AM (Cameroon) v Immigration and Protection Tribunal

[2017] NZHC 3068

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2017-404-1896 and CIV-2017-404-1899

[2017] NZHC 3068

UNDER

Sections 247 and 249 of the Immigration Act 2009, and under the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules

IN THE MATTER OF

A decision of the Immigration and Protection Tribunal, being [2017] NZIPT 502877

BETWEEN

AM (CAMEROON)

Applicant

AND

THE IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT

Second Respondent

Hearing:

6 December 2017

Appearances:

T Mukusha for the Applicant

I Clarke for the First and Second Respondents

Judgment:

11 December 2017

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 11 December 2017 at 4.30 pm

Pursuant to Rule 11.5 High Court Rules Registrar/Deputy Registrar

AM v The Immigration and Protection Tribunal [2017] NZHC 3068 [11 December 2017]

Introduction

[1]    Ms A has applied for leave to review and to appeal a decision of the Immigration and Protection Tribunal (Tribunal) declining an appeal on humanitarian grounds against her liability for deportation.1 The Tribunal had previously declined Ms A’s appeal against a decision of a refugee and protection officer that declined her application for refugee and protection status.2

[2]    In accordance with the guidance in s 249A(3) of the Immigration Act 2009, these applications were heard and are being determined together. At the conclusion of the hearing on 6 December 2017, I dismissed both applications because neither met the statutory thresholds in the Immigration Act. I said I would provide my reasons later. This judgment sets out my reasons.

Background3

[3]    Ms A is a citizen of Cameroon. She was born in the early 1980s in the South- West Province of Cameroon — one of two Anglophone regions of Cameroon. She is a member of the Bakossi tribe and was raised in the Pentecostal Christian faith. Her parents are deceased. Three of her four siblings live in Cameroon. Ms A is married  to a Cameroonian national who is currently living in Nigeria. The status of the relationship and his circumstances are not known.

[4]    Ms A completed a Bachelor’s degree in geography at a Cameroonian university in 2005. She has worked in Cameroon, including as a secretary in her husband’s farming business. She departed Cameroon in 2012 on a genuine passport for the Republic of Korea to commence studies towards a Master’s degree in business administration. Later that year, she started studies for a Master’s degree in divinity. She did not complete either course of study.

1      AK (Cameroon) [2017] NZIPT 502877.

2      AK (Cameroon) [2017] NZIPT 810066.

3      This summary is drawn from the Tribunal’s decision in AK (Cameroon) [2017] NZIPT 502877 at [4]–[8].

[5]    Ms A arrived in New Zealand on a visitor visa in March 2015. She holds a work visa which is valid until 23 March 2018. She is currently working in the hospitality industry.

[6]    On 25 September 2015 Ms A lodged a claim for refugee and protected person status. As described by the Tribunal, her “claim was based on fear of serious harm at the hands of the Cameroonian authorities because of her membership of the Southern Cameroons National Council (SCNC) and associated political activities.”4 She also claimed she had been sexually assaulted by the Cameroonian police during repeated detentions in Cameroon, and raped by a member of the Cameroonian gendarmerie in 2011. Her claim for refugee and protected person status was declined by the Refugee Status Branch on 23 August 2016. Her appeal against that decision was declined by the Tribunal on 19 May 2017.

Decision of Tribunal on humanitarian appeal

[7]Ms A’s case before the Tribunal on her humanitarian appeal was:

(a)She had been the victim of sexual assaults by family relatives early in her adolescence and by state officials during her detention for political activities which have rendered her psychologically and emotionally vulnerable;

(b)She suffers from a mental health condition described by a clinical psychologist, Dr Greg Woodcock, as persistent depressive disorder and post-traumatic shock disorder (PTSD);

(c)She will receive inadequate treatment for her mental health condition due to limited mental health resources in Cameroon; and

(d)Dr Woodcook was of the opinion that, should she be deported to Cameroon in her fragile mental health state, without available mental health services to assist her, she may fall into psychosis.

4 At [9].

[8]    Included in the material provided by Ms A’s counsel in support of her humanitarian appeal, were:

(a)A report from Dr Woodcock dated 14 June 2017, including an appendix containing a description by Mr Didier Demassosso of the mental health resources and services available in three towns in Cameroon; and

(b)Letters of support from members of the church Ms A has been attending in New Zealand, from friends, and from a social worker and the manager of a hostel where she had resided, attesting to her generosity and good character.

[9]    In its decision,5 the Tribunal set out the grounds in s 207 of the Immigration Act for determining a humanitarian appeal:

(1)The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

(a)there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

(b)it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

…

[10]   The Tribunal also cited the decision of the majority of the Supreme Court in Ye v Minister of Immigration on the approach to be followed in the interpretation of the first limb of s 47(3) of the Immigration Act 1987, the almost-identical predecessor to s 207(1) of the 2009 Act.6 The Tribunal reminded itself that, as the Supreme Court said in Ye, for the circumstances of the case to be exceptional:7

The circumstances “must be well outside the normal run of circumstances” and while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”, Ye v Minister of Immigration at [34]. [citation omitted]

5 At [15].

6      Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.

7      AK (Cameroon) [2017] NZIPT 502877 at [16].

[11]   The Tribunal, in considering Ms A’s claim that there were exceptional circumstances of a humanitarian nature, had regard to its decision dismissing Ms A’s refugee and protected person status appeal. In that decision, the Tribunal had found that the core of Ms A’s claim was not credible and that her claim to be at risk on return to Cameroon was not established to the real chance threshold.

[12]   In the humanitarian appeal the Tribunal found that no further facts had been presented to disturb the findings of credibility and fact in its earlier decision, on which it relied in accordance with s 231 of the Immigration Act.8

[13]   The Tribunal also considered new submissions made by Ms A’s counsel and the material he presented regarding sexual abuse in Cameroon. The Tribunal concluded:

[24]   … However, notwithstanding the appellant’s psychological vulnerability (as addressed below) and the high incidence of violence against women in the country, any risk of such harm befalling the appellant is speculative and remote.

[25]      It follows that nothing of significance in relation to exceptional humanitarian circumstance arises from the appellant’s assertion that she will be at risk of sexual abuse or related harm on return to Cameroon.

[14]   The Tribunal considered Ms A’s mental health by reference to Dr Woodcock’s report and the notes from Dr Sangita Thakur (a psychologist reporting for Refugees as Survivors New Zealand) during her treatment from October 2015 to April 2017 that had been provided for the appeal.

[15]   The Tribunal accepted that, as diagnosed by Dr Woodcock, Ms A suffered from dysthymic disorder/persistent depressive disorder and PTSD.9 The Tribunal noted that Dr Woodcock’s report was based on Ms A’s self-reported testimony, including her detention and sexual assault by the gendarmerie. It recalled that in its decision dismissing Ms A’s refugee and protected person status appeal it had not accepted that

8      The Tribunal stated:

[22] … The Tribunal determines to rely on its previous finding that the core of the appellant’s claim, including her account of having suffered sexual violence at the hands of the police and gendarmerie, to be non-credible, and on the accepted facts, to hold that there is no real chance of harm to her if she returns to Cameroon.

9 At [27].

Ms A’s PTSD and depression arose from her being mistreated by the authorities in Cameroon for her activities as a SCNC member as claimed.

[16]   The Tribunal considered other aspects of Dr Woodcock’s report, including whether Ms A had thought disorders, difficulties with speech, suicidal ideations or experienced unusual perceptual or sensory events. Most importantly, the Tribunal recorded that:

[33] Dr Woodcock expresses the opinion that it would be psychologically detrimental for the appellant to return to Cameroon given her diagnosis and symptomatology. He states that she is psychologically and emotionally fragile and lacks resilience. He is concerned that if she is returned to Cameroon, “the environment and people” she meets may “cause an intensification of her symptomatology,” and she may fall into psychosis.

[17]   The Tribunal found there was no credible evidence that a return to Cameroon would expose Ms A to a greater risk of mental health difficulties than if she remained in New Zealand; that, notwithstanding her history of child abuse, Ms A had been able to attend school, complete her tertiary education, work in Cameroon, and travel abroad for further tertiary studies; and that there was no credible evidence that she had sought mental health treatment before coming to New Zealand and that she was not currently pursing or receiving any support in New Zealand.10

[18]   The Tribunal considered the appendix to Dr Woodcock’s report containing Mr Demassosso’s assessment of mental health services in Cameroon. It acknowledged that access to psychiatrists and mental health services was limited in Cameroon and that Ms A might face difficulty in accessing them in Cameroon, but noted that some options did exist.

[19]   The Tribunal considered the personal and social support available to Ms A in Cameroon and the community support available to her in New Zealand. It concluded Ms A’s primary family nexus was in Cameroon and she had strong ties to her local church community in Cameroon. It acknowledged the links Ms A had built with the New Zealand church community and accepted her departure would weaken those links, but said that she might be able to maintain those links if she chose to do so.

10 At [34].

[20]The Tribunal stated:

[46] The Tribunal has considered all the aspects of the appellant’s circumstances as disclosed to it. Taken cumulatively, the Tribunal finds that the appellant does not have exceptional circumstances of a humanitarian nature in terms of the statutory test.

[21]    The Tribunal also considered decisions referred to by Ms A’s counsel, where there had been a positive outcome on appeal for persons who had experienced sexual violence and who suffered from ongoing mental health conditions, notably AI (Democratic Republic of Congo),11 AG v (Cameroon)12 and AE (Colombia).13 The Tribunal said of those decisions:

[48] … each decision turns on its own particular facts. Notably, the first decision concerns the rape of an appellant by state officials and the effects of her ongoing fear of state authorities. The second case concerns a victim of sex trafficking, and the last case one where there is limited family and social support in the country of origin. These factors are not applicable or relevant to the appellant’s circumstances in the same way and therefore the cited cases do not advance matters for the appellant. In the particular facts of the case before the Tribunal, it has found that there are not exceptional circumstances of a humanitarian nature.

Grounds for judicial review and appeal

[22]   Ms A’s Amended Statement of Claim for judicial review dated 26 September 2017 stated the following grounds:

(a)Illegality: failure to properly consider relevant matters, namely the evidence of the psychologist, Dr  Woodcock,  and  the  evidence  of Mr Demassosso; and

(b)Unreasonableness: the Tribunal’s findings were contrary to the weight of evidence.

[23]   Ms A’s Amended Application for Leave to Appeal, also dated 26 September 2017, stated that the grounds of appeal were, in effect, that there was a seriously arguable case that factual findings made by the Tribunal were incorrect and were so

11     AI (Democratic Republic of Congo) [2017] NZIPT 502610.

12     AG (Cameroon) [2015] NZIPT 501830.

13     AE (Colombia) [2013] NZIPT 500998.

grave as to constitute an error of law. Those findings were not particularised except to the extent they related to the Tribunal’s findings that:

(a)Notwithstanding Ms A’s psychological vulnerability and the high incidence of violence against women in Cameroon, any risk of such harm befalling her from a return to the country was speculative and remote;

(b)Nothing of significance in relation to exceptional humanitarian circumstance arose from Ms A’s assertion that she would be at risk of sexual abuse or related harm on return to Cameroon.

[24]   In oral submissions in support of the judicial review application, Mr Mukusha argued for Ms A that:

(a)The Tribunal had erred in law in failing to consider and follow the recommendations in Dr Woodcook’s report;

(b)The Tribunal had erred in law in failing to consider Mr Demassosso’s evidence; and

(c)The Tribunal had erred in law in failing to use and apply the letters of support for Ms A in the same way such letters had been used and applied in previous cases.

[25]   In support of the application for leave to appeal, Mr Mukusha argued that the Tribunal had erred in reaching the conclusion that Ms A’s situation did not amount to an exceptional circumstance of a humanitarian nature. That argument was largely the same as that made in support of the application for review: that the Tribunal should have accepted that Ms A was at risk of falling into psychosis if returned to Cameroon and that should have been accepted as an exceptional circumstance of a humanitarian nature.

Statutory requirements on judicial review and appeal

[26]    Pursuant to s 249(6) of the Immigration Act, in determining whether to grant leave to bring review proceedings I must have regard to:

(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]   Pursuant to s 245(3) of the Immigration Act, in determining whether to grant leave to appeal, I must have regard to:

… whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

Discussion

Are the issues raised on review issues that could be adequately dealt with on appeal?

[28]   As presented at the hearing, the three issues raised for review were cast as errors of law so could be dealt with adequately on appeal. However, the amended statement of claim for judicial review included that the Tribunal’s decision was unreasonable, so to that extent there may be an issue that should properly be dealt with on review, provided the threshold in paragraph (b) of s 249(6) is met. That threshold is the same threshold that must be met for an appeal pursuant to s 245(3). Accordingly, it is convenient to consider all of the issues raised Mr Mukusha against that threshold.

Are the issues raised in support of Ms A’s applications issues that by reason of their general or public importance or for any other reason ought to be submitted to the High Court?

[29]   As noted by Ms Clarke, counsel for the respondent (the Chief Executive of the Ministry of Business, Innovation and Employment), the Court of Appeal has confirmed in Minister of Immigration v Jooste14 that the test in s 245 is similar to that

14     Minister of Immigration v Jooste [2014] NZCA 23.

applying to second appeals to the Court of Appeal, regarding which, in Waller v Hider,

the Court of Appeal said:15

The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

[30]   In support of his first submission, Mr Mukusha said that in two earlier decisions, AI (Democratic Republic of Congo)16 and AG (Cameroon),17 where Dr Woodcock had also given evidence that the applicants in those cases risked falling into psychosis if returned to their country of origin, the Tribunal had accepted that evidence and had accepted that this amounted to an exceptional circumstance of a humanitarian nature. The Tribunal’s failure to take the same approach in this case was, in his submission, clearly an error. Moreover, he submitted that the issue was of general and public importance because it raised the question of how the Tribunal dealt with expert evidence.

[31]   I cannot accept Mr Mukusha’s argument. First, it is clear that the Tribunal carefully considered Dr Woodcook’s  evidence.  Secondly,  it  is  not  the  case,  as Mr Mukusha came close to saying in his submissions, that the Tribunal is required to accept and follow the evidence of Dr Woodcock because he is the expert in the field and the Tribunal had accepted and followed his evidence in its earlier decisions. The premise of that submission — that the Court should decide in accordance with expert opinion — is not the law, as Ms Clarke pointed out in her submissions.

[32]   As Giles J said in Butler v Removal Review Authority, in another immigration case where it was argued that the Immigration Removal Authority should have accepted and acted upon the evidence of an expert that the applicant in that case was suffering PTSD:18

… the Authority is a body required to act judicially. It must evaluate and reach a determination on the evidence. The consequence of counsel’s submission would be to abrogate the decision making function of the Authority to that of the qualified expert. That cannot be right. It is for the Authority to evaluate and assess the evidence in a reasoned, objective and

15     Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

16     AI (Democratic Republic of Congo) [2017] NZIPT 502610.

17     AG (Cameroon) [2015] NZIPT 501830.

18     Butler v Removal Review Authority [1998] NZAR 409 (HC) at 424.

judicial manner. Expert evidence is an important part of the evidence, but, as the Authority noted, it is only “part” of the evidence. The Authority is entitled, indeed required, to consider it in the context of, and to measure it against, other evidence.

[33]   Those words apply equally to the task to be undertaken by the Tribunal and that is precisely the task the Tribunal undertook. It considered Dr Woodcock’s evidence and it concluded that, in this case, unlike the other cases referred to by     Mr Mukusha, there was no credible evidence that a return to her home country would expose Ms A to a greater risk of mental health difficulties than if she remained in New Zealand. The consequence was that Dr Woodcock’s evidence had much less weight than in those other cases.

[34]   Thirdly, the Tribunal specifically considered the cases to which Mr Mukusha referred and noted that each turned on its own facts. It said the factors in those cases were not applicable or relevant to Ms A’s circumstances in the same way and therefore the cited cases did not advance matters for Ms A. Having read the decisions referred to, I consider the Tribunal was correct in reaching those conclusions. The circumstances in those cases were considerably more grave than those faced by Ms A. The Tribunal then found, taking all of Ms A’s circumstances into account, that Ms A did not have exceptional circumstances of a humanitarian nature in terms of the statutory test.

[35]   In short, the Tribunal made findings based on all the evidence before it, having carefully considered the expert report of the psychologist. Its approach was orthodox and appropriate, and the conclusion it reached was one open to it and consistent with the policy and requirements of the Immigration Act.

[36]   Accordingly, I do not accept that this ground raises a question of law or fact capable of bona fide and serious argument. Nor is it one that raises an issue of general or public importance or for any other reason, that ought to be submitted to the High Court.

[37]   The same conclusion applies to the claim based on Mr Demassosso’s report. The Tribunal considered Mr Demassosso’s report and accepted that mental health facilities in Cameroon are very limited. However, in a situation where, as found by

the Tribunal, Ms A’s risk of falling into psychosis was no worse in Cameroon than it would be if she remained in New Zealand, the state of Cameroon’s mental health facilities could not of itself be an exceptional circumstance of a humanitarian nature.

[38]   Mr Mukusha submitted that the Tribunal in Ms A’s case had somehow used the letters provided by church members and others against her which, he implied, was both unfair and inconsistent with its approach in the earlier cases. He suggested guidelines should be established setting out how letters in support would be used.

[39]   With due respect to Mr Mukusha, that submission suggests a misunderstanding of the basis of the Tribunal’s decision and of how letters in support may be relevant to a decision under s 207 of the Immigration Act.

[40]   Under s 207, the Tribunal must go through a two-stage process before it can allow an appeal against liability for deportation:

(a)First, it must be satisfied there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for an appellant to be deported; and

(b)Secondly, it must be satisfied that it would not in all the circumstances be contrary to the public interest to allow an appellant to remain in New Zealand.

[41]    Letters of support, particularly from New Zealand-based friends and colleagues, may have relevance to the first stage decision. However, where, as in this case, the argument about exceptional circumstances relates to the situation in the country of origin, the views of New Zealand-based supporters are unlikely to be especially influential in that first stage. Letters of support from New Zealand-based friends and colleagues, however, may be very relevant at the second stage because they can help the Tribunal be satisfied that it would not be contrary to the public interest to allow an appellant to stay in New Zealand.

[42]   In Ms A’s case the Tribunal did not get past the first stage and there was no need for it to consider the public interest question. The Tribunal did not use the letters of support against Ms A, as Mr Mukusha suggested. The letters were not particularly relevant to the Tribunal’s determination that in Ms A’s case, there were not considerations of a humanitarian nature. With regard to the letters, the Tribunal simply noted that, because of the links Ms A had established with church members and others while in New Zealand, she might be able to maintain those connections when she returned to Cameroon.

[43]   It follows that no arguable question of law or fact arises in relation to the letters. I do not need to address any further Mr Mukusha’s suggestion that the Tribunal should establish guidelines for how such letters will be used except to note, as I did at the hearing, that there can be no general rule about how a Tribunal should regard letters of support. Much will depend on the facts of the case, on the circumstances of the appellant, the veracity of the letters and the weight the Tribunal attaches to them.

[44]   For the sake of completeness, I note that the claim made in the Amended Statement of Claim for Judicial Review that the Tribunal’s decision was not reasonable really amounted to an argument that the Tribunal did not give sufficient weight to the expert evidence of Dr Woodcock and the country information provided by Mr Demassosso. The same applies  to  the  argument  made  orally  in  the  appeal  by Mr Mukusha — that the Tribunal should have accepted that Ms A was at risk of falling into psychosis if returned to Cameroon and that should have been accepted as an exceptional circumstance of a humanitarian nature.

[45]   As Ms Clarke submitted, weight is an evidential matter and primarily for the Tribunal to determine. As I have already found, the Tribunal gave appropriate consideration to the expert evidence. The conclusion the Tribunal reached about the humanitarian circumstances of Ms A’s case was one open to it and consistent with the policy and requirements of the Immigration Act. Whether by way of appeal or review, there is no question of law or fact capable of bona fide and serious argument that warrants consideration by the High Court.

Result

[46]   I decline Ms A’s applications for leave to review and to appeal against the decision of the Tribunal.

[47]   Costs are reserved. My preliminary view is that they shall follow the event on a 2B basis. If the parties cannot agree to costs, they may file memoranda no more than five pages in length within 10 working days of receipt of this judgment.

van Bohemen J