AX (Afghanistan) v Immigration and Protection Tribunal
[2017] NZHC 2840
•20 November 2017
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.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1295
CIV-2017-404-1297 [2017] NZHC 2840
UNDER the Judicial Review Procedure Act 2016 and
the Immigration Act 2009
IN THE MATTER
of applications for leave to appeal and bring judicial review
BETWEEN
AX (AFGHANISTAN) Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent (CIV-2017-404-1297 only)
THE REFUGEE AND PROTECTION OFFICER
Second Respondent
Hearing: 7 November 2017 Appearances:
J Hall for the Applicant
No appearance by or on behalf of the First Respondent
J Cassie for the Second RespondentJudgment:
20 November 2017
JUDGMENT OF GORDON J
This judgment was delivered by me on 20 November 2017 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
AX (AFGHANISTAN) v THE IMMIGRATION AND PROTECTION TRIBUNAL [2017] NZHC 2840 [20 November 2017]
Date:
Introduction
[1] AX is a 48 year old citizen of Afghanistan and Russia. He arrived in New Zealand on a visitor’s visa on 1 November 2015 and subsequently filed an application for refugee and/or protected person status. His claim was rejected by a Refugee and Protection Officer and by the Immigration and Protection Tribunal on appeal (the decision).1
[2] The applicant now seeks leave to appeal the decision to the High Court and to commence judicial review proceedings in respect of the decision.
[3] The second respondent opposes both applications.
Factual background
[4] AX was born in Afghanistan. As a child, he lived in the cities of Jalalabad and Kabul with his parents and five siblings until, in 1984, he chose to commence his tertiary studies in Russia. He received a scholarship to study at the Moscow Technical University, where he gained a Master of Science and Technology degree, following which AX was invited to undertake further studies at the University with a view to completing his PhD.
[5] AX remained in Russia until 1998, when his ailing father asked him to return to Afghanistan. Thereafter AX lived in Afghanistan. In May 1999, he returned to Russia for a week to acquire Russian citizenship and a Russian passport. He paid a fee of US$3,000 to an agent to assist in the process. A passport was then issued in AX’s name.2 The date of birth in the passport was not accurate, as AX failed to consult his Afghani identity card when making the application.
[6] Thereafter AX returned to Afghanistan, where he married his wife and fathered five daughters. He also established a retail business in Jalalabad importing women’s
1 AX [2017] NZIPT 800989.
2 The name in the passport is slightly different from AX’s true name, which was attributed to the translation from Pashtun into Russian.
handbags from China. As part of his business dealings, AX began making regular trips to China to buy stock at wholesale prices. He would travel to Russia on his Russian passport, because it was easier to obtain a Chinese visa there. In 2012, AX commenced an extra-marital relationship with a Russian woman, whom he would visit two or three times each year on his way to or from China.
[7] AX also maintained a small family farm in the Surkh-Rod district, a short distance from Jalalabad.
[8] In May 2015, AX was visiting his family farm when he was approached by several Taliban insurgents. The insurgents took his money and tied him up in a barn on the property, where he remained for several hours. The insurgents demanded that AX surrender his family farm and give his eldest daughter to one of them in marriage, or he would be killed. In fear, AX agreed to hand over his farm but asked for more time to consider the demand for his daughter. He was told to return to the farm in a week’s time to deliver his answer.
[9] AX returned to Jalalabad, where he continued to receive threats from the Taliban via mobile phone and via his farm workers. When he failed to return to the farm a week later, he was contacted by the Taliban. AX was told that he had broken his promise and had been sentenced to death under Islamic law.
[10] Following these threats, AX decided to leave Afghanistan. He went to the Russian Embassy in Kabul and sought visas for his wife and children, but was told by an official that it was well known that Afghanis obtained Russian passports through bribery and then attempted to take their families out of the country.
[11] AX then contacted an agent who could facilitate his exit from Afghanistan. He paid US$10,000 to the agent, who told him to go to Moscow to arrange a visa for New Zealand there, using his Russian passport. AX did so, leaving his wife and children in Jalalabad. He arranged for his brother-in-law to stay with the family while he was away and told the children not to go out. The family subsequently moved to Kabul to stay with AX’s brother.
[12] AX went to Moscow in June 2015. He stayed in a rental property which the agent had arranged. AX then travelled to Europe on his Russian passport with his mistress, apparently so that it would appear he was a seasoned traveller.3 Thereafter, AX said, he was taken by the agent as far as Guangzhou airport in China, before taking a flight to New Zealand, arriving on 1 November 2015. AX said that the agent took his Russian passport off him, telling him that he should not carry it because the New Zealand authorities would use it to deport him.
[13] On 18 November 2015, AX lodged an application for refugee and/or protected person status. Some of the grounds listed in that application have been revised as a result of subsequent admissions by AX, particularly concerning his Russian citizenship. In AX’s most recent statement to the Tribunal, he stated that Taliban insurgents regularly kill and fight the local people without regard to their ethnicity or faith. They particularly target those who, like AX, have been educated in Russia, calling them communists. AX’s life, and those of his family, are under serious threat.
[14] AX also expressed fears about returning to Russia. He said that he obtained his Russian passport at a time when citizenship laws in Russia were suspended. As a result of his enquiries with the Russian Embassy in Kabul, AX believes that his family will be unable to join him in Russia. He fears ill-treatment in Russia. Those fears have been exacerbated following contact between New Zealand and Russian authorities. AX says he has faced discrimination in the past in Russia including discrimination in finding housing and accessing medical care.
The Tribunal’s decision
[15] The Tribunal accepted that the incident with the Taliban at AX’s family farm in May 2015 had occurred, in more or less the way AX had described. In coming to this conclusion, the Tribunal was assisted by the evidence of Jawad Hakami, who is the Head of Legal Protection at the Department of Refugees and Reparation in Nangarhar, Afghanistan. Mr Hakami was able to contact local security forces, police
and the regional Elders’ Council, who confirmed AX’s account of the incident. The
3 AX’s mistress was also included in his visa application to New Zealand, although she did not accompany him here.
Tribunal also heard evidence from AX’s brother, who confirmed that AX’s family was presently residing with him. AX’s brother stated that he had visited the family farm and that the farm workers there had corroborated AX’s version of events. He said that the Taliban continued to run the farm and periodically asked about AX’s whereabouts.
[16] Notwithstanding this finding, the Tribunal expressed some concerns about
AX’s credibility in respect of his Russian nationality. In particular, the Tribunal noted:
[47] Initially, the appellant denied to the RSB that the Russian [AX] passport was his own document. He claimed that he had not been to Russia since 1998 and he denied knowing [his mistress] (who had been included as his partner in the visa application). After further questioning however, he admitted he had obtained Russian citizenship in the late 1990s, that he had obtained the [AX] passport in Russia (the original passport having been renewed three times, without difficulty) and that he knew [his mistress].
[48] The appellant now asserts that he is not a Russian citizen, as his passport was obtained irregularly. In support of this, he says that:
(a) at the time he obtained it, Russian nationality laws had been suspended following the collapse of the former Soviet Union;
(b) he paid an agent US$3,000 to obtain his passport; and
(c) when he approached the Russian embassy in Kabul to get temporary visas for his family, he was refused by an embassy official who told him that everyone knew that Afghanis obtained Russian passports through bribery and then tried to get their families out of the country.
[49] None of those assertions, individually or cumulatively, establishes that the appellant is not recognised by the Russian authorities as a Russian citizen.
[17] The Tribunal went on to consider each of the supporting grounds individually. Turning first to the claimed suspension of Russian citizenship laws, the Tribunal found that this claim was false:
[50] As to the claim that at the time he obtained Russian citizenship, its citizenship laws had been suspended following the collapse of the former Soviet Union, that assertion is not supported by the country information. In fact, the former USSR collapsed in 1991, a full eight years before the appellant applied for citizenship, and comprehensive citizenship laws had been put in place well before his application. …
…
[52] In spite of the appellant having been issued no less than four Russian passports over the years, the Tribunal reminds itself that citizenship is not
created by possession of a passport but it is nevertheless prima facie evidence that the person named therein is a national of the issuing country.
[18] The Tribunal noted that AX had been allowed further time following the appeal hearing – nearly five months in total – to provide further evidence in support of his claim that he was not a Russian national:
[53] In fairness to the appellant given the significance of this issue to his claim to be recognised as a refugee in New Zealand, and notwithstanding that he had had ample time before the hearing and had been alerted to the relevance of the issue by the RSB, following the appeal hearing, the Tribunal allowed the appellant further time to produce evidence to support his claim not to be a Russian national.
[54] During this period, counsel contacted a lawyer in Moscow, Tatyana Kremenuk, to request a copy of the appellant’s immigration files held by the Russian authorities. Ms Kremenuk applied on 19 January 2017 to the Migration State Department of the Russian Federation. She enclosed the appellant’s signed authority.
[55] Ms Kremenuk’s most recent communication advises that she has not received any reply from the Migration Department. On 27 January 2017, however, the Migration State Department responded to her, simply advising that it was unable to process the request without the personal consent of the appellant.
[56] Ms Kremenuk then wrote to counsel, advising (verbatim): “Considering the nature of the inquiry, as well as general practise of
such inquiries, it is fair to conclude it would be impossible to obtain the requested information due to the fact that if the person tried to obtain the citizenship, it may have been done illegally, as it was a common occurrence in that period.”
…
[58] The correspondence from Ms Kremenuk does not establish that the appellant is not recognised as a Russian national. Granted, the response from the Migration State Department that the appellant would need to provide his (already provided) consent to the release of information was inadequate, but the appropriate step at that point would have been for Ms Kremenuk to explain that the Department already had the appellant’s consent, not for Ms Kremenuk to simply abandon the request. That an employee in a busy government department should fail to have regard to an already-provided consent document is not a matter which goes anywhere near establishing that, properly alerted to the existence of the consent, it would not have provided the information sought. That Ms Kremenuk has clearly abandoned the pursuit simply leaves the Tribunal in the position it was in before the enquiry was commenced – without any evidence (even though it should, prima facie, be available) to rebut the presumption arising from the appellant’s long-term holding of a genuine Russian passport that he is a Russian citizen.
[59] In summary on this point, for the appellant to claim that he obtained citizenship at a time when Russian citizenship law was suspended is not supported by the country information as set out in the 1993 UNHCR note and the appellant has not produced any country information himself to call the summary contained in that note into question.
[19] Turning next to AX’s claim that he had paid US$3,000 to an agent to secure his Russian passport, the Tribunal continued:
[61] The appellant may well have done so. Migration agents are routinely engaged for such purposes in many countries (including New Zealand) and there is nothing in that approach which speaks to the legitimacy of the citizenship thus acquired. Further, the renewal of the appellant’s passport on no less than three occasions, and his repeated use of that passport to enter and exit Russia without difficulty over many years, strongly suggests that the Russian state regards his grant of citizenship to be legitimate.
[20] Lastly, the Tribunal considered the significance of the statement by the Russian
Embassy official in Kabul:
[63] This claim by the appellant did not emerge until late in his evidence to the RSB, and only after he had been compelled to admit that he had concealed the evidence of his Russian citizenship to that point. Even if it is true, however, it is of little weight. It was a single remark by one unidentified embassy official of unknown rank or authority, not made in the context of a formal application of any kind. It was expressed in sweeping terms, with no specific reference to the legitimacy of the appellant’s Russian citizenship. Indeed, the primary focus of the conversation was not whether the appellant was recognised as a Russian citizen but whether his family (who were not Russian citizens) would be given temporary visas. This singular incident provides an extremely thin evidential basis from which to infer that the Russian state would not recognise the appellant as a citizen (when they had repeatedly done so in the past).
[21] The Tribunal noted that AX had taken no steps to contact the Russian Embassy in New Zealand to confirm his citizenship status. When asked about this omission, AX offered a vague and unsubstantiated assertion that contacting Russian authorities for this purpose would cause trouble for him and that he knew how the “Russian system” works. The Tribunal remarked that this left unresolved the important question of why AX had not taken the straightforward step of having the Russian authorities confirm what he said – that he is not a Russian national.
[22] The Tribunal concluded:
[65] The above factors lead the Tribunal to conclude that the appellant is recognised by Russia as a national of that country. The repeated issuing to him of Russian passports and his repeated, unhindered entry and exit from that country using that passport over many years, coupled with his incorrect claim that the nationality laws have been suspended and his reluctance to make serious efforts to obtain evidence from the Russian authorities (either through Ms Kremenuk, whose efforts are best described as half-hearted, or through an embassy or consulate), lead the Tribunal to conclude that the appellant is a Russian national. It is reinforced in this view by the appellant’s deliberate attempt to hide the existence of his Russian nationality from the New Zealand authorities until his hand was forced. Were he not a Russian national, this would not have been necessary. His claim that the agent told him to destroy his Russian passport to obstruct any attempt by the New Zealand authorities to deport him is not overlooked but (even if true) it simply speaks to his own belief at the time that the passport would be viewed by the Russian authorities as valid.
[23] The Tribunal then turned to consider whether AX should be considered a refugee and/or protected person under New Zealand’s international treaties. It set out the test for determining refugee status, which requires a two-stage inquiry:4
(a) Objectively, on the facts as found, is there a real chance of the applicant being persecuted if returned to the country of nationality?
(b) If the answer is yes, is there a Convention reason for that persecution?
[24] In respect of the first question, the Tribunal held:
[72] The relevance of the appellant’s Russian nationality is that the Convention requires that he face a well-founded fear of being persecuted in each of the countries of which he is a national. Absent a well-founded fear in relation to any one of such countries, a claimant is expected to avail him or herself of the protection of that country and refugee status is to be denied. There is no credible evidence before the Tribunal to establish that he would not be able to obtain a new Russian passport and use this document to enter and reside in that country as he has done in the past. He does not suggest he is at any risk from the Taliban in Russia.
[73] Apart from the vague and unsubstantiated claim that he may have problems with “the Russian system” because of inquiries made by the RSB, the appellant does not profess any well-founded fear of being persecuted if he returns to Russia (nor is one objectively apparent) and it follows that his claim for recognition as a refugee must fail.
4 Citing Refugee Appeal No 70074 (17 September 1996).
[25] The Tribunal also addressed several other points raised by AX. Regarding the possibility that AX’s family would be unable to join him in Russia, the Tribunal noted that on the evidence this inability was not established and, in any event, the question of refugee status must be determined by reference to AX individually, not his family as a whole. The Tribunal accepted that AX faced a real chance of serious harm at the hands of the Taliban in Jalalabad but noted that, had it been required to determine the issue, it might have found that AX could live in Kabul without any real chance of experiencing harm there.
[26] For similar reasons, namely AX’s ability to access the protection of the Russian state, the Tribunal found that AX was not a protected person under the Convention Against Torture or the International Covenant on Civil and Political Rights.
Application for leave to appeal
[27] AX has filed an application for leave to appeal against the decision of the
Tribunal on the bases that:
(a) There is a seriously arguable case that the factual findings made by the Tribunal were incorrect; and that the errors, in combination and in the context of the Tribunal’s decision as a whole, were so grave as to constitute an error of law.
(b)The Tribunal failed to exercise its duty to investigate and locate compelling evidence that AX would be admissible to, and safe from refoulement from, Russia; and further, to assess whether Russia would provide sufficient protection of other rights.
(c) The Tribunal failed to properly exercise its discretion to function in an inquisitorial manner under s 218(2) of the Immigration Act 2009 (the Act).
(d)The Tribunal failed to consider whether AX would be granted the same rights in New Zealand and Russia.
(e) The Tribunal failed to apply the correct test to determine whether AX
could access sufficient protection elsewhere.
(f) The Tribunal failed to take account of specific statements made by AX
concerning his safety in Russia.
Relevant law
[28] Section 245 of the Act relevantly provides:
245 Appeal to High Court on point of law by leave
(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
…
[29] The Court of Appeal has accepted that the introduction of the leave requirement in s 245(3) indicates Parliament’s intention to limit appeals against immigration decisions.5
[30] In order to meet the threshold in s 245(3), an appellant must identify a seriously arguable question of law which either:6
(a) Has importance extending beyond the particular case; or
5 Taafi v Minister of Immigration [2013] NZAR 1037 (CA) at [18].
6 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
(b)For some other reason, warrants a decision from the High Court. This requirement will only be met in an exceptional case involving individual injustice to such an extent that the decision of the Tribunal must not be allowed to stand.
[31] The Court of Appeal in Taafi v Minister of Immigration has held that where the appellant alleges factual errors on the part of the Tribunal, the appellant faces a “triple hurdle”:7
(a) First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court’s finding.
(b) Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i) the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and
(ii) the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application …
(c) Thirdly, the appellant 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. …
[32] Bearing the relevant law in mind, I turn to consider the proposed grounds of appeal put forward on AX’s behalf.
Factual errors by the Tribunal
[33] The first proposed ground of appeal alleges that the Tribunal made significant factual errors in its decision. With respect to the submissions filed by Mr Hall, it is difficult to identify the precise factual findings which are said to be made in error.
There is however a general allegation that the Tribunal erred in fact when it found that
7 Taafi v Minister of Immigration, above n 5, at [19] (footnotes omitted).
AX held Russian citizenship and could return to Russia if his application for refugee and/or protected person status was denied in New Zealand.
[34] This generalised criticism of the Tribunal’s decision does not meet the threshold set out by the Court of Appeal in Taafi. First, AX has failed to establish a seriously arguable case that the findings of the Tribunal were actually incorrect. The Tribunal accepted AX’s evidence of events in Afghanistan and on that basis, it appears unlikely that AX intends to challenge the factual findings of the Tribunal in this respect. The Tribunal was however critical of AX’s stated fear of returning to Russia.
[35] The relevant paragraphs of AX’s statement to the Tribunal read as follows:
14.Please understand that I couldn’t go to Russia. As I have mentioned before, I bought my Russian passport at a time when citizenship laws in Russia were suspended. When I went to ask the Russian authorities whether I could get visas for my family both at the Embassy in Afghanistan and in Russia, I was told that they will not be issued visas. I believe that they must know of the circumstances as to how I came to obtain my passport in the first place and so they dismissed my request straight away. This is how I know that there is no chance that I can take my family and live in Russia – how can I live there when I know that my family will not be safe in Afghanistan? I need to be able to protect my family and New Zealand is our only chance. I also worry that given that now the New Zealand authorities have contacted the Russian authorities and that I too have made enquiries with them, they would not renew my Russian passport.
15.But it is not just that. I am aware that the New Zealand authorities made enquiries about me with the Russian authorities after I arrived here. I am aware that New Zealand immigration authorities made contact with the Ministry of Foreign Affairs in Russia asking about me including if I have criminal convictions in the country. I am afraid that my profile has been flagged to the Russian authorities and that if I go to Russia I will face problems.
16. In Russia, there is no rule of law; no compassion for human rights.
My life is not worth anything to the Russian government and I fear that I may even be detained arbitrarily as a result, or face worse
problems if I return. I also am aware that there is a lot of
discrimination against foreigners in Russia especially people like me which will make matters worse for me. I have faced discrimination in finding housing, accessing medical care and given the current situation I know that it will only have become worse. If I did have to go there, I know that I would face problems.
[36] As I have noted above, the Tribunal considered the allegations raised by AX in some detail. It rejected his claim that he had obtained his citizenship illegally at a time
when citizenship laws were suspended following the breakdown of the Soviet Union. In my view, the Tribunal was entitled to do so. The collapse of the Soviet Union occurred in 1991. AX obtained his Russian passport in 1998. The country information provided to the Tribunal indicated that by that time, comprehensive citizenship laws had been put in place. That fact alone tends to contradict AX’s version of events. Further, and as noted by the Tribunal in its decision, there are reasons to doubt AX’s credibility regarding the status of his Russian citizenship. AX has demonstrated that he is willing to lie about his connections with Russia. That being the case, AX cannot reasonably complain about the fact that New Zealand authorities have treated his present account of events in Russia with a degree of scepticism.
[37] As regards the remainder of AX’s statement concerning Russia, the Tribunal accepted first, that AX had approached an Embassy employee to make enquiries about moving his family to Russia and second, that AX held generalised fears about the rule of law in Russia. It simply considered that these matters were not sufficient to demonstrate that AX had a well-founded fear of persecution in Russia. I agree with that conclusion.
[38] Mr Hall submitted that, having found AX’s story regarding the incident with the Taliban in Afghanistan to be credible, the Tribunal had a duty to give AX the benefit of the doubt with regard to his evidence regarding his experiences in Russia. The reason for giving refugee claimants the benefit of the doubt is encapsulated in the following extract from the Handbook on Procedures and Criteria for Determining Refugee Status, issued by the Office of the High Commissioner for Refugees:8
(2) Benefit of the doubt
203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is
8 Handbook on Procedures and Criteria for determining Refugee Status (issued in 1979 and re- edited in 1992) as cited in Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) at [28].
satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
[39] The Court of Appeal in Jiao v Refugee Status Appeals Authority accepted that the expression “benefit of the doubt” was “plainly a useful one in this context”.9 It then continued:10
What may be said, however, is that the phrase should not get in the way of a 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. As the United States Court of Appeals for the Second Circuit recently said, while “credible testimony may be enough depending on the circumstances”, applicants should “make an effort to support [their] statements by any available means and give a satisfactory explanation for any lack of evidence”…
[40] Two points emerge. The first is that, in relation to the requirements suggested at para 204 of the Handbook on Procedures and Criteria for determining Refugee Status, the Tribunal in this case was not satisfied as to AX’s general credibility in respect of his Russian nationality, with good reason. The second point is that the requirement to give a refugee claimant the benefit of the doubt does not absolve the claimant of his obligation to present all available evidence in support of his claim. The Tribunal in its decision found that AX had failed to present any real evidence in support of his claims regarding Russia, despite numerous opportunities, and in particular, had not taken the straightforward step of approaching the Russian Embassy in New Zealand to confirm that he was not a Russian national. To require the Tribunal to give AX the benefit of the doubt under those circumstances would undermine the obligation upon refugee claimants to establish their claims for refugee status and would effectively require the Tribunal to accept the unsupported evidence of refugee claimants uncritically, even where those claimants lack credibility.
[41] I do not consider that the allegations of factual errors on the part of the Tribunal meet the threshold set out in s 245(3) for granting leave to appeal the Tribunal’s
decision.
9 Jiao v Refugee Status Appeals Authority, above n 8, at [29].
10 At [29].
Failure to investigate the situation in Russia
[42] The second proposed ground of appeal alleges that the Tribunal failed to exercise its duty to investigate and locate compelling evidence that AX would be admissible to, and safe from refoulement from, Russia; and further, to assess whether Russia would provide sufficient protection of other rights.
[43] Mr Hall submitted that the Tribunal had failed to correctly apply the decision of the Tribunal in AH (Egypt) for assessing whether an asylum seeker can be protected in another country without risk of being returned to a country where he or she is at risk.11
[44] The appellants in AH were an Egyptian family comprising a father, mother and three children (C1, C2 and C3). Two of the children held United States citizenship, but the remainder of the family did not. One of the issues which the Tribunal was required to consider was whether the children should look to the United States for protection from any harm feared in Egypt. The Tribunal held:
[3] As already noted, C2 and C3 are citizens of the United States. They hold current United States passports. Article 1A(2) of the Refugee Convention relevantly provides:
… In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
[4] It has not been suggested that either C2 or C3 have a well-founded fear of being persecuted in the United States. As citizens, they can avail themselves of the protection of the United States in respect of any harm they fear in Egypt. For these reasons, they cannot be recognised as refugees under section 129 of the Immigration Act 2009 (“the Act”). …
[45] The remainder of the decision, including the discussion of protection in other countries and the possibility of refoulement, concerned the remaining members of
AH’s family, who did not possess citizenship of any country other than Egypt.
11 AH (Egypt) [2013] NZIPT 800268.
[46] Contrary to the initial submission by Mr Hall, the reasoning of the Tribunal in the present case was entirely consistent with that in AH. Since AX holds dual citizenship, his situation is most analogous to that of C2 and C3, who were not recognised as refugees. It would follow, applying AH, that there was no need to consider the possibility of refoulement and/or the status of human rights protections in Russia.
[47] In the course of the hearing, however, Mr Hall refined his submissions regarding this issue. He acknowledged that, in general, a person seeking refugee status would be required under Article 1A(2) of the Refugee Convention to demonstrate that they were unable to return to the country of their nationality, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” (emphasis added). However, Mr Hall noted, that language is not replicated in respect of persons holding more than one nationality. Rather, Article 1A(2) provides that:
… a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
(emphasis added)
[48] Mr Hall submitted that the phrase “any valid reason based on well-founded fear” was broader in scope than the phrase used earlier in Article 1A(2), “owing to well-founded fear”, and must be interpreted accordingly. Specifically, Mr Hall submitted, the phrase “any valid reason based on well-founded fear” must be interpreted in light of Article 33(1) of the Refugee Convention, which prohibits any Contracting State from returning a refugee to the country where he or she has a well- founded fear of persecution. In other words, the possibility of refoulement is a “valid reason based on well-founded fear” which would justify granting refugee status, even though the applicant holds citizenship of more than one country.
[49] Mr Hall’s amended submission carries some force. Suppose, for present purposes, that an applicant for refugee status holding dual nationality of Country A and Country B can demonstrate a well-founded fear of persecution in Country A and a real risk of refoulement if returned to Country B. It would be clearly inconsistent
with the spirit of New Zealand’s international commitments to deny the application for refugee status based on a strict reading of Article 1A(2).
[50] Crucially, however, the applicant for refugee status in such a case still bears
the burden of demonstrating that there was a real risk of refoulement from Country B. The following extract from the decision of the Refugee Status Appeals Body in Re RS is relevant:12
The decision of the Supreme Court of Canada in Canada (Attorney-General) v Ward [1993] 2 SCR 689, 709 (SC:Can) delivered by La Forest J emphasizes the principle that international protection under the Refugee Convention is intended as a surrogate form of protection:
“At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason, James Hathaway refers to the refugee scheme as “surrogate or substitute protection”, activated only upon failure of national protection; see The Law of Refugee Status (1991), at p 135.”
At 752, La Forest J stated:
“The rationale underlying international refugee protection is to serve as ‘surrogate’ shelter coming into play only upon failure of national support. When available, home state protection is a claimant’s sole action.”
The impact of this principle on the objective component of the “well-founded fear” required by the Refugee Convention is that if a state of nationality is able to protect the claimant, then his or her fear is not, objectively speaking, well-
founded: 712, 722.
…
Addressing the issue how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals, as well as the issue of the reasonable nature of the claimant’s refusal to actively seek out this protection, the Court placed an onus on the claimant to provide clear and convincing confirmation of a state’s inability to protect. If this cannot be done, the claim should fail:
724-725:
12 Re RS Refugee Appeal No 523/92 (17 March 1995).
“…clear and convincing confirmation of a state’s inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of the state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.”
We see no reason why this statement of principle should not also apply in the
New Zealand context.
[51] Thus, in the present case, AX needed to present clear and convincing evidence that, if deported to Russia, he would face a real risk of refoulement. AX did not do so. In his statement to the Tribunal, he expressed concerns about the treatment he would receive in Russia and that his family would be unable to join him there. The possibility of refoulement was not mentioned.
[52] I do not consider it to be seriously arguable that the Tribunal was required to undertake its own enquiries to ascertain whether AX would be safe from refoulement in Russia, or to assess whether Russia would provide sufficient protection of other rights. That much is clear from s 228(2) of the Act, which provides:
228 Information Tribunal may consider
(1) When considering an appeal or a matter, the Tribunal may seek information from any source.
(2) However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant or the affected person and the Minister, the chief executive, or a refugee and protection officer (as the case may be), and may determine the appeal or matter only on the basis of the information, evidence, and submissions provided by those persons.
[53] The High Court has held in Wu v The Minister of Immigration that in some limited circumstances, the Tribunal may have a duty to conduct further inquiries of a limited scope.13 That judgment, which concerned a decision to deport the parents of
a New Zealand citizen child, is presently under appeal.14 Even if such a duty is held
13 Wu v The Minister of Immigration [2016] NZHC 3194; see also Ye v Minister of Immigration
[2009] NZSC 76, [2010] 1 NZLR 104 at [48].
14 Minister of Immigration v Wu [2017] NZHC 2514.
to exist, however, I do not consider it to be seriously arguable that the Tribunal in the present case was under such a duty. Taken to its logical conclusion, the submission for AX would mean that an applicant need only make bare assertions regarding an absence of human rights protections in order to effectively reverse the burden of proof, by requiring the Tribunal to investigate the claims and prove that the concerns were unsubstantiated. An outcome of that sort is clearly incompatible with the purpose and scheme of the Act.
[54] For the same reasons, I do not consider the further proposed grounds of appeal
– that the Tribunal failed to properly exercise its discretion to function in an inquisitorial manner under s 218(2) of the Act; the Tribunal failed to consider whether AX would be granted the same rights in New Zealand and Russia; and the Tribunal failed to apply the correct test to determine whether AX could access sufficient protection elsewhere – raise a seriously arguable question of law.
Failure to take into account relevant considerations
[55] The final proposed ground of appeal is that Tribunal failed to take account of specific statements made by AX concerning his safety in Russia.
[56] In particular, Mr Hall submitted that the Tribunal ignored AX’s statements that his family would not be safe in Russia. That criticism cannot be sustained in the face of the Tribunal’s decision, which states:15
First, the appellant has raised, at least obliquely, the possibility that his family may be unable to join him in Russia. That is inferred from his conversation with an embassy official in Kabul. For the reasons already given, however, such inability is not established. The appellant made no formal application to the Russian authorities and an ad hoc remark by an unnamed embassy official of unknown rank establishes nothing of weight. Further, it is an important consideration that refugee status is personal in nature. Even if the appellant’s family members are at risk in Afghanistan (which is not established, given their present ability to reside safely in Kabul), any such risk does not attach to the appellant personally. It might be argued that a risk of harm to other family members might cause serious harm to the appellant himself by way of anguish, distress or other mental health issues, but no evidence of this has been adduced. In any event, it has not been established that, as the family of a Russian national, his family would not be able to join him in Russia on proper application made to the appropriate authorities.
15 AX, above n 1, at [74](a).
[57] In any event, however, the question whether AX’s family would be able to join him in Russia does not affect his status as a refugee and/or protected person under the Act. In the Tribunal, the submissions for AX focussed on Article 1E of the Refugee Convention, which provides:
This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
[58] Counsel submitted before the Tribunal that the fact that AX’s family might be unable to join him in Russia meant that he did not have “the rights and obligations which are attached to the possession of the nationality of” Russia. It is clear, however, that Article 1E applies only to individuals who attempt to seek refugee status in a country where the individuals in question already possess the rights and obligations of a citizen. AX does not possess the rights and obligations of a New Zealand citizen and so Article 1E does not apply to him.
[59] I do not consider that there is a seriously arguable question of law that the Tribunal failed to take account of specific statements made by AX concerning his safety in Russia.
Further proposed grounds of appeal
[60] The submissions filed on AX’s behalf referred to a number of other proposed grounds of appeal, including a failure to apply the correct test for determining whether AX could access internal protection, an allegation that the Tribunal did not give AX sufficient time to collect the requisite evidence from Russia and an allegation that the Tribunal should have given AX notice of a potential adverse finding, in other words an opportunity to explain the absence of rule of law in Russia rather than dismissing his evidence. These proposed grounds of appeal can be disposed of in relatively short order.
[61] Internal protection is only relevant in cases where the applicant for refugee status is to be returned to a country where he has a well-founded fear of persecution. In that case, the Tribunal must be satisfied that the applicant will be able to access sufficient protection to ensure he is safe from persecution. Since AX will not be
returned to Afghanistan, where he has a well-founded fear of persecution, internal protection is not a relevant consideration.
[62] Similarly, there is no support on the facts for the contention that the Tribunal failed to allow AX sufficient time to gather evidence. More than a year passed between the making of an application for refugee and/or protected person status and the hearing before the Tribunal on 19 December 2016. Thereafter, the Tribunal granted a number of extensions of time to permit AX to obtain and file any new evidence in support of his claim. On 7 April 2016, the Tribunal declined any further extension but even then, indicated that it would consider any evidence filed before the issue of its decision. Its decision was ultimately issued on 31 May 2017, more than five months after the hearing. AX had more than enough time to gather the relevant evidence in support of his claim, if he wished to do so.
[63] As to the submission that the Tribunal should have given AX a warning of the possibility of an adverse finding, in other words an opportunity to explain the absence of the rule of law in Russia, rather than dismissing his evidence, this criticism has no substance given the matters referred to in [62] above. The Tribunal particularly noted in its decision:16
In fairness to the appellant given the significance of this issue to his claim to be recognised as a refugee in New Zealand, and notwithstanding that he had ample time before the hearing and had been alerted to the relevance of the issue by the RSB, following the appeal hearing, the Tribunal allowed the appellant further time to produce evidence to support his claim not to be a Russian national.
(emphasis in original)
[64] In any event this was not a case where the Tribunal made adverse credibility findings in relation to the evidence from Ms Kremenuk and AX’s own evidence about his inquiries at the Russian Embassy in Kabul but simply found that it lacked cogency.
[65] These submissions do not raise a seriously arguable question of law.
16 AX, above n 1, at [53].
Conclusion
[66] AX has not demonstrated the existence of a seriously arguable question of law in relation to the decision of the Tribunal. It follows that the application for leave to appeal under s 245(3) is dismissed.
Application for leave to commence judicial review proceedings
[67] AX has filed an application seeking leave to commence judicial review proceedings against the Tribunal on the bases that:
(a) The Tribunal drew speculative conclusions in respect of AX’s Russian citizenship in the absence of positively identified facts amounting to an error of law.
(b)The Tribunal failed to apply the principle that an applicant for refugee status is entitled to the benefit of the doubt.
(c) The Tribunal failed to take into account whether AX would be able to access meaningful protection in Russia in accordance with Article 1E of the Refugee Convention.
(d) The decision of the Tribunal in its reasoning on the issue of AX’s
Russian passport was unreasonable.
Relevant law
[68] Section 249 of the Act relevantly provides:
249Restriction on judicial review of matters within Tribunal’s jurisdiction
…
(2) No review proceedings may be brought in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has
granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
…
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard
to—
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
[69] There have been a number of High Court decisions which consider the threshold for granting leave under s 249(6) of the Act. The narrow approach is exemplified by the decision of Faire J in SK v Immigration and Protection Tribunal:17
[5] As with appeals, the introduction by Parliament of a leave requirement indicates a deliberate intention to limit the scope of judicial review from immigration decisions.
[6] The requirement that issues justifying a judicial review or an appeal are those which, by reason of their general or public importance or for any other reason, ought to be submitted to the High Court by definition narrow the grounds that justify the granting of leave. I adopt the statement of principle in LMN v Immigration and Protection Tribunal New Zealand:
The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus, factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” for his appeal to be submitted to this Court for determination.
[7] While Duffy J was discussing s 245(3) in relation to appeals, the language used is the same as that in s 249(1C)(b) and her Honour’s comments are equally applicable to that subsection, once the gateway of s 249(1C)(a) is passed.
17 SK v Immigration and Protection Tribunal [2014] NZHC 2693 (footnotes omitted).
…
[9] The remaining category “any other reason” has likewise been the subject of consideration. I adopt the comment of Kόs J in Taafi v Minister of Immigration where he said:
…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.
[10] The applications for leave will be considered having regard to the above.
[70] In recent times, there have been a number of cases which have adopted a broader interpretation of the leave requirement in s 249(6) by recognising “the important role that the remedy of judicial review plays within New Zealand’s constitutional structure.”18 Palmer J in RM v Immigration and Protection Tribunal acknowledged the role of s 249 in limiting the availability of judicial review but noted that the right to judicial review under s 27 of the New Zealand Bill of Rights Act 1990 might in some cases warrant a more generous interpretation of that provision:19
[48] The Bill of Rights represents a statutory and constitutional requirement on the judiciary in deciding how to interpret and apply s 249. References to ss 6 and 27(2) have not featured significantly in cases examining s 249 issues to date. But they could be important where s 249 falls to be interpreted and more and less rights consistent meanings are available. The Bill of Rights’ interpretative imperative also directly affects application of the s 249 leave test by the judiciary. The judiciary is bound by the Bill of Rights under s 3(a) and must make its decisions consistently with the Bill of Rights.
…
[50] In most circumstances, these constitutional considerations may not make a difference to the result of considering applications for leave to bring judicial review. The judiciary will not give leave to hopeless cases and the Bill of Rights does not require them to do so, given the demonstrable justification in conserving public resources and in not delaying execution of immigration law in the public interest. A case where a ground of judicial review is clearly available will get leave and the Bill of Rights endorses that. And, where the issues can be dealt with adequately in an appeal, s 249(6) suggests “that is the appropriate route”, and the Bill of Rights does not suggest otherwise. But in marginal cases, it is important to bear in mind that the leave decision is one which impacts the fundamental right to judicial review, that is protected by the Bill of Rights and the constitutional function of judicial review. That might make a difference to the leave decision, as it does to my approach to the leave decision compared with that of Duffy J.
18 Hu v Immigration and Protection Tribunal [2016] NZHC 1661.
19 RM v Immigration and Protection Tribunal [2016] NZHC 735 (footnotes omitted).
[71] This line of cases has not yet been considered by the Court of Appeal. For present purposes, however, I accept that in marginal cases, New Zealand Bill of Rights considerations may be relevant to the determination whether to grant leave.
Speculative conclusions and failure to apply benefit of the doubt
[72] The first ground of judicial review alleges that the Tribunal drew speculative conclusions from a lack of positively found facts and failed to give AX the benefit of doubt. Specifically, AX says, the Tribunal speculatively inferred that AX was a bona fide citizen of Russia based only on his passport and previous free movement to and from Russia.
[73] The rationale underpinning this proposed ground of appeal is not entirely clear, as the existence of AX’s Russian passport and his previous free movement to and from Russia appear to be positively identified facts, which in turn formed the basis for the Tribunal’s finding that AX held Russian citizenship.
[74] In any case, however, the first proposed ground of judicial review substantially replicates the first proposed ground of appeal and as such falls into the category of “issues that could … be adequately dealt with in an appeal against the final determination of the Tribunal”. Furthermore, for the reasons set out at [33] to [41] above, I do not consider that the first proposed ground of appeal raises a question of law of general or public importance.
Failure to take into account relevant considerations
[75] The second proposed ground of judicial review alleges that the Tribunal failed to take into account a relevant consideration, namely whether Russia was a country which could provide meaningful protection of AX.
[76] This proposed ground of judicial review largely replicates the second proposed ground of appeal and as such falls into the category of “issues that could … be adequately dealt with in an appeal against the final determination of the Tribunal”. Furthermore, for the reasons set out at [47] to [53] above, I do not consider that the
second proposed ground of judicial review raises a question of law of general or public importance.
Unreasonableness
[77] The third proposed ground of judicial review alleges that the decision of the Tribunal in respect of AX’s Russian citizenship was unreasonable and in particular, that:
(a) The Tribunal found positive facts, principally on the basis of prima facie evidence that AX had legitimate citizenship;
(b)Whether AX is able to enter and leave Russia unhindered cannot be evidence of the legal status of the passport;
(c) The Tribunal inferred a finding from an insufficient evidential basis;
and
(d)The Tribunal failed to point to any country information on the ease (or difficulty) in obtaining citizenship illegally, and whether it has been a common practice.
[78] Mr Hall acknowledged that in general, the courts have applied the Wednesbury test to determine whether a decision can be described as “unreasonable” in the immigration context.20 Nevertheless, he submitted that a lower threshold should be adopted in cases where it is alleged that the decision maker has failed to make a correct summary of the evidence before it, or where concerns of family unity arise.21 Mr Hall submitted that the Court should follow the approach suggested by Palmer J in Hu v Immigration and Protection Tribunal, asking whether the decision is so insupportable
or untenable that proper application of the law requires a different answer.22
20 Citing BV v Immigration and Protection Tribunal [2014] NZHC 283 at [20].
21 Citing Wolf v Minister of Immigration [2004] NZAR 414 (HC).
22 Hu v Immigration and Protection Tribunal [2017] NZHC 41 at [29].
[79] Whether this Court adopts the stricter Wednesday test or the reformulation proposed by Palmer J, the outcome of the inquiry is the same. To the extent that AX seeks to challenge the factual findings of the Tribunal as being unreasonable, I am satisfied that the Tribunal was entitled on the evidence available to conclude that AX is a Russian citizen. I do not consider that the Tribunal acted unreasonably in failing to seek out additional information to support AX’s case. The burden of establishing his claim rested with AX. Furthermore, the country information available to the Tribunal tended, if anything, to undermine rather than support AX’s claim. There was no aspect of unreasonableness in this aspect of the Tribunal’s decision whether at the Wednesbury threshold, or at a lesser standard.
Conclusion
[80] AX has not demonstrated that his application raises a question of law of general or public importance, or which for any other reason should be submitted to this Court for its decision. It follows that the application for leave to commence judicial review proceedings under s 249(6) of the Act is dismissed.
Result
[81] The application for leave to appeal under s 245(3) of the Act is dismissed.
[82] The application for leave to commence judicial review proceedings under s 249(6) of the Act is dismissed.
Costs
[83] Costs are reserved.
[84] The parties should endeavour to reach agreement on costs. In the absence of agreement, counsel for the second respondent may file a memorandum within 15 working days of the date of this judgment. Counsel for AX may file a memorandum in response within a further 10 working days. Memoranda should not exceed five pages.
Gordon J
Solicitors: Crown Law, Wellington
Park Legal, Takapuna
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