A Refugee and Protection Officer v YL

[2016] NZHC 1548

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-536 [2016] NZHC 1548

UNDER

the Immigration Act 2009, section 245 and

Part 20 Subpart 2 of the High Court Rules

IN THE MATTER

of an application for leave to appeal to the
High Court

BETWEEN

A REFUGEE AND PROTECTION OFFICER

Applicant

AND

YL Respondents

Hearing:	7 July 2016
Counsel:	K Stephen and M Clark for Applicant C Curtis for Respondents
Judgment:	8 July 2016

JUDGMENT OF BREWER J

This judgment was delivered by me on 8 July 2016 at 2:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Crown Law (Wellington) for Applicant

Marshall Bird and Curtis (Auckland) for Respondents

A REFUGEE AND PROTECTION OFFICER v YL [2016] NZHC 1548 [8 July 2016]

Introduction

[1]      The Crown is unhappy with a decision of the New Zealand Immigration and Protection Tribunal (“the Tribunal”).1    It wants to appeal the decision to this Court. To do so, it needs leave pursuant to s 245 of the Immigration Act 2009 (“the Act”).

[2]      Section 245 restricts any appeal to a point of law.  Subsection (3) provides:

In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

[3]      The respondents oppose the application for leave.  Essentially, they argue that the Tribunal made findings of credibility which are not susceptible to an appeal restricted to points of law.

[4]      This judgment determines the Crown’s application for leave to appeal the

Tribunal’s decision.

Issue

[5]      Has the Crown identified a question of law that by reason of its general or public importance, or for any other reason, ought to be submitted to this Court for its decision?

Background

[6]      The respondents are part of the same family and are citizens of China.  They also were permanent residents of Singapore.   They belong to a movement called Falun Gong.   They claimed refugee status in New Zealand based on their fear of persecution if returned to China or to Singapore.  The officer who considered their claims declined them on the basis that they had protection because they were permanent residents of Singapore.   The officer decided that there was  no well-

founded fear of persecution in Singapore.

1      YL [2016] NZIPT 800789-92.

[7]      The respondents appealed to the Tribunal.  After the hearing, but before the Tribunal had determined their appeals, the respondents renounced their residence status in Singapore.  As a result, China was the only country to which they could be deported.   The Tribunal accepted that the respondents no longer had the right to return to Singapore and allowed the appeal on the basis that the family faced a real risk of persecution in China.

[8]      The Crown’s position is that the Tribunal should have considered, and did not, the potential lack of good faith in the respondents renouncing their right of residence in Singapore.  The Crown’s submission is that the Tribunal, as a matter of law, was required to consider whether there was a lack of good faith on the part of the respondents at the time they relinquished their Singaporean residence status.

[9]      The question of law on which the applicant seeks leave to appeal is:

Whether, in deciding to grant refugee status to the four appellants, the IPT failed to take into account a mandatory relevant consideration and materially misdirected itself by failing to consider whether any or all of the appellants acted otherwise than in good faith or acted in bad faith in unilaterally renouncing their Singapore residence status prior to the IPT’s determination to grant them refugee status in New Zealand.

Discussion

[10]     The  test  for  determining  whether  an  issue  is  one  of  general  or  public importance or for any other reason should be submitted to the High Court was discussed by the Court of Appeal in Minister of Immigration v Jooste.2    The Court found the “test is similar to that applying to second appeals to this Court under s 67 of the Judicature Act 1908”,3 as was discussed by the Court in Waller v Hider:4

Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

2      Minister of Immigration v Jooste [2014] NZCA 23.

3 At [5].

4      Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

[11]     As is apparent from s 245(3), the issues raised must go beyond the particular circumstances of the parties or raise an issue that suggests that existing law should be revisited by the Court.

[12]     I  accept  Mr Stephen’s  submission  that  there  is  divided  authority  in  the Tribunal on the place of good faith in the determination of claims for refugee status. The cases he refers to are AH (Egypt)5 and DY (Fiji).6    Since this is a leave application, I do not need to analyse them.  Both related to a claimant’s good faith being called into question by the Tribunal, in circumstances not in issue when the relevant official made the initial determination.

[13]     The tension between the cases is whether not looking at good faith raises perverse incentives to manipulate status so as to qualify as refugees, and whether that matters.

[14]     On the face of it then, the Crown has identified a question of law which goes beyond the particular circumstances of the respondents and which raises an issue of general or public importance.

[15]     However, Ms Curtis for the respondents submits that a proper analysis of the Tribunal’s decision shows that the Tribunal decided the respondents’ good faith when ruling on their credibility.  There is, Ms Curtis submits, no point of law on which to appeal.

[16]     In addition, Ms Curtis submits that good faith, as immigration law considers that concept, is not an issue in this case when properly considered.   I think this submission goes to the merits of the Crown’s proposed question of law.  My task on a leave application is to consider whether a threshold has been crossed, not whether the  stairs  on  the  other  side  of  the  threshold  can  be  climbed  to  a  successful conclusion.

[17]     I do consider that the submission made by Ms Curtis and described in [15] is one which properly raises an argument as to threshold and it is one I must decide.

5      AH (Egypt) [2013] NZIPT 800268-272.

6      DY (Fiji) [2014] NZIPT 800375-380, 800419.

[18]     The Tribunal, in its decision, first referred to the situation giving rise to this application for leave as follows:

[4]       During  the  oral  hearing  before  the  Tribunal,  the  appeals  were pursued on the basis that the appellants were at risk of being persecuted in Singapore, that they were at risk of being deported from Singapore to China and that they were at risk of being persecuted in China because they are practitioners of Falun Gong.  They put forward the alternative propositions that they were either not entitled to permanent residence in Singapore, or that they were entitled to permanent residence but that they were nonetheless at risk of being deported because they are practitioners of Falun Gong.   The Tribunal accordingly began to consider the outcome of the appeals on the basis that the appellants at least potentially had protection available to them in Singapore as permanent residents.

[5]       On 21 January 2016, the appellants submitted further evidence to the Tribunal indicating that they have all renounced their respective rights to permanent residence in Singapore.  Accordingly, the question of alternative protection no longer arises and the appeals are to be determined solely upon the basis of their prospective predicaments if they were to return to China.

[19]     It is apparent from these paragraphs that the Tribunal simply put aside the prospect of Singapore as a place of protection.   There is no discussion about the reasons for the renunciations or how those reasons should be regarded by the Tribunal.

[20]     Ms Curtis submits that in deciding the issue of leave I should take into account the material which was before the Tribunal.  Ms Curtis refers to [27] of the Tribunal’s decision:

During a teleconference convened on 11 November 2015, counsel for the appellant  indicated  that  up  to  three  supporting  witnesses  would  give evidence at the hearing.  Witness statements in the name of [MS], [JY] and [AH] were lodged with the Tribunal on 24 November 2015.  Each of those individuals agreed to be available to give evidence on what was scheduled to be the second day of the appeal hearing.   However, the Tribunal had no questions for any of them it  was agreed that their statements would be accepted as  read.  Because of  the  manner in  which argument  was  made during the hearing, their evidence largely deals with the predicament of the appellants were they to return to Singapore.

[21]     I do not find this paragraph to be helpful since it seems clear that the Tribunal regarded the evidence as being directed to the situation in Singapore.

[22]     Ms Curtis then referred me to [36] and [37]:

[36]     Counsel   lodged   further   submissions   on   10   December   2015, following the conclusion of the hearing, together with a copy of a book, E Gutmann  The  Slaughter  (Prometheus  Books,  New  York,  2014).  On

21 January 2016, counsel submitted copies of letters from the Immigration and Checkpoints Authority on behalf of the Controller of Immigration in

Singapore. The letters confirmed that the mother, the older daughter and the

middle daughter have renounced their Singapore permanent residence status with  effect  from  4  January  2016.  A  further  document  confirms  that,

according  to  the  official  records,  the  youngest  daughter  is  no  longer  a

Singapore permanent resident.  (This is consistent with other evidence that the  youngest  daughter’s  return  permit  expired  in  mid-2015).    The  four letters, all dated 4 January 2016, confirm that each of the appellants would be required to apply for a valid immigration pass in order to enter and remain in Singapore in future.

[37]      Counsel submits that on the basis of this information the appellants do not have protection available to them in Singapore, and that they have a well-founded fear of being persecuted in China because they are adherents of Falun Gong.

[23]     Again, I do not think that this discussion assists the respondents because it does not speak to the issue of law which the Crown raises.

[24]     The next passages of the decision to which I was referred are, however,

important because they go to the Tribunal’s findings on credibility:

[39]     In determining whether each appellant is a refugee or a protected person, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellant’s account.

[40]      There are aspects of the appellants’ evidence that the Tribunal did not find credible. In particular, their claim not to have permanent resident status in Singapore was disingenuous and contradicted by clear evidence to the contrary. Likewise, the Tribunal does not accept that if returned to Singapore the mother and the older daughter would, as they claimed, protest in  Singapore  in  such  a  manner  as  to  bring  them  into  conflict  with Singaporean authorities. However, in light of subsequent evidence relating to the relinquishing of their resident status, such matters are no longer relevant to the assessment of their appeals.

[41]      With respect to the core of their claim, the Tribunal finds that the

appellants’ accounts are credible.

[25]     Ms Curtis submits that in these passages the Tribunal finds the respondents to be credible.  In her submission, the sentence appearing in [40], namely, “However, in light of subsequent evidence relating to the relinquishing of their resident status, such matters are no longer relevant to the assessment of their appeals”, means that

the Tribunal has taken into account and accepted all the evidence relating to the relinquishment of resident status.  In particular, Ms Curtis points to evidence of the father that the motive for relinquishing Singapore resident status was to gain access to retirement funds necessary to support life outside Singapore.  Ms Curtis went on:7

66.It is submitted that the credibility finding by the Tribunal concerning the respondents is not unreasonable being based on detailed submissions, personal and vigorous interviews of the mother and eldest daughter  and  a range  of  witness  statements one  of  which signposted the possibility that permanent residence may need to be revoked.

67.For this reason, s 134(3) cannot be engaged. The Tribunal accepted in its credibility finding that the revocation of permanent residence in Singapore by the mother, youngest daughter and middle daughter was credible and well explained.

[26]     I am unable to agree with Ms Curtis’s submissions on this point.  My reading of the paragraphs is that the Tribunal did not find the respondents to be credible. All that the sentence in [40], quoted above, means is that with the Tribunal’s decision to put all matters relating to Singapore to one side, what is left is “the core of their claim”, which relates to China.  On that issue, the Tribunal found the respondents’ accounts to be credible.

[27]     It follows that I accept the Crown’s submission that the Tribunal did not consider the issue of good faith.  It did not carry into its decision any finding as to good faith, or the lack of it, in relation to the relinquishing of residence rights in Singapore.  That is not a criticism.  It simply founds the question of law which the Crown wishes to have heard in this Court.

[28]     Finally, Ms Curtis submitted it would be unfair to grant leave to appeal since, if the appeal were successful and the case remitted to the Tribunal, one or more of her clients would have lost their right to a humanitarian appeal.  That is not a matter for me.  That would be a matter of remedy for the Judge presiding over the appeal if

it were successful.

7      Respondents’ submissions: opposing applications for leave to appeal, dated 30 June 2016.

Decision

[29]     I am of the clear view that the threshold for leave has been crossed.

[30]     I grant the Crown’s application.  The matter is to be called in the Duty Judge list at 10:00 am on 21 July 2016.   Directions by way of timetabling can then be made.

[31]     I reserve costs because I think they should best be decided by the Judge who determines the appeal.

Brewer J