Santokh Singh, Applicant, v. Refugee Status Appeals Authority and Minister of Immigration (M 1224/93)IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
|15, 16 December 1994
|Ms V Shaw for lst Repondent
|Ms N Pender for 2nd Repondent
|Ms M A Roche for the Applicant
|9 February 1994
FINAL JUDGMENT OF SMELLIE J ON CAUSES OF ACTION 8, 9 AND 10
INTRODUCTIONI gave judgment in this matter in respect of causes of action 1 to 7 inclusive on 22nd October last In that judgment I upheld the constitutional validity of the First Respondent and defined the status of its decision. The procedural fairness and reasonableness of that decision now falls for consideration. When adjourning the matter at, the conclusion of four days of hearing on lst October last I issued a Conference Minute allowing, the Applicant to file a third-amended statement of claim and providing a timetable for the filing of further pleadings, including affidavits. My Minute also covered the possibility of the Applicant transcribing part of the record of what transpired at the hearing as recorded on a retained tape. It appears, however, that the Applicant decided against advancing material from that source in respect of these remaining three causes of action.
THE AMENDED PLEADINGSThe third amended statement of claim alleges in para 13 of the same that immediately prior to the hearing of the appeal the Secretary of the First Respondent handed to Counsel for the Applicant a copy of an article from the Economist-published on 22nd May 1993 and a copy of the Refugee Status Appeal Authority's (RSAA), decision in case no 163/92. Further, in paras 14 and 15 of the pleading it is alleged that the Secretary did not state to Counsel that the Authority would be relying on the article and the decision but that in fact during the course of the hearing the Authority addressed questions to the Applicant arising out of the matters referred to in the article and the decision. On that basis the eighth cause of action pleads that not only was the Applicant not informed of the use to be made of the article and decision but additionally he was not provided with a fair opportunity to consider this addition material, produce evidence in rebuttal, or prepare himself to answer questions in relation to it. As a consequence the contention is that the Applicant was deprived of a fair hearing. The ninth cause of action alleges that the Authority's decision was unreasonable and the tenth contends that the Authority wrongly concluded that the Plaintiff could "without infringement of his basic rights to civil, political and social economic human rights, live permanently in places in India other than his village in Punjab." The First Respondent filed a statement of defence to/the third amended statement of claim. I interpolate to say that the First Respondent played no part in the earlier hearing relating to causes of action 1 to 7 inclusive but, as presaged in my judgment of 22nd October, consequent upon the third amended statement of claim the Authority itself carried the argument on this second part of the case. Ms Pender for the Minister substantially adopted Ms Shaw's submissions.The statement of defence to the amended pleading admitted paras 13 and 14 and provided a qualified admission in respect of para 15. So far as the three causes of action that are to be dealt with in this judgment, namely 8, 9 and 10, the statement of defence simply denied the relief claimed.
THE FIRST RESPONDENT'S PRACTICE NOTEThe circumstances under which the RSAA was set up are discussed in my earlier judgment in this matter. At the hearing before me in late September, early October 1993, there was produced as an exhibit Practice Note No 2 of 1991, issued by the First Respondent on 2nd July 1991. The opening paragraph refers to the setting-up of the Tribunal and the following numbered paragraphs then deal with procedure:
1. All appeals will be by way of rehearing de novo. The Appellant and the Immigration Service will be at liberty to present not only the material on which the decision of the Refugee Status section of the Service was based, but any additional material which may assist the Authority. In the event of either the Appellant or the Immigration Service wishing to introduce new material, details of it should be provided by one to the other three clear days prior to the hearing. All Appellants will be entitled to receive a copy of the same Immigration Service file as that supplied to the Authority.
4. The hearing will be inquisitorial rather than adversarial in nature so that the Authority will question Appellant and witnesses. However the Authority recognises that on occasions the need for cross-examination of a witness by an Appellant or by a representative of the Immigration Service may arise and will consider requests from those involved to conduct cross-examination.
5. In general the hearing will take the following order:-
(a)Opening submissions by the Appellant or his or her Counsel or representative
(b)A prepared and typed Statement of the evidence of the Appellant, and of each of his or her witnesses (if any) may be presented to the Authority and interpreted if necessary. Alternatively the Appellant may simply adopt his or her statement made to the Refugee Status Section.
(c)The Appellant and each witness will then be questioned by Members of the Authority.
(d)After questioning the Appellant's Counsel or Representative will be able to re-examine the Appellant or witness to clarify any matters arising from the Authority's questions.
(e)The Authority will then invite the Immigration Service to offer evidence and submissions and in particular may request the Service for information as to the state of affairs in the country of nationality of the Appellant.
(f)The Appellant or his or her Counsel will then have the opportunity to make a final submission on the case.
(g)The Authority will reserve its decision and provide a written decisions as soon as practicable.
9. It should be understood that once fixtures for hearings are made, adjournments will rarely be granted, due to the difficulty which the Secretary to the Authority will have in arranging a quorum of the Authority to be available."
EVENTS PRIOR TO THE HEARING OF THE APPEALPursuant to the leave granted the Applicant has caused to be filed two further affidavits. One by Mr Ashok Kumar Sharma, Counsel appearing for the Applicant before the First Respondent, and the other by the Applicant's brother, Balihar Singh, who is a permanent resident of New Zealand. Mr Sharma is a Barrister who practises in South Auckland in both the criminal and immigration fields. He estimates 10% of his practice involves immigration cases. He appeared for the Applicant on 6th July 1993 when his appeal was heard and that was perhaps the tenth time that he had appeared before the RSAA. He had actually lodged the Appellant's appeal in June of 1992 and subsequently received a full copy of the Department's file pursuant to the provision of the Practice Note. He was also advised of the necessity of providing in advance in writing the statement of the Appellant. The hearing was actually adjourned from 15th June to 6th July and then from 2 pm on the day of hearing to 3 pm. Mr Sharma attended with his client, the Applicant's brother, and also Mr Sharma's wife. He says that they arrived at approximately 2.50 pm. He then explains in his affidavit in paras 12, 13 and 14, what happened after his arrival and before the commencement of the hearing. This evidence was not challenged or contradicted. The paras read as follows:-
"12.Shortly after I arrived a staff member of the Secretary for the Authority approached me and handed me two documents. One is an article from the "Economist" magazine published on 22nd May 1993 entitled "India-Peace at Last in the Punjab" and the other was a copy of the decision of the Authority, Refugee Appeal No 163/93 RFS (28 April 1993) ("the decision"). The person that handed me the documents told me to read the articles to my client. I was provided with no explanation as to the significance of the documents and no reason why I should read them to the Applicant.
13. I am blind and cannot read. My wife, the Applicant, his brother and I, were standing outside the door of the room where the hearing was to take place in five or ten minutes. My wife started to read the articles to me in English. First she read the article from the Economist to me. I then translated the article to the Applicant in Hindi line by line. The Applicant speaks very little Hindi but as I do not speak Punjabi this was the best I could do I believe the Applicant was able to understand the gist of the article.
14. My wife then started to read me the decision. She read the first half of the decision to me and then because we were almost out of time she read the concluding pages. I did not have time to translate the decision to the Applicant but I explained to him in Hindi what the decision was about."The Chairperson of the Authority hearing the Applicant's appeal on 6th July 1993 filed a memorandum with the Court. I interpolate to say that no objection was taken by the Applicant to the Memorandum being flied, rather than the information therein being conveyed by way of affidavit. I have therefore received it but my decision to do so does not establish a precedent. Prima facie I should have thought that such information should be placed before the Court by way of affidavit but that is a matter which can be addressed on some other occasion when a decision on the point is required. In the Memorandum the Chairperson records his function on the day and names the other Member of the Authority who sat with him. He then provides the following information in paras 2 and 3 of the document:-
"2.With respect to matters raised in the eighth cause of action in the third amended statement of claim, my recollection is that I asked the Secretary of the Authority to provide Mr Sharma with a copy of decision no 163/92 Re F. S some 15 minutes prior to the hearing. This was a relatively recent decision which dealt with the relocation issue as it relates to the Punjab. This is a critical issue in many appeals which Counsel appearing before the Authority would normally address in their submissions. Decision no 163/92 is note the first decision of the Authority on the issue but because it was relatively recent I was concerned out of fairness to be sure that Mr Sharma was aware of it. There is no system of reporting the Authority's decisions so that the Authority's Secretariat provides copies of all its decisions to practitioners on request.
3. An article from a recent issue of the "Economist" was also given to Mr Sharma. A copy of the article is annexed. I recall that I had only recently seen the article myself. For this reason I also arranged for it to be given to Mr Sharma because it is the practice of the Authority to make available to practitioners prior to a hearing any newly received country of origin information. Such information could be in the form of Government reports, such as the US State Department Country Reports, reports from a non-Governmental orgianisation such as Amnesty and other human rights groups, as well as a wide range of newspaper and magazine articles. Again, the Secretariat provides copies of country and origin information held by the Authority to practitioners on request." (emphasis added)
THE SUBSTANCE OF DECISION 163/92 AND THE ARTICLEDecision 163/92 was provided to me along with the article consent as a hand up from the Solicitor-General at the earlier hearing. The decision concerns another Sikh who left the Punjab because of alleged harassment by separatists and the police, relocated in Delhi, and then left there because the separatists had tracked him down and he once again found himself having to submit to police interrogation. The Authority found that he had a well founded fear of persecution if he remained in the Punjab or New Delhi, but it reached the conclusion that he could relocate elsewhere in India without difficulty. At page 6 of the decision the Authority then addressed more generally the issue of relocation s follows:-
"The ability of terrorist groups to track down persons in parts of India outside the Punjab has been examined by this Authority on a number of occasions and in Refugee Appeal No 18/92 Re S.J. (5 Auo,2. 1992) the Authority re-examined those previous decisions and the information available to the Authority from those cases and reached the conclusion that the militant groups of the Punjab lacked the competence to track down potential victims throughout India. The Authority in that case went on to review also the question of whether or not Sikhs and other Punjabis are able to successfully resettle elsewhere in India as there have been claims that populations of other States are hostile to Sikhs and other Punjabis. In that case the Authority also reached the conclusion on information available to it as a result of hearing a large number of cases, that Sikhs and other Punjabis are able to resettle successfully in parts of India outside the Punjab. The Authority has recently received a copy of a report "India: outside Punjab" compiled by the Research of the Immigration and Refugee Board In Ottawa, Canada, dated December 1990. This report had been furnished to Counsel for the Appellant prior to the hearing. The Canadian report does not specifically deal with the ability of a terrorist to track down potential victims wherever they may go in India, but does deal generally with the condition of Sikhs outside the Punjab. It is clear from the report that the activities of militants have spread outside the borders of the Punjab States, certainly to neighbouring states and on occasions to other cities. There have been sporadic incidents of violence in cities as far away as Bombay and Calcutta involving relatively small numbers of Sikhs. Contrary to the Appellant's belief these cities do have substantial Sikh communities. The estimates for the Sikh population in Bombay, for example, vary between 100,000 and 200,000. It does appear that in respect of prominent Government officials and politicians whose whereabouts are normally easy to trace, militants have been able to target them on occasions. But for persons in the Appellant's situation there does not appear to have been fresh information since our decision In Re S.J. (supra) which alters our view that the militant groups lack the competence to trace all their potential victims or recruits throughout India." The reference in the above paragraphs to decision no 18/92. Re S.J. (.5 August 1992) while recording that it reviews the earlier cases and reaches certain conclusions, does not alert the reader to the fact that the decision is so emphatic on the issue of relocation that an onus is effectively placed upon subsequent appellants to bring fresh evidence or fail on that Point. The decision occupies 18 pages. The result of the appeal is recorded at page 9. In the other nine pages the Authority sets out to "summarise the jurisdiction we have developed in this area". At pages 17 and 18 the final four paragraphs of the decision read as follows:-
"From this brief review of approximately twelve months jurisprudence concerning fears of persecution from terrorist or militant groups in the Punjab, it can be seen that the Authority's decisions conform very much to the principles enunciated in Refugee Appeal No 11191 Re S (5 September 1991). Excluding exceptional cases, it should now be possible for an intending appellant to make a realistic assessment of the likely outcome of an appeal. It is to be hoped that after the first instance hearing by the Refugee Status Section asylum seekers will not persist with an appeal that has no realistic prospect of success. To our knowledge, no appeal based on fear of persecution by terrorists operating in the Pubjab or the neighbouring states has been successful on the facts we have heard so far. This is because we have found that in a large and populous country such as India, both Sikhs and Hindus are able to access effective protection either in different parts of the Pubjab or in different parts of India. As at 30 June 1992, of all cases heard by the Authority involving appellants from India, the only successful cases (1 1.32%) have been those involving state agents of persecution. Those cases involving non-state agents of persecution (66%) have had a success rate to date of zero per cent. We emphasise that the foregoing represents a general summary only of the jurisprudence to date. If conditions in India or the Pubjab change, or new evidence bearing on the issues comes to hand, we will, of course, always be prepared to re-evaluate the situation. Furthermore, no case is ever identical on its facts. We recognise that as conditions in the country or origin change, so too must the assessment of the particular case on appeal. We recently considered this very issue in Refugee Appeal No 90192 Re RRF (11 June 1992) 7-9, a case involving a Sri Lankan national of the Tamil race who feared persecution at the hands of the JVP (a non-state agent of persecution). In dismissing that appeal we referred to new evidence concerning the strength of the JVP. That evidence established that the JVP had become far weaker than when we allowed an appeal ten months earlier in Refugee Appeal No 9191 Re AMR (27 August 1991)." So far as the Economist article is concerned, it is said to have been provided by the Economist's New Delhi correspondent, although the name and qualifications of that correspondent are not disclosed. The article appeared in the May 22nd 1993 issue of the Economist. The thrust of the article is that, whereas a year earlier the terrorists were in control in the Punjab in the towns after dark and in the countryside at all times, that position had changed. In addition the article contended that whereas previously the police were demoralised, now their numbers have been approximately doubled and they have been provided with firearms and transport and other facilities that have enabled them to aggressively combat the terrorists. In addition it is recorded that the Indian army had sealed the border with Pakistan, thereby making it harder for terrorists to buy weapons and seek sanctuary. The was on to state that as a result things have improved dramatically in the Punjab with people again going out at night and enjoying themselves, land values rising and high percentage turnouts for municipal and village elections whereas previously the terrorists had inhibited electors from casting their votes.
THE USE MADE OF THE DECISION AND ARTICLE IN THE APPELLANT'S CASEThe decision of the Authority, handed down on 23rd July 1993, records first the Appellant's case which is not so dissimilar from, the situation of the Appellant in decision 163/92. Mr Singh had belonged to a religious organisation in the Punjab from 1969 to 1980. Its objectives were to promote Sikhdom. The Applicant was away from the Punjab in the Lebanon up to 1988 and in the mean time the organisation he had belonged to had, in his view, become tainted with terrorism. At least that was how the Indian Government tended to view it. Shortly after the Applicant returned to his family farm in the Punjab he was visited by armed men demanding food. A week or two later another group returned which included one man from the previous group. They demanded that he rejoin the Shiromani group. He said that he would, although in fact he did not want to, and agreed to start with them in two or three weeks time. He did not, however instead he left the farm property and has never returned to it. He has left a wife and children behind in the Punjab. He entered New Zealand in September of 1989 on a visitors permit and remained after it had expired. He was first located in January of 1991 by the Immigration Department and interviewed, and from there the matter has moved rather slowly. However a removal warrant was issued in March of 1991 and it was at that stage that the Appellant first applied for refugee status and it took from then until 6th July 1993 for that application to be processed through the Immigration Department and the appeal to be heard before the Appeal Authority. The decision then went on to identify the issues to be addressed and then to assess the Applicant's case as an Appellant. And at page 10 of it decision the Authority said:-
"The Authority also considers that it is reasonable for Appellant to relocate. He appears to have saved a reasonable amount of money, in Indian terms, in the past and advised the Authority that he had recently sold property in India and obtained his share of that. He is a reasonably worldly person and has been able to relocate and establish himself successfully, both in the Lebanon and in New Zealand. While he states that he only has limited Hindi and English, this has obviously not caused him problems in 1989 when he spent a considerable amount of time in Delhi. The most up to date statement of the Authority's findings in relation to relocation in other parts of India is contained in Refugee Appeal no 163/92 Re F.S. (28 April 1993). A copy of this decision and also a copy of the recent article from the "Economist" published 22nd May 1993, entitled "India-Peace at last in the Punjab" was also put to the Appellant. This article had been noted by the Authority and states that a situation of relative peace has returned to the Punjab in 1993." The judgment then goes on to Make certain quotes from the article and concludes by declining to accept Mr Singh's claim that protection is absent in other parts of the Punjab or in other States of India. The Authority then concluded that whilst the Applicant had a bona fide subjective fear which was well founded in respect of his home village, there was no reason why he could not live happily and safely by relocating elsewhere in other parts of the Pubjab or in the other States of India. The Authority's conclusion is summarised as follows on pages 11 and 12 of the decision:-
"in summary, our conclusions are:
1. The Authority has serious doubts as to the credibility of this appellant but is prepared to give the benefit of the doubt to the appellant.
2. The appellant does hold a bona fide subjective fear of returning to India.
3. The harm feared by him is of sufficient gravity to constitute persecution.
4. That harm is for a Convention reason, namely the appellant's imputed political beliefs.
5. The fear is well-founded, only in relation to the precincts of his home village. Outside of these precincts the appellant does not have a well-founded fear and there is no real chance that the harm feared by him will occur were he to relocate.
6. It cannot be assumed that the authorities in India will fail in their duty to protect the appellant from the harm feared.
7As the appellant can access effective protection in some part of his country of origin, and it is not unreasonable for him to do so, he cannot be said to be at risk of persecution.For these reasons we find the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is declined. The appeal is dismissed." Of the hearing Mr Sharma says (and again this evidence was not challenged or contradicted) in paras 15 to 21 inclusive of his affidavit:-
"15.The hearing commenced at 3 pm. I did not request an adjournment. I now believe an adjournment would have been appropriate but at the time I did not realise that the Authority would be relying (in the two documents that had been handed to me at the last minute. I believed that the Authority would only be considering the documents contained in the file that had been forwarded to me on 14th May 1993.
16. `During the hearing the Authority put matters to the Applicant that had been raised in the two documents. I do not believe the Applicant was adequately prepared to have these matters put to him. Had I received prior notice that the Authority intended to rely on these documents I would have gathered evidence in rebuttal of the documents.
17. The Economist article alleged that relative peace had returned to the Punjab in 1993. I believe that there were in-existence articles and reports which conflict with the viewpoint expressed in the Economist article. Through my discussions with members of the Punjabi Sikh community based in Auckland I am aware that a large number of Punjabi Sikhs do not believe that peace has in fact returned to the Punjab. Had I had the chance I would have gathered evidence in the form of conflicting articles and affidavits to counter the Economist article which I do not believe accurately represents the current situation in the Punjab.
18. I did not have the chance to adequately prepare my client's case on this economist article and I believe the Applicant's case was severely prejudiced as a result.
19. I refer to the Authority's decision referred to as exhibit C in the affidavit of Mr Paul Coates. I refer in particular to page 10 where the Authority relies on both documents. On the decision, as a basis for the Authority's view on relocation of Sikhs in other parts of India and on the "Economics" article as evidence that relative peace has returned to the Punjab in 1993.
20. I believe that the handing of the documents to me ten minutes prior to the hearing and the subsequence reliance on the documents by the Authority during the hearing and in their decision constituted procedural unfairness.
21. The Applicant is not familiar with court room situations and his natural anxiousness was exacerbated by what happened. The Applicant was very nervous before the hearing because he understood that if his appeal was unsuccessful he would be denied refugee status. I believe that having regard to his state of mind before the hearing it was difficult for him to understand the information he was presented with or to rebut it. It was difficult for him to concentrate in the circumstances."
THE RSAA'S RELIANCE UPON THE EARLIER DECISIONS AND NOTICE IN THAT REGARDAt the close of submissions on 17th December last I gave leave to Counsel to file further written submissions on an aspect of the case which I identified in a Minute issued at the time as follows:-
"If on the issue of whether or not Sikhs can relocate in India outside the Pubjab the Authority made findings of fact in decisions 18/92 and 163/92, was the Authority as composed on 23.7.1993 for Mr Singh's appeal entitled to take those findings into account? And if so, was it obliged to give notice of its intention to do so?" Miss Shaw's submissions opened with the following two paragraphs:-
"1AN examination of the case law reveals few examples of cases which deal with an Authority expressly taking into account findings of fact made in earlier decisions although there is a reasonable body of case law that discusses the general principles concerning the extent to which members of a specialist tribunal can make use of their own expert knowledge on a particular subject.
2ONE case, directly on point is R v Secretary of State for the Home Department ex parte Roj Singh [19921 Imm AR 607 which concerns a decision by the Secretary of State to refuse asylum to a Sikh from the Punjab. On the applicant's behalf it was argued that he had been deprived, of a fair hearing before the Secretary of State in that he had not been given all the information upon which the Secretary of State had relied in forming an opinion as to the conditions in the country. Pill J, at page 610, stated:-
"I am not able to accept that it is arguable that there is an obligation upon the Secretary of State, having in formed himself about the conditions, to disclose the whole of the information he has considered to an applicant for asylum".The issue was not discussed further nor does the decision record the nature of the information that the Secretary of State had referred to." Later in her submissions Ms Shaw referred to Flick, Natural Justice (2nd ed) (1984). In chapter 5 of this work the author discusses ²The Use of Extra-Record Facts and Official Notice". The 2nd paragraph reads:-
"The present problem is to determine the extent to which a tribunal may take notice of its own prior experience and so, in effect, transfer the burden of proof to a party wishing to controvert the correctness or reliability of facts the subject of official notice. On the one hand, the insistence upon proof in every case of that which has become obvious to the tribunal will only lead to an increase in the size of records, delay and expense. On the other hand, if there is one uncontrovertible proposition of general application it is that a party must be given an opportunity to be heard and that this opportunity encompasses the right to know and to meet the evidential material of the other side. It is the reconciliation of these two seemingly divergent principles that creates the difficulty-one must strike a balance between administrative expertise and procedural fairness." Later in the same chapter at page 105, under the heading "Notice and Rebuttal" the author states:-
"As noted previously, central to any fair adjudication is the general principle that a tribunal cannot proceed to take into account when reaching its decision any fact which has not been brought to the attention of the parties, or at least a person acting on behalf of a party: Re Godden [19711 3 All ER 20. Any material fact must be disclosed and an opportunity accorded to the parties to comment on the correctness of the fact or its relevance to the case presently to be decided. That which official notice seeks to accomplish in the present context is simply the transfer of the burden of proof so that a tribunal can in effect tell the parties that, unless they prove the contrary, it will regard those facts the subject of official notice as being correct." Having discussed the above proposition and other case law, Ms Shaw, in para 13(d) of her submissions, when summarising the principles which emerge, said:-
"(d)Where a tribunal intends to make use of specific identifiable facts within its knowledge in substitution of or in order to supplement the evidence, rather than to simply assist in evaluating evidence, it should disclose the nature of the material being relied on so that the parties have the opportunity to consider and comment on it."Counsel's final submission, however, in para 17, was as follows:-
"17IN the present case it is submitted that there was no aspect of the applicant's evidence which was specifically rejected by means of reliance on factual findings in earlier cases, including the summary of the Canadian report in Decision No 163/92 which was by and large consistent with the fears expressed by the appellant. Rather the Authority evaluated the appellant's evidence but was not persuaded that he could not safely relocate as he claimed."Ms Roche for the Applicant submitted on the basis of her researches:-
"(c)That the Refugee Authority can, in determining an appeal apply facts which it has determined and found in other cases or information which has come to its notice as a result of its own inquiry to any subsequent appeal providing such facts and information is (sic) properly disclosed to an appellant to enable a fair hearing to take place.The issue, in counsel's submission, is whether the manner in which the decision 163/92 was given to counsel could be said to be proper notice to afford the fair hearing. It is counsel's submission that the manner in which the material was provided to counsel at the hearing, and the content of the material resulted in the failure to provide a fair opportunity to a proper hearing." Ms Roche submitted that an article by Prof. J A Smillie. "The Problem of "Official Notice";,Reliance by Administrative Tribunals on the Personal Knowledge of their Members" [19751 Public Law 64 provides the best exposition of. the law in this area. The author commences his article, by observing that this issue has received but scant attention in Commonwealth jurisdictions to date. At page 67, having recognised the undesirability of imposing evidentiary restrictions on administrative tribunals, he said:-
"It is also necessary to ensure that the parties to an administrative proceeding are given a fair opportunity to address submissions to all the crucial issues, and to produce all the relevant material within their possession. The obvious solution is to permit administrative tribunals to rely for any purpose upon relevant material of any kind within the personal knowledge of the I r members provided any such material which will play an important part in the final decision is disclosed to the parties in advance and they are given a fair opportunity for discussion and rebuttal. The text then proceeds to observe that this "obvious... requirement of prior disclosure is a fundamental procedural safeguard against arbitrary decision-making..." Later in the article when summarising his conclusions, at page the author says:-
"The object of the disclosure rule in this context should be to afford the parties an opportunity to know and attempt to rebut any facts, opinions or principles within or based on the personal knowledge of an(a) the parties cannot reasonably anticipate reliance upon such knowledge, and reliance without disclosure would take them by surprise; (b) the knowledge can be embodied in a statement and communicated to the parties; and (c) the parties could conceivably be able to present further submissions to rebut, qualify or explain the knowledge relied upon. In any particular fact situation, whether or not material within the knowledge of an adjudicator should be disclosed for rebuttal in order to satisfy these requirements can usually be determined by reference to two basic variables: (1) whether the facts upon which the adjudicator proposes to rely (either directly or as the basis for an expert opinion or general proposition) are capable of being attributed to specific identifiable sources, and (2) the purpose for which that knowledge is used by the adjudicator." In further elaboration of her submission that no fair opportunity was given to rebut the predetermined view of the Authority on the question of relocation Ms Roche quoted from the judgment of Lowe J in R v Milk Boar (1944] VLR 186 at page 188:-
"It is one thing to ask for submissions before a determination has been arrived at; quite another to invite submissions why a determination already arrived at should not be adhered to. Nor, in the circumstances of this case, do I think the difference is a mere matter of form. I think that in substance no proper opportunity was given to the prosecutor of meeting the evidence introduced by the Board before its decision was arrived at. What then is the effect of this omission? In my judgment it so affects what has been done, that in the language cited above, the ostensible determination of the Board is not a real performance of the duty imposed by law on the tribunal, and the manner in which the Board has proceeded makes its actual determination nugatory and void." As can be seen from the above brief summary of the submissions made on either side, Counsel were in agreement on the necessity to give notice when earlier findings of fact are to be relied upon, but they disagreed on the adequacy of the notice in this case and the way in which the earlier conclusions on relocation were applied to It.
NOTICE INADEQUATE: NO FAIR OPPORTUNITY TO REBUTI deal first with a submission by Ms Shaw to the effect that Mr Sharma, as Counsel who had previously appeared before the Authority, ought to have known of the earlier decisions and, in particular, Appeal No 8/92, RS. I S. (5 August 1992). I am unable to accept that submission. As the Chairperson of the Tribunal hearing Mr Singh's appeal acknowledged towards the end of para 2 of his memorandum:-
"There is no system of reporting the Authority's decisions so that the Authority's secretariat provides copies of all its decisions to practitioners on request." I interpolate to say that I was informed during the course of the hearing that as a result of this case arrangements have now been made for the Authority's decisions to be available for research at the Auckland District Law Society Library in the High Court. I consider it would have been clearly unfair and unreasonable in the circumstances to have expected Mr Sharma to be aware of the August 1992 decision. And the Chairperson of the Authority recognised that fairness required that at least he should have the later April 1993 decision brought to his attention. It would have been so easy for the Authority to have arranged for Mr Sharma to receive that material, (together with an appropriately worded covering memorandum) at the time that he received the complete copy of the file of the Refugee Status Section of the New Zealand Immigration Service. Had that been done Counsel would have had fair notice that the onus was on the Appellant to persuade the Authority to depart from its earlier conclusions on relocation. It is clear beyond argument in my judgment also that providing copies of the April 93 decision and the article from the Economist ten to fifteen minutes before the hearing, could not amount to adequate notice. First because the full significance of the previous decisions on relocation is not apparent from decision 163/92. It is only when the earlier fuller guideline decision 18/92 is analysed, that the enormity of the task confronting the Appellant if he seeks to dissuade the Authority from its earlier conclusions becomes apparent. Secondly, all three Counsel appearing before me advised that it took them approximately ten minutes to read both the decision and the article. A careful reading of both items took me rather longer. Be that as it may, however, and leaving aside for the moment Mr Sharma's blindness and the Appellant's limited grasp of English, a mere reading of the documents would not be enough. The decision in particular would have to be analysed and its significance in terms of the way the case was to be presented, assessed. Mr Sharma says he was given the documents ten minutes before the hearing. The Chairperson of the Authority on the day says that he asked the Secretary to provide the information to Counsel "some fifteen minutes prior to the hearing". Either way the time for consideration was grossly inadequate, and although Mr Sharma concedes that he did not apply for an adjournment, I should have thought in the circumstances, when the Authority became aware upon him entering his appearance, (if the fact was not already known to it) that he was blind, some inquiry should have been made as to whether he had had adequate time to consider and discuss with his client the information which out of "fairness" had been provided to him before the hearing. I am quite satisfied that the notice was inadequate and that no fair opportunity was accorded the Applicant or his advisers to deal with the material. In G.D.S. Taylor, Judicial Review, para 13.33, under the heading "Adjournment", the author states:-
"The right to put one's own side of the case is pointless if insufficient time, or no time, is allowed to prepare: to analyse the case to be met, to research, to find evidence and to put one's ideas and submissions together." My conclusion is that in all the circumstances the rules of natural justice were not observed on this occasion. And that as a consequence the Appeal Authority's decision must be quashed. I wish to add, however, as was pointed out by the Privy Council in Re Erebus Royal Commission  NZLR 662, that when a decision is overturned because of noncompliance with the rules of natural justice, those who made it should not be regarded as singled out for criticism. (see page 685 between lines 33 and 50). The First Respondent is directed to reconsider Mr Singh's appeal after he has been given adequate notice of all material that is to be relied upon by the Authority in reaching its decision. It would be appropriate if on this further hearing, the composition of the Authority is different from that which dealt with the matter in July of 1993.
THE REMAINING CAUSES OF ACTION AND COSTSIn view of my conclusion that the decision must be set aside for failure to comply with the rules of natural justice it is not necessary for me to consider further the allegations of unreasonableness and incorrect factual conclusion alleged in the other two causes of action. I indicate, however, that if they had been the only bases upon which the decision was challenged I doubt that they would have been sufficient to justify an order for review. So far as costs are concerned, although the application has succeeded, it failed in respect of the challenge to the constitutional legitimacy of the RSAA which, as the record shows, took three days to argue and was the rather more demanding aspect of the matter. In the circumstances there will be no order for costs either way.SolicitorsVallant Hooker & Partneres for Applicant Meredith Connell, Crown Solicitor, for First and Second Respondent
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