BD (India) v Refugee and Protection Officer
[2016] NZHC 1762
•29 July 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-3083 [2016] NZHC 1762
UNDER Judicature Amendment Act 1972 and the
Immigration Act 2009 s 140
BETWEEN
BD (INDIA) Plaintiff
AND
THE REFUGEE AND PROTECTION OFFICER
Defendant
Hearing: 11 April 2016 Appearances:
R S Pidgeon for Plaintiff
C P Paterson and K H Lawson-Bradshaw for DefendantJudgment:
29 July 2016
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 29 July 2016 at 4.50 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Pidgeon Law, Auckland
Meredith Connell, Auckland
Counsel: R S Pidgeon, Auckland
BD (INDIA) v REFUGEE AND PROTECTION OFFICER [2016] NZHC 1762 [29 July 2016]
[1] The Plaintiff, BD, seeks judicial review of the Defendant’s (“RPO”) refusal to consider BD’s “subsequent claim for recognition as a refugee or protected person” (“decision” and “subsequent claim”).1
[2] This refusal was made pursuant to discretion vested in the RPO by s 140(3)
of the Immigration Act 2009 (“Act”), which provides:
(3) A refugee and protection officer may refuse to consider a subsequent claim for recognition as a refugee or a protected person if the officer is satisfied that the claim—
(a) is manifestly unfounded or clearly abusive; or
(b) repeats any claim previously made (including a subsequent claim).
[3] The grounds on which BD seeks review are as follows:
(a) The decision was influenced by an error of law. In particular BD
alleges that the officer erred in his construction of s 140.
(b)Because of the error, the decision was “both unreasonable and substantively unfair”.
(c) The decision was made in breach of natural justice and contrary to the provisions of New Zealand Bill of Rights Act 1990 and various international instruments to which New Zealand is a signatory.
Background
[4] BD is an Indian citizen in his early 40s. From 2002 onwards he was issued with various visas permitting him to study and work in New Zealand. However, as of June 2012, BD was in New Zealand unlawfully. He was served with a “deportation order” and he has since taken steps to enable him to remain in New Zealand.
[5] In the first instance BD made what is referred to as a “humanitarian appeal”
against deportation. The Immigration and Protection Tribunal (“IPT”) declined this
1 Refugee and Protection Status Decision dated 18 December 2015.
appeal in September 2013, following which BD lodged his first claim for recognition
as a refugee or a protected person (“first claim”).2
[6] The gist of the first claim, and indeed the subsequent claim, was that BD is a Christian and an evangelist; that he and those associated with him have been threatened with violence if he evangelises; that he has been subject to such violence in India previously; and that the political environment in India is such that he faces a real risk of persecution were he to return there.
[7] A refugee and protection officer (“officer”) declined the first claim in April
2014.3 BD’s appeal to the IPT was dismissed in March 2015.4 The IPT accepted that BD was an evangelical Christian but it rejected his account of threats and past violence, and indeed made adverse credibility findings against BD. The IPT also considered that, although there is hostility to Christians in India and that the Police are sometimes “lack-lustre” in responding, there was no real risk to BD if he returned, let alone one of sufficient consequence to entitle him to refugee or protected person status.
[8] The IPT’s decision having been given, in October 2015, BD was arrested and
detained for deportation.5
[9] BD then lodged the subsequent claim. The claim itself is not in evidence but two weeks after it were lodged, the RPO advised BD that he was considering exercising the discretion vested in him by s 140(3) and asked for any submissions BD wished to make in response.6
[10] It appears from the RPO’s decision that BD responded with several letters (not in evidence) and that he then instructed counsel. BD had not previously been represented.
[11] Counsel made written submissions on 2 and 10 December 2015.
2 29 November 2013.
3 Refugee and Protection Status Decision dated 16 April 2014.
4 BD (India) [2015] NZIPT 800692.
5 BD has since been released from custody.
6 Letter Refugee and Protection Officer to BD dated 18 November 2015.
[12] The gist of Counsel’s submissions of 10 December 2015 was that BD’s Christian faith had intensified whilst in prison; that he would be “likely to pick up where he left off in India” and continue to seek converts to Christianity; that information supplied showed “a heightened extremism amongst Hindu members of [Vishva Hindu Parishad (“VHP”)] and other groups”; that threats against BD had been communicated to BD’s brother; that the Supreme Court of India had issued a judgment which was said to have the effect of encouraging Christians to return to Hinduism, thus encouraging those seeking to convert such Christians; and that there was sufficient merit in BD’s subsequent claim to warrant the RPO conducting an “in-
person” interview of BD.7
[13] On 18 December 2015, the RPO advised that he refused to consider the claim pursuant to s 140(3). BD then commenced this proceeding and an undertaking was given not to deport BD pending further order of the Court.
Statutory provisions
[14] Part 5 of the Act makes provision for the determination of claims for recognition as a refugee or protected person. Broadly speaking, aside from making provision for the submission of a claim for recognition, Part 5 provides for the matters which an officer, as defined in s 3 of the Act, may take into account in determining whether or not to accept a claim for consideration; imposes responsibility on the claimant to establish their claim for recognition; permits, but does not require, an officer to seek information relevant to the claim; and makes provision for the matters to which an officer is to have regard in determining whether a claimant is entitled to recognition. A dissatisfied claimant has a right of appeal to
the IPT against any adverse decision made by the officer.8
[15] It is also open to a person to make a further or subsequent claim for recognition and, subject to s 140 of the Act, any such subsequent claim is determined pursuant to the same procedures as an earlier claim.
[16] Section 140 is at the heart of this proceeding and provides:
7 Further Submissions on behalf of the Applicant dated 10 December 2015 at [50].
8 Immigration Act 2009, s 194.
140 Limitation on subsequent claims
(1) A refugee and protection officer must not consider a subsequent claim for recognition as a refugee or a protected person unless the officer is satisfied—
(a) that there has been a significant change in circumstances material to the claim since the previous claim was determined; and
(b) the change in 1 or more of the circumstances was not brought about by the claimant—
(i) acting otherwise than in good faith; and
(ii) for a purpose of creating grounds for recognition under any of sections 129 to 131.
(2) For the purposes of determining the matter in subsection (1), the refugee and protection officer must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.
(3) A refugee and protection officer may refuse to consider a subsequent claim for recognition as a refugee or a protected person if the officer is satisfied that the claim—
(a) is manifestly unfounded or clearly abusive; or
(b) repeats any claim previously made (including a subsequent claim).
[17] Although there is a right of appeal from a refusal pursuant to s 140(1), there is no such right in respect of an adverse decision pursuant to s 140(3).9
Subsequent claim and RPO’s decision
[18] It is necessary to say more about BD’s subsequent claim and the decision, so as to put the submissions for BD in context.
[19] As appears from s 140(1), an officer does not have jurisdiction to consider a subsequent claim unless satisfied that there has been a significant change in circumstances material to the claim since the previous claim was determined. In this case, the first claim was determined when the IPT dismissed BD’s appeal, that is on
5 March 2015.10 The changes that BD relied upon were:11
9 Immigration Act 2009, s 195.
10 Section 128.
11 Submissions of Counsel dated 10 December 2015 at [50].
(a) that his faith had “intensified” or strengthened whilst imprisoned.
This was said to reinforce the proposition that, if deported, BD would be active in proselytising in India, and therefore at risk of persecution;
(b) the likely effect of a recent decision of the Supreme Court of India.
The Court delivered that judgment after the IPT had heard BD’s
appeal and one week before it delivered its decision;
(c) a change in “country information”. This was said to establish a heightened extremism amongst Hindu members of the VHP and other groups, which was said to warrant the RPO determining BD’s claim in an “in-person” interview; and
(d) ongoing threats against BD, made to BD’s brother resident in India.
[20] The gist of the RPO’s assessment of the subsequent claim was as follows.
[21] First, the RPO referred to the fact that BD had relied in his first claim on threats communicated to BD’s brother, at that time saying that the threats had been to BD’s life. The RPO referred to the IPT’s earlier findings:12
... that [BD’s] evidence regarding telephone threats to his brother was not true. The Tribunal’s findings, which the RPO is entitled to rely on in accordance with section 141 of the Act, clearly undermine [BD’s] evidence of further threatening calls.
[22] There is no dispute that the IPT made such findings and that the RPO was entitled to rely on them as he did.13
[23] The RPO concluded by saying:14
Therefore, it is considered that the evidence of further alleged threats to
[BD’s] brother is a repetition of [BD’s] first claim and manifestly unfounded.
12 Refugee and Protection Status Decision, above n 1, at 6.
13 Immigration Act 2009, s 141(2).
14 Refugee and Protection Status Decision, above n 1, at 6.
[24] Secondly, as to the intensification of BD’s faith, the RPO did not consider this disclosed any change from BD’s first claim. This was because the IPT accepted that BD had:15
... completed many years of work as a religious worker and had undertaken paid work as an evangelist in India. ... In other words, whether or not [BD’s] faith has intensified, does not add to his profile, because it has already been accepted that he is an evangeliser.
Put simply, the assertion that [BD] would evangelise if he returned to India repeats a claim he made previously. It was a claim that was accepted by the Tribunal, but found did not give [BD] a well founded fear of being persecuted.
[25] Thirdly, the RPO considered the submissions that had been made to him as to the alleged deterioration in the environment for Christians in India:
(a) First, BD submitted that the situation for Christians in India had changed drastically since the IPT’s decision and the coming to power of a new and anti-Christian government. In his submissions to the RPO, counsel said that BD would continue with his evangelism and that this would bring him into conflict with Hindu extremists, such as the VHP. Counsel also submitted that the “country information” provided showed a “rising tide of Hindu extremism”.
(b)Secondly, BD relied on the decision of the Supreme Court of India to which I have referred. In this decision the Court was said to have held that a Dalit or “untouchable” who had converted to Christianity and then “reconverted” to Hinduism would be eligible for particular benefits. It was noted that this had led some commentators to suggest that the decision would “provide a boost” to those seeking to reconvert Hindus who had converted to Christianity and Islam. Counsel for BD contended that the decision demonstrated “an official endorsement of the radicalisation of VHP actions” by “providing a real enticement to convert back”.
[26] The RPO accepted that the situation for Christians in India had deteriorated after the election of the new government in May 2014. However, this had occurred
almost a year before the IPT’s decision, so that “the climate ushered in by the [Bharatiya Janata Party] is not a recent phenomenon”. The RPO did not accept that the situation was “significantly different from the situation that existed prior to the [IPT’s decision]”. The RPO also considered that the activities of the VHP were not “new”. The RPO recorded that they had been referred to by BD in his first claim.
[27] As to the decision of the Supreme Court, the RPO recorded that the decision had been delivered prior to the IPT’s decision. That is correct, but it was issued after the hearing and preceded the IPT’s decision by a matter of days. In any event, the RPO considered that the decision demonstrated “official endorsement” of VHP actions to be “conjecture”.
[28] The RPO concluded on these matters that:16
... India has experienced religious violence for many years. The Tribunal recognised in [BD’s] first claim that Christian groups had experienced harassment and that the police’s response had at times been lack lustre. This reality has not changed since the determination of [BD’s] first claim. The incidents referred to in submissions are simply further events within an ongoing situation of intermittent unrest.
[29] The RPO’s overall conclusion was as follows:17
In summary, it is considered that [BD’s] second claim is essentially a repetition of his first claim. The Tribunal found that [BD] did not have an adverse profile or such characteristics that he would be at risk of serious harm. It is considered that neither [BD’s] profile, nor the country information, have changed significantly since that determination was made. As such, his further claim is considered manifestly unfounded and repeats a previous claim.
DECISION
For these reasons the RPO refuses to consider [BD’s] second claim to refugee and protection status as per section 140(3) of the Act. The RPO is satisfied that his claim is manifestly unfounded and repeats a previous claim.
Submissions
[30] Counsel for BD’s first submission concerned the proper construction of
s 140. As I understood the submission, it was that s 140 requires an officer to assess
16 At 9.
a subsequent claim under s 140(1) before considering s 140(3). This means an officer would have to consider whether there had been a “significant change in circumstances material to the claim since the previous claim was determined”, before considering whether the claim was manifestly unfounded, clearly abusive or repetitive. Counsel submitted that, because the RPO did not consider s 140(1) first when reviewing BD’s subsequent claim, the RPO erred in law and the decision was unreasonable and substantively unfair.
[31] I do not accept this submission. The effect of s 140(1) is that an officer must not consider a subsequent claim unless there has been a change of the nature identified. Section 140(3), however, confers discretion on the officer to refuse to consider a claim on the ground that it is manifestly unfounded, clearly abusive or repetitive. If that discretion does not arise, or is not exercised, the subsequent claim may still, of course, be excluded from consideration by operation of s 140(1).
[32] Nothing on the face of s 140 requires an officer to make a determination under s 140(1) before considering the exercise of discretion under s 140(3), and I do not consider any purpose would be served by such a requirement. It is unlikely that a subsequent claim which met the threshold for consideration under s 140(1) would be manifestly unfounded, clearly abusive or repetitious. If I were to accept counsel’s submission, s 140(3) would be largely redundant.
[33] In my view, s 140(3) is intended to, and does, permit an officer to refuse to consider a subsequent claim that he or she considers to be manifestly unfounded, clearly abusive or repetitive without undertaking the analysis required by s 140(1). However, a subsequent claim that is not excluded under s 140(3) must still meet the threshold under s 140(1).
[34] Accordingly, the grounds of review relied upon in the first submission are not made out.
[35] Even if I am wrong in this, the RPO did consider whether BD had established a significant change in circumstances material to the claim and arising after the IPT decision. The RPO decided, however, that the changes relied upon by BD did not meet this criteria.
[36] In his second submission, counsel for BD was critical of the RPO’s failure to undertake an “in person” interview of BD before refusing to consider the subsequent claim and, given BD’s incarceration, was critical of the RPO’s failure to make enquiries directly of BD’s brother as to the veracity the matters concerning him. Counsel submitted that these omissions were in breach of BD’s right to natural justice under the New Zealand Bill of Rights Act 1990 and other international instruments.
[37] Again, I am not persuaded that the RPO erred in this respect. As I have said, it is for a claimant such as BD to establish their claim.18 An officer may, but is not required to, seek additional information.19 Any enquiries of BD’s brother were for BD or his advisors to make. There is no merit to the submission that the RPO acted in breach of natural justice.
[38] Lastly, counsel for BD submitted that the RPO erred in his assessment of the matters referred to in [19](a) to (c) above. It is not apparent that there was any such error. The RPO addressed the information before him. There can be no suggestion that he overlooked relevant information, that the conclusion reached was not open to him, or that the decision was unreasonable.
Result
[39] For the reasons given I do not consider that BD has made out any ground of review and I dismiss his application accordingly.
[40] As BD is legally aided, there will be no order as to costs.
..................................................................
Peters J
18 Immigration Act, s 135.
19 Section 136(2).
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