AL (Thailand) v Immigration and Protection Tribunal (removed)
[2021] NZHC 810
•14 April 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000410
[2021] NZHC 810
BETWEEN AL (THAILAND)
Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL (REMOVED)
First Respondent
THE REFUGEE PROTECTION OFFICER
Second Respondent
Hearing: 1 March 2021 Appearances:
C L Le Beau and S G Graham for Applicant C A Griffin for Second Respondent
Judgment:
14 April 2021
JUDGMENT OF GENDALL J
This judgment was delivered by me on 14 April 2021 at 4 p.m. pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
AL (THAILAND) v THE IMMIGRATION AND PROTECTION TRIBUNAL (REMOVED) [2021] NZHC 810
[14 April 2021]
Introduction
[1] The applicant (AL) seeks leave to appeal a decision of the Immigration and Protection Tribunal1 who found he was not entitled to protected person status or recognition as a refugee.
Background
[2] AL and his wife and daughter are Thai citizens who entered New Zealand in 2016 on temporary visas. AL did not disclose to Immigration New Zealand that he had four criminal convictions for dishonesty and firearms possession offending in Thailand. The Crown says he is wanted in Thailand on a number of matters which include multiple charges of fraud and money-laundering linked to an illegal loan scheme. As a result of his failure to disclose his previous convictions, the applicant was served with a Deportation Liability Notice in August 2017.
[3] In September 2017 the applicant claimed refugee and protected person status.2 A Refugee and Protection Officer declined his application. In April 2019 AL appealed that decision to the Immigration and Protection Tribunal. The Tribunal issued a decision denying AL refugee and protected person status.
Relevant law
Refugee Status
[4] Section 129(1) Immigration Act 2009 (the Act) requires a person be recognised as a refugee if they fall within the meaning of refugee in the Refugee Convention. The Convention defines refugee as a person who:3
…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; or who, not having a nationality and being outside the country of his former habitual residence as
1 Immigration Act 2009, s 245.
2 Sections 129-131
3 Commonly referred to as the Refugee Convention 1951: Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951, entered into force 22 April 1954), Article 1A(2).
a result of such events, is unable or, owing to such fear, is unwilling to return to it
Protected person status
[5] Sections 130 and 131 of the Act stipulate a person must be recognised as protected if, upon deportation, there are substantial grounds for believing:
(a)they would be in danger of torture under the Convention Against Torture; and/or
(b)they would be in danger of arbitrary deprivation of life or cruel treatment under the International Covenant on Civil and Political Rights
unless the person can access meaningful domestic protection in their country of nationality or former habitual residence.4 Importantly, under s 131(5)(a) “treatment inherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivation of life or cruel treatment unless the sanctions are imposed in disregard of accepted international standards”. Under this s 131(5)(b) states: “the impact on the person of the inability of a country to provide health or medical care, or health and medical care of a particular type or quality, is not to be treated as arbitrary deprivation of life or cruel treatment”.
The Tribunal decision
[6] AL claimed protected person or refugee status on the basis that, if he returned to Thailand, he would be the subject of an unfair criminal charge (a s 112 charge),5 he and his family would be physically harmed by his creditors, and he would be unable to access essential heart medication if imprisoned.
[7] At issue in this application is AL’s claim he will be unable to access his heart medication if imprisoned.
4 Immigration Act, ss 130(2) and 131(2).
5 Specifically, an alleged offence against the monarchy (under the lèse-majesté s 112 law) sentences imposed under these laws are severe and prisoners convicted of this offence are also treated harshly.
[8] The Tribunal made an assessment of AL’s credibility and accepted that, as I have noted above, AL:
(a)ran an illegal loan scheme from 2005 and is wanted by Thai police on criminal fraud charges; and
(b)does require heart medication to avoid a heart attack.
[9] Based on its factual findings about AL’s circumstances, the Tribunal found there was not a real chance AL would be persecuted if he returned to Thailand.
[10] The Tribunal accepted the conditions of detention in custodial facilities could give rise to protection concerns capable of being characterised as persecutory if they violated international human rights law and constituted serious harm.
[11] However, the Tribunal noted the prospect of AL being imprisoned remained speculative for two reasons, first the Tribunal found AL was not likely to be charged with s 112 offences therefore any imprisonment would be on the basis of the fraud charges. Secondly, AL told the Tribunal he was confident he would avoid conviction on these charges, a sentiment shared by his lawyer as he had previously successfully defended such charges.
[12] If AL was imprisoned, based on his evidence about the conditions he experienced during his four previous prison terms, the Tribunal noted the conditions in prison, although overcrowded, were such that he was likely to be able to see visitors and to have enough to eat, and previously he was not subject to violence. To reach the standard required to be considered persecutory a high threshold for the severity of conditions faced is required and the treatment must be particularly reprehensible.6 The Tribunal acknowledged conditions in Thai prisons are “undoubtedly harsh” but concluded that the general conditions could not be characterised as particularly reprehensible to meet this threshold.
6 AC (Syria) [2011] 800035 at [85].
[13] The Tribunal did acknowledge that if AL was denied his medication while imprisoned this would be particularly reprehensible. However, based on the evidence provided by AL the Tribunal noted while the “level of healthcare provided by prisons is likely to be substandard none of the relevant information establishes a likelihood that the appellant would be prohibited from accessing his own medication into prison.”7 The Tribunal noted AL had legal representation and family in Thailand to provide him monetary and personal support such that they could access medication for him from outside prison and could advocate for him to access the medication while imprisoned. The Tribunal concluded AL had not established there was a real chance he would be denied his medication while imprisoned.
[14] Based on these factors the Tribunal found AL had not established there was a risk of serious harm should he return to Thailand such that he should be recognised as a refugee. The Tribunal also determined there was no substantial ground for believing AL would be in danger of either being subjected to torture or arbitrary deprivation of life or cruel treatment such that he should be granted protected person status under the Convention Against Torture or the International Covenant on Civil and Political Rights.
The applicant’s case
[15]AL applies for leave to appeal on the basis:
(a)The Tribunal failed to apply the correct legal test under s 131 because they came to erroneous conclusions on the evidence, and therefore made two key factual errors which amount to an error of law. These factual errors were:
(i)Concluding that it was speculative AL would be imprisoned as they did not consider the evidence of his Thai lawyer, Mr Rattanasangwan, that AL was likely to be remanded in custody until the conclusion of the fraud case; and
7 AL (Thailand) [2020] NZIPT 801586 at [167].
(ii)Concluding that AL would likely be able to access prescription medication while imprisoned with no evidence to that effect.
(b)The Tribunal failed to apply the rule in Jiao v Refugee Status Appeals Authority8 as it ought to have afforded AL the “benefit of the doubt” when assessing whether was a real risk of serious harm arising from AL potentially being denied his medication while imprisoned.
The respondent’s case
[16] Ms Griffin, for the respondent, submits AL’s challenge to the Tribunal’s factual inferences and conclusions is impermissible and cannot form the basis of a seriously arguable question of law. AL’s medication needs, she maintained, are not so insurmountable here to override the clear policy justification of preventing migrants evading the criminal justice process.
Analysis
[17] Section 245 Immigration Act allows an appellant who is dissatisfied with the determination of the Tribunal on a point of law to apply for leave to appeal to the High Court. In determining whether to grant leave this Court must have regard to whether the question of law ought to be considered because of its general or public importance, or for any other reason.9
[18] The legislative framework in the Immigration Act makes it clear that “it is the responsibility of a claimant to establish his or her claim for recognition…as a refugee or protected person”.10 Therefore it is the claimant’s responsibility to ensure all information, evidence and submissions relevant to their claim is provided to the refugee and protection officer.11 Similarly, on appeal it is the appellant’s responsibility to ensure all the information, evidence and submissions are provided to the Tribunal.12
8 Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA).
9 Section 245(3).
10 Immigration Act, s 135.
11 Sections 133(3) and 135(2)(b).
12 Section 226.
[19] AL’s appeal is based on claims the Tribunal made errors of fact which therefore led to an error of law. Taafi v Minister of Immigration established that an applicant seeking leave to appeal a factual finding must demonstrate a seriously arguable case that the Tribunal’s factual findings were wrong and that the combination of the errors in the context constitutes an error of law. 13 The question of law based on alleged errors of fact must also either be of public importance or there must be some other reason for it to be considered on appeal. If the question of law is not of public importance the “other reason” exception can be utilised in exceptional circumstances involving individual justice where a decision is legally flawed.14
[20]In Nabou v Minister of Immigration Katz J noted the approach in Taafi was:15
consistent with the approach taken in a number of previous cases involving immigration appeals on questions of law…[t]he decision must be looked at as a whole.16 Findings of fact themselves cannot be impugned unless the factual errors were of such significance, extent and nature that they would render the decision legally flawed.17 Value judgments made by the Tribunal in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law.18
[21] I am satisfied here that AL has not established the elements required by Taafi. I do not consider AL has demonstrated a seriously arguable case the Tribunal’s factual findings were wrong and that the combination of the errors in the context constitute an error of law. The Tribunal rejected AL’s factual claims because AL did not provide credible evidence to support his claims. This is important because as noted above19 it is for AL to establish these facts, not the Tribunal.
13 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
14 This approach has been endorsed by the Court of Appeal: Machida v Chief Executive of Immigration [2016] NZCA 162, [2016] NZLR 721 at [8]
15 Nabou v Minister of Immigration [2012] NZHC 3365 at [9].
16 For example Butler v Removal Review Authority [1998] NZAR 409 at 419-420; Fa’atafa v Chief Executive of Department of Labour HC Wellington AP120/97, 26 April 1999 at [7]; Amosa v Chief Executive of the Department of Labour HC Wellington AP208/98, 3 April 2000 at 9-10, 20; Ogosi v Minister of Immigration HC Wellington CIV-2006-485-673, 27 April 2007 at [22]- [23]; Mistry v Minister of Immigration HC Wellington CIV-2009-485-1610, 17 November 2009 at [50]; Voratanamatanitu v Chief Executive Department of Labour HC Wellington AP124/96, 11 August 1997 at 11: “a technical and semantic analysis of the decision … does not aid the appellant in endeavouring to create a ‘point of law’.
17 Taafi v Minister of Immigration, above n 13, at 7; Faavae v Minister of Immigration [1996] 2 NZLR 243 at 246-247; Ogosi, above n 16, at [22]-[23].
18 De Borja v Removal Review Authority [1999] NZAR 471 at 476. See also Butler v Removal Review Authority at 412.
19 At [18] of this judgment
[22]I discuss each finding below.
Likelihood of detention without bail
[23] To support his contention that it was likely he would be imprisoned, AL provided a statement from his Thai lawyer, Mr Rattanasangwan. Mr Rattanasangwan stated because there were warrants for AL’s arrest it was argued that he would be detained at the airport upon arrival. I accept Ms Griffin’s submission that this statement is not supported by reference to any applicable law. The Tribunal noted Mr Rattanasangwan’s statement, “If [AL] submits himself to police he will not be permitted bail until the case is heard.” This statement, however, could well have meant AL will not be permitted bail until the case on bail is heard.
[24] There was also evidence before the Tribunal via a report from Thai lawyers for Human Rights that the Courts in 2018 there had granted bail to some defendants charged with s 112 offences. Evidence about the number of people remanded in custody without bail under the dishonesty charges AL may face could have been provided to substantiate his claim that it is unlikely he would be remanded on bail pending the complete resolution of these charges. It was not provided.
[25] Given too that AL has the onus of proving his claim, I am satisfied the Tribunal was entitled to conclude on the evidence that, given it had found it was unlikely AL, who was legally represented in Thailand, would be charged with a s 112 offence, and given too there was information before it that he had successfully defended charges of a similar kind before, detention without bail was merely speculative.
Access to medication
[26] The Tribunal accepted that general prison conditions in Thailand were harsh. That said, it seriously considered, based on the evidence provided, whether there was a real risk AL would be deprived of his medication if he were imprisoned.
[27] In doing so, it considered evidence before the Tribunal. Amongst this evidence were the following particular matters. AL had previously served four prison sentences spanning five years, and while prisons were overcrowded, he was allowed visitors and
food. Two reports provided by AL20 did state the level of healthcare provided to prisoners was likely to be substandard. The reports noted, however, that prisoners were able to pay for food to be brought in. Further, AL had his own legal representation throughout. He had an extended family in Thailand, and access to sufficient funds which the court would be unable to seize. There was evidence too that emergency treatment was available and provided to prisoners at the local hospital.
[28] I accept this evidence does not conclusively prove that AL will be able to access heart medication from inside prison. However, it also does not provide the basis for the claim that there is a real chance AL would be prohibited from accessing his medication if it was provided privately via his family. The evidence clearly supports the inferences reached by the Tribunal that AL would be in a position to afford medication from outside prison and his lawyer and family members in Thailand would be able to advocate for access to his medication in prison.
[29] I accept Ms Griffin’s submission that it was for AL to provide evidence to support his claim that he would be unable to access his medication in a Thai prison. In my view, however, AL has failed to provide evidence to confirm he would be barred from procuring his own heart medication for his use in prison. Also before the Tribunal there was evidence that the prison system in Thailand is relatively permissive in what may be allowed into the prison in that, for example, prisoners were able to order food from outside the prison provided they could pay for it.
[30] In my view, the conclusions reached by the Tribunal were available to it. AL has not established a seriously arguable case that the Tribunal’s factual findings were wrong.
The application of Jiao
[31] Nor am I of the view that the decision in Jiao tips the balance in favour of AL on either of these points. Jiao is concerned with specific difficulties faced by refugee
20 An International Federation for Human rights report Behind the Walls - A look at conditions in Thailand’s prisons after the coup (February 2017) and D Simcharoen “Life behind bars: Ex- prisoners describe a typical day in Thai prison” (4 May 2017).
claimants who may be unable to source some information or find conclusive evidence to prove their claims. Jiao held21
to insist on [proof that it was impossible for the applicant to provide]…might properly be seen as requiring action by them which would not fall within their ‘responsibility’ under the Act nor, in the circumstances, within the basic generally accepted principle that claimants must prove the facts they assert.
[32] Jiao cites the Handbook on Procedures and Criteria for determining Refugee Status. This states that the benefit of the doubt principle is relevant:22
when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
[33]The Court of Appeal in Jiao acknowledged that:23
the phrase [benefit of the doubt] should not get in the way of the proper consideration of the evidence bearing on disputed facts, including a weighing of the possible availability of other evidence supporting or questioning that given by the claimant.
[34] I accept Ms Griffin’s submission here that, whether AL would be denied medication while imprisoned was a question capable of a degree of independent verification. It was within AL’s capability to provide evidence to support his contentions relating to this. As it stands, AL provided no evidence that Thai prisons would prevent access to medication where that medication was required and funded by AL. In these circumstances the “benefit of the doubt” principle, as I see it, will not step in to fix the deficiencies in AL’s supporting evidence.
[35] I accept, as the Tribunal did, that if there was a real risk AL would be deprived of his essential medication while imprisoned, he would be afforded protected person status. However, I cannot, on the evidence, conclude there is a seriously arguable case that the Tribunal’s factual findings were incorrect such that an error of law in the application of s 131 has occurred here.
21 Jaio, above n 12, at [32].
22 At [28].
23 At [30].
Conclusion
[36] The Tribunal was entitled to conclude that AL’s imprisonment in Thailand was speculative and, further, that in any event, there was not a real risk here AL would be deprived of his essential heart medication if he was imprisoned.
[37] AL’s application for leave to appeal is based on his contention that these conclusions reached by the Tribunal were wrong and unsupportable. I disagree. I consider they were permissible on the evidence before the Tribunal. In my view no error of law has occurred here, and no matters of general or public importance support granting leave to appeal.
[38]The application for leave to appeal is dismissed. Leave to appeal is declined.
...................................................
Gendall J
Solicitors:
Young Hunter, Christchurch
Crown Law Office, WellingtonCharlotte Griffin, Barrister, Wellington
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