AR v Immigration and Protection Officer
[2017] NZHC 132
•10 February 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2015-404-3142 [2017] NZHC 132
UNDER Section 249 of the Immigration Act 2009
and the Judicature Amendment Act 1972
IN THE MATTER
of the 1951 Convention Relating to the
Status of Refugees and its 1967 ProtocolBETWEEN
AR Applicant
AND
IMMIGRATION AND PROTECTION OFFICER
First Respondent
REFUGEE AND PROTECTION OFFICER
Second Resopondent
CIV 2015-404-3143
UNDER Section 245 of the Immigration Act 2009
IN THE MATTER of the 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol
BETWEEN AR Applicant
ANDREFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 8 December 2015 Appearances:
Applicant in person, with D Lewis, McKenzie Friend
S M Earl for Second RespondentJudgment:
10 February 2017
JUDGMENT OF DUFFY J
AR v IMMIGRATION AND PROTECTION OFFICER [2017] NZHC 132 [10 February 2017]
This judgment was delivered by me on 10 February 2017 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Meredith Connell, Auckland
[1] Mr AR is an Indian citizen who seeks leave to appeal and to judicially review a decision of the first respondent (the Tribunal) refusing to grant him refugee status.1
[2] The Tribunal found, on points material to Mr AR’s application for refugee status, that he was not credible and accordingly the application was declined. Mr AR has the difficult task of persuading this Court that the Tribunal’s reasoning is so badly flawed that it satisfies the tests for granting leave to appeal and to judicially review its decision.2
[3] Because Mr AR was self-represented, albeit with the assistance of a McKenzie friend, I obtained a transcript of the hearing before the Tribunal. I read and considered the evidence that was before the Tribunal with a view to seeing if there had been any apparent error that would support the grant of leave.
The Tribunal’s decision
[4] In its decision the Tribunal predominantly focuses upon the issue of Mr AR’s credibility. His claims regarding his circumstances in India are set out in some detail. Those claims can be summarised as follows.
Basis of claim for refugee and/or protected person status
[5] Mr AR is a Shi’a Muslim. In 1994, he joined a Muslim party known as Tanzeem Allah-o-Akbar (“TAA”), which participated in parliamentary elections. As a result of his membership in the TAA, he was subjected to violence from extremist Hindu groups. In August 1996, Mr AR travelled to Australia, where he remained until May 2006. During that time, Mr AR made an application for refugee status but that was declined. Mr AR claims that on his return to India he was detained by authorities, questioned and beaten. He subsequently went into hiding, fearing harm from extremist Hindu groups as a result of his previous membership in the TAA.
[6] Mr AR says that while he was in hiding, he came into contact with persons linked to a hawala (money couriering) system led by the leaders of the Shiv Sena
1 Re BY (India) [2015] NZIPT 800819.
2 See ss 245 and 249 of the Immigration Act 2009.
Party, an extremist Hindu organisation. He became a courier for the organisation, delivering money to various addresses around Mumbai and other regions of India.
[7] In February 2008, Mr AR travelled to the United Kingdom. While he resided there, Mr AR worked in a number of jobs, sometimes illegally. He was convicted of a number of offences and spent five months in prison due to his illegal status. Mr AR again sought refugee status but was denied. He was deported back to India in May 2011. Mr AR claims that he was again detained and beaten by the authorities.
[8] After his release, Mr AR resumed work for the hawala. In January 2014, he was asked to make a large delivery – approximately NZ$2 million. However, he was attacked in the course of his delivery and the money was stolen. Mr AR says that the leader of the hawala did not believe that the money had been stolen and instead threatened to kill Mr AR. He went into hiding for a number of months until his family purchased an airline ticket for him to come to New Zealand.
[9] Mr AR gave evidence that, since the robbery, his family members had been under constant threat and had been assaulted by individuals associated with the hawala. Mr AR provided a copy of one formal police complaint that had been registered following one of those attacks. He said that his family had visited the police on other occasions but that the police had refused to register the complaints.
[10] Finally, Mr AR claimed that he had been subjected to discrimination throughout his lifetime as a consequence of his faith.
The Tribunal findings
[11] The Tribunal did not consider Mr AR’s account of events to be credible. It described his evidence in relation to core aspects of his claim as “vague, mobile, inconsistent and contradictory.”3 In particular, the Tribunal identified a raft of instances where Mr AR’s testimony did not match that which he had given before the Refugee Status Branch. It also noted that Mr AR had been dishonest when asked
about any previous convictions in his confirmation of claim form for refugee and
3 At [32].
protected person status and found that “[t]he fact that the appellant willingly gave false evidence in relation to these matters is a factor in the overall assessment of his credibility.”4
[12] The Tribunal accepted that Mr AR suffered from sleeplessness and depression; that his memory of the relevant events would be affected by the lapse of time; and that stressful life events, such as a major robbery, might negatively affect his recall. However, the Tribunal found that the “myriad inconsistencies, vagueness and mobility” meant that Mr AR’s “account, at its core, suffer[ed] from a lack of veracity.”5
[13] On that basis, the Tribunal found that there was no credible evidence establishing that Mr AR was at risk of serious harm if returned to India and therefore that his claim for refugee status was not made out. Similarly, the Tribunal found that there were no substantial grounds for believing that Mr AR would be in danger of being subject to torture or that he would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.6
[14] The Tribunal therefore dismissed Mr AR’s appeal.
Application for leave to appeal against the Tribunal decision
[15] Mr AR seeks leave to appeal against the decision of the Tribunal on the basis that the Tribunal erred in its assessment of his credibility and in the weight which it afforded to that assessment. Mr AR also alleges that the Tribunal was required to consider the consequences of refoulement but that it failed to do so.
[16] In relation to the first point, Mr AR claims that the Tribunal gave insufficient weight to the detrimental effects of extreme stress, sleeplessness and depression on Mr AR’s ability to remember relevant details about his past and instead focused on
irrelevant minor inconsistencies in his evidence. Mr AR further contends that there
4 At [48].
5 At [55].
6 At [70] and [73].
was corroborating evidence, such as his previous conduct in fleeing from India, which was sufficient to support his account of events.
[17] In relation to the second point, Mr AR claims that credibility findings are not relevant to a determination regarding refugee status under the Act and that questions of credibility should only arise where there is no corroborating evidence to support a claim for refugee or protected person status.
[18] Applications for leave to appeal against a decision of the Tribunal are
governed by s 245 of the Immigration Act 2009 (“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.
(4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and 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.
…
[19] In its recent decision Machida v Chief Executive of Immigration New
Zealand, the Court of Appeal summarised the approach to s 245 as follows:7
[8] In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(a) has importance extending beyond the particular case (which
is what “general or public importance” entails); or
(b) for some other reason, warrants a decision from the High
Court.
[20] General or public importance means that the issues which are raised must “go beyond the particular circumstances of the applicant” or “raise an issue that suggests the existing law should be revisited by the Court.”8 In Allada v Immigration and Protection Tribunal, the High Court further observed that where a claim has “little or no prospect of success”, the category (b) threshold is unlikely to be met.9 While s
245(3) provides that leave to appeal may be granted “for any other reason”, this
provision has been narrowly interpreted so that:10
… it would only be in exceptional cases, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement [would] be met.
[21] On the basis of his initial submissions, I did not consider that Mr AR had raised any seriously arguable question of law. There is no doubt that the Tribunal is entitled to consider matters of credibility when determining whether a person should be granted refugee or protected person status.11 In relation to the issue of refoulement, the Tribunal explicitly considered whether Mr AR would be in danger of being subjected to torture, or to arbitrary deprivation of life or cruel treatment if
he were returned to India. Although it did not use the language of refoulement, it could not be said that the Tribunal failed to take international non-refoulement
obligations into account.
7 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR
721.
8 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32].
9 Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [36].
10 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19(c)]; see also Machida v Chief
Executive of Immigration New Zealand, above n 7, at [8].
11 Attorney-General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 at [44].
[22] Insofar as Mr AR seeks to challenge the particular credibility findings made against him, these would ordinarily be matters of fact rather than law. There are a number of requirements which must be met in order to convert a question of fact into a question of law. In Taafi v Minister of Immigration, Kós J described the requirements as follows:12
(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.
(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. ...
[23] The Tribunal decision clearly sets out the grounds upon which the Tribunal made its findings regarding Mr AR’s credibility. There is an evidential basis to support those findings. Thus Mr AR cannot meet the first requirement of Taafi.
[24] However, at the resumed hearing before me Mr AR developed a more nuanced argument for the granting of leave. He submitted that when hearing a claim for refugee status, the Tribunal should tailor its credibility assessment to the unique circumstances of each claim. He contends that the Tribunal has failed to do so in his
case and hence it has erred in law.
12 At [19].
[25] Mr AR argues that when a claimant’s account supporting his or her claim for refugee status is plausible and not inconsistent with country information, which he asserts to be the case here, the Tribunal should be “agnostic and open to evidence”. It should not start from a point of active disbelief which can only be overcome by a perfectly consistent story. He submits that a “credibility assessment should not be a search for contradictions, with any inconsistency immediately leading to a negative conclusion.” Mr AR draws support for this submission from a passage in The Law of Refugee Status as well as a passage from Guo v Minister for Immigration and Ethnic
Affairs.13 From this he argues that the Tribunal erred in law by focussing too much
on the inconsistencies in his account rather than because it found the account to be implausible.14
[26] I note that on the related topic of when there are adverse credibility findings against a refugee claimant as well as evidence independent of the claimant this Court has found that notwithstanding the adverse credibility findings, the Tribunal must proceed to consider the independent evidence.15 Thus, in refugee cases findings against a claimant’s honesty will not be a bar to the claim’s success. This is understandable because the life experience of persons who have well founded fears of persecution may lead to them giving false evidence in the hope of bettering their chances of having their claims for refugee status recognised, rather than because the
claims are a fabrication. Similarly, incoherent testimony may be explained by their experiences to date, rather than because they are telling a poorly fabricated lie.
[27] To my knowledge the New Zealand courts have not considered in great detail how credibility assessments should be made in claims for refugee status, and whether those assessments require a particular approach that differs from that adopted in other legal proceedings.16 This seems to me to raise a question of law of
general and public importance. In terms of credibility assessments in general I do
13 James C Hathaway and Michelle Foster The Law of Refugee Status (2nd ed, Cambridge University Press, Cambridge, 2014) at 148; and Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194.
14 See Re BY (India), above n 1, at [55].
15 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at
[55] and authorities cited therein.
16 In BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139 at [13]– [16], the Court of Appeal approved of the Tribunal’s credibility assessment and adverted to an academic article on the subject, but did not give any express guidance as to the process that should be used.
not think the Tribunal’s assessment can be faulted.17 However, until the standard for such assessments in refugee cases has been identified, whether the Tribunal has adequately assessed Mr AR’s credibility cannot be known. Nor do I consider that a decision on a leave application is the appropriate vehicle to perform this identification for the first time, particularly when Mr AR is self-represented. The legal questions in issue here are important as they impact on how well New Zealand discharges its obligations under the relevant international conventions.18
Accordingly, they merit the attention of a substantive hearing.
[28] I am satisfied that to this extent Mr AR has identified a question of law that meets the requirements for the grant of leave to appeal.
Application for leave to commence judicial review proceedings
[29] Mr AR seeks leave to commence judicial review proceedings in respect of the Tribunal decision on the grounds of illegality, procedural impropriety and unreasonableness; and further alleges that the Tribunal took irrelevant considerations into account and failed to take relevant considerations into account in making its decision. For the most part, the grounds of review represent another challenge to the adverse credibility findings made against Mr AR and the weight that the Tribunal placed upon those findings in making its decision.
[30] One point which is unique to Mr AR’s application is the allegation that Mr AR suffered a breach of natural justice due to the short time frame available to him within which to collect evidence. Mr AR says that when he was finally able to obtain the relevant information from his family, the evidence was rejected by the Refugee Status Board on the basis that there had been no change of circumstances.
[31] Applications for leave to commence judicial review proceedings are governed by s 249 of the Act:
17 See JO v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZCA
482 at [19], citing Fisher J in Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at
88–89 on the ability of a court at first instance to reject evidence. The principle is equally applicable to a judicial tribunal.
18 Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July
1951, entered into force 22 April 1954); Protocol Relating to the Status of Refugees 606 UNTS
267 (opened for signature 31 January 1967, entered into force 4 October 1967).
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 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.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
…
[32] Courts have generally interpreted the requirements of s 249(6)(b) similarly to s 245(3) of the Act. In SK v Immigration and Protection Tribunal, Faire J noted the introduction of the leave requirement in s 249 “indicates a deliberate intention to limit the scope of judicial review from immigration decisions”,19 and therefore “[t]he grounds for granting leave are narrow.”20 However in a recent decision,21 Palmer J suggested that such an approach might be unjustifiably narrow in light of s 27(2) of
the New Zealand Bill of Rights Act 1990, which provides:
19 SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5].
20 At [6], citing LMN v Immigration and Protection Tribunal New Zealand, above n 8, at [2].
21 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [42]–[51].
Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
[33] However, Palmer J acknowledged that this consideration would not require the courts to give leave to commence judicial review proceedings in hopeless cases, since there was a “demonstrable justification in conserving public resources and in not delaying execution of immigration law in the public interest.”22
[34] For the same reasons as I found leave to appeal should be granted, I find leave to bring judicial review proceedings should also be granted. Here there is overlap between the appeal and the judicial review grounds. As was identified in AI (Somalia) v Immigration and Protection Tribunal,23 the flexibility of relief options available in judicial review may be of assistance. Section 27 of the New Zealand Bill of Rights Act and the fact that this Court has a supervisory jurisdiction over inferior tribunals also favour the granting of leave. Accordingly, I grant leave for
judicial review on this ground.
[35] In relation to the claim for breach of natural justice, I note that Mr AR arrived in New Zealand in August 2014. He made a claim for refugee and/or protected person status on 26 August 2014, which was rejected on 18 December 2014. Mr AR subsequently appeared before the Tribunal until November 2015. At that stage, Mr
AR had the opportunity to file relevant evidence, and in fact chose to do so.24 More
than a year had then lapsed between Mr AR’s arrival in New Zealand and the hearing before the Tribunal. Even if Mr AR’s claims regarding the difficulty of obtaining evidence are true, there was more than sufficient time for Mr AR to gather the necessary evidence to support his claim. Therefore, I do not consider that this aspect of Mr AR’s application raises any issues of general or public importance. Leave to
judicially review on this ground is refused.
22 At [51].
23 AI (Somalia) v Immigration and Protection Tribunal, above n 15, at [62].
24 See Immigration Act, s 189(3).
Application to adduce further evidence
[36] Mr AR also makes an application to adduce further evidence. The shape of the appeal and the judicial review has changed somewhat. This is understandable as Mr AR is self-represented with the assistance of a McKenzie friend. I have trouble seeing how a Court determining these proceedings would be assisted by further evidence from Mr AR. However, this issue was not addressed at the second hearing and it should not be foreclosed. I consider the Court that hears and determines the appeal and the judicial review will be best equipped to determine if the application to adduce further evidence should be granted.
Conclusion
[37] In summary I find that the proposed appeal and judicial review proceedings raise a seriously arguable question of law regarding how assessments of credibility are to be made in refugee claims, which warrants the grant of leave to bring proceedings.
[38] The application to adduce further evidence is to be determined by the trial
Judge.
Costs
[39] Mr AR is self-represented. In general self-represented persons are not entitled to awards of costs.25 My preliminary view is that there is nothing regarding these proceedings that warrants treating Mr AR as an exception to the general rule. Leave is granted to him to address that topic if he wishes to do so. Any submissions must be filed and served within 10 working days and the second respondent has 10
working days from being served to file submissions in response.
25 See Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400 at [162];
and Re Collier (a bankrupt) [1996] 2 NZLR 438 at 439–440.
6
6
0