Attorney-General v. E

Court of Appeal, Wellington

8 February 2000

Judicial review - legitimate expectation - whether presumption in favour of grant of temporary permit to refugee claimant in absence of special factors

Judicial review - relevant considerations - whether immigration officers required to have regard to Refugee Convention when temporary permit provisions of the Immigration Act 1987 are applied to refugee claimants - Immigration Act 1987, s 129X(2)

Judicial review - relevant considerations - whether UNHCR Guidelines on Detention of Asylum-Seekers relevant consideration - whether Guidelines impose obligations on Minister of Immigration

Judicial review - detention - whether Article 31 of the Refugee Convention and the UNHCR Guidelines on Detention of Asylum-Seekers and related documents relevant material for District Court Judge to consider under Immigration Act 1987, ss 128 & 128A

Immigration Act 1987 - temporary permit - whether immigration officer under an obligation to apply presumption in favour of the grant of temporary permits in the absence of special factors making detention necessary - whether immigration officers required to have regard to Refugee Convention when temporary permit provisions of the Immigration Act 1987 are applied to refugee claimants - Immigration Act 1987, s 129X(2)

Refugee Convention - Article 31 - penalties - whether detention under Immigration Act 1987, s 128 a penalty and in breach of Article 31(1)

Refugee Convention - Article 31 - coming directly from - meaning of directly

Refugee Convention - detention of refugee claimants - whether UNHCR Guidelines on Detention of Asylum-Seekers relevant consideration - whether Guidelines impose obligations on Minister of Immigration

The respondents arrived in New Zealand between 5 September 1999 and 18 October 1999 without travel documents and applied on arrival for refugee status. They also applied for temporary permits pending determination of their refugee claims. Each was declined a permit and detention in prison followed. Judicial review proceedings were commenced challenging the decline of the permit applications. The High Court set aside the decisions and ordered a reconsideration on the basis that "refugee claimants are to be granted temporary permits in the absence of special factors making detention necessary". It was also held that the New Zealand Immigration Service (NZIS) had breached the respondents' legitimate expectations by failing "to begin with the presumption that a temporary permit should be granted to a refugee claimant in the absence of special factors making detention necessary". The detention of the respondents was terminated by orders made by a District Court Judge on 1 December 1999, two days after the judgment of the High Court was given. The ordered reconsideration led to the grant of temporary permits to all of the respondents.

The Crown appealed to the Court of Appeal seeking a ruling whether an immigration officer is under an obligation to apply to a refugee claimant a presumption in favour of the grant of a temporary permit in the absence of special factors making detention necessary.

Held:

1. (Thomas J dissenting) There is no justification for requiring the Minister of Immigration or his delegate to apply a presumptive approach to a temporary permit application by a refugee claimant in cases where there is a discretion to grant one. The Immigration Act 1987 does not support such approach. The NZIS Operational Manual does not require it, nor does the Refugee Convention, even when read with the UNHCR Guidelines on Detention of Asylum-Seekers (see Judgment para 47).

Observations:

1. (Thomas J dissenting) States have very broad powers under international law to control the entry of non-citizens into their territory. Those powers are subject to limits, for reasons of humanity, in favour of refugees - those fleeing from persecution in their own country (see Judgment para 1).

2. (Thomas J dissenting) The UNHCR Guidelines on Detention of Asylum-Seekers are about the detention of applicants for refugee status and not directly about the grant of immigration permits. That is they bear on the powers to detain and release. That point is, however, to be qualified by the considerations that the initial refusal of a temporary permit appears inevitably to bring with it detention under the Immigration Act 1987, s 128 (as here) and that Article 31(1) and 31(2) of the Refugee Convention are relevant in that context; the Guidelines and related documents may also be. District Court Judges, in determining whether detention should be continued, in exercise of their power under ss 128 and 128A of the Act, might properly have regard to the provisions of Article 31, and perhaps also to the Guidelines and related documents. The Guidelines do not appear to have the status of documents such as the conclusions of the Executive Committee for the UNHCR which purport to interpret provisions of the Convention. Being non-obligatory material, the Guidelines, although possibly relevant for interpretation purposes, cannot themselves provide a basis for imposing obligations on the Minister and his delegate in the present context. There is nothing in the evidence to indicate that the Guidelines have been adopted, either as a matter of policy by the Minister or by the NZIS in carrying out its functions in considering applications for temporary permits by those seeking refugee status (see Judgment paras 38 & 39).

3. (Thomas J dissenting) Section 129X(2) of the Immigration Act 1987 requires an immigration officer to have regard to the Refugee Convention when considering an application for a temporary permit and when exercising powers to require the removal of persons unlawfully in New Zealand and associated powers of detention (see Judgment para 44).

4. (Thomas J dissenting) Detention under the Immigration Act 1987, s 128 is not a "penalty" for the purposes of Article 31(1) of the Refugee Convention. The detention of persons on remand is not generally understood to be in the nature of a penalty or punishment. It is rather an interim measure, utilised on balance in the overall interests of justice pending determination of whether or not a penalty is to be imposed. No penalty is being exacted from persons detained pursuant to s 128. The record of the meeting of 25 July 1951 of the conference of states which prepared the Convention similarly made it abundantly clear that the provision had no application to the right of States to keep claimants in custody pending determination of status. A prohibition against such a course would seem difficult to justify, whereas punishment of claimants merely because they have entered the country unlawfully is something quite different. As to Article 31(2), it is clear that it applies only to the persons identified in paragraph (1), namely those who come directly from the country of persecution. In the cases of the respondents there was some apparent difficulty in bringing them within that description, even allowing a liberal construction of "directly". The factual situation, however, was not adequately traversed in the evidence to enable this matter to be taken further (see Judgment para 45).

5. (Thomas J dissenting) That apart, Article 31(2) of the Refugee Convention does not militate against the recognition behind paragraph (1) that detention may be justified during the investigative process. What it does is to prohibit unnecessary restrictions on movement, or liberty. There is still a judgment call to be made whether there are circumstances which warrant detention. Those circumstances may incorporate a wide variety of factors which need not be special to the particular applicant. No relevant challenge was mounted in the judicial review proceeding to the adequacy of the enquiry into the individual reasons for detention as these may have been applicable to Article 31(2). As already indicated, they may well have been relevant to the exercise by the immigration officer of his power to grant temporary permits and by the District Court Judge of the powers conferred by the Immigration Act 1987, ss 128 and 128A (see Judgment para 46).

Appeal allowed.

Other cases mentioned in the Judgment

A J Burr Limited v Blenheim Borough Council [1980] 2 NZLR 1 (CA)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (HCA)

Butler v Attorney-General [1999] NZAR 205 (CA)

F v Superintendent of Mt Eden Prison [1999] NZLR 420

New Zealand Institute of Agricultural Science v Ellesmere County [1976] 1 NZLR 630 (CA)

R v Secretary of State for the Home Department; Ex Parte Bugdaycay [1987] AC 514 (HL)

R v Uxbridge Magistrates' Court; Ex Parte Adimi [2000] 3 WLR 434; [1999] 4 All ER 520 (QBD)

Reid v Rowley [1977] 2 NZLR 472 (CA)

Re Wellington Central Election Petition, Shand v Comber [1973] 2 NZLR 470 (FC)

S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA)

Stininato v Auckland Boxing Association [1978] 1NZLR 1 (CA)

Counsel

J J McGrath QC, M Hodgen and G S Ferguson for the appellant

R J Hooker and G Monk for the respondents

Solicitors for the appellant: Crown Law Office (Wellington)

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

[Editorial note: The decision of the High Court is reported as E v Attorney-General [2000] NZAR 354.

As to Observation 4, compare R v Uxbridge Magistrates' Court; Ex Parte Adimi [2000] 3 WLR 434; [1999] 4 All ER 520 (QBD).

The dissenting judgment delivered by Thomas J takes issue with what Thomas J describes as the unacceptably minimalist approach adopted to the resolution of the appeal; the extreme breath of the discretion vested in the Immigration Service; the narrow interpretation placed on the Immigration Act 1987 and Government policy published pursuant to that Act; the limited perception of the international obligations to which the Act is designed to give effect; and the ultimate reliance placed on an "operational instruction", which has no statutory basis and which is contrary to the above obligations (see Judgment para 53). As to the last point Thomas J was of the view that any operational instruction made by the Manager of the Border and Investigations Section cannot fall within the description of Government policy. It is not published by the Minister and it is not made available to the public. It is, indeed, an administrative direction. The notion that an administrator could be able to make policy, as distinct from working within Government policy, by simply issuing an internal office circular was totally unacceptable (see Judgment para 124)].