AB v Refugee and Protection Officer

[2017] NZHC 1424

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

ORDER PROHIBITING PUBLICATION OF THE APPELLANT'S BROTHER'S NAME AND PARTICULARS, AND THE NAMES AND

PARTICULARS OF WITNESSES WHO GAVE EVIDENCE BEFORE THE IMMIGRATION AND PROTECTION TRIBUNAL.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-000125

[2017] NZHC 1424

BETWEEN

AB

Applicant

AND

REFUGEE AND PROTECTION OFFICER

Respondent

CIV-2017-404-000127

BETWEEN

AB

Applicant

/contd…

Hearing:

20 June 2017

Appearances:

D Mansouri-Rad for Applicant in both proceedings

J Simpson for Respondent in proceeding CIV-2017-404-000125 and for both Respondents in proceeding CIV-2017-404-000127

Judgment:

26 June 2017

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 26 June 2017 at 11.30am pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AB v REFUGEE AND PROTECTION OFFICER [2017] NZHC 1424 [26 June 2017]

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

REFUGEE AND PROTECTION OFFICER

Second Respondent

Introduction

[1]    The applicant, AB, is a citizen of Pakistan. He has come to New Zealand, and he seeks to be recognised as a refugee or protected person so that he can stay in this country. In a decision dated 21 December 2016, the Immigration and Protection Tribunal (“The Tribunal”) declined to so recognise him.1 It rejected his assertion that he would be at risk of death or serious harm from the Taliban2 if he returned to Pakistan.

[2]    AB now applies for leave to appeal and/or to commence judicial review proceedings in respect of the Tribunal’s decision, respectively under ss 245 and 249 of the Immigration Act 2009.

Background

[3]    AB is from a small village in the Swat Valley region in Pakistan. AB’s parents and his wife and six children still reside in the village. The family is considered to be relatively well off. Family members own and farm land.

[4]    AB married in 1998 and he lived in the village with his wife and children for a number of years, working on the family land. In 2005, he commenced working for the Pakistan National Shipping Corporation as a seaman on various cargo ships.

[5]    In February 2009, AB returned to his village having spent some time at sea. The Taliban had taken control of the village. AB claims that on 5 March 2009, four Taliban members came to his house, assaulted him and demanded money from him. He says that the Taliban had been informed that he had returned from overseas. They damaged his house and took 300,000 rupees from him.

[6]    AB claims that as a result of this event, he approached, and was later invited to join, the Arman Jirga and to work against the Taliban. He says that he did so, albeit secretly, and that his role was to advise younger persons to obtain an education and

1      [AB]  [2016]  NZIPT  800977  (The  decision  is  for  the  parties  only.    It is not available for publication).

2      According to the Tribunal, this term is frequently used as a shorthand for a variety of Deobandi and Salafit jihadi groups that operate in Afghanistan and Pakistan.

seek to persuade them not to join the Taliban. AB said that he would report back to the head of the Arman Jirga from time to time. He claims that he was issued an Arman Jirga membership card.

[7]    In May 2009, the Pakistani army regained control of the village from the Taliban. AB and his family fled the village at this time but returned later in the year. A village defence committee (“VDC”) was then being formed to assist the army in its defence of the village from the Taliban. AB claims he became a VDC member after he was nominated by the head of the Arman Jirga. He says that his role was to identify Taliban activities in the area and to keep the head of the Arman Jirga informed. He says that it was common knowledge in the village that he was a VDC member. AB says he met with other VDC members once a month, and that he received VDC membership cards, one in 2009 and another in 2012.

[8]    AB says that he took a break from his VDC activities in 2012 and returned to sea, but that he resumed his VDC activities on his return to the village sometime thereafter. He says that when he returned he was updated by his brother, X, about VDC activities during his absence.

[9]    AB claims that in or around October 2014, the Taliban started targeting and killing VDC members.

[10]AB says that:

(a)X became a Taliban target because he was chairman of an entity known as the “Zakat Usher” – a state-funded charity which collected a zakat or Islamic tax, and distributed the money to those in need;

(b)X worked from home and he had police stationed with him because of the dangers associated with his role;

(c)X was also a Village Union Councillor and a member of a political party

– the Awami National Party;

(d)By 2005, X had forsaken these roles but he nevertheless received threatening telephone calls from 2010 onwards;

(e)In October 2014, X travelled to a nearby town, Mingora, by coach. He did not take his normal police escort with him;

(f)X stayed in Mingora when the coach returned to the village. During the return trip, the coach was boarded by the Taliban. They were looking for X; and

(g)X, having received word of this, then travelled to Karachi, and he has been hiding in that city since that time.

[11]   AB claims that in November 2014 he was shot at while returning to his home in the village. He says that he dropped to the ground, damaging his teeth in the process, and that he hid in bushes, while those who had shot at him were searching for him. He says that he did not tell anybody in the VDC what had happened. He says that he left his village immediately thereafter and travelled to Mingora, where he obtained treatment for his damaged teeth. AB says that he then travelled from Mingora to stay with his sister in Karachi, and that he has not returned to his village. He went to work at sea in January 2015, and he has not been back to Pakistan since.

[12]   AB claims that in July 2015, his wife found a letter from the Taliban which had been left for him outside the family home in the village. He says that his wife informed him about the letter by telephone.

[13]   In August 2015, AB arrived in New Zealand, while working aboard a cargo ship. An old ship mate, HA, who AB had been at sea with in 2006, was on the same ship. They both absconded from the ship together while it was berthed in this country, and both claimed refugee status.3

3      HA’s claim for refugee status was declined by the Tribunal. HA has sought leave to appeal and/or to judicially review the Tribunal’s decision. HA’s case has been heard but no decision has yet been released. Counsel agreed that the two cases raise different issues and that it is not necessary to delay the issue of this judgment pending the decision on HA’s applications for leave.

[14]   AB’s claim was initially declined by the Refugee Status Board on 22 February 2016. AB appealed to the Tribunal and as noted above, it also declined his claim.

The Hearing before the Tribunal

[15]The hearing before the Tribunal was over two days in early November 2016.

[16]   AB claimed that he would be targeted by the Taliban if he returned to Pakistan. This claim was based on two grounds:

(a)AB’s own profile given his membership of the Arman Jirga and VDC; and

(b)X’s profile, and because X is at risk of death or serious harm from the Taliban.

[17]   AB was represented at the hearing by counsel – Mr Mansouri-Rad. AB filed a written statement, and he gave oral evidence at the hearing. He also filed a written statement from S, a New Zealand resident who is originally from Pakistan. S also gave oral evidence (it seems by a telephone link) at the hearing. The Tribunal had before it a medical report from a New Zealand general practitioner and country information regarding VDC members (and the brother of a VDC member) killed in the Swat Valley region in 2016. It also received an untranslated document referring to HA. At the Tribunal’s request, a written statement was obtained from G, who is S’s father. This statement, together with AB’s Arman Jirga membership card, copies of doctors prescriptions for his wife, copies of completed registration/application forms by families seeking financial assistance from the village Zakat, copies of certificates belonging to X, and country information regarding the risk to VDC members from the Taliban, including in Karachi, were made available in the course of the hearing.

The Tribunal’s Decision

[18]   The Tribunal accepted that various aspects of AB’s claim were credible, namely that:

(a)AB is from a village in the Swat Valley and that he has worked for many years on ships abroad;

(b)AB’s parents, wife and children continue to live in the village in the Swat Valley;

(c)AB was targeted by the Taliban on one occasion for money in March 2009, when the village was under Taliban control; and

(d)AB suffered an injury to his mouth and lost teeth. However, the Tribunal did not accept that the injury was caused in the circumstances claimed by AB.

[19]   The Tribunal rejected AB’s account of being an Arman Jirga member, of being a VDC member, and of being of interest to the Taliban (apart from on the one occasion in March 2009). It found that AB’s evidence in regard to these matters was “inconsistent, vague, evolving, mobile and at times implausible”.4 In particular, it noted/considered that:

(a)AB had given different accounts concerning his Arman Jirga membership before the Refugee Status Board and the Tribunal;

(b)AB could not satisfactorily explain why he had been invited to join the Arman Jirga. He was not a village elder and had no particular standing in the village;

(c)AB’s evidence concerning his Arman Jirga and his VDC activities was “vague” and “evasive”. He was only able to give vague examples when repeatedly asked by the Tribunal to do so;

(d)AB could not satisfactorily explain why he had not come to the attention of the Taliban when he was acting as an informant for the Arman Jirga;

4      [AB], above n 1, at [55].

(e)AB’s evidence regarding his lack of contact with VDC members on his return to the village in 2012 and following the November 2014 attack was implausible;

(f)the Arman Jirga and VDC membership cards produced by AB were not genuine; and

(g)other documentary evidence put forward by AB in support of his claim was not genuine.

[20]   The Tribunal’s concerns about AB’s credibility were amplified by the account he gave regarding his contact with HA. HA is from a different village in the Swat Valley region, but he also claims to have been a VDC member at risk of serious harm from the Taliban. AB and HA had worked together on ships on more than one occasion. They travelled from Pakistan to China together to join a ship, and they worked on that ship in close quarters. They were billeted in the same hotel room in this country while the ship they had arrived on was fumigated, and they absconded the ship at the same time. They are now living together in the same house. Their claims to refugee status both include their alleged membership of VDC’s. The membership cards they presented at their respective hearings were near identical. The Tribunal found AB’s explanations for the similarities between his case and HA’s case unconvincing, and considered that AB had deliberately attempted to distance himself from HA because he feared that association with HA would undermine his own application.

[21]   AB did not mention X’s positions or X’s issues with the Taliban to the Refugee Status Board. They only emerged before the Tribunal. The Tribunal rejected the accounts it was given of X’s activities.

[22]   The Tribunal found that the core of AB’s claim was not true. It recorded it had not overlooked the evidence of S, but considered that S was unable to provide any information which directly corroborated AB’s claim in any significant way.

[23]   After considering relevant country information, the Tribunal found that AB did not have a profile such that he would be of current interest to the Taliban or any other extremist group in the Swat Valley. It held that there was no credible evidence of ongoing interest in AB or his family, and no credible evidence of AB having any characteristics, background or attributes which would expose him to harm at the “real chance level”. It held that AB did not have a well-founded fear of being persecuted in Pakistan, and that he was not entitled to be recognised as a refugee under s 129(1) of the Immigration Act and the Refugee Convention. It also found that there were no substantial grounds for believing AB would be tortured if he were to be deported to Pakistan, and that he was not entitled to be recognised as a protected person under s 130(1) of the Act and the Convention against Torture. Similarly, it found that there were no substantial grounds for believing AB would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if he were to be deported to Pakistan, and that he was not entitled to be recognised as a protected person under s 131(1) of the Act and the Convention on Civil and Political Rights.

The Interlocutory Applications

Leave

[24]   Leave to appeal is sought under s 245 of the Immigration Act. Leave to review is sought under s 249.

[25]   The need for leave indicates a deliberate intention by Parliament to limit appeals and applications for review of Tribunal decisions.5

[26]   The approach taken to leave applications is relatively well settled. Leave will be granted where a proposed appeal or review raises a seriously arguable question of law, which either because of its general or public importance or “for any other reason”, should be considered by the High Court. This is intended to be a stringent threshold. Not every question of law will be of general and public importance.6

5      Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [18]; Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [6]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5]; Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [52].

6      Nabou v Minister of Immigration, above n 5, at [6].

Leave to appeal – s 245

[27]Relevantly, s 245 of the Immigration Act provides as follows:

245 Appeal to High Court on point of law by leave

(1)Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

…

(3) 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.

[28]   As the Court of Appeal has noted, in its practical application, an applicant seeking leave to appeal must identify a seriously arguable question of law which either: 7

(a)has importance extending beyond the particular case (which is what “general or public importance” entails); or

(b)for some other reason, warrants a decision from the High Court.

Although the “any other reason” category is open-ended, the Court of Appeal has endorsed a series of High Court decisions, holding that this alternative requirement will only be met in an exceptional case, involving individual injustice to such an extent

7      Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8]; See also Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 at [1] and [20]-[24]; Teitiota v Chief Executive of Business Innovation and Employment [2015] NZSC 107.

that the Court simply could not countenance the Tribunal’s decision remaining in place.8

Leave to review – s 249

[29]Relevantly, s 249 of the Immigration Act provides as follows:

249 Restriction on judicial review of matters within Tribunal’s

jurisdiction

(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

…

(3)Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

…

(6)In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—

(a)whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b)if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

(7)A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.

8      Machida v Chief Executive of Immigration of New Zealand, above n 7, at [8]. There has been a measure of disagreement in relation to ss 245(3) and 249(6)(b). In RM v Immigration and Protection Tribunal [2016] NZHC 735, Palmer J considered that the “any other reason” limb is not limited to exceptional cases. This approach appears to be contrary to the approach taken by the Court of Appeal in Machida. The difference in opinion has been noted, but not resolved, by the Court of Appeal – Kumar v Minister of Immigration [2016] NZCA 492, [2016], NZAR 1591 at [7]. The issue does not fall for consideration in this proceeding.

[30]As can be seen, the two criteria noted in s 249(6) are mandatory considerations

– not mandatory requirements. Section 249(6)(a) suggests that an appeal, and not review, is the primary mechanism through which Tribunal decisions should be challenged. Although s 249 does not state that review proceedings that involve issues that could have been dealt with by appeal and which are not of general or public importance should not be granted leave, this is a clear implication from the requirement that the Court must have regard to the s 249(6) factors. It will be a rare circumstance for leave to be granted if either (or both) of those criteria is not made out.9 In practice, issues that can be raised on an appeal under s 245 will likely be much the same as can be raised in review proceedings, and it is hard to envisage a point of law that would not qualify as a ground of appeal under s 245, but still qualify as a ground for review under s 249.10

Challenges to factual findings made by the Tribunal

[31]   Under s 245, an applicant can only seek leave to challenge a decision of the Tribunal which is said to be erroneous in point of law, and any proposed review proceedings under s 249 will be concerned with legality and process. Questions of fact are immune, unless the Tribunal has erred to such an extent that its conclusions on matters of fact constitute an error of law – for example, they are based on no evidence, or they have resulted in a decision which is manifestly unreasonable. Even then, the proposed question of law or ground for review must either be of general or public importance, or fit within the “for some other reason” category.

[32]   In Taafi v Minister of Immigration,11 Kós J suggested that there is a triple hurdle faced by applicants seeking leave to appeal a Tribunal’s decision based on a challenge to its factual findings.

In the present case, which is based wholly upon criticisms of factual findings, the applicant faces a triple hurdle:

(a)First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal

9      Allada v Immigration and Protection Tribunal New Zealand [2014] NZHC 953, [2014] NZAR 880 at [32].

10     CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594 at [38].

11     Taafi v Minister of Immigration, above n 5, at [19].

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.

(c)Thirdly, the applicant must show that the question of law … is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound. …

[33]   Challenges to the weight accorded by the Tribunal to the evidence before it will seldom amount to an error of law. Katz J has noted:12

... Judges have repeatedly warned against minute and detailed analysis of the facts or separate parts of the decision in an attempt to expose defects or to identify some error or imperfection which can be elevated into an error of law. The decision must be looked at as a whole. Findings of fact themselves cannot be impugned unless the factual errors were of such significance, extent and nature that they would render the decision legally flawed. Value judgments made by the Tribunal in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law.

General or public importance

[34]   The general or public importance criterion underpins both s 245(3) in respect of questions of law for appeal and s 249(6)(b) in respect of issues for judicial review. The approach required by each subsection is the same.13

12     Nabou v Minister of Immigration, above n 5, at [9].

13     Songmia v Minister of Immigration [2013] NZHC 3233 at [13].

[35]   The Court of Appeal in Minister of Immigration v Jooste14 observed that the test is similar to that which applied to second appeals to the Court of Appeal under s 67 of the Judicature Act 1908 (now repealed) – namely that the Court is not engaged in the correction of error. Its primary function is to clarify the law, and not every alleged error of law is of such importance as to justify further litigation.15

[36]   The overall position was succinctly summed up in LMN v Immigration and Protection Tribunal,16 where Duffy J observed as follows:

… The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus, factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” for his appeal to be submitted to this Court for determination.

[37]   Against this background, I turn to consider the applications for leave in the present case.

Analysis

[38]   The same points are advanced by AB for both the leave to appeal and the leave to review applications. I therefore deal with both applications together.

Points which AB wishes to raise on the proposed appeal/review

[39]   AB filed a memorandum recording the points he wishes to raise if leave is granted. He seeks to argue that the Tribunal:

14     Minister of Immigration v Jooste [2014] NZCA 23 at [5], citing Waller v Hider [1998] 1 NZLR 412 (CA) at [413]-[414].

15     See Allada v Immigration and Protection Tribunal, above n 10, at [36]; SK v Immigration and Protection Tribunal, above n 5, at [8].

16     LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [2].

(a)failed to correctly understand S’s evidence. S’s evidence was that he had heard about the plight of AB and his brothers from his father, G, who frequently visits the village in the Swat Valley. In making its decision, the Tribunal was under the mistaken impression that S had obtained the information from AB only. This error resulted in the Tribunal giving inadequate weight to S’s evidence;

(b)failed to determine whether it accepted, partially accepted or rejected S’s evidence;

(c)failed to give adequate reasons for its decision to accept, partially accept or reject S’s evidence;

(d)took into account an irrelevant consideration, namely its findings as to AB’s credibility in relation to his own profile, when rejecting AB’s refugee and protection claim based on the profile of X;

(e)failed to adequately assess and determine AB’s refugee and protection claim based on the profile of X; and

(f)erred when it made a decision to dismiss AB’s application, and that decision was, in all of the circumstances, unreasonable.

[40]   It transpired in the course of submissions that, effectively, AB is seeking to argue that the Tribunal failed to take into account evidence given by S which AB says corroborated the concerns he raised, arising from the situation which X is in. It was submitted that the Tribunal did not properly direct itself to S’s evidence in regard to X, and that S’s evidence had been gleaned by S not just from AB, but also from S’s father, G, and from S’s friend, who S had trained with in Pakistan. It was argued that all of this evidence was relevant and that the Tribunal should have considered it before dismissing AB’s claim to refugee and protected status based on X’s position.

[41]   AB expressly confirmed through his counsel, Mr Mansouri-Rad, that he does not seek to challenge the Tribunal’s conclusions as to his own credibility. Rather, all

of the various matters which AB seeks to take on appeal/review relate to the evidence of S and G, and the way in which the Tribunal dealt, or failed to deal, with it.

S’s evidence

[42]   The Tribunal summarised S’s evidence in its decision.17 It recorded that S is a New Zealand citizen of Pakistani origin, and that he has been in New Zealand for many years. It noted that S’s father, G, is an 80 year old retiree, who was originally from the same village as AB. S has never lived in the village, nor in the Swat Valley, but G was born there. G is currently in the process of building a mosque in the village, and he visits the village three to four times a year, supervising the construction of the mosque and visiting family members in the village.

[43]   S said that AB told him that his brother X had been in charge of the Zakat Usher. They discussed this when S’s parents came to visit him in New Zealand in early to mid-2016. In the course of the discussion, AB also indicated that X was involved with the Awami National Party. S stated that if X belonged to that party, he would be in trouble with the Taliban, and that G had mentioned that X, who was responsible for the Zakat Usher, had fled and was in hiding.

[44]   S also gave evidence that he thought that AB was a member of the VDC, but not its chairperson. He was, however, unsure whether AB, or X, was a VDC member.

G’s written statement

[45]At the Tribunal’s request, counsel for AB procured a written statement from G.

[46]   G confirmed his involvement in the village and said that he knows AB’s father, as they grew up together in the village. He said that during 2015, he visited the village and met AB’s father. He was told that AB was in New Zealand, and that he would not be returning to the village due to his fear of the Taliban. G said that he was aware that AB’s brothers had also left the village in fear of the Taliban, that X was a member of the Awami National Party, and chairman of the local Zakat Usher, and that X had been

17     [AB], above n 1, at [39]-[43].

targeted by the Taliban. He also stated that he understood that AB was a member of the VDC and that the Taliban had targeted him for that reason.

[47]   G said that he met AB when he was in New Zealand, and that he delivered clothes to AB from his father.

[48]   G said that although he does not live in the village, he is aware of the situation there and he knows that the Taliban have become more active in the last two years and that the number of targeted killings has increased. He said that from what he knows about AB and his brothers, they would be at risk in Pakistan. He said that it is two years since X left the village and that it is still not safe for him or his brothers to return.

The Tribunal’s approach to S’s and G’s evidence

[49]   As already noted, the Tribunal had significant reservations about AB’s credibility, and AB does not seek to challenge the Tribunal’s findings in this regard. Rather, his proposed challenge is confined to the way in which the Tribunal approached S’s evidence and G’s statement when it was considering AB’s claim based on X’s position.

[50]Both S and G dealt not only with AB’s position, but also with the position of

X. AB’s claim to refugee/protected person status was advanced on the basis of his personal position and also on the basis of X’s position, and the risks it poses for AB as X’s brother. The Tribunal did not deal with these separate aspects of the claim discretely. Rather, it approached the issue holistically.

[51]   For the reasons it set out in its decision, which I have summarised above at [21]-[23], the Tribunal did not accept AB’s claim that X was of interest to the Taliban.18 It observed as follows:19

The appellant did not mention difficulties faced by his brother [X] at the [Refugee Status Board hearing]. The fact that his employment, including serving as a councillor and involvement with the Zakat, first emerged during the appeal process. When questioned on this, he stated that he had not mentioned these at the Refugee Status Board as he had his own troubles and

18     [AB], above n 1, at [55].

19     At [76]-[77].

did not know if this was relevant. [S] had mentioned to his lawyer his brother’s situation.

The Tribunal is cognisant of the documents produced during and following the hearing which indicate that [X] has served as a village councillor and performed non-profit work. However, in light of the overall credibility concerns, the late appearance of this information and the ease with which false documents can be produced, the Tribunal is not prepared to accept that the appellant’s brother held leadership or non-profit roles in the village or that the appellant has assisted him with these. Further there is no convincing evidence that either he or the appellant have come to the attention of the Taliban because of such activities. In particular, it is implausible that if the brother had police protection, on the one occasion he is sought out and forced to flee from the Taliban, he did not take such protection. Moreover, the multitude of credibility concerns throughout the appellant’s account regarding his own activities, in conjunction with the late appearance of information regarding his brother, means the Tribunal is unable to accept any aspect of the appellant’s account that he or his family have come to the attention of the Taliban.

[52]Its overall conclusion about AB’s credibility was as follows:20

Given the credibility issues outlined above, the Tribunal does not accept that the account is true. When viewed cumulatively, the above matters cause the Tribunal to have no doubt that the core of the appellant’s claim is not true.

[53]The Tribunal did not overlook S’s evidence. It said as follows:21

In reaching this conclusion [about AB’s credibility], the Tribunal has not overlooked the evidence of [S]. While he has acted in good faith based on the information he has received and has helped the appellant in New Zealand, [S] is unable to provide any information which directly corroborates the appellant’s claim in any significant way.

20 At [86].

21 At [86].

[54]Nor did it ignore G’s evidence. It stated as follows:22

While [G] states that the appellant was a member of the VDC, he provides no explanation as to how he knows this. He does not claim to have met the appellant while the appellant was living in Pakistan. These factors, together with the late appearance of this statement and the fact it cannot be verified means limited weight can be placed on the statement from G.

The Alleged Errors

[55]   First, it is not clear to me that the Tribunal was under the mistaken impression that S’s evidence was only based on information he had obtained from AB. The relevant passage in the Tribunal’s judgment is as follows:23

S stated that the appellant had told him that his brother had been in charge of the Zakat. They had discussed this when his parents came to visit. In the discussion, the appellant indicated that his brother was involved with the ANP party. S stated that if the brother belonged to the ANP, then he would be in trouble with the Taliban. His father had mentioned that the older brother, who was responsible for the Zakat, had fled and was in hiding.

The first and third sentences suggest that it was AB who told S about X’s public positions. The second sentence is equivocal and the last sentence suggests that it was S’s father, G, who told S about one of X’s public positions.

[56]   If reference is made to the transcript, it is clear that the Tribunal did not misunderstand S’s evidence. S confirmed that he was told about X’s public positions by both AB and G.

[57]   In my judgment, the Tribunal accurately summarised S’s evidence, and AB has failed to raise a seriously arguable case that the Tribunal’s understanding of S’s evidence was wrong. AB cannot get over the first hurdle set out in Taafi. In any event, it is far from clear that it would have made any difference to the Tribunal’s findings even if G first informed or was the only person who informed S about X’s public positions. As I note below at [61], the Tribunal rejected AB’s claim that X was of interest to the Taliban for a number of reasons independent of S’s evidence.

22 At [73].

23 At [42].

[58]   Nor do I consider that AB can make out a seriously arguable case that the Tribunal failed to determine whether it accepted, partially accepted or rejected S’s evidence. The Tribunal stated that it had not overlooked S’s evidence, and while he had acted in good faith based on the information he had received, and had helped AB in New Zealand, he was unable to provide any information which directly corroborated AB’s claim in any significant way. That was the extent of the Tribunal’s finding in relation to S’s evidence, and it was a finding that was clearly open to it. It did not make any credibility finding against S. Its finding went to the weight to be given to S’s evidence.

[59]   Nor can the third alleged error be seriously argued, and for much the same reasons. The Tribunal explained why it did not attach any significant weight to S’s evidence. That was a factual matter for it to determine.

[60]   In relation to proposed fourth alleged error, the assertion made by Mr Mansouri-Rad was that the irrelevant consideration taken into account by the Tribunal when it was considering AB’s claim based on X’s position was AB’s credibility. I do not accept that it is seriously arguable that AB’s credibility was an irrelevant consideration.

[61]   There were a number of reasons why the Tribunal did not accept that AB is of interest to the Taliban because he is X’s brother.

(a)X is not himself of interest to the Taliban. In reaching that conclusion, the Tribunal rejected AB’s evidence. It did not consider him to be a credible witness. It considered that it could put only limited weight on G’s statement, and that S’s evidence did not provide any information which directly corroborated AB’s claims in any significant way.

(b)AB did not mention the difficulties said to be faced by X at the hearing before the Refugee Status Board. AB did seek to explain this in a supplementary statement which he filed, but the Tribunal did not accept his explanation. That is not surprising. The explanation was not particularly convincing, and in any event the Refugee Status Board

proceeds in an inquisitorial fashion. The Tribunal was entitled to be concerned that AB had not mentioned X’s position before the Refugee Status Board, and to draw adverse inferences from that.

(c)The documents which AB tendered before the Tribunal to show that X had held certain positions of authority in the village were rejected by the Tribunal. It considered that the documents were not genuine. The Tribunal observed that, because of the ease with which certain types of documentary evidence can be obtained in order to support refugee claims, findings as to the reliability of documents will usually follow findings with regard to the credibility of witnesses. This was in accord with established authority,24 and again in my judgment, the Tribunal was entitled to conclude, as a finding of fact, that the documents produced, very late in the day, were not genuine.

(d)The Tribunal considered that the account which AB gave of X fleeing the Taliban, following a visit to the town of Minora, was intrinsically implausible. Again, this was a factual finding open to the Tribunal.

[62]   The Tribunal had over-arching concerns regarding AB’s credibility. His credibility was relevant to all of the above reasons. It is not seriously arguable that it was an irrelevant consideration when considering his claim based on X’s profile.

[63]   Nor do I consider that it is seriously arguable that the Tribunal failed to adequately assess and determine AB’s refugee and protection claim based on the profile of X. Mr Mansouri-Rad in this regard argued that the Tribunal failed to properly assess S’s evidence, and the fact that that evidence was based not just on what S had heard from AB, but also on what S had heard from his father, G, and from a friend.

[64]   The Tribunal did not ignore either S’s or G’s evidence. Rather, it considered their evidence and gave it little or no weight. It found that S had acted in good faith, but concluded that he was unable to provide any information which directly

24     AP v Immigration and Protection Tribunal [2016] NZHC 1085 at [18]-[19].

corroborated AB’s claim in any significant way. It referred to the timing of G’s statement and to its content, and concluded that it could place little weight on it. These were factual findings open to the Tribunal.

[65]   Further, it is noteworthy that S’s evidence was hearsay, and in some respects, hearsay based on hearsay which in turn was based on hearsay. That does not preclude the evidence being considered by the Tribunal, but it must go to its weight.

[66]   S’s evidence was based on three sources, AB, G, and a friend of S’s. The Tribunal dealt with AB and G as I have noted above at [52] and [54]. It did not expressly mention S’s friend.

[67]In his oral evidence, S said as follows:

A.During discussion with [AB], because we met and then I asked him   what things are and – so what I – what came up with is I have a very close friend on the other side of his district. And he’s my classmate and he graduated from the same medical school he went into politics. So he belongs to a party that I support also which is Imran Khan’s party and they, because they are very good, and I said, “Oh, do you know this person?” And he said, “Oh yes, but he’s in the opposition party”, which means that his brother is in the other party which is called Awami National Party. And those people I know have been specifically targeted by Taliban. Because that is a secular party.

If he belongs to that Awami National Party, which I mean, it came up in discussion without me asking him, then that, definitely he would be on the list of Taliban.

Q.       Sorry, if who belongs to it?

A.If he, because his brother belongs to Awami National Party, which is that secular party, which they consider as their enemies, Taliban. So any, they can kill so many people from that party including son of their Information Minister was killed.

[68]   There was something of a conflict between AB’s evidence and S’s evidence of his discussion with his friend.

(a)In his written statement, AB stated that X was chairman of the Zakat Usher which collected an Islamic tax and then distributed it to the poor, that the Taliban believe that all taxes should be paid only to it, and that

other tax collectors are its enemies. He said that this was the reason that X was targeted by the Taliban.

(b)S in his evidence says that his friend thought that X was a member of the Awami National Party, and that he had been targeted by the Taliban for this reason.

[69]   While the Tribunal did not specifically refer to the evidence given by S of his discussion with his friend, I do not consider that it is seriously arguable that it erred in this regard. It dealt globally with S’s evidence and it was not required to deal with everything that S said.

[70]   The end result is that the Tribunal made various factual findings about AB’s credibility, the weight it could give to G’s statement and the assistance it could derive from S’s evidence. I am not persuaded that there is a seriously arguable case that the Tribunal erred in its factual findings, let alone that the factual findings (if erroneous) were sufficiently grave to amount to an error of law.

[71]   Finally, in my judgment, it cannot be seriously argued that the Tribunal’s decision was manifestly unreasonable. There is simply no basis for that assertion, and none was advanced in submissions for AB.

Alleged errors – general or public importance?

[72]   Even if I am wrong in finding that there is no seriously arguable case that the Tribunal has erred in law, I observe that the proposed grounds of appeal/review raised by AB are not of general or public importance. The issues raised by AB are specific to his case. He is essentially asking the Court to reconsider that part of the claim based on his brother’s profile. There is no issue of importance extending beyond AB.

AR v Immigration Protection Officer

[73]   Finally, I note that Mr Mansouri-Rad placed some reliance upon a recent High Court decision – AR v Immigration Protection Officer.25 In that case, leave was

25     AR v Immigration Protection Officer [2017] NZHC 132.

granted to raise the following question of law of general or public importance – namely how credibility assessments should be made in claims to refugee status, and whether those assessments require a particular approach that differs from that adopted in other legal proceedings.

[74]   AR does not assist AB in the present case. The grounds which AB wishes to raise on appeal/review do not concern the Tribunal’s assessment of his own credibility, or the credibility of any other witness. Rather, they concern how the Tribunal understood the evidence of a supporting witness – S, the weight to be given to S’s evidence, a statement filed by G, and the weight to be given to that statement. Neither S’s credibility, nor G’s credibility, was in issue, and the Tribunal made no findings of credibility in respect of either of them.

Conclusion

[75]   In my judgment, AB is doing no more than seeking to challenge the Tribunal’s factual findings, and the weight that it gave to a written statement made by G and the evidence presented by S. He simply wants the Court to reconsider an aspect of his claim to refugee/protected person status. The leave applications do not meet the criteria set out in either ss 245 or 249 of the Immigration Act. AB has not raised a seriously arguable case that the Tribunal’s factual findings were wrong, and the alleged errors do not amount to errors of law. Further, the alleged errors are specific to AB’s claim. They do not raise issues of general or public importance, and there is no other reason which requires that they should be put before this Court for consideration.

[76]Accordingly, both applications are declined.

Costs

[77]The respondent seeks costs, subject to s 45 of the Legal Services Act 2011.

[78]I direct that:

(a)any memorandum seeking costs is to be filed within 10 working days of the date of release of this judgment;

(b)any memorandum in reply is to be filed within a further 10 working days; and

(c)memoranda as to costs are not to exceed five pages.

I will then deal with the issue of costs on the papers unless I require the assistance of counsel.

Wylie J

Solicitors:

Meredith Connell, Auckland Mansouri Law Office, Auckland