AI (Somalia) v Immigration and Protection Tribunal
[2016] NZHC 2227
•21 September 2016
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-000644
CIV-2016-404-000700 [2016] NZHC 2227
UNDER the Immigration Act 2009 s 245, 249 IN THE MATTER
of applications of leave to (a) appeal and (b) judicially review a decision of the Immigration and Protection Tribunal
BETWEEN
AI (SOMALIA) Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
THE REFUGEE AND PROTECTION OFFICER
Second Respondent
Hearing: 19 July 2016 Appearances:
R S Pidgeon & T Mukusha for the applicant
B C L Charmley for the second respondentJudgment:
21 September 2016
JUDGMENT OF PALMER J (REISSUED TO PRESERVE ANONYMITY)
This judgment is delivered by me on 21 September 2016 at 11.30 am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors/Counsel:
Avondale Law, Auckland
R S Pidgeon, Barrister, Auckland
AI (SOMALIA) v THE IMMIGRATION & PROTECTION TRIBUNAL & ANOR [2016] NZHC 2227 [21 September 2016]
Summary
[1] Mr AI, a Somali citizen, arrived in New Zealand on a false New Zealand passport on 13 December 2014. He was detained in the Mt Eden Correctional Facility and applied for refugee and protected person status. He says he was kidnapped and mistreated by Al-Shabaab, a Somalian militant group, who subsequently killed members of his family and a close friend in retaliation for his refusal to join them. He says he fears for his life if forced to return to Somalia. Neither an Immigration and Protection Officer nor, on appeal, the Immigration and Protection Tribunal believed him. His application was declined. Mr AI now seeks leave to judicially review, and appeal, the Tribunal’s decision on two grounds.
[2] I consider Mr AI’s first ground, the “innominate ground” of judicial review, has been misunderstood as a separate residual and instinctual “something has gone wrong” ground of review which it is not. In any successful judicial review “something has gone wrong”. The innominate ground in New Zealand simply means the lawfulness of the exercise of powers by an unusually constituted body must be judged against its nature and functions, powers and duties and environment. That ground of judicial review does not apply here. Neither, on the facts, is there cumulative impropriety amounting to substantive unfairness, which is also sometimes confused with the innominate ground.
[3] However, I agree with Mr AI’s submission that there is a seriously arguable question as to whether the Tribunal erred in law in concluding that Mr AI’s claim to refugee status should be declined because he has a nuclear family living in Mogadishu. That conclusion appears to have been based on the Tribunal’s rejection of Mr AI’s evidence that his father and brother had been killed by Al-Shabaab in Mogadishu. Under the Immigration Act 2007 (the Act) I grant leave for appeal and judicial review on that question.
[4] The judgment outlines Mr AI’s claims, the Tribunal’s decision and the law regarding the grant of leave to appeal and review, and applies that law here.
The claim for refugee and protected persons status
AI in Somalia
[5] Since the fall of the Barre administration in the early 1990s Somalia has been riven by civil war and fighting between clans. Al-Shabaab is a militant group that was affiliated with Al Qaeda and conducted first military operations and then guerrilla warfare against the government from the mid 2000s.
[6] Mr AI is 25 years old and claims to be of Darod, Marehan and Rer Din clan lineage. I outline his account of events here. He says he was born in Mogadishu, the capital of Somalia, went to school there and enjoyed sports. In 2006 AI began working with his mother at a market in Mogadishu. Mr AI travelled regularly to Kenya with his mother on business, and to visit his sister, without a passport (apparently bribing his way over the border). In 2009 he married in Nairobi, Kenya, where his daughter was born in 2010. But Mr AI returned to Somalia and resumed working for his mother. Around 2013 he started a taxi business in Mogadishu and he had no further contact with his wife and daughter.
[7] Mr AI says he attended a conference of a non-governmental organisation in early 2014 to raise awareness about Al Shabaab. He joined as a volunteer, spoke out against Al Shabaab and organised a meeting. He discouraged children from joining Al Shabaab and encouraged them to play sports which Al Shabaab opposed.
[8] Mr AI says Al Shabaab telephoned him to tell him to join the group but he refused. Mr AI says that, in mid September 2014, he was kidnapped by four members of Al Shabaab who mistreated him for two weeks, beating him and burning him. In early October 2014 he says Al Shabaab threatened to kill him and his family because he refused to join them. He says he went into hiding. On 11 October 2014
Mr AI says Al Shabaab attacked his family and shot dead his father, brother and friend. His mother and two adopted siblings escaped. AI says he had no further contact with his family.
AI’s travel to New Zealand
[9] On 15 November 2014 Mr AI says he flew to Jakarta, Indonesia with the help of a smuggler who sold him a false Indonesian passport. In late November, with assistance from another helper, he travelled by boat to Malaysia. On 12 December
2014 he flew to New Zealand using a stolen New Zealand passport he had bought from another Somali. En route to Auckland Mr AI flushed his documentation down a toilet and claimed refugee status.
[10] Mr AI was then detained in the Mt Eden Correctional Facility for two months under s 309 of the Act because he did not have appropriate documentation. While in Mt Eden, Mr AI was beaten by some inmates and forced to fight others.
Refugee and Protection Officer decision
[11] On 14 April 2015 a Refugee and Protection Officer declined AI’s application for refugee status.1 The Officer found that there were a variety of inconsistencies between his confirmation of claim of 23 December 2014, his written statement of
3 February 2015 and his interview on 13 February 2015.2
[12] The Officer concluded it was credible that Mr AI is an ethnic Somali, a member of the Darod clan, Marehan sub-clan, Rer Din group and flew to New Zealand from Malaysia on a stolen New Zealand passport. But she did not accept it was credible that he spent his entire life living and working in Mogadishu, advocated against Al Shabaab and was targeted by them, that Al Shabaab murdered members of his family and the rest disappeared or that Mr AI fled Somalia on a false Indonesian passport.
[13] On that basis, the Officer found Mr AI had failed to establish his claim to refugee status under the United Nations Convention Relating to the Status of Refugees (Refugee Convention) because there is not a real chance of him being
persecuted and his fear of being persecuted is not well-founded. For the same
1 Refugee and Protection Status Decision, claim 13314407, Refugee Status Branch, Ministry of
Business, Innovation and Employment (14 April 2015).
2 At 9-13.
reasons Mr AI’s claims for protection under the Convention against Torture and
International Covenant on Civil and Political Rights were denied.
Immigration and Protection Tribunal decision
[14] Mr AI appealed the Officer’s decision to the Immigration and Protection Tribunal (the Tribunal). The Tribunal considered Mr AI’s “account to the Tribunal was marked by inconsistency, mobility and vagueness”.3 It found him not to be credible:
(a) The claim his family remained unscathed in the 1990s was thought “fanciful”, given that most of the widespread slaughter known to have occurred in Mogadishu in 1991 and 1992 was of the Darod clan.4 The Tribunal doubted whether AI was a member of the Darod clan or whether he was in Mogadishu but gave him the benefit of the doubt as to these claims.
(b)The Tribunal rejected Mr AI’s claim to have been a volunteer worker for an NGO, to have been pursued by Al-Shabaab, kidnapped and his family and friend killed due to the cumulative weight of his evidence being “inconsistent, vague, mobile and implausible”:
(i)inconsistencies in Mr AI giving three different dates of his kidnapping, two different periods for which he was kidnapped, and two different places from where he was kidnapped;5
(ii)inconsistencies in Mr AI’s accounts of how many phone calls he received from Al-Shabaab and a fanciful explanation of why he didn’t immediately go into hiding after being detained
and tortured;6
3 AI (Somalia) [2016] NZIPT 800857 at [42].
4 At [44]-[46].
5 At [50]-[53].
6 At [54]-[56].
(iii)inconsistencies in Mr AI giving several different dates as to when his family were attacked, two different places he was located when he heard the news and whether or not he heard from his mother;7
(iv)the implausibility of Mr AI remaining in Mogadishu for a further month after his family and friend were killed if he were genuinely in fear of his life;8
(v)inconsistencies in the evidence of Mr SW, an elder in the local community (who did not mention AI’s brother was killed and who stated AI’s father was killed although, in an email in March 2015, Mr SW asked where the father was and whether
he was alive);9
(vi)“central inconsistencies” in the evidence of Ms RN (who gave both October 2014 and January 2015 as the dates she heard from her sister that Mr AI’s father was killed) which was “fundamentally implausible” (in Mr AI’s father being the first person she suggested to her sister to contact in the month the family was said to be attacked after having only had one
previous contact with him, in 1991);10
(vii)Mr AI’s vagueness and inconsistencies about the NGO he said he worked for (not knowing its name, the surname of the person who recruited him, whether it was national or international, whether he was known or not known to be
political, who organised meetings and where they were held).11
[15] The Tribunal said it had not overlooked medical evidence from June 2015 that Mr AI says resulted from his kidnapping and torture but the Tribunal found the
7 At [57]-[59].
8 At [60]-[61].
9 At [62]-[65].
10 At [66]-[68].
11 At [69]-[73].
medical report was non-specific and there were “many other possible causes for the presentation described”.12 The Tribunal also noted Mr AI had given evidence of being under mental pressure when he made his statements and accepted he had been the victim of physical violence and forced to fight in gang fights in Mt Eden Prison.13 But it did not consider this sensibly explained its credibility concerns which included not just discrepancies but “fundamental implausibility in core aspects”.14 The Tribunal considered Mr AI may well suffer from depression and post-traumatic stress disorder but “these conditions do not account for the myriad evidential concerns in the appellant’s claim, a claim which the Tribunal rejects as false”.15
[16] The Tribunal then set out what it found to be the “accepted facts”:
[81] The accepted facts are that the appellant, in his mid-20s, of the Darod, Marehan, Rer Din lineage, was born in Mogadishu, Somalia. He remained there up until coming to New Zealand in December 2014, with the exception of travelling to Kenya on three occasions between 2009 and 2011. His parents and brother continue to live there in a home that they own, and they are well-respected in their neighbourhood. One sister lives in Kenya and the other sister’s whereabouts is unknown.
[82] The appellant completed secondary school and has worked with this mother in a market business and has operated his own taxi business in the city. He has lived abroad in New Zealand for over a year. He was detained in Mt Eden Prison from 13 December 2014 to 12 February 2015 and mistreated there by inmates. A general practitioner here reports that he suffers from depression and post-traumatic stress disorder.
[17] For Mr AI’s claim to be “well-founded” the Tribunal considered there must be “a real, as opposed to a remote or speculative, chance of it occurring”.16 The Tribunal considered extensive country information and commentary considered in a previous Tribunal decision.17 This was to the effect that the ability of returning members of the Somali diaspora to re-settle in Mogadishu depended on a combination of factors, importantly clan and family connections and crucially the
presence of nuclear or immediate family members.18
12 At [80].
13 At [75]-[77].
14 At [77].
15 At [79]
16 At [87].
17 AG (Somalia) [2015] NZIPT 800624.
18 AI (Somalia), above n 3, at [104].
[18] The Tribunal found Mr AI had wealthy parents and a brother living in Mogadishu. It found Mr AI has entrepreneurial skills and he will be able to find suitable employment to maintain an adequate standard of living in Mogadishu.19 It considered ongoing militant activity “does not establish a risk of being persecuted to the real chance level for every individual who returns to Somalia, or in the appellant’s case, to an individual, bearing all his known characteristics”.20
[19] On that basis the Tribunal found there is not a real chance of Mr AI being persecuted if returned to Somalia and he is not entitled to recognition as a refugee or as a protected person under the Convention against Torture or International Covenant on Civil and Political Rights.
[20] Mr AI seeks leave to appeal, and to bring judicial review proceedings against,
the Tribunal’s decision.
Law
Refugee and protected status determination
[21] Section 3(1) of the Immigration Act provides that “[t]he purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”. Section 3(2) outlines the immigration system established to achieve this purpose.
[22] Part 5 of the Act governs refugee and protected status determinations. According to s 124, its purpose is:
... to provide a statutory basis for the system by which New Zealand—
(a) determines to whom it has obligations under the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees; and
(b) codifies certain obligations, and determines to whom it has these obligations, under—
(i) the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment:
19 At [105].
20 At [106].
(ii) the International Covenant on Civil and Political Rights.
[23] Sections 129-131 provide that a person “must be”:
(a) recognised as a refugee if he or she is a refugee within the meaning of article 1 of the Refugee Convention and its 1967 Protocol (in Schedule 1 of the Act), which is any person who “owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”;
(b)recognised as a protected person under the Convention against Torture “if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand”;
(c) recognised as a protected person under the International Covenant of Civil and Political Rights “if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand”.
Appeals and reviews
[24] Part 7 of the Act governs appeals and reviews. According to s 184 its purpose is:
to provide comprehensively for the system of appeal and review in respect of decision making under this Act, including by providing for—
. . .
(iii) appeals in respect of decisions concerning recognition of a person as a refugee or a protected person; and
. . .
(b) to establish the Immigration and Protection Tribunal, a specialist tribunal to determine appeals and other matters under this Act; and
(c) to provide for appeals from the decisions of the Tribunal, and deal with judicial reviews of decisions made under this Act.
[25] Under s 193 every appeal must be determined in accordance with the Act and, to the extent an issue is not dealt with in the Act, the Tribunal is required to act consistently with New Zealand’s obligations under the Refugee Convention. Section
194(1)(c) provides for an officer’s decision to decline a claim to refugee or protected person status to be appealed to the Tribunal. Under s 218 the Tribunal is a specialist body which finds facts, applies the law and make determinations either inquisitorially or adversarially or both.
[26] Sections 245 and 249 provide that leave of the High Court is required for an appeal or a judicial review of a decision by the Tribunal on refugee or protected status.
Leave to appeal
[27] Section 245(1) requires an appellant to be “dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law” in which case they are entitled to appeal on that question of law. Section 245(3) requires a court to “have regard” to whether that question “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] It follows that there are three questions involved in considering whether to grant leave to appeal:
(a) Is there is question of law?
(b)If so, is the question of such general or public importance that it ought to be submitted to the High Court for decision?
(c) Or, is there any other reason why it should be so submitted?
[29] In relation to question (a), strictly speaking, the wording of s 245(1) requires only that the appellants, themselves, be “dissatisfied” with the Tribunal’s determination “as being erroneous in point of law”. But the dissatisfaction must be reasonably capable of being held.21 A court will not grant leave unless there is a question of law or a serious argument there is. Questions of fact are not questions of law. But sometimes the boundary can be blurred. The nature of the boundary was
defined by the Supreme Court in Bryson v Three Foot Six Ltd and Vodafone New Zealand Ltd v Telecom New Zealand Ltd.22 In considering those cases in New Zealand Transport Agency v Architectural Centre Inc & Ors Brown J usefully encapsulated the definition in Lord Radcliffe’s famous phrase from Edwards v Bairstow that a decision will suffer from an error of law if, on the facts, “the true and only reasonable conclusion contradicts the determination”.23
[30] In the immigration context, in Taafi v Minister of Immigration, Kós J dealt with an application for leave to appeal on essentially factual grounds by identifying three hurdles.24 The first two of these effectively invoke the Supreme Court’s and Lord Radcliffe’s tests and have been endorsed by other High Court judgments:25
(a) There must be a seriously arguable case that the Tribunal’s factual
findings are actually wrong.
(b)The factual errors are, in combination and in context of the whole decision, so grave as to constitute an error of law.
[31] In relation to the second question identified at paragraph [29](b), “general or public importance” is one of the elements defined by s 13 of the Supreme Court Act
2003 to be included in the test for the Supreme Court granting leave to appeal, if
“necessary in the interests of justice”. The Court of Appeal in Machida v Chief
21 Wu v Minister of Immigration [2016] NZHC 1309 at [15], footnote 4.
22 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[28]; Vodafone New
Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [54]-[58].
23 New Zealand Transport Agency v Architectural Centre Inc & Ors [2015] NZHC 1991 at [12]- [26].
24 Taafi v Minister of Immigration [2011] NZHC 1768, [2013] NZAR 1037.
25 At [19]. See also C v Chief Executive, Ministry of Business, Innovation and Employment [2014] NZHC 2655 at [23]. There Thomas J referred to five cases that subsequently applied Taafi and
acknowledged the Taafi test was “well-established”. More recently, see DA v Immigration and
Protection Tribunal [2016] NZHC 1545 at [43].
Executive of Immigration NZ has also characterised the “general or public importance” ground as equivalent to “importance extending beyond the particular case”.26
[32] In relation to question [29](c) there have been a number of High Court interpretations of the breadth of the “any other reason” ground for appeal in s 245(3). In RM v Immigration Protection Tribunal I held that s 245(3) includes a judicial discretion to grant leave in the interests of justice, for reasons I do not repeat.27 At almost the same time the Court of Appeal issued a judgment endorsing the third of Kós J’s triple hurdle in Taafi v Minister of Immigration,28 that s 245(3) can only be met “in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing”.29 These two approaches to question (b), in RM and in Machida/Taafi, are two sides of the same coin.30 They both depend on, and are driven by, the interests of justice. They can usually be expected to “arrive at the same end point” as Whata J observed in BU v Immigration and Protection Tribunal.31 As Whata J held, both could extend to “a flagrant and material breach of natural justice”.32 A Court simply cannot countenance a Tribunal decision standing if it is contrary to the interests of justice, especially in a human rights context. Section 245(3) provides a judicial discretion to
give leave to appeal in that circumstance.
Leave to judicially review
[33] Section 245 confers and defines the Court’s jurisdiction for an appeal. Unusually, s 249 restricts the Court’s common law and inherent jurisdiction to hear judicial review proceedings of a Tribunal decision by imposing a similar test.33
Section 249(6) provides that a Court “must have regard to”:
26 Machida v Chief Executive of Immigration [2016] NZCA 162.
27 RM v Immigration and Protection Tribunal [2016] NZHC 73 at [2], [33]-[37]. For comment on that see CF v Attorney-General [2016] NZHC 918 at [22] (per Katz J).
28 Taafi v Minister of Immigration, above n 24.
29 Machida v Chief Executive of Immigration, above n 26 at [8]. There is no indication that the
Court considered the judgment in RM which had only been issued two days before.
30 In Wu v Minister of Immigration, above n 21, at [19] I refrained from examining further the “any other reason” ground, because RM was then under appeal to the Court of Appeal. However that appeal has now been abandoned.
31 BU v Immigration and Protection Tribunal [2016] NZHC 1499 at [36].
32 At [36].
33 Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment [2016]
(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.
[34] As canvassed in RM v Immigration Protection Tribunal this requirement for leave was inserted in 2013 for reasons of consistency with the appeal provisions.34 It addresses the problem of those with hopeless claims trying to slow down decision- making in order to delay inevitable deportation.
[35] I also held in RM, and reiterate here, that there are constitutional and Bill of Rights considerations relevant to applications for leave for judicial review that do not impact applications for leave to appeal in the same way.35 This is consistent with Heath J’s subsequent judgment to similar effect in Hu v Immigration and Protection Tribunal.36 The New Zealand Bill of Rights Act 1990, which applies to decisions by the judiciary, preserves the right to apply for judicial review subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Where ss 249(1) and (2) are satisfied and a court considers a ground of review is potentially arguable, ss 6 and 27(2) of the Bill of Rights militate in favour of granting leave to bring judicial review proceedings.37 This can make a difference in marginal cases.
The issues
[36] Mr Pidgeon, for Mr AI, emphasises his application for leave to bring judicial review proceedings more than the application for leave to appeal. He seeks leave for both on two grounds.
(a) A challenge under the “innominate ground” of judicial review based
on a series of errors by the Tribunal regarding: Mr SW’s evidence; the
NZHC 1475 at [23]-[25].
34 RM v Immigration and Protection Tribunal, above n 27, at [39]-[40].
35 At [42] and see [38]-[51].
36 Hu v Immigration and Protection Tribunal [2016] NZHC 1661 at [17]-[19].
37 RM v Immigration and Protection Tribunal, above n 27, at [49]-[51].
impact of PTSD and assaults at Mt Eden on Mr AI’s ability to give
cogent evidence; and his mental health.
(b)A challenge that even if the Tribunal was lawfully able to find Mr AI’s evidence incredible, it should not have dismissed his application because of other information sufficient to warrant the recognition of his refugee status.
Issue 1: The innominate ground and cumulative impropriety
[37] Mr Pidgeon submits that a series of errors supports application of the innominate ground of judicial review. For the Crown, Ms Charmley agrees that the innominate ground exists but submits it has a very high threshold and does not apply here.
The law
[38] The so-called innominate ground of judicial review was rather tentatively identified by Lord Donaldson of Lyminton MR in the English Court of Appeal in a passage in R v Panel on Take-overs and Mergers, Ex parte Guinness Plc (“Guinness”).38 It has been applied in New Zealand, most notably and authoritatively by the Court of Appeal in Electoral Commission v Cameron.39
[39] In Guinness, the English Court of Appeal had some difficulty deciding how to approach judicial review of a decision by the Take-Over Panel, described as “[p]art legislator, part court of interpretation, part consultant, part referee, part disciplinary tribunal” which determined its own terms of reference and rules and
gave guidance and could take disciplinary action all without a statutory base.40 In a
passage that needs to be read in full, Lord Donaldson suggested the answer lay in escape from formal categories of grounds of judicial review:41
It may be that the true view is that in the context of a body whose constitution, functions and powers are sui generis, the court should review
38 R v Panel on Take-overs and Mergers, Ex parte Guinness Plc [1990] 1 QB 146 (CA) at 159-160.
39 Electoral Commission v Cameron [1997] 2 NZLR 421 at 430.
40 At 158.
41 At 160.
the panel’s acts and omissions more in the round than might otherwise be the case and, whilst basing its decision on familiar concepts, should eschew any formal categorisation. It was Lord Diplock who in Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, formulated the currently accepted categorisations in an attempt to rid the courts of shackles bred of the technicalities surrounding the old prerogative writs. But he added, at p 410, that further development on a case by case basis might add further grounds. In the context of the present appeal he might have considered an innominate ground formed of an amalgam of his own grounds with perhaps added elements, reflecting the unique nature of the panel, its powers and duties and the environment in which it operates, for he would surely have joined in deploring the use of his own categorisation as a fetter on the continuous development of the new “public law court”. In relation to such an innominate ground the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take.
[40] The law of judicial review is rooted in principle and practice rather than legal categories. I entirely agree with the desire that the law of judicial review avoid the austere rigidity of tabulated legal categorisation. And a court must be able to express, in new terms that fit the individual case, the reason why an application for judicial review fails or succeeds.
[41] However, to use the words of Lord Donaldson in the same judgment about a different passage in a previous judgment, “[t]his passage has, I think, been misunderstood”.42 I do not consider Lord Donaldson was suggesting, in the last sentence of the passage quoted above, that “whether something had gone wrong of a nature and degree which required the intervention of the court” is, itself, a stand- alone basis on which courts can rule unlawful decisions of public bodies. Rather he
was suggesting, in the previous sentence, examination of “the unique nature of the panel, its powers and duties and the environment in which it operates” to determine the basis on which lawfulness of the exercise of powers should be assessed. That examination would provide the substantive legal test which would indicate, “as always” (i.e. as do all grounds of judicial review), whether something had gone wrong requiring the intervention of the court. And that is how Lord Donaldson
applied the passage.
42 At 158.
[42] Furthermore, that is how the Court of Appeal in Electoral Commission v
Cameron applied Lord Donaldson’s passage to judicial review in New Zealand.43
That case concerned the overlap of powers between the statutory Electoral Commission and the unincorporated industry body, the Advertising Standards Complaints Board constituted by the industry body, the Advertising Standards Authority Inc (the society). After quoting Lord Donaldson’s passage in full, Gault J, for the unanimous five judge court that also included Richardson P and Thomas,
Keith and Blanchard JJ, stated:44
Again there is no need for any definitive decision in this case as to grounds upon which decisions of the board may be reviewed. The present case is to be resolved by examination and reconciliation of the powers of the board on the one hand and those of the commission on the other. If on a proper construction of the powers of the board they do not extend to interfering with the exercise by the commission of any of its statutory functions and powers, a decision by the board having that effect will be beyond its powers. While that may be analysed in administrative law terms as unlawful or unreasonable, it can equally be dealt with simply by a declaration that such a decision would be beyond the powers of the board (and the society).
[43] Again, the point is simply that the lawfulness of the exercise of powers by a body that is unusually constituted must be judged against its nature and functions, powers and duties and environment in relation to those of other bodies. This is a routine and orthodox approach to interpretation of a body’s constitution. It is not an invitation to courts to strike down a decision of a public body based on a court’s instinct as to whether “something has gone wrong”.
[44] Courts sometimes portray Lord Donaldson’s innominate ground as a “something has gone wrong” approach, by way of shorthand, when summarily rejecting its application.45 The way these cases have been subsequently cited has encouraged a bare generic “something has gone wrong” interpretation of the
innominate ground to gain currency amongst counsel and some commentators.
43 Electoral Commission v Cameron, above n 39.
44 At 430.
45 For example see: Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606 at 638 (per Tipping
J); Farr v Williams HC Hamilton CP7/95 23 October 1997 at 12 (per Hammond J); Health Advocates Trust v Director of Health and Disability Services Consumer Advocacy on behalf of the Crown [2008] NZCA 67 at [48]. The majority of cases pleading the innominate ground fail to make out the factual basis, per Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014 at 1020-1021. For a comprehensive list see Matthew Smith New Zealand Judicial Review Handbook, Brookers, Wellington, 2011) ch 53.
I consider Professor Joseph is right to describe such a version of the innominate ground of judicial review as supporting an “instinctual” nature of judicial review,46 and as being “not a discernible test at all”.47 “The vibe” can be a valuable reality check as to the interests of justice,48 but it is not a legal test. The “something has gone wrong” interpretation of the innominate ground would yield a circular,
indeterminate and largely discretionary “ground” of judicial review or, as Timothy Jones has observed, “[a]n extreme example of legal uncertainty”.49 I consider that would be inconsistent with the rule of law’s aspiration for relative certainty rather than arbitrary discretion. Freedom from arbitrariness must be as much a feature of the law of judicial review as any other branch of law, if not more so given the close connection between judicial review and the rule of law.50
[45] Another source of confusion may lie in Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd.51 There, Cooke P (as he then was) discussed the possibility that a situation “where the procedure and the decision of an administrative body, although possibly just surviving challenge if viewed separately, were in combination so questionable as to impel the conclusion” that something had gone wrong as per Lord Donaldson’s language.52 But Cooke P was not suggesting that either “something has gone wrong” or “cumulative impropriety” was a ground of review in itself.53 He was identifying circumstances in which “substantive unfairness” is a legitimate ground of judicial review by reference to Lord Donaldson’s ultimate objective of any potential ground of judicial review. Consistent with this, application of “cumulative impropriety”, as the Court of Appeal has recently labelled it,54 might be best conceived as a manifestation of substantive
unfairness as a ground of judicial review. The rest of the Court of Appeal in Thames
46 Joseph, above n 45, at 22.4.
47 At 1020.
48 Dennis Denuto, Australian lawyer film character “Summing up” The Castle (Village Roadshow
Pictures, 1997).
49 Timothy H Jones “Judicial review and codification” (2000) 20 Legal Stud 517.
50 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012]
2 NZLR 153 at [3] (per Elias CJ and McGrath J); Mark Elliott “Judicial Review’s Scope, Foundations and Purposes: Joining the Dots” [2012] NZ L Rev 75 at 78-79.
51 Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641.
52 At 652-652.
53 Note also that Cooke P did not refer to a combination of errors or factor but the combination of both the procedure and the decision. This may reflect Cooke P’s concern, in this passage, with the distinction between procedural and substantive unfairness.
54 Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Maori Heritage
Council [2015] NZCA 23, [2015] NZAR 302 at [88]-[89].
Valley Electric Power Board v NZFP Pulp & Paper Ltd, McKay and Fisher JJ, gave nuanced acceptance to substantive unfairness being a potential ground of judicial review.55
[46] By contrast, I do not consider a generic “something has gone wrong” interpretation of the innominate ground of judicial review to constitute part of the law of judicial review in New Zealand. If “something” has gone wrong, sufficient to warrant a court interfering in the decision-making of a public body, the court ought to be able to describe what that “something” is so as to justify with reasons why it is unlawful. I have only been able to locate two judgments where the innominate ground was directly applied in “something has gone wrong” terms. Both applications, by Tipping J in the High Court, were additional to judicial review “on conventional principles” and also used “cumulative impropriety” terminology, which
may be more apposite.56
Application here
[47] In any case, neither the innominate ground of judicial review nor cumulative impropriety as substantive unfairness are applicable here.
[48] The law governing the decision-making by the Tribunal is clearly set out in statute. There is no need to delve further into its legal parameters by reference to its functions, powers or duties. There is no need to express anew the grounds of judicial review that apply to it.
[49] Neither am I satisfied the weight accorded to any of the identified evidence individually or cumulatively was wrong or was material to the Tribunal’s decision. Challenging the amount of weight placed on various factors by a decision-maker is less than propitious of a successful judicial review. It is a tacit acknowledgement that the decision-maker took a relevant consideration into account. It usually signals disagreement about the outcome of the decision without being able to impugn it.
That is so here.
55 Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd, above n 51, at 653-654.
56 Madlener v Lester HC Christchurch CP263/91, 31 July 1996 at 29-31 and M v District Court HC Christchurch AP294/92, 23 February 1993 at 6. I respectfully disagree with these cases being authority for “something has gone wrong” being a ground of judicial review.
[50] None of the evidence subject to Mr AI’s challenge as to weight suggests that
the true and only reasonable conclusion contradicts the Tribunal’s determination:
(a) The Tribunal considered Mr SW’s evidence but also considered it suffered from “central inconsistencies” as noted above. Mr Pidgeon does not explain those inconsistencies. Given its concerns the Tribunal was not required to accept Mr SW’s evidence. Even if it was, considering it against the rest of the evidence would not necessarily dictate a different conclusion.
(b)The Tribunal explicitly acknowledged that Mr AI “may well suffer” from PTSD, it accepted he was the victim of assaults at Mt Eden and it noted he had given evidence of being under mental pressure. But none of those factors required the Tribunal to accept Mr AI’s claims, given all of the concerns the Tribunal identified.
Issue 2: Other evidence of a well-founded fear of persecution
[51] Mr Pidgeon says “the crux” of his argument is the Tribunal’s failure to apply “the Hathaway approach” in relation to evidence of a well-founded fear of persecution aside from credibility findings. Ms Charmley submits this does not assist since not every person will be in fear of persecution on returning to Somalia.
The law
[52] By “the Hathaway approach” Mr Pidgeon means the proposition by Professors James Hathaway and Michelle Foster in relation to refugee status applications that “even if there is really no basis to find any value in the applicant’s own testimony, it may still be the case that there is evidence other than the impugned
testimony that is sufficient to warrant the recognition of refugee status”.57
57 James C Hathaway and Michelle Foster The Law of Refugee Status (2nd ed, Cambridge
University Press, Cambridge, 2014) at 160.
[53] Their seminal text cites the following passage of the former New Zealand
Refugee Status Authority in support of the proposition:58
even if the entire account of a refugee claimant is dismissed as a fabrication, it does not necessarily follow that the individual is not a Convention refugee. Other evidence, independent of the claimant, including country information, may establish that the individual is at risk of being persecuted for a Convention reason; in which case recognition of refugee status must follow notwithstanding that the particular claimant’s account has been properly rejected in every respect on credibility grounds.
[54] That must be correct. Section 129 of the Act and article 1 of the Refugee Convention are concerned with whether a claimant for refugee status has a well- founded fear of being persecuted for identified reasons. The complete incredibility of an applicant’s account of how he or she came to make an application does not mean the applicant’s fear of being persecuted is not well-founded. As Hathaway and Foster state, “[b]ecause credibility is not a requirement per se of Convention refugee status – but only a requirement for an applicant’s testimony to be weighed in the assessment of genuine risk – refugee status must be recognized if there is other
credible evidence sufficient to establish a relevant well-founded fear.”59 Or, in the
words of the English Court of Appeal, cited by Hathaway and Foster:60
[T]hat a person who has not given a credible account of his own history cannot easily show that he would be at risk . . . is . . . a robust assessment of practical likelihood, but it is not . . . any sort of rule of law or even rule of thumb. In every case it is still necessary to consider, despite the failure of the applicant to help himself by giving a true or any account of his own experiences, whether there is a reasonable likelihood of persecution on return.
[55] As Whata J observed in BZ (Sri Lanka) v Immigration and Protection Tribunal of Auckland it “appears settled” that a Tribunal will consider independent country information notwithstanding credibility findings.61 If a decision-maker makes wholly or largely negative findings of the credibility of a claimant for refugee status it is still required to ask, on the remaining evidence, whether there is a
reasonable likelihood of persecution. If the decision-maker regards its conclusions
58 Refugee Appeal No 76204 (NZ RSAA, 2009) at [55].
59 At 160-161, citing Mensah v Canada (Minister of Employment and Immigration) [1989] FCJ 1039 (FCA); Ahmed v Canada (Minister of Employment and Immigration) [1990] 12 Imm L R (2d) 212 (FCTD).
60 At 161. GM (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833 at
[31] per Buxton LJ.
61 BZ (Sri Lanka) v Immigration and Protection Tribunal of Auckland [2015] NZHC 2883 at [45].
on credibility as determining the question irrespective of the remaining evidence then it makes an error of law in not considering relevant considerations.
Application here
[56] There does appear to be a potential problem in the Tribunal’s reasoning here in this respect. The Tribunal rejected the credibility of Mr AI’s claims of involvment in an anti-Al Shabaab NGO, being kidnapped and tortured by Al Shabaab and having his father and brother killed by Al Shabaab. It then stated what it accepted as facts in the paragraphs quoted above at [16] which included that “[h]is parents and brother
continue to live there in a home that they own”.62
[57] The problem is not that its finding is directly contrary to Mr AI’s claims. The Tribunal had an evidential foundation for finding that Mr AI’s claim that his father and brother had been killed were not credible. The problem is that the Tribunal made a positive finding of the opposite – that his parents and brother were alive and living in a home they own in Mogadishu – for which the Tribunal had little or no evidential foundation. In statistical terms this is equivalent to converting rejection of falsity (a true positive) into acceptance of truth of the opposite (which may be either correct or a false negative).
[58] And this finding was crucial to the Tribunal’s conclusion. The country evidence examined by the Tribunal was specific to Mogadishu and its clans and had “some nexus of a probative nature to the contentions advanced by the applicant”.63
The Tribunal examined the country evidence about Somalia and applied it to Mr AI’s situation in 24 paragraphs. It found overall security in Somalia to be described by the United Nations as “dire” and “volatile”, with Al-Shabaab disproportionately affecting the civilian population and those lacking support networks possibly being
forced to live in internal displacement camps.64 The Tribunal found the ability of
returning members of the Somalia diaspora to re-settle in Mogadishu depended most
62 AI (Somalia), above n 3, at [84].
63 AP v Immigration and Protection Tribunal [2016] NZHC 1085 at [31].
64 AI (Somalia), above n 3, at [94], [98], [100]-[104].
importantly on a person having clan and family connections and, crucially, the presence of nuclear or immediate family members.65
[59] But the Tribunal’s conclusion that Mr AI had parents and a brother living in Mogadishu was based on little or no evidential foundation and was contrary to the evidence before it. Fuller argument may justify a different conclusion but I consider there is a seriously arguable case that the Tribunal’s factual findings are wrong. If they are, there may be a well-founded fear that Mr AI will be persecuted on his return to Somalia.
[60] This could be argued to be an error of law in several different ways for the purposes of either appeal or judicial review. Counter-arguments are available, of course, especially given that s 135 places the responsibility for establishing a claim for refugee status on the applicant. However, I consider it could be seriously arguable that the Tribunal’s determination:
(a) could be a conclusion materially based on a mistake of fact, its
findings about Mr AI’s family;
(b)could have regard to an irrelevant consideration, by elevating the Tribunal’s findings of incredibility of Mr AI into a finding of credibility of the opposite;
(c) could be argued not to have regard to a relevant consideration – the lack of evidential foundation for its conclusion;
(d) could be unreasonable in a Wednesbury sense;66 or
(e) could be contradicted on the facts by the true and only reasonable conclusion available.
[61] These questions might well be of general or public importance. Whether the
Tribunal can base positive factual findings on negative credibility findings of the
65 At [104].
66 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
opposite is important beyond the particular case. And the result could be that Mr AI would be forcibly returned to a reasonable likelihood of persecution in a war-torn country when he may have a lawful claim to refugee status. I consider that would be contrary to the interests of justice, including the interests of upholding Mr AI’s human rights, as well as contrary to the purpose of the Act. As such, it could not be countenanced to stand. I grant leave to appeal the Tribunal’s decision on the question of whether it erred in law in concluding that Mr AI’s claim to refugee status should be declined because he has a nuclear family living in Mogadishu.
[62] Mr Pidgeon, for Mr AI, emphasised the application for leave to bring judicial review more than the application for leave to appeal. Ms Charmley, for the Crown, submitted that the question of whether the Tribunal’s alleged errors of fact amounted to an error of law can be dealt with on appeal rather than review. However, I consider that several of the possible questions of law identified above, such as Wednesbury unreasonableness, are quintessential issues of judicial review rather than appeal. In addition, the flexibility of relief options available to a court under the Judicature Amendment Act 1972 may be of assistance to a court considering this matter. And the above analysis, that there is an “other reason” why the issues ought to be submitted to the High Court, applies just as much to a review as to an appeal, especially bearing in mind the Bill of Rights. So I grant leave for judicial review as well.
[63] Finally Mr Pidgeon sought to adduce additional evidence of country information regarding Somalia, in submitting that there is a clear and enduring risk of harm to Mr AI from returning there, given his clan lineage. I have not needed to rely on that in coming to my conclusion above, given the evidence considered by the Tribunal. But I accept that the Court considering the appeal, or relief under judicial review, may consider the ends of justice would be served by receiving further updating information, whether of country information or in relation to Mr AI’s
nuclear family.67 Either party may apply for leave to adduce such evidence as part
seeking the timetabling directions.
67 CD (CA27/2015) v Immigration and Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494 at [24].
Result
[64] I grant leave to Mr AI to appeal and judicially review the Tribunal’s decision on the question of whether it erred in law in concluding that Mr AI’s claim to refugee status should be declined because he has a nuclear family living in Mogadishu.
[65] Costs are awarded to Mr AI on a category 2 basis. If costs cannot be agreed between the parties they have leave to file and serve memoranda within 20 working days of this judgment.
Palmer J
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