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The Queen v Mohi [2006] NZCA 7 (15 February 2007)

Last Updated: 25 March 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA225/05

BETWEEN ASLANCHERIY BRANTOV
Applicant

AND REMOVAL REVIEW AUTHORITY
First Respondent

AND ATTORNEY-GENERAL
Second Respondent

Hearing: 13 February 2006

Court: Anderson P, Hammond and Ellen France JJ

Counsel: E Orlov for Applicant
R E Schmidt for Second Respondent

Judgment: 23 February 2006

JUDGMENT OF THE COURT

A We grant special leave subject to the following conditions:

(i) The Case on Appeal together with the applicant’s submissions are to be filed and served within two months.
(ii) Affidavit evidence is to be included by Mr Brantov in the Case on Appeal showing the current state of his application for a Russian passport. That evidence is to be updated by affidavit filed and served between 10 and 12 working days before the hearing date of the appeal.
(iii) The Attorney-General is to file submissions within 14 days after the Case on Appeal has been filed and served.
(iv) The Registrar is to allocate a fixture for hearing, as soon as same can be had thereafter.

B Costs are reserved.

____________________________________________________________________

REASONS

(Given by Ellen France J)

[1] This is an application under r 29(4) of the Court of Appeal (Civil) Rules 2005 for special leave to appeal out of time. The second respondent, the Attorney-General, opposes the application on the basis the proposed appeal has no merit. The Removal Review Authority, the first respondent, abides the decision of the Court.

Background

[2] Mr Brantov, the intended applicant, is a seaman from the former Soviet Union. He arrived in New Zealand on 3 May 1997. He obtained a 12 month work permit as a member of the crew of a fishing vessel but absconded from his ship on 14 October 1997.
[3] Mr Brantov then applied to the Refugee Status Branch (RSB) for refugee status. In the interim, he was granted a work permit as an asylum seeker. The RSB declined his application on 28 March 2002 when he did not appear for an interview.
[4] Mr Brantov’s appeal to the Refugee Status Appeal Authority was dismissed by that Authority on 9 September 2004. Following that, his work permit was revoked.
[5] On 14 November 2004, Mr Brantov appealed to the Removal Review Authority against the decision to remove him from New Zealand.
[6] That appeal was dismissed on 4 April 2005. Although there was a right of appeal to the High Court on a question of law from that decision, Mr Brantov chose instead to file judicial review proceedings. He did so on 28 April 2005. On 7 September 2005, Lang J delivered a decision dismissing Mr Brantov’s application for judicial review of the decision of the Removal Review Authority.

The present application

[7] Mr Brantov filed an application for leave to appeal against Lang J’s judgment in the Auckland High Court on 21 September 2005. That was in error. When it was realised a mistake had been made and that the appeal should have been filed in this Court, a notice of appeal and an application under r 29(4) for leave to appeal out of time were filed in the Court of Appeal on 7 October 2005. That was two days after the time expired for an appeal to the Court of Appeal as of right. The notice of appeal was not served on the Attorney-General until 13 October 2005. This means the appeal was not complete in terms of r 31 of the 2005 Rules until 13 October, which made it six days late.
[8] While the second respondent makes the point that the appeal is out of time, the Attorney-General’s emphasis is on the merits of the proposed appeal.
[9] The focus of the proposed appeal as it has emerged is much narrower than as set out in the Notice of Appeal and in counsel’s written submissions. Counsel for Mr Brantov accepted that the heart of the proposed appeal is encompassed in this way in the written submissions:

[H]is Honour erred in law in rejecting the judicial review because the [r]espondents should have made an enquiry as to whether or not the [a]pplicant was a stateless person and/or in the alternative as to which country he was a citizen of before rejecting his appeal.

[10] In developing this submission, the applicant says he would seek to argue by reference to matters such as United Nations Convention relating to the Status of Stateless Persons (1954) that it is inconsistent with his rights to remove him to the Russian Federation when he is stateless. He says he would leave New Zealand if he had travel documentation enabling him to go to a country which is a party to the Convention. (The Russian Federation, like New Zealand, has not ratified the Convention.)
[11] In his decision, Lang J took the view it would have been premature for either the Removal Review Authority or the High Court to make a finding that Mr Brantov was a stateless person. That was so because, first, the issue of statelessness had not been a basis for the appeal to the Authority. That appeal had been on two principal grounds:

a) If he is returned to his homeland then he fears a Mafia group will kill him;
b) He is willing to leave New Zealand but requires time to process the pertinent documents.

The argument based on the risk of harm from the Mafia group is no longer pursued.

[12] The second reason the Judge did not address statelessness was because Mr Brantov’s application to the Russian Federation for a new passport had not yet been declined, he having previously held a passport issued by the Soviet Union.
[13] The Judge did make inquiries of the second respondent during the course of the hearing as to the steps that would be taken in the event Mr Brantov’s application for judicial review was not successful. He was advised that the Immigration Service would apply to the Russian authorities for emergency travel documents to enable Mr Brantov to travel to either the Russian Federation or the Ukraine. If the Russian Federation declined to issue emergency travel documents, Mr Brantov would not be taken into custody whilst he sought alternative identity papers.
[14] The second respondent says there is no error of law in this approach. In terms of the Immigration Act 1987, the applicant had the responsibility to put all relevant information before the Removal Review Authority (s 49(2)(a)). What he provided was a three page letter and a copy of the decision of the Refugee Status Appeal Authority. The Authority has dealt with the matters raised before it and Lang J correctly concluded there was no reviewable error in the Authority’s approach.

Discussion

[15] The delay in bringing the appeal is not significant and was not of Mr Brantov’s making. In that situation, the Court will generally be inclined to grant special leave. It will not do so, however, in cases where the proposed appeal has no merit (Havanaco Ltd v Stewart [2005] NZCA 158; (2005) 17 PRNZ 622 at [5]).
[16] As to the merits, this is a situation where the arguments have developed somewhat as the case has proceeded. This creates difficulties because matters may not have been squarely raised either in terms of the evidence or the legal argument. Having said that, all the applicant has to show at this time is that the point is a reasonably arguable one.
[17] There are references in the Refugee Status Appeal Authority’s decision and, to a lesser extent, in the Removal Review Authority’s decision to Mr Brantov’s claim that he is a stateless person. The matter was also raised before the High Court. It cannot be said at this point that an argument that, essentially, says statelessness was a relevant consideration is completely without merit.
[18] Against that background and given the reason for the delay, it would not be appropriate to deprive Mr Brantov of the opportunity of full argument of the point on appeal.
[19] As indicated in the course of oral argument, we consider the Court hearing the appeal will need evidence about the status of Mr Brantov’s application for a passport to the Russian Federation and we make the provision of such evidence a condition of leave.
[20] It is apparent from the background that this matter has been on foot for a considerable period. Matters should now be progressed promptly. For that reason we are granting leave subject to further conditions requiring the timely advancing of the appeal.

Result

[21] The application for special leave is granted subject to the following conditions:

a) The Case on Appeal together with the applicant’s submissions are to be filed and served within two months.
b) Affidavit evidence is to be included by Mr Brantov in the Case on Appeal showing the current state of his application for a Russian passport. That evidence is to be updated by affidavit filed and served between 10 and 12 working days before the hearing date of the appeal.
c) The Attorney-General is to file submissions within 14 days after the Case on Appeal has been filed and served.
d) The Registrar is to allocate a fixture for hearing, as soon as same can be had thereafter.

[22] Costs are reserved.

Solicitors:
Henley Smith Law, Auckland for Applicant
Crown Law Office, Wellington for Second Respondent

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[2]	Mr Brantov, the intended applicant, is a seaman from the former Soviet Union. He arrived in New Zealand on 3 May 1997. He obtained a 12 month work permit as a member of the crew of a fishing vessel but absconded from his ship on 14 October 1997.
[3]	Mr Brantov then applied to the Refugee Status Branch (RSB) for refugee status. In the interim, he was granted a work permit as an asylum seeker. The RSB declined his application on 28 March 2002 when he did not appear for an interview.
[4]	Mr Brantov’s appeal to the Refugee Status Appeal Authority was dismissed by that Authority on 9 September 2004. Following that, his work permit was revoked.
[5]	On 14 November 2004, Mr Brantov appealed to the Removal Review Authority against the decision to remove him from New Zealand.
[6]	That appeal was dismissed on 4 April 2005. Although there was a right of appeal to the High Court on a question of law from that decision, Mr Brantov chose instead to file judicial review proceedings. He did so on 28 April 2005. On 7 September 2005, Lang J delivered a decision dismissing Mr Brantov’s application for judicial review of the decision of the Removal Review Authority.

[7]	Mr Brantov filed an application for leave to appeal against Lang J’s judgment in the Auckland High Court on 21 September 2005. That was in error. When it was realised a mistake had been made and that the appeal should have been filed in this Court, a notice of appeal and an application under r 29(4) for leave to appeal out of time were filed in the Court of Appeal on 7 October 2005. That was two days after the time expired for an appeal to the Court of Appeal as of right. The notice of appeal was not served on the Attorney-General until 13 October 2005. This means the appeal was not complete in terms of r 31 of the 2005 Rules until 13 October, which made it six days late.
[8]	While the second respondent makes the point that the appeal is out of time, the Attorney-General’s emphasis is on the merits of the proposed appeal.
[9]	The focus of the proposed appeal as it has emerged is much narrower than as set out in the Notice of Appeal and in counsel’s written submissions. Counsel for Mr Brantov accepted that the heart of the proposed appeal is encompassed in this way in the written submissions:

[12]	The second reason the Judge did not address statelessness was because Mr Brantov’s application to the Russian Federation for a new passport had not yet been declined, he having previously held a passport issued by the Soviet Union.
[13]	The Judge did make inquiries of the second respondent during the course of the hearing as to the steps that would be taken in the event Mr Brantov’s application for judicial review was not successful. He was advised that the Immigration Service would apply to the Russian authorities for emergency travel documents to enable Mr Brantov to travel to either the Russian Federation or the Ukraine. If the Russian Federation declined to issue emergency travel documents, Mr Brantov would not be taken into custody whilst he sought alternative identity papers.
[14]	The second respondent says there is no error of law in this approach. In terms of the Immigration Act 1987, the applicant had the responsibility to put all relevant information before the Removal Review Authority (s 49(2)(a)). What he provided was a three page letter and a copy of the decision of the Refugee Status Appeal Authority. The Authority has dealt with the matters raised before it and Lang J correctly concluded there was no reviewable error in the Authority’s approach.

[15]	The delay in bringing the appeal is not significant and was not of Mr Brantov’s making. In that situation, the Court will generally be inclined to grant special leave. It will not do so, however, in cases where the proposed appeal has no merit (Havanaco Ltd v Stewart [2005] NZCA 158; (2005) 17 PRNZ 622 at [5]).
[16]	As to the merits, this is a situation where the arguments have developed somewhat as the case has proceeded. This creates difficulties because matters may not have been squarely raised either in terms of the evidence or the legal argument. Having said that, all the applicant has to show at this time is that the point is a reasonably arguable one.
[17]	There are references in the Refugee Status Appeal Authority’s decision and, to a lesser extent, in the Removal Review Authority’s decision to Mr Brantov’s claim that he is a stateless person. The matter was also raised before the High Court. It cannot be said at this point that an argument that, essentially, says statelessness was a relevant consideration is completely without merit.
[18]	Against that background and given the reason for the delay, it would not be appropriate to deprive Mr Brantov of the opportunity of full argument of the point on appeal.
[19]	As indicated in the course of oral argument, we consider the Court hearing the appeal will need evidence about the status of Mr Brantov’s application for a passport to the Russian Federation and we make the provision of such evidence a condition of leave.
[20]	It is apparent from the background that this matter has been on foot for a considerable period. Matters should now be progressed promptly. For that reason we are granting leave subject to further conditions requiring the timely advancing of the appeal.