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Aziz v Chief Executive of the Ministry of Social Development [2011] NZCA 364 (2 August 2011)

Last Updated: 10 August 2011


IN THE COURT OF APPEAL OF NEW ZEALAND
CA300/2010
[2011] NZCA 364

BETWEEN FRAIDOON AZIZ
Appellant

AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent

Hearing: 20 July 2011

Court: O'Regan P, Glazebrook and Wild JJ

Counsel: P D McKenzie QC for Appellant
A J Williams and J C Catran for Respondent

Judgment: 2 August 2011 at 3pm

JUDGMENT OF THE COURT


  1. Question one (which is in fact two successive questions) is answered ‘Yes’ and ‘Not applicable’.

B We decline to answer question two.


C Costs are reserved.


____________________________________________________________________


REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] With the leave of Miller J,[1] Mr Aziz appeals to this Court on these two questions of law:
[2] Miller J granted leave pursuant to s 12R of the Social Security Act 1964. The appeal Miller J heard in the High Court was by way of a case stated from the Social Security Appeal Authority.

Background

[3] After arriving in New Zealand on a visitors’ visa, Mr Aziz applied for refugee status. His endeavour to obtain that status ended when the Refugee Status Appeals Authority dismissed his appeal against a decision refusing him refugee status. Up to that point he had been granted a work permit and had received an unemployment benefit. Upon the final determination of his refugee status claim his permit was revoked, his benefit cancelled and he was liable to be deported.
[4] Mr Aziz promptly applied to the Removal Review Authority (RRA) under s 47 of the Immigration Act 1987 against the requirement that he leave New Zealand.
[5] Five and a half months later,[2] the RRA allowed his appeal against removal. He was then granted a residence permit and, again, an unemployment benefit.
[6] The two questions arise from Mr Aziz’s position during the five and a half month interregnum (the interregnum) between the lodging of his appeal to the RRA and the RRA’s decision allowing that appeal. He remained in New Zealand during that period but did not qualify for any benefit under the Social Security Act 1964.
[7] He appealed to the Social Security Appeal Authority against the cancellation of his unemployment benefit during the interregnum.[3] In a decision on 12 December 2005, the Authority held the benefit had been correctly cancelled, as Mr Aziz was not a person lawfully resident or present in New Zealand until he was granted a residence permit on 3 December 2004.
[8] In his judgment of 17 March 2009 on appeal from the Authority’s decision, Miller J agreed and dismissed the appeal.[4]

Question one: Having appealed to the RRA and while awaiting its decision, was Mr Aziz unlawfully present in New Zealand for the purposes of the Social Security Act? If lawfully present, was he eligible subject to s 61 for a benefit under that Act?

[9] Mr McKenzie’s argument sidelined the Immigration Act 1987 and focused on the relevant sections in the Social Security Act, ss 3, 61 and 74A. Mr McKenzie advanced a threefold justification for that approach. First, he submitted that the Social Security Act and Immigration Act had different schemes and purposes. The Social Security Act was directed at alleviating need of a person resident in or present in New Zealand. The Immigration Act was concerned with entry into New Zealand, including the grounds on which entry was lawful, and the situations in which a person who had entered New Zealand unlawfully could be removed.
[10] Secondly, and reflecting those different objects, Mr McKenzie referred to the different expressions used in the two Acts. Section 3 of the Social Security Act defined “resident”, in relation to any person, as not including “being unlawfully resident in New Zealand”. That definition carried through to s 74A which covers the entitlement to benefits of persons unlawfully resident or present in New Zealand. Mr McKenzie contended that s 74A distinguished between ordinary residence as the basis of entitlement to standard benefits, and being “lawfully ... present in New Zealand” as the basis for what he termed “third tier discretionary benefits”, for example an emergency benefit under s 61, or a special benefit under s 61G.
[11] Mr McKenzie contrasted s 4 of the Immigration Act. Section 4(1) provides that a person who is not a New Zealand citizen may be in New Zealand only if they either hold a permit granted under the Act or are exempt from that requirement. Section 4(2) then provides that a person who is in New Zealand in contravention of s 4(1) “is deemed for the purposes of this Act to be in New Zealand unlawfully”. Being “in New Zealand unlawfully” under the Immigration Act should not, in Mr McKenzie’s submission, be equated with being “lawfully present” under the Social Security Act.[5] While holding a permit under the Immigration Act was an indication of lawfulness under s 74A(1)(b), it was not the only indication of lawfulness. Mr McKenzie argued that it would be dangerous to resort to the Immigration Act when interpreting the words “lawfully resident or present in New Zealand” in the Social Security Act. He maintained that a person may be unlawfully in New Zealand for the purposes of the Immigration Act without necessarily being unlawfully present in New Zealand for the purposes of benefit entitlement under the Social Security Act.
[12] Thirdly, Mr McKenzie submitted that each Act was a separate entity and, as a general rule, resort should not be made to one of the two Acts in order to interpret the other. Mr McKenzie supported that submission by referring to Burrows & Carter’s Statute Law in New Zealand[6] and Fowler v Minister of Social Welfare.[7] The authors of Burrows & Carter observe:[8]

Each statute is a separate entity, and the meanings of the words in that statute do not depend on other statutes. Nor do courts much like reasoning by analogy in statute law; there have been frequent warnings of the danger of reasoning from one statute to another.

Mr McKenzie reinforced this submission by pointing out that s 4(2) of the Immigration Act provides that any person who is in New Zealand in contravention of s 4(1) is deemed “for the purposes of this Act” to be in New Zealand unlawfully.

[13] Next Mr McKenzie turned to the structure of s 74A of the Social Security Act. It has since been amended, but during the interregnum the relevant subsection provided:

74A Persons unlawfully resident or present in New Zealand

(1) A person who is –

(a) Unlawfully resident or present in New Zealand; or

(b) Lawfully resident or present in New Zealand but only by virtue of–

(i) A visitor’s permit; or

(ia) A limited purpose permit; or

(ii) A temporary work permit; or

(iii) A permit to be in New Zealand for the purposes of study at a New Zealand school or university or other tertiary educational establishment–

shall not be entitled to receive a benefit..., but the chief executive may grant an emergency benefit under section 61 of this Act or a special benefit under section 61G of this Act to any such person if the chief executive is satisfied that the person... is either–

(c) A person lawfully present in New Zealand who is awaiting the outcome of his or her application for refugee status in New Zealand; or

(d) A person who has refugee status in New Zealand; or

(e) A person applying for a residence permit under the Immigration Act 1987 who is compelled to remain in New Zealand through some unforeseen circumstances.

[14] Mr McKenzie summarised this subsection in this way:
[15] It was Mr McKenzie’s argument that s 74A(1)(b) should be interpreted as not exhaustively listing, in (i) to (iii), the categories of persons lawfully resident or present in New Zealand who would qualify to be considered for an emergency benefit or a special benefit under ss 61 and 61G respectively. He contended that s 74A(1)(b) should be interpreted as extending to a person present in New Zealand as an applicant for refugee status not coming within categories (1)(c) or (d) or (like Mr Aziz), present while awaiting the outcome of their appeal to the RRA.
[16] Such an interpretation, in Mr McKenzie’s submission, was consistent with the principle that a general empowering provision should not be read as excluding any category of person without clear statutory language to that effect. Mr McKenzie referred here to Halsbury’s Laws,[9] but the passage he relied on stated the principle that property or other economic interests should not be interfered with without adequate compensation, except under clear authority of law. It is difficult to see how that assists in interpreting a section dealing with entitlement to social security benefits. Mr McKenzie also referred to [61] in Mallon J’s judgment in Ellwood v Accident Compensation Corporation.[10] Again, we do not find that of much assistance. Mallon J was interpreting a provision in the ACC legislation which permitted an insurer to suspend a statutory entitlement “if it is not satisfied” that the insured was entitled to continue to receive that entitlement. In [61] of her judgment Mallon J was doing no more than listing a number of authorities referred to her by counsel for the insured, the nub of which was that termination of benefits is a step not to be taken lightly. Whilst that can readily be accepted, it throws little light on the interpretation of s 74A, which is concerned with the entitlement – or lack of entitlement – to receive a benefit.
[17] This took Mr McKenzie to s 61 of the Social Security Act which provides:

61 Chief executive may grant emergency benefit in cases of hardship

(1) The chief executive may, in the chief executive's discretion and subject to such conditions as the chief executive thinks fit to impose, grant an emergency benefit under this Act on account of hardship to any person who satisfies the following conditions, namely:

(a) That by reason of age, or of physical or mental disability, or of domestic circumstances, or for any other reason, he is unable to earn a sufficient livelihood for himself and his dependants (if any); and

(b) That he is not qualified to be granted any benefit:

...

[18] Mr McKenzie submitted the chief executive’s power to grant an emergency benefit to “any person” on the grounds of hardship has not been taken away by s 74A(1)(a) in the case of persons such as Mr Aziz. Notwithstanding s 74A(1)(a), Mr Aziz comes within the empowering words of s 61. This is so whether or not he comes under s 74A(1)(c).
[19] Mr McKenzie categorised s 61 as a general empowering provision applying where there is hardship. Any limitation on the s 61 power must be found elsewhere in the Act, the onus being on the party seeking to restrict or read down the general application of the power. Again, Mr McKenzie invoked Mallon J’s judgment in Ellwood, to which we referred in [16].
[20] We do not accept these arguments. First, the expressions “unlawfully resident or present in New Zealand” and “lawfully resident or present in New Zealand” in s 74A of the Social Security Act are to be interpreted by looking at the Immigration Act. Mr McKenzie’s point that the two Acts have different objects reinforces rather than detracts from this point. The Immigration Act is the statute which governs whether a person is lawfully or unlawfully in New Zealand. Assistance in determining the lawfulness of a person’s status in New Zealand is not to be found in the Social Security Act, because that is concerned with eligibility for benefits. Section 74A introduces the concept of residence, because it is relevant to eligibility for what Mr McKenzie termed “standard” benefits. We think Mr McKenzie was referring there to all the benefits available under the Social Security Act, other than the emergency benefit or the special benefit specifically provided for in s 74A of the Act.
[21] Putting aside the concept of residence, which is not relevant to Mr Aziz, s 74A refers to a person being unlawfully or lawfully “present in New Zealand”. The lawfulness of a person’s status in New Zealand is to be determined by reference to s 4 of the Immigration Act. In terms of that section, Mr Aziz was unlawfully in New Zealand during the interregnum because he neither held a permit to be in New Zealand nor an exemption from the requirement to hold a permit. We see no significance in the different wording used in s 74A and s 4. Reinforcing this is the fact that s 4(3) provides that the fact that a person has applied for a permit does not render that person’s “presence in New Zealand” lawful. That wording is indistinguishable from the s 74A(1)(a) and (b) wording “present in New Zealand”.
[22] Supporting resort to the Immigration Act in interpreting the expressions “unlawfully resident or present in New Zealand” and “lawfully resident or present in New Zealand” in s 74A(1)(a) and (b), Ms Williams directed us to s 141A of the Immigration Act. That deals with disclosure of immigration information. Ms Williams referred particularly to s 141A(2), which permits the immigration authorities to disclose information to the social security authorities for the purposes of verifying any person’s entitlement to a benefit, and the amount of that benefit. There is also s 141A(3) which permits the social security authorities to request, from the immigration authorities (the sub-section provides for the request to pass from one chief executive to the other), information about persons whom the immigration authorities believe are in New Zealand unlawfully, or persons who are in New Zealand lawfully but only by virtue of holding a temporary or limited purpose permit. Section 141A(3) is obviously framed with s 74A of the Social Security Act in mind. Both provisions provide powerful support for our view that s 74A of the Social Security Act is to be interpreted by reference to the Immigration Act.
[23] We also see nothing in Mr McKenzie’s point that s 4(2) is a deeming provision “for the purposes of this Act”. Those words make it clear that the deemed unlawful status of the person is good for all the purposes of the Immigration Act. The words cannot be interpreted as proscribing interpreting s 74A by reference to the Immigration Act, in the manner outlined in [20]–[21] above. Miller J pointed out the inconsistency of Mr Aziz arguing that s 4 was irrelevant to the lawfulness of his presence in New Zealand during the interregnum when he was relying on another provision of the Immigration Act, s 53, to found his argument th[11] he was lawfully here.11
[24] Our approach to the interpretation of s 74A of the Immigration Act is consistent with the view taken by Potter J in Rajabian v The Chief Executive of the Department of Work and Income New Zealand.[12] Mr McKenzie submitted that Rajabian was wrongly decided and anyway distinguishable as a factually different case, as indeed it was. Mr Rajabian had entered New Zealand using false papers and a false identity, and had subsequently applied for refugee status. The issue was whether Mr Rajabian was entitled to an emergency benefit while a claimant to refugee status. The case turned on s 129X of the Immigration Act 1987, which prohibited removal or deportation of a refugee or refugee status claimant. Mr Aziz’s case is different. It does not involve a claim to refugee status and does not engage s 129X. It is therefore unnecessary to say anything more about Rajabian, and we leave open whether Rajabian was correctly decided.
[25] Mr Aziz’s claim that he was lawfully present in New Zealand for the purposes of the Social Security Act during the interregnum depends on ss 47 and 53 of the Immigration Act. Once Mr Aziz’s quest for refugee status came to an end, he appealed to the RRA under s 47 which provides:

47 Appeal against requirement to leave New Zealand

(1) A person who is unlawfully in New Zealand may appeal to the Removal Review Authority against the requirement for that person to leave New Zealand.

(2) The appeal must be brought within 42 days after the later of–

(a) The day on which the person became unlawfully within New Zealand; or

(b) The day on which the person received notification under section 31 of the confirmation of the decision to decline to issue a permit, in the case of a person who, while still lawfully in New Zealand, had lodged an application under section 31 for reconsideration of a decision to decline another temporary permit.

(3) An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.

...

[26] The relevant parts of s 53 are:

53 Liability for removal

(1) A person unlawfully in New Zealand may be the subject of a removal order, and is liable to be removed from New Zealand under this Part, if—

(a) The person (not being a person who has an appeal pending under section 47 or section 115A) has been unlawfully in New Zealand—

(i) For a period of 42 consecutive days; or

(ii) In the case of a person who, while still lawfully in New Zealand, had lodged an application under section 31 for reconsideration of a decision to decline another temporary permit, for a period of 42 consecutive days following the day on which the person received notification under section 31 of the confirmation of the decision to decline to grant another temporary permit, if that day was later than the day on which the person became unlawfully in New Zealand; or

(b) An appeal under section 47 (including a further appeal, if any, to the High Court under section 115A or the Court of Appeal under section 116) has been determined against the person, and the person is still unlawfully in New Zealand 7 days after the decision has been notified to the person (or, if appropriate, 7 days after becoming unlawfully in New Zealand following the expiry or cancellation of any temporary permit directed to be granted under section 22(7)); or

...

[27] Mr Aziz could appeal under s 47 because he was unlawfully in New Zealand, his quest for refugee status having ended. And because he was unlawfully in New Zealand and had appealed under s 47, s 53 provided that he could not be removed from New Zealand pending final determination of his s 47 appeal. As Ms Williams pointed out, from the moment Mr Aziz’s quest for refugee status ended, he was in New Zealand unlawfully and was obliged by s 45 of the Immigration Act to leave New Zealand unless subsequently granted a permit.
[28] The result was that Mr Aziz came within s 74A(1)(a) of the Social Security Act. He did not come within s 74A(1)(b), nor any of s 74A(1)(c), (d) or (e). Accordingly, he was not eligible for an emergency benefit or a special benefit.
[29] The structure and wording of s 74A does not permit an interpretation that would widen eligibility for grant of an emergency benefit or a special benefit to persons other than those in categories (c) to (e). In particular, Mr McKenzie’s approach of interpreting s 74A(1)(b) as encompassing “any person” who satisfies the conditions set out in s 61 is not a tenable one. Section 74A is the threshold to eligibility under s 61, not vice versa.
[30] If Mr McKenzie’s approach was the correct one then, subject to fulfilment of the conditions set out in s 61, that section would give the Chief Executive power to grant an emergency benefit to any person at all. We need not address the obvious difficulties that would pose for the Chief Executive. Indeed it would place the Chief Executive in a virtually impossible position. It suffices to note that Mr McKenzie accepted these difficulties, and could point only to the 42 day appeal period prescribed by s 47(2).
[31] If we rejected his interpretation of s 74A, Mr McKenzie argued there will be persons who could never receive an emergency benefit. He instanced a person whose visitor’s permit expired after they had applied for refugee status, or a person who entered New Zealand unlawfully and then applied for refugee status. Mr McKenzie contended this would violate New Zealand’s international obligations, imported into the Immigration Act, and give rise to Bill of Rights issues. For two reasons, we see no need to grapple with any such difficulties. First, the two situations instanced by Mr McKenzie are not before us. For the reasons we give below in declining to answer the second question, s 9 of the New Zealand Bill of Rights Act is not engaged in Mr Aziz’s case.
[32] Secondly, all the provisions of the Immigration Act we have considered were in the Immigration Act 1987 which was repealed upon the coming into force of the Immigration Act 2009 on 29 November 2010.[13] Under the new Act there could not be the interregnum that has led to this appeal. That is because the Act would require that Mr Aziz’s appeal concerning his refugee (and now also protection) status and his appeal on humanitarian grounds to be dealt with together.[14]

Question two: did denying Mr Aziz an emergency benefit breach s 9 of the New Zealand Bill of Rights Act 1990?

[33] It was common ground that Mr Aziz was not destitute during the interregnum. Nor was there any evidence of such imminent harm to Mr Aziz. Instead, the submissions Mr Aziz advanced to Miller J, and those Mr McKenzie made to us, invited the Court to assume that failure to provide a benefit in Mr Aziz’s circumstances is treatment that will result in degradation so severe that s 9 must be breached. We accept Ms Williams’ submission that there is no automatic connection between circumstances attracting the need for benefit assistance and deleterious living conditions so severe that ineligibility for a benefit amounts to degrading treatment that would outrage society.
[34] For the purposes of answering this second question Miller J assumed, without deciding, that denial of an emergency benefit may contravene s 9 where the applicant would otherwise be utterly destitute because the state also denied him the ability to work. He also assumed that the ordinary and natural meaning of s 74A of the Social Security Act limits or impairs freedoms recognised in s 9, in that it admits the possibility that some appellants under s 47 of the Immigration Act 1987 will be utterly destitute yet ineligible for an emergency benefit.
[35] The need to make these assumptions underlines the force of the respondent’s submission to Miller J, reiterated to us, that it is not necessary to decide whether denial of a benefit to Mr Aziz breached s 9 because the issue did not arise on the facts. We decline to answer this question because it is moot.

Result

[36] For the reasons given, we answer Question One – which is in fact two successive questions – ‘Yes’ and ‘Not applicable’.
[37] Again for the reasons we have given, we decline to answer Question Two, because it is moot.
[38] Costs are reserved for application by memorandum to be submitted within seven days, if thought appropriate.

Solicitors:
R A Brace, Porirua for Appellant
Crown Law Office, Wellington for Respondent

[1] Aziz v Chief Executive of the Ministry of Social Development HC Wellington, CIV-2007-485-1271, 15 April 2010.

[2] Mr Aziz appealed to the RRA on or about 24 June 2004. The RRA delivered its decision on 3 December 2004.

[3] Mr Aziz was granted an unemployment benefit while he was awaiting the outcome of his appeal to the Refugee Status Appeals Authority. That benefit was granted by administrative error. It is common ground that the appropriate benefit during that time was an emergency benefit under s 61 of the Social Security Act, which the Chief Executive of the Ministry of Social Development was empowered to grant pursuant to s 74A(1)(c) of that Act.

[4] Aziz v The Chief Executive of the Ministry of Social Development HC Wellington CIV-2007-485-1271, 17 March 2010.

[5] We think Mr McKenzie intended to submit that being “in New Zealand unlawfully” under the Immigration Act should not be equated with being “unlawfully present” in New Zealand under the Social Security Act. However, we have accurately recorded para 32.3 of his written submissions, repeated in para 5 of his written ‘Appellant’s Speaking Note’.
[6] JF Burrows and Carter Statute Law in New Zealand (4th ed, Lexis Nexis, Wellington, 2009).
[7] Fowler v Minister of Social Welfare [1984] NZAR HC 347 at 348.
[8] At 423.
[9] Halsbury’s Laws of England (4th ed, 1995) Vol 44(1) Statutes at [1464].

[10] Ellwood v Accident Compensation Corporation HC Wellington CIV-2005-485-536, 18 December 2006.
[11] At [24].

[12] Rajabian v The Chief Executive of the Department of Work and Income New Zealand HC Auckland CIV-2004-485-671, 12 October 2004, specifically at [30], the third and fifth bullet points.
[13] Immigration Act 2009 ss 2 and 404.
[14] Immigration Act 2009 ss 194(6) and 206(3)(a).

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