As (Somalia) v Refugee Protection Officer
[2020] NZHC 833
•29 April 2020
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CIV-2019-404-960
[2020] NZHC 833
UNDER the Judicial Review Procedure Act 2016, the Immigration Act 2009 s 249, the 1951 Convention Relating to the Status of Refugees, and its 1967 Protocol and the International Covenant on Civil and Political Rights and the Convention Against Torture BETWEEN
AS (SOMALIA)
Applicant
AND
THE REFUGEE PROTECTION OFICER
First Respondent
THE IMMIGRATION AND PROTECTION TRIBUNAL
Second RespondentContinued …
Hearing: 4 November 2019 (further written submissions filed on 20 and 29
January 2020)
Appearances:
R S Pidgeon for the Applicant
HTN Fong and E Cameron for the First Respondent in CIV-2019- 404-960 and the Respondent in CIV-2019-404-961
No appearance for the Second Respondent in CIV-2019-404-960 (abiding decision)
Judgment:
29 April 2020
JUDGMENT OF GAULT J
AS (SOMALIA) v THE REFUGEE PROTECTION OFICER [2020] NZHC 833 [29 April 2020]
Continued …
CIV-2019-404-961 UNDER
the Immigration Act 2009, s 245, the 1951 Convention Relating to the Status of Refugees, and its 1967 Protocol and the International Covenant on Civil and Political Rights and the Convention Against Torture
BETWEEN
AS (SOMALIA)
Applicant
AND
THE REFUGEE PROTECTION OFFICER
Respondent
This judgment was delivered by me on 29 April 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
[1] The applicant (AS) is a citizen of Somalia. He arrived in New Zealand on a false passport on 13 December 2014 and was detained. On 24 December 2014 he lodged a claim for recognition as a refugee or protected person under ss 129-131 of the Immigration Act 2009 (the Act). His claim was declined by a refugee and protection officer (RPO) in the Refugee Status Branch of Immigration New Zealand in April 2015.
[2] AS appealed to the Immigration and Protection Tribunal (the Tribunal). The Tribunal dismissed his appeal in March 2016.1 He sought leave in this Court to appeal, and judicially review, the Tribunal’s decision. Palmer J granted leave.2 By consent order dated 7 February 2017, the High Court quashed the Tribunal’s decision and remitted the matter back to the Tribunal for a fresh hearing. The Tribunal issued its further decision on 31 October 2017 dismissing AS’s appeal.3
[3] Some three weeks later, on 22 November 2017, AS lodged a second claim for refugee and protected person status. This subsequent claim put forward a very different account of AS’s background, acknowledging that his first claim was materially false. In February 2018, a different RPO refused to consider his subsequent claim pursuant to s 140 of the Act.
[4] AS appealed again to the Tribunal. On 1 May 2019 the Tribunal found, under s 200(1)(a) of the Act, that there had been no significant change in circumstances material to AS’s claim since his previous appeal was determined and accordingly dismissed his appeal.4
[5] AS seeks leave to appeal and judicially review this 1 May 2019 Tribunal decision, under ss 245 and 249 of the Act respectively. An application to adduce further evidence was abandoned.
[6] These applications raise the relatively narrow issue of whether the new matters raised in AS’s subsequent claim – in particular, evidence of his United Nations High
1 Re AI (Somalia) [2016] NZIPT 800857.
2 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471.
3 Re AO (Somalia) [2017] NZIPT 801142.
4 Re AS (Somalia) [2019] NZIPT 801326.
Commissioner for Refugees (UNHCR) mandated status as a refugee – amount to a significant change in circumstances material to his claim since his previous appeal was determined on 31 October 2017.
First claim
[7] In his first claim AS said he was born in Mogadishu, Somalia in 1991 and lived there until his departure for New Zealand in 2014. In early 2014, AS became involved in community-based youth activities adverse to al-Shabaab, an Al-Qaeda linked group in Somalia. In September 2014 he was threatened to stop his activities and then kidnapped and tortured. After release he was told he needed to report for training. He said that he would, but instead went into hiding. His father, step-brother and friend were killed. He fled Somalia and eventually made his way to New Zealand.
[8] He also claimed that while living in Somalia and visiting Kenya with his mother for work in 2009, he had met and married a young Kenyan woman. They had a child born in 2010.
[9] AS feared persecution in that if he returned to Somalia al-Shabaab would kill him because he is a moderate Muslim, because of his activities with the youth in Mogadishu and because he had reneged on the promise he made when he was released from detention. He also claimed that he was at risk of falling victim to indiscriminate violence because of the deterioration in humanitarian and general conditions in Somalia, and because he had no family to return to in Somalia, and no clan connections to call upon for protection.
[10] He told the Tribunal that he had been struggling mentally since he had been in New Zealand. He was already upset by his experiences in Somalia and his state of mental health deteriorated further after he [withheld].
[11] The Tribunal did not accept that AS had been kidnapped or had encountered any of the problems he claimed to have encountered in Somalia in the past. The Tribunal did not accept that his father, step-brother and friend were killed in the circumstances claimed. The Tribunal did not consider that there was a real chance of AS being persecuted if he returned to Somalia.
Second claim
[12] Acknowledging that his first claim was false in many respects, AS said that he was born in Mogadishu but left Somalia with his family in 1991 and went to a refugee camp in Kenya. He only returned briefly to Somalia with his aunt in 1997 when that refugee camp closed, before re-joining his family in Kenya at another UNHCR camp in January 1998. In 2009 UNHCR in Kenya recognised AS and his family members as mandated refugees. They then became candidates for resettlement elsewhere.
[13] Having married and had a child, AS grew frustrated with the wait for re-settlement and left Kenya in 2012, travelling to Malaysia. He worked there and later applied for refugee status again, but then left for New Zealand before his scheduled UNHCR interview in Malaysia. UNHCR later deemed his application to have been abandoned.
[14] In this second claim, his fear of persecution if returned to Somalia was that having not previously lived there he would stand out. He would be perceived as westernised and may be subject to suspicion. Because of his lack of street knowledge and his lack of family or clan affiliations to protect him, he may be vulnerable to street violence or kidnapping by al-Shabaab.
Tribunal’s May 2019 decision
[15] The Tribunal considered, as it was required to do under s 200 of the Act, whether there had been a significant change in circumstances material to AS’s claim since the previous claim was determined. The Tribunal considered that the change in circumstances must not only be “significant”, it must have arisen since 31 October 2017 (the date of determination of his first appeal). The Tribunal said that temporal qualification is fundamental to the threshold AS must meet.5 The Tribunal concluded that the different narrative now asserted by AS did not give rise to a significant change in circumstances because the circumstances alleged had not arisen “since the previous claim was determined” on 31 October 2017.6
5 At [48].
6 At [49].
[16] The Tribunal also rejected his separate argument that a change in the country conditions, including intensification of the humanitarian crisis in Somalia, amounted to a significant change in circumstances.7
Leave threshold
Leave to appeal
[17] Under s 245 of the Act, appeals to the High Court are limited to questions of law. They may only be brought with leave. In determining whether to grant leave, the Court 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.8
[18] In Machida v Chief Executive of Immigration New Zealand, the Court of Appeal said:9
[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.
Although category (b) is open ended, we agree with a series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.10
7 At [91].
8 Section 245(3).
9 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.
10 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19(c)]; Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [8]-[9]; Cao v Immigration and Protection Tribunal [2014] NZHC 259 at [12]; Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [54]-[55]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [9]; Liu v Minister of Business, Innovation & Employment [2014] NZHC 3074 at [9]-[10]; Fu v Chief Executive of the Ministry of Business, Innovation & Employment [2014] NZHC 3346 at [23]; CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594 at [78]; Ali v Minister of Immigration [2015] NZHC 1794 at [32]; and Chan v Minister of Immigration [2015] NZHC 2036 at [26].
[19] As Kós J said in Taafi v Minister of Immigration, where the case is based on criticisms of factual findings, the applicant faces a triple hurdle:11
(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.12
(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;13 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.14
(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. (Here, the applicant does not seek to argue that the questions he presents meet the requirement of being of general or public importance. Thus he relies on the alternative limb that there is “other reason” why the question should be submitted to the High Court.) In my view it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.
[20] In Minister of Immigration v Jooste,15 the Court of Appeal stated that the test under s 245(3) is similar to that applying to second appeals to the Court of Appeal under s 67 of the Judicature Act 1908, citing Waller v Hider.16 In that case, the Court of Appeal had stated that upon a second appeal, the Court is not engaged in the general
11 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19]. See also Hai v Minister of Immigration [2019] NZCA 55 at [37].
12 Faave v Minister of Immigration [1996] 2 NZLR 243 (HC) at 247.
13 Edwards v Bairstow [1956] AC 14 (HL) at 36.
14 Faave v Minister of Immigration [1996] 2 NZLR 243 (HC) at 247.
15 Minister of Immigration v Jooste [2014] NZCA 23 at [5]. See also Hai v Minister of Immigration
[2019] NZCA 55 at [36].
16 Waller v Hider [1998] 1 NZLR 412 (CA).
correction of error. Its primary function then is to clarify the law and to determine whether it has been properly construed and applied by the Court below.17
Leave to bring judicial review proceedings
[21] Under s 249 of the Act, judicial review proceedings may also only be brought in respect of a Tribunal decision with the Court’s leave. In determining whether to grant leave, the Court must have regard to:
(a)whether judicial review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal;18 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.19
[22] This is not a case where it is necessary to consider whether this second limb involves the same test as the “any other reason” limb of s 245(3) or could in the judicial review context invoke wider constitutional human rights considerations.20
Submissions
[23] Mr Pidgeon, counsel for AS, responsibly sought to confine his submissions at the hearing, focusing on AS’s UNHCR mandated status as a refugee. He submitted that the evidence of AS’s mandated status amounted to a significant change in circumstances, even though the underlying facts were in existence when the previous appeal was determined. He emphasised that the evidence was in Kenya and Malaysia, rather than in New Zealand, and AS had been influenced by others to submit a false claim. He had mental health issues and post-traumatic stress disorder (PTSD) which
17 At 413.
18 Section 249(6)(a).
19 Section 249(6)(b).
20 Kumar v Minister of Immigration and Immigration and Protection Tribunal [2016] NZCA 492, [2016] NZAR 1591 at [7]; and Hai v Minister of Immigration [2019] NZCA 55 at [38].
explained why he falsified his claim initially. If deported, he would lose access to his support team.
[24] Mr Pidgeon accepted there was a temporal requirement in s 200 but submitted that the Tribunal had made an error of law by interpreting s 200(1) too narrowly so as to exclude evidence of AS’s mandated refugee status. He also submitted that while the Tribunal referred to AS’s recognition as a refugee in Kenya, it wrongly characterised the interview in Malaysia as a further “recognition” process rather than a resettlement interview,21 effectively not recognising the mandate in Kenya. The Tribunal was aware during the second appeal that AS was seeking evidence of his status as a UNHCR recognised refugee while in Kenya. That evidence only became available subsequently.
[25] Mr Pidgeon also relied on AS’s increasing westernisation in New Zealand as heightening his risk on return. Mr Pidgeon abandoned the separate argument that updated country information provided a significant change in circumstances.
[26] Mr Fong, for the respondent, began by emphasising the leave threshold and the Tribunal’s obligation to apply the Act.22 In relation to the key question of significant change in circumstances, he submitted that AS’s status as a mandated refugee, and evidence of it, were already in existence at the time of the previous claim. Mr Fong submitted this was an insurmountable obstacle on the plain wording of s 200, with its temporal requirement “since the previous claim was determined”. Such an interpretation is consistent with purpose of ss 140 and 200, namely to avoid claims based on pre-existing circumstances. Any other interpretation would do violence to the plain words of the statutory provision. He relied on the decision of Hinton J in EW (Sri Lanka).23
Should leave to appeal be granted?
[27] The key issue is whether it is seriously arguable that the Tribunal made an error of law in relation to “significant change in circumstances”.
21 At [33].
22 Section 193.
23 EW (Sri Lanka) v Refugee and Protection Officer [2019] NZHC 741.
[28] The approach to subsequent claims is mandated under ss 140 and 200 of the Act. Section 140 applies to RPOs whereas s 200 applies to the Tribunal, but they have essentially the same “significant change in circumstances” test. Unless this threshold is met, the merits of the claim for refugee recognition are not considered.
[29]Relevantly, s 200 of the Act provides:
(1)Where an appeal is brought under section 195(1)(a), the Tribunal must first consider—
(a)whether there has been a significant change in circumstances material to the appellant’s claim since the previous claim was determined; and
…
(2)The Tribunal must dismiss the appeal if it determines that—
(a)there is no significant change in circumstances; or
…
[30] There is no dispute that the significant change in circumstances must be “material to the appellant’s claim”, that is, material to the underlying risk of persecution.24 On its face, there is also a temporal requirement, “since the previous claim was determined”.
[31] Before addressing the temporal requirement, it is useful to refer to the purpose of the provisions and recognise the distinction between the ‘significant change in circumstances’ test in s 200(1) (and s 140(1)) in issue in this case and the ‘non-repeating claims’ test in s 200(4) (and s 140(3)). In WK v Refugee and Protection Officer, the Court of Appeal stated:25
[42] … the function of s 140 is to give effect to New Zealand’s obligation to permit sur place claims under the Refugee Convention, namely claims based on circumstances or events that have occurred after the claimant has left their country of origin. By allowing successive or “subsequent” claims in relation to events and circumstances that have arisen after the claimant has left their homeland, the Act gives effect to this country’s obligations under the Refugee Convention and the overarching obligation of non-refoulement.
24 EW (Sri Lanka) v Refugee and Protection Officer [2019] NZHC 741 at [25].
25 WK v Refugee and Protection Officer [2018] NZCA 258, [2019] 2 NZLR 223.
[43] Inherent in the application of s 140 to a subsequent claim is the assessment of any new risk identified by the claimant in that subsequent claim. This may include a change in circumstances in the refugee’s country of origin, an intensification of pre-existing factors that increase the risk of persecution, or where an individual’s conduct has heightened their risk of persecution. As was submitted by Ms Jerebine on behalf of the RPO, s 140(1) allows sur place claims to be considered (subject to a good faith test), while s 140(3) prevents an ongoing cycle of repeated, groundless claims. There is no statutory limit on the number of claims a person can make, nor any time limitation on when a claim can be made.
[44] We accept consideration of New Zealand’s international obligations may be relevant to the exercise of a domestic statutory power.26 However, s 140 was drafted for the very purpose of ensuring New Zealand meets its obligations under the Refugee Convention, including the principle of non-refoulement. It is the means by which a proper balance can be achieved to guard against the risk of refoulement and prevent abuse of the system. So long as the subsequent claim is not repetitive, manifestly unfounded or clearly abusive, and there has been a significant change in circumstances material to the person’s claim for refugee or protected person’s status since a previous claim, s 140 will not prevent that subsequent claim from being considered.
[32] Turning to the temporal requirement “since the previous claim was determined”, in EW (Sri Lanka) Hinton J said the significant change in circumstances test focuses “on actual or real events or conditions in the world”.27 The decision of Gilbert J in E v Chief Executive, Ministry of Business Innovation and Employment, was to similar effect, describing the “circumstances” in s 140(1) as “the facts on the ground”, not evidence establishing those facts.28
[33] At the time of the hearing in this case, E was subject to appeal. E concerned a third claim for refugee status. Following the determination of his second claim, the claimant obtained a new joint medical report. The joint report supported his assertion made in his previous two claims that he had been tortured. Gilbert J held that the facts had not changed. In any event, Gilbert J also found that the joint report was incapable of materially changing the landscape because it related to the claimant’s account which the RPO and Tribunal had previously found not to be credible and could not assist his third claim.
26 Attorney-General v Zaoui [2005] NZSC 38, [2006] 1 NZLR 289.
27 EW (Sri Lanka) v Refugee and Protection Officer [2019] NZHC 741 at [29].
28 E v Chief Executive, Ministry of Business Innovation and Employment [2017] NZHC 3175 at [55] and [61].
[34] Following the hearing, counsel drew to my attention the Court of Appeal’s decision of 18 December 2019 in E (CA746/2017) v Chief Executive, Ministry of Business Innovation and Employment,29 and I invited supplementary written submissions.
[35] In E (CA746/2017) v Chief Executive, Ministry of Business, Innovation and Employment, the Court of Appeal held that s 140(1) encompasses not only sur place claims but also claims founded upon fresh evidence, such as E’s.30 As such, “new cogent, credible and material evidence is capable of being a circumstance which can sustain a subsequent claim”.31 The Court of Appeal then dealt with the relationship between ss 140(1) and (3), which it is unnecessary to consider in this case. In relation to the High Court’s alternative finding, the Court of Appeal considered that the joint report was capable of materially changing the landscape because it meant E was for the first time able to provide credible and corroborative evidence, expert evidence in fact, that the injuries he had suffered were consistent with the one constant element of his narrative, namely his detention and beatings. There was no suggestion he could have obtained the evidence any earlier. The appeal was allowed.
[36] Thus, fresh evidence may be a change in circumstances under s 140(1) – and I infer s 200(1) – even though the evidence relates to facts that pre-date the determination of the previous claim. The Court of Appeal has not dispensed with the temporal requirement in the Act but rather clarified that circumstances may extend beyond facts to new evidence of those facts.
[37] Mr Fong submitted that E is distinguishable from this case for three reasons. First, the Court of Appeal in E did not address the temporal qualification imposed by the words “since the previous claim was determined”. The joint report, being fresh evidence constituting a “significant change of circumstances” was completed after the Tribunal had determined the claimant’s previous claim for refugee status. In this case, however, the claimant’s UNHCR records about his mandated refugee status, relied on
29 E (CA746/2017) v Chief Executive, Ministry of Business, Innovation and Employment [2019] NZCA 658.
30 At [60].
31 At [78].
as the relevant significant change of circumstances, were in existence well before his previous claim was determined on 31 October 2017.
[38] Secondly, unlike E, there is no reason why realistically AS could not have obtained the evidence now provided any earlier than that determination. The reason why the UNHCR records (or his asserted mandated refugee status) were not obtained was that he had chosen in his previous claim to tell a different narrative – which is now admitted to be false. In other words, the records are not new, cogent or fresh evidence.
[39] Thirdly, again unlike E, the UNHCR records are not capable of materially changing the landscape in this case. The UNHCR had deemed the complainant’s application for refugee status determination to have been abandoned on 27 August 2015. The records expressly state that the claimant is now “not of concern, asylum claim abandoned”. Accordingly, the records relied on as a significant change of circumstances can have no material impact on determination of his subsequent claim. In any event, the UNHCR’s assessment cannot dictate the Tribunal’s own conclusion on his claim.
[40] Mr Pidgeon acknowledges that E is not relevant to the temporal issue. He also acknowledges that the UNHCR evidence is not fresh, but submits it is cogent evidence and that AS’s PTSD and trauma mitigate the delay and failure to refer to the UNHCR material earlier. Mr Pidgeon also submitted that the records are capable of materially changing the landscape. Although the applicant missed his interview for relocation and so his refugee claim was “abandoned”, he was still a registered UNHCR refugee.
[41] Mr Pidgeon also emphasised that merits are relevant to leave and suggested that he may have erred at the hearing by failing to focus on use of the Court’s implied power to regulate proceedings. He submitted that AS is arguably a refugee already, simply not presently recognised under New Zealand’s system.
[42] Considering the Tribunal’s decision in light of the Court of Appeal’s judgment in E, I conclude that the Tribunal emphasised the temporal requirement but not in a way that is undermined by the decision in E. The Tribunal’s essential reason for
concluding there was no significant change in circumstances since the previous claim was determined was not based on a distinction between evidence and underlying facts, which the Court of Appeal rejected, but rather a “deliberate tactical election by a claimant not to reveal or rely on a circumstance in existence through the currency of a first or prior claim”,32 citing Muir J’s earlier decision in EW (Sri Lanka).33
[43] I accept Mr Fong’s submission that E is distinguishable because the fact that AS had been recognised as a refugee by UNHCR in Kenya was a circumstance in existence and known to AS before the previous claim was determined. It was not new in the subsequent claim. AS chose not to refer to it in his earlier false claim. I accept that documentation confirming UNHCR’s recognition of AS’s status was obtained after the Tribunal’s previous determination. But that more cogent evidence was not new – it would have been available had AS sought it earlier. It might be new cogent evidence amounting to a change in circumstances if, in his earlier claim, AS had relied on his recognition as a refugee by UNHCR in Kenya and that claim was rejected for lack of evidence. But, as indicated, that is not the case here.
[44] The remaining question is whether there might still be a significant change in circumstances since the previous determination if AS was mentally incapacitated at the time of his previous claim, on the basis that the evidence in the subsequent claim might be accepted to be new or fresh in the sense that it could not with reasonable diligence have been produced at the earlier hearing.34 I do not rule out the possibility of an exceptional case where such incapacity led to evidence not being adduced in a previous claim, and in a subsequent claim evidence of that incapacity could be accepted as “new cogent, credible and material” so as to amount to a significant change in circumstances. In such a case the failure to adduce the evidence in the previous claim would not be characterised as a deliberate tactical election. I consider that recognising such an exceptional case could be consistent with a purposive reading of the “significant change in circumstances” test in the Act, the Court of Appeal’s
32 E (CA746/2017) v Chief Executive, Ministry of Business, Innovation and Employment [2019] NZCA 658 at [49]-[50].
33 EW (Sri Lanka) v Refugee Protection Officer [2018] NZHC 2130 at [12].
34 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192; affirmed in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6], footnote 1.
decision in E and New Zealand’s obligations under the Refugee Convention and the overarching obligation of non-refoulement.35 I say exceptional because I acknowledge the need, as Mr Fong submitted, not to encourage claimants to advance a concocted account (with their perceived best chance of success) on the first go because, if that fails, they may still put forward a ‘true’ original account to support a subsequent claim, without falling foul of the jurisdictional threshold.
[45] Whether the circumstances in this case are sufficient to make out any such exception involves a challenge to the Tribunal’s factual finding that there was a deliberate tactical election by AS not to reveal or rely on a circumstance in existence through the currency of the prior claim. Thus, the applicant’s first hurdle is to show a seriously arguable case that the Tribunal’s factual finding is actually incorrect.36
[46] I consider there is not a seriously arguable case that the Tribunal’s factual finding that there was a deliberate tactical election by AS not to reveal or rely on a circumstance in existence through the currency of the prior claim is incorrect, let alone so grave as to constitute an error of law,37 for the following reasons.
[47] In the subsequent claim there was no real evidence of mental incapacity at the time of the previous claim, nor that such mental incapacity led to fabricating a claim based on alleged events in Somalia instead of explaining AS’s recognition as a mandated refugee in Kenya. AS’s acknowledgement in the subsequent claim that in his claim in Malaysia he had advanced an account in line with the subsequent claim suggests he was not mentally incapacitated at that time. In an affidavit he filed in the Tribunal during the subsequent claim, to explain his efforts to obtain evidence of his status as a UNHCR recognised refugee, he self-reported that he had mental health issues, particularly depression and problems arising from his time at Mt Eden, which included loss of memory, as he had blacked out traumatic periods in his life. But even his evidence in the subsequent claim did not really suggest that mental incapacity explained his fabrication throughout the previous claim. Rather, accepting he was
35 Section 129(1) of the Act provides that a “person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention”.
36 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19(a)]; see [19] above.
37 At [19(b)].
scared and worried about his future, his evidence explaining his previous false claim was that he had naively followed the advice of others, including people smugglers.
[48] The only medical evidence in the subsequent claim was a letter from AS’s GP confirming that a diagnosis of PTSD by a psychologist, Mr Woodcock, adduced in the previous proceeding, remained the same. Mr Woodcock’s view was also before the Tribunal in the subsequent claim.38 There was no medical evidence indicating that mental incapacity explained his false account throughout the previous proceedings.
[49] Section 133(3) provides that a claimant must endeavour to provide all information relevant to his or her claim. Section 135 provides that it is the responsibility of a claimant to establish his or her claim for recognition and, to this end, the claimant must ensure that before a determination all information, evidence, and submissions that the claimant wishes to have considered in support of the claim are provided. An appellant to the Tribunal has a similar responsibility under s 226.
[50] Compelling evidence would be required to explain how mental incapacity arising from AS’s time at Mt Eden (or otherwise) could have led to fabricating a claim based on alleged events in Somalia instead of explaining his recognition as a mandated refugee in Kenya – and then maintaining that false claim for almost three years through two separate de novo appeal hearings before different panels of the Tribunal and before the High Court in the 2016 proceeding.
[51] If anything, the available evidence indicates the contrary – notwithstanding Mr Pidgeon’s selfless attempt to take responsibility for the way the subsequent case was run. In addition to AS’s acknowledgement that he had naively followed the advice of others, his reliance on his mental health during the previous appeal to the Tribunal suggests he made a deliberate tactical election rather than that he was mentally incapacitated. In the previous appeal, AS said that he had been struggling mentally since he had been in New Zealand and he called Mr Woodcock who diagnosed PTSD which could have been occasioned by trauma experienced as a result of the murders of his family members in Mogadishu. [Withheld].39
38 Re AS (Somalia) [2019] NZIPT 801326 at [86].
39 Re AO (Somalia) [2017] NZIPT 801142 at [37].
[52] In the subsequent claim, the Tribunal referred to Mr Woodcock’s view and then said:40
Therefore, the Tribunal does not discount the evidence that the appellant manifests a depressive disorder that may be rooted in PTSD, albeit for reasons other than those previously claimed by the appellant. [Withheld].
[53] This was in the context of the Tribunal’s consideration of the alternative country information argument relating to changed humanitarian circumstances in Somalia, that the level of care available to AS there will be deficient and he will face discrimination. But it indicates that his case was not that mental incapacity accounted for his previous false claim.
[54] Finally, even accepting that the UNHCR documents were not available to AS at the time of the previous claim, they merely confirm his recognition as a mandated refugee in Kenya, which was known to him – but not referred to – at the time of the previous claim.
[55] For these reasons, I conclude there is not a seriously arguable case that the Tribunal was incorrect to make a factual finding that there was a deliberate tactical election by AS not to reveal or rely on a circumstance in existence through the previous claim. I conclude there is no seriously arguable question of law as to the Tribunal’s application of s 200.
[56] I therefore cannot accept Mr Pidgeon’s submission that it would be preferable to deal with this case as a significant change in circumstances rather than by way of an application to the Tribunal to recall its previous decision on the basis of fresh evidence. I note that alternative also seems unavailable given that fresh evidence must be new, in the sense that it could not with reasonable diligence have been produced at the earlier hearing, as well as cogent.41
[57] Separately, I deal briefly with Mr Pidgeon’s submission that the Tribunal mischaracterised the UNHCR recognition of AS as a mandated refugee in Kenya.
40 Re AS (Somalia) [2019] NZIPT 801326 at [86]-[87].
41 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192; affirmed in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6], footnote 1.
As Mr Fong accepted, while a UNHCR determination is not determinative or binding on individual countries, it requires close attention when evaluating a claim.42 Quite apart from the respect that is due to such a decision by reason of the unique and matchless experience and expertise of UNHCR, considerations of comity, legal diplomacy and the need for consistency of approach in international protection of refugees demand no less.43 In addition, the fact of recognition might increase AS’s risk of persecution in Somalia. I also accept that the Tribunal stated that when AS was in Malaysia UNHCR was aware of his recognition as a refugee in Kenya but required him to submit to a further “recognition” process. It may be that process in Malaysia was really a further resettlement process. Also, Mr Fong accepted that the fact that UNHCR in Malaysia later deemed AS’s application to have been abandoned after he missed his resettlement interview was not determinative either. The deemed abandonment does not call into question the UNHCR determination in Kenya of AS as a mandated refugee. But I consider these references by the Tribunal are immaterial to its decision that there was no significant change in circumstances.
[58] I note that if I had been persuaded that there was a seriously arguable question of law in relation to mental incapacity, I would likely have accepted that the question has importance extending beyond the particular case in terms of warranting leave under s 245 of the Act.
[59]I conclude that leave to appeal should not be granted.
Judicial review
[60] If I had considered that there was a seriously arguable question of law, I would have concluded that the issue could adequately be dealt with in an appeal and would not require leave to bring judicial review proceedings.
[61] Having concluded, however, that there is no seriously arguable question of law justifying leave to appeal, the remaining question is whether the any other reason/limb of s 249 justifies leave to bring judicial review proceedings. I cannot identify any
42 IA (Iran) v Home Secretary [2014] UKSC 6, [2014] 1 WLR 384 at [49].
43 At [48].
other reason. I have indicated my doubt about an application to the Tribunal to recall its previous decision on the basis of fresh evidence but in any event judicial review proceedings in this Court are not an appropriate alternative to that course.
[62] Accordingly, I do not consider that leave to bring judicial review proceedings should be granted.
Result
[63]Both applications for leave are dismissed.
Costs
[64] Costs would ordinarily follow the event. I understand that AS is not legally aided. If costs are sought, and cannot be agreed, I invite brief memoranda (not exceeding three pages) from the respondent within 15 working days and the applicant 10 working days thereafter.
Gault J
Solicitors:
Mr R S Pidgeon, Barrister, Auckland
Mr D J Perkins and Mr HTN Fong, Crown Law Office, Wellington
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