of the lawyer. On the same day he was refused a visitor's permit and a warrant of commitment was issued by the District Court on 4 September 1999.

The lawyer first saw the plaintiff on 6 September 1999 at Mt Eden Prison. That same day a refugee status officer advised that it was intended to interview the plaintiff on 8 September 1999. The plaintiff requested a postponement for six weeks to obtain evidence and to prepare his case. This request was declined and the interview took place at prison under protest. On 9 September 1999 an interview report was sent to the plaintiff's lawyer and a response requested by 5.00pm on Friday, 10 September 1999. The plaintiff sought an extension of four weeks to reply as he wished to obtain medical reports. An extension was granted to 5.00pm on Monday, 13 September 1999, after the weekend of the APEC Conference. Due to the time constraints the plaintiff filed no submissions. On 14 September 1999 a decision was made by a refugee status officer declining refugee status on the grounds that the claimed fear of persecution was not well-founded and in addition, there were concerns as to the credibility of certain of the plaintiff's claims. The plaintiff appealed to the Refugee Status Appeals Authority (RSAA) which scheduled the appeal for hearing on 30 September 1999 but this fixture was subsequently postponed until 20 October 1999 in view of the plaintiff's application to the High Court for an interim order restraining the RSAA from hearing the appeal.

The plaintiff's proceedings in the High Court claimed that the New Zealand Immigration Service (NZIS) had acted contrary to natural justice in declining to grant refugee status, that he had been unlawfully denied access to a lawyer, that he had had insufficient time to prepare his case and had been declined a temporary permit contrary to published immigration policy for refugees. The Minister of Immigration denied there was any breach of natural justice and in the alternative, submitted that any such breach would be cured by the de novo hearing which was about to take place before the RSAA.

In a judgment delivered on 2 November 1999 Randerson J, while concluding that the plaintiff had a clearly arguable case of denial of natural justice in relation to the decision of the refugee status officer declining refugee status, nevertheless refused to grant an interim order directing the RSAA not to proceed with the appeal hearing. On appeal to the Court of Appeal it was submitted that denial of an interim order to enable the substantive application for review to be heard and determined before the appeal to the Authority (1) deprived the plaintiff of access to a genuine two stage hearing and effectively meant that there was not a two stage hearing but a one stage hearing; (2) made the first stage hearing immune from review; (3) deprived the plaintiff of his lawful right guaranteed to him under the New Zealand Bill of Rights Act 1990, s 27 to have the determination of the NZIS judicially reviewed. If his appeal was heard and dismissed by the RSAA (principally on lack of credibility grounds brought about by the conduct of the NZIS) then he would be immediately removed to India. His right of review, therefore, was an empty right which had been removed from him by the actions of the NZIS; (4) permitted the NZIS in their denial of natural justice to disadvantage a refugee claimant to the extent that his credibility was damaged by the actions of the NZIS which they had taken in bad faith; (5) compelled an appellant to lodge an appeal, not by election but by compulsion.

Held:

1.   The contention inherent in the first three stated grounds, that it is not open to deny the opportunity for review by the courts of a process even where the process will be repeated by an expert and independent tribunal, is contrary to authority and to common sense. The preferable approach is that of overall consideration. The court should first identify the error, or errors, which are said to vitiate the first instance decision. The second step is to examine what effect the appeal has had on the error, or errors, found at the first stage. If the appeal has in substance removed the prejudice which would otherwise have resulted to the complaining party, the court should exercise its discretion against relief, because overall no continuing prejudice from what went wrong at first instance can be shown. Where there has been review by way of a rehearing, which is said to have cured any earlier problems, the onus is on the applicant for judical review to demonstrate continuing prejudice. It is only if there is continuing prejudice that the first instance error, or errors, have continuing relevance (see Judgment para 15).

Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385, 436 (CA) followed and applied.

2.   There is no call for a compartmentalised approach to the two stages of consideration of applications for refugee status. The whole scheme of the legislation indicates the adoption of a process designed to ensure overall the fair consideration of applications in accordance with international obligations. There is nothing in the legislation indicating any need to regard the process before the refugee status officer as requiring special consideration separate from the scheme as a whole (see Judgment para 17).

3.   Nothing in the New Zealand Bill of Rights Act 1990, s 27 requires any different approach. In practical terms the appellant will suffer no prejudice. Nothing gave concern that the RSAA will be unfairly influenced on issues of credibility, particularly since, as the judge at first instance pointed out, the appellant will be able to refer to the view expressed by that judge that arguably there was a denial of natural justice by the Immigration Service. There was also assurance to be drawn from a recent decision of the RSAA referred to in argument in which in somewhat similar circumstances, the RSAA plainly reached its own view on credibility in favour of that particular appellant (see Judgement para 18).

Observations:

To the extent that the argument for the appellant proceeded on an assumption that persons arriving at an airport and applying for refugee status are, even before a decision is made to permit or deny entry, entitled to the right accorded by the New Zealand Bill of Rights Act 1990, s 23(1)(b), it may be overstated (see Judgment para 7).

Appeal dismissed.

Other cases mentioned in the Judgment

Refugee Appeal No. 71684/99 (29 October 1999)

Counsel

R J Hooker for the appellant

M A Woolford for the respondents

Solicitors for the plaintiff: Vallant Hooker & Partners (Auckland)

Solicitors for the first and second respondents: Crown Solicitor (Auckland)

[Editorial note: Both the decision of the Court of Appeal and the decision of Randerson J at first instance are significant judgments. The decision of Randerson J is reported as Malkit Singh v Attorney-General [2000] NZAR 125 and is also headnoted on the High Court page of this website.

There is no indication in the judgment delivered by the Court of Appeal as to whether reference was made by counsel to the Immigration Act 1987, s 140(4) which imposes an independent obligation on those holding a detainee in custody to inform the detainee of the detainee's right to contact a solicitor or counsel and to take reasonable steps to enable the solicitor or counsel to visit the detainee and to communicate with the detainee in private.]