AL (Nigeria) v Chief Executive of Ministry of Business, Innovation and Employment
[2018] NZHC 522
•23 March 2018
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. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-0020759
[2018] NZHC 522
UNDER The Judicial Review Procedure Act 2006 and the Immigration Act 2009, s 249 BETWEEN
AL (NIGERIA)
Applicant
AND
THE CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Respondent…./2
Hearing: 8 March 2018 Appearances:
R S Pidgeon for Applicant S Earl for Respondent
Judgment:
23 March 2018
JUDGMENT OF VENNING J
This judgment was delivered by me on 23 March 2018 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Integritas Law Firm, Auckland
Meredith Connell, Auckland Crown Law, Wellington
Counsel: R S Pidgeon, Auckland
AL (NIGERIA) v THE CHIEF EXECUTIVE OF MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 522 [23 March 2018]
CIV-2018-404-000186 UNDER
The Judicial Review Procedure Act 2016 and the Immigration Act 2009, s 249
BETWEEN
AL (NIGERIA)
Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
THE CHIEF EXECUTIVE MINISTRY OF BUSINESS INNOVATION AND
EMPLOYMENTSecond Respondent
Introduction
[1] AL is a national of Nigeria aged in his mid-30s. He arrived in New Zealand in late 2015 on a passport issued in the name of another Nigerian national but bearing his photograph. The passport was endorsed with a resident visa for another western country. AL was initially granted a visa to enter New Zealand on the basis the passport was his. AL subsequently revealed the passport was false and applied for refugee and protected persons status under the Immigration Act 2009.
[2] AL’s application was declined by a Refugee and Protection Officer. His appeal to the Immigration and Protection Tribunal was dismissed.1 AL now seeks leave to appeal and to commence judicial review proceedings in this Court.
Tribunal decision
[3] AL claimed that he was at risk of being seriously harmed in Nigeria because he had converted from Islam to Christianity. The Tribunal accepted that he was a Christian convert but found on the facts there was no real chance of him being persecuted if returned to Nigeria. The Tribunal rejected aspects of AL’s evidence and found there was no credible evidence he was in need of protection.
[4] For similar reasons the Tribunal found that AL had failed to establish there were substantial grounds for believing he would be in danger of being subjected to torture if deported from New Zealand. He was not entitled to be recognised as a protected person under s 130(1) of the Act.
[5] Similarly, the Tribunal found AL had not established there were substantial grounds for believing he would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand. He was not entitled to be recognised as a protected person under s 131(1) of the Act.
1 [2017] NZIPT 801085.
Application for leave to appeal
[6] As noted AL seeks leave to appeal and also leave to review the decision. Mr Pidgeon identified two errors of law to support the application for leave to appeal:
(a)the Tribunal approached its credibility/veracity assessment without taking the evidence of Lynda Crisford into account, and in so doing failed to take proper account of AL’s mental health issues as a plausible explanation for the problems with his evidence; and
(b)the Tribunal was wrong to give weight to the false entry passport and visa “in a backwards looking assessment”.
Application for leave to review
[7] To support the application for leave to review Mr Pidgeon repeated the above points and also criticised the process adopted by the Tribunal, in particular the absence of a live transcript which, in his submission, led to the following procedural irregularities and failings:
(a)the Tribunal member was prevented from properly observing AL when AL was giving evidence, and failed to observe his dissociative state; and
(b)the evidence of a witness Mr O, was not recorded.
If the application for leave to review is granted, Mr Pidgeon proposes to seek orders quashing the decision and directing the Tribunal to produce “live notes” of its hearings together with related declaratory relief.
Applicable law
[8] The approach for applications for leave to appeal are settled. Section 245 requires an applicant to identify a serious arguable question of law which either:
(a)has importance extending beyond the particular case (which is what general or public importance entails); or
(b)for some other reason warrants a decision from the Court.
While category (b) is open-ended it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing that this alternative requirement could be met.2
[9]The application for leave to review is brought under s 249:
249 Restriction on judicial review of matters within Tribunal’s jurisdiction
(1)No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
(2)No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3)Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
(4)An application to the High Court for leave to bring review proceedings must be made—
(a)not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b)within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5)A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(6)In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
2 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [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.
(7)A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
(8)Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[10] The approach is again relatively settled. In considering whether to grant leave the Court must first have regard to whether the review proceedings would involve issues that could not be adequately dealt with in an appeal. Parliament’s intent is clear. Appeal rather than judicial review is the primary mechanism by which to challenge a Tribunal decision.
[11] In R M v Immigration and Protection Tribunal Palmer J considered that by the inclusion of the “any other reason ground” under s 249(6)(b) Parliament intended to allow judges to use their discretion when encountering situations it could not envisage.3
AL’s narrative
[12] AL’s evidence before the Tribunal was that he was born and raised within a Muslim family. He is of Yoruba ethnicity and his face bears facial markings that identify him as such. Although born in Lagos he was raised in Ilorin in Kwara. His father is an Iman. His mother passed away earlier this decade. His remaining family still live in the same residential compound.
[13] Following a chance encounter with Christian evangelists in mid-2013 he says he subsequently converted to Christianity. He says that towards the end of 2013 he was confronted about his actions at a family meeting and, when he confirmed he intended to convert, his father made an oblique threat to him.
3 R M v Immigration and Protection Tribunal [2016] NZHC 735.
[14] While he was never harmed he was effectively ostracised by his family members. The situation came to a head in April 2014. He came home to find his belongings had been thrown out of his room and he had been ejected from his accommodation. His shop had been vandalised and his stock damaged. The Police did nothing.
[15] With nowhere to stay AL sought help from Mr O, a childhood acquaintance. Mr O is Christian. AL said he lived with Mr O for approximately six months.
[16] On his first evening at Mr O’s house he was unnerved by two men staring at him when he went to a gathering at a church. He stayed the night at the church but when he returned the following morning he found that Mr O’s home had been broken into and his mattress had been shredded. Once again he went to the Police. They told him it was a family dispute.
[17] AL experienced no further difficulties while staying with Mr O. His family made no attempt to contact him. He was eventually baptised as a Christian four months later in August 2014.
[18] AL says everything changed when two men approached him in October 2014. He recalled that one of them held out a piece of paper and asked for directions. He believes he then lost consciousness and does not know how. When he woke his hands were bound. Three or four men were beating him and telling him there was no place on earth where he can hide from Allah. He appeared to be in a dilapidated and abandoned apartment block. There was a spade nearby which made him fear he was going to be killed and his body buried.
[19] At one point one of the men cut the binding on his hands. The men then left him alone so they could go and pray in another room. The appellant hauled himself to his feet. He said he stumbled semi-naked out of the building into the surrounding bush. It was night time. He ran and hailed an oncoming car which pulled over. The next thing AL recalls is waking at the home of the man who stopped for him, Mr K. He believes up to three days may have passed. Mr K accommodated AL from October 2014 until November 2015. Mr K took his photograph and later presented him with a
false passport that bore his photograph, an airline ticket and a sum of US$300. Mr K had arranged for AL to fly to New Zealand via Istanbul and Singapore and drove him to the airport.
[20] In finding there was no credible evidence that the appellant was in need of protection the Tribunal found that much of AL’s evidence was vague and evasive. In coming to that conclusion, the Tribunal noted the following:
(a)the discrepancies between AL’s evidence and Mr O’s evidence on a number of points;
(b)AL’s account of his kidnapping and escape from his kidnappers;
(c)inconsistencies between AL’s first statement regarding Mr K and the evidence at the hearing; and
(d)the general implausibility of AL’s account.
[21] Mr O appeared by Skype before the Tribunal. Mr Pidgeon had arranged for the connection through his computer during the course of the hearing before the Tribunal. While the proceedings were recorded, the computer was not near a microphone so that there is no useful audio record of Mr O’s evidence. Although it was not recorded, the Tribunal obviously took notes of Mr O’s evidence. In its decision the Tribunal referred in a number of places to Mr O’s evidence. The Tribunal noted that Mr O said that AL had not really stayed with him. Mr O described AL’s visits as fleeting. Sometimes he would come just to take a bath or change his clothes. When asked if AL had stayed with him for months at a time he said “no”. When asked where AL stayed at night Mr O replied: “AL was hiding” and when asked where, replied “I can’t really say”.
[22] In relation to the incident described by AL of people breaking into Mr O’s home and damaging the mattress, Mr O said his home had not been damaged by anyone at around that time and could not recall having replaced a damaged mattress.
[23] Mr O also said he had been married for five years and had a five-year-old child and two younger children, and that his wife was with him at around that time. AL was not aware of that, despite the fact he said he had lived with him.
[24] There was a further direct conflict between AL’s evidence and Mr O’s evidence. AL said that he had asked Mr O to send his passport by post but that it had gone astray. However Mr O stated he had never been asked to send anything to the appellant in New Zealand and had not done so.
[25] When asked to describe Mr K AL said that he did not know a lot about him because they spoke different languages. Mr K spoke pidgin English but they did not really understand each other. If AL asked Mr K a question Mr K would just stand up and leave and did not want to talk about anything. AL’s evidence before the Tribunal was different to his first written statement. In that he said that Mr K had asked him his name:
[a]nd what had happened to me and I explained everything to him. He said that Muslim extremists were destroying Nigeria because Boko Haram had become so powerful and people in top government posts supported them. Then he said I shouldn’t worry and that he would look after me.
[26] The Tribunal also doubted AL’s evidence that although he stayed with Mr K for more than a year he had no idea where he was staying.
[27] While the Tribunal was prepared to give AL some leeway in relation to his evidence about the kidnapping incident the Tribunal considered there were a number of other concerns about AL’s evidence which could not be explained by dissociation or the consequences of trauma.
Did the Tribunal fail to take the evidence of Ms Crisford into account?
[28] Mr Pidgeon challenged the Tribunal’s adverse credibility findings against AL. He submitted the Tribunal failed to take account of the evidence of Lynda Crisford, the academic articles filed for the plaintiff as to his mental health and the physical exhibition of his dissociation which explained the discrepancies in his evidence.
[29] Ms Crisford is a psychologist working with Refugees as Survivors New Zealand. Her letter of 14 August 2017 regarding AL was before the Tribunal. In it she noted that AL had been diagnosed by a psychiatrist as exhibiting symptoms of depression, anxiety and PTSD. Ms Crisford’s clinical impression was:
[AL] continues to suffer from symptoms of depression, anxiety, and PTSD. He is ashamed of his difficulty remembering everyday events and aspects of his traumatic events. This difficulty in remembering is consistent with the effects of trauma on the brain, and how the brain processes memories. He dissociates at times which is evident when he describes gaps in his memory, finding himself in places he does not remember travelling to, and the noises in his head. When he is in these states, he cannot attend to what is going on around him, which is likely to result in a lack of memory for detail. It is possible that [AL] dissociated when he was kidnapped. If this happened, it is likely he will not have a logically sequenced account of the situation(s) due to how the brain processes trauma.
[30] Ms Crisford recommended that AL would be likely to benefit from regular breaks during the Tribunal hearing.
[31] The suggestion the Tribunal failed to take account of Ms Crisford’s evidence or the academic articles filed for AL is simply wrong. At para [58] the Tribunal said:
However, the Tribunal bears in mind Ms Crisford’s letter, in which she states that the appellant had been diagnosed with PTSD and depression. She stated that it was “likely that he dissociated when he was kidnapped” and that, if he did, he is “not likely to have a logically sequenced account of what happened”. The Tribunal also bears in mind a body of writing to which Mr Pidgeon referred (and with which the Tribunal is broadly familiar) comprising a number of articles that discuss the impact of trauma on memory and recall, and the relevance of these to credibility assessments and asylum claims. In one, J Herlihy and S Turner “Memory and Seeking Asylum” 2007 9(3) European Journal of Psychotherapy and Counselling the authors state that:
“In the legal context, where dissociation has occurred in the past, it can produce striking, sometimes patchy memory loss. Dissociation is probably most likely to be manifest in high stress settings, and the court environment is an obvious trigger for some people to dissociate. The outward signs can be slight and yet there may be a profound effect on the quality of evidence.”
[32] It appears the Tribunal took account of Ms Crisford’s recommendation that breaks be taken during the hearing. A review of the transcript for the hearing records that witnesses were interspersed during the course of AL’s evidence and a number of rest breaks were taken. For example, the record discloses AL’s evidence started at
10.50 am on the first day and a break was taken at 11.25 am. Another witness was interspersed after the morning break. AL’s evidence then continued from 12.15 to
1.00 pm. A lunch break was taken at that time. AL’s evidence then continued from
1.50 to 2.50 pm. Another break was taken. AL’s evidence then ran from 3.15 to
4.00 pm when another break was taken. After that break another witness was heard. AL’s evidence was completed between 4.50 and 5.40 pm. Those times are approximate and taken from the transcriber’s notes but confirm that AL’s evidence was broken up during the course of the day.
[33] Further, it is clear from the Tribunal’s decision that it accepted Ms Crisford’s evidence AL may have become dissociated when he was kidnapped which could explain why he could not give a logically sequential account of that event. The Tribunal said:
[59] Accordingly, the appellant’s inability to give a coherent account of the kidnapping and the events that followed in the immediate aftermath could be consistent with having experienced a traumatic event.
[34] Even accepting that, there were other aspects of the account which had nothing to do with an inability to give a coherent account of the kidnapping. Aspects of AL’s evidence about the kidnapping incident was simply incredible, namely that he said his captors had cut his bonds and then simply left him alone while they went to the room next door to pray, thereby enabling him to escape. There was also the conflict between AL and Mr O’s evidence, and the general implausibility of AL’s relationship with Mr K.
[35] Mr Pidgeon referred to the Canadian Refugee Appeal Division case of X (Turkey), where the RAD criticised the way a Refugee Protection Division had dealt with an expert medical report.4 The RPD had purported to accept the opinion that the appellant had memory problems which might impede her ability to recall acts and to provide clear testimony but then, in the words of the RAD “also appeared to completely disregard it” and engaged in circular reasoning.
[36] The case of X (Turkey) is distinguishable from the present. The Tribunal has not adopted circular reasoning in the present case. As noted the Tribunal has adopted and applied Ms Crisford’s opinion. The Tribunal considered that the fact AL was
4 X (Turkey) Immigration and Refugee Board of Canada (Refugee Appeal Division) Toronto TB6- 02569, 31 May 2016.
suffering from PTSD provided some explanation for A’s inability to give a coherent account of the kidnapping and the immediate aftermath but the evidence raised other concerns which could not be explained in the same way.
[37] Next, while Mr Pidgeon suggested that AL may have become dissociated while giving evidence during the hearing he did not at any stage raise that with the Tribunal while AL was giving his evidence, but only raised it the next day in submission. Neither the Tribunal nor Mr Pidgeon apparently observed such a dissociated state on the first day. The Tribunal noted:
[57] While it is of concern that the appellant’s account is so vague, [the reference to the kidnapping] counsel divulged during his closing submissions that the appellant had told him that he had become dissociative on the first day of the hearing. Neither the appellant nor counsel had brought it to the Tribunal’s attention at the time, and nor did counsel know exactly when it had occurred.
[38] The first proposed ground of appeal is not an error of law. It is a challenge to the weight the Tribunal gave Ms Crisford’s evidence. Challenges to the weight which the Tribunal places on aspects of the evidence will seldom amount to an error of law.5 The present challenge does not raise an arguable error of law.
AL’s real Nigerian passport issue
[39] Next, Mr Pidgeon argued that too much weight was given to the applicant’s use of the false passport and visa to enter New Zealand. The issue of AL’s use of a false passport was not a significant issue. Rather, it was AL’s unsatisfactory evidence about his genuine passport and his ability to obtain that document that was relevant. Further, it was only one aspect of the evidence the Tribunal found unsatisfactory. At [72], after describing the various discrepancies in AL’s evidence, the Tribunal:
(a)rejected AL’s claim to have hidden from his family with Mr O for six months;
5 AH v The Immigration and Protection Tribunal [2017] NZHC 1880 at [29] and Nabou v Minister of Immigration [2012] NZHC 3365 at [9].
(b)was not satisfied that AL 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;
(c)considered there was no credible explanation as to where AL spent six months between April and October 2014, or the 13 months between October 2014 and his arrival in New Zealand in November 2015.
The Tribunal then went on to say:
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 honest account of his whereabouts during the period in question.
[40] It was the circumstances regarding the failure to produce his passport rather than the use of the false passport which supported the Tribunal’s conclusion AL was not credible. The Tribunal noted there was a direct conflict of evidence between AL’s evidence and Mr O’s evidence on this point. AL’s explanation for not producing the passport was that it was still in Nigeria and he had asked Mr O to send his passport to him by post but that it had gone astray. However Mr O stated he had never been asked to send anything to the appellant in New Zealand and had never done so. When Mr Pidgeon sought to clarify that with Mr O the Tribunal recorded Mr O repeated himself stating he had never sent anything to the appellant by post or courier. Further, there was another unexplained issue regarding the passport. The appeal file contained a copy of the identity page of what appeared to be a genuine Nigerian passport in AL’s name.
[41] The proposed grounds of appeal do not satisfy the test under s 245. They do not raise any question of law of general or public importance or that, for any other reason, should be considered.
[42] It is no answer for the applicant to rely on the “benefit of doubt” principle as Mr Pidgeon sought to argue. The concept refers to an otherwise credible claim which lacks corroboration from independent sources. The present applicant’s narrative was properly rejected by the Tribunal as not credible.
The review grounds
[43] Mr Pidgeon argued the above issues also supported the grant of leave to bring review proceedings. That overlooks the clear statutory intent expressed in s 249(6)(a). In any event, for the reasons given above they are not sustainable as grounds for review either.
[44] The remaining basis for the application for leave to bring a judicial review is the failure of the Tribunal to produce “live notes” of evidence. Mr Pidgeon explained that by that phrase he meant the production of a transcript at regular intervals during the course of the hearing, similar to that produced in this Court for criminal trials.
[45] Mr Pidgeon emphasised the importance of procedural fairness given the vulnerability of AL as an applicant for refugee status. He submitted that AL’s personal circumstances were such as to support the application for review. In DO v IPT Moore J made the following observations:6
[49] I agree with the observations of Whata J in BZ (Sri Lanka) v Immigration and Protection Tribunal on this question. There his Honour, in examining whether the potential for substantive unfairness was such that general public interest considerations demanded intervention, noted that the starting point for this evaluation is the recognition refugee status claims involve claimants at the highest end of vulnerability and potential for risk of gross human rights violations. The tolerance for procedural unfairness in such cases must be small.
[50] It is a fundamental requirement of natural justice that a party be given a reasonable opportunity to present his or her claim with full knowledge of the case which he or she has to meet. This is uncontroversial.
[46] I agree with those general statements of principle. However in each case it is necessary to identify the particular unfairness alleged and its potential impact, either general or specific to AL.
[47] At a general level, there are a number of answers to the point Mr Pidgeon makes. The chair of the Tribunal is responsible for making such arrangements as are practicable to ensure members of the Tribunal discharge their functions in an orderly and expeditious manner and in a way that meets the purposes of the Act.7 Next, the
6 DO v The Immigration and Protection Tribunal [2016] NZHC 3158 (footnotes omitted).
7 Immigration Act 2009, s 220.
Tribunal’s procedure is dealt with by s 222 of the Act. It is for the Tribunal to regulate its procedures as it sees fit subject to the Act and any regulations made under it.8 There are no direct regulations. The receipt of evidence is dealt with in Schedule 2 to the Act. It confirms the Tribunal may receive any statement, document, information, or matter that in its opinion may assist it to deal with the matter before it whether or not it would otherwise be admissible. It does not refer to a record. It is not for this Court to direct the Tribunal how it should conduct itself. The Tribunal may determine its own approach to making findings of fact by proceedings of an inquisitorial or adversarial nature or both.9
[48] In T v The Refugee Status Appeals Authority Miller J dealt with an application to review a decision of the Appeal Authority.10 One issue raised was the failure by the Authority to keep a proper record of the hearing in breach of its own practice. The tape recorder used by the Authority broke down during the course of the hearing unknown to the participants. There was no record. Miller J noted that the Authority controlled its own procedure and there was no requirement to prepare a transcript. As the Judge said, in those circumstances an obligation to produce a transcript should not lightly be inferred. Miller J cited with approval from the case of City of Montreal v Canadian Union of Public Employees, Local 301 where the Supreme Court of Canada held that while a lack of a transcript may be a breach of natural justice where it leads to an applicant being deprived of grounds of review, 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.11 There must be shown to be a serious possibility of an error on the record or an error regarding which the lack of a recording deprived the applicant of his or her grounds of review.
[49] At a general level, the fact that “live notes” of evidence were not produced does not raise an issue of law which is of general or public importance to support the grant of leave.
8 Immigration Act 2009, s 222(4).
9 BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139.
10 T v The Refugee Status Appeals Authority HC Wellington CIV-2003-485-1848, 5 April 2004.
11 City of Montreal v Canadian Union of Public Employees, Local 301 [1997] 1 SCR 793.
[50] Mr Pidgeon submitted the failure to produce a live transcript had led to two particular issues in AL’s case, first that the Tribunal had been so focused on taking its own notes that it had missed AL falling into a dissociative state while giving evidence, and second that there was no record of Mr O’s evidence via Skype. The first issue has been addressed above. AL had a number of breaks while giving his evidence. Neither the Tribunal nor Mr Pidgeon observed AL in such a dissociative state. A review of the transcript of his evidence does not disclose such an event either.
[51] On the second issue, while there was no record of the Skype interview with Mr O, it was clear that the Tribunal member was able to hear Mr O via the Skype connection. The questions the Tribunal asked Mr O followed and picked up on Mr O’s answers. That was apparent from the excerpt Mr Pidgeon played to the Court.
[52] The only issue of potential prejudice arising from the lack of a record that Mr Pidgeon was able to point to was a conflict between his and the Tribunal’s recollection of what Mr O said on the point about whether AL stayed with him at any point during the six month period from April to October 2014. Mr Pidgeon accepted that for present purposes that matter could be dealt with on the basis of the record before the Court. The record discloses the following. In the course of closing submissions the following exchange occurred:
Mr Pidgeon:Moving directly to the evidence, [AL via Skype]. It wasn’t the best connection, the best lighting or the best sound but, in my submission, at the end with the television shown and various cumulative defence, it ought to be accepted, respectfully, that he was in Nigeria when he gave the interview. There was core elements of the evidence which were common to the appellant’s … . That he did stay at the house and –
Tribunal Not my recollection. Mr Pidgeon: I anticipate –
Tribunal:I haven’t checked my notes but it’s not my recollection of his evidence. But anyway, we can agree to differ on that.
Mr Pidgeon:I didn’t anticipate getting that response but I had because of the problems with the sound, I think it’s something I’ll work on next time. But the timing I believe of the crucial evidence of the transcript is 9.54 to 9.58 New Zealand time. I accept that his evidence was distinctly at odds with the six months which the appellant has said. My understanding was that he
would come and go and that he would stay over and would hide elsewhere. He was a bit evasive about that. He certainly, and I didn’t ask specifically because I couldn’t lead him, but about the shredded mattress, he didn’t make any comment about that.
[53] In the decision the Tribunal dealt with the matter in the following way. After noting that when the Tribunal asked Mr O how long the appellant had stayed with him he replied the appellant did not really stay with him, the Tribunal found:
[46]In his closing submissions, counsel indicated a different recollection of the appellant’s evidence. Mr Pidgeon did not understand Mr O’s evidence to have been that the appellant had never stayed with him. Rather, he submitted that Mr O was more equivocal and had simply said that the appellant “may have come and gone”.
[47]The Tribunal rejects that submission. Mr O described the appellant’s visits as fleeting. He said that, sometimes, the appellant would come just to take a bath or to change his clothes. When asked again if the appellant had stayed with him for months at a time, he clearly replied “no”. When asked where the appellant stayed at night, the witness replied that the appellant was hiding. When asked where, he replied “I can’t really say”. It is not sensible that he would give such answers if the appellant had been staying at his house.
[54] In his own submissions before the Tribunal Mr Pidgeon accepted that Mr O’s evidence was distinctly at odds with the six months which AL had said.
[55] Mr Pidgeon’s argument on this ground is not assisted by his reference to R M v Immigration and Protection Tribunal.12 As Palmer J said in that case:
[51] In most circumstances, these constitutional considerations may not make a difference to the result of considering applications for leave to bring judicial review. The judiciary will not give leave to hopeless cases and the Bill of Rights does not require them to do so, given the demonstrable justification in conserving public resources and in not delaying execution of immigration law in the public interest. A case where a ground of judicial review is clearly available will get leave and the Bill of Rights endorses that. And, where the issues can be dealt with adequately in an appeal, s 249(6) suggests “that is the appropriate route”, and the Bill of Rights does not suggest otherwise. 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. …
12 R M v Immigration and Protection Tribunal, above n 3.
[56] I agree with Ms Earl that this is not a marginal case. On the facts of this case the lack of a full record of transcript of Mr O’s evidence has not led to a procedural unfairness which would support the grant of the application for leave.
Result
[57]The applications for leave to appeal and for leave to review are dismissed.
Costs
[58] The applicant is not in receipt of legal aid. The applicant is to pay the Chief Executive costs on a 2B basis plus disbursements as fixed by the Registrar.
Venning J
4
0