Ahmed v Immigration and Protection Tribunal [2014] NZHC 809 (16 April 2014)

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UNDER	the Judicature Amendment Act 1972 and Part 30 of the High Court Rules
IN THE MATTER	of an application for judicial review
BETWEEN	AHMED MOHAMMED AHMED Applicant
AND	IMMIGRATION AND P ROTECTION TRIBUNAL First Respondent THE MINISTER OF IMMIGRATION Second Respondent

Hearing:	29 November 2013
Counsel:	N R Woods for Applicant T I Hallett-Hook and F J Richards for Second Respondent
_Judgment:	_{16 April 2014}

This judgment was delivered by me on 16 April 2014 at 4.00 pm, pursuant to r 11.5 of the High Court Rules.

[1] Pursuant to s 432(1) of the Immigration Act 2009 (the 2009 Act), the Immigration Act 1987 (the 1987 Act) continues to apply to a person who was subject to a deportation or removal order under the 1987 Act. It is common ground that the situation of the applicant, Mr Ahmed, is governed by s 432 of the 2009 Act.

[2] The first respondent is the Immigration and Protection Tribunal (IPT). The second respondent is the Minister of Immigration.

[3] This judicial review application concerns the IPT’s interpretation of s 432 and whether the applicant remains subject to the provisions of the 1987 Act by virtue of s 432, except to the extent that the specific exceptions provided for by s 432(2)–(6) apply.

[5] On 27 March 2009 the applicant was convicted of one count of unlawful sexual connection and one count of being a party to rape. He was sentenced to four years’ imprisonment. On appeal this sentence was increased to one of seven years’ imprisonment.

[6] On 2 February 2010 the Minister of Immigration made an order for the deportation of the applicant under s 91(1)(b) of the 1987 Act, which was served on him on 1 March 2010. On 18 March 2010 the applicant lodged an appeal against the deportation order in the Deportation Review Tribunal (DRT). The appeal was heard on 2 and 3 August 2010 and 20 December 2010. On 29 November 2010, prior to the resolution of the appeal, the 2009 Act came into force. The appeal was consequentially determined by members of the IPT who were deemed to be members of the DRT pursuant to the (now repealed) 1987 Act.

[7] On 18 February 2011 the IPT released its decision, declining to quash the applicant’s deportation order. It concluded that it was not unjust nor unduly harsh to deport him from New Zealand and was not satisfied it would not be contrary to the public interest to allow him to remain in New Zealand.

[8] The applicant did not seek to appeal or judicially review this decision. Instead, on 14 December 2011, he advised the Refugee Status Branch of Immigration New Zealand (RSB) that he wished to be considered for refugee and protected person status under s 133(1) of the 2009 Act.

[9] The RSB did not at that time recognise that s 432 of the 2009 Act applied to the applicant’s situation. In the absence of realising this, on 29 February 2012, a refugee and protection officer (RPO) from the RSB conducted an interview with the applicant in respect of his claim for refugee status.

[10] The RSB declined the applicant’s claim in a decision released on 12 October

[11] The applicant then lodged an appeal to the IPT against this decision. A hearing was scheduled for 4 and 5 March 2013. Prior to the appeal being heard it was realised s 432 of the 2009 Act applied to the applicant’s situation. Thus, jurisdiction became an issue: namely, whether the applicant had standing to bring a refugee or protected person claim under the 2009 Act. Related to that issue was whether the IPT had jurisdiction to consider his appeal against the decision of the RSB.

4 March 2013. In its decision released on 23 April 2013, the IPT concluded that it did not have jurisdiction to hear the appeal.

[13] The applicant has now brought this judicial review proceeding in relation to that decision, seeking orders declaring the decision of the IPT unlawful and remitting the matter back to the IPT for substantive consideration of his claim for refugee status.

[14] Four aspects of the relevant statutory scheme require consideration: deportation under the 1987 Act; deportation under the 2009 Act; refugee claims under the 2009 Act; and the transitional provisions of the 2009 Act.

[15] Under s 91(1)(b) of the 1987 Act the Minister of Immigration had power to order the deportation from New Zealand of a holder of a residence permit who was convicted of two offences committed within five years after that person was first granted a residence permit, each of those offences being an offence for which the Court can impose imprisonment for a term of 12 months or more, and was sentenced to imprisonment for more than 12 months.

[16] Section 104 of the 1987 Act provided a right of appeal to the DRT against the deportation order. Section 106 of the 1987 Act provided that a deportation order could not be executed (other than by request of the person named in the order) in any of the following situations: within 21 days of service; while an appeal to the DRT under s 104 was pending; within 28 days of the dismissal of a s 104 appeal; or while a s 117 appeal on a question of law against a decision of the DRT was pending.

[17] Under s 105 of the 1987 Act the DRT could quash a deportation order if satisfied “that it would be unjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand”.

[18] Under s 129K of the 1987 Act, a refugee status officer may not consider a claim for refugee status from the holder of a permanent residence permit. The effect of s 129K was that a residence permit holder subject to a deportation order is not entitled to bring a refugee claim under the 1987 Act.

[19] The 2009 Act made substantial changes to the process by which a person can be deported. Where a person is liable for deportation, the deportation process can be

_person.¹_{Once served with a DLN, a right of
appeal to the IPT on humanitarian}

can be allowed only where the IPT is satisfied exceptional circumstances of a humanitarian nature exist that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and where it would not in all the circumstances be

_{contrary to the public interest to allow the appellant to remain in New
Zealand.}

[20] As emphasised by the IPT in its decision on jurisdiction, service of a deportation order under the 2009 Act is the final step in the deportation process. It occurs after any appeal or challenge to the DLN has been resolved. That represents a

[21] In contrast to s 129K of the 1987 Act, s 132(1)(b) of the 2009 Act permits a resident or permanent resident to bring a refugee (or protected person) claim if they have been served with a DLN.

[22] Part 5 of the 2009 Act governs the determination of refugee and protection status. Sections 124 and 125 provide:

(1) The purpose of this Part is to provide a statutory basis for the system by which New Zealand—

(a) determines to whom it has obligations under the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees; and

(b) codifies certain obligations, and determines to whom it has these obligations, under—

(i) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

(1) Every person who seeks recognition as a refugee in New Zealand under the Refugee Convention must have that claim determined in accordance with this Act.

(2) Every person who seeks recognition as a protected person in New Zealand must have that claim determined in accordance with this Act.

(3) Every question as to whether a person should continue to be recognised as a refugee in New Zealand or as a protected person in New Zealand must be determined in accordance with this Act.

[23] The 1987 Act was repealed on 29 November 2010 by s 404 of the 2009 Act. Section 407 provides that a person who is subject to a removal or deportation order under the 1987 order continues to be subject to that order after the 1987 Act is repealed. Section 407 clarifies that a removal or deportation order under the 1987

[24] Section 432(1) of the 2009 Act provides that the 1987 Act continues to apply to a person who was subject to a deportation or removal order under the 1987 Act:

(1) Despite section 404 of this Act, the former Act continues to apply in relation to a person—

(a) whose visa or permit has been revoked by the Minister under the former Act, whether or not notice of the revocation has been served on the person; or

[25] Section 432(1) is subject to certain limited exceptions prescribed by s 432(3)–(6):

(3) Section 446 of this Act applies to the completion of any appeal lodged by a person to whom subsection (1) applies if the appeal—

(4) Section 447 of this Act applies to any appeal by a person to whom subsection (1) applies if—

(a) immediately before the commencement of section 404 of this Act, the person was eligible to appeal to an appeals body (other than the Refugee Status Appeals Authority) under the former Act; and

(5) If a person to whom subsection (1)(b) or (c) applies does not lodge an appeal, or is unsuccessful on appeal, the person may be removed or deported (as the case may be) from New Zealand, and—

(a) the removal or deportation must be effected as if it were a deportation being executed under this Act, and this Act applies accordingly with any necessary modifications; and

(b) the person is liable for arrest and detention under Part 9 of this Act pending his or her deportation being executed.

(6) For the purposes of this section, any time periods specified in the former Act must be calculated including any time that has elapsed before the commencement of section 404 of this Act.

[26] Section 446 of the 2009 Act provides that an appeal lodged with an appeals body under the 1987 Act but not determined before the 2009 Act came into force, must be determined by the Tribunal in accordance with the provisions of the 1987

Act and, for that purpose, the Tribunal is deemed to have all the necessary functions of the appeals body under the 1987 Act.

[27] The applicant raised three arguments in support of his claim that s 432 allows him to bring a refugee or protected person claim under the 2009 Act. First, it was argued, s 432(5) requires a 1987 Act deportation order to be executed as if it were a deportation under the 2009 Act “with any necessary modifications”. The IPT rejected this argument, however, on the ground that s 432(5) relates only to the implementation of a deportation order and it was not intended to import other aspects of the 2009 Act.

[28] Second, it was argued that s 125 of the 2009 Act requires all claims for refugee and protected person status to be determined under that Act. Accordingly, the applicant’s claim should be determined under the 2009 Act notwithstanding s 432. The IPT dismissed this argument on the basis that s 125 of the Act is subject to s 132 of the 2009 Act. Section 132 prohibits a resident or permanent resident from bringing a refugee or protected person claim unless they have been served with a DLN. The IPT was of the view that the exclusions in s 132 established that s 125 was intended to apply only to claims that were lawfully able to be considered. As the applicant had not been served with a notice he was not eligible to have a refugee and protection claim considered. The IPT observed that treating a deportation order as a DLN was at odds with the statutory scheme of the Act, which clearly provides for the non-transmission of status for persons subject to a deportation order under the

[29] Finally, the applicant argued that New Zealand’s international obligations required s 432 of the Act to be read narrowly. The IPT held, however, that the choice between the 1987 Act and the 2009 Act was not a choice between an interpretation that promotes compliance with international obligations and one which does not. Rather, it was a choice between two different processes for complying with the international obligations. In the applicant’s case Parliament had decided that the

[30] In conclusion, the IPT found that the effect of s 432 of the 2009 Act was that the 1987 Act continued to apply to the applicant. He could not therefore bring a refugee or protected person claim under the 2009 Act. Accordingly, the RSB’s decision on 12 October 2012 was a nullity and the IPT did not have jurisdiction to consider an appeal against this decision.

[31] The applicant seeks judicial review on two grounds: first, he says the IPT misinterpreted the 2009 Act; secondly, he contends that he had a legitimate expectation to have been confronted with the Minister of Immigration’s jurisdictional argument at an earlier point.

[32] In relation to the first ground, Mr Woods, for the applicant, made two submissions. First, he submitted that the IPT wrongly applied s 132 to the applicant’s situation. Section 132 provides:

(1) A refugee and protection officer must not consider a claim by a person who is:

[33] Under s 4 of the 2009 Act, “resident” means “the holder of a resident visa”. Under s 415, the holder of a visa or permit under the 1987 Act is deemed to hold a visa under the 2009 Act of a corresponding type. However, s 415 does not apply to a person subject to s 432. As a result, the applicant did not become a holder of a resident visa under the 2009 Act.

[34] Mr Woods argued that, because the applicant is not a “resident” under the

2009 Act, s 132 does not apply to him and therefore cannot prevent his claim from being considered.

[35] Mr Woods’ second submission was that the IPT had wrongly concluded s 432 prevented the applicant from bringing a claim for recognition as a refugee or protected person under the 2009 Act. He submitted that s 432 should be viewed in light of the purpose of s 132 of the 2009 Act, which was to bring New Zealand into conformity with the Refugee Convention by permitting New Zealand residents subject to deportation to apply for refugee and protected person status.

[36] In relation to that second ground, Mr Woods submitted that the applicant has been seriously disadvantaged as a result of the way in which the jurisdictional issue surfaced. He said it was a breach of the applicant’s legitimate expectation that the applicant was given the submissions on the jurisdictional issue less than three weeks before the scheduled substantive hearing.

[37] Mr Woods’ essential argument is that s 432 of the 2009 Act does not prohibit the applicant from making a claim for refugee or protected person status under the

[38] The purpose of s 432 is to provide for the transition from the 1987 Act to the

2009 Act. There is no doubt that it applies to the applicant. At the time the 2009 Act came into force the applicant was already subject to a deportation order under the

1987 Act and had lodged an appeal with the DRT. Accordingly, s 446 applies to him and his appeal fell to be determined by the IPT in accordance with the 1987 Act.

[39] The intention of ss 432 and 446 is clear: to apply the 1987 Act to those individuals who were in the process of being deported from New Zealand under the

1987 Act when the 2009 Act was passed. Under s 129K of that Act, the holder of a residence permit is not permitted to lodge a refugee claim. Accordingly, the fact that persons subject to a DLN or deportation order under the 2009 Act can make a refugee claim does not assist the applicant.

[40] Mr Woods is correct that s 132 does not bar the applicant from making a refugee claim, as it does not apply to the applicant at all. Had he not already been subject to a deportation order under the 1987 Act, when the 2009 Act came into force, he would be deemed to hold a visa under the 2009 Act pursuant to s 415. However, because he was subject to a deportation order, his situation is governed by s 432, rather than s 415. Accordingly, he is not a person to whom s 132 can apply. That simply reinforces the conclusion that the applicant is meant to be dealt with under the 1987 Act processes rather than under the 2009 Act processes.

[41] Attempting to apply provisions such as ss 125 and 132 from the 2009 Act to the situation of the applicant serves to introduce an ambiguity that Parliament sought to avoid by providing for a person in the applicant’s situation to be dealt with under the 1987 Act.

[42] New Zealand’s obligations under the Refugee Convention do not alter this result. Where the interpretation of a statute is at issue, the Court may read the statue

consistently with international obligations. However, as the IPT found, the choice here is not between one interpretation that promotes compliance with international obligations and one that does not. It is a choice between two different processes for complying with the international obligations. In the applicant’s case, the applicability of New Zealand’s international protection obligations was considered as part of the test under s 105 of the 1987 Act. The transitional provisions make it clear that this was Parliament’s intention.

[43] In any event, the applicant’s claim has already been dealt with under the processes set out in the 1987 Act. Before he was issued with a deportation order, a “deportation interview” with him was conducted. That interview provided the applicant with an opportunity to raise any humanitarian concerns. It led to the completion of a report that was presented to the Minister of Immigration. The Minister considered the report and decided to issue a deportation order.

[44] The applicant then exercised his right of appeal against the deportation order. The DRT determined there were no humanitarian considerations to prevent the applicant being deported. He still retains the ability to petition the Minister to exercise his discretion under s 91(7) of the 1987 Act to revoke the deportation order. Thus he has a further opportunity to (re)raise the humanitarian considerations he alleges make deportation inappropriate in his case.

[45] In conclusion, I am satisfied that the effect of s 432 is that the applicant is subject to the 1987 Act. He cannot therefore lodge a refugee claim. The RSB’s determination of his refugee claim was a nullity and the IPT does not have jurisdiction to hear any appeal against that determination. The applicant’s first ground of review is dismissed.

[46] Having reached the above conclusion, I am satisfied that the second ground of review must also fail. As the second respondent submitted, a procedural error on the part of the IPT cannot require it to consider an appeal if, as a matter of law, it has no jurisdiction to do so. In any event, it is not clear how the applicant has been prejudiced by the way in which the jurisdictional issue was raised in this case. Initially, the hearing on 4 and 5 March 2013 was to have dealt with the jurisdictional

issue and the substantive merits of the applicant’s appeal. The applicant’s solicitor wrote to the IPT and requested that the substantive hearing be postponed until the jurisdictional issue was resolved. That request was granted.

High Court of New Zealand Decisions

Ahmed v Immigration and Protection Tribunal [2014] NZHC 809 (16 April 2014)