Judge scathing about treatment of Benipal

Press, 4 December 1985, Page 14

Judge scathing about treatment of Benipal

PA Auckland An application for refugee status by Jagpal Singh Benipal, an Indian who entered New Zealand in May, 1983, using a Dutch passport and fearing persecution in his own country, was not properly dealt with by the Ministers of Foreign Affairs and Immigration, a High Court judge has ruled. Mr Benipal should “not be removed” from New Zealand pending reconsideration of his case, Mr Justice Chilwell said. In a statement handed down in the High Court at Auckland, his Honour said the decision of the Ministers (in the then National Government) to reject Mr Benipal’s application was invalid. He declared the decision invalid on the ground of mistake of fact.

His Honour also quashed the recommendations of the Interdepartmental Committee on Refugees made to the Ministers in May and August, 1983. In his 382-page judgment based on hearings in 1983 and 1984, his Honour made a binding declaration on the Ministers and the interdepartmental committee. He said that because of Jagpal Benipal’s well founded fear of being per-

secuted for reasons of religion and political opinion be was outside his country of nationality. Because of that fear, he was unwilling to avail himself of the protection of India.

The application of Mr Benipal, who is now aged 27, for refugee status remained to be determined, his Honour said. He directed that the present Ministers of Foreign Affairs and Immigration, Messrs Lange and Burke, respectively, reconsider and determine the application jointly “in a manner not inconsistent” with his reasons for his judgment. His Honour said that if the Ministers decided to refer the issue to the interdepartment committee, he recommended it consist of different persons from the several chairman and members who considered the application previously. Mr Benipal was not to be removed from New Zealand, his Honour said. If the Ministers declined his application for refugee status they had leave to apply to cancel or vary the order after the delivery of another judgment in the case yet to come. The Interdepartmental Committee on Refugees held two hearings on Mr

Benipal’s application for refugee status in May and August, 1985. Both hearings were held in Mount Eden Prison, where Mr Benipal was being detained after his arrival in New Zealand.

In an earlier judgment in the case last year, his Honour said Mr Benipal was wrongly held without trial for four months at the prison. He said the committee, in its second hearing, became suspicious of Mr Benipal and “certain members set about to damage his credibility.” “It was not an inquiry conducted with open minds; but one conducted with a view to destroying Mr Benipal’s case once and for all.” His Honour said the committee looked for information to support its determination on whether Mr Benipal was a leader of his party, organising political activities, and to find sufficient fault with Mr Benipal’s case to discredit it. He found that members of the committee did not pay attention and listen to some of the evidence given by Mr Benipal and a former ,z New Zealand Herald” reporter, Mr David McLoughlin.

“The committee members had closed minds to Mr Benipal’s application and

did not take it seriously.” His Honour said that when the Ministers declined Mr Benipal’s application in August, 1983, they acted unfairly in delaying notification to Mr Benipal of their decision. Among his Honour’s reasons for finding that the determination of Mr Benipal’s application was invalid were: ® There was a real likelihood the Minister of Immigration had predetermined he would reject the application after the committee’s rehearing. 9 No weight was given to Mr. Benipal’s unchallenged evidence of detention without trial on two occasions in India, ill-treatment while in custody, torture and threats of death. • The Ministers were mistaken in deciding Mr Benipal’s case did not fail within the terms of the 1951 convention relating to the status of refugees. • In rejecting Mr Benipal’s application, the Ministers failed to exercise their discretion properly, they failed to exercise independent judgment when they accepted the recommendations of the interdepartmental committee. • The decision of the Ministers was, in all the circumstances, unreasonable.

• The committee did not fully inform the Ministers of the evidence and submissions. Nor did it supply an accurate summary of the relevant evidence and submissions from the hearings.

• The Ministers were given a wrong impression of the evidence and reached their decision without consideration of and in ignor,ance of all the relevant evidence.