AR v Refugee and Protection Officer

[2016] NZHC 2916

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001032 [2016] NZHC 2916

UNDER

The Judicature Amendment Act 1972

The Immigration Act 2009

The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol The International Covenant on Civil and Political Rights

The Convention Against Torture

BETWEEN

AR Applicant

AND

REFUGEE AND PROTECTION OFFICER

Defendant

Hearing:	7 October 2016
Appearances:	Applicant on own behalf with D Lewis as McKenzie Friend R E Savage for the Defendant
Judgment:	2 December 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 2 December 2016 at 4 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:           Crown Solicitors, Auckland

Copy To:           Applicant

AR v REFUGEE AND PROTECTION OFFICER [2016] NZHC 2916 [2 December 2016]

Introduction

[1]      The applicant seeks judicial review of a decision of a Refugee and Protection Officer (RPO) refusing to consider a second claim for recognition as either a refugee or protected person under the Immigration Act 2009 (Act).

[2]      The judicial review proceeding was filed outside the 28 day timeframe prescribed  by the Act.1   The  applicant  therefore  seeks  an  extension  of  time  to commence the review proceedings by reason of special circumstances pursuant to s 247(1)(a).

Background

[3]      The applicant is a citizen of India.   His parents and four siblings live in

Mumbai.

[4]      He arrived  in  New  Zealand in August  2014  and  claimed  refugee  and/or protected person status under the Act.   He did so on the grounds that he feared serious harm at the hands of the leader of the Shiv Sena political party, Uddhav Thackeray, and his associates.  He claims to have worked as a hawala money courier for that group.   In January 2014, he says he was robbed while couriering approximately NZD 2 million.  The group he was working for believes he stole the money, and consequently, he says his personal safety is at risk.

[5]      The applicant also claims he is at risk of harm by extremist Hindu groups as a result of him being a Shi’a Muslim and having been involved with a pro-Muslim political party in the 1990s.

[6]      The applicant also states that he has previously been detained, questioned and beaten upon return to India from Australia in 2006, and again when returning from the United Kingdom in 2011.  He has been denied refugee status in both of those countries and has convictions in the United Kingdom.  Those convictions were not

disclosed on the claim form for refugee and protected person status.

1      Section 247(1).

First claim

[7]      The applicant’s first claim was declined by a RPO on 18 December 2014. The applicant appealed to the Immigration and Protection Tribunal (Tribunal).

[8]      The Tribunal traversed the applicant’s claim in some detail.  It concluded that there was no credible evidence establishing that the applicant was at risk of serious harm if he returned to India.

[9]      The  applicant’s  evidence  was  rejected  as  false,  and  core  aspects  of  his evidence were found to be “vague, mobile, inconsistent and contradictory”.   The Tribunal’s credibility and factual findings were summarised as follows:

Conclusion on credibility

[57]     On the basis of the appellant’s vague and mobile evidence, with multiple inconsistencies and contradictions, going to the heart of the claim, the Tribunal rejects his account of working as a hawala courier, to have been robbed, and sought by Uddhav Thackeray and his employees/associates, as false.   It also rejects his evidence of being detained and ill-treated by the police upon deportation from Australia and India, and that he was forced to pay a bribe to obtain his three separate passports and in order to leave India.

Facts as Found

[58]     The Tribunal finds that the appellant is a Shi’a Muslim, born in Mumbai, Maharashtra State, India.  He holds qualifications in hospitality and has experience working as a chef.  He was a member of the TAA Muslim Party in the 1990s, but this group is no longer in existence.  He has lived in Australia from August 1996 to May 2006, and in the United Kingdom from February 2008 to May 2011.  He was deported by both countries to India. His family, including his parents, brother and three sisters, live in Mumbai. He departed India lawfully and arrived in New Zealand in August 2014.

[10]     The applicant’s claim that he would experience discrimination as a Muslim was not pursued as a separate appeal ground.  In any event, the Tribunal found that the level of discrimination he was likely to experience did not give rise to a risk of persecution.

[11]     The Tribunal therefore found that the applicant was not a refugee within the meaning of the Refugee Convention; was not a protected person within the meaning of  the  Convention  against  Torture;  and  was  not  a  protected  person  within  the meaning of the Covenant on Civil and Political Rights.

[12]     The appeal was dismissed on 25 November 2015.

[13]     The applicant applied to the High Court for leave to appeal and leave to commence review proceedings in respect of the Tribunal decision.   Those leave applications were adjourned part-heard and are due to resume on 8 December 2016.

Second claim

[14]     On 22 December 2015, the applicant made a second claim for refugee and/or protected person status.  Section 140 of the Act governs subsequent claims.

[15]     The applicant provided further material in support of his second claim. That material included the following:

(a)      Copies of documents relating to a motor vehicle in the name of the applicant’s  sister  (including  insurance  and  registration documentation);

(b)      Photographs  of  a  discharge  card  for  the  applicant’s  mother  from

hospital dated 19 September 2015;

(c)       Photographs of supporting letters by the applicant’s two sisters;

(d)A police report dated 25 October 2015 filed by the applicant’s sister claiming that she had received an abusive phone call inquiring about the applicant; and

(e)      A police report dated 11 June 2015 by the applicant’s brother in which he claims that he was harassed and assaulted by “unknown persons” whilst trying to board a train.

(“additional material”).

[16]     The  additional  material  was  offered  as  corroborating  evidence  of  the

applicant’s time spent working as a money courier, of threats to his family made by

members of the Shiv Sena Party, and as evidence that they are looking for him.  The car registration information was offered as proof that the Shiv Sena Party was not allowing the applicant’s sister to change the registration of her car.

[17]     The RPO found that the additional material was not significantly strong to warrant a fresh investigation; that the second claim was an exact repetition of the first claim; and that the additional material simply repeated and elaborated on the applicant’s previous testimony.

[18]     The RPO noted that the claimed events around the hospitalisation of the applicant’s mother pre-dated the Tribunal’s first decision, as did the police reports. He thought it likely that the sister’s police report was before the Tribunal the first time around.  On that basis the RPO considered that the report was not fresh, and that the applicant’s awareness of those reports, and his mother’s hospitalisation, did not constitute a change in circumstances.

[19]     The RPO dismissed the claim pursuant to s 140(3) of the Act, concluding as follows:

Conclusion

As [the applicant’s] representative has submitted, an RPO must be conscious that a “narrow or legalistic approach” to the subsequent claim jurisdiction is best avoided.   After careful consideration of all the grounds raised, both separately and cumulatively, it is not accepted that there is jurisdiction to consider [the applicant’s] subsequent claim.

No  weight  is  placed  on  the  documentation  provided  by  [the  applicant], which is merely further evidence from before the date of determination, in support of a claim that the Tribunal has found is not credible.

There is considerable overlap between a claim that repeats a previous claim, and a claim where it cannot be demonstrated that there has been a significant change in circumstances material to the claim.  For the reasons given above, it is found that [the applicant’s] second claim, including the allegations of continuing interest in him by the Shiv Sena, falls within section 140(3)(b) of the Act.  A claim that repeats a previous claim may also be characterised as manifestly unfounded or clearly abusive, under section 140(3)(a).

Application for leave to extend time

[20]     A right of appeal from a dismissal of a claim pursuant to s 140(3) only exists if a person’s most recent previous claim was declined under Part 6A of the former Act.2     That provision does not apply in this case.   Therefore, a challenge to the RPO’s decision has to be made by way of judicial review.

[21]      Pursuant to s 247(1) review proceedings must be commenced not later than

28 days after the date on which the person concerned is notified of the decision unless the High Court decides that “by reason of special circumstances” further time should be allowed.

[22]     The  RPO’s  decision  was  dated  20  April  2016.    It  was  emailed  to  the applicant’s legal representative at that time.  Review proceedings were required to be filed by 18 May 2016.

[23]     On 18 May 2016, the applicant filed an application with the High Court for leave to commence review proceedings in respect of the RPO’s decision.  Leave is not required to bring review proceedings and counsel for the RPO informed the applicant of this on 20 May 2016.

[24]     The applicant filed his judicial review proceedings, and an application to extend time on 1 June 2016.  By this time the review proceeding was 14 days out of time.

[25]     The applicant seeks an extension of time by reason of special circumstances as provided for in s 247(1).

Special circumstances

[26]     In Rajan v Minister of Immigration the Court of Appeal held that “special circumstances” requires circumstances that are “uncommon, not commonplace, out

2      Immigration Act 2009, s 195(1)(b).

of the ordinary, abnormal”.3   The Court further held that there are three factors which should be considered in determining whether such special circumstances exist: the length of the delay; the reason for the delay; and in marginal cases, a brief examination of the merits.4

[27]     The length of the delay in this case is 14 days.  That represents half of the

28 day time limit allowed for the bringing of review proceedings.   Viewed in that light, the delay cannot be seen as short.5

[28]     But the length of the delay must be seen in context.   In  E v Ministry of Business, Innovation and Employment, allowance was made for the fact that the RPO mistakenly informed E that he had a right of appeal, and an appeal was filed in time.6     If the 28 day time period was treated as running from the time E was informed of the mistake, the delay was 11 to 15 days.  That delay was considered to be relatively short in the circumstances.7

[29]     In this case, the application for leave to file review proceedings was filed within time.  The review proceeding itself was filed within 12 days of the applicant being informed of the correct procedure.  In those circumstances, I do not regard the length of the delay to be substantial.

[30]     The applicant has filed affidavits and affirmations setting out the reasons for the delay.

[31]     Although the applicant was legally represented at the time of the second claim, that position subsequently changed and he is currently self-represented. He sought assistance from International Justice Advocates Ltd, and was put in contact with Mr Bryan Johnson, a director of that organisation.  Mr Johnson was assisted by

a law student who had not previously dealt with immigration matters.

3      Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24]. That case concerned s 146A

of the Immigration Act 1987 which is in substantially the same terms as s 247.

4      At [24]–[25]; and [28]–[30].

5      In Rajan, a delay of one month in the context of a three month time limit was regarded as a delay which could not “necessarily be seen as short”.  A 23 day delay in the context of a 28 day time limit was found to be “too long” in Ly v Minister of Immigration HC Auckland CIV 2011-404-

1540, 5 May 2011 at [55].

6      E v Ministry of Business, Innovation and Employment [2016] NZHC 2599.

7      At [23]–[27].

[32]     Due to serious health problems, Mr Johnson indicated that he could not act as a McKenzie friend and suggested that the law student manage the judicial review proceeding on behalf of the applicant, subject to oversight from Mr Johnson as required. The law student prepared and filed the leave application, which was accepted by the Court.  Mr Johnson subsequently made enquiries with the Court to check that it had been received.  He was told that it had been received and that a case management conference had been allocated.

[33]     Mr Johnson and the law student were contacted by counsel for the RPO on Friday 20 May 2016 about the error in procedure.   Because the Court allocated a case management date for the leave application, the law student thought that the Court may have been treating the leave application as the substantive application. The law student sought to meet with Mr Johnson to discuss next steps.  However, Mr Johnson was out of Auckland at this time – initially recovering from surgery, and then attending a funeral.  He returned to Auckland to attend a further funeral and to attend a medical appointment.

[34]     The law student met with Mr Johnson on 1 June 2016 which was the first available date they could meet.   The judicial review proceeding was filed the same day.

[35]     As counsel for the RPO submits, there is nothing uncommon or unusual about mistakes as to applicable time periods, or review and appeal rights.  Counsel error about those matters, and counsel inexperience, have been found to be insufficient to establish “special circumstances” warranting an extension of time.8

[36]     But, I consider the circumstances of this case distinguish it from those relied on by the RPO.  The application for leave was filed within the stated time period. The RPO was therefore on notice that the decision was subject to challenge by way of  review.    The  further  delay  is  explained  by  personal  circumstances  (health

conditions and attendance at funerals) which are not common place, and were out of

8      Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-1333, 9 June 2009 at [34]; and Fernandes v Immigration and Protection Tribunal [2014] NZCA 52, [2014] NZAR 544 at [10]. See also the various reasons which have been found to be insufficient for establishing special circumstances reviewed in C v Immigration and Protection Tribunal [2015] NZHC 3253 at [34]–[41].

the ordinary.  There is no suggestion that the delay in filing was a tactic to secure further time in New Zealand, or that there was a deliberate disregard of the timeframes in this case.

[37]      The reasons for the delay, combined with the relatively short period of delay, take this case to the margin of the special circumstances threshold.     A separate consideration of the merits of the substantive judicial review is warranted.     That consideration follows below.

Judicial review

Section 140

[38]     The applicant’s judicial review proceeds on the basis that the RPO erred in law in interpreting and applying s 140 of the Act.

[39]     Section 140 provides:

140     Limitation on subsequent claims

(1)       A refugee and protection officer must not consider a subsequent claim for recognition as a refugee or a protected person unless the officer is satisfied—

(a)       that there has been a significant change in circumstances material to the claim since the previous claim was determined; and

(b)       the  change  in  1  or  more  of  the  circumstances  was  not brought about by the claimant—

(i)       acting otherwise than in good faith; and

(ii)      for a  purpose  of creating grounds for recognition under any of sections 129 to 131.

(2)       For the purposes of determining the matter in subsection (1), the refugee and protection officer must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.

(3)       A refugee and protection officer may refuse to consider a subsequent claim for recognition as a refugee or a protected person if the officer is satisfied that the claim—

(a)      is manifestly unfounded or clearly abusive; or

(b)      repeats any claim previously made (including a subsequent claim).

[40]     In BD (India) v Refugee and Protection Officer Peters J held that s 140(1) and (3) provide separate grounds of consideration and there is nothing on the face of the section that required s 140(1) first to be considered.  However, a subsequent claim which is not excluded under s 140(3) must still meet the threshold under s 140(1).9

[41]     Section 141(2) is also relevant.   That section prohibits an applicant from challenging any credibility or factual finding made in relation to a previous claim. A RPO is expressly authorised to rely on the findings made in a previous claim in determining the subsequent claim.

Grounds for review

[42]      The applicant challenges the RPO’s assessment of the s 140 criteria across

three broad grounds, each of which is considered below.

[43]     First, the applicant says that the RPO erred in finding that the additional material could not establish a “significant change of circumstances” for the purposes of s 140(1).   He submits that becoming aware of, or gaining an ability to acquire fresh  information  can  constitute  a  significant  change  of  circumstances.     The applicant says that this also applies to s 140(3).  Even if additional material does not constitute a significant change of circumstances, it can nevertheless establish a “change” for the purposes of s 140(3).   The applicant relies on the following comments as evidencing the error in law:

[The applicant’s] becoming aware of the police reports and his mother’s hospitalisation  do  not  constitute  a  significant  change  in  circumstances material to the claim.

[44]     Insofar as the allegation of error relates to s 140(1), it must be remembered that the RPO reached his determination under s 140(3) of the Act.   The applicant

does not challenge the fact that the RPO made his determination under s 140(3) first,

9      BD (India) v Refugee and Protection Officer [2016] NZHC 1762 at [32]–[33].

without considering s 140(1).  Any error of law under s 140(1) would therefore have to be material to the decision to form a basis for review.

[45]     In any event, I do not consider the RPO erred in his approach.  The RPO was not saying that as a matter of general application awareness of new information, or an ability to acquire that new information, could not constitute a significant change of circumstances or mean that a claim was not repetitious.  He was simply saying that the additional material offered by the applicant did not meet those thresholds in this  case.    The  RPO’s  comments  were  an  application  of  the  legal  tests  to  the particular facts of the applicant’s case.

[46]     The RPO concluded that the additional material furthered the applicant’s account, and repeated and elaborated on the applicant’s earlier testimony to the Tribunal.  Some of that material also pre-dated the Tribunal’s decision and may have been before the Tribunal when it determined the applicant’s first claim.  The RPO considered  that  this  information  could  not  properly be regarded  as  fresh  in  the circumstances. It was in that context that the RPO’s comments were made.  I do not consider they evidence an error of law.

[47]     Second, the applicant says that the RPO erred by finding that there was a considerable overlap between s 140(1) and s 140(3)(b).  That is said to flow from the following concluding remarks:

There is considerable overlap between a claim that repeats a previous claim, and a claim where it cannot be demonstrated that there has been a significant change in circumstances material to the claim.

[48]     I do not consider the RPO to have erred in this respect either. The additional material put forward by the applicant did not establish a significant change in circumstances, and did not establish a claim which was not repetitious of the first claim.  The same additional material was relevant to the separate enquiries in both subs (1) and (3).  The RPO’s comments must be understood in that context.     This review ground is not made out.

[49]     Third, the applicant says the RPO erred by holding that the new evidence presented  constituted  a  repetition  of  a  previous  claim  within  the  meaning  of

s 140(3)(b).  He submits that subs (3)(b) should be interpreted consistently with the tenor of subs (3)(a) so that only a claim that is a very abusive repetition of a previous claim, is caught.  He says that his claim is not repetitious in this abusive sense, but only serves to substantiate a previous claim with new evidence.

[50]     There  is  no  basis  to  draw  a  distinction  between  a  claim  that  is  merely repetitive and a claim that is repetitive in a manifestly abusive sense. This would add an unwarranted gloss to the words of the statute.  The section is clear as to its terms. The focus in s 140(3)(b) is on the claim.  It requires a comparison of the first claim with the second claim to see whether it is essentially the same claim.  In some cases additional material may mean that the subsequent claim is not repetitive of the previous claim.   But that is not the position in this case.  As the RPO found, the additional material was offered by the applicant to bolster the credibility of his first claim, which had been rejected by the Tribunal. The RPO was correct to find that the subsequent claim repeated the first claim within the meaning of s 140(3)(b).

[51]   Finally, the applicant’s statement of claim pleads that the decision is substantively unfair.  That was not elaborated on in either written submissions, or in oral argument at the hearing.   There is nothing in the RPO’s decision which is suggestive of substantive unfairness in my view.  This final ground of review must also fail.

[52]     It follows that the applicant’s judicial review application cannot succeed. The weak merits of the applicant’s judicial review application tips the balance on the application to extend time. That application is accordingly dismissed.  But if I am wrong about that, I would have dismissed the application for judicial review for the reasons set out above.

Result

[53]     The  application  for  leave  to  extend  time  to  apply for  judicial  review  is dismissed.

Edwards J