AJ (Nigeria) v A Refugee and Protection Officer
[2019] NZHC 2655
•17 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-672
[2019] NZHC 2655
UNDER the Judicial Review Procedure Act 2016 and ss 140(3) and 247 of the Immigration Act 2009 BETWEEN
AJ (NIGERIA)
Applicant
AND
A REFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 27 September 2019 Counsel:
M S P Pang for Applicant M Mortimer for Respondent
Judgment:
17 October 2019
JUDGMENT OF BREWER J
This judgment was delivered by me on 17 October 2019 at 3:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Integritas Law Firm (Auckland) for Applicant Meredith Connell (Auckland) for Respondent
AJ (NIGERIA) v A REFUGEE AND PROTECTION OFFICER [2019] NZHC 2655 [17 October 2019]
Introduction
[1] The applicant has been struggling to gain refugee or protected person status under the Immigration Act 2009 (the Act) since 2016. His repeated claims have failed. The latest decision against him was on 15 March 2019 when a Refugee Protection Officer (RPO) refused to consider the applicant’s claim under s 140(3)(a) of the Act on the basis that it was manifestly unfounded or clearly abusive.
[2] The applicant has brought judicial review proceedings against the RPO’s decision. He seeks review on the grounds that:
(a)the RPO did not act fairly and breached the applicant’s expectation of procedural fairness;
(b)the RPO failed to take account of relevant considerations; and
(c)the RPO’s decision was unreasonable or irrational.
Background
[3] The applicant’s previous claims for refugee and protected person status are nicely summarised in a table within the respondent’s submissions.1 I reproduce it as a convenient chronology and summary of the relevant issues:
First claim
Date lodged 13 July 2016 (filed prematurely on 17 December 2015) Basis for claim [The applicant] claimed to have grown up in a Muslim family. His father was an Imam. In mid-2013 (aged 29), the applicant converted to Christianity. Over time this caused him to be alienated from his family, who cast him out of home. In October 2014 he was kidnapped and beaten. The motive was alleged to be based on religious animosity. [The applicant] escaped and was
helped to flee to New Zealand on a false passport.
Date of decision 14 November 2016.
1 I gave Mr Pang the opportunity to tell me, post-hearing, whether there is anything wrong or misleading in the table. By memorandum dated 27 September 2019, Mr Pang pointed out matters he would have added to the table. However, for my purposes the table is adequate to inform the reader of the sequence of events and broad issues.
Decision The RPO declined the applicant’s claim.
The RPO concluded that large parts of the applicant’s account
were not credible. Only a core narrative was accepted.The RPO accepted that the applicant was a national of Nigeria and converted from Islam to Christianity.
The RPO rejected as not credible the applicant’s account of being ostracised by his family because of his Christianity, an account of a kidnapping and escape, and that his facial markings distinguish him primarily as a Muslim Yoruba.
The RPO then assessed the risk to persons of the Christian faith in Nigeria.
The RPO concluded that there is “not a real chance of [the applicant] being persecuted if he returns to Nigeria now. His fear of being persecuted is not therefore considered to be well•founded”.
On the basis of those factual and legal assessments, the applicant did not meet the relevant tests for refugee or protected person
status.
Appeal The Immigration and Protection Tribunal (Tribunal) dismissed
the applicant’s appeal on 18 October 2017.2
The Tribunal described the applicant’s evidence as “vague and evasive”.3 It identified internal and external inconsistencies.
The Tribunal was mindful of difficulties recounting traumatic events that the applicant may have faced, but considered that this could not explain the extent of the implausibilities and inconsistencies.4
The Tribunal concluded its credibility assessment by saying:
[72] In light of the various discrepancies outlined, for which the [applicant] could provide no sensible explanation, the Tribunal rejects his claim to have hidden from his family with AA for six months in 2014. Nor is the Tribunal satisfied that he was rescued by a Good Samaritan and accommodated in a mystery location for 13 months by a benefactor who then gave him a false passport, cash and an airline ticket. The appellant has given no credible explanation as to where he spent the six months between April and October 2014, or the 13 months between October 2015 and his arrival in New Zealand in November 2015. His failure to provide his genuine Nigerian passport, or to provide a credible explanation for its non•production, adds
weight to the Tribunal’s finding that he has not given an
2 Re AL (Nigeria) [2017] NZIPT 801085.
3 At [43].
4 At [57]–[60] and [71].
honest account of his whereabouts during the period in question.
[73] Having been misled in such fundamental aspects of the appellant’s account, the Tribunal is unable to accept the veracity of any of the core elements of the appellant’s claim. It does not accept that he went into hiding from his family after that they tried to harm him because of his conversion to Christianity.
[74] On that basis, the Tribunal finds that the appellant has not established that he has been, or would in future be, at risk of harm from members of his family because he has converted to Christianity.
The Tribunal accepted the applicant was a Christian and would practice Christianity on his return to Nigeria.5 It also accepted that the applicant was of Yoruba ethnicity.6 The Tribunal assessed the applicant’s claim on that basis.7
After assessing country information which did not establish any serious threat to Christians in Nigeria, the Tribunal was satisfied that the risk of harm to the applicant would not rise to the level of a real chance if he sought to manifest his faith upon return to Nigeria.8
On the basis of those factual and legal assessments, the applicant did not meet the relevant tests for refugee or protected person
status.9
Application for leave to appeal and leave to commence judicial review The High Court dismissed applications for leave to appeal and leave to commence judicial review.
The High Court dismissed the applications on the basis that they did not “raise any question of law of general or public importance or that, for any other reason, should be considered”. Nor was there
any procedural unfairness to warrant the grant of leave.
Second claim
Date lodged 31 May 2018 Basis for claim The applicant maintained his earlier claim that he was at harm on return to Nigeria on the basis of his conversion to the Christian faith.
The applicant stated that since the Tribunal decision he had learned that one of his witnesses had succumbed to a juju curse and that the applicant himself was hindered in giving his evidence to the RPO and the Tribunal through his fear of black magic. The applicant submitted that he was now free of his fear, and that this was a significant change in circumstances.
5 At [78].
6 At [77].
7 At [87].
8 At [109].
9 At [117]–[123].
The applicant argued that there was a significant change in circumstances because the Tribunal that determined a separate deportation appeal did not expressly decide whether or not the
applicant’s father was an imam.
Date of decision 27 June 2018 Decision The RPO refused to consider the applicant’s claim under s 140 of the Act on the basis that it was manifestly unfounded or clearly abusive.
The RPO considered new country information but determined that nothing provided established a need to depart from the Tribunal’s earlier finding that the applicant would not face a real chance of serious harm if he sought to manifest his Christian faith in Lagos.
In respect of the imam issue, the RPO determined that this was not a change in circumstances given the applicant had raised the claim to the RPO and Tribunal before. The fact that the applicant did so again was repetitious: not a change in circumstances.
In respect of the juju curse submission, the RPO recorded it did not find the submission persuasive and that it was “unlikely to be substantiated on an objective basis, as required under the refugee
and protection jurisdiction”.
Application for judicial review The applicant commenced judicial review proceedings on 24 July 2018.
The applicant discontinued his claim on 29 January 2019 when he obtained an affidavit from PP. Rather than attempt to admit that as fresh evidence in his application for judicial review
proceedings he opted to file a new claim for refugee status.
The application for judicial review
[4] The application for judicial review has as its genesis the way in which the RPO dealt with material emailed to him in support of the applicant’s new refugee claim.
[5] As is apparent from the table, the applicant has consistently tried to convince the immigration authorities that if he were returned to Nigeria he would be in significant danger because he is a convert to Christianity. He claimed to be the son of an imam. He was found to lack credibility and the degree of danger to which he maintained he would be subject upon return was disbelieved. But on his latest application he had “new” evidence he wanted the RPO to take into account.
[6] The first piece of evidence was an affidavit from PP. This had been generated originally for the discontinued High Court proceedings. The affidavit is short and was described (accurately) by the RPO as follows:
In his affidavit [PP] described how in his role as a Christian pastor he came to meet [the applicant] and how he eventually baptized him into the Christian faith. [PP] further described how [the applicant’s] interest in Christianity led to his family casting him out of his home. [PP] stated that he heard from [the applicant] that he had been forced to seek refuge in the home of a friend, but that house was invaded by his family members. [PP] stated that after [the applicant’s] baptism he could not reach [the applicant] anymore, but he has recently learned from [the applicant] that he was kidnapped in October 2014. Finally, [PP] advised that at the end of 2014 members of [the applicant’s] family invaded his church and killed two church members and injured several others, and vandalized the church.
[7] However, the nub of the application for judicial review is that information was provided by the applicant which the RPO did not consider. In a letter dated 1 March 2019 emailed to the RPO, the applicant’s then counsel, Mr Pidgeon, said:
On Saturday, 23 February 2019, Counsel met at the Home Office with [the applicant] to link up via Skype with [PP]. [PP] (who I’ve never met or spoken with before prior to that date) gave a lengthy interview. Enclosed hereto is a memory stick with eight snippets of recording which in the end I had to record on my phone from the Skype interview. From an initial audio visual link up, we had to change to telephone only, as there were significant difficulties with getting internet connection between here and Nigeria. There is a 12 hour difference between New Zealand and Nigeria, so it was Friday night around 8 o’clock their time.
[8] Although Mr Pidgeon’s letter refers to a memory stick containing recordings of the Skype interview, no memory stick was provided. Instead, also on 1 March 2019, Mr Pidgeon sent the RPO an email containing six links to Dropbox, a cloud storage website. Mr Pidgeon, in the email containing the links, said this was the most effective way to send a record of the interview to the RPO.
[9] It is clear Mr Pidgeon also intended to provide the RPO with a transcript of the Skype interview. In his letter of 1 March 2019, sent via email, Mr Pidgeon said:
I utilised a very efficient, capable and reasonably IT astute transcriptionist to assist with my typing. Unfortunately, between the two of us (and she is off- site in Hamilton), we have struck a dead end for now as to typing out the transcript, which would of course be of immense assistance to all concerned.
I therefore seek some leeway, perhaps a further five working days, to file the transcript of the various recordings. They had to be in 10 minutes blocks because of the limits on my mobile. One of the big things which has caused difficulties is the size of the file which goes into 1.7 – 2.0 GB.
[10]In the email containing the links to Dropbox, Mr Pidgeon advised:
The transcript (as sought 5 days to do) will help …
[11] On 4 March 2019 (the next working day) the RPO emailed Mr Pidgeon in response to the email containing the links to Dropbox with the message, “Received”.
[12]Later on 4 March 2019 the RPO sent a further email to Mr Pidgeon as follows:
Hello Richard,
I note what you have said about there being no viruses in the links you have sent me; however, I have been told that we can’t open material sent via DropBox email because of the risk of viruses. Please send the recordings via email attachment instead.
I’m sorry for this, but those are my instructions.
[13]Mr Pidgeon’s response was sent about four minutes later:
Hello Cameron,
OK – this may have to be Wednesday morning if that’s ok … I need to call in some IT help. I have struggled to sort it out. The size of the snippets is the problem, getting it off the phone.
Is that ok? It will come via memory stick I think.
Thanks
[14]Some eight minutes later the RPO replied to Mr Pidgeon:
Hello,
Wednesday is fine, but I have been told it must be by an attachment to an email.
We are not supposed to put any external devices into our computers.
[15]A little over half an hour later Mr Pidgeon responded:
Hello Cameron,
I will have a good think about how to do this.
Each 10 minute piece of footage is 2 Gigabytes. I will have to compress it somehow.
Thanks
[16] On 6 March 2019, the date of the deadline for providing the material, Mr Pidgeon emailed the RPO again to ask for a further extension. He sought until Friday 8 March 2019:
Hi Cameron,
I am still struggling but may have made a IT savvy contact from another file were (sic) a phone-taped AGM was offloaded from an Iphone (similar fact situation). I seek until Friday close of business if that’s OK.
Sorry
[17]The RPO responded the next day granting the extension.
[18] Mr Pidgeon did not contact the RPO again. He did not provide any further information, nor seek another extension. He did not provide a transcript.
[19] After a further week had passed with no contact from Mr Pidgeon, the RPO proceeded to make his determination under s 140(3) of the Act. This sub-section provides:
A refugee and protection officer may refuse to consider a subsequent claim for recognition as a refugee or a protected person if the officer is satisfied that the claim—
(a)is manifestly unfounded or clearly abusive; or
(b)repeats any claim previously made (including a subsequent claim).
[20] The RPO did not consider the material before him, principally the affidavit of PP, to be “new” evidence that materially changed the applicant’s position. The RPO characterised the evidence as merely seeking to bolster the applicant’s credibility in respect of matters already rejected by the Tribunal:
The RPO does not accept [the applicant’s] representative’s submission that [PP’s] evidence puts [the applicant’s] earlier evidence in a new light. As noted
above, the adverse credibility findings of the Tribunal were substantial. While it was accepted that [the applicant] is a convert to Christianity, the balance of his claim, including his evidence of the time he spent in hiding at the home of his friend [SS], his evidence of his kidnapping, and the account he gave of being rescued by [XY], was rejected in its entirety. The evidence [the applicant] provided from [PP] does not speak to any of the credibility concerns identified by the Tribunal as fatal to [the applicant’s] claim. The Tribunal’s findings were well reasoned and persuasive, and the RPO chooses to rely on them in accordance with section 141(2).
As such, it is considered that [the applicant’s] claim that the evidence offered by [PP] supports his previous claims·and that he continues to be at risk on return to Nigeria for the reasons he gave in those two claims, is manifestly unfounded and a (sic) repeats a claim previously made, as per section 140(3)(a) and (b).
Discussion
[21] The applicant seeks review on three grounds: procedural unfairness, failure to consider relevant considerations and unreasonableness. I will address each in turn.
Procedural fairness
[22] Mr Mortimer for the respondent submits there has been no procedural irregularity.
[23] Mr Mortimer’s first, tentative submission was that, because Mr Pidgeon did not contest that the RPO would not open the Dropbox links due to an IT policy, Mr Pidgeon may not have “provided” the interview to the RPO as a matter of fact – and thus the RPO was not required to take account of it at all. Mr Mortimer submitted the RPO was not obliged to go in search of evidence, given that s 136(2) of the Act provides that an RPO “is not obliged to seek any information, evidence, or submissions further to that provided by the claimant”. Further, s 136(3) permits an RPO to determine, within limits, the procedures to be followed on a claim.
[24] I do not accept this argument. In my view, the RPO already had the applicant’s evidence of the Skype interview. Using a computer to follow a provided link to a cloud storage site is the modern equivalent of opening a book. The RPO was not being asked to seek the evidence out.
[25] Mr Mortimer’s more substantial submission is that what occurred was within the bounds of regular procedure. The RPO, in good faith, asked for the content of the Skype interview to be given to him in a form other than links to Dropbox or a memory stick. Mr Pidgeon agreed to that but never followed through. The RPO, who did not act precipitately, was then entitled to make his decision without considering the information in Dropbox.
[26] It is beyond question that an RPO has an obligation to consider information put before them by an applicant for refugee or protected person status in support of their application. Here, Mr Pidgeon gave the RPO the links to Dropbox as the “most effective way” to provide the RPO with a record of the Skype interview. In his emailed letter of 1 March 2019, Mr Pidgeon gave the RPO notice of the contents of the interview:
What [PP] did confirm, is that my client is the son of an Imam and he went into this in some detail. In effect, the claimant is an apostate Muslim and is in danger of persecution, if not death, for that reason alone.
[PP] at some length went into the biographic details of the claimant, at least as far as his conversion experience. [PP] confirmed his role as pastor. He is in hiding in Lagos and was very clear that Muslims who have been affronted, such as with the son of an Imam converting to Christianity, would hold a grudge for a very long time and the sorts of safety issues being taken by [PP] illustrate that. [PP] has had to separate from his wife and children and live a very tough existence in Lagos because of his connection with [the applicant], but also his connection to another pastor in Jos who was also evangelical, and this colleague was murdered.
[27] I accept Mr Pidgeon intended to provide a transcript but failed to do so. However, I do not accept he agreed to provide the contents of the Skype interview in a different form. The transcript was to be an aid to understanding the Skype interview, not a substitute for it. Instead, the email exchange I have quoted shows the RPO refusing to open the Dropbox links, refusing to accept a memory stick and insisting on an email attachment. Mr Pidgeon’s subsequent correspondence made clear that he was struggling to arrange this.
[28] Ultimately Mr Pidgeon was unable to meet the RPO’s requirement and the information in the Dropbox folder was not accessed by the RPO.
[29] The issue for me is whether the RPO’s refusal to access the Dropbox material via the links provided was an error.
[30] I have concluded it was. Mr Pidgeon provided the links to Dropbox and gave the RPO notice, in broad terms, of the relevance of the Skype interview recorded therein to his client’s application. I accept the RPO had a good-faith basis for his belief that IT policy was against accessing external links or accepting memory sticks. But that did not entitle the RPO to refuse to consider the material unless it was provided in a different format. Mr Pidgeon was clearly finding it difficult to comply with the RPO’s stipulation and his failure to meet the last deadline should not have been regarded by the RPO as entitling him to make his decision in ignorance of the material he knew had been provided for him to consider and which was available to him at the click of a computer mouse.
[31] I do not consider the latitude afforded to the RPO to determine procedures under s 136(3) extends to a discretion in this case to refuse to consider evidence provided in one form unless it is provided in another.
[32] I acknowledge that future cases with different facts may require a different finding. The onus is on an applicant to provide the information they wish considered. If they purport to do so in a form which cannot reasonably be accessed by an RPO then it might be properly disregarded. But that is not the situation here.
[33] In this case the RPO was not entitled to determine the application without considering the evidence of the Skype interview. There were other appropriate steps the RPO might have taken following Mr Pidgeon’s failure to provide alternative access to the material by the date he had nominated. The RPO could properly have contacted Mr Pidgeon and enquired as to whether alternative access was going to be provided. He could have offered Mr Pidgeon an interview in which Mr Pidgeon could have the opportunity to show him the cellphone record. Alternatively, he could have sought advice from IT staff as to the policy forbidding accessing outside links, whether the Dropbox material could be accessed safely or whether an acceptable alternative means for Mr Pidgeon to provide the material could be arranged.
[34] In terms of the applicant’s pleadings, I characterise the RPO’s conduct as amounting to procedural unfairness.
Relevant considerations
[35] I also find the information provided by Mr Pidgeon in his email of 1 March 2019 as to the content of the Skype interview alerted the RPO to matters of relevance to the applicant’s case. Mr Pidgeon was clear that the interview addressed the applicant’s status as the apostate son of an imam and the dangers arising from it, as well as the applicant’s specific experiences of endangerment. Were this evidence credible it could plausibly go to the heart of the application, by demonstrating a serious risk of harm on return to Nigeria and corroborating the applicant’s credibility more generally.
[36] Mr Mortimer submitted there appears to be substantial overlap between the contents of PP’s affidavit and the Skype interview. Mr Mortimer submits the RPO therefore effectively did consider the substance of the evidence despite not having viewed the interview. I have listened to only a small part of the interview and I do not consider I can assess this submission.10 I discuss the point further below in the context of remedies.
[37] I find the RPO’s decision not to consider the Skype interview amounted to a failure to take relevant considerations into account.
Unreasonableness
[38] The threshold for irrationality or unreasonableness as a ground of judicial review is high.11 Here, the RPO acted in what he thought was conformity with IT policy. He expected, based on their correspondence, that Mr Pidgeon was going to provide him with information in a different form by a date Mr Pidgeon nominated, which did not occur. The RPO gave Mr Pidgeon a further week’s grace period before applying the evidence he considered was before him to the relevant legal test. The
10 Only a short segment was played to me in Court. See [41] and [42].
11 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA); and Hussein v Deportation Review Tribunal [2011] NZAR 441 (HC) at [17]–[18].
RPO’s decision on that evidence was consistent with that of the previous decision- makers. The RPO’s conduct falls well below the threshold of unreasonableness or irrationality.
Is a remedy required?
[39] Mr Mortimer submits there has been no substantive unfairness, because even if the Skype interview had been considered by the RPO it could not have changed the RPO’s decision. As such, even having regard to the procedural defects of the process, I should grant no relief beyond a declaration – because any remission of the decision is unlikely to result in a different outcome.
[40]Mr Mortimer’s submission is based on:
(a)the fact that the RPO did consider PP’s affidavit, which overlaps with the interview in stating that the applicant is the son of an imam; and
(b)partial transcripts of the interview recordings which were provided by the applicant for the judicial review hearing. Mr Mortimer submits these transcripts indicate that the interview does not add materially to the affidavit and, in one portion, seems to detract from it by raising the possibility that PP’s knowledge of the applicant’s father came from what the applicant told him.
[41] At the hearing before me I permitted Mr Pang to play a short part of the Skype interview. PP seemed to say he knew the applicant’s father well.
[42] I do not know what else is in the Skype interview. Based on Mr Pidgeon’s letter to the RPO, the partial transcripts and what I heard played in Court I conclude it does contain material of relevance to the applicant’s case. I cannot assess the portions of the interview that were not put before me. I cannot say whether the interview in its entirety might, or might not, have made a difference to the RPO’s decision. It seems at least plausible that it could have made a difference.
[43] I have had regard to a comment of Whata J in BZ (Sri Lanka) v The Immigration and Protection Tribunal of Auckland, with which I respectfully concur:12
[52] I have also examined whether the potential for substantive unfairness is such that general public interest considerations demand intervention. 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.
[44] In my view, the interests of justice require the applicant’s application to be reconsidered and the Skype interview taken into account.
Decision
[45] The application for judicial review of the RPO’s decision is granted. The RPO’s decision is quashed. I direct the applicant’s application be reconsidered taking into account the contents of the Skype interview.
[46] If there are issues as to costs, memoranda must be filed no later than 7 November 2019.
Brewer J
12 BZ (Sri Lanka) v The Immigration and Protection Tribunal of Auckland [2015] NZHC 2883.
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