BC (Philippines) v Immigration and Protection Tribunal
[2018] NZHC 2722
•19 October 2018
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-2018-404-000296
[2018] NZHC 2722
BETWEEN BC (Philippines) Applicant AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
THE REFUGEE AND PROTECTION OFFICER
Second Respondent
Hearing: 17 October 2018 Appearances:
S K X Ng for Applicant
First Respondent – taking no further part
S P Connolly and M G A Madden for Second RespondentJudgment:
19 October 2018
RESERVED JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 19 October 2018 at 4.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Auckland Community Law Centre, Auckland Crown Law, Wellington
BC (Philippines) v IMMIGRATION AND PROTECTION TRIBUNAL [2018] NZHC 2722 [19 October 2018]
Introduction
[1] The applicant – BC, a citizen of the Philippines – seeks leave to appeal a decision of the first respondent, the Immigration and Protection Tribunal (the Tribunal), given on 11 January 2018.1 The Tribunal upheld a decision of the second respondent, a Refugee and Protection Officer (RPO), declining BC’s application for refugee or protected person status.
[2] BC seeks leave from this Court to appeal the Tribunal’s decision pursuant to s 245 of the Immigration Act 2009 (the Act).
[3] The question of law BC seeks to raise was not articulated in the initial papers filed. Nor was it succinctly stated in the submissions filed on BC’s behalf. In the course of the hearing, Ms Ng, appearing for BC, explained that the question of law BC seeks to raise on appeal is as follows:
Did the Tribunal err in law by not articulating what analytical path (or approach) it adopted when it made credibility findings against BC?
[4]The RPO opposes the application.
Procedural matters
[5]There are two preliminary matters which require brief comment.
[6] First, BC initially filed a notice purporting to both appeal and review the Tribunal’s decision. Subsequently, the application to review the Tribunal’s decision was withdrawn. The first respondent then requested that it should be removed from the proceedings and BC accepted that this was appropriate. The notice filed by BC has been treated as an application for leave to appeal under s 245 of the Act and it is the only matter now before the Court. Pursuant to r 20.9(2) of the High Court Rules, the first respondent as the decision-maker cannot be a party to any appeal. Accordingly, I direct that it be removed as a party to the application for leave to appeal, (or from any appeal if leave is granted).
1 Re BC (Philippines) [2018] NZIPT 801243.
[7] Secondly, on 6 July 2018, Woodhouse J directed that the notes of evidence from the hearing before the Tribunal should be included in the common bundle for this hearing. Counsel for the first respondent endeavoured to locate the transcript, but could not do so. They filed a memorandum advising that, for some unexplained reason, no recording was made of the hearing. Ms Ng submitted that the absence of the transcript undermines the integrity of the Tribunal’s decision; she was nevertheless happy to proceed with the application for leave. She asked me to bear in mind the absence of the transcript when considering BC’s application for leave. I have endeavoured to do so, but, for the reasons that follow, I do not consider that the transcript would have assisted me in any significant way. What is in issue is whether there is a qualifying question of law which should come before the Court by way of appeal under s 245 of the Act. The question of law sought to be raised in this case falls to be considered primarily by reference to the Tribunal’s decision and to relevant case law.
Background
[8] The parties filed an agreed statement of facts. It is based in large part on the Tribunal’s findings. I summarise the factual background briefly as follows:
(a)BC was born in the Philippines in 1965. He ran a travel and recruitment agency in that country between 2003 and mid-2007.
(b)In mid-2005, BC was approached by his cousin, X, who said that he was a Commander in the New Peoples’ Army (NPA), and that BC needed to pay a “revolutionary tax”. BC agreed and he paid the tax for some two years. He was reluctant to continue doing so and he gradually wound his business down in an attempt to avoid or minimise payment.
(c)In 2007, another NPA official attempted to recruit BC to the Communist Party of the Philippines (CPP). BC declined to join. He also explained that he no longer had funds to support the NPA. BC said that NPA representatives subsequently told him that he would be tried in absentia for treason for withdrawing his financial support from the NPA.
(d)BC subsequently received threats from the NPA. X urged him to leave the Philippines.
(e)The lawyer who had acted for BC was later murdered.
(f)On 24 September 2007, BC applied to Immigration New Zealand (INZ) for a visitor visa. He obtained a visa to enter this country on 26 September 2007.
(g)BC arrived in New Zealand on the visitor visa on 11 December 2007. On 4 February 2008, he obtained a work visa. He made an application for New Zealand residence in 2010. INZ received information suggesting that BC had provided a false police clearance certificate and a false university degree as part of his residence application. INZ checked and then informed BC that the issuing authorities had advised that the documents were false. BC denied the falsities and provided further information in support of the alleged authenticity of the documents. One of the further documents provided was a letter from the registrar of the relevant university who BC claimed had issued him with the degree. INZ checked again and were advised by the university that the letter did not come from the registrar’s office. INZ advised BC that it appeared that the letter was also false. On 8 March 2011, BC withdrew his residence application. On 16 March 2011, BC applied for a second work visa. That application was declined on 25 May 2011. BC was issued with a deportation liability notice in September 2011 on the basis that he was then unlawfully in New Zealand. BC did not, however, leave this country and INZ were unable to locate him.
(h)In October 2010, BC says that he was advised by a caretaker that unknown people had come to the former family home looking for him. He further says that, in April 2012, he was told by his sister that two men had again been looking for him at the family home.
(i)On 6 September 2012, BC, through his counsel, advised INZ that he intended to leave New Zealand on 28 November 2012. However, on 19 September 2012, BC requested a student visa. This application was declined by INZ on 5 October 2012.
(j)BC says that, in September 2016, he received a Facebook message from a relative telling him that his second cousin had been shot and killed by unknown hitmen in the Philippines. BC also says that in December 2016, he received a call from one of his sisters who told him that she had spoken to their aunt who, in turn, had passed on a message from X who had said that the cousin had been killed by the NPA because it thought the cousin was BC.
(k)BC was finally located by INZ in March 2017. He was then issued with a deportation order. BC admitted that he was in New Zealand unlawfully. He was detained under s 313 of the Act.
(l)On 16 March 2017, BC, through his lawyer, wrote to the Minister of Immigration requesting that the Minister make a special direction under s 378 of the Act granting him a visa to enable him to apply again for residence. The letter set out various reasons why it was asserted that BC should not be deported. It did not suggest that BC was concerned that he will be persecuted or worse if he is returned to the Philippines. There was no reference to the alleged October 2010 advice from the caretaker, to the April 2012 discussion with his sister, to the murder of the second cousin, to the September 2016 message he received in this regard, or to the December 2016 call.
(m)On 17 March 2017, BC was interviewed by INZ to determine if there was any reason why deportation should not proceed. At no time during the interview did BC mention any concerns or fears he had about being returned to the Philippines; nor did he mention any of the matters noted in the final sentence of the immediately preceding subparagraph.
(n)On 21 March 2017, BC’s request for a special direction under s 378 of the Act was declined. On the following day, BC, through his lawyer, informed INZ that BC intended to claim refugee and protected person status. That claim was formally made on 28 March 2017. On 22 May 2017, BC was interviewed by the RPO. On 6 October 2017, the RPO declined BC refugee or protected person status and, on 11 January 2018, the Tribunal declined BC’s appeal against the RPO’s decision.
The Tribunal’s decision
[9] The Tribunal observed that BC claimed before it to have “a well-founded fear of being persecuted or otherwise being subjected to qualifying harm” because of his refusal to join the CPP and his refusal to provide ongoing financial support for its armed wing, the NPA.2 The Tribunal identified that the central issue for it was whether BC had given a credible account in support of this claim.3
[10] The Tribunal set out BC’s account in some detail. It recorded other materials it had received, including “a bundle of country information” relating to attacks by the NPA in the Philippines and a November 2017 proclamation by the Philippines’ President terminating peace negotiations with an umbrella organisation.4 The Tribunal also recorded that BC’s counsel had produced an additional statement from BC, excerpts from BC’s INZ file in relation to various credibility issues earlier raised by the Refugee Status branch of INZ, a statement from BC’s sister and an article on Wikipedia relating to the political situation in the Philippines.5
[11] The Tribunal began its analysis of these materials by recording that it had to determine whether BC should be recognised as a refugee under the 1951 Convention relating to the Status of Refugees, as a protected person under the 1984 Convention against Torture, or as a protected person under the 1966 International Covenant on Civil and Political Rights.6 It observed that it was necessary to identify the facts against which its determinations fell to be made, and that this, in turn, required it to
2 Re BC (Philippines), above n 1, at [2].
3 At [2].
4 At [28].
5 At [28].
6 At [32].
consider the credibility of BC’s account.7 It recorded submissions made by BC’s counsel in relation to credibility.8 It acknowledged that, at the relevant time, BC was in custody, and that this had impacted upon his ability to prepare for the hearing.9
[12] The Tribunal went on to find that BC had given “a partially credible account”.10 It accepted BC’s account:11
(a)of his initial meetings with X;
(b)of the revolutionary tax levied against him and of his initial payment of that tax; and
(c)of his problems with the NPA up until late 2007.
Although the Tribunal had some reservations about BC’s assertion that he had been approached in mid-2007 to join the CPP, it was not prepared to reject BC’s evidence in this regard as implausible. It extended to BC the benefit of doubt on this point. It also accepted that BC “may” have been threatened by the NPA prior to his departure from the Philippines in 2007.
[13] The Tribunal then turned to assess the credibility of BC’s account of events post 2007. It did so under three heads – the lateness of BC’s assertions, the unpersuasive evidence received from BC’s sister and aunt, and BC’s failure to mention the killing of his cousin as a defence to the deportation action. Relevantly, the Tribunal considered:
(a)that there was an “extraordinary length of time” between BC’s departure from the Philippines in 2007 and the claimed murder of BC’s second cousin in a case of mistaken identity in September 2016.12 It considered that, faced with this difficulty, BC had introduced for the
7 At [33].
8 At [34].
9 At [35].
10 At [3].
11 At [36]-[39].
12 At [41].
first time at the appeal hearing his claims that in 2010, unknown men came to his former home, and that, in 2012, there was a further visit by men to the home. The Tribunal noted that BC could provide “no compelling reason” why he had not mentioned these matters at an earlier stage.13 It recorded BC’s explanation for his failure to do so, but considered that his explanation was far-fetched and fanciful.14 The Tribunal considered that BC’s failure to mention these matters at a prior stage pointed strongly to a lack of veracity; it did not accept that he had made an honest mistake as claimed by him;15
(b)the evidence from the sister and aunt was unconvincing. The Tribunal noted the delay between the alleged murder of the second cousin and the passing on of the message attributed to X. It also considered that the language used in the aunt’s affidavit was telling, observing that it closely reflected the Tribunal’s approach to the assessments it was required to make.16 It considered that the closeness of the language was unlikely to be coincidental and that this suggested that the evidence had been manufactured for the hearing.17 The Tribunal recorded explanations advanced by BC when he was cross-examined on this issue, and counsel’s submissions, but observed that the fact that the aunt was prepared to use language in an affidavit that did not record what had been purportedly said by X in order to maximise its impact on BC’s appeal, demanded that the affidavit be treated with caution.18 It also observed that BC’s assertion that his sister told him that he was one of the people most wanted by the NPA was not borne out in the sister’s letter of support;19 and
(c)that BC’s failure to mention to INZ his second cousin’s alleged murder as a defence to the deportation proceedings at any earlier time was
13 At [42].
14 At [42].
15 At [42].
16 At [45].
17 At [45].
18 At [45].
19 At [46].
telling. It noted that when he was interviewed, BC was asked questions relating to the effect on him if he had to return to the Philippines, and that he made no mention of his past problems with the NPA or of the claimed murder of his second cousin. The Tribunal rejected the explanation advanced by BC – namely that he did not know anything about the refugee and protection process, and that he had concerns about the confidentiality of anything he might say.20 The Tribunal also noted BC’s failure to mention the alleged murder at any time in any of his dealings with INZ officers when he was seeking to regularise his stay in New Zealand. It considered that BC’s explanations for these failures were superficial.
[14] The Tribunal declined to accept that BC had been the object of any adverse interest by the NPA since he left the Philippines in 2007.21 It then went on to record those facts which it accepted; it largely accepted BC’s account up until late 2007 when BC came to New Zealand. It proceeded to assess his claim by reference to these facts, pursuant to the relevant conventions, and by reference to case law which has evolved in dealing with those conventions. It also considered the country and other information which had been provided to it. The Tribunal observed as follows:
[68] Given the breakdown in talks and the history of the insurgency, it is to be expected that there will be some pushback from the NPA/CPP. This is accepted. However, what is missing is any country information establishing that persons who have, in the past, fallen foul of the CPP/NPA through non- payment of revolutionary taxes and being “tried” are being tracked down and executed. It must be recalled that the appellant’s last involvement with the NPA was over a decade ago. There is no credible evidence of any ongoing interest in him since then. The risk to him now of suffering serious harm of any kind and the hand of the NPA is remote and speculative and falls below the real chance threshold.
[15]The Tribunal concluded that:
(a)the risk of BC being persecuted or suffering serious harm if he is returned to the Philippines is “remote and speculative and falls below the real chance threshold”;22
20 At [48].
21 At [49].
22 At [68].
(b)the evidence did not establish substantial grounds for believing that BC is in danger of being tortured if he is deported from New Zealand;23 and
(c)the evidence did not establish substantial grounds for believing that BC is in danger of either arbitrary deprivation of life or cruel treatment if he is deported from New Zealand.24
It found that BC is not a refugee within the meaning of the refugee convention, that he is not a protected person within the meaning of the convention against torture, and that he is not a protected person within the meaning of the covenant on civil and political rights.25 BC’s appeal was dismissed.26
[16]BC now seeks leave to appeal this decision.
The application for leave
[17]Section 245 of the Act relevantly provides as follows:
(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.
…
[18] This section was considered by the Court of Appeal in Machida v Chief Executive of Immigration New Zealand.27 The Court noted that s 245 requires a
23 At [73]-[74].
24 At [76]-[77].
25 At [78](a)-(c).
26 At [79].
27 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.
prospective appellant to identify a seriously arguable question of law which either has importance extending beyond the particular case, or for some other reason warrants a decision from this Court.28
[19] Not every alleged error of law will be of such importance as to justify the costs and delay involved in pursing further litigation. Rather, the relevant issue must “go beyond the particular circumstances of the applicant”, or be one that “suggests the existing law should be revisited by the Court”.29 The introduction of a leave requirement demonstrates a deliberate intention by Parliament to limit appeals from Tribunal decisions.30
Analysis
Submissions
[20] BC seeks to argue that the Tribunal did not give sufficient reasons as to why it rejected parts of his claim. It was accepted that the Tribunal has a broad discretion in deciding what evidence to accept or reject, but it was argued that, in exercising that discretion, the Tribunal should have stated the “analytical path” that it used when assessing BC’s credibility and demonstrated how its conclusions as to BC’s credibility were reached by reference to that analytical path. It was said that the proposed question of law set out in [3] above is of general and public importance.
[21] On the RPO’s behalf, it was submitted that leave should not be granted to appeal, because the alleged error of law is not seriously arguable. It was argued that the Tribunal carefully considered BC’s account, accepted some aspects of his claim and rejected others, and explained why aspects of BC’s account were considered implausible. It was submitted that there is no requirement in law to state which analytical path has been adopted in reaching a finding as to credibility, and that the law is well settled in this area. It was put to me that the Tribunal’s findings as to credibility were relevant to BC only, and that they do not raise an issue of general or public importance.
28 At [8].
29 LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [32].
30 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [18].
The duty to give reasons
[22] In effect, BC submits that the duty to give reasons either already requires, or should be expanded to require, the Tribunal to expressly state the analytical path adopted by it when making a credibility assessment, and to explain why the analytical path adopted is valid in any particular case before it.
[23] Decisions of the Tribunal must be in writing and they must include reasons both for the decision and for any minority view.31
[24] The nature and purpose of the duty to give reasons is well settled in the law generally. Reasons must be given, first, to maintain openness in the administration of justice and public confidence in the justice system; secondly, to enable the person or persons affected by the decision to understand why the decision was made and to assure them that their evidence and arguments were assessed in accordance with the law; thirdly, to enable the lawfulness of decisions to be assessed by a Court on appeal or on application for review; and finally, to improve the quality of decision-making and to guard against erroneous or arbitrary decisions.32
[25] Reasons must be proper, intelligible and adequate in all the circumstances.33 They must be sufficient to enable the applicant to understand the basis for the decision,34 having regard to the nature of the hearing and the importance and seriousness of the matter.35 Reasons do not have to be lengthy or comprehensive,36 and may be abbreviated or evident without express reference.37 A decision-maker is
31 Immigration Act 2009, s 237 and sch 2, cl 17(3).
32 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75]-[82]; Singh v Chief Executive Officer of the Department of Labour [1999] NZAR 258 (CA) at 263.
33 Singh v Chief Executive Officer of the Department of Labour, above n 32, at 263; Chan v Minister of Immigration HC Auckland CP80/89, 8 May 1989 at 14; Salim v Minister of Immigration HC Auckland M282/91, 2 September 1991 at 41.
34 Chief Executive of the Department of Labour v Taito [2006] NZAR 420 (CA) at [24]; Wilfred v Chief Executive of the Department of Labour [2007] NZAR 237 (HC) at [108].
35 Trompetter v Nursing Council of New Zealand HC Wellington CP750/92, 3 February 1994 at 2.
36 Chief Executive of the Department of Labour v Taito, above n 34, at [24]; Black v New Zealand Law Practitioners Disciplinary Tribunal [1999] NZAR 49 (HC) at 65; Legal Services Agency v R (2009) 20 PRNZ 423 (HC) at [108].
37 Lewis v Wilson & Horton Ltd, above n 32, at [81]; Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Maori Heritage Council [2015] NZCA 23, [2015] NZAR 302 at [72]; Marshall Cordner & Co v Canterbury Clerical Workers IUW [1986] 2 NZLR 431 (CA).
not required to discuss all and every submission or piece of evidence submitted to it.38 Rather, reasons given must explain why the decision-maker has accepted or rejected fundamental aspects of the case.39
[26] These various principles have been applied on numerous occasions in the refugee and immigration context.40
[27] Ms Ng did not take issue with this general law. Rather, she argued that the duty to give reasons includes, or ought to include, a statement regarding the “analytical path” used to determine issues of credibility.
Credibility
[28] The approach to credibility assessment in the refugee application context is well settled. It is primarily set out in three cases – Attorney-General (Minister of Immigration) v Tamil X,41 Jiao v Refugee Status Appeals Authority42 and BV v Immigration and Protection Tribunal.43
[29] In Tamil X, the Supreme Court considered the Act in some detail and made a number of observations about the assessment of an applicant’s claim for refugee status. It stated as follows:
[37] There are special reasons for the legislature to prefer an inquisitorial process for refugee status determinations. There are particular problems in obtaining evidence on the crucial questions and determining its reliability. The position was well expressed by Professor Houle in the context of
38 Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [58]; Butler v Removal Review Authority [1998] NZAR 409 (HC) at 420-421; Wilfred v Chief Executive of the Department of Labour, above n 34, at 108; Sahid v Chief Executive of the Department of Labour HC Wellington AP311/97, 29 April 1998 at 9; Chef & Brewer Bar & Café Ltd v Police [1995] NZAR 158 (HC) at 166; Trompetter v Nursing Council of New Zealand, above n 35, at 6.
39 Secretary for Justice v Simes, above n 38, at [58]; Singh v Chief Executive Officer of the Department of Labour, above n 32, at 263; Bagchi v LawWorks HC Auckland CIV-2006-404-53, 19 December 2006 at [26]; Hong v Auckland Standards Committee No 3 [2015] NZHC 2521 at [53].
40 Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [30]; citing Chief Executive of the Department of Labour v Taito, above n 34; Butler v Removal Review Authority, above n 38.
41 Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 (SC).
42 Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA).
43 BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139.
determinations by the Refugee Protection Division (RPD) of the Canadian Immigration and Refugee Board:
The process of assessing the weight of evidence to determine refugee status is complex and difficult, mainly because of the absence of credible evidence on which to base the refugee claims. The events related by the claimant cannot be checked directly: they took place in a foreign country and often a considerable period of time before the RPD hearing. In most cases, the decision-maker is given an incomplete story, namely the claimant's version of events, and even then this is usually done through an interpreter. Therefore, Board members are required to make sound decisions based on scanty, ever-changing information about the claimants' countries of origin and, more significantly, information about a culture that is alien to them. In fact, Board members are required to assess the credibility of testimony in something of a cultural vacuum. These factors often impede Board members from fully understanding the claimant's story.
The Authority itself has discussed the evidential difficulties it faces, and the practical limits on its process:
Largely because of [such] considerations … the Authority's general approach to refugee claims is to focus primarily on the credibility of the refugee claimant as assessed against publicly accessible information.
In this context, inferences have to be drawn both as to the credibility of the claimant concerning matters of fact and in the evaluation required to decide if a claimant is entitled to protection as a refugee under Convention provisions.
(Citations omitted)
[30] The Supreme Court observed that the Tribunal is vested with a broad discretion as to what material it obtains and uses in its consideration of a claim.44 It observed that such material requires a “realistic and careful approach … having regard to the evidential gaps and other difficulties that refugee claimants face in making out their claims”.45 It observed that a “proper analysis and evaluation” will be required, in the course of which “a legitimate and important consideration will often be whether what the applicant says in evidence relevant to his or her status is credible and plausible in the circumstances”.46 The Court observed that it follows that the Tribunal “must usually assess the credibility of those giving evidence”, and that this will “often require evaluation of the reliability and value of independent sources of information relevant to that credibility that come before the Authority”.47 Nowhere in the decision did the Supreme Court suggest that immigration and protection tribunals are required to follow any particular analytical path when determining credibility, or to state what
44 Attorney-General (Minister of Immigration) v Tamil X, above n 41, at [44].
45 At [44].
46 At [44].
47 At [44].
analytical path they have followed, or to justify the analytical path, in the reasons they gave for the decision.
[31] In Jiao, it was argued that the Act did not place any particular burden or obligation on an applicant, and that the “benefit of the doubt principle” should be exercised in favour of an applicant if the applicant’s account for refugee status is credible, even in the absence of corroborative material. The Court of Appeal held that the Act does place an obligation on appellants to establish the right to refugee status, and that while the “the benefit of the doubt principle” is useful in refugee status decision-making, it does not by itself interfere with the proper consideration of the evidence bearing on disputed facts, including the evaluation of the possible availability of other evidence either supporting or questioning that given by the refugee claimant.48 The Court considered that all available evidence has to be obtained and checked, and that the benefit of the doubt principle is only available when the examiner is satisfied as to an applicant’s general credibility.49 It observed that an applicant’s statements must be coherent and plausible and not run counter to generally known facts.50
[32] In BV, the applicant advanced a similar argument to that advanced by Ms Ng in the present case. The applicant in that case contended that the Tribunal should have, and that the Court of Appeal should, adopt a credibility assessment model proposed in an article by Professor Michael Kagan, which suggests that an applicant should enjoy “a presumption of credibility”.51 Professor Kagan suggested that only then should any enquiry turn to “negative credibility factors (vagueness, contradictions, delayed revelation of key facts and implausibility)”.52 The Court of Appeal declined to adopt the model suggested. It cited Jiao and held that the correct approach to claims for refugee status is well settled.53 It observed that Professor Kagan’s suggested model has “obvious legitimacy but it is only one approach”.54 It went on to say that it “cannot
48 Jiao v Refugee Status Appeals Authority, above n 42, at [30]-[31].
49 At [28].
50 At [28].
51 BV v Immigration and Protection Tribunal, above n 43, at [13]; citing Michael Kagan “Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination” (2003) 17 Georgetown Immigration Law Journal 367.
52 At [13].
53 At [6].
54 At [14].
possibly be said the Tribunal erred in law by following a different analytical path”.55 It further observed that in any event the refugee tribunal’s decision disclosed that the key issues addressed were those found in Professor Kagan’s article.56 The Court emphasised that an applicant’s statements had to be coherent and plausible and not contrary to generally known facts, and that a fundamental impediment to the applicant’s account in that case was the “simple reality … that [his] account was … not believed”.57
[33] All of these cases were recently analysed by Downs J in AR v Immigration and Protection Tribunal.58 He there observed as follows:
[24] There are obvious dangers to prescription in this context. First, to recapitulate, the principles are settled. Jiao is an extensive judgment of the Court of Appeal. And, in BV only three years ago, that Court declined to elaborate on Jiao notwithstanding an express invitation to do so.
[25] Second, the statute tells against prescription, for, by s 218 the Tribunal may determine its own approach to “making findings of fact” by, as it “thinks fit”, proceedings “of an inquisitorial nature”; “of an adversarial nature”; or “both”. Section 218 does not, of course, deal specifically with credibility determinations. However, the point is that by investing the Tribunal with the power to determine its own processes in relation to factual findings, Parliament may be thought to have signalled a margin of appreciation to the Tribunal's approach in this area, in turn incompatible with curial prescription beyond the general guidance thus far. Again, that is what I read BV to hold.
[26] Third, credibility assessment is acutely fact-sensitive. An approach that may work in one case may not work in another. Doubt therefore attaches to whether there is any utility in attempting to go beyond the general, particularly when, as observed, Parliament has refrained from doing so and instead empowered the Tribunal to determine its own approach. Indeed, Mr Andrew responsibly acknowledged the limits “to which appellate courts can provide guidance to first-instance decision makers”.
[27] Fourth, there are also dangers of over-refinement in this area, or what the Court of Appeal in BV described as “labels”. Courts and Tribunals make credibility assessments on a daily basis. They do so with little explicit conceptual guidance, for; the function is both intensely practical and intrinsic to their role. Similarly, there is nothing to suggest the Tribunal needs further guidance. Or, that its approach to credibility assessment in the general run of cases before it is somehow awry.
55 At [14].
56 At [14].
57 At [12].
58 AR v Immigration and Protection Tribunal [2017] NZHC 2039, [2017] NZAR 1524.
[28] For these reasons, I consider elaboration of principle in this area is undesirable, or at least the province of a higher court. All of which leads to AR's specific case against the Tribunal's decision.
(Citations omitted)
[34]I agree with these various observations.
Conclusion
[35] In my judgment, the law both as to the giving of reasons and the assessment of credibility in the context of refugee status claims is well settled, and it is not seriously arguable that the duty to give reasons either includes, or ought to include, a statement from the Tribunal setting out the analytical path it used when assessing credibility, or explaining how that analytical path used resulted in the conclusions reached.
[36] Further, and in any event, it is clear from the brief summary of the Tribunal’s decision which I have set out above at [9] to [15], that the Tribunal did justify its credibility findings in this case. It carefully set out why it considered that parts of BC’s account were implausible. The conclusions the Tribunal reached were open to it and the reasons for reaching those conclusions were articulated clearly and in detail. The Tribunal clearly complied with the obligation to give reasons for its conclusions.
[37] I consider that the Tribunal’s findings regarding BC’s credibility are relevant to BC only and that they are not of general and public importance. Nor is there any other reason advanced why the proposed question should be submitted to this Court for determination.
[38]The application for leave to appeal is declined.
Costs
[39] The RPO is entitled to costs on a 2B basis, and to reasonable disbursements incurred. I anticipate that counsel will be able to agree the same. If for any reason there is disagreement, then I direct as follows:
(a)the RPO is to file a memorandum setting out the costs and disbursements sought within 10 working days of the date of this judgment; and
(b)any memorandum in response on behalf of BC is to be filed within a further 10 working days.
I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel.
Wylie J
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