“CV” v Immigration and Protection Tribunal

• Jurisdiction: New Zealand
• Judge: Duffy J
• Judgment Date: 18 March 2015
• Neutral Citation: [2015] NZHC 510
• Docket Number: CIV-2014-404-001421 CIV-2014-404-001427 CIV-2014-404-001430
• Court: High Court
• Date: 18 March 2015

In the Matter of and the Immigration Act 2009

and

In the Matter of an appeal under s 245 of the Immigration Act 2009

Between

“CV”

Appellant

and

The Immigration and Protection Tribunal

First Respondent

Refugee and Protection Officer

Second Respondent Proceedings continued over

In the Matter of the Immigration Act 2009

and

In the Matter of an appeal under s 245 of the Immigration Act 2009

Between

“CW”

Appellant

and

The Immigration and Protection Tribunal

First Respondent

Refugee and Protection Officer

Second Respondent

Under the Judicature Amendment Act 1972

In the Matter of a decision made by the Immigration and Protection Tribunal pursuant to Section 198(1) of the Immigration Act 2009

and

In the Matter of an application for Judicial Review

Between

“CW”

Applicant

and

The Immigration and Protection Tribunal

First Respondent

Refugee and Protection Officer

Second Respondent

Under the Judicature Amendment Act 1972

In the Matter of a decision made by the Immigration and Protection Tribunal pursuant to Section 198(1) of the Immigration Act 2009

and

In the Matter of an application for Judicial Review

Between

“CV”

Applicant

and

The Immigration and Protection Tribunal

First Respondent

Refugee and Protection Officer

Second Respondent

[2015] NZHC 510

CIV-2014-404-001421

CIV-2014-404-001423

CIV-2014-404-001427

CIV-2014-404-001430

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Counsel:

D Mansouri-Rad for the Appellants/Applicants

M G Coleman for the Respondents

JUDGMENT OF Duffy J

1 The applicants are two brothers who each received adverse decisions on their respective appeals to the Immigration and Protection Tribunal (“the Tribunal”) regarding a refusal to grant them refugee status. They now come to this Court seeking to engage the next steps that are available to them under the Immigration Act 2009 (“the Act”).

2 The second respondent, the Refugee and Protection Officer, takes an active role in opposing the applicants. The first respondent, the Tribunal, has taken no active part in the proceedings before this Court.

3 The applicants' cases raise procedural and substantive issues of some complexity. The procedural issues go to the jurisdiction of this Court to entertain the applicants' plea for redress. The substantive issues are equally serious; they concern the applicants' rights to manifest their religious beliefs, and to be free from being coerced to conform to religious beliefs which they have renounced. In this regard, the second respondent has conceded that if the applicants can overcome the procedural barriers it contends they face, then leave should be granted to them on a more limited basis than they seek to run one of their substantive arguments before this Court.

Jurisdiction

4 The proceedings that the applicants have filed in this Court are an attempt to appeal and to judicially review the Tribunal's decisions refusing their appeals against decisions to refuse their applications for refugee status. Since 19 June 2013, leave of this Court is required to bring either an appeal against, or a judicial review of such decisions. 1

5 In these proceedings, the applicants have sought leave of this Court to appeal and to judicially review. However, the second respondent argues that the appeal is out of time. If it is, that will preclude the Court from dealing with the appeal as the Act makes it clear that this Court has no power to extend time for bringing an appeal

once the initial time limit has expired. 2 The first question, therefore, is whether the appeal is still live. If it is not, the second question is whether the applicants can pursue their challenges to the first respondent's decision in the context of the judicial review proceedings.

Appeal time limits

6 Section 245 of the Act provides for appeals to this Court against decisions of the Tribunal:

245 Appeal to High Court on point of law by leave

• (1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

• (2) Every appeal under this section must be brought—

  • (a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or

  • (b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.

• (3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

• (4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—

  • (a) confirm the decision in respect of which the appeal has been brought; or

  • (b) remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or

  • (c) make such other orders in relation to the matter as it thinks fit.

• (5) Subject to subsection (2), every appeal under this section must be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act, including any ancillary general practices and procedures developed under section 260.

7 Key points of note in s 245 are that appeals to this Court are by leave and not as of right. 3 Secondly, the provision expressly stipulates a time limit for when the appeal is to be brought, 4 but not for when the leave application is to be brought. Thirdly, appeals to this Court are to be dealt with in accordance with the procedural rules of this Court, subject to necessary modifications to ensure conformity with s 245. 5 Finally, applications for extensions of time in which to bring an appeal must be made before the expiry of the specified time limit. 6

8 As appeals under s 245 are appeals subject to leave of the Court, the relevant procedural provision of the High Court Rules is r 20.3, which provides:

20.3 Application for leave to appeal to court

• (1) An application for leave to appeal in a case when an enactment provides that an appeal to the court against a decision may not be brought without leave must be made—

  • (a) to the decision-maker or, as the case requires, the court; and

  • (b) within 20 working days after the decision is given.

• (2) An application for leave to appeal must be made within 20 working days after the refusal of the decision-maker if—

  • (a) an enactment provides that the court may grant leave to appeal to it against a decision after the decision-maker refuses leave; and

  • (b) the decision-maker refuses leave.

• (3) The appeal must be brought—

  • (a) by the date fixed when the decision-maker or the court grants leave; or

  • (b) within 20 working days after the grant of leave, if the decision-maker or the court does not fix a date.

• (4) Any date fixed by the decision-maker is to be treated as a determination for the purposes of rule 7.50.

• (5) The decision-maker or, as the case requires, the court may, on application, extend the period for bringing an application under this rule, if the enactment under which the appeal is sought to be brought—

  • (a) permits the extension; or

  • (b) does not limit the time prescribed for making the application.

• (6) A party may apply for the extension of a period before or after the period expires.

• (7) An application under this rule must be made on notice to every party affected by the proposed appeal and, if made to the court, must be made by interlocutory application.

• (8) In this rule, leave includes special leave.

9 Key points of note for r 20.3 are that the rule provides for a two-stage approach, with specific time limits imposed for making an application for leave to appeal, and then for the appeal itself, if leave to appeal has been granted. Unless there is provision to the contrary in the enabling enactment, extensions of time for bringing an application under r 20.3 can be given before or after the specified time limit.

10 Under r 20.5, the commencement of time for appeal runs from when the decision is delivered. The date of the decision is excluded from the time limit. 7

11 Given the serious consequences that can flow from getting a time limit or some other step in the appellate process wrong, it might be expected that time limits and the like would be clearly stated and so be readily ascertainable. However, compliance with time limits can be tricky. Attorney-General v Howard8 is a case in point where the Attorney-General fell foul of an appellate time limit which mandated

that the appeal be filed and served on all parties within a specified period. In that case, two of the parties (one of whom was the tribunal whose decision was to be appealed) were not served with the notice of appeal within the mandated time limit. As there was no power to extend the time limit, the appeal was out of time. Accordingly, it failed for that reason. 9

12 The appellate provisions in issue here are similar to the legislation in Howard insofar as s 245(2) mandates the time for bringing an appeal under that section and restricts the Court's power to extend the time for doing so to those occasions where the extension is sought before the expiry of the...