WK v Refugee and Protection Officer

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 62/2018
[2018] NZSC 91

BETWEEN	WK Applicant
AND	REFUGEE AND PROTECTION OFFICER Respondent

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	R S Pidgeon and I Rasheed for Applicant S P Jerebine and M Majeed for Respondent
Judgment:	10 October 2018

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe applicant is to pay costs of $2,500 to the respondent.

____________________________________________________________________

REASONS

Background

Since 2012 Mr WK has made four unsuccessful claims under the Immigration Act 2009 for refugee or protected person status. He is Turkish and came to New Zealand in 2011.
On his fourth claim (made on 21 March 2017), the Refugee and Protection Officer considered the claim to be manifestly unfounded, abusive and a repeat of previous claims. On 8 May 2017 he therefore exercised his discretion under s 140(3) of the Immigration Act to refuse to consider the claim.
Mr WK applied for judicial review of this decision which was dismissed by the High Court.[1] The High Court also dismissed his attempt to introduce new evidence during and after the hearing. Mr WK appealed to the Court of Appeal, seeking also to adduce further evidence.[2] Both his applications were dismissed. Mr WK was deported to Turkey on 2 August 2018.

Application

[1]WK v The Refugee Protection Officer, MBIE, Auckland [2018] NZHC 514 (Woodhouse J).

[2]WK v Refugee and Protection Officer [2018] NZCA 258 (Asher, Venning and Mander JJ).

Mr WK seeks leave to appeal on a number of grounds he says are legal issues of general or public importance, including the interpretation of s 140, the threshold for the admission of evidence and the standard of review. He also challenges the application of the law to his case.

Our assessment

Nothing raised by Mr WK suggests that the result would have been different even under the legal tests he advocates. In any event, as the Crown submits, the appeal is moot because Mr WK has left New Zealand.[3] It is thus not in the interests of justice to hear the proposed appeal.

Result

[3]Immigration Act 2009, s 142 provides that, where a claimant leaves New Zealand “his or her claim (including any subsequent claim) under [Part 5 of the Immigration Act] must be treated as withdrawn”.

The application for leave to appeal is dismissed. The applicant is to pay costs of $2,500 to the respondent.

Solicitors:
IR Legal, Wellington for Applicant
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In WK v Refugee and Protection Officer, the applicant, a Turkish national who had made multiple unsuccessful claims for refugee status in New Zealand, sought leave to appeal against the dismissal of his application for judicial review and subsequent appeal to the Court of Appeal. The central issue was whether the Refugee and Protection Officer had erred in exercising his discretion under section 140(3) of the Immigration Act 2009 to refuse to consider the applicant's fourth claim, which was deemed manifestly unfounded, abusive, and repetitive. The applicant argued that the officer's decision was legally flawed and sought to introduce new evidence which was rejected by both the High Court and the Court of Appeal.

The Supreme Court considered whether the appeal had merit and whether it was in the interests of justice to proceed, given that the applicant had been deported to Turkey. The court noted that even if the legal arguments posited by the applicant were correct, there was no indication that the outcome would have been different. Additionally, the court highlighted that the appeal had become moot because the applicant had left New Zealand, rendering his claims effectively withdrawn under section 142 of the Immigration Act 2009.

The Supreme Court concluded that the appeal was not in the interests of justice and dismissed the application for leave to appeal. The applicant was ordered to pay costs of $2,500 to the respondent. This decision underscores the importance of the timeliness and relevance of appeals, particularly in immigration matters where the physical presence of the claimant in the country is a critical factor.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established