Refugee Appeal No. 59/91 Re R

AT AUCKLAND

Before: J.M. Priestley (Chairman) R.P.G. Haines (Member) G.W. Lombard (Member)

Counsel for the Appellant: Mr S.J. McCarthy

Counsel for the NZIS: Mrs Shona Carr

Date of Decision: 19 May 1992

DECISION ON APPLICATION TO RE-OPEN APPEAL, DECISION OF THE AUTHORITY DELIVERED BY R.P.G. HAINES

INTRODUCTION

The appellant arrived in New Zealand on 13 March 1990. His application for refugee status was filed with the New Zealand Immigration Service a year later on 20 February 1991. Following an interview by the Refugee Status Section on 4 July 1991 that application was declined by letter dated 13 August 1991. From that decision he appealed. The appeal was heard by this Authority on 23 October 1991. In a written decision released in December 1991 that appeal was dismissed. It would appear that subsequent to the dismissal of his appeal the appellant instructed new solicitors, Messrs Price Voulk McCarthy.

THE PRESENT APPLICATION

By letter dated 25 February 1992 the new solicitors for the appellant requested this Authority to re-open the appeal on the grounds that the appellant had come into possession of further evidence. That evidence comprised a letter dated 31 October 1991 from the Khalistan Commando Force threatening the appellant with death.

This letter was received by the appellant on 13 November 1991, but he apparently took no steps to bring it to the attention of the Authority notwithstanding that at that time no decision on his case had been delivered. No explanation has been given for this omission or for the two month delay which elapsed from the delivery of our decision to the request to re-open the appeal.

By letter dated 9 March 1992 the Authority requested that the parties file written submissions on the question of the Authority's jurisdiction to re-open an appeal in which a final decision had been delivered. Those submissions were in due course filed and the Authority has given them careful consideration.

JURISDICTION TO RE-OPEN AN APPEAL

At the present time the jurisdiction of the Authority is non-statutory. It is to be found in Terms of Reference drawn by the Minister of Immigration and approved by Cabinet. The present case is governed by the original Terms of Reference dated 11 March 1991 as the new Terms of Reference of 1 April 1992 do not have retrospective operation. In any event, the relevant paragraphs are not materially different. In the March 1991 Terms of Reference the function of the Authority is described in the following terms:

"5. The Authority's function shall be to make a final determination on appeal from decisions of officers of the Refugee Status Section of the New Zealand Immigration Service of claims to refugee status, that is, to determine whether persons are refugees within the meaning of Article 1, Section A(2) of the 1951 Convention Relating to the Status of Refugees, as supplemented by the 1967 Protocol Relating to the Status of Refugees.

6. The Authority shall consider only those claims to refugee status where the claimants have been declined refugee status by officers of the Refugee Status Section and are not otherwise granted residence in New Zealand and where the claimants have lodged written appeals with the Secretariat of the Authority within ten working days of being notified of the decision of their claims."

The Terms of Reference also include the following paragraph under the heading "Procedure":

"11. Subject to these Terms of Reference, the Authority may regulate its own procedure and receive such evidence and conduct any hearings in such manner as it thinks fit."

It can be seen that the Authority has no express power to re-open an appeal once a decision has been delivered determining whether the particular appellant is a Convention refugee. We do not accept that the procedural provisions of paragraph 11 confer such jurisdiction. It is therefore necessary to enquire whether such power can be found in "the general law".

As a rule, once a tribunal has announced its decision it cannot re-open the case. The following statement is taken from Wade, Administrative Law (6th ed 1988) 933:

"Once a tribunal has announced its decision it has, as a general rule, no power to reconsider it or to reopen the case, unless of course its decision is quashed by the High Court. This applies equally where one of the parties later discovers fresh evidence which might well alter the decision, and in such a case the court has no power to assist by quashing. But there is an exception where the tribunal's decision is given in ignorance that something has gone wrong, e.g. that a notice sent to one of the parties has miscarried. In that case the tribunal may and indeed should reopen the case, provided it is satisfied that the party prejudiced by the mistake has a real and reasonable excuse."

This, however, is only a statement of the general rule. A more particular discussion of the topic is found at Wade op. cit. 254. There it is suggested that the power to re-open a decision will turn on the distinction between powers of a continuing character and powers which, once exercised, are finally expended so far as the particular case is concerned. Cases which fall in the latter category are ones where the power possessed by the particular tribunal is a power to decide questions affecting legal rights. In those cases the Courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised: Wade, op. cit. 254 and Bogaards v McMahon (1988) 80 ALR 342 (Pincus J). This is a reflection of the principle of finality, namely that individuals whose legal rights are determined administratively are entitled to know where they stand.

The distinction between the two different powers is also made in Rootkin v Kent County Council [1981] 2 All ER 227, 233d (CA). There a divisional education officer was authorized to make a decision whether a pupil lived more than three miles from her school. A determination in the pupil's favour entitled her to free bus travel to and from school. Initially a decision in favour of the pupil was made but it was subsequently discovered that that decision was founded on a mistake as to the distance. Free travel was accordingly withdrawn. It was argued for the pupil that what the divisional education officer was doing was making a determination and, once having made a determination, he was not entitled to go back on it. The argument was rejected on the grounds that the principle of irrevocability more appropriately applied where there is a power or duty to decide questions affecting existing legal rights. A discretionary power, however, may generally speaking, be exercised from time to time unless a contrary intention appears:

"It is the law that if a citizen is entitled to payment in certain circumstances and a local authority is given the duty of deciding whether the circumstances exist and if they do exist of making the payment, then there is a determination which the local authority cannot rescind. That was established in Livingston v. Westminster Corpn [1904] 2 KB 109. But that line of authority does not apply in my judgment to a case where the citizen has no right to a determination on certain facts being established, but only to the benefit of the exercise of a discretion by the local authority."

per Lawton LJ 233e

What then is the nature of the decision entrusted to the Authority? We have a mandatory duty to make "a final determination" as to whether persons are refugees within the meaning of Article 1A(2) of the Refugee Convention, in other words, to decide whether there is a well-founded fear of persecution for a Convention reason. If the answer is in the affirmative the individual must be recognized as a refugee and as a consequence various rights and obligations under the Convention follow. Clearly the decision is adjudicative.

The significance and finality of the decision is in no way diminished by the fact that the process is declaratory as opposed to constitutive. In the words of paragraph 28 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status:

"A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee."

Plainly, once a person fulfils the Convention criteria, he is entitled to a determination recognizing him as a refugee. We are given the duty of deciding whether the criteria are met, and if they are, of allowing the appeal.

It is our opinion that the Terms of Reference as presently framed do not confer upon us powers of a continuing character. Rather, the power to make "a final determination on appeal" as to refugee status is adjudicative and it follows that we have no jurisdiction to re-open an appeal on the grounds that the appellant is in receipt of new evidence.

The conclusion we have come to is reinforced by an established line of Canadian authority to which we will now turn. We believe that an examination of these cases will assist an understanding of the principles involved.

CANADIAN CASE LAW

The leading case is Grillas v Minister of Manpower and Immigration (1971) 23 DLR (3d) 1 (SCC). The principal issue before the Supreme Court of Canada was whether the (then) Immigration Appeal Board had power to re-open, or whether it was functus officio and without jurisdiction, having made a final order after the original hearing, especially since there was no statutory provision making allowance for a re-opening. The Court was clearly of the opinion that the Board would not have had jurisdiction to re-open an appeal had it not been for the particular wording of Section 15(1)(b) of the Immigration Appeal Board Act 1966-67. This provision gave the Board power to hear new evidence and to revise its former decision up until a deportation order had actually been executed. Mr Justice Martland, although dissenting in the result on the merits, set out the legal position by stating that the terms of this provision conferred on the Board "what might be called an equitable' jurisdiction" even though it may have dismissed an appeal against a deportation order. He further held at p.11 that this "equitable jurisdiction":

"... is a continuing jurisdiction, and not one which must be exercised once and for all."

The intention of the Act, it was held, was to enable the Board, in certain circumstances, to ameliorate the lot of an appellant against whom a deportation order had lawfully been made. It was in accordance with that intent that the Board should have jurisdiction, in cases which it deemed proper, to hear further evidence on the issues involved under its equitable jurisdiction, even though it had made an order dismissing the appeal.

We, of course, do not have "equitable" powers under the Terms of Reference.

The issue was next considered in Re Lugano and Minister of Manpower and Immigration (1977) 75 DLR (3d) 625 (Federal Court of Appeal). There an unsuccessful applicant for refugee status who wished to adduce further evidence challenged a decision of the Immigration Appeal Board refusing to re-open the original appeal. The statutory provision in question, however, was Section 11(3) of the Immigration Appeal Board Act 1970 and it was couched in entirely different terms to the provision considered in Grillas. On that basis the decision of the Canadian Supreme Court was distinguished. The provision was found by the Federal Court of Appeal (at p.628) not to confer a continuing jurisdiction:

"Once an appeal has been terminated by a s.11(3) decision, I am of opinion that it remains terminated until the decision terminating it is set aside; and, in the absence of express statutory authority, a tribunal cannot set aside its own decisions.

...

In effect, Parliament has excluded refugee claims based on facts that are not known to the claimant at the time when he first advances his claim that he is a refugee ..."

Did, however, the decisions in Grillas and Lugano cover the field, or was there nevertheless an exceptional power to re-open?

Commenting on the Canadian position in 1983, Wydrzynski in Canadian Immigration Law and Procedure (1983) 428 observed:

"The position with respect to re-hearings to cure procedural or jurisdictional defects does not appear to be entirely clear. The Board has allowed a re-hearing of an appeal where the original decision may have been made in the absence of the person concerned without his fault and special circumstances existed."

A footnote reference then refers to an unreported decision which involved a dispute about whether proper notice for appeal had been given. This echoes our earlier reference to Wade, Administrative Law (6th ed 1988) at 933 where it is recognized that one of the exceptions to the general rule that a tribunal does not have power to re-open a case is where a decision is given in ignorance that something has gone wrong, e.g. that a notice sent to one of the parties has miscarried.

See to the same effect de Smith, Judicial Review of Administrative Action (4th ed 1980) fn 72.

Some four years after publication of Wydrzynski's text, the issue was specifically considered by the Canadian Federal Court of Appeal in Gill v Canada (Minister of Employment and Immigration) [1987] 2 FC 425. Gill had been found not to be a Convention refugee following a hearing "on the papers". Subsequently, however, in the decision of Singh v Minister of Employment and Immigration [1985] 1 SCR 177, the Supreme Court of Canada held that applicants for refugee status were entitled to an oral hearing. Relying on Singh, Gill then made application to the Immigration Appeal Board for a re-opening of his initial application. That application was refused on the ground of absence of jurisdiction. The Federal Court of Appeal held, however, that there was jurisdiction to re-open the appeal as there had been a "failure in natural justice" by the Board's initial failure to grant an oral hearing. This constituted adequate reason for it to grant a re-hearing (p.430). After referring to Lugano v Minister of Manpower and Immigration the Court stated at p.428-430:

"However, in Woldu v. Minister of Manpower and Immigration [1978] 2 FC 216 (CA) decided October 27, 1977, another case under the previous Act, Le Dain J. who had concurred in the Lugano decision, suggested this significant qualification, at p.219:

'Notwithstanding the general principle, affirmed in the Lugano case, that an administrative tribunal does not have the power, in the absence of express statutory authority, to set aside its decision, there is judicial opinion to suggest that where a tribunal recognizes that it has failed to observe the rules of natural justice it may treat its decision as a nullity and re-hear the case. See Ridge v. Baldwin [1964] AC 40 at p.79; R v. Development Appeal Board, Ex parte Canadian Industries Ltd (1970) 9 DLR (3d) 727 at pp.731-732, and compare Posluns v. Toronto Stock Exchange [1968] SCR 330 at p.340.'

This suggestion, clearly an obiter dictum, was concurred in by MacKay DJ.

In Ridge v Baldwin, supra, Lord Reid asserted at p.79:

'Next comes the question whether the respondents' failure to follow the rules of natural justice on March 7 was made good by the meeting on March 18. I do not doubt that if an officer or body realizes that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.'

This dictum was followed by the Supreme Court of Canada in Posluns v Toronto Stock Exchange, supra, where the Board of Governors of a stock exchange granted a re-hearing of a disciplinary action. The Court upheld the mode of procedure as well as the good faith of the tribunal, and at pp.338 and 340 Ritchie J. set out and adopted Lord Reid's statement, supra from Ridge v Baldwin.

It might be argued that Lord Reid's statement is an obiter dictum in that on the facts of Ridge v Baldwin the tribunal repeated at the second hearing its original failure to observe the principles of natural justice, and the result would therefore have been the same regardless of which hearing were taken as determinative. But the same cannot be said of the Supreme Court decision in the Posluns case. There, the appellant had both proper notice and representation by counsel at the second hearing, thereby repairing the defects the tribunal might have committed at its first hearing. The Court expressly described the second hearing as a rehearing rather than an appeal, and also expressly upheld the tribunal's decision on the basis of this rehearing, without passing judgment on the adequacy of the initial hearing. There appears to have been no express statutory power in the tribunal to re-hear matters disposed of, and in any event it is evident from the Court's consideration that such express statutory authority is not material to its decision. Clearly, a tribunal's power of re-hearing is to be implied in such circumstances. It accordingly appears to us that the Immigration Act 1976 must be interpreted to allow reconsideration by the Board of its decisions, at least where it subsequently recognizes that it has failed in natural justice.

Moreover, in the light of the Supreme Court's decision in Singh, supra, that the Board's denial of an oral hearing to refugee claimants is a violation of a person's 'right to a fair hearing in accordance with the principle of fundamental justice for the determination of his rights and obligations' under paragraph 2(e) of the Canadian Bill of Rights [R.S.C. 1970, Appendix III] and of the right not to be deprived of 'life, liberty and security of the person ... except in accordance with the principles of fundamental justice' under Section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act 1982, Schedule B, Canada Act 1982, 1982, c. 11 (UK)], there can be no doubt that the Board's initial failure to grant an oral hearing constitutes adequate reason for it to grant a re-hearing."

These decisions were followed in Singh v Canada (Minister of Employment and Immigration) (1988) 6 Imm.L.R. (2d) 10 (Federal Court of Appeal) and Canada (Minister of Employment & Immigration) v Nabiye (1989) 8 Imm.LR. (2d) 190 (Federal Court of Appeal). The quote which follows is taken from the latter case at p.192:

"Reference may be made in this regard to the leading case of Grillas v. Minister of Employment and Immigration [1972] SCR 577; 23 DLR (3d) 1 which affirmed the continuing power' of the Board to grant the humanitarian remedy then contained in s.15 of the Act, now s.72, to a permanent residence against whom a deportation order has been made. There is also the judgment of this Court in Gill v. Canada (Minister of Employment and Immigration) [1987] 2 FC 425, ... which referred to a power of the Board to grant an application for redetermination when it appeared that its initial decision was made contrary to the rules of natural justice or was otherwise null and void. The distinctions that must be made have to be seen in the light of these two judgments.

The basic idea, I think, is that a tribunal exercising adjudicative powers may not re-try a matter after it has disposed of that matter in accordance with the Act, unless it is expressly authorized to do so by its enabling legislation. This is the well-known principle of functus officio. However, we should not forget the conditions for its application. The principle applies first to the exercise of an adjudicative power, which explains the Grillas, supra, exception: the remedy of s.15 of the then existing legislation was not strictly speaking an adjudicative power; and it then implies, at least in its formulation, that the tribunal rendered a decision in accordance with the Act, which undoubtedly is the reasoning behind Gill, supra, as the Court thought that a decision rendered contrary to the rules of natural justice could be treated by the tribunal as if it were not a decision.

Accordingly, in the case at Bar, the Court can only recognize the validity of the position taken in Singh and repeat that the Board does not have jurisdiction to re-open an application for redetermination of refugee status which it has already disposed of solely in order to hear evidence of new facts."

More recently, there has been further expansion of the power to grant an application for redetermination when it appears that the initial decision was made contrary to the rules of natural or fundamental justice.

In Kaur v Canada (Minister of Employment and Immigration) (1989) 64 DLR (4th) 317 the Federal Court of Appeal considered a case where in the course of enquiry into her application for refugee status, the applicant was subjected to duress by her former husband. As a result, she was effectively deprived of her right to be represented by independent counsel, as well as the ability to make a free, informed and independent decision respecting the claim to refugee status. It was held that in such circumstances the adjudicator had jurisdiction to consider the applicant's request to re-open the enquiry.

The decision of the Court was premised on Section 7 of the Canadian Charter of Rights and Freedoms which reads:

"7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

In the majority decision delivered by Heald JA the following passage is found at p.325:

"The adjudicator, here, concluded that he did not have authority to reopen the enquiry to correct an error in natural justice. I disagree. In my view, the adjudicator had jurisdiction to determine whether, in the circumstances of this case, fundamental justice would allow this applicant to claim refugee status outside the time frame set out in the Immigration Act 1976."

The reasoning process was that the adjudicator was required to look at the particular circumstances of each case to determine whether the applicant stood to be deprived of a Charter-protected right if not permitted to apply for redetermination and, if so, whether fundamental justice required that she be granted such permission. In the circumstances the Court concluded that the refusal was not in accordance with the principles of fundamental justice and could lead to a deprivation of life, liberty or security of the person, contrary to Section 7 of the Charter.

This line of authority has been followed by the Immigration and Refugee Board [Appeal Division] in Addo v Canada (Minister of Employment and Immigration) (1989) 12 Imm.L.R. (2d) 69 and by the Federal Court of Appeal in Longia v Canada (Minister of Employment and Immigration) (1990) 10 Imm.L.R. (2d) 312. In the latter case it was affirmed that the Board did not have jurisdiction to re-open an application for redetermination of refugee status which it had already disposed of solely in order to hear evidence of new facts. The Court emphasized that the jurisdiction of the Board with respect to a claim for refugee status was wholly adjudicative and therefore not ongoing. The well-founded fear of persecution alleged by the refugee claimant had to be ascertained at the moment his claim was adjudicated. It was otherwise if the redetermination hearing was not held according to the rules of natural justice. In such a case, the Board could regard its decision as a nullity and reconsider the matter. On the facts the applicant did not claim that there had been a breach of the rules of natural justice and there was in fact no evidence that he had been denied natural justice. Furthermore, he was not acting under duress as in the Kaur case and the application was accordingly dismissed.

CONCLUSIONS TO BE DRAWN FROM THE CANADIAN AUTHORITIES

1.   Two principles emerge from the Canadian cases: A distinction is to be made between determinations which are wholly adjudicative and those which are an ongoing process. Where the jurisdiction is wholly adjudicative there is no power to re-open a decision.

2.   Where the jurisdiction is wholly adjudicative, power to re-open a decision does, however, exist where a decision has been reached contrary to the rules of natural justice and could be treated as a nullity; or alternatively, where the first decision is not in accordance with the principles of fundamental justice as recognized by Section 7 of the Canadian Charter of Rights and Freedoms and could lead to a deprivation of life, liberty or security of the person.

As to the second of these principles, we do not need to decide in the context of the present case whether we ourselves have jurisdiction to re-open a decision in the situation where there has been a denial of natural justice (or of "fundamental justice") at the first hearing. For the appellant makes no such allegation. His application to re-open is based on the receipt by him of further evidence and nothing more.

If and when the question of an expanded jurisdiction arises for consideration in the New Zealand context we will require more extensive argument than that heard on the present application. In particular, we will need to examine whether there are circumstances in which we can consider one of our own decisions to be "void". See (inter alia), for example, Taggart, "Rival Theories of Invalidity in Administrative Law: Some Practical and Theoretical Consequences" in Taggart (ed) Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 70; Ridge v. Baldwin [1964] AC 40; Twist v Randwick Municipal Council (1976) 136 CLR 106; Martin v Ryan [1990] 2 NZLR 209, 235 (Fisher J.) and of course the New Zealand Bill of Rights Act 1990.

For the purpose of disposing of the present application we hold that the power conferred on us by the Terms of Reference is wholly adjudicative and we therefore have no inherent or continuing jurisdiction to re-open the appeal. This is a conclusion which we base both on general principle and upon the Canadian jurisprudence.

We should add, however, that even if we had power to re-open the present appeal, our decision on the merits of the case would not have been different as the new evidence does not change our conclusion on the relocation issue. We adhere to what we said in our original decision at pp.6-7:

"We do not, however, consider that this appeal needs to be decided solely on the issue of whether the appellant has a wellfounded fear of persecution. Even if the facts of this case fell square inside the terms of the Convention this is a situation where the protection of India is available to the appellant elsewhere.

Unpalatable though it may be for him to contemplate, we are satisfied that the appellant could relocate inside the Punjab if necessary. The bulk of the time which he has lived in India since his return from Saudi Arabia in 1987 has been in Ludhiana. No persecution occurred there. The appellant has some fluency in Hindi. He is a skilled craftsman, being on his own admission, a good painter. We are satisfied that the appellant could relocate himself inside the Punjab away from his parents village where he had the reputation of being a wealthy man and was twice the target of robberies. Elsewhere in the Punjab we do not believe there is any terrorist group which would have the resources or inclination to seek him out.

Similar considerations would apply if the appellant were to relocate himself elsewhere in India."

That would be sufficient to dispose of the case but there is one further issue which needs to be addressed. In the written submissions filed on behalf of the New Zealand Immigration Service it was submitted that our earlier decision in Refugee Appeal No. 46/91 Re SM (19 August 1991) was wrong. It was submitted that the Authority "is a non- statutory creation with a limited function, the jurisdiction of which is entirely circumscribed by the Terms of Reference under which it operates". Refugee Appeal No. 46/91 Re SM was a decision in which we held that the Authority had jurisdiction to grant leave to appeal out of time. We are not quite sure how this decision bears on the present application but as the question of our jurisdiction has been raised, we believe that it would be appropriate for us to address also whether we have power to grant leave to appeal out of time. It is, of course, a step which logically precedes the hearing of the appeal itself and also any subsequent issue as to whether we should re-open an appeal once a final decision has been delivered.

JURISDICTION TO GRANT LEAVE TO APPEAL OUT OF TIME

In Refugee Appeal No. 46/91 Re SM (19 August 1991) this Authority held that the time limit for appeal should not be interpreted as being inflexible and further, that the Authority has a discretion to enlarge the ten working day period in appropriate cases.

In the written submissions filed in the present case we are reminded by the New Zealand Immigration Service that in that case they were not given an opportunity to be heard on the issue and we have been asked to reconsider the decision in the light of their submissions now presented. Those submissions are to the effect that the time limit for appeal is mandatory.

It is correct that due to a regrettable oversight the Immigration Service was not heard prior to delivery of our decision dated 19 August 1991 in Refugee Appeal No. 46/91 Re SM. We are therefore of the opinion that the question must be considered again de novo in the light of the submissions now advanced by the Immigration Service.

The relevant part of our Terms of Reference is paragraph 6, the text of which has been set out earlier, but which for convenience we now repeat:

"6. The Authority shall consider only those claims to refugee status where the claimants have been declined refugee status by officers of the Refugee Status Section and are not otherwise granted residence in New Zealand and where the claimants have lodged written appeals with the Secretariat of the Authority within ten working days of being notified of the decision of their claims."

In prescribing the manner in which, and the time within, appeals are to be lodged, the Terms of Reference do not lay down what will be the legal consequences of failure to observe those prescriptions. We must accordingly determine whether the procedural rules are to be regarded as mandatory, in which case disobedience will render void what has been done, or as directory, in which case disobedience will be treated as an irregularity not affecting the validity of what has been done.

The legal principles involved are set out in the judgment of Richardson J. in Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue [1990] 3 NZLR 313, 315- 316 (CA):

"The classic statement of principle on the first matter raised by the appellant's first ground is that of Lord Penzance in Howard v. Bodington (1877) 2 PD 203, 211

'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.'

Ascribing such labels as 'imperative', 'mandatory' and 'directory' to a statutory provision is not, of course, a substitute for 'trying to get at the real intention of the legislature by 'carefully attending to the whole scope of the statute to be considered'' (Wybrow v Chief Electoral Officer [1980] 1 NZLR 147, 161). The true question is whether the legislature intended that language which is obligatory in form should have the effect of invalidating the non-complying Act, or whether the Act should nevertheless have legal effect. The question arises only because the legislation itself has not spelled out what the effect of non-observance is to be. The answer turns on an analysis of the language, scheme and purpose of the statute. That analysis often leads to discussion in the cases of the purpose of such a requirement, and the weighing of private rights and public interest. In the end, however, it is a matter of ascertaining what the legislation intends rather than developing or criticizing judicial rationalizations for that legislative intention.

The second aspect of the statutory enquiry relates to waiver. Again the legal principles are clear. Anyone may renounce the benefit of a statutory condition introduced entirely in his or her own favour. But an individual cannot waive a matter in which the public have an interest. In relation to time limits for appeals as in other areas, whether or not the statute embodies a public policy element which neither party to the proposed appeal has power to modify depends on the true construction of the Act."

On the facts of that particular case it was held that Section 43(6) of the Inland Revenue Department Act 1974 prescribed a mandatory period for the filing of a document, and the doctrine of substantial compliance could not in those circumstances apply to a fixed time limit. Cooke P. noted that the tax field is a technical one "in which broad considerations of equity have little part to play" (p.315 line 16). On that basis the Court adhered to the clear trend of authority and held that in the tax field there is a public interest in the observance of unqualified time limitations and that waiver was not possible.

The same considerations do not apply to the field of refugee determination for the following reasons:

1.   The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees are fundamental components of a protection system motivated by humanitarian concerns.

2.   Under the Refugee Convention New Zealand has an obligation not to return a refugee to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

3.   The scheme and purpose of the Authority's Terms of Reference is to promote the protection of refugees and the observance of New Zealand's obligations under the Convention by affording unsuccessful applicants for refugee status a right of appeal to an independent body. The appeal is by way of complete rehearing de novo. The protection so afforded is both meaningful and important. At the present time approximately one-third of appeals are successful. In other words, almost one person in three coming before the Authority has not been properly identified as a refugee by the Refugee Status Section. Appeals to the Authority are therefore especially important.

4.   It has been recognized that because of its humanitarian purpose, the Convention should be applied in a generous and humanitarian spirit: Grahl-Madsen, The Status of Refugees in International Law Volume 1 (1966) 145:

"There is quite some justification for the view that a convention, which States have agreed upon in order to regularize the position of human beings whose status would otherwise be precarious, should be applied generously, in a sympathetic and humanitarian spirit. Moreover, in Recommendation E of its Final Act the Conference of Plenipotentiaries has called for just such a generous application of the provisions of the Refugee Convention."

5.   New Zealand has undertaken solemn treaty obligations. Those obligations must be performed in good faith: Article 26 of the 1969 Vienna Convention on the Law of Treaties; Brownlie, Principles of Public International Law (4th ed 1990) 616. Article 18 of the Vienna Convention further obliges a State to refrain from acts which would defeat the object and purpose of a treaty. One of the main purposes of a human rights treaty obviously is to assure the protection of human rights and a signatory at a minimum, must not itself deny such rights or allow their violation. Such denial or violation could, however, be brought about by an overly rigid insistence upon strict compliance with the ten working day period.

6.   As previously mentioned, a person becomes a refugee at the moment when he satisfies the definition. Formal determination of refugee status is declaratory, rather than constitutive. In other words, entitlement to the benefits of the Convention is not dependent on any particular act of recognition. As soon as a person satisfies the criteria set forth in Article 1, that person is ipso facto entitled to the benefits under the Convention: Grahl-Madsen, The Status of Refugees in International Law Volume 1 (1966) 157; 340-341; Goodwin-Gill, The Refugee in International Law (1983) 20.

Insistence upon strict compliance with the appeal period would deny to a Convention refugee the protection of the Convention and result in New Zealand being in breach of the fundamental obligation of non-refoulement found in Article 33 of the Convention. The fundamental and binding nature of that Article is emphasized by the fact that it is among the Articles to which Contracting States may not make any reservations - see Article 42.

While the Terms of Reference employ language which is mandatory in form, upon a consideration of the whole scope of the Terms of Reference, and also the terms of the Refugee Convention, we conclude that it was not intended that non-observance of the time limit should necessarily invalidate an intended appeal.

We believe that this ruling is consistent with the conclusion of the Executive Committee of the High Commissioner's Programme known as Conclusion No. 15 Refugees Without An Asylum Country (1979) which provides in paragraph (i):

"While asylum-seekers may be required to submit their asylum request within a certain time limit, failure to do so, or the non-fulfilment of other formal requirements, should not lead to an asylum request being excluded from consideration."

Although not binding, conclusions adopted by the Executive Committee have been described as sound in substance and consonant with the letter and the humanitarian spirit of both the 1951 Convention and other binding instruments relating to refugees in particular, and to human rights in general. Moreover, the Conclusions represent collective international expertise in refugee matters, including legal expertise: Sztucki, The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme (1989) Volume 1 International Journal of Refugee Law 285, 308.

Unlike tax law, considerations of equity do have a large part to play in the field of humanitarian law and we believe that it is in the public interest that the time limit for appeal be interpreted so as to promote New Zealand's obligations under the Refugee Convention and in particular, its observance of the obligation of non-refoulement.

We therefore hold that the time limit for appeal should not be interpreted as being inflexible and further, that the Authority has a discretion to enlarge the ten working day period in appropriate cases.

Clearly there will be cases where compliance with the ten day period may be difficult. Bona fide asylum seekers might suffer unfairly if strict compliance were insisted upon.

This would be inconsistent with justice and the principle that the Convention should be applied in a generous and humanitarian spirit.

The discretion we have ruled to exist is to be exercised according to the requirements of fairness and justice in the individual case. All of the relevant circumstances must be taken into account. The weight (if any) to be given to any particular factor will depend upon the circumstances. Generally speaking, the Authority will have regard to (inter alia) the length of the delay; the reasons for the delay; the chances of an appeal being successful if an extension is granted; the degree of prejudice to the New Zealand Immigration Service. Where the element of delay is minimal and a plausible explanation has been offered, the merits of the appeal might not normally need to be considered. If the delay is far greater, however, the substantive merits or otherwise of the prospective appeal may become pertinent. In an extreme case, it may in fact be doing the intending appellant a disservice to allow a self-evidently futile appeal to go ahead at all.

The Authority accordingly requires an application for leave to appeal out of time to be filed together with a full and cogent statement of the grounds and evidence on which the application is based, including reasons for the delay, and the grounds of the substantive appeal. In some cases evidence by way of affidavit will be necessary.

In the exercise of the discretion it may on occasion be useful to refer to decisions of the Immigration Appeal Tribunal (UK) which, by virtue of the Immigration Appeals (Procedure) Rules 1984, has a discretion to allow an out of time appeal to proceed. For example, it has been held by the English Court of Appeal that the test to be applied is whether it is just and right to allow the appeal to proceed by reason of special circumstances: Mehta v Secretary of State for the Home Department [1975] 2 All ER 1084 (CA). There it was further held that the rule should be liberally interpreted so as not to let an appellant suffer unfairly. The merits of the substantive appeal may also be relevant to the discretion. See further R v Immigration Appeal Tribunal, Ex parte V.M. Mehta [1976] Imm.A.R. 174, 184-185.

CONCLUSION

It is our conclusion that while the Authority has jurisdiction to grant leave to appeal out of time, once a final decision on an appeal has been delivered, that appeal cannot be re- opened for the purpose of allowing further evidence to be produced.

The appellant's application to re-open this appeal is accordingly declined.

"R P G Haines" [Member]