AP v Immigration and Protection Tribunal
[2016] NZHC 1085
•24 May 2016
ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-2745
CIV-2015-404-2746 [2016] NZHC 1085
UNDER The Immigration Act 2009, ss 245 and 249 IN THE MATTER
of the 1951 Convention Relating to the
Status of Refugees and its 1967 ProtocolBETWEEN
AP Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
REFUGEE AND PROTECTION OFFICER
Second Respondent
Hearing: 17 May 2016 Appearances:
R S Pidgeon for Applicant
R E Savage for Second RespondentJudgment:
24 May 2016
JUDGMENT OF WOODHOUSE H
This judgment was delivered by me on 24 May 2016 at 10.30 am
Pursuant to r 11.5 of the High Court Rules 1985
Registrar/Deputy Registrar
………………………………………….
Solicitors:
Pidgeon Law, Auckland
Meredith Connell, Auckland
AP v THE IMMIGRATION AND PROTECTION TRIBUNAL [2016] NZHC 1085 [24 May 2016]
[1] The applicant, AP, seeks leave to appeal under s 245 of the Immigration Act
2009 (the Act), and to bring judicial review proceedings under s 249 of the Act, in respect of a decision of the first respondent, the Immigration and Protection Tribunal.1 The Tribunal dismissed the applicant’s appeal against a decision of a refugee and protection officer declining to grant refugee status or protected person status to the applicant, a citizen of the Republic of the Philippines.
[2] The present applications are opposed by the second respondent. The Tribunal abides the decision of the Court.
Sections 245 and 249 of the Act
[3] Sections 245 and 249, so far as material are as follows:
245 Appeal to High Court on point of law by leave
(1) Where any party to an appeal to, or matter before, the Tribunal … 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 … 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.
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
(2) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High
1 Re AP(Philippines) [2015] NZIPT 800703.
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.
The factual background
[4] The applicant was born and lived most of his life in the Philippines. He has five living siblings and one who died in 2010. One of his brothers lives in New Zealand and is a New Zealand citizen. His father and the four remaining siblings live in the Philippines, as do the applicant’s wife and children.
[5] The applicant came to New Zealand in 2007 on a work visa. His wife and children remained in the Philippines.
[6] In 2008 the applicant made a claim for refugee status. This was the first of two claims. It is the second claim which has led to the present applications for leave. In the first claim the applicant said that in 2007, in the Philippines, he had been involved in an election campaign for his brother-in-law and this had led to his becoming the target of political rivals. The refugee claim was declined. The applicant did not appeal against that decision. He later admitted that the grounds for his claim were false.
[7] In 2009 the applicant appealed to the Removal Review Authority against a removal order on the grounds that he had married a New Zealand citizen, and that his relationship with her and her children meant that there were exceptional humanitarian circumstances that would make it unjust or unduly harsh for him to be removed from New Zealand. He claimed that he had married the New Zealand
citizen in spite of the fact that he was still married to his Filipino wife. In the present proceedings the applicant admitted that the purported New Zealand marriage was entered into only as a means of staying in New Zealand, that it was not genuine, and that it had ended before March 2010 when the Removal Review Authority issued a decision declining his appeal. The Authority declined the appeal on the grounds now acknowledged by the applicant – that it was not a genuine and stable relationship with the New Zealand citizen.
[8] In early 2014 the applicant lodged his second claim for refugee status together with a claim to be recognised as a protected person. The main contentions of fact advanced by the applicant on the second claim were new. In broad terms they relate to two matters. The first was that in 2005 and 2006, in the Philippines, he had received threatening telephone text messages. He believed they were being sent by a person, who will be referred to as AA. The applicant said AA was part of a powerful political and business family trying to get land owned by the applicant’s father. The applicant said he feared for his safety and for that reason, in 2007, obtained the New Zealand work visa, relocated his wife and children to a distant province where they would be away from risk of harm, and came to New Zealand. The second matter related to the death of the applicant’s brother in early March 2010, a week before the humanitarian appeal was dismissed. His brother was shot by an unidentified person or persons. AP said that he believed that the attack was organised by AA because of the land dispute. Some days after the shooting there were threats to the applicant’s father and other intimidation, and the father and one sister went into hiding for fear of further violence from AA. The applicant said that at some stage between March
2010 and 2012 he spoke to his father by phone and was advised that there had been further threatening texts.
[9] The applicant produced two documents to the Refugee Status Branch which he said corroborated his evidence in relation to the death of his brother and threats to his father and sister. The present applications for leave are founded on a contention that the Tribunal dismissed these documents on an unprincipled basis. I will expand on that below.
[10] One document, on the face of it, is a death certificate for the applicant’s
brother. It is dated 5 March 2010. The other document is typed and dated 22 March
2010. On the face of it, it is from “Philippine [sic] National Police” in the province in which the applicant had been living and where his brother died. It is headed “Threat Assessment”. It records information said to have been provided by one of the deceased’s sisters, and being the sister who the applicant said had gone into hiding with his father. There is a statement that, based on the information recorded, “it is safe to conclude” that the lives of the applicant’s father and his family “are under threat”. There is a signature above a typed name and position held.
The Tribunal decision
[11] At the beginning of its decision the Tribunal identified the principal issue as being whether the claimed risk of harm was credible. After summarising the factual background, a condensed version of which is above, the Tribunal considered the question of credibility. Although the Tribunal described the assessment as being one of credibility, and although that was a central consideration, the assessment is broader than that. It is an overall assessment of the reliability of the evidence put forward by the applicant as well as an assessment of the applicant’s credibility.
[12] The Tribunal’s assessment is a reasonably comprehensive one under five headings. It precedes consideration of the two documents.2 On the present applications Mr Pidgeon, for the applicant, did not challenge the conclusions in this section of the Tribunal’s decision. The essence, using the Tribunal’s sub-headings, was as follows:
(a) Vague and uncorroborated account
The Tribunal noted that there was no evidence of any sort from any member of the applicant’s family, and there was a notable lack of contact between the applicant and members of his family, including his wife and children. This was in spite of clear evidence of ready means of contact through Facebook. Questions directed to these matters left the Tribunal “with a clear impression that the [applicant] was
spontaneously creating the evidence to explain his lack of contact”.
2 Re AP (Philippines) [2015] NZIPT 800703 at [23]–[40].
(b) Family in hiding
The conclusion was that there was no credible evidence that any member of the applicant’s family was in hiding or lived in fear of AA. There was positive evidence that two sisters were making no effort to hide. The sister who the applicant said had gone into hiding in March 2010, maintains a social media account which indicates where she is living. Another sister is married to a prominent politician, based in Manila, and she also maintains an up-to-date media profile recording the city in which she lives. The applicant also gave inconsistent evidence about whether the first sister had moved to the present location because of her fear of AA, and as to when she had moved.
(c) Previous attempts to stay in New Zealand
Under this heading the Tribunal discussed the admitted false claims made on two previous occasions, as outlined earlier. The Tribunal also placed some weight on a conclusion that the applicant could not sensibly explain why he had not earlier disclosed the contentions he was now making of threats by text message in 2005 and
2006. In this context the Tribunal made an observation of importance in relation to one argument now advanced by the applicant:
[35] In assessing these matters, the Tribunal is mindful that past dishonesty in relation to immigration applications and previous refugee claims does not, of itself, mean that the current claim is fraudulent. Nevertheless, the past untruthfulness occurred in the same context in which the appellant now gives evidence, that is, in an appeal which will determine whether or not he is entitled to remain in New Zealand. His previous willingness to advance fraudulent claims in an attempt to manipulate the New Zealand immigration system is therefore relevant to the current appeal and is afforded some weight.
(d) Delay in claiming refugee and protected person status
This was a reference to the fact that there was a delay of approximately four years between the death of the applicant’s brother and his advancing that death as being related to the matters in respect of which the applicant was fearful. The death occurred before the Removal Review Authority delivered its decision on the humanitarian appeal, and the applicant was represented by a lawyer at the time. The Tribunal did not accept his explanation for not raising the matter at the time and took
this as some indidication that the applicant did not genuinely believe that his
brother’s death was related to the applicant’s own stated predicament.
(e) Other inconsistent evidence
In answer to questions from the Tribunal, the applicant initially denied that he had a Facebook account, but later admitted that he did. The Tribunal also found that the applicant had given inconsistent evidence about whether he had personally owned land in the Philippines.
The documents
[13] The Tribunal then considered the documents. As earlier indicated, this is the section of the decision which is at the centre of the present applications for leave. This part of the Tribunal’s decision is the concluding section under the credibility heading. The Tribunal said:
Documents provided to the Refugee Status Branch
[41] The Tribunal has not overlooked the copies of two documents on the file which the appellant says support his account. The first is a certificate of death for [AP’s brother]. The second is a “Threat Assessment” document purported to be written by the [X] province police, recommending protective security for the family. The Tribunal affords these documents no weight. As a number of refugee appeal decisions note, because of the ease with which certain types of documentary evidence can be obtained, findings as to the reliability of documents will usually follow findings with regard to the credibility of witnesses: Refugee Appeal No 72570 (11 November 2002) and Refugee Appeal No 75794 (23 May 2006) at [56].
[42] The appellant is not a credible witness as to his fear of harm from AA, for all the reasons given above. In that context, the documents are given no weight.
[43] For completeness, the Tribunal notes that even if the documents were accepted as being genuine (and they are not), there is nothing in them that specifically supports the appellant’s claim that the family are being targeted by AA. The certificate of death contains many incomplete sections including the section which certifies whether or not the person certifying the death attended the deceased, where the pronouncement was made (the appellant claims he was taken to hospital) and whether the death was a homicide, suicide, accident or other event.
[44] The police “Threat Assessment” refers to the death of [AP’s brother] and subsequent threats but it makes no reference to AA or any other suspected perpetrator. Nor does it indicate that any police investigation into the claimed events had been undertaken. The document therefore represents
nothing more than information that was reported by the appellant’s family. The appellant says that AA was not mentioned to the police because he is a powerful man and would cause further harm if he knew someone had laid a complaint about him. Asked to explain what the purpose of telling the police about the incident was, if not to identify the perpetrator and initiate an investigation, the appellant was unable to say.
[14] In the light of this assessment of the reliability of the evidence and the applicant’s credibility, the Tribunal concluded that the applicant’s claim to be at risk of harm from AA because of the land dispute was untrue.
[15] The Tribunal then proceeded to consider whether the criteria for refugee status, or protected persons status in terms of the 1994 Convention Against Torture or the 1986 International Covenant on Civil and Political Rights had been made out. In respect of each the conclusion was that the claim must fail. This section of the Tribunal’s decision does not require consideration.
Evaluation
[16] In the course of discussion, Mr Pidgeon acknowledged that the heart of both applications, under ss 245 and 249, is that there was fundamental error by the Tribunal in its treatment of the death certificate and the threat assessment document, and this was sufficient to warrant leave under s 249 if not also under s 245.
[17] The expression “fundamental error” is mine, designed to capture the more specific grounds for the applications under the two sections. For example, under s 245 the contention was that the grounds on which the Tribunal decided that no reliance could be placed on the two documents amounted to an error of law. The central contention on the judicial review application was that there was a reviewable error in failing to take the two documents into account and simply setting them aside on the credibility assessment of the applicant.
[18] With due respect to Mr Pidgeon’s carefully constructed submissions, and in which he was faced with a difficult task, the short answer to both applications, dependent as they are on the death certificate and the threat assessment document, is that the Tribunal did not fail to take account of and weigh these two documents. The substance of the applicant’s contentions, both under s 245 and under s 249, is that the
applicant does not agree with the Tribunal’s findings of fact. In the present context these findings include a positive conclusion that the two documents cannot be relied on and, in any event, do not corroborate the applicant’s otherwise unsupported assertions, and being his third version of events.
[19] The passage of the decision dealing with the documents, earlier quoted, clearly records that the Tribunal assessed the documents on two independent bases. The first involved the legitimate use of judicial knowledge that documents can be forged, with this implicitly underpinned by country knowledge. But it was not a conclusion in isolation; that is to say, it was not founded simply on the basis that documents can be forged. It was coupled with the earlier and carefully reasoned conclusions relating to the applicant’s credibility and the reliability of the evidence he was advancing without any supporting evidence other than the two documents.
[20] The separate assessment is at [43]–[44] of the Tribunal decision. It does not depend on knowledge of the possibility of forgery, and earlier Tribunal decisions. The Tribunal proceeded to assess the documents on their merits. On this alternative assessment, the Tribunal concluded, in effect, that they did not provide any reliable corroboration of the evidence that otherwise came solely from the applicant, and which evidence the Tribunal placed no weight on for the substantial number of reasons provided.
[21] The applicant’s challenge is to the Tribunal’s findings of fact. There is no reasonably arguable case that the findings were actually incorrect. Having regard to all of the material put before the Court on the present applications, including evidence that was not before the Tribunal,3 the decision is not open to challenge at this elementary level. That means that there was no error that can be elevated to an error of law in respect of a finding of fact. The absence of such an error disposes of
the s 249 application for judicial review as well as the s 245 appeal application.
3 The new evidence before this Court on the applications consisted of some country evidence and a document indicating that AA was standing for mayor in a city which appears to be the same city in which the applicant’s brother died. The respondent did not formally consent to this evidence being admitted, and there has been no application for its admission, but no objection was raised to my having regard to it. It does not advance the case for the applicant in any material way.
[22] In Taafi v Minister of Immigration, Kos J summarised the triple hurdle faced by an applicant for leave to appeal. 4 This summary of the principles has been followed in a substantial number of High Court decisions. The third hurdle discussed by the Judge relates to the need for the applicant to demonstrate that the question is one that should go to the High Court for its decision because of its general or public importance or for any other reason. I make some brief comment on
this below. The first and second hurdles are those of present relevance, because they are directed to the basic question as to when apparent findings of fact by a Tribunal will constitute errors of law. The Judge said:
[19] In the present case, which is based wholly upon criticisms of factual findings, the applicant faces a triple hurdle:
(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.
(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.
(Footnotes omitted.)
[23] The draft statement of claim for judicial review sets out three grounds under conventional judicial review headings – irrelevant considerations, failure to take account and unreasonableness. Mr Pidgeon made clear that the primary ground is the one headed “Failure to take Account”. Central to that contention is the following pleading:
In arriving at its decision to dismiss the plaintiff’s application for a subsequent claim, the defendant failed to take into account the threat assessment and the death certificate provided to the Tribunal.
4 Taafi v Minister of Immigration [2013] NZAR 1037 (HC).
[24] The pleading is demonstrably incorrect. The substance of this ground, and of the other two grounds, is a contention that the Tribunal was wrong in its findings of fact and conclusions relating to the reliability of the applicant’s evidence and his credibility. These are not matters for judicial review.5
[25] The applicant’s proposition relating to the Tribunal’s treatment of the two documents can be viewed in a slightly different way; this is that the Tribunal declined to accept this evidence and that amounted to an appealable or reviewable error. That is a proposition which does not stand scrutiny. The Court of Appeal recently discussed this in JO v Chief Executive of the Ministry of Business,
Innovation and Employment, as follows:6
[19] It seems JO may be under the misapprehension that the RPO and Tribunal were obliged to accept the evidence he placed before them and erred in law in rejecting it. That is not at all the position. The correct position was explained with admirable clarity by Fisher J in Auckland City Council v Wotherspoon:7
A Court may not make factual findings without any evidentiary foundation but that notion does not operate in reverse. A Court can always reject evidence. It can decline to find that facts have been affirmatively established, having regard to credibility, weight and permissible inferences. … But it is not possible for the prosecution to demonstrate to an appellate Court as a question of law that the Court at first instance was deficient in declining to accept primary facts alleged by the prosecution merely on the ground that the Court had before it evidence which, had the Court chosen to accept it, would have supported those facts. There is in law no answer to the point that the Court at first instance had the power to reject that evidence. The Court cannot conjure up evidence which is not there but it can not be forced to accept the evidence put before it.
[26] Although those conclusions are sufficient to dismiss the applications, I will briefly discuss some other points advanced by Mr Pidgeon.
[27] It was submitted that the Tribunal failed to follow the Michigan Guidelines on Well-founded Fear. This failure was said to constitute an error of law for the
purposes of an appeal and pleaded in support of the judicial review ground of failure
5 See G A v Refugee Status Appeals Authority HC Auckland CIV-2005-404-1520, 1 March 2006 at [37]; Faavae v Minister of Immigration HC Auckland M1434/96, 9 May 1997 at 11-12; Berryman v Solicitor-General [2008] 2 NZLR 772 (HC) at [84].
6 JO v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZCA
482.
7 Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 30-31.
to take account of the death certificate and the threat assessment.8 The draft statement of claim for judicial review pleaded the following from the Michigan guidelines:
To determine whether an applicant faces a significant risk of being persecuted, all material evidence from whatever source must be considered with care, and in context. Equivalent attention must be given to all forms of material evidence, with a decision on the relative weight to be assigned to different forms of evidence made on the basis of the relative veracity and cogency of the evidence adduced.
[28] This is no more than a guideline for assessment of evidence. It is useful but it has no binding force. In any event, and the reason I have quoted it, the manner in which the Tribunal weighed all of evidence put before it is not inconsistent with these guidelines.
[29] In respect of both applications, it was submitted that the Tribunal’s approach was “out of step with internationally accepted processes, such as the “Hathaway approach”, referred to in BZ (Sri Lanka) v IPT. 9 This is to the effect that the Tribunal must still be satisfied that the applicant is not at risk based on independent country information irrespective of credibility findings. This does not assist the applicant. This illustrates a feature of the applicant’s arguments – particular matters were viewed in isolation. Here the implicit proposition is that a failure to address country information as part of the risk assessment demonstrates error, either an error of law for the purposes of an appeal or one susceptible to judicial review. But these
matters cannot be assessed in a vacuum. The argument here is not dissimilar to the argument about the two documents.
[30] The ultimate test, on the application for refugee status, involved two questions, as affirmed in a number of cases:10 (1) Objectively, on the facts as found,
8 The guidelines are discussed in Refugee Appeal 75692 and 75693 [2007] NZAR 307.
9 See BZ (Sri Lanka) v Immigration and Protection Tribunal [2015] NZHC 2883 at [44]–[45]. In BZ, Whata J referred to a submission from counsel that the Tribunal had not followed the “Hathaway approach”. This is discussed in James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd ed, Cambridge University Press, 2015) at 159-160.
10 The test was first applied in Refugee Appeal No 70074/96 RSA, 17/9/96 at [15]. Subsequent
decisions applying the test include: Re AF (Ghana) [2015] NZIPT 800796; Re AB (Australia) [2015] NZIPT 800451 at [58]; and Re AP (Iran) [2011] NZIPT 800012 at [46]. The Court of Appeal also noted that the Tribunal had correctly applied the two stage test in Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173. The High Court has also accepted the two stage test in CV v Immigration and Protection
is there a real chance of the applicant’s being persecuted if returned to the country of nationality? (2) If the answer is “yes”, is there a Convention reason for that persecution? The Tribunal applied that test. It applied that test after reaching its conclusions on the reliability of the applicant’s evidence and the credibility of the applicant. That evidence, said to demonstrate risk of harm from AA because of the land dispute, was rejected. The Tribunal concluded there was no evidence of risk of harm.
[31] General country evidence from the Philippines could not have any countervailing effect unless that country evidence was specific and had some nexus of a probative nature to the contentions advanced by the applicant. The country evidence the applicant seeks to rely on has no such effect because there is no nexus of a probative nature. There is the evidence (put forward only on this present application and not to the Tribunal) indicating that AA is a politician. Mr Pidgeon placed some weight on this but, it does not advance the applicant’s case. There is some evidence that AA is a politician. There is evidence from the applicant that he was threatened by AA. The first piece of evidence does not support the second piece of evidence.
[32] There is the evidence of the death of the applicant’s brother. If the certificate is accepted as genuine, which was the Tribunal’s alternative analysis, there is evidence that the applicant’s brother died from gun shot wounds. But the certificate, standing alone, would prove no more than that. Its possible probative weight in relation to the applicant’s contentions about threats to him from AA has to be weighed by reference to all of the evidence and the conclusions reached in respect of that evidence. That is what the Tribunal did.
[33] Mr Pidgeon’s submissions also addressed the criteria in s 245(3) and s 249(6)(b): a question of law, or judicial review issues, of general or public importance, or ones which, “for any other reason”, ought to be submitted to the
High Court. The focus, in the end, was on “any other reason”. This was a tacit
Tribunal [2015] NZHC 510, [2015] NZAR 594 at [52]; O v Refugee Status Appeals Authority HC Auckland CIV 2003-404-5724, 16 March 2004 at [50]; Naremanov v Refugee Status Appeals Authority HC Wellington CP354/98, 7 April 2000 at [22]; and K v Refugee Status Appeals Authority HC Auckland M1586-SW99, 22 February 2000 at [4].
acknowledgement that none of the matters raised were of general or public importance. And the focus was also substantially confined to any other reason to bring a judicial review proceeding, and not also any other reason to bring an appeal on a point of law.
[34] In this context, Mr Pidgeon placed some emphasis on a recent decision of Palmer J in R M v Immigration and Protection Tribunal.11 In R M, Palmer J dismissed applications for leave to appeal and bring judicial proceedings, but in doing so expressed opinions that the “any other reason” criteria in s 245 and s 249 are not to be read as narrowly as suggested in some other cases.12 The Judge summarised his opinions as follows:
[2] I hold that the test for granting leave to appeal includes judicial discretion to grant leave in the interests of justice. I also hold that the court’s exercise of its discretion to grant leave to bring judicial review must be consistent with the New Zealand Bill of Rights Act 1990 … which protects the right to judicial review.
[35] Taafi v Minister of Immigration,13 one of the decisions discussed by Palmer J, and in respect of which he expressed some reservation, was recently affirmed by the Court of Appeal in Machida v Chief Executive of Immigration of New Zealand.14 It is unnecessary to consider the scope of the Court of Appeal’s decision. This is because Mr Pidgeon relied on the observations in R M in support of an argument that leave may be granted to address a substantial miscarriage of justice. But the applicant has not identified any matter giving rise to a concern that there may have been a substantial miscarriage of justice.
[36] Mr Pidgeon submitted that the Tribunal’s conclusion on the documents was effectively pre-determined by the prior credibility findings. Pre-determination could be a ground for judicial review, (although it was not pleaded). However, there is no arguable basis for an argument of pre-determination. The Tribunal expressly
directed itself to the effect that a previous lie does not of itself demonstrate a current
11 R M v Immigration and Protection Tribunal [2016] NZHC 735.
12 Referring to LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [2] and [33]– [34]; Taafi v Minister of Immigration above n 4 at [19]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [6] and [9].
13 Taafi v Minister of Immigration, above n 4.
14 Machida v Chief Executive of Immigration of New Zealand [2016] NZCA 162 at [8].
lie. This was at [35] of the Tribunal decision, earlier recorded. But this did not mean that the Tribunal was in some way required to ignore the fact that the applicant, on his own admission, had lied twice and in material ways. The weight to be attached to this was a matter for the Tribunal. There is no arguable appealable error of law and or reviewable error founded on predetermination.
[37] Under s 245, I am satisfied that the applicant’s case does not point to any error of law. Under s 249, I am satisfied that the applicant’s case does not raise any issue which, by reason of general or public importance, or for any other reason, the issue ought to be submitted to the High Court for review.
[38] For these various reasons both applications are dismissed.
Woodhouse J
6
4
1