AP (Chile) v Refugee and Protection Officer

[2024] NZHC 1408

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2272

[2024] NZHC 1408

UNDER

Section 245 of the Immigration Act 2009

IN THE MATTER

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

BETWEEN

AP (CHILE)

Appellant

AND

REFUGEE AND PROTECTION OFFICER

Respondent

Hearing:

29 May 2024

Appearances:

P P Sundar for appellant

S M Perera and NNA El-Sanjak for respondent

Date of judgment:

31 May 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 31 May 2024 at 12.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

D & S Law, Auckland Crown Law, Wellington

AP (CHILE) v REFUGEE AND PROTECTION OFFICER [2024] NZHC 1408 [31 May 2024]

[1]    Under s 245 of the Immigration Act 2009 (the Act), the appellant, AP (Chile), appeals on a question of law arising from the 21 September 2022 determination of the Immigration and Protection Tribunal (the Tribunal), 1 dismissing the appellant’s appeal against a decision of a refugee and protection officer declining to grant him refugee status or protected person status.

Background

[2]    The appellant is a Chilean national, who had been working in various cities there as a street vendor. The Tribunal found he was not a refugee under s 129 or a protected person under either ss 130 or 131.2 It noted the appellant claimed under each head:3

… to have a well-founded fear of being persecuted or to be in danger of being subjected to another qualifying form of harm because of his activism against drugs, by members of Chilean police and security forces because he opposes the current government, and by the police for speaking up for the rights of street vendors.

[3]    The Tribunal accepted the appellant “faced more harassment and mistreatment than other street vendors” by reason of his advocacy for their rights,4 and “rough handling, minor assaults and periods of detention were a regular feature” of his work.5 It found “the appellant’s risk of serious harm from drug gangs falls well below the real chance threshold”,6 and:7

… higher profile political activism is well in the appellant’s past, and there is no realistic prospect that it would expose him to a real risk of harm from the authorities now

to conclude on the evidence before it:8

… the appellant’s experience as a street vendor [has] interfered with a number of his rights, in particular his right to personal security and his right to express his opinions to the police that he and his fellow street vendor should able to ply their trade. While the police enforcement of regulations around street commerce do not of themselves amount to an interference with his right to

1      AP (Chile) [2022] NZIPT 801873.

2 At [167].

3 At [2].

4 At [109].

5 At [110].

6 At [143].

7 At [144].

8      At [148]–[149].

work, any use of detention and physical violence against him for speaking up is an impermissible limit on his right to freedom to hold and impart opinions.

These interferences, while frequent over time are episodic in nature, only occurring in some cities and only by some officers on some occasions. The Tribunal accepts that the appellant has from time to time been subjected to rough handling and minor assaults. However, despite this, the appellant has been able to earn a living over the many years as a street vendor. Further, there is insufficient evidence to show that any assault he suffered while working as a street vendor resulted in serious harm.

[4]    Accordingly, the Tribunal was satisfied “in Chile, the appellant does not have a well-founded fear of being persecuted”,9 and therefore was “not entitled to be recognised as a refugee under the Refugee Convention and section 129 of the Act”.10 On that same evidence, the Tribunal found:11

and:12

… 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 and section 130 of the Act

… he is not in danger of being arbitrarily deprived of life or subjected to cruel treatment. Accordingly, the appellant is not recognised as a protected person in New Zealand under the International Covenant on Civil and Political Rights within the meaning of section 131(1) of the Act.

[5]    On the appellant’s application for leave to appeal to this Court, Muir J observed it was seriously arguable:13

… in the way the case developed, the Tribunal has inadvertently made its factual assessment against an incorrect legal test. Although the statutory test is set out in the decision, there is no engagement with the meaning of “degrading treatment” under the ICCPR and how this might differ from the real chance of serious harm test which dominates its previous discussion. Inevitably, therefore, the question arises whether application of the two tests may have been inadvertently conflated when it is at least seriously arguable that the treatment which the Tribunal accepted had occurred in Chile, may satisfy one test but not the other.

9 At [156].

10 At [159].

11 At [162].

12 At [166].

13     AP (Chile) v Refugee and Protection Officer [2023] NZHC 2424 at [43].

[6]    In granting leave, Muir J determined the question of law arising in the proceeding to be:14

Whether on the facts found by the Tribunal and summarised in para [149] of its decision dated 21 September 2022, there were substantial grounds for believing that AP (Chile) would be in danger of being subjected to cruel treatment as defined in s 131(6) of the Immigration Act 2009 and, in particular, “degrading treatment” as that concept is properly defined.

Such the Judge considered a qualifying issue of general or public importance:15

… given the paucity of New Zealand authority on what constitutes “degrading treatment” for the purposes of the ICCPR; the fact that all appeals under s 198 of the Act involve mandatory consideration of an applicant’s protected persons status; and the fact that, for these reasons, the issues raised on the applicant’s intended appeal resonate well beyond his own case.

Arguments on appeal

[7]    For the appellant, Pooja Sundar argues the Tribunal erred in its conclusion he only was “subjected to rough handling and minor assaults”. Rather, the appellant’s evidence of regularly being detained, stripped naked and beaten by police should have been accepted by the Tribunal as constituting “degrading treatment or punishment” for the purpose of s 131. For the respondent, Sonali Perera responds the appellant is held to the Tribunal’s factual findings, which suffice to establish no danger of the appellant being subjected to “cruel treatment” if deported from New Zealand in terms of s 131.

Approach to appeal

[8]    My powers on appeal are “strictly circumscribed” by s 245(4), limited to determining the question of law for which leave is given and having no power to determine a question for which leave has not been given.16 I:17

… may then—

(a)    confirm the decision in respect of which the appeal has been brought; or

(b)    remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or

(c)    make such other orders in relation to the matter as it thinks fit.

14 At [45].

15 At [44].

16     Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [27].

17     Immigration Act 2009, s 245(4); H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [44].

Discussion

[9]    Leave to appeal was granted “on the facts found by the Tribunal”. I have no power to determine if those facts are correct. To the extent the appellant contends the Tribunal to have erred in its fact-finding, I disregard the contention. But I apprehend the appellant instead contends the facts found by the Tribunal do not preclude a finding of, and should have been taken to establish, his ‘cruel treatment’ in terms of s 131.

[10]   Sections 129, 130 and 131 each provide a basis for determining claims for recognition as a refugee or protected person under Part 5 of the Act. The purpose of Part 5 is:18

… to provide a statutory basis for the system by which New Zealand—

(a)    determines to whom it has obligations under the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees; and

(b)    codifies certain obligations, and determines to whom it has these obligations, under—

(i)the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

(ii)the International Covenant on Civil and Political Rights.

[11]   For each claim accepted for consideration,19 s 137 requires a refugee and protection officer to:

… determine, in the following order:

(a)   whether to recognise the claimant as a refugee on the ground set out in section 129; and

(b)  whether to recognise the claimant as a protected person on the ground set out in section 130; and

(c)   whether to recognise the claimant as a protected person on the ground set out in section 131.

[12]   Section 129(1) requires recognition of a person as a refugee “if … a refugee within the meaning of the Refugee Convention”. The ‘Refugee Convention’ “means the United Nations Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951”, and “includes the Protocol Relating to the Status of Refugees done at

18     Immigration Act, s 124.

19     Section 134.

New York on 31 January 1967”.20 Taken together with the omission specified at the Protocol’s art I.2, the Convention relevantly defines “refugee” as meaning any person who:21

… 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.

[13]In WK v Refugee and Protection Officer,22 the Court of Appeal explained:23

The approach to be taken to whether a person is a refugee is a matter of settled law. The issue turns on whether objectively there is a real chance of the claimant being persecuted if returned to the country of his or her nationality for reasons of race, religion, nationality, or membership of a particular social group or political opinion. The concept of “being persecuted” equates to sustained or systemic violation of core human rights, demonstrative of a failure of state protection. It means the infliction of serious harm, coupled with the absence of state protection.

[14]   Section 130(1) requires recognition of a person:

… 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”,24 being:25

… 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.

20     Section 4, definition of “Refugee Convention”.

21     Schedule 1, art 1A.(2).

22     WK v Refugee and Protection Officer [2018] NZCA 258, [2019] 2 NZLR 223.

23 At [7], citing Teitiota  v Chief Executive of Ministry of Business, Innovation and Employment  [2014] NZCA 173, [2014] NZAR 688 at [14], [15] and [21] and BV v Immigration and Protection Tribunal [2014] NZHC 283, [2014] NZAR 415 at [7].

24 Section 130(5).

25 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987), art 1(1).

Section 130(2) prohibits such recognition if the person is “able to access meaningful domestic protection in his or her country … of nationality”, and s 130(3) requires the decision-maker to “take into account all relevant considerations” in determining if there are substantial grounds for the subs (1) belief.

[15]Section 131(1) requires recognition of a person:

… 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.

‘Cruel treatment’ means “cruel, inhuman, or degrading treatment or punishment”.26 Again, s 131(2) prohibits such recognition if the person is “able to access meaningful domestic protection in his or her country … of nationality”, and s 131(3) requires the decision-maker to “take into account all relevant considerations” in determining if there are substantial grounds for the subs (1) belief. Notably, “treatment inherent in or incidental to lawful sanctions is not to be treated as … cruel treatment, unless the sanctions are imposed in disregard of accepted international standards”.27

[16]In DV (Pakistan) v Refugee Protection Officer,28 Hinton J held:29

The test under s 130 differs from that under s 129. It is narrower in that the range of relevant harms that might qualify under s 130 is narrower, being concerned only with the risk of the applicant being subjected to torture, specifically torture as defined in the Convention Against Torture, if deported. But it is wider in that, under s 129, the persecution must be perpetrated for a reason identified in the Refugee Convention. Under s 130, torture perpetrated for any reason is a relevant consideration.

However, both sections require the same threshold level of harm. As the Tribunal noted in AC Syria (in respect of protected person claims under the ICCPR, but I consider the comments are equally applicable here):

If the anticipated harm arising from the facts as found cannot be appropriately categorised as cruel, inhuman, or degrading treatment or punishment for the purposes of determining a claim for refugee status, it cannot be so characterised for purposes of determining a claim for protected person status arising from the same facts on the basis that a lower threshold of harm is involved.

26     Immigration Act, s 131(6).

27     Section 131(5)(a).

28     DV (Pakistan) v Refugee and Protection Officer [2020] NZHC 3346.

29     At [28]–[29], citing AC (Syria) [2011] NZIPT 800035 at [78].

[17]   In CA (Turkey) v Refugee and Protection Officer,30 Becroft J observed of Hinton J’s determination:31

It would seem that the upshot of DV (Pakistan) is that the Tribunal is entitled to rely on its assessment of whether an appellant faces serious harm in the refugee enquiry when determining whether an appellant is a protected person. However, there is a very recent decision of this Court, which may leave open that the test for a protected person is different from the test in establishing refugee status: see AP (Chile) v Refugee and Protection Officer.32

[18]   The tests for each ‘persecution’, ‘torture’ or ‘cruel treatment’ to obtain relief respectively under ss 129, 130 or 131 differ in their terms. ‘Serious harm’ is neither a statutory phrase in those terms nor a synonym for that requisite ‘persecution’, ‘torture’ or ‘cruel treatment’. Rather, each section is founded on risk of some contended threshold harm sufficient to engage human rights assessment: essentially, to qualify for protection under refugee or complementary humanitarian standards, there must be risk of serious detriment to some fundamental human right.33 Sections 130 and 131’s “substantial grounds for believing” an applicant “in danger” in itself offers no material basis for distinction from s 129’s “well-founded fear”. Counsel accepted the threshold otherwise was the same under each section. If so, it remains for the decision-maker to determine if that harm is eligibly persecutory, torturous or cruel in human rights terms. Without threshold serious harm, there is nothing on which the assessment may bite.34

[19]   In the present case, the Tribunal plainly set itself first and correctly the task of identifying a “qualifying form of harm”.35 It found none.36 On those facts (to which the appeal is held), it concluded — again, correctly — there was nothing to assess for protection under ss 129, 130 and 131.37 I accordingly confirm the Tribunal’s decision.

30 CA (Turkey) v Refugee and Protection Officer [2024] NZHC 1133.

31 At [28], n 7.

32 AP (Chile) v Refugee and Protection Officer, above n 13.

33 See, for example, WK v Refugee and Protection Officer, above n 22, at [7]; and Refugee and Protection Officer v CV [2016] NZCA 520, [2017] 2 NZLR 585 at [21]–[22], citing DS (Iran) [2016] NZIPT 800788 at [126]–[127] and [181]. Similarly — in relation to s 9 of the New Zealand Bill of Rights Act 1990, which provides “[e]veryone has the right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment” — see Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [91]–[92], [170]–[171], [278], [338] and [383].

34 See, for example, Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107 at [12].

35     AP (Chile), above n 1, at [2].

36     At [3] above.

37     At [4] above.

Result

[20]   The appeal is dismissed.

—Jagose J