AP (Chile) v Refugee and Protection Officer

[2023] NZHC 2424

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2228

[2023] NZHC 2424

UNDER

Section 245 of the Immigration Act 2009

AND IN THE MATTER

of an application for leave to appeal against a decision of the Immigration and Protection Tribunal

BETWEEN

AP (CHILE)

Applicant

AND

REFUGEE AND PROTECTION OFFICER

Respondent

(Continued next page)

Hearing:	27 July 2023
Counsel:	P Sundar and S Dalley for Applicant F Nizam for First Respondent
Judgment:	31 August 2023

JUDGMENT OF MUIR J

This judgment was delivered by me on 31 August 2023 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           D & S Law, Auckland

Luke Cunningham & Clere, Auckland

AP (CHILE) v REFUGEE AND PROTECTION OFFICER [2023] NZHC 2424 [31 August 2023]

CIV-2022-404-2285

UNDERSection 249 of the Immigration Act 2009 and the Judicial Review Procedure Act 2016

AND IN THE MATTER       of an appeal against a decision of the

Immigration and Protection Tribunal

BETWEEN  AP (CHILE)

Applicant

ANDREFUGEE AND PROTECTION OFFICER

First Respondent

ANDIMMIGRATION AND PROTECTION TRIBUNAL

Second Respondent

Introduction

[1]    AP (Chile) (the applicant) seeks leave to appeal and leave to bring judicial review proceedings against a decision of the Immigration and Protection Tribunal (the Tribunal) dismissing an appeal against a decision of the Refugee Status Unit (RSU) declining his claim for refugee or protected person status.1 He does so under ss 245 and 249 of the Immigration Act 2009 (the Act).

[2]    No challenge is made to the Tribunal’s finding that objectively, on the facts as found, the applicant was not at “real risk” of being exposed to “serious harm” if returned to Chile and that he was not therefore a refugee for the purposes of art 1(A)(2) of the 1951 Convention Relating to the Status of Refugees (the Refugee Convention).

[3]    The applications raise what is ultimately quite a narrow point. The applicant says that when the Tribunal subsequently came to consider whether he was a protected person under  the  1966  International  Covenant  on  Civil  and  Political  Rights  (the ICCPR),2 it simply adopted its previous findings of credibility and fact on the Refugee Convention claim and concluded that he was not in danger of being subject to “cruel treatment” within the terms of the ICCPR when, in fact, as that concept is properly defined, the treatment which the Tribunal had already acknowledged he had been exposed to should have been held to establish an ICCPR breach. At the heart of this submission is the proposition that the treatment endured by the applicant may be “degrading” and therefore within the meaning of “cruel treatment” under the ICCPR, even if it is insufficiently serious or pervasive to give rise to a real chance that he would be exposed to serious harm if returned to Chile.

Background

[4]    The applicant is a Chilean citizen in his mid-fifties and has a wife and family in Chile. He has a sister who is permanently resident in Wellington, New Zealand.

[5]    In the 1980’s, during the regime of President Augusto Pinochet, the applicant was a student activist. He helped organise an anti-regime student strike, as a result of

1      AP (Chile) [2022] NZIPT 801873.

2      The relevant terms of which are replicated in s 131 of the Immigration Act 2009.

which he was detained (for a period of approximately eight hours) and strip-searched. He subsequently joined the membership of the Party for Democracy, which had, as its objective, President Pinochet’s removal. During that period, he worked as a bookseller and briefly for an insurance company. He also married and had a family.

[6]    From about 1992, the applicant began work as a street vendor selling small personal items such as toothbrushes and umbrellas. In the succeeding years, that was the primary source of income for his family, although he also undertook university study, obtaining a bachelor’s degree in communication and journalism and worked from time to time as a media advisor. During the period  January  2007  to  December 2007, the applicant stayed with his sister in New Zealand. On his return to Chile, he resumed work as a street vendor, combining it with other activities.

[7]    His work caused him to travel throughout the country. At times and in various places he was subject to rough handling by local authorities. I will refer subsequently to the Tribunal’s findings in that respect. Nevertheless, he continued to ply his trade and support his family accordingly.

[8]    In 2017, the applicant received an inheritance from his father’s estate with which he and his wife purchased their first home — an apartment in the La Leonera neighbourhood in Chiguayante. Shortly after, he observed one of the tenants in the building selling drugs. He and his wife organised, with other occupants in the building, the installation of a security gate but this had no long-term impact on the problem. He claimed that as a result of these efforts, he and his family came to be targeted by violent drug gangs.

[9]    In August 2019, the applicant returned to New Zealand. Two months later, civil unrest broke out in Chile and the government declared a state of emergency. On 19 November 2019, he lodged a claim for refugee and/or protected person status with the RSU. Later that same year, he attended three protests in New Zealand against the Chilean government and appeared on a Nelson radio programme discussing constitutional developments in Chile.

[10]   His application to the RSU was based exclusively on his treatment as a student activist, political activities in New Zealand and fear of serious harm from local drug cartels were he to return. No reference was made to his street vending activities or the response of local authorities to these. He says that this was because he did not want it thought by New Zealand immigration authorities that he had been involved in any form of commercial activity in Chile which might be regarded as illegitimate or illegal.

[11]   Having been declined refugee and protected person status by the RSU, he appealed to the Tribunal. He was represented, as is the case on the present applications, by counsel, Ms Sundar. She candidly acknowledges that it was not until approximately two hours into the Tribunal hearing that the flow of evidence began to support an alternative claim, namely, that her client’s commercial activities in Chile exposed him to a real risk of serious harm in terms of the Refugee Convention. She pivoted accordingly and again candidly acknowledges that this became the central plank of the Tribunal appeal.

[12]   The focus of the Tribunal hearing was on whether the applicant faced a “real chance” of “serious harm” within the terms of the Refugee Convention. As a result, Ms Sundar made no submissions in respect of the requirement on the Tribunal, under s 198 of the Act, to determine (sequentially after findings under the Refugee Convention and the 1984 Convention Against Torture) whether the applicant was a protected person under the ICCPR. Unsurprisingly, in that context, the Tribunal allocated three short paragraphs only of its 170-paragraph judgment to its ICCPR assessment.

[13]   As indicated, the applicant does not challenge the finding that the treatment to which he was subject as a street vendor does not qualify for the purposes of the Refugee Convention. He says, however, that it constitutes “degrading treatment” for the purposes of the ICCPR.

[14]   None of the Tribunal’s findings in respect of perceived threats by local drug cartels or the potential consequences of Pinochet era political activity or New Zealand political engagement are in issue on the applications before me.

The Tribunal’s findings in respect of the applicant’s treatment as a street vendor

[15]   Before the Tribunal, evidence of the applicant’s treatment by authorities was given  by  the  applicant  himself,  his  wife,  and  two  fellow  street  vendors, Messrs S and B.

[16]   His wife said that he had been rounded up by the police “more than once” and recalled a particular occasion on which he was “chased by the police” and “beaten up while he was handcuffed”.

[17]   Mr S said that in some parts of Chile it was possible to obtain a permit to work on the streets but in others not, and the Authorities’ attention was often more directed to the applicant because he was older and would often intervene to help others. Mr S recorded an occasion “many years ago” when a policeman presented a gun to he and the applicant and they were required to “throw” themselves to the ground. Mr S says that they were then taken to the police unit where they were strip-searched and where the police tried to “hit” him.3 On another occasion (unidentified by date), when the applicant was shopping with his wife, Mr S says he observed the police trying “to arrest [the applicant]” despite the applicant not “doing anything”.

[18]   Mr B gave generalised evidence about street vendors, saying that “we suffered a lot … we would be hit or [the police] [would] take our products, there was a lot of mistreatment, verbal abuse and physical abuse”. He said, “sometimes [the police] would detain us, they [would] hit us … we were oppressed … and sometimes we … manage[d] to run away but [the applicant] would always argue about the injustice that was happening”.

[19]   In his evidence, the applicant referred to one occasion when he was detained for selling his products in Concepción and when his wife witnessed him being “beaten up by three or four of the cops”. When the Tribunal sought further details about this particular allegation, the applicant became distressed and was thereafter more comfortable describing his mistreatment in general terms.

3      Mr S does not reference any similar attempted assault on the applicant and says that because of the applicant’s intervention the police did not actually hit Mr S.

[20]   The applicant also called evidence from a registered psychologist, the late  Mr Allan Wotherspoon. In his report, Mr Wotherspoon referred to an incident described by the applicant “not previously divulged due to embarrassment and loss of dignity” in which the applicant’s wife was made to watch as he and others were “stripped naked, suspended from bars attached inside the roof of a police truck and slapped around his face”. Before the Tribunal, no direct evidence about this incident was given by either the applicant or his wife.

[21]   After a very lengthy review of this evidence and of all of the articles and literature relating to the treatment of itinerant traders in Chile, the Tribunal concluded that the appellant’s experience as a street vendor had interfered with a number of his rights, in particular, his right to personal security and his right to express his opinions, however:4

[149] 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.

[22]   On the basis of this finding (and the Tribunal’s associated findings in relation to the applicant’s political activities and endeavours to stop the sale of drugs within his apartment building), the Tribunal concluded that the applicant was not entitled to be recognised as a refugee under the Refugee Convention and s 129(1) of the Act. Because it considered there was no well-founded fear of being persecuted, in the accepted sense of a “real chance” of being exposed to “serious harm”, it did not consider it necessary to address whether there was a Refugee Convention reason for the persecution.5

The Tribunal’s ICCPR assessment

[23]As indicated, this was limited to three paragraphs only:

4      AP (Chile)¸above n 1.

5      At [156]–[157].

The ICCPR

[164]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.

[165]By virtue of section 131(5) 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:

(b)the impact on the person of the inability of a country to provide health or medical care, or health or medical care of a particular type or quality, is not to be treated as arbitrary deprivation of life or cruel treatment.

Assessment of the Claim under the ICCPR

[166]    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. 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.

[24]The Tribunal accordingly concluded:

[167] For the foregoing reasons, the Tribunal finds the appellant:

…

(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.

Approach to the applications

[25]   An application for leave to appeal a decision of the Tribunal to this Court is limited to errors of law and is governed by s 245 of the Act:

245 Appeal to High Court on point of law by leave

(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

…

(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made 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.

…

[26]   An application for leave to bring judicial review proceedings is, in turn, governed by s 249:

249 Restriction on judicial review of matters within Tribunal’s jurisdiction

…

(3)Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

…

(6)In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made 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]   In Minister of Immigration v Jooste,6 the Court of Appeal observed that the test for determining whether an issue was one of “general or public importance or for any other reason ought to be submitted” was similar to that applied to second appeals to the Court of Appeal under s 67 of the Judicature Act 1908.7 That test was set out in Waller v Hider:8

Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[28]   I accept the respondent’s submission that in the immigration context, the following observation in LMN v Immigration and Protection Tribunal New Zealand applies:9

… factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” for his appeal to be submitted to this Court for determination.

[29]Where the alleged error of law is premised on a challenge to factual findings,

Kós J has described applicants as facing a “triple hurdle”:10

(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.

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

7 At [5].

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

9      LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [2]. This approach has been subsequently affirmed or applied in a number of decisions, see for example: BY (China) v Immigration and Protection Tribunal [2016] NZHC 2244, [2016] NZAR 1595 at [27]; CV (Bangladesh) v Refugee and Protection Officer [2020] NZHC 862 at [9]; and DV (Pakistan) v Refugee and Protection Officer [2020] NZHC 3346 at [18].

10 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19] (footnotes omitted).

(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; 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.

(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 …

[30]   I accept the respondent’s submission that the weight attributable to the evidence “is always a matter for the decision-maker, unless the weighting of the factors considered is so out of kilter that the decision is unreasonable”,11 and that value judgments made by the Tribunal in balancing and weighing the competing factors in any given case will seldom amount to an error of law.12

The applicant’s case

[31]Ms Sundar’s submissions are admirably focused. Essentially, she says that:

(a)The Tribunal did not engage in any material way with the concept of “cruel treatment”.

(b)In New Zealand there is no “settled law” in that respect.

(c)Decisions of the European Court of Human Rights and the Court of Justice of the European Union indicate that it is reasonably open to say that conduct which does not give rise to a “real chance” of “serious

11 LMN v Immigration and Protection Tribunal, above at n 9, at [30].

12  LMN v Immigration and Protection Tribunal, above at n 9, at [28] citing X v Chief Executive of   the Ministry of Business, Innovation and Employment [2013] NZHC 642, [2013] NZAR 513. See also Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9].

harm” may, nevertheless, give rise to substantial grounds for believing an applicant would be in danger of “degrading treatment” if deported.

(d)Based on these authorities, it is seriously arguable that the “rough handling and minor assaults” which the Tribunal acknowledged the applicant had from time to time been subjected to, constitute sufficiently degrading treatment resulting in a real risk of internal inconsistency within the Tribunal decision.

(e)In analysing whether there are substantial grounds for believing the applicant would be in danger of degrading treatment if returned to Chile, the Court is entitled to take into account characteristics particular to the individual on the basis that behaviour which may not be degrading to one person may be to another. In that context, she emphasises the evidence of Mr Wotherspoon who identified “some features of Post-Traumatic Stress Disorder" in the applicant’s presentation.

(f)The application for leave to appeal and/or application to bring judicial review should be granted because there is a real risk that the Tribunal simply conflated the tests under the Refugee Convention and the ICCPR and accordingly erred in concluding that the applicant was not in danger of cruel treatment if returned to Chile.

Discussion

[32]   As the Tribunal acknowledged in AC (Syria),13 although the refugee and protected person jurisdictions under the Act share a common framework of analysis, it would be a mistake to regard them as essentially identical. It described “important differences which contribute to a highly textured protection landscape under the Act as a whole”.14 In terms of the ICCPR jurisdiction, for example, it pointed out that there is no requirement that a claimant must establish a nexus between the harm they

13     AC (Syria) [2011] NZIPT 800035.

14 At [87].

fear and their civil or political status. It is sufficient that the qualifying harm exists.15 The Tribunal acknowledged that without the requirement for such a nexus, a “far wider range of persons” were potentially admitted into the protected persons jurisdiction than the refugee jurisdiction.16

[33]It also noted that:17

… although it is true that Parliament has chosen to tack on to its ICCPR derived protected person jurisdiction the Refugee Convention’s Article 1F exclusion clauses, unlike with the Refugee Convention, the application of the exclusion clause to a particular claimant in the protected person context does not effectively lock them out of the jurisdiction …

[34]   In terms of the metes and bounds of the “degrading treatment” reference in    s 131(6), the Tribunal is yet to embark on any comprehensive review. There is, in fact, only very limited authority in New Zealand on that subject. In GU (India),18 the Tribunal recognised that what constitutes degrading conduct is claimant-specific and as such may engage a level of subjectivity not present in the Refugee Convention test (i.e., whether objectively there is a real chance of serious harm). It said:

[128] As a result, and especially with respect to Article 7 of the ICCPR, the Tribunal reminds itself that what constitutes degrading treatment depends on the characteristics of the individual. Behaviour which may not have reached the required level of severity for a robust and healthy adult individual may nevertheless constitute sufficiently serious treatment for a child or a person with other vulnerabilities.

[35]   This observation may have potential implications for the applicant to the extent Dr Wotherspoon did identify him as exhibiting at least some elements of PTSD.

[36]   In Vogel v Attorney-General,19 Lang J looked to European jurisprudence for assistance in considering the meaning of degrading treatment under s 9 of the New Zealand Bill of Rights Act 1990. In that case, a Visiting Justice had imposed a

15 At [89].

16 At [89].

17 At [90].

18     GU (India) [2019] NZIPT 801485-487.

19 Vogel v Attorney-General [2012] NZHC 269, [2012] NZAR 154. The decision was overturned by the Court of Appeal in Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67, however, the High Court’s finding that the six day period of confinement in excess of the statutory maximum did not amount to “torture, or to cruel, degrading or disproportionately severe treatment or punishment” in terms of s 9 NZBORA, was upheld: at [65]–[67].

sentence of cell confinement on a prisoner, which was in excess of the term permitted under statute, and the prison had subsequently breached regulations relating to the management of cell confinement. His Honour said:

[87]      As with cruelty, the term “degrading” has not been the subject of analysis in New Zealand case law. The [European Court of Human Rights] has held that ill-treatment is degrading where it:

… humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking the individual’s moral and physical resistance …

[88]      In this context, Mr Vogel must establish that the treatment gravely humiliated or debased him, whether or not that was its purpose.

[89]      Degrading punishment involves more than the usual element of humiliation which follows from the very fact of being convicted and punished by a court; whether it has been established depends on an assessment of all circumstances, but particularly the nature and context of the punishment itself and the manner and method of its execution.

[90]      Moreover, in the context of punishment administered in a disciplinary context, the level of degradation must exceed what society might consider appropriate in that context.

(footnotes omitted)

[37]   Ms Sundar submits that Lang J’s reference in this context to treatment which “gravely” humiliated or debased the applicant represents a higher threshold than that identified by decisions of either the European Court of Human Rights or the Court of Justice of the European Union.

[38]   She refers in particular to the decision of the European Court of Human Rights in Bouyid v Belgium.20 In that case, the Grand Chamber held that a single slap to the face by a law enforcement officer on an individual under his control met the threshold of degrading treatment within the terms of the European Convention on Human Rights.21

[39]   Ms Sundar submits that on the totality of the evidence before the Tribunal, including that of at least one strip search (albeit many years ago), the incident referred

20     Bouyid v Belgium (2015) 62 EHRR 32 (Grand Chamber, ECHR).

21     At [103]–[104].

to in Mr Wotherspoon’s report and confirmation by the applicant and his witnesses of frequent rough treatment by enforcement personnel, it is strongly arguable that, on a proper construction of what constitutes degrading treatment, the applicant had endured degrading treatment and had demonstrated substantial grounds for believing he would continue to be subject to it if returned. In oral submissions she went further and said that, on the basis of the Tribunal’s own findings, namely, that the applicant had been subjected to rough handling and minor assaults of an “episodic” nature, the danger of degrading treatment was in fact made out.

[40]   I reiterate that in the way the case was developed before it and without the benefit of any submission in the terms now advanced, it would be wrong to criticise the Tribunal for having dealt with the ICCPR as economically as it did. Nevertheless, it was required to make a determination as to whether the applicant was a protected person under the ICCPR and, in that context, to make an assessment of the relevant facts against the relevant legal test.

[41]   At one level the Tribunal’s approach is entirely orthodox. It sets out the statutory test and then makes a finding of fact:22

… 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.

[42]   Adopting a Taafi analysis, the applicant would be required to show not only that there was a seriously arguable case that this finding of fact was wrong but would need to establish that it was based on no evidence and/or contradicted another finding and that the errors were so significant that a properly directed Tribunal may have reached a different decision. Then, finally, he would need to satisfy the Court that the matter was one of general or public importance.

[43]   In this case, however, the problem is potentially more fundamental, namely, that 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

22     AP (Chile)¸above n 1, at [166].

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. As such, I am prepared to find that, within the terms of s 245 of the Act, the applicant’s dissatisfaction with the determination of the Tribunal is based on a seriously arguable question of law.

[44]   I am also satisfied that the issue raised on the potential appeal is one of general or public importance. I reach that conclusion 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.

[45]I identify as the relevant question on appeal:

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.

[46]   In so doing, I do not to purport to limit in any way this Court’s power on appeal under r 20.19(1) of the High Court Rules 2016. It is always preferable for this Court, sitting in its appeal jurisdiction, to have the benefit of fully reasoned analysis from the Tribunal or Court from which the appeal is taken. That is especially so in a case such as this where the key issue — the meaning of “degrading treatment” within the terms of the ICCPR — is one to which the Tribunal can be expected to bring specialist assessment skills. In the unusual circumstances of this case, that specialist knowledge and assessment will not occur without a direction of this Court under r 20.19(1)(b)(i). If the parties were to decide that this was appropriate, the matter could be referred back to the Tribunal accordingly. In that context, the parties could seek the Court’s assistance in crafting a tailored reference under r 20.19(1)(b)(ii).

[47]In the interim, however, I direct that the matter track as a standard appeal.

[48]   For completeness, I dismiss the application under s 249 for leave to bring judicial review proceedings on the basis that the issues I have identified in this judgment are, within the terms of s 249(6)(a), capable of being adequately dealt with in an appeal against the determination of the Tribunal.

Result

[49]   I grant leave to appeal the decision of the Tribunal on the basis set out in this judgment.

[50]I decline the application for leave to bring judicial review proceedings.

Costs

[51]   I have not been addressed on costs. If these cannot be agreed by the parties, memoranda may be filed. Provisionally, there appear to me to be reasons for suggesting costs might appropriately lie where they fall on the leave applications. Although I have granted leave, the position in which the respondent has found itself is ultimately attributable to the way in which the case has hitherto been advanced by the applicant.

Muir J