AO (Cameroon) v A Refugee and Protection Officer
[2019] NZHC 360
•6 March 2019
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT 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-2018-404-547
[2019] NZHC 360
UNDER the Immigration Act 2009, s 245 IN THE MATTER
of an appeal against the decision of the Immigration and Protection Tribunal
BETWEEN
AO (Cameroon) Appellant
AND
A REFUGEE AND PROTECTION OFFICER
First Respondent
THE IMMIGRATION AND PROTECTION TRIBUNAL
Second RespondentCont …
Hearing: 14 February 2018 Appearances:
T Mukusha for the Appellant/Applicant
M Coleman and E Dowse for the First Respondent
Judgment:
6 March 2019
JUDGMENT OF GAULT J
This judgment was delivered by me on 6 March 2019 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
AO (Cameroon) v A REFUGEE AND PROTECTION OFFICER [2019] NZHC 360 [6 March 2019]
Cont …
CIV-2018-404-548
UNDER
the Judicature Amendment Act 1972 and the Immigration Act 2009, s 249
IN THE MATTER
of a judicial review of a decision of the Immigration and Protection Tribunal
BETWEEN
AO (Cameroon) Applicant
AND
A REFUGEE AND PROTECTION OFFICER
First Respondent
THE IMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent
Solicitors:
Mr T Mukusha, Avondale Law, Auckland Ms E Dowse, Crown Law, Wellington Ms A F Todd, Crown Law, Wellington
[1] The applicant, AO, is a citizen of Cameroon. Subsequent to his arrival in New Zealand, AO lodged a claim on 30 June 2014 for recognition as a refugee or protected person under ss 129-131 of the Immigration Act 2009 (the Act). His claim was declined by a refugee and protection officer (RPO) in the Refugee Status Branch of Immigration New Zealand on 28 May 2015.
[2] AO appealed to the Immigration and Protection Tribunal (the Tribunal) under s 194 of the Act. The Tribunal dismissed his appeal on 23 August 2016.1
[3] AO made a second claim for refugee and protected person status on 14 March 2017. On 20 June 2017 an RPO issued a decision refusing to consider this second claim.
[4] AO made a second appeal to the Tribunal under s 195 of the Act. On 2 March 2018 the Tribunal decided to consider the second claim but having done so determined that AO was not a refugee or protected person.2
[5] AO now seeks leave to appeal the second decision of the Tribunal under s 245 of the Act. He also seeks leave to commence judicial review proceedings under s 249.
[6] As the second decision of the Tribunal relied on findings of credibility and fact made in the earlier Tribunal decision, it is necessary to outline both claims.
First claim
[7]AO is a married man in his forties from Douala in Cameroon.
[8] In essence, AO’s original claim for recognition as a refugee or protected person was that he feared being persecuted by the Cameroon authorities because he had been involved with a group who protested against illegal land confiscation. He said that he had spent two years in prison (without charge) before he escaped and left Cameroon with the assistance of his aunt who retrieved his passport and birth certificate from his parents’ house. He made his way to New Zealand.
1 Re AH (Cameroon) [2016] NZIPT 800872.
2 Re AO (Cameroon) [2017] NZIPT 801200.
[9] AO’s claim was declined on credibility grounds. The RPO found that AO’s accounts of how and when he arrived in New Zealand were false and his Cameroonian documents were false and/or fraudulently obtained. As such, the RPO was not satisfied as to AO’s identity and rejected his account in its entirety. It was not accepted AO was a national of Cameroon.
First Tribunal decision
[10] The Tribunal hears appeals de novo and AO gave evidence at the appeal hearing. The first Tribunal decision dated 23 August 2016 recorded that the primary issue arising on the appeal was the credibility of AO’s account. The Tribunal found that the core of AO’s claim was not accepted as truthful. In doing so, it first addressed irregularities with AO’s passport and rejected his explanation for missing pages, which it found he most likely removed to hide pages that revealed inconsistencies with his claim. It then found that AO’s account of travelling to New Zealand was false and that he was withholding information about his arrival.
[11] The Tribunal further found that his core account was untruthful; that he did not form a group to agitate for redress for land confiscations; was not arrested and did not spend time in or escape from prison. It then found that there was no adverse interest in him by the Cameroon authorities for any of these reasons. However, it accepted that he was a Cameroon national and his Cameroon passport was accepted for identity purposes.
[12] In relation to the risk upon return to Cameroon as a failed asylum seeker, the Tribunal considered information on the treatment of deportees to Cameroon and acknowledged issues of concern but found that the manner and method of AO’s return to Cameroon would be for him to determine and there was no reason why he would be identified as a failed asylum seeker. The Tribunal considered the fact that his passport was expired but went on to find that any risk to him was no more than speculative.
Second claim
[13] Following telephone contact with a Cameroon embassy official about obtaining a travel document or laissez-passer, AO made a second claim for refugee and protected person status on 14 March 2017.
[14] In brief, this second claim reiterated all of AO’s previous claim and added that the Cameroon embassy official had asked AO a lot of questions and assumed AO was one of the many failed asylum seekers in New Zealand, indeed he suspected one who went to New Zealand to blackmail the Cameroon government, and warned AO that any laissez-passer holder in such circumstances would be closely examined by the authorities upon return and the punishment for illegal exit from Cameroon was a prison sentence. AO said that he feared that he will be arrested and prosecuted under this law, thrown in jail with poor conditions and ill-treatment and will probably be tortured and maybe die.
[15] AO also said that after the first Tribunal decision he had exchanged emails with his parents, who said that it was not safe for him to go back to Cameroon. He said that his father had told him that each of his parents was summoned by the police after AO had escaped from prison. He said that his parents had not had any problems since then but he has a feeling that they are being watched.
[16] On 20 June 2017 an RPO issued a decision refusing to consider this second claim on the basis that the RPO was not satisfied that there had been a significant change in circumstances material to the claim since the previous claim was determined (a threshold requirement for consideration of subsequent claims under s 140 of the Act).
[17] AO appealed this decision and gave evidence at the de novo second appeal hearing. His account can be taken from the second Tribunal decision:3
[16] The facts of the second claim can be briefly stated. These are that, following the decision of the Tribunal dismissing his first appeal, the appellant took advice from his then legal representative, Ms Sreen, about the next steps and was advised that his only option was to apply for a travel document from
3 Re AO (Cameroon) [2017] NZIPT 801200.
the Cameroon Embassy … He felt conflicted as, although the Tribunal had not believed him, he knew what would happen to him if he went back to Cameroon. Therefore, with some trepidation, he contacted his parents with whom he had not spoken for the entirety of his time he [sic] in New Zealand. They told him two things. First, that soon after he had escaped they had received a summons to attend the police station in relation to his escape. Second, that there were no other identity documents they could provide him with to help him obtain a travel document.
[17] The appellant pondered what he should do. After a while, he decided he would make a call to the embassy but, being concerned about the implications for himself and his family if he told them his real name, he gave a false name when he called. After some initial chat, the appellant was asked what he needed and he told the official … that he needed a travel document in order to travel home and visit his parents. When asked by the official how long he had been in New Zealand and what he was doing here, he told him initially that he had come to the country as a tourist but was now working. The official told him that he would need to send a copy of his passport, birth certificate and identification card. Without thinking, the appellant remarked that his passport and birth certificate were with Immigration New Zealand. This statement piqued the interest of the official who now became more curious and interested in the appellant’s situation. He began inquiring more intensely why Immigration New Zealand would retain both his passport and his birth certificate if the appellant was not seeking asylum here. The official said that the embassy was aware that there were a number of Cameroonians seeking asylum in New Zealand and he informed the appellant that he suspected that the appellant was one of the failed asylum seekers who went to New Zealand to “blackmail” the Cameroonian government. He told the appellant he should be aware that there were laws prohibiting unlawful departure from Cameroon and that, even if he was issued with a laissez-passer, an investigation would be made once he returned to Cameroon about the circumstances of his departure.
[18] The appellant hung up the telephone. He became very worried about his situation. He thought about matters for a short period of time and then decided to lodge his second claim for refugee status.
[19] The appellant fears that, if he is returned to Cameroon, he will be arrested at the airport. He does not have the correct travel document and will not be issued with one. Any investigation will quickly reveal that he left the country unlawfully and without completing the necessary procedures. He stated that, since the 2001 terrorist attacks in New York, there had been a procedure in place whereby all Cameroonian nationals wanting to leave the country were required to complete a form and have an exit stamp placed in their passport. He would not be in a position to prove this nor would he be able to show work permits in his Cameroonian passport. He has no doubt this will cause the authorities to view him as someone who has claimed asylum abroad. Although he would deny it if asked, the fact would become quickly apparent. He is also aware that, in detention, people are tortured and he would be forced to divulge that he was a failed asylum seeker under torture.
[20] The appellant is also concerned about the conditions in which he would be imprisoned. He does not enjoy the best of health. He believes he could be arbitrarily deprived of his life in prison.
[18]The Tribunal also received expert evidence in support of AO’s claim.
[19] The expert’s opinion was that AO had sufficient grounds to be afraid on his return to Cameroon. The expert concluded that AO would suffer from persecution if he returns to Cameroon. It was therefore unsafe for him to return home.
Second Tribunal decision
[20] The second Tribunal decision dated 2 March 2018 recorded that the central issues for determination were whether AO’s claim to have been threatened by a consular official whom he contacted in the wake of the decline of his first appeal by the Tribunal was credible and whether, even if not credible, he faces a well-founded fear of being persecuted or being in danger of being subjected to torture, cruel and inhuman prison conditions or the arbitrary deprivation of life due to his anticipated mode of re-entry into the country.
[21] The Tribunal considered, as it was required to do under s 200 of the Act,4 whether there had been a significant change in circumstances material to the appellant’s claim since the previous claim was determined – concluding there had been a significant change – and then whether this was brought about by the appellant acting otherwise than in good faith – concluding there was not bad faith.
[22] In accordance with s 200(3), the Tribunal then proceeded to assess AO’s claim to refugee and protected person status. The Tribunal decided to rely on the first Tribunal’s findings – on the basis that the second claim did not advance any cogent or persuasive evidence to satisfy the Tribunal that the findings on the first appeal were incorrect.
[23] The Tribunal did not accept AO’s evidence about the substance of his telephone conversation with the embassy official. The Tribunal considered that, despite AO’s damaged passport, there was no credible evidence that Cameroonian records would reveal anything other than that AO made a lawful departure from Cameroon. On that basis, and because of his inability to provide an unmutilated passport, the Tribunal
4 This was expressed as being an issue of jurisdiction, but I understand the Tribunal to mean it is a threshold question to be determined.
considered it is likely that AO will not be issued with a replacement passport but, instead, be given a laissez-passer on which to return to Cameroon. He may well be questioned on arrival but there was no credible evidence that the Cameroon authorities are aware that that he has claimed asylum or even suspect that. The risk of being charged with an offence relating to use of an altered passport was speculative and, in any event, would be a matter of prosecution, not persecution. The Tribunal concluded that while AO is likely to be questioned on arrival, nothing about his circumstances would give rise to an adverse view. The evidence did not establish a real chance of serious harm arising from breaches of human rights.
Applicant’s case
[24]AO seeks leave to appeal on the grounds that:
(a)there is a seriously arguable case that factual findings by the Tribunal were incorrect; and
(b)the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law, or so significant and extensive that a properly directed Tribunal may well have reached a different decision; and
(c)the question of law involves individual injustice to such an extent that the Court simply should not countenance the decision standing.
[25]AO also seeks leave to bring judicial review proceedings on the grounds that:
(a)there is a seriously arguable case set out in the statement of claim;5 and
(b)the errors identified have a general or public importance beyond the instant matter.
5 The statement of claim pleads substantive unreasonableness, breach of legitimate expectation, failing to take into account relevant considerations and taking into account irrelevant considerations, breach of natural justice, contrary to international instruments and error of law. When this document could not be located during the hearing, AO’s counsel emphasised that the Tribunal’s decision was unreasonable.
Applicant’s submissions
[26]Mr Mukusha, counsel for AO, submitted that the factual errors concerned:
(a)failure to give sufficient weight to the evidence of the expert regarding the risk to AO if he is returned to Cameroon; and
(b)the rejection of AO’s evidence as to the content of his telephone conversation with the official at the Cameroon Embassy, and in particular his evidence that he was threatened, in circumstances where the Tribunal accepted that AO may have telephoned the Embassy.
[27] Mr Mukusha emphasised that the expert’s evidence was based on his experience. The expert was of the opinion that AO was at risk of being persecuted if he returned to Cameroon. Mr Mukasha submitted that the Tribunal did not give sufficient weight to this risk, or failed to carefully weigh the expert’s evidence. Mr Mukusha said the risk involved a core human right – both the risk to life and the risk of serious harm.
[28] The expert had also given evidence regarding the Cameroon Penal Code. Mr Mukusha challenged the way the Tribunal dismissed the expert’s concerns on the basis of the earlier Tribunal’s findings that AO had lawfully left Cameroon travelling on his own passport and would not be a person of interest to the Cameroon authorities on his return.
[29] In relation to the phone call to the Cameroon Embassy, Mr Mukasha submitted that the Tribunal made a finding that AO may have telephoned the Embassy but wrongly rejected on credibility grounds his evidence of the discussion including that AO was threatened by the embassy official. Mr Mukusha submitted that the approach by the Tribunal was inconsistent and unreasonable.
[30] Mr Mukusha’s written submission also claimed that in rejecting AO’s credibility the Tribunal ignored the weight of reputable country information (a stand-
alone basis for refugee and complementary protection known as the “Hathaway procedure”6) and breached the Michigan Guidelines on Well-Founded Fear.7
[31] Mr Mukusha submitted that the Tribunal’s erroneous factual findings were of such magnitude that they constituted an error of law and that the Court ought to intervene. The Tribunal ought to have concluded, on the balance of probabilities, that AO risks serious harm if he is returned to Cameroon.
[32] Mr Mukusha accepted that AO had to establish the threshold of seriously arguable case and also that the factual errors were so grave as to constitute error of law. He submitted that the cumulative effect of the errors constituted an error of law. Mr Mukasha also submitted that addressing the errors would assist future decisions of the Tribunal.
Legal principles
Leave to appeal
[33] Under s 245 of the Act, appeals to the High Court are limited to questions of law. They may only be brought with leave. In determining whether to grant leave, the Court 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.8
[34] In Machida v Chief Executive of Immigration New Zealand, the Court of Appeal said:9
[8] In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(a)has importance extending beyond the particular case (which is what “general or public importance” entails); or
6 James C Hathaway and Michelle Foster The Law of Refugee Status (2nd ed, Cambridge University Press, 2015) at 122-161.
7 James C Hathaway “The Michigan Guidelines on Well-Founded Fear” (2005) 26 Mich J Intl L 493.
8 Section 245(3).
9 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.
(b)for some other reason, warrants a decision from the High Court.
Although category (b) is open ended, we agree with a series of decisions in the High Court which have held that 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.10
[35] As Kós J said in Taafi v Minister of Immigration, where the case is based on criticisms of factual findings, the applicant faces a triple hurdle:11
(a)First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court's finding.12
(b)Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i)the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence;13 and
(ii)the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.14
(c)Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound. (Here, the applicant does not seek to argue that the questions he presents meet the requirement of being of general or public importance. Thus he relies on the alternative limb that there is “other reason” why the question should be submitted to the High
10 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19(c)]; Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [8]-[9]; Cao v Immigration and Protection Tribunal [2014] NZHC 259 at [12]; Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [54]-[55]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [9]; Liu v Minister of Business, Innovation & Employment [2014] NZHC 3074 at [9]; Fu v Chief Executive of the Ministry of Business, Innovation & Employment [2014] NZHC 3346 at [23]; CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594 at [78]; Ali v Minister of Immigration [2015] NZHC 1794 at [32]; Chan v Minister of Immigration [2015] NZHC 2036 at [26].
11 Taafi v Minister of Immigration, above n 10, at [19].
12 Faave v Minister of Immigration [1996] 2 NZLR 243 (HC) at 247.
13 Edwards v Bairstow [1956] AC 14 (HL) at 36.
14 Faave v Minister of Immigration, above n 12, at 247.
Court.) In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.
[36] In Minister of Immigration v Joost,15 the Court of Appeal stated that the test under s 245(3) is similar to that applying to second appeals to the Court of Appeal under s 67 of the Judicature Act 1908, citing Waller v Hider.16 In that case, the Court of Appeal had stated that upon a second appeal, the court is not engaged in the general correction of error. Its primary function then is to clarify the law and to determine whether it has been properly construed and applied by the court below.17
[37]In DA (Sri Lanka) v Immigration and Protection Tribunal, Moore J stated:18
An appeal to this Court is not an opportunity to re-litigate the factual findings of the [Tribunal] or the weight attributed to particular evidence, a matter which will seldom amount to an error of law.
[38]In relation to credibility, in AQ v Immigration and Protection Tribunal
Woodhouse J stated:19
Credibility findings, if there is an available foundation for them, are no more open to challenge as errors of law than findings of fact for which there is an evidential foundation.
[39] In AR v Immigration and Protection Tribunal,20 Downs J stated that the approach to credibility assessment in a refugee application context is well settled and referred to the leading cases of Attorney-General (Minister of Immigration) v Tamil X, Jiao v Refugee Status Appeals Authority, and BV v Immigration and Protection Tribunal.21 For present purposes, it is sufficient to summarise that:
15 Minister of Immigration v Joost [2014] NZCA 23 at [5].
16 Waller v Hider [1998] 1 NZLR 412 (CA).
17 At 413.
18 DA (Sri Lanka) v Immigration and Protection Tribunal [2016] NZHC 1545 at [72].
19 AQ v Immigration and Protection Tribunal [2016] NZHC 367 at [34].
20 AR v Immigration and Protection Tribunal [2017] NZHC 2039.
21 Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721; Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA); BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139.
(a)“a legitimate and important consideration will often be whether what the applicant says in evidence relevant to his or her status is credible and plausible in the circumstances”;22 and
(b)“if an applicant’s account for refugee status is credible, the applicant should be given the benefit of the doubt even in the absence of corroborative material”.23
Leave to bring judicial review proceedings
[40] Under s 249 of the Act, judicial review proceedings may also only be brought in respect of a Tribunal decision with the Court’s leave. In determining whether to grant leave, the Court must have regard to:
(a)whether judicial review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal;24 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.25
[41] This is not a case where it is necessary to consider whether this second limb involves the same test as the “any other reason” limb of s 245(3) or could in the judicial review context invoke wider constitutional human rights considerations.26
Refugee status
[42] Section 129(1) of the Act provides that a “person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention”.
22 Attorney-General (Minister of Immigration) v Tamil X, above n 21, at [44].
23 Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) at [28].
24 Section 249(6)(a).
25 Section 249(6)(b).
26 Kumar v Minister of Immigration and Immigration and Protection Tribunal [2016] NZCA 492, [2016] NZAR 1591 at [7].
[43] Article 1 A(2) of the Convention relating to the Status of Refugees provides that a refugee is a person who:27
… 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 a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[44] As the Court of Appeal stated in Refugee and Protection Officer v CV, the test to be applied is:28
(a)Objectively, on the facts as found, what will be the predicament of the claimant if returned to their country of nationality?
(b)Is there a real chance of the claimant being persecuted if returned to their country of nationality? This requires the decision-maker to ask:
(i)What fundamental human right is at issue or what right is the claimant seeking to exercise?
(ii)Is that right breached? Depending on the right at issue, this may require assessment of whether the right in principle permits any restrictions and, if so, whether the restriction at issue is lawful in terms of the relevant limitation or derogation clause.
(iii)If the right is breached, will the breach cause serious harm to the claimant such that it amounts to being persecuted?
(iv)Is the fear of being persecuted well founded?
(v)If yes, is there a Convention reason for that persecution?
[45] For present purposes, the following propositions can also be summarised from the Court of Appeal’s judgment:
(a)The concept of “persecution” is central in claims for refugee status.29
27 Convention relating to the Status of Refugees A/CONF.2/108 (28 July 1951) art 1 A(2).
28 Refugee and Protection Officer v CV [2016] NZCA 520, [2017] 2 NZLR 585 at [82].
29 At [17].
(b)In determining what amounts to persecution, the Tribunal routinely applies what is referred to as the “Hathaway concept” of being persecuted, namely that the alleged persecution involves the sustained or systemic violation of core human rights, demonstrative of a failure of state protection.30
(c)The Court of Appeal agreed with the Tribunal’s observation that there is considerable danger in using concepts designed to elucidate the meaning of Refugee Convention terms as substitutes for the definition of refugee in the Refugee Convention. The concept of a sustained or systemic violation of human rights should not be understood as a test.31
(d)The concept of serious harm also forms a critical and necessary element.32
Protected person status under Convention Against Torture
[46] Section 130 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. Torture has the same meaning as in the Convention Against Torture. Namely where severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for some purpose, such as to illicit a confession or punish someone for an act, with the acquiescence of a person acting in an official capacity.33
Protected person status under ICCPR
[47] Section 131 of the Act provides that a person must be recognised as a protected person in New Zealand under the ICCPR if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or
30 At [21].
31 At [21].
32 At [21]-[22].
33 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
GA Res 39/46 (1984) art 1(1).
cruel treatment if deported from New Zealand. Cruel treatment means cruel, inhuman or degrading treatment or punishment.
Subsequent claims
[48]Section 231 of the Act relevantly provides:
(1)On any appeal or matter, the Tribunal may rely on any finding of credibility or fact—
(a)by the Tribunal in any previous appeal or matter determined by the Tribunal that involved the appellant or affected person;
…
(2)A person may not challenge any finding of credibility or fact that may be relied on by the Tribunal under subsection (1).
Should leave to appeal be granted?
[49] The first question is whether it is seriously arguable that the Tribunal’s factual findings are incorrect. It is convenient to deal first with the telephone conversation with the official at the Cameroon Embassy as the significance of the expert’s opinion evidence depends in part on the underlying facts.
Telephone conversation
[50] The Tribunal’s consideration of the telephone conversation evidence involved an assessment of credibility. The Tribunal noted that there was no other witness to the conversation apart from AO himself. AO was found by the previous Tribunal to be a person of some sophistication and intellect, well able to manage and manipulate evidence in order to support an untrue claim of asylum. The Tribunal said his evidence was therefore to be approached with a degree of caution. However, the Tribunal reminded itself that the fact that AO had told lies about one aspect of his claim did not mean he was necessarily to be taken as lying about another.
[51] Nevertheless, the Tribunal found that AO’s assertion about the substance of his interaction with the embassy official could not be accepted as credible, and concluded that AO had not had the conversation of the kind he asserted. The Tribunal also said AO may well have telephoned the Embassy but there was no credible information
before the Tribunal to establish that any threatening remarks were made, or that there was any indication that he would not be issued with a new travel document on application.
[52] As an initial point, I do not consider there is any real inconsistency between the Tribunal accepting that AO may well have telephoned the Embassy and rejecting his evidence about the substance of the conversation.
[53] I consider the conclusion that AO had not had the conversation of the kind he asserted was open to the Tribunal. I deal with each of the Tribunal’s four reasons for rejecting AO’s evidence:
(a)The Tribunal said AO could not sensibly explain why he volunteered to the embassy official that Immigration New Zealand had his passport and birth certificate.
On its own, the adverse inference from this might be doubted when AO said he disclosed this without thinking. AO was responding to questions. Mr Mukusha submitted the Tribunal’s conclusion involves what he described as linear reasoning and does not address the complexities of the human mind. Put another way, absent a view that AO was clever and manipulative, another reasonable inference might be that in answer to a question AO told the truth about where his passport and birth certificate were without thinking. But the previous Tribunal had found AO clever and manipulative.
(b)The Tribunal said there were discrepancies in AO’s evidence as to the content of the discussion. The Tribunal considered that AO’s written statement had indicated that it was the fact that Immigration New Zealand had retained his passport that had raised the official’s concern, whereas his oral evidence to the Tribunal indicated it was retention of his birth certificate. The Tribunal rejected AO’s explanation for the discrepancy, which was that his statement was not very precise and in fact it was both his passport and birth certificate.
AO’s written statement indicated that the official’s curiosity followed AO’s comment that he had an expired passport and a birth certificate, which were with Immigration New Zealand, and a current work visa. The written statement went on to say that the official wanted to know why AO’s passport would be with Immigration New Zealand, asking if AO was an asylum seeker because according to him that’s the only plausible reason why AO was not in possession of the document. The Tribunal was rightly doubtful about AO’s oral evidence that it was the birth certificate but his explanation on questioning, while perhaps glib, accords with his original statement at least, if not the official’s stated answer.
(c)The Tribunal noted that AO asserted that, when he finally did speak to his parents, they told him that they had been summonsed some two weeks or so after his departure. The Tribunal said AO could not sensibly explain why, if this was the case, the parents had not relayed this information to AO’s friend who claimed to have visited them in their family home. The Tribunal found it was implausible that, if this was true, this very important information would not have been relayed, and that AO’s assertion that they might not have done so because they did not want to worry him was trite.
It is true that AO’s answer implicitly endorsed his friend’s evidence in the first appeal that the friend had visited AO’s parents in about May 2016. The friend’s evidence had already been rejected by the earlier Tribunal on the basis that AO’s parents had moved house in 2009. The Tribunal was right to reject AO’s assertion that his parents might not have mentioned to AO’s friend that they had been summonsed because they did not want to worry him. This no doubt went to AO’s general credibility albeit its relevance to the issue of the telephone discussion is less direct. As the Tribunal had cautioned itself, the fact that AO lied about one aspect of his claim does not necessarily mean he was lying about another.
(d)The Tribunal found it significant that AO was still seeking to introduce new evidence of an implausible nature to bolster his previous (untrue) claim, which further pointed to his willingness to manipulate the proceedings and to say anything which he thinks would advance his position.
In part, this depends on whether the new evidence was implausible for the preceding reasons. In any event, AO was maintaining his account, which had already been rejected, without cogent or persuasive evidence that the first Tribunal was incorrect.
[54] Taking the reasons of the Tribunal together, in circumstances where it had heard AO’s oral evidence in the second de novo appeal hearing, I conclude it was open to the Tribunal to reject AO’s account of the substance of the telephone conversation.
[55] Even if it were seriously arguable that this factual finding by the Tribunal was incorrect, I consider it is not seriously arguable that was an error of law. While a different Tribunal may have believed AO’s account of his telephone conversation, this is not a case where that was the only reasonable conclusion of fact available on the evidence.
[56] Further, I do not consider that the Tribunal’s rejection of AO’s account of his telephone conversation was determinative of the outcome or otherwise of sufficient importance to warrant an appeal. AO had not disclosed his identity to the embassy official. Even if the embassy official had suspected that the person was an asylum seeker, his suspicion was because the person’s passport and birth certificate were with Immigration New Zealand, which would not be the position when AO applied for a travel document or returned to Cameroon. Also, having found AO’s evidence not credible, the Tribunal went on to assess the actual risk faced on the basis of other material evidence (as provided for in the Michigan Guidelines34).
34 James C Hathaway “The Michigan Guidelines on Well Founded Fear” (2005) 26 Mich J Intl L 493 at [12].
[57] It remains necessary to consider whether there was other evidence to support the Tribunal’s ultimate conclusions concerning the risk to AO if he returns to Cameroon.
The expert’s evidence and the risk of persecution
[58]The Tribunal considered the expert’s evidence in detail.
[59] Dealing first with the Cameroon Penal Code, the Tribunal considered, and accepted, the expert’s evidence about the Code provisions. The Tribunal addressed the application of those provisions to the facts of AO’s case as found.
[60] In relation to the expert’s evidence that AO had sufficient grounds to be afraid, the Tribunal characterised this as being based on the contents of AO’s statement as to his conversation with the embassy official. It would be more correct to say, as the Tribunal went on to indicate, that the expert’s opinion was based on AO having unlawfully departed from Cameroon and compromised the image of the country.
[61] The expert also gave evidence that AO was unlikely to be issued with a new passport or travel document and so was at risk of being detained on arrival and interrogated by the authorities.
[62] The expert concluded that AO would suffer from persecution if he returns to Cameroon. It was therefore unsafe for him to return home. People were interrogated as to their means of departure, their mode of stay in the country of destination as well as their circumstances of return. A person known to have claimed asylum abroad could be charged with offences under the Penal Code prohibiting acts or omissions which tarnish the reputation of the country abroad.
[63] In relation to whether AO would be issued with a new passport, the Tribunal stated that the expert’s opinion was predicated to a large extent on his acceptance of the information given to him regarding the conversation, which the Tribunal had found not to be credible. Nevertheless, the Tribunal was concerned that AO will be unable to produce a passport with an exit stamp and acknowledged this “may cause sufficient concern to preclude the issuing of a new passport and the issue of a travel document
only”. In context and given the Tribunal’s later finding, I accept the Tribunal meant here that it considered AO may not be issued with a new passport but would be issued with a travel document/laissez-passer on which to return to Cameroon.
[64] Ms Dowse for the first respondent submitted that was a finding that was open to the Tribunal. She pointed out that there was no suggestion in the first Tribunal decision that AO would not get a travel document. She submitted that the only difference at the second appeal was the evidence of the telephone call, which was rejected.
[65] This requires consideration of whether the expert’s opinion that AO was unlikely to be issued with a travel document was based on the telephone conversation. Ms Dowse acknowledged that the expert gave evidence of his experience based on other cases but submitted that those cases were all based on individual circumstances. She also submitted that his opinion was possibly based on an assumption that AO’s documents remained with Immigration New Zealand whereas she noted that AO will get his passport and birth certificate back.
[66] The important question for the Tribunal was what would AO’s predicament be if returned to Cameroon? This was to be determined objectively, on the facts as found. The expert’s evidence needed to be assessed in that light.
[67] I consider that the expert’s conclusion that AO would suffer from persecution was not based solely on AO’s account (of the telephone conversation or otherwise) but it was based on his understanding that AO had departed Cameroon unlawfully and had claimed asylum.
[68] The Tribunal found that AO had not departed Cameroon unlawfully. In relation to his claimed asylum, the Tribunal concluded there was no credible evidence that the Cameroonian authorities knew or suspected that he had claimed asylum, and nothing about his circumstances would give rise to an adverse view, including that his asylum claims are confidential.
[69] In response to the first respondent’s submission that it was common sense that AO would not disclose that he had claimed asylum, Mr Mukasha replied that AO may do so under interrogation. However, this assumes the authorities have reason to suspect AO had claimed asylum, which it was open to the Tribunal to discount.
[70] It was open to the Tribunal to consider that the expert’s conclusion was inapplicable on the facts as found. Similarly, the other country information evidencing risk to failed asylum seekers returned to Cameroon, which the Tribunal considered, was inapplicable to AO.
[71] The Tribunal dealt with AO’s damaged passport by saying that persons travelling sometimes lose or damage their passports in many different, but innocuous, circumstances and that notwithstanding the findings of the first Tribunal that AO had mutilated his passport to support his false first refugee claim, AO had maintained to the Tribunal in his second appeal that he did not mutilate the passport and he is at liberty to – and no doubt will – provide the Cameroonian authorities with a different explanation for the damage. Explaining the damage assumes AO would provide his damaged passport to the Cameroonian authorities, whereas I note the Tribunal later said that the need for him to travel on a laissez-passer is explained by his loss or damage of a (now-expired in any event) passport. While I would not have said that AO is at liberty to provide a different explanation, I accept it was open to the Tribunal to find that, if the Cameroon authorities become aware of AO’s damaged passport, AO will provide a different explanation. In any event, there is force in the first respondent’s submission that AO’s refugee status cannot be determined on the basis of what he might later say on arrival (to incriminate himself). That would be speculative.
[72] It was for the Tribunal to weigh the evidence. I consider it was open to the Tribunal to find that while AO is likely to be questioned on arrival, nothing about his circumstances would give rise to an adverse view, and thus the evidence, including the country information, did not establish a real chance of serious harm arising from breaches of human rights. There was an available evidential basis for that finding and it is not seriously arguable the finding was actually incorrect. It was not unreasonable in the sense that no reasonable Tribunal could have reached that factual conclusion on
the evidence. I consider there is no seriously arguable error of law in relation to the Tribunal’s factual findings.
[73] More generally, Mr Mukasha also suggested an error of law in challenging the Tribunal’s approach to credibility on the grounds that it ignored the weight of reputable country information under the “Hathaway procedure” and breached the Michigan Guidelines on Well-Founded Fear. In relation to the “Hathaway procedure”, the Tribunal did take into account country information and acknowledged some concerns. Even so, the “Hathaway procedure” and the Michigan Guidelines are reflected in the well settled approach to credibility I referred to briefly at paragraph [39]. The Michigan Guidelines state that an applicant’s testimony may only be deemed not credible on the basis of a specific, cogent concern about its veracity on a significant and substantively relevant point.35 Here, the Tribunal had such a concern. I do not accept the argument that the Tribunal breached the Michigan Guidelines on Well- Founded Fear in rejecting AO’s account. As Moore J said in DA (Sri Lanka), if evidence is not considered credible, the Tribunal is not obliged to accept it.36
[74] I also do not accept the argument that s 137 of the Act provides that credibility findings are secondary to fact findings that go towards whether there is a well-founded fear. Section 137(5) relevantly provides:
To avoid doubt, a refugee and protection officer—
(a)in determining the matters specified in this section, may make findings of credibility or fact…
[75] Finally, I consider this is not a case involving an issue of “general or public importance”. Nor is it an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, as is required to meet the “other reason” requirement in s 245.
[76]Thus, I am satisfied leave to appeal should not be granted.
35 James C Hathaway “The Michigan Guidelines on Well Founded Fear” (2005) 26 Mich J Intl L 493 at [11].
36 DA (Sri Lanka) v Immigration and Protection Tribunal, above n 18, at [86]-[87].
Judicial review
[77] I turn to consider whether the judicial review grounds would involve issues that could not be adequately dealt with in an appeal, as required by s 249(6)(a).
[78] The heart of AO’s complaint concerns errors in the Tribunal’s factual findings said to amount to error of law. If seriously arguable, they could plainly be dealt with in an appeal. The only ground of review pleaded that might be in a different category is breach of natural justice, but no procedural fairness argument was suggested.
[79] Even if there were grounds to grant leave to appeal, I consider this is not a case where the issues go beyond the particular circumstances of the applicant or suggest the existing law should be revisited by the Court, as is required for leave to bring judicial review proceedings under s 249(6)(b).
Result
[80]Both applications for leave are dismissed.
Costs
[81] The first respondent is entitled to costs on a 2B basis, with reasonable disbursements as fixed by the Registrar.
Gault J
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