AU (Afghanistan) v Ministry of Business, Innovation and Employment [2017] NZIPT 502815 (27 March 2017)

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Counsel for the Appellant: A Kelland Counsel for the Respondent: G La Hood Date of Decision: 27 March 2017

[1] The appellant, a 42-year-old citizen of Afghanistan, has lodged a humanitarian appeal against her liability for deportation. The appeal was lodged contemporaneously with an appeal against a decline of her claim for refugee and protected person status in accordance with section 194(5) and (6) of the Immigration Act 2009 (the Act).

[2] The grounds for determining a humanitarian appeal are set out in section 207 of the Act:

(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that-

(a) There are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b) It would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

[3] A preliminary issue has arisen as to whether the Tribunal has jurisdiction to hear this appeal.

2015 made an application for refugee and protected person status. By decision dated 22 June 2016, the Refugee Status Branch (RSB) declined the appellant’s claim. On 18 July 2016, the appellant lodged an appeal with the Tribunal against the decline of her refugee and protected person claim. She also lodged at the same time a humanitarian appeal against deportation liability. While at the time she lodged the humanitarian appeal the appellant remained on a valid visa until

[5] On 19 July 2016, the IPT Liaison Team at the Ministry of Business, Innovation & Employment raised an issue with the validity of the deportation humanitarian appeal. It noted that, under section 194(2)(b) of the Act, the last day for lodging the appeal against the declined refugee and protection claim was

14 July 2016. It further noted that, while the Tribunal had statutory power to extend the time for the filing of the refugee and protection appeal, no such power existed in relation to the humanitarian appeal.

[6] By letter dated 25 July 2016, the Tribunal sought detailed submissions on the issue from counsel for both the appellant and the respondent as to the jurisdiction of the Tribunal to hear the deportation appeal. On 8 August 2016, counsel for the respondent filed submissions. On 16 August 2016, submissions from counsel for the appellant were received.

[7] Counsel for the appellant submitted that it was appropriate in all the circumstances for the Tribunal to extend the time for the filing of the refugee appeal. By letter dated 30 November 2016, the Tribunal allowed this application.

It indicated that its decision on the issue of the jurisdiction to hear the humanitarian appeal would be issued separately.

[8] The appellant’s hearing in respect of the refugee and protection appeal has been scheduled for 30 March 2017. While, as will be discussed below, the Act precludes the Tribunal from considering her humanitarian appeal against deportation liability unless and until it makes a decision declining both her refugee and protection appeals, it is important that the appellant, and counsel, have clarity as to the Tribunal’s position on the status of humanitarian appeals in such circumstances.

(1) A person may appeal to the Tribunal against a decision by a refugee and protection officer—

(a) to decline to accept for consideration the person’s claim to be recognised as a refugee or a protected person on the grounds that—

(i) in light of an international arrangement or agreement (as defined in section 134(5)), the person may have lodged, or had the opportunity to lodge, a claim for refugee status in another country:

(ii) in light of an international arrangement or agreement (as defined in section 134(5)), the person may have lodged, or had the opportunity to lodge, a claim for protection in another country:

(b) under section 134(3) to decline to accept for consideration the person’s claim to be recognised as a refugee:

(c) to decline the person’s claim to be recognised under any of sections 129, 130, and 131 as a refugee or a protected person (whether or not the refugee and protection officer recognised the person as a refugee or a protected person under the grounds set out in another of those sections, or both of those other sections):

(d) to cease to recognise the person as a refugee or a protected person under section 143:

(e) to cancel recognition of a New Zealand citizen as a refugee or a protected person under section 145.

(a) if the person is in detention under Part 9, not later than 5 working days after the date on which the appellant is notified of the decision to which the appeal relates; or

(b) in any other case, not later than 10 working days after the date on which the appellant is notified of the decision to which the appeal relates.

(3) The Tribunal may, however, extend the time for lodging an appeal if satisfied that special circumstances warrant an extension.

(5) Subsection (6) applies to a person who is entitled to an appeal under subsection (1)(a), (b), or (c) and who either—

(a) is liable for deportation and is entitled to a humanitarian appeal in respect of that liability; or

(b) would be entitled to a humanitarian appeal in respect of his or her liability for deportation, if he or she became liable for deportation.

(6) The person must lodge a humanitarian appeal at the same time as lodging an appeal under this section (and, in respect of a person to whom subsection (5)(b) applies, the humanitarian appeal must be conducted as if he or she were a person liable for deportation). If the person is—

(a) successful on the appeal under this section, the Tribunal must dispense with its consideration of the person’s humanitarian appeal:

(b) unsuccessful on the appeal under this section, the Tribunal must consider the person’s humanitarian appeal.

(6A) If the Tribunal dispenses (under subsection (6)(a)) with the consideration of a person’s humanitarian appeal lodged at the same time as an appeal under subsection (1)(a) or (b), the person may subsequently lodge a humanitarian appeal only if it is lodged, as required by subsection (6), at the same time as an appeal under subsection (1)(c).

(7) If the person does not lodge a humanitarian appeal in accordance with subsection (6), the person is not entitled to a humanitarian appeal against his or her liability for deportation, whether the liability currently exists or may arise in the future.

(8) To avoid doubt, nothing in subsection (7) applies to a person who— (a) complies with subsection (6); and

[10] The simultaneous filing of both refugee/protection and humanitarian appeals will not necessarily mean that an out-of-time application will need to be made. The appeals may be received within the relevant statutory time-frame for

both types of appeal. Where this is the case, no problem arises. Issues arise, however, where the refugee claim is filed outside the relevant statutory time frame. Should any extension of time granted in relation to the refugee and protection appeal extend to any humanitarian appeal against deportation liability filed with it? This question lies at the heart of the dispute between the parties.

DOES THE POWER UNDER SECTION 194(3) TO EXTEND TIME GENERALLY INCLUDE A HUMANITARIAN APPEAL AGAINST DEPORTATION LIABILITY FILED CONTEMPORANEOUSLY WITH A REFUGEE AND PROTECTED PERSON APPEAL?

[11] Ms Kelland submits that power under section 194(3) of the Act to extend time for the filing of the refugee and protection appeal where special circumstances exist, if exercised in the appellant’s favour as here, will capture within its orbit any deportation humanitarian appeal that was lodged at the same time. In counsel’s submission, the phrase “at the same time” means simultaneously with the lodging of the appeal against the decline of refugee and protected person status.

[12] Such an outcome is, Ms Kelland submits, consistent with the purpose of the legislation that the Tribunal hear all relevant appeals together. In support of this proposition, counsel cites the statement by the then Minister of Immigration introducing the Act’s precursor Bill into Parliament relating to the establishment of the Tribunal “to consider all grounds of appeal for a single appellant”. Further, it is submitted that a finding that the extension of time would include the humanitarian appeal would interfere with the appellant’s basic human right to access to courts on humanitarian grounds. Citing Ye v Minister of Immigration [2009] NZSC 76 at [24] and Air New Zealand Pilots Association Inc v Attorney-General [1997]

3 NZLR 269, counsel refers to the principle of statutory interpretation that, so far as wording permits, legislation should be read in a manner consistent with New Zealand’s international obligations. If Parliament intended to override the appellant’s human rights, clear and direct language is required. Also relied on is section 6 of the New Zealand Bill of Rights Act 1990 which provides:

Whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights that meaning should be preferred to any other meaning.

[13] Finally, it is argued that the phrase ‘at the same time’ does not, as “general words”, override the specific wording in section 194(2) and the specific extension of time allowed for in section 194(3).

[14] Mr La Hood, for the respondent, argues that the wording of section 194 is plain. The title of the section refers only to appeals against decisions declining refugee and protection status other than subsequent claims. There is nothing on the face of section 194 which indicates that Parliament intended that the provision made for extending time was to include associated humanitarian appeals. If Parliament had intended this, it would have been expressly stated.

[15] It is further submitted that reference in section 194(6) to “an appeal” under this section clearly indicates that it is only one of the two appeals referred to in that section which is actually lodged under that section. This wording implies that humanitarian appeals are lodged separately under another section, but which must nevertheless be lodged at the same time as the appeal under section 194.

[16] Section 5(1) of the Interpretation Act 1999 requires that the meaning of section 194(3) of the Act be ascertained “from its text and in light of its purpose”.

[17] As noted by Blanchard J in Siemer v Heron [2011] NZSC 133; [2012] 1 NZLR 309 (NZSC), in some instances, words “must be held to mean what they say. The ... language does not support any other interpretation”. It is therefore important to give due deference to the text as it appears in section 194(3).

[18] Nevertheless, the Interpretation Act also provides for a purposive interpretation. The Supreme Court has emphasised that, even where the meaning of the text may appear plain when considered in isolation, it must always be cross-checked against purpose in order to observe the dual requirements of section 5; see Commerce Commission v Fonterra Cooperative Group Ltd [2007]

[19] It is also important to bear in mind that section 29 of the Interpretation Act

1999 provides that an “enactment” means the whole or a portion of an Act or Regulation. This is relevant because the Immigration Act 2009 is notable for the fact that Part 5 (relating to refugee and protected person status determinations), Part 6 (relating to deportation) and Part 7 (relating to appeals, reviews and other proceedings) each have specific purposive provisions in addition to the general

purposive provision for the Act as a whole set out at section 3. Any consideration of the ‘purpose’ of section 194(3) must take into account not only the overall general purpose of the Act as a whole, but also take into account and be reconciled with the specific purposive provisions of the other Parts.

[20] Starting with the text of section 194(3), the first point to note is it does not expressly refer to a humanitarian appeal against deportation liability. However, it does not mention any particular type of appeal at all; rather it refers only to “an appeal”. Nevertheless, the Tribunal agrees with Mr La Hood that reference to “an appeal” can only textually refer to the appeal against the decision of a refugee and protection officer relating to a refugee and protection claim lodged with the RSB (including decisions refusing to accept a claim for consideration). While section

194(3), refers only to “an appeal”, it does so in the context of a section headed: “Right of appeal in relation to decisions concerning refugee or protection status (other than subsequent claims)”. This leads, arguably, to a clear result: the statutory power to extend time which is included in section 194 is limited to the refugee and protection appeal to which that section relates and not to any associated appeal against deportation liability.

[21] Further support for this textual reading comes from subsection (6), which refers to “a humanitarian appeal”; language which is expressly counter-posed against something else which is called “an appeal under this section”. This explicit textual distinction supports the view that reference to “an appeal” for the purposes of section 194 as a whole is limited to an appeal against a decision relating to refugee and protected person status.

[22] A further point to note in support of this reading is that, as counsel for the respondent submits, subsections (5) and (6) do not create a right of appeal on humanitarian grounds. Rather, they together set out the criteria by which the Tribunal hearing an appeal against a refusal of a claim to be recognised as a refugee or protected person, or refusal to consider such a claim on specified grounds, may become seized of a humanitarian appeal which the appellant is entitled to bring by the operation of other sections of the Act.

[23] Here subsection (5) distinguishes between two categories of refugee and protection claimants, namely:

(a) those presently liable for deportation and who are entitled to a humanitarian appeal in respect of that liability; and

(b) those who, like the appellant, would have an entitlement to a humanitarian appeal in respect of any deportation liability arising at some future point in time.

[24] As will be discussed in detail below, this statutory bifurcation between current and future liability for deportation is of critical importance in determining how an out-of-time refugee appeal may affect the Tribunal’s jurisdiction to hear an associated humanitarian appeal

[25] Sections 154 to 163 provide for various means by which a person may become liable for deportation, or are to be treated as such for the purpose exercising appeal rights under the Act. These are:

(a) Section 154 – unlawful presence in New Zealand; (b) Section 155 – visa granted in error;

(d) Section 157 – Minister determines there is sufficient reason to deport holder of temporary entry class visa;

(e) Section 158 – residence class visa or citizenship obtained by fraud; (f) Section 159 – breach of resident class visa conditions;

(g) Section 160 – availability of new information as to character of holder of resident class visa;

(h) Section 161 – specified criminal offending by holder of residence class visa;

[26] A cursory examination of the text of these various means by which deportation liability can arise reveals four important points.

[27] First, these various deportation liabilities give rise to different rights of appeal. For example, persons liable for deportation on the ground of being unlawfully in New Zealand may only appeal on humanitarian grounds; section

154(2). Similarly, holders of temporary class visas granted in error only get to

appeal against their deportation liability on humanitarian grounds, whereas the holders of residence class visas get a right of appeal both on the facts and on humanitarian grounds; section 155(4).

[28] Second, the time for appealing to the Tribunal across these various means by which a deportation liability arises is not uniform. In the case of persons here unlawfully, the appeal to the Tribunal must be lodged with the Tribunal within 42 days of the relevant date; section 154(2). Persons whose deportation liability arise by reason of a visa being granted in error, must lodge an appeal within 28 days of service of the deportation liability notice; see section 155(4). Where a visa is held under a false identity, the appeal period varies between 28 and 42 days depending on whether the person concerned has been convicted of an offence in an identity different to that under which they hold the visa, or whether the Minister has determined the person holds the visa under a false identity. Whether the visa is a temporary or residence class visa also is relevant here; see sections 156(1), (2) and (3).

[29] Third, although variable in length, the time-limit provided for in relation to appeals against deportation liability as a class (28 or 42 days) is far greater than the time provided for in relation to a refugee or protection appeal (10 or 5 days). The effect of section 194(5) is to drastically shorten the statutory time limit otherwise provided for in relation to appeals against deportation liability and to bring the time-limits in those appeals into line with that which pertains to any associated refugee and protection appeal.

[30] Fourth, in no instance where the Act confers a right of appeal in relation to a deportation liability does it confer on the Tribunal power to extend the time for filing of an appeal against that deportation liability beyond that which is provided for under the relevant section.

[31] Taking all of the above into account, a purely textual analysis of both section 194(3) and the other sections of the Act providing for appeals against the various forms of deportation liability clearly supports the proposition advanced by the respondent that the power to extend time is limited to the refugee and protection appeal. Parliament has provided, generally for the relatively longer time limits for filing deportation appeals to strictly apply, save that where a person has lodged a refugee and protection claim, the period of time is truncated to correlate to that relating to the latter. To the extent that this may be seen, as Ms Kelland contends, to amount to depriving the appellant of a human right of access to the Courts, Parliament has used clear language to do so. That said, it is far from clear

that there is in fact any denial of access to courts given the Act provides for a rights of appeal. The setting of time limits for appealing does not amount to denial of access.

[32] If a purely textual analysis does not support the argument of counsel for the appellant, what of purpose? Does such textual interpretation offend purpose as is also contended for by counsel for the appellant?

[33] As noted, section 29 of the Interpretation Act 1999 directs attention to the purposive provisions of the 2009 Act as a whole. The first place to start is the general purposive provision of the Act at section 3. This relevantly provides:

(1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.

(2) To achieve this purpose, the Act establishes an immigration system that— (a) requires persons who are not New Zealand citizens to—

(d) provides a process for implementing specified immigration-related international obligations; and

(e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—

(i) enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and

(ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and

(f) establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals; and

[34] In relation to refugee and protection determinations, section 124 is the specific purposive section. This provides:

The purpose of this Part is to provide a statutory basis for the system by which

(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—

[35] In relation to deportation, the relevant section is section 153. This provides:

(1) The purpose of this Part is to support the integrity of New Zealand’s immigration system and the security of New Zealand by providing for the deportation of certain persons from New Zealand.

(d) specifies the only situations in which an appeal right exists in respect of that liability; and

(e) provides for the person’s deportation to be executed without the need for further inquiries if no appeal is made or an appeal is unsuccessful.

[36] Finally, in relation to appeals, the relevant purposive provision is section

(a) to provide comprehensively for the system of appeal and review in respect of decision making under this Act, including by providing for—

(iii) appeals in respect of decisions concerning recognition of a person as a refugee or a protected person; and

(b) to establish the Immigration and Protection Tribunal, a specialist tribunal to determine appeals and other matters under this Act; and

(c) to provide for appeals from the decisions of the Tribunal, and deal with judicial reviews of decisions made under this Act.

[37] Viewed together, these provisions indicate a legislative intention which may be summed as follows: an intention to provide a complete code setting out a comprehensive framework by which a single specialist Tribunal is to determine appeals against decisions made under the Act and “humanitarian appeals” against deportation liability, where Parliament has specified that such appeal rights exist, in order to manage immigration in a way that balances the national interest, as determined by the Crown but including compliance with specified international obligations and the rights of individuals.

[38] These purposive provisions reflect that the Act straddles two separate spheres of administrative action relating to forms of human mobility: the immigration sphere and the protection sphere. The former is grounded in the sovereign right of New Zealand to control entry to its territory, the other is New Zealand’s obligations under public international law, most particularly, the principle of non-refoulement; see, here, discussion in AC (Syria) [2011] NZIPT 800035 at [49]- [58]. This is not to say that decisions in the Act’s immigration sphere of operations may not involve human rights considerations. Plainly they might. It is also true that a successful application in the protection sphere will ordinarily lead to conferral of a status in the immigration sphere. Nevertheless, the constitutional foundation underpinning the administrative action differs; one is grounded in norms of public international law including international human rights law; the other in national interest as determined by the State as an aspect of sovereignty. This distinction is important to bear in mind.

[39] In terms of divining purpose, it is also useful to look at the Background Paper and the Cabinet Briefing Paper prepared by the Office of the Minister of Immigration to the Chair of the Cabinet Policy Committee, seeking Cabinet approval for the introduction of the Immigration Act, as a means of ascertaining, objectively, the intention of Parliament.

[40] The Briefing Paper contains the following statements as to the purpose of the new proposed statutory regime:

21 A new protection regime is proposed that would ensure that all core immigration-related international conventions are provided for in domestic legislation and would require all claims for international protection to be assessed in a single procedure. This would build on the highly regarded refugee determination system and would keep New Zealand in line with best practice internationally. The proposals also take the opportunity to clarify how New Zealand can deal with a protected person who would otherwise be liable for deportation, particularly where they present a significant risk to New Zealand.

22 The proposed deportation system would bring together numerous provisions regarding removal, revocation and deportation in a transparent framework that clearly sets out a non-citizen’s rights and obligations. It would provide for more efficient deportation processes, but would also increase fairness by, in many cases, allowing people to continue to work or study during any appeals.

23 The proposed independent appeals system would establish a new single Immigration and Protection Tribunal (the tribunal), replacing the four existing appeals bodies. The tribunal would allow any non-citizen a single right of appeal that may include consideration of the facts of the matter, international obligations and humanitarian concerns, depending on the circumstances. Again, this proposal would create greater efficiencies in the overall immigration system, while maintaining New Zealand’s high standards of fairness and improving transparency for non-citizens.

[41] From these paragraphs three main policy objectives relevant to the present issue emerge:

[42] These themes are also reflected in the Background Paper to the Immigration Act review. Paragraph 300 of the Background Paper records that there was “significant public support” for the proposal to include in a single determination procedure with a single right of appeal, claims under the Convention together with protected person claims.

[43] Turning to consider the issue of deportation liability on the basis of unlawful presence in New Zealand, under the heading “Proposals”, the Background Paper notes at paragraph 439 that (emphasis in original):

It is proposed that deportation liability would be triggered where a non-citizen becomes unlawful in New Zealand on the expiry of a visa or by never having held a visa. Deportation liability would reinforce the statutory obligation for non-citizens here unlawfully to leave.

For temporary entrants, the 42-day period to lodge a humanitarian appeal with the Tribunal would have passed in many cases. The purported holders of resident or permanent resident visas would be able to appeal to the Tribunal on the facts. The discretionary power to regularise the status of people here unlawfully would allow a visa to be granted in the non-citizen’s true identity for example where a genuine refugee had used a false identity to flee persecution.

[45] It is not clear whether this paragraph is relating simply to the position of persons who were granted a visa under a false identity.

[46] Commenting on appeals, the Background Paper notes the efficiency gained by having a single Tribunal to hear all immigration and protection related appeals. Discussing the proposals for “a single appeal”, the Background Paper states at paragraph 555:

It is proposed that a person may have a single right of appeal to the Tribunal only, and where that person is eligible for more than one appeal, all grounds must be lodged together. This is achieved by allowing one appeal to the Tribunal against deportation that addresses, where applicable, matters of fact, international protection obligations, and humanitarian grounds. This means that humanitarian grounds for appeal against deportation could be assessed in an appeal against residence or protection declined.

Where a person did not take up their independent appeal right the Department would undertake a humanitarian assessment (not to be set out in legislation) prior to actual deportation.

[48] After noting that the then existing deportation appeal system “in particular is complex and inefficient” and that there were potential difficulties with one appeal in terms of the range of evidence that may be tendered, the Background Paper nevertheless concluded at paragraph 562:

On balance, and in light of the obvious efficiencies and cost savings that would flow from it, it is considered that appeals can be fairly and appropriately determined through a single appeal with a structured, stepped decision making process as proposed below.

[49] As for deportation appeals on humanitarian grounds, the Background Paper notes at paragraph 586 that:

It is proposed that all persons liable for deportation may appeal to the Tribunal within time limits.

[50] “For clarity” it goes on to state that, reflecting the status quo, certain persons would not have access to a humanitarian appeal. However, at paragraph

persons unlawfully in New Zealand who could (at that time) appeal to the Removal

As discussed in Chapter 4: Protection, any person may appeal to the Tribunal against an adverse protection decision. Where a person is not prevented from lodging a humanitarian appeal as set out above... they may also lodge a humanitarian appeal with the protection appeal.

This proposal would prevent failed protection claimants having a separate appeal to the Tribunal on humanitarian grounds. It would allow for maximum efficiency, and is more likely to result in robust, consistent decision making.

[53] Under the heading “How the Tribunal would operate” the Background Paper notes:

a. appeals against residence decisions must be lodged within 42 days of notification of the original decision (status quo)

b. deportation appeals to the tribunal must be lodged within 42 days of a person staying beyond the validity of their permit (status quo), or within 28 days of receiving deportation liability notice, and

10 days of notification, or within five working days of notification where the person is in detention (status quo).

618 It is proposed that the tribunal may consider out of time appeals from protection claimants only (status quo).

619 As discussed earlier, the tribunal would be able to regulate its procedures as it sees fit. This would, among other things, allow the tribunal the discretion to hear appeals on the facts and on humanitarian grounds together or separately. It would also allow the tribunal flexibility in regard to when it heard and determined an appeal from a person who is serving a prison sentence. It is proposed that the Bill provide guidance to the tribunal that it must determine appeals prior, but as close as possible, to the person’s date of release from prison.

620 The current appeal periods include 5, 10, 21 and 42 day timeframes. Appeals against residence decisions must be lodged within 42 days of notice. Appeals against deportation to the RRA must be lodged within 42 days of staying beyond the validity of a permit. Appeals against a protection decline must be lodged within 10 or 5 days of notice, depending on the form of the notice. Appeals to the High Court and DRT currently must be lodged within 21 days of notice. Out of time appeals may be accepted from refugee appellants only.

621 The discussion paper suggested that the timeframe for humanitarian appeals could be reduced to 28 days. The small number of submitters who commented on timeframes generally considered that the 42 day period should be retained, or that flexibility for hearing out of time appeals should be allowed.

622 These proposals largely mirror the status quo, but increase the appeal period from 21 days to 28 days in some cases. This recognises that a person may be lodging an appeal on more than one ground. In the deportation context, it is important to have a clear appeal period, after which deportation may proceed if the person has not lodged an appeal. These proposals allow certainty that all appeal rights have been exhausted before deportation is executed. An exception is provided in the case of protection claims on the basis that international obligations are at stake.

623 It will be vital to ensure that all non-citizens arriving in New Zealand are clearly informed that they may deported if they stay beyond the validity of their visa.

[54] These three concepts of compliance with international obligations, efficiency of process and fairness to the individual are embedded in the general purposive statement appearing at section 3 of the Act. These objectives are also carried over into the relevant substantive provisions of the Act, and their interplay shapes the provisions relating to refugee and protection appeals and appeals against deportation liability, both as independent rights of appeal and in terms of their potential linkage.

[55] Once filed, the statutory scheme clearly and explicitly provides for an ongoing linkage of the three distinct types of appeals: refugee, protection and humanitarian. As noted in AC (Syria) [2011] NZIPT 800035, the Act provides for mandatory sequence of assessment, giving clear primacy to the appeal in relation to the Refugee Convention, followed by consideration of the appeal in relation to the protected person claim and the humanitarian appeal against deportation liability as required; see sections 196, 197 and 198. In each instance, however, if the appeal under the Refugee Convention or as to protected person status is successful, the Tribunal must dispense with “any humanitarian appeal lodged by the person in accordance with section 194(6)(a)”; see sections 196(3), 197(4) and

[56] While the refugee/protection and humanitarian appeals can become administratively linked, they remain separate types of appeal and are treated as such. It seems clear that Parliament was not intending to treat them alike for all purposes. This intention is most cogently demonstrated by the fact that, whereas the Tribunal must substantively consider the merits of the refugee/protection

appeal, the Tribunal’s obligation to consider any humanitarian circumstances raised by an anticipated deportation is entirely contingent on its findings in relation to the statutorily mandated prior consideration of the refugee and protection appeals.

[57] That the refugee/protection and humanitarian appeals are not treated alike for all purposes mitigates against it being purposively intended by Parliament that the conferral of power on the Tribunal to allow for an extension of time for the filing of the refugee/protection appeal would ipso facto extend to capture any appeal against existing or future deportation liability provided only it was filed at the same time.

[58] While Ms Kelland is correct that, as an aspect of efficiency, Parliament intended to create a single Tribunal, “to consider all grounds of appeal for a single appellant”, this begs the question of what the permissible statutory grounds of appeal are. Nor can this general statement of purpose of itself enlarge the time for filing any permissible appeal beyond that provided for in the Act.

[59] However, the coexistent goals of compliance with international obligations (and in particular those most commonly accepted as giving rise to the duty of non-refoulement) and fairness, underpin just why Parliament has, in the Act’s protection sphere of operation, conferred on the Tribunal power to extend time for filing refugee and protection appeals where special circumstances are found to exist. Given the predicament particular to refugee claimants as a class, failure to do so could render New Zealand’s adherence to its international law obligations as much an exercise in window dressing as that disapproved of by the Court of Appeal in Tavita v Minister of Immigration [1994] 2 NZLR 257.

[60] While the Background Paper at paragraph 621 postulated a proposal by submitters commenting on the draft bill that the Tribunal be given power to extend time in relation to humanitarian appeals, this was linked back to the proposal to only allow a 28-day period within which to lodge an appeal. This was not enacted and the pre-existing 42-day time limit was retained. Parliament was clearly acting deliberately. As noted already, there is an absence of power to extend the time for filing of appeals across deportation appeals as a class. This clearly signals that Parliament intended the time frames provided for under sections 154 to 163 to strictly apply, reflecting desired efficiencies of process in the Act’s immigration sphere.

[61] The deliberate retention of the longer 42 day period for filing appeals on humanitarian grounds seems grounded in considerations of fairness. However, section 194(6) prioritises the goal of efficiency of process by bundling up a humanitarian appeal against deportation liability with any appeal the person has against a decision declining a refugee and protected person claim in order that the Tribunal may consider all protection and humanitarian circumstances pertaining to the individual in a singular and streamlined process.

[62] In summary, as with a textual analysis, a purposive analysis also does not support a finding that the favourable exercise of the power to extend time contained in section 194(3) extends to both a refugee and protection appeal and an associated humanitarian appeal against deportation liability provided only that the two appeals are lodged ‘at the same time’. Rather, a differential ability to seek an extension of time reflects the desired interplay of the three policy objective across the Act’s two principal spheres of operation.

[63] This fundamental protection/immigration binary also answers Ms Kelland’s submission that to hold that the extension of time is limited to the refugee appeal would offend the principle that Parliament must be presumed to legislate consistently with its human rights obligations. Compliance with international obligations, including specified international human rights obligations, is a clear purpose of the Act. Further, that a deportation appeal can involve issues of human rights was affirmed by the Tribunal in AC (Syria) at [94]. Nevertheless, as already noted, a humanitarian appeal is not a claim for protection, typically understood as being something grounded in the non-refoulement obligation. Rather, it is an application in the Act’s immigration sphere of operations, albeit one which can be informed by human rights concerns and norms not falling within the ambit of the non-refoulement obligation.

[64] Moreover, Ms Kelland’s argument ignores that appellants whose appeal is out-of-time are not deprived under the Act from consideration of any underlying human rights issues their deportation may raise. Section 177(2) obliges an immigration officer to consider cancelling the deportation order “if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand’s international obligations”. As noted in the decision of the High Court in Ahmed v Immigration and Protection Tribunal and Minister of Immigration, [2014] NZHC 809 at [42]:

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 WHAT CIRCUMSTANCES WILL THE TRIBUNAL HAVE JURISDICTION TO HEAR A HUMANITARIAN APPEAL AGAINST A DEPORTATION LIABILITY FILED CONTEMPORANEOUSLY WITH A REFUGEE AND PROTECTED PERSON APPEAL?

[65] Even if it is accepted that section 194(3) does not generally permit the Tribunal to find that an extension of time granted in relation to a refugee and protection appeal captures an associated humanitarian appeal against deportation liability irrespective of the time concerned, this does not exhaust matters. The question arises as to whether the Act allows for an extension of time granted in relation to a refugee and protection appeal to preserve jurisdiction to hear an associated humanitarian appeal in any circumstances when the two are filed contemporaneously. In order to answer this question, it is helpful to set out the various circumstances in which the two appeals may be lodged.

[66] The most straightforward circumstance in which jurisdiction will arise is when both the refugee and protection appeals and the humanitarian appeals are lodged within the relevant statutory time frame pertaining to each. As already noted at [10], jurisdiction to hear a humanitarian appeal against deportation liability clearly exists where it accompanies a refugee and protection appeal which is lodged in time (that is, within five or 10 working days commencing with the date the decline of refugee and protection claim is notified to the appellant) and the humanitarian appeal is lodged within the relevant statutory time frame relating to the deportation liability in question.

[67] If the refugee and protection appeal is filed out-of-time, jurisdiction to hear that appeal depends on a successful application being made under section 194(3). However, even if such an application is successful, any out-of-time humanitarian appeal against deportation liability lodged with it will be invalid. No jurisdiction to hear the humanitarian appeal would exist. This is because once outside the time limit set in relation to the relevant deportation liability, the person is no longer entitled to a humanitarian appeal against deportation liability under section 206. This remains the case for the purposes of section 194(5) where being “entitled to

appeal” is one of the criteria upon which the Tribunal’s power to hear the associated humanitarian appeal is predicated.

[68] This is a common scenario. In the Tribunal’s experience, many refugee claims are declined in respect of persons who are already liable for deportation – that is to say they, have current deportation liability – but at a time substantially after the period for lodging a humanitarian appeal against that deportation liability has elapsed. Indeed, in many ways this is the paradigm case as genuine refugees often have to enter New Zealand on a false passport, or having obtained visas by fraudulent means and are thus deemed to be unlawful in New Zealand from arrival. Nevertheless, for the reasons already given in [67], the Tribunal will have no jurisdiction to hear any humanitarian appeal.

[69] It is important to stress here, that where Immigration New Zealand chooses to issue the refugee claimant with a temporary visa despite having entered unlawfully – itself a common practice – it is the status of this visa that will determine whether the appellant has a current or future deportation liability as at the date of any decline of the refugee and protection claim. For a recent discussion of this issue, see DZ (Sri Lanka) [2017] NZIPT 502646, 502661,

[70] More difficult considerations arise where a humanitarian appeal is filed contemporaneously with the refugee and protection appeal, but the refugee appeal is out-of-time while the humanitarian appeal is in time. This is not as unlikely a scenario as may seem at first glance.

[71] It is not uncommon for persons to arrive in New Zealand unlawfully, without any passport or documentation, and claim refugee status on arrival. Immigration New Zealand may obtain a warrant of commitment resulting in the claimant’s detention. The Refugee Status Branch expedites consideration of the claim which is declined 10 days after the person’s arrival. The person concerned does not lodge an appeal for a further 21 days after being notified of the decline, accompanied by a humanitarian appeal against their deportation liability. The refugee and protection appeal will be out-of-time as under section 194(2) the appeal should have been filed within five working days after notification. The

humanitarian appeal will, however, be in time as it was lodged within 42 days of the person first becoming unlawful in New Zealand; see section 154(2).

[72] In cases of this nature (of which the above example is merely an illustration), the issue arises as to how the Tribunal’s power to extend time in relation to the filing of the refugee and protection appeal impacts upon its jurisdiction to hear the humanitarian appeal. In the Tribunal’s view, the answer depends on whether the claimant has a current or future deportation liability as at the date they are notified of the decline of the claim for refugee and protected person status.

[73] It seems clear that the goal of efficiency of process has driven the linkage of deportation appeals with refugee and protection appeals, effectively bringing forward that date for filing humanitarian appeals from 28 or 42 days to a mere 10 days or, if the person is detained, as little as five. But, as noted, efficiency is merely one of three coexistent purposes underpinning the Act.

[74] Another such purpose is fairness. Allowing for a preservation of jurisdiction to hear in-time humanitarian appeals brought by persons with a current deportation liability, irrespective of whether any out-of-time application made in relation to the refugee and protection appeal is successful, is clearly consistent with fairness. Such an approach also coheres with the fact that it is the relevant section of the Act giving rise to the particular deportation liability, and not section

[75] In circumstances where the appellant makes a successful application to extend time for the filing of their refugee/protection appeal, provided that the appeals have been filed at the same time and within the period of time stipulated in the relevant section relating to the underlying deportation liability, jurisdiction to hear both as part of the singular and streamlined process envisaged under the Act is preserved.

[76] But even if the application is not successful, and the Tribunal is without jurisdiction to hear the refugee and protection appeal, it is difficult to see why Parliament would have intended to deprive the person of the right of appeal in relation to their current deportation liability that they would otherwise have been lawfully entitled to. Relevant here is the guillotining effect of sections 194(5) and (7) and 206(3)(a) which, effectively, deprive an appellant of an opportunity to bring

a future appeal. To not allow jurisdiction to be preserved in relation to the humanitarian appeal offends fairness to the individual given the person would have complied with both the formal requirements of sections 194(5) and (6) by lodging the appeals at the same time, and within the time-frame relating to the particular current deportation liability in question. Moreover, there is no appreciable trade-off with the goal of efficiency of process because, even if the Tribunal is not called upon to exercise its jurisdiction in the protection sphere, it is still able to substantively deal with the deportation liability. This is because, as noted at [74], this liability has in fact already arisen in the immigration sphere, albeit through the statutory lens giving rise to that liability and not section 194.

[77] The issue will only arise in a practical sense in relation to lawful holders of temporary class visas. This is because holders of residence class visas are statutorily prohibited from even lodging a refugee and protection claim unless and until they are served with a Deportation Liability Notice; see section 132(1)(b). In the case of residence class visa holders issued with a Deportation Liability Notice, they will have a current and not future liability for deportation.

[78] As for persons who are in New Zealand as the lawful holders of a temporary class visa at the time their claim is declined by the RSB, the position is different. Section 194(6) creates something of a legal fiction in that their humanitarian appeal must be conducted “as if” they were already liable for deportation. Section

206(3)(a) precludes the person from bringing an appeal to the Tribunal on humanitarian grounds in the future in respect of that liability if they fail to lodge their humanitarian appeal at the same time as a refugee and protection appeal.

[79] This, however, is consistent with what seems be a clear legislative intention that there be some impact in the immigration sphere once a person who is lawfully in New Zealand as the holder of a temporary visa lodges a claim for refugee or protected person status. Section 150 of the Act provides:

(a) is a claimant to whom a temporary entry class visa has been granted, whether before or after the person became a claimant; or

(b) having been a person to whom paragraph (a) applies, ceases to be a claimant by virtue of his or her claim being declined.

(2) A person to whom this section applies may not, either before or after the expiry of the temporary entry class visa,—

(b) while in New Zealand, request a special direction or make a request for the grant of a visa under section 61; or

(3) Despite subsection (2)(a), a claimant may apply for a further temporary visa for such period as may be required for the claimant to be lawfully in New Zealand while his or her claim is determined.

(c) the person is granted a visa (other than a temporary visa granted under the exception referred to in subsection (3)).

[80] The effect of section 150 is that, once a person lawfully in New Zealand elects to enter the Act’s protection sphere, their future rights in the immigration sphere are modified at a stroke. Their future immigration-related rights become contingent on the successful outcome of their protection claim. If unsuccessful, with the exception of any humanitarian appeal lodged with the refugee appeal, that person cannot make any further application in the immigration sphere while in New Zealand, for example, by seeking to transition from a temporary work visa to a residence class visa. No doubt, any prior claim by the person to stay permanently in New Zealand on protection grounds would be a factor to be weighed in terms of the issuing of any future temporary visa to an offshore applicant. Given this section effectively replicated section 129U of the Immigration Act 1987, Parliament clearly intended there to be this consequence.

[81] In a real sense, therefore, the filing of a refugee and protection claim is the Rubicon for those wishing to make future applications within the Act’s immigration sphere.

[82] Against such a backdrop of exceptional treatment, that the jurisdiction of the Tribunal to hear a humanitarian appeal against a future deportation liability lodged under section 194(5)(b) should be contingent on the outcome of the application to extend time under section 194(3) makes sense.

[83] Should the application be granted, both appeals can proceed in the streamlined process envisaged under the Act. Both efficiency of process and fairness are enhanced. In the event the humanitarian appeal is considered because the associated refugee and protection claim has been dismissed, the person is precluded from bringing a further humanitarian appeal in relation to that particular deportation liability when it actually arises in the future; see section

[84] Should the application for extension of time under section 194(3) be unsuccessful, the humanitarian appeal would become invalid. This is because, for persons with a future deportation liability, the statutory mechanism by which the humanitarian appeal is before the Tribunal is section 194(6), and not any of sections 154 to 163 of the Act; see [25]. In such circumstances, the Tribunal’s jurisdiction to consider the humanitarian appeal is contingent on the appeal against the decline of the claim for refugee or protected person status being “unsuccessful”, language which can only sensibly connote consideration by the Tribunal of the merits of that claim; see section 194(6). If so, the right of the person concerned to bring a further appeal against their future deportation liability is preserved. Section 206(3) would not apply as, under this approach, they would have filed their original appeal at the same time as the refugee and protection appeal, but this appeal would not have been heard.

[85] The Immigration Act 2009 is clearly meant to be a statutory code, not least in relation to who gets a right of appeal and in what circumstances. The Tribunal cannot enlarge appeal rights not clearly provided for in the Act.

[86] Parliament deliberately intended to retain different time limits for the filing of different classes of appeal. Where both the refugee and protection appeal and the deportation appeals are filed at the same time and within the relevant statutory time frames, no problems arise. Jurisdiction to hear both appeals will clearly exist.

[87] As regards out-of-time appeals, reflecting the differing natures and purpose of refugee protection and deportation appeals, there was never an intention to give the Tribunal any power to extend the time for filing a humanitarian appeal against a deportation liability beyond the specified statutory time limits. This statutory prohibition exists and functions independently of the clearly expressed power to enlarge time in relation to a refugee and protection appeal. That no general power

to extend time for the filing of appeals against a deportation liability exists in these circumstances is consistent with the overall statutory purpose.

[88] Once outside the time-limits set in relation to the relevant deportation liability, the person is no longer entitled to a humanitarian appeal against deportation liability, even if an extension of time is granted in relation to an associated refugee and protection appeal.

[89] The Act clearly contemplates that there may in fact be good reasons why extension of time is needed in the protection sphere to enlarge the period of time for the filing of an appeal. In the event the application for extension of time in relation to the refugee/protection appeal is successful, whether or not this impacts upon the Tribunal’s jurisdiction to hear any associated humanitarian appeal depends on whether it relates to a current or future deportation liability.

[90] Such an approach as outlined above means there remains no extension of time beyond that which Parliament intended to apply to the relevant type of deportation. Compliance with international obligations, efficiency of process and fairness to the individual are each preserved. The intended modification of the appellant’s right to make applications in the immigration sphere also remains substantially unaffected.

[91] The appellant’s refugee and protection claim was declined by the RSB by decision dated 22 June 2016. At the time she was the holder of a temporary class visa, valid until 18 October 2016. As the appellant was lawfully in New Zealand at the time of the filing of her appeal, and there is no suggestion that any other means by which a deportation liability could arise other than by a future unlawful presence upon the expiry of her then current visa, it is appropriate at the outset to also note section 154 of the Act, which relevantly provides:

	154	Deportation liability if person unlawfully in New Zealand
	(1)	A person unlawfully in New Zealand is liable for deportation.
	(2)	A person unlawfully in New Zealand may, not later than 42 days after first becoming unlawfully in New Zealand, appeal on humanitarian grounds against his or her liability for deportation.
	(3)	...
[92]	The	appellant’s appeal against a future deportation liability was filed

and protected person status on 18 July 2016, well within a 42 day period commencing with the date she was notified that her refugee and protection claim was declined. While her appeal against the decline of her claim for refugee and protected person status was filed out-of-time, the Tribunal allowed the application to extend time.

[93] In accordance with the framework set out above, the Tribunal therefore finds that it has jurisdiction to hear her humanitarian appeal.

[94] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant.

New Zealand Immigration and Protection Tribunal

AU (Afghanistan) v Ministry of Business, Innovation and Employment [2017] NZIPT 502815 (27 March 2017)