BETWEEN AV (SOMALIA) Applicant AND A REFUGEE AND PROTECTION OFFICER Respondent
[2023] NZHC 3561
•5 December 2023
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT 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 WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-419-174
[2023] NZHC 3561
UNDER the Immigration Act 2009 and Rule 20.3 of the High Court Rules 2016 IN THE MATTER
of an application for leave to appeal under section 245 of the Immigration Act 2009
BETWEEN
AV (SOMALIA)
Applicant
AND
A REFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 27 November 2023 Counsel:
S J Fraser and T R Carter for Applicant S M Perera for Respondent
Judgment:
5 December 2023
JUDGMENT OF RADICH J
[1] The applicant was unsuccessful in his application for refugee status in the Immigration and Protection Tribunal. The Tribunal did not accept as credible his claim that he had converted to Christianity and that he would, as a consequence, be persecuted in his native Somalia, if required to return there. He applies for leave to appeal from the Tribunal’s decision.
AV (SOMALIA) v A REFUGEE AND PROTECTION OFFICER [2023] NZHC 3561 [5 December 2023]
The context, the decision and the issues that arise
[2] Refugee or protected person status1 for the applicant would prevent the enforcement of an order that has been made for his deportation following his conviction of serious crimes in 2014 and his sentence of imprisonment. He is due to be released from prison in mid-2024, at which time he will need to return to Somalia.
[3] This is the applicant’s second application for refugee status. It is made on the grounds that, while in prison, he has converted from Islam to Christianity and, as a result, has a well-founded fear of persecution on the basis of his religion if he was to return to Somalia. The Tribunal was not satisfied that his claim was credible. Having found the applicant had not discharged his responsibility to establish that he had converted to Christianity genuinely, the Tribunal said:2
The concerns discussed above, taken cumulatively, satisfy the Tribunal that, shorn of the goal of residence, the appellant’s motivation to continue in any manifestation of a Christian faith would quickly erode. His is not a deeply held faith position and, absent its ulterior purpose, he will have no genuine interest in adhering to it or manifesting it, either in this country or elsewhere.
[4] Any appeal from the Tribunal’s decision must be limited to questions of law. In seeking leave, the case for the applicant is that it is seriously arguable that mistakes of fact were made by the Tribunal of such a nature as to amount to errors of law. Reference is made to “plain mistakes of fact”, “probable mistakes of fact”, “unsound inferences”, and to “mistake due to not having the right material”.
[5] In addition to these grounds, and overlapping with them, the applicant raises concerns within a natural justice and fairness framework. He says that it is seriously arguable that the key observations relied upon by the Tribunal to make credibility findings were not put properly to the relevant witnesses. The credibility findings in issue are essentially the same as those which are said to be mistaken in fact.
[6] Alongside that, concerns are raised by the applicant about the language barrier putting certain documentary and oral evidence into question and about the application
1 Each of which is described in [20]–[24] below.
2 AV (Somalia) [2021] NZIPT 801865 at [116] [AV (Somalia (2nd Refugee Status Appeal)].
of the right to freedom of religion and of the Convention of the Rights of Persons with Disabilities.
[7]The issues that emerge are these:
(a)Is there a seriously arguable case that the Tribunal made factual errors and that, if so, they are so grave as to constitute an error of law?
(b)Is there a seriously arguable case that, in its decision or decision- making process, the Tribunal breached the principles of natural justice or otherwise acted unfairly –
(i)by making mistakes of fact leading to unfairness;
(ii)by failing to properly put key observations, relied upon by the Tribunal, to witnesses;
(iii)through comprehension issues on the part of the applicant and/or witnesses who could not speak English or through difficulties encountered by the interpreter;
(iv)through any failure to give effect to the applicant’s right to freedom of religion or on the basis of rights under the Convention on the Rights of Persons with Disabilities?
[8] Separately, the applicant alleges that the Tribunal made mistakes because it did not have the right information before it. The new information sought to be relied upon by the applicant is the subject of an application to adduce further evidence, which I address in the last part of this decision.
[9] Before addressing the issues, I provide some further background and then describe the refugee or protected persons status that is sought and the approach to be taken in considering the application for leave.
Background to the application
[10] The applicant is Somalian by birth and has only a limited command of English. He was raised in the Islamic faith. He moved to New Zealand in mid-2007 and was granted residency in late 2008. He and his wife have three children who were born in New Zealand, aged approximately 17, 14 and 12 years.3
[11] On 30 September 2014, the applicant was sentenced to 10 years’ imprisonment on one charge of rape,4 two charges of unlawful sexual connection5 and one charge of burglary.6
[12] In June 2015, he was served with a deportation liability notice7 based on his offending under s 161(1)(b) of the Immigration Act.8
[13] On 18 February 2016, the applicant made his first application for refugee or protected person status. It was made on the basis that, if he returned to Somalia, he would be killed by members of the Isaaq and Hawiye tribes because of his own tribal status or by the Al Shabaab militia because of his involvement with the Somali National Movement during the Slad Barre regime, before he came to New Zealand. The Refugee Status Unit declined the application on 25 November 2016, finding that any risk of harm was speculative: AV’s family with the same tribal status had not suffered any serious problems because of their tribal affiliation and the applicant was an ordinary soldier who did not have a significant role in the Somali National Movement and so was not at risk of being seriously harmed now.
[14] The applicant brought an appeal from the decision to the Tribunal in December 2016. The Tribunal heard the appeal de novo. It declined the appeal on 9 May 2017,
3 The applicant’s wife has lived in New Zealand since late 2000. She was granted refugee status. The applicant would visit on occasions before moving here in 2007.
4 Crimes Act 1961, s 128(2).
5 Crimes Act, s 128(3).
6 Crimes Act, s 231.
7 A notice of this kind indicates to a person served that they may be deported – it is not an order for deportation.
8 Under the Immigration Act 2009, s 161(1)(b) a residence class visa holder is liable for deportation if they are convicted of an offence for which the court has the power to impose imprisonment for a term of 2 years or more, if the offence was committed not later than 5 years after the granting of the residence class visa.
finding that there was no real chance of the applicant being seriously harmed should he return to Somalia for similar reasons to those of the Refugee Status Unit.9
[15] In 2017, the applicant appealed to the Tribunal against the deportation liability notice, on grounds there were exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported from New Zealand. In a decision of 1 August 2017, the Tribunal declined the appeal, finding that, while there were exceptional circumstances of a humanitarian nature, deportation would not be unjust or unduly harsh.10
[16] On 15 December 2017, the applicant was served with a deportation order under s 161(1)(b) of the Act.
[17] On 12 June 2019, the applicant made a second application for refugee or protected person status, claiming that he feared serious harm on his return to Somalia because he had changed religious beliefs, having converted from Islam to Christianity while in prison in early 2018. The Refugee Status Unit declined the application on 4 December 2020, finding that the applicant’s claim to have converted to Christianity was not credible. It accepted that, at the time of the decision, the applicant had, for over two years, been attending weekly Bible study and church services and having one-on-one meetings with the prison chaplain. However, it found the applicant was unable to provide compelling reasons for his change of faith or to demonstrate an adequate understanding of the Christian faith.
[18] On 11 December 2020, the applicant appealed to the Tribunal. Again, the Tribunal heard the claim de novo. In a decision of 14 June 2021, it agreed with the Refugee Status Unit in finding (as mentioned in [3] above) that the applicant’s claim to have converted to Christianity was not credible. It declined the appeal.11
[19] There have been considerable delays in bringing the appeal to hearing. Counsel appearing for the applicant in this Court have only recently been instructed
9 [AV (Somalia)] [2017] NZIPT 801086.
10 [AV (Somalia)] v Minister of Immigration [2017] NZIPT 600243 at [86].
11 AV (Somalia) (2nd Refugee Status Appeal) at [116].
and the reasons for the delays have no bearing upon the consideration of this application.
The principles that apply to refugee and protected person status applications
Refugee status
[20] Under the Immigration Act 2009 (which I will refer to as “the Act”), a person must be recognised as a refugee if he or she is a refugee within the meaning of the Refugee Convention.12 Anyone recognised as a refugee may only be deported in limited circumstances.13 Article 1A(2) of the Convention defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[21] In Refugee and Protection Officer v CV, the Court of Appeal said that, in assessing whether a person meets the definition in the convention, the Court needs to consider what the predicament of the claimant would be if returned to their country of nationality and whether there is a real chance of them being persecuted.14 The Court went on to say that, in considering these questions, the decision-maker needs to determine the fundamental human rights that are at issue, whether they are breached, whether any breach would cause serious harm, whether the fear of being persecuted is well-founded and, if it is, whether there is a Convention reason for that persecution.
12 Immigration Act, s 129; Convention Relating to the Status of Refugees A/CONF.2/108 (28 July 1951).
13 Those circumstances are set out in the Immigration Act, s 164(3).
14 Refugee and Protection Officer v CV [2016] NZCA 520, [2017] 2 NZLR 585 at [82].
Protected person status
[22] In addition to, or as well as, refugee status, the Act makes provision for a person to be recognised as a protected person, either under the Convention Against Torture15 or under the Covenant on Civil and Political Rights.16
[23] A person who has protected person status may only be deported in limited circumstances.17
[24] Under the Act, a person must be recognised as a protected person under the Convention Against Torture if there are substantial grounds for believing that they would be in danger of being subjected to torture if deported from New Zealand.18 Similarly, a person must be recognised as a protected person under the Covenant on Civil and Political Rights if there are substantial grounds for believing that they would be in danger of being subject to arbitrary deprivation of life or cruel treatment if deported from New Zealand.19
Credibility assessments in claims for refugee or protected person status
[25] Under s 135 of the Act, it is the “responsibility of a claimant to establish his or her claim” for refugee or protected person status.20 To that end, an applicant must provide to a refugee and protection officer all information, evidence and submissions they wish to have considered.21
[26] However, as the Court of Appeal observed (by reference to the United Nations Handbook on Procedures and Criteria for Determining Refugee Status) in Jiao v
15 Immigration Act, s 130; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment GA Res 39/46 (1984) [Convention Against Torture].
16 Section 131; International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1967) [ICCPR].
17 Sections 130(4) and 131(4) (for protected status under the Convention Against Torture and ICCPR, respectively). The circumstances that allow for deportation for both types of protected status are set out in s 164(4) of the Act.
18 Section 130(1).
19 Section 131(1).
20 Section 135(1).
21 Section 135(2).
Refugee Status Appeals Authority, the duty to ascertain and examine relevant facts is shared between the applicant and a refugee and protection officer in cases like these.22
[27] Relevant also is the principle that, where a decision-maker in a case like this is unable to reach a decision about refugee status, it should give an applicant the benefit of the doubt.23 However, the principle cannot get in the way of the proper consideration of the evidence and, when credibility is in issue, a claim which is “inconsistent or implausible cannot be made good by application of the benefit of the doubt principle”.24
[28] If, as is the case here, an assessment of credibility is central to a proceeding, that assessment does need to be pursued even when the Tribunal is endeavouring to determine a person’s individual beliefs. As the Court of Appeal said in BV v Immigration and Protection Tribunal, the Tribunal cannot be deterred from determining the genuineness of the claim merely because it is a claim of membership of a particular faith or religion.25 But the assessment needs to be undertaken with real sensitivity and, as the Court said in that case, with a recognition that people give effect to their beliefs in many different ways. However, as with any assessment of credibility, it really is a matter for the finder of fact and could not constitute a flaw amounting to an error of law unless it is of such an extent as to undermine the decision as a whole.
The approach to be taken to the application for leave to appeal
[29] Under s 245 of the Act, an appeal to this Court may be brought only on the ground that a determination of the Tribunal is “erroneous in point of law” and may only be brought with the leave of the Court. In determining whether or not to grant leave, the Court is to consider whether the question of law involved is one that ought
22 Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA), at [28] by reference to the United Nations Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/IP/4/Eng/REV:1, Geneva, 1992 (UN Handbook); see also Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011] 1 NZLR at [36].
23 Jiao v Refugee Status Appeals Authority, above n 22, at [28[ and [30]; UN Handbook.
24 HA v Refugee and Protection Officer [2017] NZHC 1787 at [85], and see Jiao v Refugee Status Appeals Authority, above n 22, at [30].
25 BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139 at [21].
to be submitted to the Court by reason of its general or public importance or for any other reason.26
[30] The Court of Appeal has said that, in its practical application, s 245 requires an applicant to identify a seriously arguable question of law that has importance that extends beyond the particular case or that involves individual injustice to such an extent that “the Court simply could not countenance the Tribunal’s decision standing”.27
[31] Where, as is the case for some of the grounds here, the error of law is based upon alleged mistakes in making factual findings, an initial set of principles needs to be applied before the Court can go on to consider these public importance or individual injustice considerations. Kós J described those initial considerations, in Taafi v Minister of Immigration, in the following way:28
(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 to quash the deportation order.
[32] As Kós J went on to say, it is difficult to show that a factual error, no matter how profound, has general or public importance such that its importance could extend beyond the particular case.29
26 Immigration Act, s 245(3).
27 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
28 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19]. (Footnotes omitted).
29 Taafi v Minister of Immigration, above n 28, at [19(c)].
[33] An appeal from the Tribunal is not an opportunity to re-litigate the factual findings of the Tribunal. The Court of Appeal has said that s 245(3) creates a similar test to that applying to second appeals to the Court of Appeal – the Court’s primary function is not to generally correct errors but to clarify the law and determine whether it has been properly construed and applied in the circumstances.30
[34] An alleged breach of the principles of natural justice, which can taint a substantive decision with illegality, is something that can be raised by way of an appeal on a point of law.31 However, as with the approach described in [31] above, an appeal court would need to be satisfied that the principles of natural justice were breached in the first instance and, then, would need to consider whether the breach was so grave as to amount to illegality.
First Issue - Could the Tribunal’s findings of fact amount to an error of law?
[35]In its decision, the Tribunal raised several concerns:
(a)there were inconsistencies in the applicant’s evidence about when he told his family members about his conversion;
(b)the timing of the applicant’s conversion, so soon after the deportation order was made, was suspicious;
(c)the applicant had only a superficial understanding of Christianity; and
(d)there was no compelling reason given for the applicant’s conversion from Islam to Christianity.
[36] Its concerns led to its finding that the applicant had not discharged the responsibility on him to establish that he had genuinely converted to Christianity. In reaching that conclusion, the Tribunal took into account the challenges the applicant faced in endeavouring to establish he had a particular personal characteristic such as
30 Minister of Immigration v Joost [2014] NZCA 23 at [5]; citing Waller v Hider [1998] 1 NZLR 412 (CA) for the test applying to second appeals.
31 Ancare New Zealand Limited v Wyeth (NZ) Limited [2009] NZCA 211, [2009] 3 NZLR 501 at [44]–[48].
a new-found religious belief. And that he was endeavouring to do so while in prison. The benefit of the doubt (in terms of the principles mentioned in [27] above) was given to him as a consequence. But the benefit of the doubt was not enough to satisfy the Tribunal of his conversion.
[37] The applicant has identified a range of “clear errors of fact”, “probable mistakes of fact”, “unsound inferences” and “mistakes due to not having the right material”. I consider each of them.
“Clear errors of fact”
[38] The Tribunal was concerned about inconsistencies in the applicant’s evidence about when it was that he told his wife about his conversion to Christianity and about her reaction to the news. The applicant said to the Tribunal that he had told his wife of his conversion by writing her a letter and then telephoning her. The applicant’s wife said that there was no letter and that she first heard of the conversion when he telephoned her about it.
[39] The applicant’s wife said in evidence that, when the applicant first told her of the news in 2018, she said to him that they were regarded, automatically, as divorced under Islamic law in those circumstances. Yet, the Tribunal observed that in a psychologist’s report to the Parole Board at a later point in time, reference was made to the applicant’s emotional difficulties due to the applicant’s wife informing him of her wish to separate.
[40]The Tribunal said:
It is difficult to reconcile this late-emerging emotional turmoil in 2020–2021, because of his wife’s intentions, with her evidence that she had told him in unequivocal terms in early 2018.
[41] Could there be fundamental mistakes on the part of the Tribunal member in referring to the evidence in this way? The answer could in my view only be “No”. The Tribunal was entitled to accept the applicant’s wife’s oral evidence in preference to other evidence before it. Moreover, it is difficult to see how a change in this factual
finding would, in any event, have a material effect on the Tribunal’s overall conclusion.
[42] The second “clear error of fact” that is advanced is the Tribunal’s findings on whether or not the applicant has told his children of his conversion to Christianity. While the applicant had not said during his evidence in the Tribunal that he had told his children of his conversion, he gave evidence to the refugee and protection officer that he had told his children, in August 2019. The Tribunal identified, correctly, that this evidence contradicted his wife’s evidence that the children did not know of his conversion. It preferred his wife’s evidence, saying that it “defies belief that the children would have known since August 2019 of their father’s conversion, yet their mother still had no inkling two years later”. That is a finding that was open to the Tribunal to make.
“Probable mistakes of fact”
[43] It could not in my view properly be said that the Tribunal probably made a mistake in finding that a particular witness – a friend of the applicant – was unreliable because there was a contradiction between his written statement and his oral evidence. The Tribunal was entitled to assess the credibility of the witness by reference to whether their versions of events are consistent.
[44] The applicant takes issue with the Tribunal’s finding that the applicant’s financial support for his wife was relevant in assessing how much weight should be given to her evidence. The applicant sees this as a mistake. It is said that, in fact, his wife was giving him money while he was in prison and that the applicant’s employment prospects in the future were slim. However, this cannot be a material point. The Tribunal accepted a good part of the evidence given by the applicant’s wife. There can be no mistake of fact under this head.
“Unsound inferences”
[45] It is said for the applicant that the Tribunal drew inferences from the applicant’s lack of knowledge about various Christian denominations, from the timing of his claim to have converted (shortly after being informed of his deportation), from various
prison incidents (seen as the applicant not demonstrating Christian behaviour), and from inconsistent accounts in the evidence referred to in [38] above.
[46] On one level, these allegedly unsound inferences fall short of the standard required in Taafi. It could not be said in my view that there is a seriously arguable case that they are actually incorrect. There may well be different views on them but they were findings that were open to the Tribunal. Moreover, they fall well short of findings that could be said to be so grave as to constitute an error of law. It just cannot be said that they are, for example, contradictory of the only reasonable conclusion of fact available on the evidence32 or errors of fact that are so significant and extensive that a properly directed Tribunal may well have reached a different decision overall.33
Conclusion on first issue
[47] For all of these reasons, the applicant has not in my view shown a seriously arguable case that the factual findings by the Tribunal are incorrect. There is an available evidential basis for the Tribunal’s findings and so this Court will not interfere.
[48] That being so, it is not necessary for me to go on to consider whether any mistake of fact is so grave as to constitute an error of law and, if so, whether the question of law 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.
Second issue – Were there breaches of natural justice that could amount to an error of law?
[49] This issue, which I have described in [7](b)] above, is composite in nature. It overlaps with the first issue and points to a range of factors leading, it is said, to breaches of natural justice or to unfairness. The factors are alleged mistakes of fact leading to unfairness (rather than to an error of law), alleged failures in putting key material to witnesses and alleged comprehension issues on the part of the applicant
32 Edwards v Bairstow [1956] AC 14 (HL) at 36, as incorporated within the test expressed in Taafi v Minister of Immigration, above n 28, at [19].
33 Faave v Minister of Immigration [1996] 2 NZLR 243 (HC) at 247, as incorporated within the test expressed in Taafi v Minister of Immigration, above n 28, at [19].
and other witnesses. These issues need to be assessed, it is said, against the applicant’s fundamental rights to freedom of religion and his rights under the Convention of the Rights of People with Disabilities.
Were there mistakes of fact leading to unfairness?
[50] As I found that mistakes of fact were not made by the Tribunal, no fairness issue arises.
Was there a failure properly to put key material to witnesses?
[51] The applicant says that each of the credibility findings, possible mistakes of fact and inferences that are addressed in [38]–[46] above were central to the Tribunal’s decision. They are, it is said, considered in the Tribunal’s decision under a “Credibility and findings of fact” heading, which leads to a “Conclusion on credibility” heading. It is said the findings are based upon key observations not properly put by the Tribunal to relevant witnesses.
[52] The applicant’s argument is that there was a need for the Tribunal to say to the applicant, for example, that it was concerned about inconsistencies between his evidence and that of his wife. And it should, it is said, have told the applicant’s friend that it was concerned about inconsistencies between his written and oral evidence. The Tribunal should, it is said, have identified for the applicant the various inferences it was contemplating and put them to him for comment. The Tribunal needed to put these observations to the witnesses, it is said, as a part of the application of the principles of natural justice, through the application of s 230 of the Act and through, by way of analogy, the application of s 92 of the Evidence Act 2006.
[53] I do not know that s 230 of the Act or s 92 of the Evidence Act need to be considered in addition to – or whether they add much to – the underlying natural justice principles. Under s 230 of the Act, the Tribunal must disclose to an appellant, and give an appellant an opportunity to rebut or comment on, information or material provided to the Tribunal by a source other than the applicant that may be prejudicial to the applicant and which the Tribunal intends to take into account in determining the appeal. The information in question here was not information from a third party of
which the applicant was otherwise unaware. It was information or evidence discussed or referred to during the hearing at which the applicant was at all times present.
[54] And, while the duty to ascertain relevant facts is essentially shared between the applicant and the Tribunal in a case of this sort,34 I do not see that as placing a duty on a Tribunal member of the type described in s 92 of the Evidence Act. Under that provision, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness.
[55] The proposition advanced for the applicant is best dealt with through the fundamental requirement of natural justice that a party is to be given a reasonable opportunity to advance their position with full knowledge of the case that he or she has to meet.35
[56] There is no doubt that those fundamental principles will apply in hearings before the Tribunal. But does that mean that the Tribunal is required to identify each observation it comes to make and each reservation it holds – whether during the hearing or afterwards when considering its decision – and that it needs to provide an opportunity for a party to comment on each of them as they are formed? In DO v Immigration and Protection Tribunal, Moore J supported a submission that a requirement of that kind should not be imposed and that it would place an impossible or unduly heavy procedural burden on the Tribunal.36
[57] While, in DO, a breach of natural justice under this head was found to exist, the circumstances in that case are quite different to those being considered here. The Tribunal member in that case had made it clear to counsel that a concern he had raised during the hearing about the integrity of a piece of evidence had been adequately addressed in his mind, only for it to then become a central reason for the Tribunal’s decision.
34 Jiao v Refugee Status Appeals Authority, above n 22, at [28] – as discussed in [26] above.
35 Sharman v New Zealand Association of Counsellors [2013] NZHC 3553, [2014] NZAR 638 at [36]–[39].
36 DO v Immigration and Protection Tribunal [2016] NZHC 3158 at [65] and [66].
[58]As the Court of Appeal in Minister of Immigration v Wu said:37
… It cannot be the Tribunal’s responsibility to give notice of every reservation or concern that it may have about an appeal or to provide appellants with iterative opportunities to marshal further evidence to meet those concerns. Not only would that be impractical given the workload of the Tribunal, it would also be inconsistent with the statutory provisions already traversed.
[59] The “statutory provisions already traversed” were s 226 of the Act – which provides that it is the responsibility of the appellant to establish their case – and s 228
– which provides that the Tribunal is not obliged to seek any information, evidence or submissions further to those provided by the appellant.
[60] Van Bohemen J referred to s 226 in AW (Kiribati) v A Refugee and Protection Officer in finding that the Tribunal was under no natural justice obligation to give notice of an intention to make certain adverse findings.38 As was said in that case, the applicant was represented by counsel, the factual matters in dispute were clear, it was known that the Tribunal would be likely to make factual findings on those matters and that those findings could be adverse to his interests. In addition, it was said, the applicant in that case was able through his counsel to file further submissions and evidence after the hearing. Unfairness did not, in all of these circumstances, arise.39
[61] The position is much the same in this case. The applicant knew that the sincerity of his conversion to Christianity was the key issue for the Tribunal. He knew that the Tribunal would be assessing credibility and that it could make either favourable or adverse findings. For example, in opening submissions before the Tribunal, the applicant’s then counsel said that “… the Tribunal is invited to look at [the applicant’s] growth as a Christian and come to the conclusion that in fact [the applicant’s] conversion is genuine.”
[62] Further, the Tribunal member said to the applicant, when the applicant was giving evidence:
37 Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217 at [53] (footnotes omitted); see also BV v Immigration and Protection Tribunal, above n 25, at [17]–[18].
38 AW(Kiribati) v A Refugee and Protection Officer [2023] NZHC 1806 at [51].
39 At [52].
I need to decide whether you have really converted or whether it is an attempt to stay here … Your interest in Christianity has only arisen after two failed appeals … What can you tell me to help me to understand that your conversion is genuine and not the product of you just wanting to stay?”
[63] Moreover, as the hearing was concluding, the Tribunal member said to the applicant and to his counsel:
The central issue for me, as you will have gathered today, is whether the – I don’t want to use the word “credible”. I need to assess the depth and sincerity of his conversion, because it is only by understanding that I will be able to make an assessment of risk.
[64] He then gave counsel for the applicant time to confer with the applicant.40 And then an opportunity was given to counsel to file any further information, with the Authority member saying:
“I don’t have a firm view in my mind about anything yet, so I will welcome your submissions very much. The more you can point me to things that confirm that depth and sincerity of his belief, the better.”
[65] The applicant took that opportunity and filed 234 pages of further material with the Tribunal.
[66] There is in my view no seriously arguable basis upon which it could be said that there was a natural justice breach through failing to put observations or material to the applicant during the hearing process. I am satisfied that the Tribunal met the high standards of fairness that are required in a case such as this.41
Were there issues with the interpreter or which otherwise affected the applicant’s understanding of the proceedings?
[67] Reference is made by the applicant to the interpreter having said, at the beginning of the hearing: “Can I ask you to speak louder. I’ve got an ear block”. However, there is no indication that the interpreter had any difficulty from that point. Moreover, it is clear that the Tribunal member took care during the course of the
40 It would seem from the transcript that only about a minute was taken by counsel to confer with the applicant but little turns on that given the opportunity for that was given for further material to be filed.
41 DO v Immigration and Protection Tribunal, above n 36, at [48].
hearing to ensure that the applicant could understand what was being said and that he could understand what the applicant was staying.
[68] Reference was made also to the applicant reciting the Lord’s Prayer during the hearing and to the way in which the interpretation of that piece of evidence is recorded. It is fair to say that the transcript of the interpretation of the applicant’s recitation of the Lord’s Prayer reflects only some aspects of the prayer. However, it cannot be known whether the shortcomings are due to what the applicant was saying to the interpreter or to the way in which his words were interpreted.
[69]No natural justice breaches could arise under these heads.
Does any failure to apply rights-based considerations exacerbate natural justice concerns?
[70] Reference is made to a previous decision relating to the applicant in which it was found that he had a mental health condition. It is said that the Tribunal does not seem to have taken that into account or to have had regard to arts 12 and 13 of the Convention of the Rights of People with Disabilities – which address rights relating to equal recognition before the law and access to justice. However, short of a reference by the Tribunal to the applicant having had a depressive disorder, it is not clear what the disability is alleged to be or how it affected the hearing to such an extent as to amount to an error of law. Again, I am satisfied that the Tribunal took extra care in the way in which the hearing proceeded and to ensure that the applicant could understand the things that were occurring and the things that were being said.
[71] The applicant has said that the Tribunal failed to give appropriate weight to his right to freedom of religion. I do not accept that argument. The Tribunal found, as it was entitled, that the applicant’s claim to have converted to Christianity was not credible. Accordingly, it did not accept there was a risk that the applicant would need to conceal his religion in Somalia or that deporting him would lead to a real chance of a breach of his right to freedom of religion.
Conclusion on the second issue
[72] For these reasons, the applicant has not in my view shown a seriously arguable case that any natural justice or unfairness issues arise. That being so, it is not necessary for me to go on to consider whether any question of law that arises 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.
Application to adduce further evidence
[73] On 17 October 2022, the applicant applied for leave to file further evidence under r 20.16 of the High Court Rules. The evidence compromised 115 pages of documents produced to the Parole Board, including parole assessment reports and specialist reports. It said that information contained within this material highlights the alleged factual mistakes on the part of the Tribunal. And it is said, at another level, that there are actionable flaws in the Tribunal not having the right material before it.
[74] As I said at an early point in the hearing, before I could consider this argument, I would need to determine the application for leave to introduce this new evidence and that I would have concerns in doing so in circumstances in which the material was available in advance at the hearing before the Tribunal and in which the Tribunal provided an opportunity for any further documents to be filed after the hearing.
[75] As counsel for the respondent submitted, the Court would need to determine if the evidence is credible (reasonably capable of belief), fresh (could not, with reasonable diligence, have been produced at first instance) and cogent (likely to have an important influence on the result).42 The respondent resists the introduction of the evidence on the basis that it is not fresh or cogent (the latter because the documents are based upon the applicant’s self-reporting and do not address the Tribunal’s concerns about inconsistencies in the evidence).
42 Hai v Minister of Immigration [2019] NZCA 55 at [24].
[76] The material is sought to be introduced in support of an argument that mistakes of fact were made as a result of the Tribunal not having this information before it. The material would, it was said, have contradicted factual findings made.
[77] As counsel for the respondent said, the English Court of Appeal in E v Secretary of State for the Home Department (a case cited in the applicant’s submissions) did accept that an error as to the availability of evidence could constitute an error of law if certain criteria are met.43 And it was found in Isak v Refugee Status Appeals Authority that a failure on the part of counsel to put material information before a decision-maker could constitute a ground for judicial review.44
[78] However, in circumstances in which under s 226 of the Act it is an appellant’s responsibility to establish their case and to ensure all information, evidence and submissions that they wish to have considered in support of the appeal is provided to the Tribunal and in which, under s 228, the Tribunal is not under any obligation to go beyond the information provided by the parties, those principles have little application on the facts of this case.
[79] In any event, after the morning tea break, counsel for the applicant said that a decision was not sought on the application at this stage as it was not determinative of this application. In those circumstances, the most that can be said is that the potential for the applicant to advance this argument does not in my view improve his prospects of establishing a seriously arguable case that the Tribunal’s factual findings are incorrect or that the hearing or the decision are tainted with unfairness.
Conclusion and result
[80] For the reasons given, I have found that the applicant has not shown a seriously arguable case that the Tribunal’s factual findings are incorrect or that any natural justice or unfairness issues arise. Accordingly, it is not necessary to go on to consider whether any errors are so grave as to constitute an error of law or to consider, beyond
43 E v Secretary of State for the Home Department [2004] EWCA Civ 49.
44 Isak v Refugee Status Appeals Authority [2010] NZAR 535 (HC).
that, whether a question of law has importance extending beyond this case or involving a substantial individual injustice.
[81]The application for leave to appeal is dismissed.
[82] Submissions were not made on costs, but if costs are in issue, the parties should seek to resolve them directly. If resolution cannot be achieved and an order is sought from the Court, then the respondent may file a memorandum within 15 working days of the date of this decision and the applicant may file a memorandum in response within a further 15 working days. Any such memoranda should be limited to five pages in length, including schedules.
Radich J
Solicitors/Counsel:
T R Carter, Wellington for Applicant Crown Law, Wellington for Respondent
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