AR v Immigration and Protection Tribunal
[2017] NZHC 2039
•24 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV2015-404-003142 [2017] NZHC 2039
UNDER Section 247 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 TRIBUNAL
First Respondent
REFUGEE AND PROTECTION OFFICER
Second Respondent
CIV-2015-404-003143
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 Appellant
ANDREFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 15 August 2017 Appearances:
Applicant in person with D Lewis, McKenzie friend
PJ Andrew as amicus curiae
MJ Hodge and JD Simpson for Second RespondentJudgment:
24 August 2017
JUDGMENT OF DOWNS J
AR v IMMIGRATION AND PROTECTION TRIBUNAL [2017] NZHC 2039 [24 August 2017]
This judgment was delivered by me on Thursday, 24 August 2017 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
The case
[1] AR was declined refugee status and protected person status. He appealed to the Immigration and Protection Tribunal. The Tribunal dismissed the appeal.1 It concluded AR’s claim was not credible. AR sought leave to appeal and bring judicial review proceedings.2 Duffy J did “not think the Tribunal’s assessment can be faulted”.3 However, the Judge considered “how credibility assessments should be made in claims for refugee status” raised a question of law of general and public importance. The Judge granted leave for an appeal and judicial review on this issue.
[2] AR is self-represented but Mr Andrew was appointed as amicus curiae. He and AR contend that in cases of this nature, the applicant’s evidence should be treated with “care and respect”, and the Tribunal failed to do so. More particularly, Mr Andrew argues the Tribunal erred in law by adopting a “starting point of active disbelief” of AR’s evidence, as allegedly demonstrated by its focus upon minutiae.
[3] For the respondent, Mr Hodge submits the principles of credibility assessment in this context are already settled by the highest New Zealand courts, no further refinement is desirable, and in any event, there is no basis to impeach the Tribunal’s careful assessment.
Background
[4] Duffy J summarised the essential aspects of AR’s claim. I gratefully adopt the Judge’s summary:
[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.
1 Re BY (India) [2015] NZIPT 800819.
2 AR v Immigration and Protection Officer [2017] NZHC 132.
3 At [27].
[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 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.
[5] The Tribunal’s treatment of this claim is more easily explained later.
Legal framework
[6] A claim for refugee status is first considered by a refugee and protection officer. If the officer declines the claim, the applicant may appeal to the Immigration and Protection Tribunal. Section 218 of the Immigration Act 2009 captures the Tribunal’s specialist role:
218 Nature of Tribunal
(1) The Tribunal is a specialist body that has the role of deciding appeals and matters by making findings of fact, applying the relevant law, and making a determination.
(2) In carrying out its role, the proceedings of the Tribunal in any particular case may be, as the Tribunal thinks fit,—
(a) of an inquisitorial nature; or
(b) of an adversarial nature; or
(c) of both an inquisitorial and an adversarial nature.
[7] Appeals to the Tribunal are de novo re-hearings.4 The Tribunal may dismiss or allow an appeal, but it may not remit the claim to a refugee and protection officer for reconsideration.5 The statute requires the Tribunal to make a substantive assessment on the matters before it; it is not strictly an appellate body.
[8] Subject to qualified exceptions, the Tribunal must provide applicants with an oral hearing.6 Unsurprisingly, the Tribunal is not bound by traditional rules of evidence; it may receive any statement, document or information that will assist it to deal effectively with the proceedings before it.7 The Tribunal may seek information from any source when considering an appeal.8 If the Tribunal obtains or is provided information prejudicial to the application, the Tribunal must disclose it and provide the applicant an opportunity to respond.9
[9] Materially, an applicant for refugee status has a statutory responsibility to establish their claim:10
226 Proceedings on appeal or matter
(1) It is the responsibility of an appellant or affected person to establish his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.
Analysis: credibility generally
[10] The approach to credibility assessment in a refugee application context is well settled—at least at the macro level. The three leading New Zealand cases are
4 Immigration Act 2009, s 198(1)(a).
5 Section 198(3).
6 Section 233(3).
7 Schedule 2, cl 8.
8 Section 228.
9 Section 230.
10 Emphasis added.
Attorney-General (Minister of Immigration) v Tamil X,11 Jiao v Refugee Status Appeals Authority,12 and BV v Immigration and Protection Tribunal.13 Tamil X is a decision of the Supreme Court. Jiao and BV are decisions of the Court of Appeal.
[11] Tamil X was primarily about whether the applicant was excluded from refugee status on the basis there were “serious reasons for considering” he had committed particular criminal acts before arriving here. However, the Supreme Court also made a number of observations about the assessment of an applicant’s claim for refugee status:14
There are special reasons for the legislature to prefer an inquisitorial process for refugee status determinations. There are particular problems in obtaining evidence on the crucial questions and determining its reliability. The position was well expressed by Professor Houle in the context of determinations by the Refugee Protection Division (RPD) of the Canadian Immigration and Refugee Board:
The process of assessing the weight of evidence to determine refugee status is complex and difficult, mainly because of the absence of credible evidence on which to base the refugee claims. The events related by the claimant cannot be checked directly: they took place in a foreign country and often a considerable period of time before the RPD hearing. In most cases, the decision-maker is given an incomplete story, namely the claimant’s version of events, and even then this is usually done through an interpreter. Therefore, Board members are required to make sound decisions based on scanty, ever-changing information about the claimants’ countries of origin and, more significantly, information about a culture that is alien to them. In fact, Board members are required to assess the credibility of testimony in something of a cultural vacuum. These factors often impede Board members from fully understanding the claimant's story.
The Authority itself has discussed the evidential difficulties it faces, and the practical limits on its process:
Largely because of [such] considerations … the Authority's general approach to refugee claims is to focus primarily on the credibility of the refugee claimant as assessed against publicly accessible information.
In this context, inferences have to be drawn both as to the credibility of the claimant concerning matters of fact and in the evaluation required to decide if a claimant is entitled to protection as a refugee under Convention provisions.
11 Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721.
12 Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA).
13 BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139.
14 Attorney-General (Minister of Immigration) v Tamil X, above n 11, at [37] (footnotes omitted).
[12] The Court considered the Tribunal was vested with “a broad discretion as to what material it obtains and uses in its consideration of a claim.”15 Such material required a “realistic and careful approach … having regard to the evidential gaps and other difficulties that refugee claimants face in making out their claims”.16 A “proper analysis and evaluation” was required, in the course of which “a legitimate and important consideration will often be whether what the applicant says in evidence relevant to his or her status is credible and plausible in the circumstances”.17 It followed the Tribunal “must usually assess the credibility of those giving evidence”.18 This would “often require evaluation of the reliability and value of independent sources of information relevant to that credibility that come before the Authority”.19
[13] In Jiao v Refugee Status Appeals Authority the applicant contended the predecessor to s 226 did not require an applicant to prove a claim for refugee status; the statute then referred to the applicant’s “responsibility … to establish the claim”.20
The Court of Appeal rejected this contention while holding “the process is not to be seen as identical to the regular Court process for determining disputed facts”.21
[14] The Court began with “the very widely accepted principle of law that claimants must prove the facts they assert”.22 It considered Parliament had “essentially” required as much by placing the responsibility of establishing a claim on the applicant.23 However, because supporting evidence would rarely be available to an exile and he or she may be at risk if refugee status is declined, a “generous approach” was called for.24 That included the adoption of “the benefit of the doubt principle”, by which, if an applicant’s account for refugee status is credible, the applicant should be given the benefit of the doubt even in the absence of corroborative material.25
[15] For the Court, Keith J placed particular reliance on the methodology in the Handbook on Procedure and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees (UNHCR Handbook), which the Judge quoted extensively:
195. The relevant facts of the individual case will have to be furnished in the first place by the applicant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant’s statements.
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
[16] Keith J stressed, however, the benefit of the doubt principle “should not get in the way of the proper consideration of the evidence bearing on disputed facts, including a weighing of the possible availability of other evidence supporting or questioning that given by the claimant”.26
[17] The UNHCR Handbook makes a similar point in a passage also cited by Keith J. The principle is available only once “all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility”.27 The applicant’s statements “must be coherent and plausible, and must not run counter to generally known facts”.28
[18] In the recent decision of BV v Immigration and Protection Tribunal, the applicant advanced a similar argument to that of AR and Mr Andrew.29
26 Jiao v Refugee Status Appeals Authority, above n 12, at [30].
27 At [28], citing the UNHCR Handbook at 204.
28 At [28], citing the UNHCR Handbook at 204.
29 BV v Immigration and Protection Tribunal, above n 13.
BV contended the Court of Appeal should adopt a model of credibility-based assessment derived from an article by Professor Kagan, in which an applicant enjoyed “a presumption of credibility”.30 Only then would the inquiry turn to “negative credibility factors (vagueness, contradictions, delayed revelation of key facts, and implausibility)”.31 If these factors exist, “an assessment is required of the extent to which these … impact on key aspects of the applicant’s account”.32 The Tribunal (or Court) would then inquire if there were “valid reasons for the negative features, and whether there are positive credibility factors (detail and specificity, consistency, early providing of facts, and plausibility) which offset the concerns”.33
[19] The Court of Appeal declined to adopt this schema. Under the heading Credibility—and citing Jiao—the Court said the correct approach to claims for refugee status was “well settled”.34 Professor Kagan’s schema had “obvious
legitimacy but is only one approach”.35 And, it “cannot possibly be said the Tribunal
erred in law by following a different analytical path”.36 The Court observed it was important “not to over-emphasise labels”.37 A reading of the Tribunal’s decision “discloses that the key issues it addressed are those found in Professor Kagan’s article”.38
[20] As in Jiao, the Court emphasised “an applicant’s statements must nevertheless be coherent and plausible, and not contrary to generally known facts”.39
It recorded a fundamental impediment to the applicant’s case: “the simple reality is
that BV’s account was, again, not believed”.40
[21] Against this background, AR’s core contention the Tribunal should be
“agnostic and open to [an applicant’s] evidence” is unremarkable. So too his
counterpoint the Tribunal should not, by default, adopt a position of “active disbelief” in relation to an applicant’s claim.
[22] Both find support in the leading textbook in this area, The Law of Refugee Status, and the New South Wales case of Guo v Minister for Immigration and Ethnic Affairs, in which Foster J referred to the need for care when confronted with a witness “disadvantaged by problems of language and lack of familiarity with the situation of which he or she is placed”.41 However, these statements of broad principle—which ultimately reduce to the unremarkable precept the Tribunal should be mindful of the difficulties confronting applicants for refugee or protected person status—add little to the settled jurisprudence of the Supreme Court and
Court of Appeal as outlined above. The same is true of the following passage of Professor Hathaway from The Law of Refugee Status, upon which Mr Andrew placed particular weight:
In sum, refugee status assessment must be understood as a process of reaching the best possible decision on the basis of evidence that is usually imperfect. It is a particular challenge that while the applicant’s testimony often remains at the core of the inquiry – at the very least, to link the applicant to relevant country data – the tools available to assess the credibility of testimonial evidence, even when buttressed by a reasonable corroboration requirement, are highly fraught. Yet, as senior courts have insisted, decision-makers must avoid the temptation to treat the applicant’s testimony with other than care and respect. In particular, an applicant must be given the opportunity to explain any detected problems with her testimony; the nature of any credibility concerns must be clearly conveyed to her; and specific, cogent reasons must be provided for a determination that all or part of the testimony provided is not credible. Moreover, at the end of the day, it is critical to recall that the well- founded fair requirement asks only whether there is a real chance that persecution might occur, not whether it is probable, much less certain. Credible testimony is clearly one means (but not the means) of satisfying that standard.
[23] Moreover, while leave was granted on the basis credibility assessment in this context gave rise to a question of law of general and public importance, it is not clear the jurisprudence was really brought home to the Judge. Context is important. Mr Andrew had not then been appointed as amicus curiae, and the issues were
diffuse. Oddly, Jiao was not cited to the Judge. BV was, but the Judge described
41 James C Hathaway and Michelle Foster The Law of Refugee Status (2nd ed, Cambridge University Press, Cambridge, 2014) at 148; and Guo v Minister of Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194.
that case as one in which the Court of Appeal did not give any express guidance as to the process to be used.42 I read BV a little differently, and more particularly, as an instance in which the Court of Appeal expressly refrained from being prescriptive in this area, in part because of Jiao. It bears repeating the BV Court saw principles in this area as “well settled”,43 and other analytical approaches to credibility as unquestionably open to the Tribunal.44
[24] There are obvious dangers to prescription in this context. First, to recapitulate, the principles are settled. Jiao is an extensive judgment of the Court of Appeal. And, in BV only three years ago, that Court declined to elaborate on Jiao notwithstanding an express invitation to do so.
[25] Second, the statute tells against prescription, for, by s 218 the Tribunal may determine its own approach to “making findings of fact” by, as it “thinks fit”, proceedings “of an inquisitorial nature”; “of an adversarial nature”; or “both”. Section 218 does not, of course, deal specifically with credibility determinations. However, the point is that by investing the Tribunal with the power to determine its own processes in relation to factual findings, Parliament may be thought to have signalled a margin of appreciation to the Tribunal’s approach in this area, in turn incompatible with curial prescription beyond the general guidance thus far. Again, that is what I read BV to hold.
[26] Third, credibility assessment is acutely fact-sensitive. An approach that may work in one case may not work in another. Doubt therefore attaches to whether there is any utility in attempting to go beyond the general, particularly when, as observed, Parliament has refrained from doing so and instead empowered the Tribunal to determine its own approach. Indeed, Mr Andrew responsibly acknowledged the limits “to which appellate courts can provide guidance to first-instance decision
makers”.
42 AR v Immigration and Protection Officer, above n 2, at [27] and footnote 16.
[27] Fourth, there are also dangers of over-refinement in this area, or what the Court of Appeal in BV described as “labels”.45 Courts and Tribunals make credibility assessments on a daily basis. They do so with little explicit conceptual guidance, for; the function is both intensely practical and intrinsic to their role. Similarly, there is nothing to suggest the Tribunal needs further guidance. Or, that its approach to credibility assessment in the general run of cases before it is somehow
awry.
[28] For these reasons, I consider elaboration of principle in this area is undesirable, or at least the province of a higher court. All of which leads to AR’s specific case against the Tribunal’s decision.46
[29] First, the decision itself.
The Tribunal’s decision
[30] The Tribunal concluded AR’s account was not credible. It considered his evidence in relation to core aspects of his claim as “vague, mobile, inconsistent and contradictory”.47 The Tribunal identified a number of instances in which AR’s
testimony was inconsistent with his account to the refugee protection officer.
45 BV v Immigration and Protection Tribunal, above n 13, at [14].
46 AR made a brief oral submission at the hearing. He said:
“Your Honour I would like to say a few brief words. Your Honour I came to this country seeking refugee and protection status because I feared I would be tortured and killed by Hindu extremists. I was …(inaudible). I tried to deliver my story as best as I could to the RSB and the Tribunal. I said many times to the Tribunal that I had a bleak memory and found it difficult to remember details. I do not recall those events in my life like the movie. They are a jumble in my head. I do not think the Tribunal appreciated how difficult it is to remember details when you have the fear of death. I tried my best to tell my story but I cannot make my memory do things it cannot.
The Tribunal talked about the obscurity of my kind of work as a Hawala. I worked for the syndicate. I was not an associate or member. As a Muslim I was at the bottom of the heap. I said many times that secrecy was the most important thing in this world. It is because the syndicate is good at what they do that I cannot tell details about the organisation. I was not meant to know and I was meant to forget what I did. I believe the Tribunal has focused on small errors in my testimony and they expected too much detail of my job as a Hawala. The y have even wrongly recorded my words.
Your Honour, I ask this court to look closely at the decision in my submission. I believe I do have a well founded fear of torture and death at the hands of Shiv Sena and I seek protection of this country. For me it is life …(inaudible).”
47 Re BY (India), above n 1, at [32].
[31] The Tribunal found AR had been dishonest in relation to his previous convictions, and treated this aspect as “a factor in the overall assessment of his credibility”.48
[32] The Tribunal accepted a number of matters might have affected AR’s ability to provide a coherent account: sleeplessness and depression; lapse of time; and trauma. However, the Tribunal found “myriad inconsistencies, vagueness and mobility” meant that AR’s “account, at its core, suffer[ed] from a lack of veracity.”49
[33] The Tribunal concluded there was no credible evidence AR was at risk of serious harm if he returned to India. It also found there were no substantial grounds to believe AR would be in danger of torture, arbitrary deprivation or cruel treatment if deported from New Zealand.50
AR’s case
[34] Mr Andrew submits the Tribunal erred in law in its assessment of AR’s evidence by searching for inconsistencies on matters peripheral to AR’s claim for refugee status and protected person status, and then adopting mantra-like reasoning to reject his account. Mr Andrew also contends any vagueness and inconsistencies in relation to AR’s account are explicable by reference to factors such as delay and trauma.
Analysis
[35] It is clear the Tribunal appreciated the difference between matters peripheral to AR’s claim and those central to it. The Tribunal cited in its decision a passage from Djama v Canada (Minister of Employment and Immigration) in which the Canadian Federal Court of Appeal criticised a fact-finding panel for exaggerating the import of a few apparent contradictions, hesitations or vague statements in an applicant’s testimony.51 The Court held the panel’s fixation on peripheral detail had
caused them to forget the substance of the claim. After citing the relevant passage,
48 Re BY (India), above n 1, at [48].
49 At [55].
50 At [70] and [73].
the Tribunal stated Djama “makes a helpful distinction between core and peripheral aspects of a claim, and the need for a holistic assessment of evidence”.52
[36] It is equally clear the Tribunal conducted its credibility assessment with this distinction in mind. In examining the credibility of AR’s claim, the Tribunal identified various inconsistencies directly relevant to some of its core aspects. The following examples are illustrative.
[37] First, AR provided inconsistent accounts in relation to the circumstances of the alleged robbery.53 Before the refugee protection officer, AR said he collected money off one of the leaders of the Shiv Sena Party in the morning and then used his sister’s car to carry out the delivery. He said he was ambushed by four men. Before the Tribunal, however, AR said the money was delivered to his home in the evening and he could not remember whose car he used nor how many men ambushed him.
AR later stated to the Tribunal he had driven to the leader’s address to collect the money. In a statement of 30 September 2014, AR claimed he was given the money while working under a different leader of the Shiv Sena Party. When asked to explain the discrepancies, AR stated he could not remember what had happened.
[38] Second, AR was unable to provide any particulars relating to his time in hiding.54 He could not, for example, remember the first person he stayed with or the second place he stayed.
[39] Third, AR gave vague and inconsistent evidence in relation to both the hawala generally and his involvement in it.55 He told the refugee protection officer he was introduced to the syndicate by a neighbour but told the Tribunal he was introduced by Muslims who used to work for the TAA. Subsequently, he told the Tribunal he was introduced to the syndicate by persons who lived in places where he “moved around” and to a “bunch of people” he had contact with. He could not recall the first task he completed for the syndicate or any other details of his first
involvement with the syndicate. And he gave contradictory evidence regarding the
52 Re BY (India), above n 1, at [53].
53 At [34]–[37].
54 At [38].
55 At [40]–[44].
identities of those within the syndicate he had contact with. The Tribunal stated AR’s evidence was so vague it was “unable to establish more than the most rudimentary sketch of the details” and “when [AR] was able to give details, they contradicted details he had earlier given to the [refugee protection officer].56
[40] Fourth, AR provided inconsistent evidence in relation to the threats allegedly received by his family.57 Before the Tribunal, he said members of the hawala visited his family the same day of the alleged robbery and the week following it. Before the refugee protection officer, he said his family were visited the day after the robbery. When asked about the discrepancy, he adopted the answer given to the refugee protection officer.
[41] Critically, the Tribunal did not reject AR’s claim with particular reference or emphasis on any of these discrepancies. Rather, it rejected AR’s claim on account of the “cumulative weight” of these and other credibility concerns.58 There is nothing objectionable in rejecting an applicant’s claim by reference to these various inconsistencies. As observed earlier, the benefit of the doubt should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility.59 And as Kós J observed in Cao v Immigration and Protection Tribunal, even if the broad framework for the applicant’s contentions is coherent, detailed inconsistencies destructive of credibility should not be disregarded.60
[42] The Tribunal’s treatment of other, peripheral, matters must be seen within this context—in particular, AR’s failure to declare convictions and criminal involvement and his deportations from Australia and the United Kingdom. As expressly acknowledged by the Tribunal, these matters “do not relate to the core of [AR’s] claim”. However, the Tribunal was entitled to have regard to these matters as part of
its overall credibility assessment. It is clear AR’s evidence was rejected primarily on
56 Re BY (India), above n 1, at [44].
57 At [39].
58 At [55].
59 See [17] above.
60 Cao v Immigration and Protection Tribunal [2014] NZHC 259 at [18].
the basis of inconsistencies directly relevant to his claim for refugee and protected status.
[43] The Tribunal accepted AR “suffers from sleeplessness and depression”. It accepted “memories are affected by the lapse of time”. And, it expressly acknowledged “stressful life events, such as a claimed robbery can negatively affect an individual’s recall”.61 However, the Tribunal did not consider these factors adequately explained the myriad inconsistencies identified in AR’s claim. Having found these inconsistencies went to the heart of the claim, it was open to the Tribunal
to reach this conclusion. Indeed, to reject the claim as unbelievable.
[44] It follows the Tribunal did not err. It directed itself correctly in law and conducted its credibility assessment in accordance with those directions.
Fresh evidence
[45] AR sought to adduce fresh evidence. For reasons that will become apparent, the application was largely overtaken by events.
[46] The evidence sought to be adduced comprises:
(a) Copies of documents dating back to 2011 in relation to a motor vehicle in the name of AR’s sister. AR says the persons threatening him are asking for this vehicle and are not permitting its registration to be changed.
(b) Photographs of a discharge card for AR’s mother from hospital dated
19 September 2015. AR says his mother was admitted to hospital as a result of harassment by members of the Shiv Sena Party.
(c) Photographs of letters written by AR’s two sisters containing information supportive of and consistent with AR’s claim.
(d)A police report dated 25 October 2015 filed by AR’s sister alleging she had received an abusive and threatening phone call, and inquiring about AR’s whereabouts.
(e) A police report dated 11 June 2015 by AR’s brother in which he alleges he was harassed and assaulted by “unknown persons” while boarding a train.
[47] The additional material is offered as corroborative evidence of AR’s time working as a money courier, of threats to his family by members of the Shiv Sena Party, and as evidence they are looking for him.
[48] On 22 December 2015, AR made a second, separate claim for refugee and protected person status on the basis of this material. This claim was declined. The refugee protection officer considered the additional material insufficiently cogent to warrant a fresh investigation and found it simply repeated and elaborated on AR’s previous testimony. The officer concluded:
No weight is placed on the documentation provided by [AR], which is merely further evidence from before the date of determination, in support of a claim that the Tribunal has found is not credible.
[49] AR sought to judicially review the officer’s decision out of time. Edwards J dismissed the application to extend time to apply for review.62 The Judge assessed the merits of the judicial review application as weak. In the Judge’s view, the refugee protection officer had not erred in his interpretation of s 140 of the Act, which precludes consideration of a subsequent claim unless there has been a significant change in circumstances material to the claim since the previous claim was determined.
[50] Mr Andrew submits this Court has a broad discretion to receive the additional evidence sought to be adduced on appeal and review. He submits the Court should have regard to the inherent difficulties AR faced in obtaining evidence from India while in New Zealand.
[51] In CD v Immigration & Protection Tribunal the Court of Appeal addressed the admissibility of evidence on a leave application for judicial review under s 249 of the Act.63 The Court emphasised in particular the requirement under the Act for the applicant to put before the Tribunal everything he or she wants considered. Thus, while the Court accepted it had a discretion to receive or reject further evidence in accordance with the interests of justice, it considered new evidence may well be rejected on the grounds it is contrary to the scheme of the legislation.64
[52] In Guo v Immigration & Protection Tribunal Gendall J declined to admit fresh evidence in an application for leave to appeal under s 245 of the Act.65
Gendall J did not consider appeals brought under this provision to provide appellants with an opportunity to bolster their case with new evidence.66 The Judge saw substance in an argument opposing receipt of the fresh evidence on the grounds it would cut across the scheme of the Act.
[53] I decline to receive the additional material. First, AR was required under the Act to put before the Tribunal all the evidence he wished it to consider.67 Much of the evidence is not “fresh” as it existed before the commencement of the hearing before the Tribunal on 16 November 2015.
[54] Second, the issue in this proceeding is whether the Tribunal erred in its assessment of AR’s credibility. The evidence sought to be admitted does not bear on that issue. The Tribunal cannot be said to have erred in its approach by reference to evidence it did not have before it and had no obligation to obtain.
[55] Third, the evidence is tendered to bolster AR’s claim on appeal and review. As Gendall J observed in Guo, appeals under the Act do not provide an opportunity to do so. Fact-finding is the province of the Tribunal.
[56] Fourth, AR has already sought to bring a second claim for refugee and protected person status relying on this evidence. The claim was not accepted. His
63 CD v Immigration & Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494.
64 At [23].
65 Guo v Immigration and Protection Tribunal [2014] NZHC 804.
66 At [47].
67 Immigration Act, ss 226 and 229.
application for judicial review was dismissed. Receipt of the same evidence now would tend to undermine the statutory process.
[57] Fifth, the evidence is not cogent. Only the Police report dated 25 October
2015 makes direct reference to the risk of harm claimed by AR. I am not persuaded it or any of the other supporting material sought to be adduced would have caused the Tribunal to reach a different conclusion.
Result
[58] I dismiss both the appeal and the judicial review proceeding.
[59] I thank counsel for the quality of their submissions and AR for his courteousness at the hearing.
……………………………..
Downs J
Solicitors/Counsel:
Meredith Connell, Auckland. PJ Andrews, Auckland.
Copy to: Applicant.
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