AM (PAKISTAN) AND A REFUGEE AND PROTECTION OFFICER

[2024] NZHC 3483

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000478

[2024] NZHC 3483

UNDER

Section 245 of the Immigration Act 2009, Rule 20.3 of the High Court Rules

IN THE MATTER

of an appeal against a decision of the Immigration and Protection Tribunal

BETWEEN

AM (PAKISTAN)

Appellant

AND

A REFUGEE AND PROTECTION OFFICER

Respondent

Hearing:	17 September 2024
Appearances:	L I E Tothill for Appellant S M Perera for Respondent
Judgment:	20 November 2024

[REDACTED] JUDGMENT OF BREWER J

This judgment was delivered by me on 20 November 2024 at 4 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Dixon & Co Lawyers (Auckland) for Appellant Crown Law Office (Wellington) for Respondent

AM (PAKISTAN) v A REFUGEE AND PROTECTION OFFICER [2024] NZHC 3483 [20 November 2024]

Introduction

[1]                 The Immigration and Protection Tribunal (the Tribunal) found that AM:1

(a)is not a refugee within the meaning of the Refugee Convention and therefore is not a refugee under section 129 of the [Immigration Act 2009 (the Act)];

(b)is not a protected person within the meaning of Article 1(1) of the Convention Against Torture and, therefore, is not a protected person under section 130 of the Act;

(c)is not a protected person within the meaning of the relevant elements of Articles 6 and 7 of the International Covenant on Civil and Political Rights and, therefore, is not a protected person under section 131 of the Act.

[2]                 AM obtained leave to appeal from Becroft J on two questions of law:2

[119] Leave to appeal to the High Court under s 245 is granted in respect of the “protected person” finding (ss 130 and 131). The specific, but related, questions are:

(a)Whether the Tribunal was in error in relying on Mr AM’s ability to pay a bribe to negotiate his way out of any prison he may be remanded to where there is a serious risk of cruel, inhumane or degrading treatment.

(b)Whether it was unfair for the Tribunal to conclude it had no doubt that Mr AM could organise such a bribe, and/or had an appropriate support network, without alerting him to its conclusion and affording him the opportunity to counter it.

[3]                 This Judgment determines AM’s appeal.

Background

[4]                 AM is a citizen of Pakistan. He moved to Australia in 2000, where he acquired a criminal record. On 11 August 2015, AM was advised by the Australian immigration authorities of their intention to cancel his temporary visa because of his convictions. So, he went to Fiji for a short time before returning to Pakistan [redacted].

[5]                 On 7 February 2016, AM went to Vanuatu. He returned to Pakistan on [redacted]. He was arrested by officers of the Federal Investigation Agency and

1      AM (Pakistan) [2023] NZIPT 801996 at [322].

2      AM (Pakistan) v The Immigration and Protection Tribunal [2023] NZHC 3871.

charged following a complaint by a Punjabi sub-inspector of police that he had paid AM US$50,000 for an Australian visa. AM and an associate were charged also with being in possession of false passports.

[6]                 On [redacted], AM was released on bail, on the condition that he stay in Pakistan pending trial. He paid a bribe to police to get his passport back and, on [redacted], he flew to Vanuatu. AM learned later that a warrant for his arrest for breaching bail conditions was issued in Pakistan.

[7]                 In September 2019, AM obtained a false Vanuatuan passport. He flew to  New Zealand on 20 September 2019. He was refused entry and detained. He applied for recognition as a refugee or protected person.  His application was  refused  on   19 November 2019. AM appealed to the Tribunal.

[8] On 20 February 2023, the Tribunal dismissed AM’s appeal and made the findings quoted at [1].

Status of the leave Judgment

[9]                 As a preliminary point, I note that counsel in their written submissions refer to findings by Becroft J in his leave judgment, and, on some points, seek to rely on them. As I explained to counsel, the task of a Judge hearing an application for leave to appeal under s 245 of the Immigration Act 2009 (the Act) is to identify whether there is a seriously arguable question of law of sufficient importance to be submitted to this Court. The Judge’s task is not to decide any question identified or make findings that might influence the decision of the appeal. If leave is granted, all findings going to deciding the question, and the decision itself, are for the Judge hearing the appeal. For that reason, the convention is that a Judge giving leave to appeal does so with sparce reasons going to the identification of a seriously arguable question of law, and its importance, so as not to be seen to influence the appellate judge.3

[10]              In this case, Becroft J’s leave decision is a full one, going to 120 paragraphs. I have not read it all because insofar as his Honour has made findings, they are not

3      The position is different if a Judge declines leave to appeal. Full reasons should then be given.

binding on me and I must make my own, independent findings. I told counsel that they could put forward the Judge’s reasoning on any point on the basis that I should find it persuasive.4

The appeal — the first question

[11]              The Tribunal’s decision is comprehensive. It had many factual issues to resolve. Once those issues were resolved, the Tribunal had to decide whether AM is a refugee. That required an examination of detention conditions in Pakistan. The Tribunal said:

[237]    The Tribunal accepts that this country information paints a concerning picture of detention conditions in many prisons in Pakistan. However, this does not mean that each and every person detained in Pakistan faces risks of serious harm arising from such conditions at the real chance level. First, the United States Department of State does not refer to all prisons as having harsh conditions, but only some. Second, while, in some prisons, conditions may give rise to some breaches of Articles 7 and 10, the threshold for persecution requires serious harm to arise from such breaches. Like any other element of a refugee claim, the evaluation of risk of exposure to such breaches of rights, and the assessment of whether any such breaches would give rise to serious harm, is shaped by the particular circumstances at hand. In this case, we have already rejected the appellant’s claim to have been mistreated in any way when detained in the past. He has raised no concerns in his various statements in support of his claim as to the general conditions he personally encountered in Pakistan during his prior detention let alone make assertions that these general conditions (as opposed to his disbelieved account of specific mistreatment) resulted in any harm to him. Nor did this feature as an element of his oral evidence.

[238]    While the lack of evidence of past mistreatment in detention and harsh detention conditions amounting to breaches of Articles 7 or 10 does not mean the risk of such occurring in the future can never arise, it remains no more than speculative that the conditions that the appellant will be detained in will reach that threshold or that he will be so mistreated, with either of those occurring to a degree of severity which can properly be called serious harm. Further, the appellant is a man of financial means and has been able to access large sums of money in the past to regulate the conditions of his detention (in that instance, by paying AU$10,000 to ensure he was bailed, thereby shortening the duration of his detention). We have no doubt he will be able to do it again in the future. Although by fleeing the country, he will have made it more difficult for him to be given bail this time, that he may be given bail upon stringent reporting and residence conditions, cannot be discounted. Nevertheless, even if not granted bail, the Tribunal is in no doubt that he has available to him the financial means and support network to ensure that the

4      Accident Compensation Corp (ACC) v TN [2023] NZCA 664 at [124], citing Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 (CA) at [43].

risk he will suffer any serious harm, should he be detained in a prison which has poor general conditions, falls below the real chance threshold.

Conclusion on well-foundedness

[239]    For the foregoing reasons, the appellant does not have a well-founded fear of being persecuted in Pakistan. It is accepted that he faces prosecution there for people smuggling offences, and possibly for absconding while on bail (though we have seen no evidence of charges to that effect), but legitimate prosecution by the state for criminal offending does not constitute being persecuted.

[12]              The first ground of appeal is focused on the Tribunal’s comments in the second and subsequent sentences of [238] about AM’s ability to pay a bribe to either obtain bail or avoid serious harm if he is detained in a prison.

[13]              Having concluded that AM is not a refugee, the Tribunal turned to the issue of whether AM is a protected person under s 130 of the Act:

THE CONVENTION AGAINST TORTURE

[313]Section 130(1) of the Act provides that:

“A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.”

Assessment of the Claim under the Convention Against Torture

[314]    Section 130(5) of the Act provides that torture has the same meaning as in the Convention Against Torture, Article 1(1) of which states that torture is:

“… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[315]    The appellant relies upon the same evidence for this part of his appeal as he does for his claim to refugee status. The same findings of credibility and fact apply. For the reasons given above, he is not at risk of being subjected to severe mental or physical pain or suffering for any of the prescribed purposes with any of the prescribed involvement of a public official. Accordingly, the appellant is not recognised as a protected person in New Zealand under the Convention Against Torture.

Conclusion on Claim under Convention Against Torture

[316]    For the above reasons, the appellant is not a protected person under section 130 of the Act.

[14]              Similar consideration was given to the issue of whether AM is a protected person under s 131 of the Act:

THE ICCPR

[317]Section 131 of the Act provides that:

“(1)A  person  must  be  recognised   as   a  protected  person  in  New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.

...

(6)In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment.”

[318]By virtue of section 131(5)(a) of the Act:

“(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:”

Assessment of the Claim under the ICCPR

[319]    The appellant relies upon the same evidence for this part of the appeal as for the claim to refugee status. The same findings of credibility and fact apply. For the reasons given above, he is not in danger of being arbitrarily deprived of life or subjected to cruel treatment. As with the “real chance” threshold in the refugee enquiry, it requires a degree of risk which is more than speculative or remote — see AI (South Africa) [2011] NZIPT 800050–053, at [81]–[83]. That threshold is not met.

[320]    To the extent that the appellant may be liable to a term of imprisonment should he be convicted of the offences referenced in FIRs 259 and 296, the Tribunal’s review of sentencing practices in the above assessment of exclusion establishes that such a sanction would not be imposed in disregard of accepted international standards. Accordingly, the appellant is not recognised as a protected person in New Zealand under the ICCPR.

Conclusion on Claim under ICCPR

[321]    For the above reasons, the appellant is not a protected person within the meaning of section 131(1) of the Act.

[15]              AM submits that it was an error of law for the Tribunal to take into account AM’s ability or willingness to pay a bribe to regulate his prison conditions. The issue

is confined to whether there are substantial grounds for believing that AM would be in danger of being subjected to torture, arbitrary deprivation of life, or cruel treatment. The Tribunal was not, it is submitted, entitled to rely on the operation of corruption in assessing those dangers.

[16]              Ms Tothill, in careful submissions, makes the point that relying on corruption to reduce the dangers highlights the existence of the dangers.

[17]              The submissions for AM include that the Tribunal’s decision was materially impacted by its finding that AM could mitigate the risk of harm through bribery:

41.The short point here is that the Tribunal’s balancing exercise as to the real risk of harm was unduly influenced by the illegitimate reasoning about the appellant’s ability to pay a bribe. The reliance on bribery impaired the Tribunal in its ability to objectively assess the risks, and potentially led to a rejection of evidence which might have otherwise been kept in the balance.

42.It is well-established in refugee law that evidential uncertainty is to be resolved in the appellant’s favour.

43.In this context, the Tribunal could not reasonably discard the risks the appellant would face in a Pakistan prison. Despite accepting the country information “paints a concerning picture of detention conditions in many prisons in Pakistan”, it dismissed the appellant's risk of harm in detention as being merely speculative. By a BE (Nigeria) and/or Karanakaran-consistent approach, it was not open to the Tribunal to do so.

(footnotes omitted)

[18]              I do not accept AM’s submission on the first question of law. The Tribunal carefully assessed AM’s risks if he is detained in Pakistan against the country information. The charges AM will face, or is likely to face, if he returns to Pakistan have no political flavour. They are charges alleging “ordinary” criminal conduct. So, AM’s risk of being subjected to cruel, inhumane and degrading treatment in prison is no greater than the risk to anyone detained in Pakistan for non-political criminal offending. As the Tribunal said, to lift that risk, in AM’s case, to the threshold level required for protection would be speculative.

[19]              In my view, the Tribunal’s finding on AM’s ability to resort to bribery, although relied upon by the Tribunal as a reason for its conclusion, was not determinative. It

was a factor, but, having regard to the Tribunal’s previous conclusions, was not material to the decision to deny AM protected person status.

[20]              It was not an error of law for the Tribunal to take into account, as a matter going to AM’s particular circumstances, his experience with paying bribes to manipulate his detention conditions, and his ability to do so in the future. The Tribunal did not thereby encourage corruption or the payment of bribes. The Tribunal made a finding about AM’s conduct were he to be detained in Pakistan. It was a relevant assessment to make and part of the Tribunal’s duty to determine, objectively, AM’s predicament were he returned to Pakistan.

[21]              The first question of law as formulated by Becroft J has a premise which I do not find established. The premise is that the Tribunal relied on AM’s ability to pay a bribe “where there is a serious risk of cruel, inhumane or degrading treatment”. The Tribunal did not find that AM faced such a risk. It found to the contrary. The Tribunal’s reliance on AM’s ability to pay a bribe was secondary to its conclusion that to find such a risk would be speculative. I amend and re-state the question of law:

Whether the Tribunal was in error in relying on Mr AM’s ability to pay a bribe to negotiate his way out of any prison he may be remanded to.

[22]              I answer the question: “no”.

The appeal — the second question

[23]              The essence of this question is whether the Tribunal breached AM’s right to natural justice.

[24]              It is submitted for AM that had the Tribunal told him it had “no doubt” of his ability to pay a bribe, he would have produced evidence to prove he does not.

[25]              In her written submissions for AM, Ms Tothill draws analogies with two other cases:

48.Isak v Refugee Status Appeals Authority & Anor concerned whether an injustice to the claimant had occurred when material information was not put before the Tribunal. In the circumstances, it was neither the fault of the decision-maker nor the claimant himself that the

information was not advanced. However, given the potentially grave outcome for the individual, the matter was nevertheless remitted to the Authority (as it then was), with the Court finding:5

“The consequences of the wrong decision may be dire. I consider there is a real risk that not leading this evidence could lead to a very grave injustice being done to him. The cost and delay of a rehearing is a small price to pay, if such an outcome is avoided. A generous approach to intervention is warranted. A little additional fairness is called for.”

49.In a similar vein, Kirby J for the High Court of Australia in Minister for Immigration and Ethic Affairs v Wu Shan Liang said:6

“… the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: “What if I am wrong”? Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems “likely” or “entitled to greater weight”, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution.”

[26]              I am assisted by the respondent’s submissions on the application of the principles of natural justice in the context of immigration cases. I agree with them and set them out here:

56.The content of the right to natural justice is always contextual. What natural justice requires depends on the circumstances and the nature of the decision, assessed in light of any relevant statutory provisions.7 The Court of Appeal held assessing whether a tribunal has conducted procedures which comply with natural justice “should be undertaken realistically without an unduly technical focus.”8 The two key principles of natural justice are that the parties are to be given adequate notice and opportunity to be heard and that the decision-maker be disinterested and unbiased.9

57.The Court of Appeal in Minister of Immigration v Wu, as well as the High Court, has said the relevant statutory provisions informing the Tribunal’s duty (if any) to advise of its concerns include ss 226 and

5      Isak v Refugee Status appeals Authority & Anor [2010] NZAR 535 (HC) at [79].

6      Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 (HCA) at 507– 508.

7      Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 141 (CA); and Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZR 1222 at [28].

8      AV (Somalia) v Refugee and Protection Officer [2024] NZCA 289 at [24].

9      Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [11].

228 of the Act.10 Under s 226, it was the appellant’s responsibility to establish his case and ensure all material he wished to have considered was placed before the Tribunal.11 Under s 228, the Tribunal was not obliged to seek further information from the appellant to address its concerns.12

58.As explained in Khalon v Attorney-General, “there is no rule of natural justice of general application that a decision-maker must disclose that which he is minded to decide so that the parties may have a further opportunity of criticising his mental process before he makes a final decision.”13 The underlying principle being that:14

a party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted. The converse will generally be true if the risk of an adverse finding was always foreseeable … The key elements are surprise and potential prejudice. If an adverse finding is foreseeable there is no surprise. Even where there is surprise, there could be no prejudice unless better notice might have allowed the affected party to do something about it.

59.Since Khalon, this Court and the Court of Appeal have specifically considered the Tribunal’s duty to advise appellants of concerns before issuing judgment. It is now well-established that the Tribunal is not required to give notice of every intention to make adverse findings. The Court of Appeal in Minister of Immigration v Wu held it is not the Tribunal’s responsibility to give notice of every reservation or concern it may have or to provide iterative opportunities to marshal further evidence to meet those concerns.15 As observed by this Court, as well as by the Court of Appeal, such a requirement would place an impractical and onerous procedural burden on the Tribunal.16

60.Similarly, in BV v Immigration and Protection Tribunal, this Court rejected an argument that the Tribunal had breached natural justice principles by not giving the individual adequate opportunity to respond to adverse conclusions.17 The Court observed the individual knew in advance where the focus would be on his appeal, was legally represented and had adequate opportunity to make his case.18

61.Further, in AW (Kiribati) v A Refugee and Protection Officer, the High Court held the Tribunal was under no natural justice obligation to give notice of an intention to make certain adverse findings, in particular

10 Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217 at [53]; AW (Kiribati) v A Refugee and Protection Officer [2023] NZHC 1806 at [51].

11 Immigration Act 2009, s 226.

12 Section 228 of the Immigration Act makes it “perfectly clear” that the Tribunal may seek information from any source but is “expressly under no obligation to do so”, and is “fully entitled to restrict its inquiry” to the information provided by the applicant or the respondent: Wu, above n 10, at [42].

13     Khalon v Attorney-General [1996] 1 NZLR 458 (HC) at 464.

14     Khalon v Attorney-General, above n 13, at 466.

15     Wu, above n 10, at [53], cited by Radich J in AV (Somalia) [2023] NZHC 3535 at [58].

16     Wu, above n 10, at [53]; AV (Somalia), above n 15, at [56] and [58]; DO v Immigration and Protection Tribunal [2016] NZHC 3158 at [65]–[66].

17     BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139 at [17].

18     BV v Immigration and Protection Tribunal, above n 17, at [17]–[18].

in light of s 226 of the Act.19 The High Court noted that similar factors as observed in BV applied and no issue of unfairness arose.20 In contrast, those situations where the High Court has found a breach of natural justice involved very different circumstances.21

62.More recently, in AV (Somalia) v Refugee and Protection Officer the Court of Appeal confirmed that ss 226 and 228 of the Act inform the requirements of fairness.22 Given that statutory framework, an adverse finding that is foreseeable would not involve a breach of natural justice.23

[27]              The reality of this case is that there was a particular focus on how AM would be treated in prison if he were detained in Pakistan. AM had provided detailed evidence as to his use of bribery on his previous detention and how he obtained the funds he used. Indeed, the Tribunal questioned AM on the point. It was reasonably foreseeable that the Tribunal would extrapolate conclusions from this evidence and it should have come as no surprise that it did.

[28]              In any event, I have already found that the Tribunal’s finding on this issue was not determinative of its decision. It was a factor relied on, but the key determinations of risk were not tied to it.

[29]              I find that AM’s right to natural justice was not breached. Even if it had been, I would not consider it to be of such moment as to justify quashing the Tribunal’s decision and remitting AM’s case for a further evaluation of this issue.

[30]I answer the second question: “no”.

Decision

[31]The appeal is dismissed.

19     AW (Kiribati), above n 10, at [51].

20     AW (Kiribati), above n 10, at [52].

21  For example, where the Tribunal indicated to counsel during the hearing that its concerns about   the credibility of certain evidence had been adequately addressed when they had not, and the Tribunal’s doubts as to the reliability of that evidence became a material factor in its decision: DO v Immigration and Protection Tribunal, above n 16, at [58]–[66].

22 AV (Somalia) v Refugee and Protection Officer, above n 8, at [24].

23 At [24].

[32]              AM has legal aid and I do not understand there to be an issue of costs. If I am wrong, memoranda are to be filed no later than 7 February 2025.

Brewer J