High Court Cases 

High Court Auckland M No.1640/99; [2000] NZAR 125
13 October 1999; 2 November 1999
Randerson J

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 - Immigration Act 1987, s 140(5)

Judicial review - Detention - Whether detention in custody pending determination of refugee status lawful - Immigration Act 1987, s 128

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

Refugee Status Appeals Authority - Nature of appeal - Whether appeal by de novo hearing

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.

Held: 

1    The plaintiff was "detained under any enactment" for the purposes of the New Zealand Bill of Rights Act 1990, s 23 soon after he was questioned at the airport by immigration officers.  There was a prima facie case that the refusal to allow the plaintiff to consult and instruct a lawyer without delay on 3 September 1999 was a breach of s 23.  However, the plaintiff was accorded access to a lawyer at the time of the 8 September 1999 interview and the prima facie breach of s 23 on 3 September 1999 was not sufficiently material by itself to warrant the grant of relief.  However, the denial of prompt access to a lawyer for refugees or immigrants detained by the NZIS could not be condoned and should not occur (see paras [22] & [23]).

2    The plaintiff was placed in custody pursuant to the Immigration Act 1987, s 128 because a policy decision was taken to adopt that course (presumably for security reasons) in the case of persons arriving from overseas without appropriate travel documents in the period leading up to the APEC Conference.  It was difficult to understand, however, why the plaintiff could not have been granted a visitor's permit under the usual policy after the APEC Conference ended on 14 September 1999.  He would then have been at liberty to prepare his application for refugee status at the more leisurely pace ordinarily accorded to persons claiming such status upon their arrival in New Zealand.  The plaintiff had established a clearly arguable case of denial of natural justice in relation to the decision of 14 September 1999 declining refugee status (see paras [26], [28] & [29]).

3    The relevant principles when considering the effect of an appeal hearing upon a prior breach of natural justice may be summarized as follows:

(a)    An appeal following a first instance hearing or decision does not normally oust the jurisdiction of the court on review to redress breaches of natural justice or other administrative law error by the body at first instance and does not necessarily cure any prior breach.

Reid v Rowley [1977] 2 NZLR 472, 481 (CA) and Calvin v Carr [1980] AC 574, 595-596 (PC) applied.

(b)    But the existence of an appeal may be a factor relevant to the exercise of the discretion to grant relief.

Reid v Rowley [1977] 2 NZLR 472, 483-484 (CA); Calvin v Carr [1980] AC 574, 596 (PC) applied; Wislang v Medical Practitioners' Disciplinary Committee [1974] 1 NZLR 29, 44 applied.

(c)    In considering the exercise of discretion, much will depend upon:

(i)      The gravity of the error or breach at first instance.
(ii)     The likelihood that the prejudicial effects of the error may also permeate the appeal hearing.
(iii)    The seriousness of the consequences for the individual.
(iv)    The nature and extent of the powers of the appeal body.
(v)     Whether the appellate decision is reached only on the basis of the material before the original decision-maker or by way of rehearing de novo.

(d)    The circumstances may range from a situation where the parties may be taken to have assented to the appellate hearing as superseding the hearing at first instance and to have accepted the fairness of such a procedure (for example, by the rules of a social or sporting club) to those where there is a right to expect nothing less than a fair hearing in both instances.

Calvin v Carr [1980] AC 574, 592, 593 (PC) applied.

(e)    It may be that, in the end, recent case law indicates that the courts are increasingly favouring an approach based in large part on an assessment of whether, in all the circumstances of the hearing and appeal, the procedure as a whole satisfied the requirements of fairness.

(f)    The mere existence of review proceedings alleging invalidity at the first instance stage does not deprive the appeal body of the jurisdiction to hear the appeal.

Slipper Island Resort Limited v No. 1 Town and Country Planning Appeal Board [1981] 1 NZLR 143, 145 (CA) applied.

(g)    For the purposes of granting interim relief to restrain the RSAA from proceeding with the appeal, the plaintiff must demonstrate under the Judicature Amendment Act 1972, s 8 that the relief sought is necessary to preserve his position pending the substantive hearing of his application for judicial review.

(See para [30])

4    As to the nature of an appeal to the Refugee Status Appeals Authority:

(a)    All appeals before the RSAA are conducted by way of hearing de novo and all issues of law, fact and credibility are at large.

(b)    The Authority makes a decision on the facts as they stand as at the date of determination of the appeal and is not confined to the facts as they stood (or as they were presented) at the first instance hearing before the Refugee Status Branch.

(c)    There is no onus on the appellant to show that the decision at first instance is wrong in fact or in law.

(d)    The RSAA proceeds on the basis that the decision is to be made unfettered by that taken at first instance and on the basis that there is no "contest" between the appellant and the Refugee Status Branch.

(e)    The RSAA is required only to "consider" the written decision of the officers of the Refugee Status Branch which relates to the appellant and any other information in writing submitted by the NZIS.  It is not required to give any prescribed weight to such decision or submissions and there is no presumption in favour of the Refugee Status Branch.

(f)     The RSAA is required to give the appellant an opportunity to attend an interview and to consider any evidence presented by the appellant.

(g)    An oral hearing is accorded with full rights of cross-examination.

(h)    The RSAA has power to request the Refugee Status Branch to obtain further information or to carry out further investigations as well as to request the presence of a particular witness or witnesses.

(i)    The RSAA has power to regulate its own procedure and to receive such evidence and to conduct hearings in such manner as it thinks fit.  It is not bound by the strict rules of evidence.

(See para [32])

Refugee Appeal No. 523/92 Re RS (17 March 1995) referred to.

5    As a matter of discretion, it would be inappropriate to grant relief to the plaintiff prior to the determination of his appeal by the RSAA, particularly given the nature of the hearing before the RSAA.  By the time the appeal is heard, the plaintiff will have had a significantly longer period to gather material and prepare his case.  By the date of the then proposed hearing (20 October) he had been released from custody for nearly three weeks so that any necessary medical or psychiatric examinations could have been undertaken.  By then he would also have had time to obtain proper briefs of evidence from family members.  As well, time would have been available to assess the country information material and to make any response to it.  The RSAA would also have before it the decision of the High Court, including the finding of that Court that there was a clearly arguable case of breach of natural justice in the plaintiff's case.  The Authority would be entitled to take that into account in considering what weight, if any, should be given to any prior findings by the Refugee Status Branch or any prior statements by the plaintiff.  Given these factors the plaintiff would not be materially disadvantaged by permitting the appeal to the RSAA to proceed.  He would still have available to him at the end of the appeal the ability to attack in the High Court the whole of the process, including both the initial and appellate stages.  An interim order was not necessary to preserve his position (see paras [34], [35] & [36]).

Application for interim order dismissed

Other cases mentioned in judgment

[No other cases were mentioned]

Counsel

R J Hooker for the plaintiff
M A Woolford for the respondents

[Editorial note: From this decision the plaintiff appealed to the Court of Appeal.  In a judgment delivered on 16 November 1999 the decision of Randerson J was upheld and the appeal dismissed.  The Attorney General was awarded costs in the sum of $3,000 together with disbursements and reasonable travel and accommodation expenses of counsel.  See Malkit Singh v Attorney General (CA 252/99, 16  November 1999) (Richardson P, Gault & Tipping JJ).  This decision is headnoted on the Court of Appeal page of this website.

While the decision of Randerson J focuses on the right under the New Zealand Bill of Rights Act 1990, s 23(1)(b) of a person detained under any enactment to consult and instruct a lawyer without delay and to be informed of that right, it should be noted that the Immigration Act 1987, s 140(4) imposes an independent obligation to allow a person detained under the Immigration Act to communicate with and to be visited by any solicitor or counsel acting for the detainee.  It provides:

"Where any person (in this subsection referred to as the detainee) is held in custody under this Act (whether pursuant to a warrant of commitment or otherwise), the person responsible for the detainee's custody shall inform the detainee of the detainee's right to contact a solicitor or counsel or any responsible adult nominated by or in respect of the detainee under section 141B (or, where the detainee is under 17 years of age, a parent or guardian of the detainee), and shall, on request by the detainee, any solicitor or counsel acting for the detainee, or, where appropriate, any responsible adult, parent, or guardian, take all such reasonable steps as may be practicable to enable the solicitor or counsel, or the responsible adult, parent or guardian, to visit the detainee and communicate with the detainee in private."

Other refugee claimants detained in custody at Mt Eden Prison commenced a hunger strike on 28 October 1999.  Details are to be found on the news page of this website.  Following judicial review proceedings taken by the hunger strikers in the High Court Auckland, the NZIS was ordered to reconsider the decision to decline to issue permits to the hunger strikers.  On 2 December 1999 the hunger strikers were freed on bail pending an appeal by the Immigration Service to the Court of Appeal.  See the judgment of Fisher J given in M1884-SW/99 (29 November 1999)].

RANDERSON J

Introduction

[1] In the Duty Judge list on 13 October 1999, I heard an urgent application by Mr Singh for an interim order restraining the Refugee Status Appeals Authority from hearing his appeal for refugee status which was then to commence on 20 October 1999. On 18 October 1999 I issued a minute declining Mr Singh's application. I gave only brief reasons at that time because I considered it appropriate for all parties and the Authority to know at least the outcome of the application prior to the hearing. I promised to provide full reasons as soon as possible and I now do so.

[2] In essence, Mr Singh claims that the New Zealand Immigration Service (NZIS) acted contrary to natural justice in declining to grant him refugee status following his arrival in this country on 2 September 1999 shortly before the commencement of the APEC Conference held in Auckland that month. In particular, he says he was initially denied access to a lawyer and had insufficient time to prepare his case and respond to material sent to his lawyer by NZIS. He alleges he was denied a temporary permit contrary to immigration policy for refugees and instead was held in custody under s 128 of the Immigration Act 1987. As a result, he claims that the processing of his application for refugee status was unduly and unreasonably truncated.

[3] The Minister of Immigration denied there was any breach of natural justice and even if there were, submitted that any such breach would be cured by the de novo hearing which was about to take place before the Authority. Accordingly, the Minister submitted that the application for an interim restraining order should be declined.

[4] In my minute of 18 October, I held there was a clearly arguable case that the decision of the Refugee Status Branch of the NZIS declining refugee status to Mr Singh occurred in circumstances amounting to a denial of natural justice. However, I accepted the Minister's submission that I should exercise my discretion to decline the restraining order upon the grounds that there would be a de novo hearing before the Authority.

Factual background

[5] Mr Singh arrived at Auckland International Airport from India late on the evening of 2 September 1999. He did not have a passport or other appropriate travel documents. He immediately indicated his intention to apply for refugee status on the grounds that he was a member of the Sikh religion and had been persecuted by the police in the state of the Punjab. He claimed he had suffered severe torture and beatings.

[6] According to the evidence (which is undisputed at this juncture) a solicitor, Mr G M Monk, was instructed the following morning through Mr Singh's brother for whom Mr Monk's firm had previously acted. Mr Monk had several telephone discussions with immigration officers at Auckland Airport on the afternoon of 3 September. He was informed by the manager of the Border and Investigations Unit that he would not be given access to Mr Singh. He was further informed there were new security arrangements in place because of the APEC Conference and that "no-one was getting access to anybody" at the airport. He was also told that people who were arriving in New Zealand at the time of the APEC Conference with no travel documents were simply being held in custody.

[7] Mr Monk sent two letters by facsimile that afternoon to the Immigration Service at the airport confirming Mr Singh wished to apply for refugee status, requesting the issue of a visitor's permit, and Mr Singh's immediate release. The NZIS was also advised in writing that day that evidence was available to confirm Mr Singh's identity. There does not seem to have been any issue raised in that respect. Advice was also given identifying his elder brother and other family members resident in New Zealand. As well, a copy of a decision of the Authority in 1994 granting refugee status to Mr Singh's brother was provided. Mr Monk records his understanding that an immigration officer met with Mr Singh's two brothers at the airport and allowed at least one of them to visit him. Mr Singh completed an application for refugee status at the airport and a statement of about two pages in length was taken from him despite the absence of his lawyer.

[8] From a time very soon after his arrival until 1 October 1999, Mr Singh was held in custody pursuant to s 128 of the Act. He was refused a visitor's permit on 3 September 1999 and held in custody after that. It is not entirely clear on the evidence whether he was held in police custody at any stage. It appears he was held at Mt Eden Prison for the majority of the time. A warrant of commitment was apparently issued by the District Court on 4 September 1999. Mr Monk was able to see his client for the first time on 6 September at Mt Eden Prison and, with the assistance of Mr Singh's two brothers, a second application for refugee status was completed. Mr Monk has sworn in his affidavit that Mr Singh speaks virtually no English.

[9] The application was couriered to the NZIS that day, along with an application for a work permit and other documentation. The solicitors advised they would require time to obtain proper medical evidence, as well as information from India to corroborate Mr Singh's claims. It was intimated that Mr Singh had been persecuted because the police believed that he was associated with the All India Sikh Student Federation for political reasons. The letter again sought Mr Singh's release from custody.

[10] Late on 6 September, Mr Monk was advised it was intended to interview Mr Singh on 8 September. The following day he requested that the interview be deferred for six weeks in order to obtain evidence and to prepare Mr Singh's case. This request was declined and an interview took place at Mt Eden Prison on 8 September at approximately 1 pm. It was conducted by a representative of the Refugee Status Branch (RSB), along with an interpreter. Mr Monk was also present and made it clear at the outset there had been inadequate time to prepare a proper case. The interview was conducted under protest.

[11] Early on the morning of 9 September, the interview report completed by the RSB was sent by facsimile to Mr Monk. The text of the report was seven pages in length and contained a reasonably detailed account of Mr Singh's history while living in India and the injuries which he said he had sustained at the hands of the police over a ten year period. It contained material regarding his other family members and where they are currently residing. A number of questions and comments were recorded at the end and answers sought. Some of these questions were about matters of fact, while others related to issues of credibility. The latter included questions about why the police in India continued to release Mr Singh following detentions from time to time; why he did not leave India earlier; and why he believed he was of continuing interest to the police in his country of origin. Also attached were some 14 pages of detailed material described as "country information" on the situation in India. This included information supplied by the United Nations High Commission on Refugees about the All India Sikh Students' Federation. The interview report expressed the view that the country information and previous decisions of the Authority appeared to lend further support to a finding that it was unlikely Mr Singh would face a real chance of persecution if he returned to India. Mr Singh was asked to comment upon the country information and the Authority decisions referred to.

[12] Initially, Mr Monk was given two working days, i.e. by 5.00 p.m. on Friday, 10 September 1999, to provide any written reply to the interview report. He immediately responded on 9 September, seeking a period of at least four weeks to reply. He pointed out once more that it would be necessary to obtain medical reports, including a psychiatric report regarding the emotional trauma suffered by Mr Singh. It was also indicated that time would be required to assess the previous decisions of the Authority as well as the country information. It was also indicated that counsel for Mr Singh was engaged in District Court proceedings and would have difficulty seeing him until either Friday 10 September or Monday 13 September.

[13] The RSB responded on 9 September, indicating the general procedures adopted for detained refugee claimants allowed for two working days to comment upon an interview report. Mr Monk was asked to specify the further information which would be provided and how it would assist in reaching a decision. Mr Monk responded in some detail answering that request. As a result, Mr Monk was granted an extension of time to respond but only until 5 pm the following Monday, 13 September 1999.

[14] I note that these events were taking place over the very weekend at which foreign dignitaries were in Auckland for the APEC Conference with substantial accompanying disruption. Mr Monk deposes that he was not at work on Monday 13 September due to that situation. He was unable to arrange for a doctor and/or psychiatrist to visit Mr Singh in prison to document the probable causes of his injuries and to age them. Mr Monk again pointed these difficulties out to the RSB after receipt of the notice extending time to respond. Although it appears the RSB advised by facsimile late in the afternoon of Friday 10 September that they were not prepared to further extend the time, Mr Monk did not receive that letter until Tuesday 14 September (presumably when he returned to his office after the APEC weekend).

[15] Despite Mr Monk's further vigorous protests, the RSB issued a written decision on 14 September 1999 declining Mr Singh refugee status. While accepting he had previously suffered from police mistreatment, it was not accepted he continued to be of interest to the police. Adverse comments were made upon his credibility, including references to vague answers at interview and suggesting his failure to leave India previously "cast serious doubts on the credibility of his claim of continuing police interest". It was also noted that the fact that Mr Singh had been arrested and then released tended to indicate he was only of low level interest to the police. Reliance was placed on country information which it was said indicated that people with low profiles do not face a real chance of persecution in the Punjab today.

[16] The interview report noted that Mr Singh had failed to comment on the credibility issues raised. There was extensive consideration of the reasons requested for a four week extension of time to produce evidence. The view was expressed that the further information would not assist either because there had been an acceptance of his physical injuries and emotional trauma or because additional corroborative evidence would be of little weight or relevance. It was emphasised there was a need to proceed with urgency because Mr Singh was in custody and it was in his best interests and in accordance with Convention principles to proceed promptly. Reliance was placed on certain of the country information and it was noted that Mr Singh had "chosen not to respond" to that information.

[17] The report concluded that:

Past persecution is not in and of itself sufficient ground for a claim to refugee status. Past events are only relevant in as much as they indicate future treatment and there is no credible evidence to suggest that Mr Singh is of continuing interest to the police.

[19] Thereafter, Mr Singh filed an appeal to the Authority and on 29 September 1999 filed judicial review proceedings in this Court. On 1 October 1999 Mr Singh was released from custody by a District Court Judge under s 128A(4) of the Act. By that time, the 28 day period from the date of the warrant for which he may be detained under s 128(9)(c) had expired or was about to do so. I note that by virtue of s 128(15), a person detained under the section shall not be granted bail during the 28 day period unless "review proceedings" under s 128A are brought. In that case, the detainee must be brought before a District Court Judge upon the expiry of the 28 day period unless he has been earlier removed from the country under s 128(11) or is released under s 128(13).

[20] Initially, the Authority was to hear Mr Singh's appeal on 30 September but this was subsequently delayed until 20 October in view of Mr Singh's application to this Court for interim relief. I understand Mr Singh has now appealed to the Court of Appeal against my decision refusing to grant interim relief and I assume the Authority has agreed to delay any hearing until that appeal has been determined.

Grounds for relief

[21] Although a wide variety of grounds were relied upon, Mr Singh's principal grounds may be summarised as follows:

[a] He was initially denied access to a lawyer in breach of s 23 of the New Zealand Bill of Rights Act 1990.

[b] He ought to have been granted a visitor's permit upon his arrival and would have received such a permit but for the APEC Conference.

[c] His detention or continued detention in custody under s 128 was unnecessary and inappropriate.

[d] He was denied any or any adequate opportunity to prepare his case before the decision of the RSB on 14 September.

[el He has been unfairly prejudiced as a result and the appeal to the Authority will not cure the prior breach of natural Justice.

[22] For present purposes, I am prepared to assume that Mr Singh was "detained" under the Immigration Act for the purposes of s 23 of the New Zealand Bill of Rights Act as from the time of his arrival in New Zealand or very shortly afterwards. I note, however, that there may be some doubt as to exactly when he may be regarded as "detained under any enactment" for the purposes of s 23 upon his arrival at the airport. However, it is a reasonable assumption that, soon after he was first questioned at the airport by immigration officers, he was not at liberty to leave and could be regarded as being detained from that point. I am satisfied there is a prima facie case that the refusal by the Immigration Service to allow Mr Singh the right to consult and instruct a lawyer without delay on 3 September was a breach of s 23. Some form of interview took place on 3 September 1999 with Mr Singh making an application for refugee status and also making a statement recorded in writing. This occurred in the absence of his lawyer, despite requests by the lawyer for access to Mr Singh. Whether this has or may prejudice Mr Singh is not clear.

[23] However, Mr Singh was accorded access to a lawyer at the time of the interview which took place on 8 September which I understand to be the substantive interview relied upon by the Immigration Service. In those circumstances, I would not regard the prima facie breach of s 23 on 3 September as being sufficiently material by itself to warrant the grant of relief. It must be said, however, that the denial of prompt access to a lawyer for refugees or immigrants detained by the NZIS cannot be condoned and should not occur.

Grant of a visitor's permit

[24] It is not in dispute that New Zealand is a signatory to the United Nations Convention Relating to the Status of Refugees 1951 and, pursuant to that Convention, an immigration policy has been adopted and published pursuant to s 13A of the Act containing (inter alia) the following provisions:

E8.5.1(e)

Normally, applicants for refugee status will be granted visitor permits (see V3.90). For information on when work permits or student permits may be granted see W3.130 and U10.10 respectively.

E8.5.10(a)

If a person at the border indicates an intention to claim refugee status and an application form is completed, a visitor's permit current for 12 months from the date of arrival may be granted in all cases, unless the individual is a person to whom section 7 of the Immigration Act 1987 applies (see A5.35).

[27] The matters requiring comment raised issues of credibility which were plainly material to the officer's decision and any worthwhile response to the 14 pages of country information provided by the RSB would have been complex and difficult.

[28] The RSB contended in correspondence with Mr Singh's solicitors that they considered themselves obliged to proceed promptly in view of the fact that Mr Singh was in custody and it was undesirable that this state of affairs should continue for any longer than strictly necessary. While one can understand that approach, it must be appreciated that the extensions of time were being sought by Mr Singh's own solicitor and on his behalf. As well, assuming without deciding that there was some justification for detaining such persons in custody under s 128 while the APEC Conference was on, any security concerns in that respect would have been at an end at the latest by Tuesday 14 September. I am at a loss to understand why Mr Singh could not then have been granted a visitor's permit under usual policy and released at that time under s 128(13). Mr Singh would then have been at liberty to prepare his application for refugee status at the more leisurely pace ordinarily accorded to persons claiming such status upon their arrival in this country.

[29] It was for these reasons, I concluded that Mr Singh had established a clearly arguable case of denial of natural justice in relation to the decision of the RSB of 14 September 1999.

Effect of the appeal hearing before the Authority

[30] Notwithstanding my finding of a clearly arguable case, I declined to grant interim relief as a matter of discretion. Central to that decision was my finding that there would be a full de novo hearing before the Authority. The relevant principles when considering the effect of an appeal hearing upon a prior breach of natural justice may be summarised as follows:

[a] An appeal following a first instance hearing or decision does not normally oust the jurisdiction of this Court on review to redress breaches of natural justice or other administrative law error by the body at first instance and does not necessarily cure any prior breach: Reid v Rowley and Anor [1977] 2 NZLR 472, 481 (CA) approved by the Privy Council in Calvin v Carr [1980] AC 574, 595-596.

[b] But the existence of an appeal may be a factor relevant to the exercise of the discretion to grant relief Reid v Rowley at 483-484; Calvin v  Carr at 596; Wislang v Medical Practitioners' Disciplinary  Committee [1974] 1 NZLR 29, 44; and Taylor on Judicial Review (1991) paragraph 2.40.

[c] In considering the exercise of discretion, much will depend upon:
 

[i] The gravity of the error or breach at first instance.

[ii] The likelihood that the prejudicial effects of the error may also permeate the appeal hearing.

[iii] The seriousness of the consequences for the individual.

[iv]  The nature and extent of the powers of the appellate body.

[v] Whether the appellate decision is reached only on the basis of material before the original decision maker or by way of rehearing de novo: De Smith, Woolf and Jowell- Judicial Review of Administrative Action (5th ed) paragraph 10.022.
 
 

[d] The circumstances may range from a situation where the parties may be taken to have assented to the appellate hearing as superseding the hearing at first instance and to have accepted the fairness of such a procedure (for example, by the rules of a social or sporting club) to those where there is a right to expect nothing less than a fair hearing in both instances: see the discussion by Lord Wilberforce in Calvin v Carr at 592, 593.

[e] It may be that, in the end, as observed in De Smith at 10-022:
 

... Recent case law indicates that the Courts are increasingly favouring an approach based in large part on an assessment of whether, in all the circumstances of the hearing and appeal, the procedure as a whole satisfied the requirements of fairness.
 
 
[f] The mere existence of review proceedings alleging invalidity at the first instance stage does not deprive the appeal body of jurisdiction to hear the appeal: Slipper Island Resort Limited v No. 1 Town and Country Planning Appeal Board [1981] 1 NZLR 143, 145 (CA).

[g] For the purposes of granting interim relief to restrain the Authority from proceeding with the appeal, Mr Singh must demonstrate under s 8 of the Judicature Amendment Act 1972 that the relief sought is necessary to preserve his position pending the substantive hearing of his application for judicial review.

[31] The Registrar of the Authority has sworn an affidavit in which he deposes that until 30 September 1999, the Authority operated under the prerogative powers of the Executive. From 1 October 1999, the Authority has a statutory basis under the Immigration Amendment Act 1999. The hearing before me proceeded on the agreed basis that the Rules Governing Refugee Status Determination Procedures in New Zealand and Practice Note 1/99 issued by the Authority would remain in force for the purpose of determining Mr Singh's appeal. I was also referred to the decision of the Authority dated 17 March 1995 in Refugee Appeal Number 523/92 Re RS.

[32] It is apparent from all this material that:

[a] All appeals before the Authority are conducted by way of hearing de novo and all issues of law, fact and credibility are at large.

[b] The Authority makes a decision on the facts as they stand as at the date of determination of the appeal and is not confined to the facts as they stood (or as they were presented) at the first instance hearing before the RSB.

[c] There is no onus on the appellant to show that the decision at first instance is wrong in fact or in law.

[d] The Authority proceeds on the basis that the decision is to be made unfettered by that taken at first instance and on the basis that there is no "contest" between the appellant and the RSB.

[e] The Authority is required only to "consider" the written decision of the officers of the RSB which relates to the appellant and any other information in writing submitted by the NZIS. It is not required to give any prescribed weight to such decision or submissions and there is no presumption in favour of the RSB.

[f] The Authority is required to give the appellant an opportunity to attend an interview and to consider any evidence presented by the appellant.

[g] An oral hearing is accorded with full rights of cross-examination.

[h] The Authority has power to request the RSB to obtain further information or to carry out further investigations as well as to request the presence of a particular witness or witnesses.

[i] The Authority has power to regulate its own procedure and to receive such evidence and to conduct hearings in such manner as it thinks fit. It is not bound by the strict rules of evidence.

[34] I acknowledged the force of Mr Hooker's submission in this respect. Nevertheless, I decided that, as a matter of discretion, it would be inappropriate to grant relief to Mr Singh prior to the determination of his appeal by the Authority. In particular, I was influenced by the nature of the hearing before the Authority. By the time the appeal is heard, Mr Singh will have had a significantly longer period to gather material and prepare his case. By the date of the then proposed hearing (20 October) he had been released from custody for nearly three weeks so that any necessary medical or psychiatric examinations could have been undertaken. By then he would also have had time to obtain proper briefs of evidence from family members. As well, time would have been available to assess the country information material and to make any response to it.

[35] No doubt the Authority would also have before it the decision of this Court, including my finding that there was a clearly arguable case of breach of natural justice in Mr Singh's case. The Authority would be entitled to take that into account in considering what weight, if any, should be given to any prior findings by the RSB or any prior statements by Mr Singh.

[36] Given these factors, I did not consider that Mr Singh would be materially disadvantaged by permitting the appeal to the Authority to proceed. He would still have available to him at the end of the appeal the ability to attack in this Court the whole of the process, including both the initial and appellate stages. Put simply, I concluded that the interim order sought was not necessary to preserve his position.

Conclusion

[37] For the reasons stated, I declined to order interim relief. Costs are reserved.

Solicitors for the plaintiff: Vallant Hooker & Partners (Auckland)
Solicitors for the first and second respondents: Crown Solicitor (Auckland)