AA (Zimbabwe) v Refugee and Protection Officer
[2018] NZHC 2523
•28 September 2018
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANTS AND OF THEIR CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT
2009. SEE
THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-2442 [2018] NZHC 2523
UNDER s 245 of the Immigration Act 2009 IN THE MATTER
the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol
BETWEEN
AA (ZIMBABWE) Applicant
AND
REFUGEE AND PROTECTION OFFICER Respondent
CIV-2017-404-2454
BETWEEN AB (ZIMBABWE) Applicant
ANDREFUGEE AND PROTECTION OFFICER Respondent
Hearing: 24 July 2018 Appearances:
J S tH Hall for the Applicants
J T Parry for the RespondentJudgment:
28 September 2018
JUDGMENT OF POWELL J
This judgment was delivered by me on 28 September 2018 at 4.30 p.m. pursuant to
R 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
AA (ZIMBABWE) & ANOR v REFUGEE AND PROTECTION OFFICER [2018] NZHC 2523 [28 September
2018]
[1] The applicants, a husband and wife, have each sought leave to appeal a decision of the Immigration and Protection Tribunal (“the Tribunal”) dated 11
September 2017.1 The Tribunal dismissed their respective appeals as well as the
appeals of their two sons to be recognised as:
(a) refugees within the meaning of the “Refugee Convention”;2
(b) protected persons within the meaning of the “Convention Against
Torture”;3 and
(c) protected persons within the meaning of the International Covenant on
Civil and Political Rights (“ICCPR”).4
The Tribunal decision
[2] In a comprehensive and forensically detailed decision the Tribunal upheld an earlier decision of the Refugee Status Branch. The Tribunal rejected assertions by the husband to have been politically active in Zimbabwe from 2000 as a member of both the Movement for Democratic Change (“MDC”) and Movement for Democratic Change – Tsvangirai (“MDC-T”), and that he had suffered considerable ill treatment as a result of that activity, including numerous arrests, beatings and torture at the hands of the authorities. Likewise the Tribunal rejected the wife’s evidence of her own political activities, her corroboration of her husband’s activities, and did not accept an allegation made by the wife that she was raped for politically motivated purposes and/or by state agents.
[3] In reaching its conclusions on credibility the Tribunal noted:5
1 AA (Zimbabwe) [2017] NZIPT 801155-58 [Tribunal Decision].
2 In full the Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28
July 1951, entered into force 22 April 1954).
3 In full the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June
1987).
4 In full the International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
Before addressing the credibility of the evidence of the adult appellants, the Tribunal records its awareness of the need to take into account a number of considerations. They include the stress that the husband and wife are each under, with the husband currently in custody and the wife caring for the children on her own. Their claims have already been declined once, which itself can add stress and a subjective lack of confidence in the process. Further, the incarceration of the husband will likely have had an adverse effect on their ability to instruct their lawyer and to prepare for the hearing. Regard must also be had for the fact that some of the events date back more than a decade and also that there is a likelihood that two people remembering the same events may have different recollections. Finally, and importantly, the Tribunal bears in mind the effect that trauma can have on recall and presentation. In the husband’s case, his claim includes allegations of physical mistreatment. In the wife’s case, her claim includes an allegation of rape. Such events, if true, may affect both recall and presentation.
[4] The Tribunal proceeded to detail “numerous inconsistencies, implausibilities and concerns” about both the husband and wife’s evidence,6 as well as the documentary material they provided and relied upon.7 In the end, every substantive aspect of both the husband and the wife’s respective evidence, other than their Zimbabwe nationality (and that with some considerable reservations) was rejected by
the Tribunal.
[5] As a result the Tribunal ultimately found only the following facts made out on the evidence heard in the course of the appeal:8
(a)the four appellants [the husband, wife and two children] are nationals of Zimbabwe;
(b)the husband has travelled on four false passports and identities and made a false refugee status claim in Canada; and
(c) the couple’s younger child has [a medical condition] which means …
he … may require surgery.
[6] It was on these facts that the Tribunal went on to determine the claims to refugee status, and whether the family members were protected persons under the Convention Against Torture and ICCPR. After considering country information and
6 At [69].
7 At [134] – [136].
in particular the Human Rights Watch World Report 2017 – Zimbabwe,9 the Tribunal concluded:10
While there is a disturbing pattern of politically motivated abuse in Zimbabwe, there is no country information to establish that the risk of arrest or detention or mistreatment by agents of the state to a person who is not politically active, such as the husband or wife in the present case, rises to the real chance threshold. Accordingly, the risk to the husband or the wife or to either of their two children is no more than speculative.
In summary, the Tribunal finds that people having all the characteristics of the appellants, facing their particular circumstances, are not at risk of being persecuted to the real chance level on return to Zimbabwe. It finds that any risk to them as Zimbabwean nationals is no more than speculative, to the point of being remote.
As to the younger child’s medical condition, even if this is not treatable in Zimbabwe because of a poorly run and inadequately funded health system, this does not constitute persecution in terms of the Refugee Convention.
Given the above findings, the question of a Convention reason does not arise.
[7] Having concluded the applicants and their sons were not entitled to be recognised as refugees the Tribunal noted that the same evidence was relied on in respect of the applicants and their sons’ claims to be protected persons under the Convention Against Torture and ICCPR, and concluded that there was “no substantial grounds for believing that any of the appellants would be in danger of being subjected to torture if deported from New Zealand”,11 and for similar reasons concluded they were not entitled to protection under the ICCPR.12 The Tribunal did consider the applicants’ youngest son’s need for surgery, but noted that this had come about “because of his condition, as opposed to any state treatment in Zimbabwe” and that while the “quality of medical care and availability of treatment for people living in Zimbabwe is normally not at the same standard as it is in New Zealand” the Tribunal was “statutorily barred (pursuant to s 131(5)(b)) from finding that the inability of a country to provide health or medical care of a particular type or quality constitutes
cruel treatment or arbitrary deprivation of life” for the purposes of the ICCPR.13
9 Human Rights Watch “Zimbabwe: Events of 2016” (2016) Human Rights Watch World Report
2017 – Zimbabwe -report/2017/country - chapters/zimbab we.
10 At [144] – [147].
11 At [150].
12 At [153] and [156] – [157].
13 At [155], referring to Immigration Act 2009, s 131(5)(b).
The Applications for Leave to Appeal
[8] The applicants sought leave to appeal the Tribunal’s decision. In attempting to challenge the Tribunal’s decision they also originally sought leave to pursue judicial review proceedings. Those proceedings were however filed outside the time limit specified in s 249 of the Immigration Act 2009 and in consequence judicial review is no longer pursued by the applicants.
[9] Pursuant to s 245(1) of the Immigration Act leave to appeal can only be given if the Tribunal has made an error of law, and before leave is granted the Court must also:14
… have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance of for any other reason ought to be submitted to the High Court for its decision.
[10] The effect of these requirements is well established, and the heavy burden placed on those seeking leave to appeal was recently summarised by the Court of Appeal in Machida v Chief Executive of Immigration New Zealand in the following terms:15
In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(a) has importance extending beyond the particular case (which is what
“general or public importance” entails); or
(b) for some other reasons, warrants a decision from the High Court. Although category (b) is open ended, we agree with a series of decisions in
the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.
[11] In Taafi v Minister of Immigration, one of the decisions approved in Machida, Kós J elaborated on what an applicant would have to establish if it was argued that mistakes of fact had resulted in errors of law:16
14 Immigration Act 2009 s 245(3).
15 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8] (footnotes omitted).
16 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19] (footnotes omitted).
(a)First the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court’s finding.
(b)Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i)the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence, and
(ii)the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.
[12] In this case the applicants argue that “factual findings by the Tribunal were actually incorrect”, and are “so grave to constitute an error of law”. In addition the applicants allege the Tribunal failed to take into account mandatory considerations and took into account “impermissible” considerations. The various errors alleged are submitted to have been of such a magnitude that “a properly directed Tribunal could have reached a different decision overall” and “this Court simply should not countenance the first instance decision standing”.
[13] Despite these broad statements there was little in the way of particulars provided on behalf of the applicants, and much of the hearing before me was taken up attempting to understand exactly what the factual errors, or matters not or wrongly taken into account by the Tribunal, actually were. The key issues raised by Mr Hall on behalf of the applicants at the hearing before me appeared to be:
(a)regardless of the conclusions on credibility reached by the Tribunal the husband, and therefore the wife and their sons, were at risk if returned to Zimbabwe as a result of the husband’s occupation selling agricultural supplies and importing manufactured goods into Zimbabwe, as well as having travelled overseas;
(b) the Tribunal did not consider relevant country information about
Zimbabwe;
(c)the Tribunal did not make separate assessments of the credibility of the husband’s and the wife’s evidence;
(d)the Tribunal should not have rejected the husband’s MDC-T ID card as being credible evidence of the husband’s political opinion and political activities;
(e)the Tribunal failed to take into account the medical/psychological issues and stress on the applicants and in particular the wife, and in addition should not have taken into account the contents of an interview between the wife and a refugee and protection officer when the wife first arrived in New Zealand; and
(f) the Tribunal in hearing the appeals breached ss 25(e) and 27(1) of the
New Zealand Bill of Rights Act 1990 (“NZBORA”).
Discussion and Analysis
[14] It is apparent at the outset that none of the matters raised on behalf of the applicants go to the heart of the Tribunal’s decision. Instead, they largely focused on peripheral issues. As a result, and with respect to Mr Hall, even considering the additional evidence sought to be adduced by the applicants in support of the applications for leave to appeal, none of these matters in anyway demonstrates any arguable error of fact by the Tribunal let alone one that could give rise to an arguable question of law.17
[15] The first particularised ground developed by Mr Hall in oral argument appeared to be entirely inconsistent with the case argued by the applicants before the Tribunal, which was that the applicants had a “well-founded fear of returning to Zimbabwe owing to their political opinions and membership” of the MDC-T. Instead Mr Hall suggested that the Tribunal should have explored whether the husband’s business activities selling agricultural equipment and electrical goods and travelling overseas left him and his family vulnerable to politically motivated violence. This
17 That is without determining whether the additional evidence should be admitted, a course which was opposed by Mr Parry for the Crown.
was not what was argued in the Refugee Status Branch hearing and the Tribunal on appeal, or indeed with any detail in the written submissions filed in this Court. Furthermore, it is apparent that having rejected the applicants’ evidence of involvement in political activities the Tribunal did assess the applicants and their sons’ situation on the basis of the evidence established regarding the situation in Zimbabwe at the time of the appeal. As noted above the Tribunal in fact specifically concluded at [144] and [145] of its decision that the applicants and their sons were not at risk of being persecuted on return to Zimbabwe, and therefore not entitled to be recognised as refugees or protected persons under the applicable conventions.
[16] Likewise, while it is clear from the face of the decision that despite Mr Hall’s submission, the Tribunal took into account country information about Zimbabwe; it not only considered recent material from late 2016, but also to information referred to it by the applicants’ then counsel. What Mr Hall specifically took issue with was not that the Tribunal did not take into account country information, but that it did not apparently refer to a decision of the United Kingdom Supreme Court in RT (Zimbabwe) v Security of State of the Home Department.18 As Mr Parry noted for the respondent it was the applicants’ responsibility to put all information before the Tribunal which they wished it to consider,19 and there is no suggestion that this case was in fact referred to the Tribunal. Leaving aside Mr Parry’s submission that RT had in any event been superseded by more recent cases in the United Kingdom, it is difficult to understand on what basis Mr Hall considered RT could be described as “country information” given it was in fact a judicial decision made in a third country. Moreover, for that reason, it is clearly not binding on the Tribunal in any way. Country information is factual material about a country and by definition a matter of fact for the Tribunal to determine. In those circumstances, and noting that the decision in RT is some six years old and considerably older than the country information actually referred to by the Tribunal, the fact that the Tribunal did not refer to RT is not even an
arguable error of fact, let alone a mistake of law.
18 RT (Zimbabwe) v Security of State of the Home Department [2012] UKSC 38, [2013] 1 AC 152.
19 This is true both before the Refugee Status Branch pursuant to s 135 of the Immigration Act 2009 and before the Tribunal pursuant to s 226(1).
[17] With regard to the applicants’ medical, psychological and stress related issues it is clear the Tribunal specifically took these into account in its decision. While the husband has now filed medical and psychological reports with the Court,20 these do not provide any meaningful corroboration to the husband’s story such that it would undermine the conclusions reached by the Tribunal. In particular, while Dr Wiles in a medical report notes a number of scars on the husband’s body he is unable to date them. At best Dr Wiles is simply able to state, on the basis of the husband’s statements to him, that the scars are “consistent with described injury mechanisms”.
Mr Wotherspoon’s psychological report likewise relied heavily on the husband’s self- reporting and while Mr Wotherspoon suggests the husband’s memory may have been affected, it is clear that this was a consideration specifically taken into account by the Tribunal. Even a cursory look at the Tribunal’s analysis shows its credibility findings in respect of both the husband and the wife were not merely the result of “memory problems” exhibited by the husband, but rather the result of a detailed analysis of sustained and ongoing inconsistency exhibited by the husband in particular. When challenged, the Tribunal observed the husband made further changes to his narrative, concluding:21
The Tribunal accepts that any one, or even a number, of the discrepancies identified above might be excused by the couple’s current, stressful living conditions. However, in the case of these two appellants, the sheer number of internal consistencies in their own evidence (especially the husband’s), their vagueness (especially the wife’s) and the inconsistencies between their accounts, combined, leave the Tribunal in no doubt that their testimonies, particularly as to their political activities in Zimbabwe and the events of 6 July
2016, are not credible.
[18] It is also incorrect to suggest that the Tribunal did not separately assess both the wife and the husband’s credibility in reaching its conclusion that almost every particular of their respective stories was not correct. As Mr Parry noted reasons were given by the Tribunal for the adverse credibility findings against both the husband and the wife, both separately and together. As Mr Hall accepted the Tribunal was entitled to issue a single decision on the applicants’ and their children’s claims, and in this case the Tribunal specifically noted that by consent the evidence of both the husband and
20 An affidavit by Dr Antony Wiles and a psychological assessment by a registered psychologist, Ted Wotherspoon.
21 Tribunal Decision, above n 1, at [130].
the wife was to be taken as evidence for all claims.22 It would have been artificial to have done otherwise.
[19] The remaining issues raised by Mr Hall can be dealt with relatively briefly. The Tribunal did in fact take into account the wife’s interview with a refugee and protection officer when she first arrived in New Zealand.23 The Tribunal’s rejection of the husband’s MDC-T party membership as well as the overwhelming majority of the other documents relied on by the applicants was clearly a matter of fact for the Tribunal, and raises no issue of law. Likewise the provisions of the NZBORA relied on are not decisive in this case. In particular I note that s 25(e) only applies to criminal proceedings, while it is difficult to see how s 27 could be engaged given no challenge to the Tribunal’s compliance with the statutory appeal process set out in the Act has been made. It is otherwise difficult to see that there has been any identifiable breach of natural justice, let alone one that could possibly affect the Tribunal’s conclusions.
[20] Finally, there is nothing in the other material filed on behalf of the applicants since the appeal that in any way indicates that the Tribunal’s conclusions were incorrect. This includes:
(a)A statement annexed to the husband’s affidavit from a Shona translator who suggested that Shona words were often misinterpreted, albeit that as he had only looked at the English transcript of the Tribunal hearing, he could not identify any specific misunderstandings or misinterpretations that might have occurred during the Tribunal hearing.
(b)Additional country information from Zimbabwe which pre-dated the Tribunal’s decision and which could therefore have been put before the Tribunal, but which in any event does not suggest that the country information relied upon by the Tribunal was incorrect or which is any more accurate than that considered by the Tribunal in its decision.
22 At [67].
23 At [116].
(c)Two unverified copies of brief affidavits purporting to be from deponents in Zimbabwe who know the applicants. One purports to be from the National Youth Chairman of MDC-T confirming the husband and wife’s roles in the MDC-T movement, and the other is purportedly from a Police Officer from the husband’s home town and relates to the husband’s business activities. Aside from the lack of information of the provenance of these documents I note that similar evidence was in fact before the Tribunal including a letter purportedly written by the Secretary-General of the MDC-T confirming the husband was an active member of the party and a victim of state torture. This and the other documents presented by the applicant were however rejected by the Tribunal, the Tribunal noting:24
Clearly the husband has a propensity to submit false documents. He has conceded as much in regard to the false LinkedIn account and false medical report he produced in Canada, his numerous false passports, and an entirely fraudulent residence application under the Family (Partnership) category when last in New Zealand. As noted above … the Tribunal found the first of Dr Mahko’s medical certificates produced in this appeal to be manufactured, and rejects the second for the same reasons.
None of the documents produced on appeal are accorded the benefit of the doubt as to their validity other than, possibly, the birth certificates of the husband’s parents …
[21] Given those specific findings as well as the wider conclusions on credibility drawn by the Tribunal I do not consider that anything in the affidavits tendered by or or behalf of the husband gives rise to any seriously arguable error of fact, let alone law.
Conclusion
[22] It is apparent from the discussion above that the issues raised on behalf of the applicants raised largely peripheral attacks on the factual material relied upon by the Tribunal. The Tribunal’s substantive analysis of the evidence presented to it was in fact not challenged, and it is clear that the matters raised do not give rise to even an arguable error of fact on the part of the Tribunal, let alone one that gives rise to an
24 At [135] – [136].
arguable error of law. Instead it is clear that the Tribunal has conducted a careful and reasoned analysis of the evidence and the conclusions reached were clearly available to it. As a result the first part of the s 245 test has not been made out and the applications for leave to appeal must be dismissed.
Decision
[23] The applications for leave to appeal are dismissed.
Costs
[24] Should the respondent seek costs, a memorandum is to be filed within one month of the date of this judgment. The applicants will then have two weeks to respond following which I will determine the issue.
Powell J
Solicitors/Counsel:
Park Legal, Takapuna
Meredith Connell, Auckland
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