Sk v The Immigration and Protection Tribunal
| Jurisdiction | New Zealand |
| Judge | Venning J |
| Judgment Date | 02 March 2015 |
| Neutral Citation | [2015] NZCA 26 |
| Docket Number | CA694/2014 |
| Court | Court of Appeal |
| Date | 02 March 2015 |
[2015] NZCA 26
Randerson, Winkelmann and Venning JJ
CA694/2014
IN THE COURT OF APPEAL OF NEW ZEALAND
Application for leave to bring judicial review proceedings against a decision of the Immigration and Protection Tribunal (the Tribunal) declining to offer the applicant an oral hearing and dismissing, on the papers, his appeal against a decision of the refugee and protection officer declining to grant him refugee or protected person status — Tribunal wrote to applicant and told him that it would decide his appeal at an oral hearing and that he would be advised when and where the hearing would take place — later wrote and said that having reviewed the file, it considered his appeal might be prima facie manifestly unfounded and that it could be determined without an interview — second letter was not delivered until after date for response was passed as applicant was away from his home — whether the HC wrongly treated the Tribunal’s decision not to hold an oral hearing as one involving an absolute discretion under s233(3)(b)(i) Immigration Act 2009 (The Tribunal must provide an oral hearing unless the tribunal considers that the appeal or other contention of the person is prima facie manifestly unfounded or clearly abusive) — whether the first letter created a reasonable expectation of an oral hearing.
R S Pidgeon for Applicant
S K Earl for Second Respondent
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A The application for leave to bring review proceedings in the High Court is declined.
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B The applicant is to pay costs for a standard application on a Band A basis with usual disbursements.
(Given by Venning J)
SK seeks leave under s 249 of the Immigration Act 2009 (the Act) to bring review proceedings against a decision of the Immigration and Protection Tribunal (the Tribunal) given on 28 May 2014. 1 The Tribunal determined not to offer SK an oral hearing and dismissed, on the papers, his appeal against a decision of the refugee and protection officer declining to grant him refugee or protected person status. Justice Faire declined SK's applications for leave to appeal and for judicial review to the High Court. 2
SK does not pursue the application for leave to appeal. The present application is directed at the review. The first respondent abides the decision of the Court. The application is opposed by the second respondent.
The applicant is a Bangladeshi national. He claims to have become interested in and active in the Islami Chatra Shibir, the student wing of the Jamaat-e-Islami party, in 1997-1998 when he was at a secondary college in Chittagong. He says he took part in a number of protest activities for less than a year. He then gave up his involvement with the group because he was not sufficiently motivated to continue. His membership was subsequently revoked.
SK says that when at university in Dhaka he saw a pro-Shibir student beaten on one occasion and heard about the same happening at other residential halls.
Around 2003 SK briefly supported Hizb-ut-Tahir, an Islamic political party, but stopped on the advice of friends who considered it dangerous.
In 2009 SK completed his university education and left Bangladesh for New Zealand.
SK was initially granted a student visa to study business. He was then granted a one year graduate job search visa which expired on 13 August 2011. On
September 2011 SK's application for a graduate work experience visa was declined. He has been unlawfully in New Zealand since that date.
On 26 October 2011 SK lodged a humanitarian appeal against liability for deportation on the basis of exceptional circumstances, specifically the particular financial hardship of his family in Bangladesh. The Tribunal declined his appeal on 15 November 2012. On 19 June 2013 Woodhouse J dismissed an application for leave to appeal the Tribunal's decision, finding the proposed grounds of appeal did not amount to errors of law. 3 SK applied for leave to appeal that decision to this
Court but the application was later abandoned.
SK then made a claim to refugee or protected person's status on 2 September 2013. The basis of his claim before the Tribunal was that he had become more religious in his views in recent years and that his mindset, views and opinions would mark him out as pro-Jamaat. He claimed there had been an escalation in violence against Jamaat supporters.
In its decision made on the papers, the Tribunal accepted SK's account as credible but declined his appeal on the basis that: 4
The application for leave
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(a) SK is not, and has never been, a high-ranking member of Jamaat or its student wing, Shibir. There is no evidence to substantiate a hardening of political (as opposed to religious) fervour or commitment to Jamaat politics.
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(b) The reported instances of human rights abuses against Jamaat members and supporters are comparatively small in number. The
statistics do not show a significant risk of political violence. Over 99 per cent of Jamaat supporters were not the victims of political violence in 2013. -
(c) There are no substantial grounds for believing that SK would be in danger of being subjected to torture, arbitrary deprivation of life or cruel, inhuman or degrading treatment if deported.
The appeal and application for leave are pursued on the grounds:
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(a) The Tribunal's failure to provide SK with notice it was proceeding to a hearing on the papers was a breach of natural justice and an incorrect application of “absolute discretion” to s 233(3)(b)(i) of the Act.
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(b) The High Court did not refer to information provided by SK in support of his claim, particularly newspaper and video links. It is implied that the High Court did not review them.
Section 249(1C) of the Act provides:
(IC) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to —
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(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
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(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
The purpose of s 249 is to limit judicial review to issues that could not be dealt with by an appeal or that are of general or public importance or for any other reason ought to be submitted to the High Court for review. 5
Although Mr Pidgeon's submissions were in part directed at criticism of the High Court judgment, as he also noted, this appeal is essentially a rehearing of the application for leave to bring review proceedings. The focus is properly on the actions of the Tribunal.
SK's argument the Tribunal acted in a procedurally unfair way is based on the submission that he did not receive notice from the Tribunal that it intended to rely on s 233(b)(i) to deal with his application without an oral hearing. He says he lost the opportunity to respond.
In determining to proceed without an oral hearing the Tribunal relied on s 233(3):
The Tribunal must provide an oral hearing in the case of an appellant or affected person currently or previously recognised as a refugee or a protected person, or a claimant for such recognition, unless —
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(a) the person was interviewed by a refugee and protection officer (or a refugee status officer under the former Act) in the course of determining the relevant issue at first instance or, having been given an opportunity to be interviewed, failed to take that...
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