AJ (Ghana) v Refugee Protection Officer

[2019] NZHC 2387

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

SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-315

[2019] NZHC 2387

UNDER

the Immigration Act 2009 s 249

BETWEEN

AJ (GHANA)

Applicant

AND

REFUGEE PROTECTION OFFICER

First Respondent

IMMIGRATION PROTECTION TRIBUNAL

Second Respondent

Hearing:	2 September 2019
Counsel:	RS Pidgeon for applicant EG Dowse and RJ Warren
Judgment:	20 September 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 20 September 2019 at 2pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:Integritas Law Firm, Auckland (P Pang) Crown Law, Wellington

AJ (Ghana) v Refugee Protection Officer [2019] NZHC 2387 [20 September 2019]

Introduction

[1]                 AJ, the applicant, seeks leave to judicially review a decision of the Immigration and Protection Tribunal (the IPT) declining the applicant’s request to create an audio- visual recording of certain evidence given at his hearing before the IPT (the Procedural Decision). Subsequent to the hearing, the IPT issued a decision declining his application for refugee status (the Substantive Decision).1

[2]                 The applicant is a citizen of Ghana. In short, he seeks refugee status on the grounds that should he return to Ghana, he will become involved in a chieftainship dispute which has already resulted in the death or kidnapping of several family members and will put him in serious danger.

[3]                 Mr Pidgeon, counsel for the applicant, submits leave should be granted because of what he submits is an irregularity in the procedure at the IPT hearing. He says the IPT should have allowed him, as the applicant’s counsel, to make an audio-visual recording of AVL evidence that was given before the IPT by the applicant’s mother. That evidence was recorded (by audio) by the IPT’s systems in the ordinary way. But Mr Pidgeon says that given technical difficulties with the AVL, and the fact that the applicant’s mother was giving evidence through an interpreter, an audio-visual recording would better enable any translation or other issues with the evidence to be checked and reviewed.2

Background

[4]                 The applicant has made three claims for refugee status; the Procedural Decision challenged in this proceeding relates to the third claim. The following summary of the applicant’s claims is taken from the Substantive Decision.

1      Re AJ (Ghana) [2019] NZIPT 801396. Although the draft statement of claim seeks to review the Procedural Decision, one remedy sought is for the Substantive Decision to be set aside and the matter remitted to an alternatively constituted IPT.

2      Mr Pidgeon says that an audio-visual recording would enable matters such as body language and movement of the witness’s lips to be studied.

First claim

[5]                 As noted above, the applicant sought refugee and protected person status on the basis of a chieftaincy dispute which would endanger him should he return to Ghana. He gave evidence his late father had nominated him as successor to the chieftaincy of their tribe. His elder half-brother, who was wealthy and well-connected, as well as many other members of his extended family, objected to this. The applicant had to go into hiding. His mother and siblings were threatened, and an uncle who had supported the applicant was found strangled. In late 2013, the applicant was abducted at knifepoint. He left Ghana shortly after.

[6]                 The Refugee Status Branch (RSB) declined the applicant’s claim for refugee and protected person status in March 2015. An appeal to the IPT was dismissed on 31 March 2016. The IPT accepted chieftaincy-related disputes were widespread in Ghana. However, they doubted the credibility of the applicant’s account. The details he had provided to the RSB and IPT about his father, his tribal affiliations, and the impact of the chieftainship dispute on him and his wife, was at odds with information he had provided elsewhere, including in a visa application to the United States.

Second claim

[7]                 The applicant again applied for refugee and protected person status in April 2016. His new application was based on further information he said had come to light that his half-brother had falsely accused him of stealing a significant sum of money.

[8]                 The RSB declined his claim on 10 June 2016, on the basis that the claim was unfounded, abusive, or repeated a previous claim.3

Third claim

[9]                 On 8 May 2017, the applicant lodged a third claim for refugee and protected person status. At the hearing on 11 December 2018, his mother provided new evidence that:

3      Immigration Act 2009, s 140(3).

(a)She had fled Ghana to live in Nigeria due to attacks on both her and other members of the applicant’s family;

(b)Two of the applicant’s brothers had also fled Ghana;

(c)Another of the applicant’s half-siblings had been killed, and the death had been linked to his support of the applicant; and

(d)She believed the applicant would be killed by his siblings should he return to Ghana.

[10]              The IPT accepted that this amounted to a significant change in circumstances since the determination of the applicant’s second claim and accordingly, considered whether the new evidence justified departing from the IPT’s earlier decision. They considered it did not. There were a number of discrepancies in the new information provided by the applicant and his mother. Moreover, the new information did nothing to dispel the IPT’s original concerns at the credibility of the applicant’s claim overall.

[11]              The IPT dismissed the applicant’s claim, concluding “there is no credible evidence that the appellant is being targeted by his step-brother or anybody else, as he has claimed, in relation to any chieftaincy or property-related dispute.”4

Procedure at the third hearing

[12]              The method through which the applicant’s mother provided this new evidence is of some importance to the present application. The evidence was given by the applicant’s mother via audio-visual link from Nigeria, with the assistance of an interpreter. The applicant was permitted to be in the room while his mother was giving evidence, as he had already given his evidence before the IPT. He was not facing, however, the screen onto which the AVL of his mother’s evidence was projected.

[13]The Substantive Decision records:

[27]      The Tribunal heard from the appellant’s mother by Skype and, when that failed because of network connectivity issues, by telephone. Although the

4      Re AJ (Ghana), above n 1, at [52].

Tribunal was not able to clearly sight the identity card that was being produced by the witness due to the poor quality of the video stream, the Tribunal was able to see the name […] which corresponded to the surname which the appellant has maintained to be the surname of his mother. The Tribunal therefore accepts that the person who was giving evidence is the appellant’s mother.

[28]      The ability of the Tribunal to hear the mother’s evidence was compromised by the often poor quality of the connection and the fact that the appellant’s mother was often crying and distressed throughout the giving of her evidence. Nevertheless, despite these issues, the appellant’s mother was able to give the following evidence.

[14] The IPT then went on to describe the evidence the applicant’s mother had given (see the summary at [9] above). Despite the connection and other difficulties described in the IPT decision, there was no challenge to the translated evidence at the hearing. No translation issues or concerns have been raised subsequently, nor any challenge or concern at the IPT’s record or understanding of the applicant’s mother’s evidence.

[15]              Mr Pidgeon advises that at a pre-hearing telephone conference, he sought permission to make his own audio-visual recording of the applicant’s mother’s evidence through a software programme on his laptop. The IPT determined he was not permitted to make his own recording (i.e. the Procedural Decision). Instead, the IPT’s own recording systems, which capture only audio, were used.

[16]              The Procedural Decision was set out in an email dated 8 November 2018, sent to Mr Pidgeon by an IPT case manager following the telephone conference. The email does not include reasons as to why his request was denied.

Submissions

Applicant’s submissions

[17]              The crux of Mr Pidgeon’s submissions is that there was a breach of natural justice due to the IPT’s refusal to allow him to make an audio-visual recording of the mother’s  evidence.5   He  emphasises  the  extreme  vulnerability  of  persons  in the

5      The draft statement of claim says the Procedural Decision involved an error of law (as the applicant’s mother, by voluntarily giving evidence, waived her right to privacy and the applicant consented to an audio-visual recording); was contrary to natural justice and was unreasonable.

applicant’s position, and therefore suggests the room for procedural unfairness must be very small indeed.6 He stresses the difficulty associated with obtaining accurate evidence from an overseas witness with a heavy accent and AVL connection issues. Being able to see things like gestures or lip movement could help with understanding the evidence and clearing up any translation issues. He also notes that the applicant could not see the screens his mother’s evidence was broadcast on at the hearing itself.

[18]              The breach was particularly significant, Mr Pidgeon says, due to the fact the onus is on the applicant to show they should be granted refugee status. The evidence from the applicant’s mother was a crucial aspect of his case; it was the first time evidence corroborating the applicant’s claim was being given by another person (rather than relying on documentary evidence) and thus all procedural steps to ensure the evidence was accurately captured  should  have  been  taken.  More  generally, Mr Pidgeon notes that there is a public interest and general importance in making sure decision makers in the refugee context are correctly applying the law; this favours leave being granted.

[19]              Mr Pidgeon submits that any privacy or security concerns associated with a private recording being made of evidence given before the IPT could be dealt with by way of counsel giving suitable undertakings. In any case, Mr Pidgeon notes that this kind of software is already used for discussions between counsel and a witness prior to the hearing, or to create pre-recorded videos played to the IPT as evidence.

[20]              Mr Pidgeon also responsibly raised the issue of whether the applicant had waived any right to challenge the Procedural Decision by failing to appeal it between the teleconference and substantive hearing itself. As I indicated to him at the hearing, I do not view the issue of waiver to be determinative. If I considered there had been  a breach of natural justice, I would grant leave notwithstanding any failure to appeal before the hearing – there being only a 10-day gap between the telephone conference

The draft claim seeks an order quashing the Procedural Decision and “returning the appeal to the Tribunal under a differently constituted tribunal” and a direction to the Ministry of Justice and Chair of the IPT to consider making a practice note in favour of audio-visual recordings.

6      Referring to observations to this effect of Whata J in BZ (Sri Lanka) v Immigration and Protection Tribunal [2015] NZHC 2883 at [52].

and the substantive hearing, both of which took place in the immediate run-up to the Christmas holiday period. Accordingly, I do not address the waiver point further.

Respondent’s submissions

[21]              The Refugee and Protection Officer (the RPO) opposes the grant of leave, stressing the high threshold for leave imposed by s 249 of the Immigration Act 2009 (the Act).

[22]              Before turning to the substance of the RPO’s opposition, I note that in its written submissions, the RPO said this matter could be dealt with by way of an appeal against the IPT’s decision on a question of law concerning the proper interpretation of statutory provisions and the IPT’s Practice Note (see [33]-[34] below). Counsel for the RPO, Ms Dowse did not, however, pursue this point at the hearing before me.  Ms Dowse was right not to do so. The issues raised by Mr Pidgeon on the applicant’s behalf do not turn on the interpretation of any statutory provisions or documents concerning the IPT’s procedure.

[23]              Ms Dowse submits there is no general or public importance that might favour granting leave, nor is there legislation creating a right or expectation of a personal recording of live evidence in the Tribunal. To the contrary, the IPT is required to conduct refugee hearings in private. Moreover, the RPO notes the IPT is empowered to conduct its procedure as it sees fit; here, it acted in line with its own practice note regarding AVL evidence. The RPO cites previous cases where even a complete lack of audio recording did not raise an issue of law of general importance to support the grant of leave.7 Here, an audio recording was made, the only issue is the absence of a visual recording.

[24]              The RPO submits that should the Court find the absence of a visual recording was an error, it was not material. The IPT Decision outlines the mother’s evidence in some detail. The applicant has not suggested an error or omission in what it has recorded, and could have requested a transcript of the audio if he did have concerns.

7      Citing AL (Nigeria) v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 522.

Some of the problems with the mother’s evidence were technical difficulties at her end, which would not have been ameliorated through a visual recording of the hearing.

[25]              In any event, the RPO notes that the applicant’s claim was declined because the IPT decided the new evidence did not affect its earlier adverse assessment of the applicant’s credibility. Any suggested irregularities with his mother’s evidence is thus immaterial.

Relevant Law

Approach to granting leave

[26]              Section 249 of the Act provides leave is required before a judicial review proceeding can be brought against a decision of the IPT. In determining whether to grant leave, the Court must have regard to:8

(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.

[27]The principles in relation to leave are relatively well settled:

(a)The introduction of a leave requirement indicates a deliberate intention by Parliament to limit appeals and reviews of IPT decisions. In assessing whether a matter is of general or public importance, the test is similar to that which applies to second appeals;9

(b)If an application has little or no prospect of success, it is unlikely to be of general or public importance;10

8      Immigration Act 2009, s 249(6).

9      Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 972, [2018] NZAR 1120 at [26].

10     Rupal v Immigration and Protection Tribunal [2018] NZHC 422 at [33].

(c)Nonetheless, due to the constitutional importance of judicial review, the existence of an arguable ground of review should point towards leave being granted, so as to not restrict the availability of judicial review without justification.11

[28]              In BZ (Sri Lanka) v Immigration and Protection Tribunal, Whata J approached the leave test in this way:12

The starting point for this evaluation is that refugee status claims involve claimants at the highest end of vulnerability and potentially at risk of gross human rights violation. The tolerance for procedural unfairness in such cases must be small.

[29]              Despite this, Whata J nonetheless found that a procedural defect in the case before him, namely that the applicant was excluded from the hearing while his wife gave evidence,13 was not one of general or public importance.14 Nor did the procedural defect manifest in any procedural unfairness to the applicant himself.15

Procedural requirements in the IPT

[30]              Given the procedural error alleged by the applicant is a failure to allow a visual recording to be made, it is necessary first to examine the relevant procedural rules in the IPT.

[31]The starting point is s 222(4) of the Act, which provides:

The Tribunal may regulate its procedures as it sees fit, subject to this Act and any regulations made under this Act.

[32]              Schedule Two to the Act sets out additional provisions relating to the operation of the IPT. Two clauses in Schedule Two are particularly relevant:

11     RM v Immigration and Protection Tribunal [2016] NZHC 735 at [50].

12     BZ (Sri Lanka) v Immigration and Protection Tribunal, above n 6, at [52].

13     Described by the Judge as “problematic” (at [50]).

14 At [51].

15 At [51].

(a)Clause 18A provides the hearing of a matter can be conducted by telephone or audio-visual link “if the Tribunal or chair of the Tribunal considers it appropriate and the necessary facilities are available”.

(b)Clause 18 requires the Tribunal to conduct refugee or protected person hearings in private.16

[33]              The IPT has supplemented these legislative requirements with a Practice Note which provides additional details on procedure. On evidence given via AVL, the Practice Note says:17

[7A.2] Where a party seeks to adduce evidence by telephone, or other audio or audio-visual link, any toll or other charges must be borne by the party calling the witness. At its own premises, the Tribunal will normally provide a telephone able to be heard by all in the hearing room. Any toll or other charges may be met by the appellant providing a calling card pre-charged with sufficient funds to enable the evidence to be taken in one sitting. Other proposed methods of meeting the cost should be discussed with the case manager at the earliest opportunity.

[7A.3] Witnesses giving evidence by telephone, or other audio or audio- visual link are expected to have filed a written brief of evidence in advance of the hearing in accordance with paragraph [13] of this Practice Note. […]

[34]              The Practice Note also addresses the recording of the hearing. It provides the Tribunal will make and retain a recording of every oral hearing, “for the purpose of providing the member with the means to cross-check later what was said.”18 Recognising, however, that the audio recording “may be the most accurate record of the evidence”, section [30.2] of the Practice Note provides for a copy of the recording to be made available to a party’s representative (if there are cogent reasons which justify the provision of the recording),19 or the party themselves to have access to the recording at the Tribunal’s offices. The Practice Note further states:

[30.3] The Tribunal will not provide a written transcript to a party or representative. It will provide the High Court, Court of Appeal or Supreme Court with a written transcript of the recording, on request by the relevant

16     Immigration Act 2009, sch 2 cl 18(3).

17     Immigration and Protection Tribunal Practice Note 2/2018 (Refugee and Protection) (16 May 2018).

18     At [30.1]-[30.2].

19     Noting that a failure by a party’s representative to take adequate notes during the hearing will not normally constitute cogent reasons.

Court. The time taken to prepare a transcript varies but can be expected to be not less than six weeks.

[35]              There is no reference to a visual recording of the hearing in the Act or Practice Note.

Recordings and natural justice

[36]              The Supreme Court have recognised the value of audio recordings in ensuring natural justice, particularly where one party requires an interpreter. However, the Court has limited those comments to audio, rather than visual recordings. In Abdula v R, while considering translation issues in a criminal trial, the Court said best practice was that:20

… an audio recording should be made of all criminal trials in which there is an interpreter providing assistance for an accused person. The recording, which would be transcribed or released to the parties only by order of the court if and when necessary, would be the appropriate and best means of resolving issues arising on appeal about the accuracy and general competence of interpretation. In our view, these practices are not only in themselves highly desirable in criminal trials, but they are also likely to prevent lapses in the standard of interpretation that might otherwise tend to lead to breaches of the rights of accused persons.

[Emphasis added]

[37]               In AL (Nigeria), Venning J considered an application for leave to bring a judicial review on the grounds no “live notes of evidence” were produced during the hearing.21 Venning J dismissed the application. He noted the Act referred to the Tribunal’s ability to receive any statement or information, but created no obligation to produce a transcript. The Judge considered the issue fell within the Tribunal’s own discretion as to how it conducted proceedings and considered it was not for the High Court to direct the IPT how it should conduct itself.22

[38]              Similarly, in T, Miller J considered the failure of the Refugee Status Appeals Authority to keep any record of the hearing in that case (the recorder having broken down during the course of the hearing).23 In dismissing this ground, Miller J said:

20     Abdula v R [2011] NZSC 130, [2012] 1 NZLR 534 at [60].

21     AL (Nigeria) v Chief Executive of Ministry of Business, Innovation and Employment, above n 7.

22 At [47].

23     T v Refugee Status Appeals Authority [2004] NZAR 552.

[25]      The Authority controls its own procedure. Under [relevant provisions of a previous Immigration Act] it must give reasons but there is no requirement to prepare a transcript. In those circumstances, an obligation to produce a transcript should not lightly be inferred.

[26]      Mr Carter responsibly drew my attention to SCFP Local 301 v Quebec Conseil de Service Essentiels [1997] 1 SCR 793, a decision of the Supreme Court of Canada in which the Court accepted at para 76 that lack of a transcript may be a breach of natural justice where it leads to the applicant being deprived of grounds of review. However, the Court observed that there will be no breach of natural justice where the decision facing the tribunal could be made on the basis of evidence established through other means. Even where the statute creates a right to a transcript, the applicant must show a serious possibility of an error on the record or an error regarding which the lack of recording deprived the applicant of his or her grounds of review.

Evaluation

[39]              I readily accept Mr Pidgeon’s submission that the statutory directive that the IPT may regulate its procedures as it sees fit does not insulate the IPT from review on procedural grounds. As Whata J noted in BZ (Sri Lanka) the scope for procedural unfairness in cases such as these must be small. But as AL (Nigeria) and T make clear, there must be some indication or suggestion that an alleged error has led to procedural or substantive unfairness to the person seeking refugee status, such as depriving them a proper and fair opportunity to present their case, or depriving that person from establishing grounds of review. This is also apparent from the Supreme Court’s observation in Abdula that audio recordings of evidence can be transcribed and released to the parties “if and when necessary”.

[40]              I consider the circumstances of the present case, and the proposed grounds for review, fall well short of justifying leave being granted. It is not a “marginal case” in the sense described by Palmer J in R M v Immigration and Protection Tribunal.24 I say this for the following six reasons.

[41]              First, while Mr Pidgeon is correct that the burden rests on the applicant to prove his case before the IPT, there is no suggestion that he did not have a full and proper opportunity to present his case before the IPT. He was permitted to call evidence from

24  R M v Immigration and Protection Tribunal, above n 11, at [51], stating “But in marginal cases, it is important to bear in mind that the leave decision is one which impacts the fundamental right to judicial review, that is protected by the Bill of Rights and the constitutional function of judicial review …”.

his mother, and she duly gave her evidence before the IPT. While there were clearly some technical difficulties during the course of her giving evidence,25 no issue has been raised in terms of those difficulties giving rise to any particular unfairness to the applicant.

[42]              Second, nor would an audio-visual recording of the AVL evidence “cure” any technical difficulties which occurred during the mother’s evidence in any event. All that would result is that there would be a visual, as well as an audio, recording of the difficulties being experienced.

[43]              Third, Mr Pidgeon, in his submissions, suggests that constraining the manner in which the mother’s evidence was recorded “unfairly limited the applicant to utilise the evidence of his  mother to  best  advantage” [sic].  But  as  noted (and  despite  Mr Pidgeon submitting that the applicant’s mother’s “thick accent was problematic”), the applicant has not raised any issues or concerns with the interpretation of his mother’s evidence, nor the IPT’s summary of it in its Substantive Decision. Any suggested procedural or substantive unfairness from problems interpreting the mother’s evidence, or otherwise properly understanding it, is therefore entirely speculative.

[44]              Fourth, even if a material error in the interpretation of the evidence had been raised by the applicant, the audio recording of the evidence would be sufficient to determine if there was any such error. That is the primary method endorsed by the Supreme Court for preventing breach of an accused’s rights in similar circumstances. There is no suggestion by the Supreme Court that a visual record of the evidence, or its interpretation, is also required for these purposes. And neither the applicant nor his counsel has sought a copy of the audio recording of the hearing in any event.26 This further underscores that concerns as to the interpretation and/or understanding of the applicant’s mother’s evidence are entirely speculative.

[45]              Fifth, an audio recording of evidence, whether it is given in person in court, or via AVL, is the standard method of recording evidence in most courts and tribunals,

25     As well as the mother crying and being upset while she gave her evidence.

26     Including for the purposes of the application for leave to commence judicial review proceedings.

including the District Court and the High Court. And in both these courts, evidence is regularly given by AVL, and via an interpreter. Technical difficulties with AVL, particularly from overseas locations, are unfortunately not uncommon. Issues around whether evidence has been properly interpreted are also raised from time to time. That an audio recording is the standard method of recording such evidence demonstrates that it is considered a satisfactory means of creating an accurate record of the evidence given, and against which any issues raised can later be checked.

[46]              Finally, given the above points, and the contents of the statutory scheme and Practice Note concerning hearings before the IPT, there can be no expectation of there being an audio-visual recording of a witness’s evidence, whether that is being given in person or by way of AVL, or through an interpreter. As such, and particularly in the absence of any issues being raised about the applicant’s mother’s evidence in this case, it would be inappropriate for this Court to direct the IPT that it should have permitted an audio-visual recording in this case, or that this should be a standard approach taken in hearings before the IPT generally. I do not consider the fact the burden rests on an applicant to prove his or her case before the IPT alters that conclusion. As Venning J stated in AL (Nigeria) in relation to whether “live notes” of evidence should be provided by the IPT, it is not for this Court to direct the IPT as to how it should conduct itself.27

[47]              Accordingly, while a private audio-visual recording of evidence given before the IPT by way of AVL, including through an interpreter, might be considered by some to be beneficial, its absence in this case falls well short of providing grounds for judicial review which justify leave being granted.

Result

[48]Leave to bring judicial review proceedings is declined.

[49]              I note the RPO seeks costs on a 2B basis if successful. Both parties should have the opportunity to submit on costs, if they cannot be agreed between them. The

27     AL (Nigeria) v Chief Executive of Ministry of Business, Innovation and Employment, above n 7, at [47].

applicant may file a costs memorandum within ten working days of this judgment. The RPO may file a response within a further five working days. I will thereafter determine costs on the papers.

Fitzgerald J