[1] This is an application for an extension of time to file the case on appeal and apply for a hearing date outside the six month period prescribed by r 43 of the Court of Appeal (Civil) Rules 2005, in order to avoid Mr Hu’s appeal to this Court being deemed abandoned.

Background

[2] Mr Hu is a Chinese national now aged 49 years.
[3] In November 2000, Mr Hu was convicted of murdering his wife in New Zealand, and he was sentenced to life imprisonment with a minimum non-parole period of 13 years.
[4] In February 2002, the Minister of Immigration issued a deportation order against Mr Hu, pursuant to s 91(1)(c) of the Immigration Act 1987. Mr Hu appealed to the Deportation Review Tribunal (“the Tribunal”). That appeal was heard on 23 October 2003. The Tribunal of its own motion undertook a respectable amount of research on the risk to Mr Hu of further prosecution and penalty in China. This meant that a decision on Mr Hu’s appeal was not delivered until 19 July 2007: Hu v Minister of Immigration DRT 021/2002 Decision No 14/2007. The appeal was dismissed.

The High Court proceedings

[5] Mr Hu then commenced two proceedings in the High Court. The first was an appeal against the decision of the Tribunal under s 117 of the Immigration Act. The second was an application for judicial review of the Tribunal’s decision. MacKenzie J dismissed both proceedings: Hu v Minister of Immigration HC WN CIV 2007-485-1832 15 May 2008.

The appeal to this Court

[6] A Notice of Appeal against the decision of MacKenzie J to dismiss the application for judicial review was filed in this Court on 13 June 2008. However, Mr Hu has not thereafter filed a case on appeal, nor has he applied for the allocation of a hearing date. Given that the delay has now exceeded six months, r 43(1) of the Court of Appeal (Civil) Rules 2005 applies.
[7] To avoid the appeal being abandoned under r 43(1), Mr Hu applied under r 43(2)(a) for an extension of time on 11 December 2008. This was prior to the six month period elapsing, as permitted under r 43(3).
[8] Mr Hu seeks an extension of three months or such other period as might be granted by this Court to prepare the case on appeal.

The principles as to the exercise of discretion under r 43(2)

[9] The exercise of the discretion under r 43(2) has been the subject of considered judgments of this Court. In Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807, this Court emphasised that non-conformity by an appellant with r 43 requires the exercise by this Court of “a positive discretion” (at [10]). Factors relevant to the exercise of the discretion include whether the proposed appeal is genuinely arguable and whether there is any practical point to the proposed appeal (at [10]). Moreover, “the resources of the legal system should be addressed to the determination of real controversies” (at [23]).

The case for the applicant

[10] Mr Hu is serving a lengthy term for murder. His earliest parole eligibility date is 28 February 2013. This causes some practical difficulties because the reviewing authorities, including this Court, are being asked to consider the position well in advance of the event about which Mr Hu is concerned, namely his deportation to China.
[11] Mr Hu had sought a discretionary humanitarian exception in his favour from the Tribunal, and the quashing of the Minister’s deportation order. The principal humanitarian ground relied upon by him was that, if deported to China, he would likely be re-prosecuted in the Chinese courts for the crime for which he has been punished in New Zealand (a double jeopardy argument), and that he could consequently become the subject of the death penalty.
[12] At the Tribunal hearing, Mr Hu offered no evidence to the Tribunal in support of those contentions. However, the Minister and his officials responsibly obtained an opinion from a law professor at the East China University of Politics and Law, Associate Professor Sun. Professor Sun expressed the view that, if Mr Hu was deported back to China, re-prosecutions and/or the death penalty were possible under Chinese law. Although he may be re-prosecuted on return to China, Professor Sun was of the view that there was a discretion to exempt Mr Hu from further punishment or give a mitigated punishment if he had been punished in a foreign country. He considered that it was highly unlikely that Mr Hu would be sentenced to death.
[13] In the High Court, MacKenzie J dismissed a statutory appeal on questions of law from the Tribunal’s decision and also dismissed a parallel application for judicial review. The focus of both challenges in the High Court was to attack the adequacy of the evidence on re-prosecution and/or the death penalty, and the legal test applied by the Tribunal to a “real risk” of those events occurring. The High Court had the benefit of the decision of the Supreme Court of New Zealand in Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289, in which that Court noted that it had to be “satisfied that there are substantial grounds for believing that, as a result of the deportation, the person would be in danger of being arbitrarily deprived of life” (at [93]). MacKenzie J was of the view that the test utilised by the Tribunal had been consistent with the Zaoui decision, and that Mr Hu’s case had not been made out.
[14] It has to be said that what Mr Hu wants to do is to relitigate the same issues in this Court, with one additional gloss we will come to later in this judgment.

The case for the Minister

[15] Mr Carter argued against the application being granted, under four heads. First, Mr Hu has no sound reason or explanation for not acting within the prescribed six month period. Secondly, the appeal is devoid of merit. Thirdly, the appeal is not genuinely arguable. Fourthly, there is no practical point or real controversy in the appeal.

Resolution

[16] We do not consider that Mr Hu’s application for an extension of time is made out.

Delay

[17] The reason for the delay in assembling a case on appeal and applying for a fixture is said to have been legal aid difficulties. Undoubtedly Mr Hu applied for legal aid timeously. It seems that certain matters were raised by the Legal Services Agency. Ms Schaaf says these were attended to, but as Mr Carter fairly observed, no detail has been put before the Court on this point. Indeed, when we pressed Ms Schaaf in oral argument as to why the Legal Services Agency had not been contacted in the days before the hearing for advice as to what the present position is in that Agency, we were advised that she had been “too busy”. Counsel has an obligation to see that the Court is fully and properly advised as to what the legal aid position is. We would have been utterly surprised if, having been advised that the matter was before this Court for hearing and that an answer was needed, the Legal Services Agency would not have responded. As it transpires, the delay is a factor which has little, if any, bearing on the view we take of the application.

Does the appeal have legs?

[18] Both the Tribunal and the High Court have taken the view that, on the evidence, there is not a sufficient risk of potential harm to justify Mr Hu’s non-deportation.
[19] Ms Schaaf relied on a recent decision of the Asylum and Immigration Tribunal in the United Kingdom: JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036 12 May 2008. She intimated that if the application was granted she wished to put this decision before the Court as “fresh evidence”.
[20] First, given that JC is an official decision of a United Kingdom tribunal, we would have thought that this Court could refer to it without requiring any fresh evidence application. Secondly, however, JC is contrary to the position contended for by Ms Schaaf. The Asylum and Immigration Tribunal held that absent particular aggravating factors, the risk of prosecution or re-prosecution falls well below the level required to engage international protection under the Refugee Convention, the ECHR, or humanitarian protection. If anything, JC supports the position taken by the Tribunal and MacKenzie J. As matters stand, Mr Hu’s case simply does not meet the requisite standard for intervention in the Minister’s deportation decision.

The practicalities

[21] Further, this whole issue may well be reconsidered prior to Mr Hu’s actual deportation. It is to be recalled that the Minister has a discretion to cancel a deportation order under s 91(7) of the Immigration Act. It is open to Mr Hu or his counsel to make representations to the Minister and/or his officials much closer to the time of his release from prison. There is no room here for a suggestion that the Minister has not acted responsibly. Indeed, as we have already noted, the evidence is the other way: the relevant officials in the Tribunal went to considerable lengths, and doubtless expense, to establish what the position would be in China in a case such as the present.
[22] In the result, we agree with Mr Carter that, as matters stand, the appeal is not arguable and is devoid of merit.

Conclusion

[23] The application for an extension of time to file the case on appeal and apply for a hearing date is dismissed.
[24] In the event that the application was not successful, the Minister did not seek costs. There will be no order for costs.

Solicitors:
Crown Law Office, Wellington

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