AR (Samoa) v A Refugee and Protection Officer
[2016] NZHC 1108
•25 May 2016
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANTS AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2016-485-92 [2016] NZHC 1108
BETWEEN AR (SAMOA)
Applicants
AND
A REFUGEE AND PROTECTION OFFICER
Respondent
CIV 2016-485-93
BETWEEN AR (SAMOA) Applicants
ANDA REFUGEE AND PROTECTION OFFICER
First Respondent
ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL Second Respondent
Hearing: 23 May 2016 Counsel:
N R Woods and K A Partington for Applicants
N E Bailey and M J R Conway for First RespondentJudgment:
25 May 2016
JUDGMENT OF SIMON FRANCE J
AR (SAMOA) v A REFUGEE AND PROTECTION OFFICER [2016] NZHC 1108 [25 May 2016]
Introduction
[1] The applicants are a married couple and their two teenage daughters who are Samoan nationals (the AR family) living in New Zealand but who are subject to a deportation order. They unsuccessfully applied for refugee or protected person status. They unsuccessfully appealed that decision to the Immigration and Protection Tribunal.1 They now apply under s 245(1) of the Immigration Act 2009 for leave to appeal, and under s 249 of the Act for leave to bring judicial review proceedings.
[2] Section 245 of the Act limits the appeal to questions of law and requires the Court to have regard to whether that question is one of general or public importance, or some other reason exists which means it ought to be submitted to this Court.2
Section 249 likewise requires a Court to have regard to whether the issues that would arise on the review are matters of general or public importance, or ought for any other reason to be submitted to the High Court. A further mandatory consideration is whether the review issues can be adequately dealt with on an appeal.
[3] The present applications suffer from the failure to set out as questions the questions of law concerning which leave is sought. Likewise the intended grounds of review are not specifically identified or particularised. A general proposition, namely the failure to consider (or consider sufficiently or give sufficient weight to) cultural issues is identified, but more is required in order to allow proper consideration of the statutory criteria and also analysis of whether the issues properly arise on the facts.
Facts
[4] Mr and Mrs AR grew up in the same village. Mr AR lived with his mother and step-father. Mr and Mrs AR eventually married and had a family of five children. The two eldest daughters came to New Zealand in 2000 and were formally
adopted by Mrs AR’s sister. The balance of the family followed in 2005.
1 AR (Samoa) [2016] NZIPT 800905–908.
2 Some conflict exists as to the scope of the alternative basis for granting leave – see LMN v Immigration and Protection Tribunal [2013] NZHC 2077, Taafi v Minister of Immigration [2013] NZAR 1037 and RM v Immigration and Protection Tribunal [2016] NZHC 735. Its scope is not in issue here.
[5] One of the AR daughters who was adopted in New Zealand commenced a relationship with a man who traced back to Mr AR’s step-father. In Samoan culture the relationship is considered incestuous. The daughter had a child but did not marry the man. Some years later she became engaged to another member of Mr AR’s step-father’s family. This relationship is viewed in the same way.
[6] The daughter’s actions have brought shame on the AR family. There have over the years been angry responses, threats of violence and the family has been ostracised. This culminated in the village banishing the AR family. They are not welcome there and cannot access the family land (which is still occupied by family members who have disowned them). The evidence is that the effect of this type of banishment is to remove the AR family from the village consciousness, not only physically but also in mental, spiritual and genealogical terms.
[7] Notice of this banishment was received by Mr AR in February 2015. Its impact was to give permanency to many of the consequences the AR family had been experiencing for some time.
Tribunal decision
[8] The Tribunal accepted the evidence concerning the practical effect of the village actions. The family would continue to be ostracised. They could not return to their village, and could not claim kinship. They would be required to live in Apia.
[9] Concerning a risk of physical harm, the Tribunal considered the evidence did not establish any real risk beyond the speculative. It noted the time that had elapsed, and the various opportunities that had arisen where no violence ensued. There is no intended challenge to this conclusion.
[10] Concerning living in Apia, the Tribunal accepted this would be difficult, and that finding accommodation and employment would be challenging. However, there would be no specific obstacles to the AR family. They would have the same access to facilities and employment as anyone else with their means, qualifications and skills.
[11] It was not considered there was any real risk of psychological harm. It was accepted that the AR family might feel isolated and ashamed of the circumstances brought upon them by their daughter’s actions. The Tribunal went on to observe the practice of banishment is lawful only in prescribed circumstances and following a proper process, and is not otherwise condoned by the State. Such psychological impacts the family would feel, such as shame, are a product of their own views on things, and of “culturally imposed mores” over which the Samoan state had no responsibility.
Discussion
[12] The applicants’ primary contention is that the Tribunal has not addressed the ARs’ right to enjoy their culture as guaranteed by Art 15 of the International Covenant of Economic and Social Rights. Allied to this is the proposition that incorrect emphasis has been placed on the fact that the State rejects banishment. It is submitted that the fact that the impact and harms to be experienced by the family are sourced in customary practices rather than State conduct does not negate the existence of the risk of harm, and that accordingly the Tribunal has erred.
[13] Conceptually there are matters of public interest underlying the applicants’ concerns. However, the facts of the case do not give rise to these issues. The applicants have no realistic prospect of establishing a well-founded fear of being persecuted. The reality is that relocation to Samoa would only make more immediate the consequences they have been experiencing whilst living in New Zealand. Whilst presence in Apia might increase the isolation factors, and feelings of shame, there is no basis to consider the consequences would amount to serious harm, or anything near it.
[14] The Tribunal did not err in its analysis of the State’s position, or in the relevance of that. It is clear that banishment, other than in limited legally recognised circumstances and after a proper process, is not lawful and the Court of Appeal of Samoa has said so. This position might not force the village to welcome the ARs or to treat them differently, but it is plain it can have at least financial consequences if they are denied access to land they would otherwise be entitled to enjoy. Mr AR
says he does not consider recourse to the courts would be an appropriate course to follow. That is of course a choice he may make, but it is a choice nevertheless.
[15] I do not consider the applicants have identified any issue that is seriously arguable on the facts. The right to cultural life is not denied, and the Tribunal did not deny the realities of the banishment even whilst identifying its illegality. The applicant cannot demonstrate how in the particular case this right will be impeached by relocation to Samoa in a way that could give rise to a finding of a well-founded fear of persecution. The legal issues that they wished to advance are therefore hypothetical.
Conclusion
[16] The applications are declined. If costs cannot be agreed, memoranda may be filed.
Simon France J
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