BP (South Africa) v Refugee and Protection Officer

[2017] NZHC 3259

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001607

[2017] NZHC 3259

BETWEEN

BP (SOUTH AFRICA)

Applicants

AND

REFUGEE AND PROTECTION OFFICER

Respondent

CIV-2017-404-001659

BETWEEN

BP (SOUTH AFRICA)
Applicants

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

AND

REFUGEE AND PROTECTION OFFICER

Second Respondent

Hearing:	23 November 2017
Appearances:	Tonderai Mukusha for the Applicants Matthew Mortimer for the Respondents
Judgment:	20 December 2017

JUDGMENT OF MOORE J

This judgment was delivered by me on 20 December 2017 at 12:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

BP (SOUTH AFRICA) v REFUGEE AND PROTECTION OFFICER [2017] NZHC 3259 [20 December 2017]

Contents

Paragraph Number

Introduction.............................................................................................................. [1]

Background.............................................................................................................. [5]

IPT’s decision......................................................................................................... [17]

The applications before this Court....................................................................... [30]

Leave principles

Leave to appeal.................................................................................................... [31]

Leave to file judicial review proceedings............................................................ [43]

Should leave to appeal be granted?

Did the IPT err in fact?........................................................................................ [49]

Was the IPT inconsistent?.................................................................................... [63]

(a)  AS (South Africa)....................................................................................... [66]

(b)  AK (South Africa)...................................................................................... [71]

Did the IPT fail to give proper weight and consideration to the country

information?......................................................................................................... [77]

Summary of conclusions...................................................................................... [90]

Should leave to judicially review be granted?..................................................... [92]

Grounds............................................................................................................... [93]

Did the IPT act unreasonably in rejecting the country information?.................. [96]

Did the IPT err in the way it treated the son’s evidence

(Michelin Guidelines)?...................................................................................... [97]

Conclusion........................................................................................................... [99]

Conclusion............................................................................................................ [101]

Result.................................................................................................................... [103]

Costs...................................................................................................................... [104]

Introduction

[1]    The applicants are a father (“the father”) and his son (“the son”).1 The father is a former citizen of Pakistan and is now a national of South Africa. The son was born in Pakistan but, like his father, is also a national of South Africa.

[2]    Both seek leave to appeal and judicially review the decision of the Immigration and Protection Tribunal (“the IPT”) which dismissed their appeals against the decision of a Refugee and Protection Officer (“the RPO”) refusing to recognise them as refugees or protected persons.2

[3]    The applicants claim that the IPT failed to give sufficient weight to the risks the applicants say they will face if returned to South Africa and they also say the IPT’s decision is inconsistent with its approach in other similar cases.

[4]    The RPO opposes both applications on the grounds that none of the proposed grounds of appeal or review are arguable, raise matters of general or public importance or disclose any other reason to justify the grant of leave.3 Essentially, the RPO says that the applications relate to challenges of factual assessments by the IPT and the weight the IPT placed on them. These, the RPO submits, do not disclose errors but, instead, seek a second appeal in the hope the High Court may take a different view.

Background

[5]    The factual background is fully set out in the IPT’s decision. There is no material dispute on the relevant facts. This is because the IPT largely accepted as credible the factual accounts given by the father and son.

[6]    The father is in his early 50s and the son is now aged 21 years. The father spent the first 30 years of his life in Pakistan where he was born and raised in a Muslim

1      The Immigration Protection Tribunal (“the IPT”) referred to the applicants as “the father” and “the son”, as did the parties in their submissions. This is because of anonymity orders. I retain those references for the purposes of this judgment.

2      BP (South Africa) [2017] NZIPT 801095-96.

3      The IPT abides the Court’s decision (Minute of Hinton J, 15 August 2017).

family. After leaving school he spent several years working for his father in the family’s retail business.

[7]    In the mid-1990s the father fled Pakistan after he claimed he was falsely implicated, with others, in the fatal wounding of a relative. He moved to South Africa in 1994 where he settled and gained South African citizenship.

[8]    There he married a South African woman of Indian ethnicity. They remained together until 2009 when they divorced. Together they have one child, the son, who was born in Pakistan when the couple returned briefly to that country. The family returned to South Africa at the end of 1996. It appears that neither the father nor the son have any remaining contact with the mother.

[9]    In South Africa the father ran several small retail businesses in different parts of the Republic. Since 2001 he has been robbed six times. The details of these robberies are set out in the IPT’s decision but in summary, in chronological order they are these:

(a)in Johannesburg in 2001; three or four armed men entered the father’s store and stole cash, phone cards and cigarettes;

(b)in Johannesburg in 2002; the father was in an automotive spares shop buying a car battery when a group of armed men entered the store and robbed the customers. The father was assaulted. His phone and cash were stolen;

(c)in Johannesburg in 2003; the father’s mobile phone shop was robbed although he was not present at the time. The Police told him that the robbery was committed by foreign nationals who had come across the border to target retailers during the pre-Christmas period;

(d)in Johannesburg at the end of 2003; a group of five armed men entered the father’s shop and stole phone cards, phones, money and cigarettes;

(e)in Groblersdal in 2016; three armed men entered the father’s shop and stole cash; and

(f)in Groblersdal in 2016 (a week after (e)); the three robbers returned and robbed the father. Both the father and son were present during the 2016 robberies. The Police advised them that the robbers were members of a local gang.

[10]   As can be seen from this chronology, following the 2003 robbery there were no further incidents until 2016. This was in part due to the father travelling to Pakistan in 2010 and returning to South Africa in 2013 and then, again, travelling to Pakistan before returning in 2015. Apparently, the reason the father travelled to Pakistan was to attempt to sort out his legal issues there. His evidence, which was accepted by the IPT on this point, was that he was imprisoned in Pakistan for a time. He cannot return to Pakistan because when he left that country in 2015 he was in breach of his bail conditions.

[11]   While he was in Pakistan the son ran the shop. In 2011, while in the shop, the son was the victim of an assault although it does not seem this incident was elevated to a robbery. Following this he apparently struggled in his father’s absence and sold the business while his father was still in Pakistan in prison. On his return to South Africa the father purchased a shop in Groblersdal using the proceeds of the sale of the previous business. He and the son ran the store together. It was there that the fifth and sixth robberies occurred when both the father and son were present in the shop.

[12]   In addition to the robberies, the father and son relied on two further bodies of evidence summarised below.

[13]   The son’s evidence was that when he was at school he was subjected to abuse and threats when he attempted to spread Islam. It would appear that the son has not encountered any difficulties associated with his religion since he stopped promoting Islam to others.

[14]   Furthermore, both the father and son made reference to the father’s brother-in- law, Ismail. According to the father, Ismail suffers from serious mental health issues. He lived near the family home until he was imprisoned for causing the death of another during a road rage incident. He was imprisoned for seven years in either 2008 or 2009. Prior to going to jail he assaulted and threatened the father. Neither the son nor the father have seen him or had any dealings with him since before he went to prison. The son claimed that not long after he and  his  father  left  South Africa  to  come  to New Zealand his aunt telephoned him to say that Ismail was looking for the father and son and had threatened to kill them.

[15]   Following the last two robberies  in 2016 the father and son  travelled to  New Zealand. They arrived in May 2016. On 28 November 2016 their claims for refugee and protected persons status were assessed and declined by an RPO of the Refugee Status Branch. The applicants appealed to the IPT.

[16]   In summary, the father and son do not wish to return to South Africa. Apart from the difficulties discussed above, a number of friends have lost their lives to violence. They do not believe they could be safe anywhere in South Africa. The father is unable to return to Pakistan because of the charges he faces there and, in any event, because he is no longer a citizen of that country.

IPT’s decision

[17]   The IPT concluded that the father and son’s accounts were, in material respects, largely credible. The relevant passage from the decision is reproduced below:

“[34] The Tribunal finds that much of the testimony given by the appellants is credible. Their accounts of the various incidents they claim to have experienced are plausible in light of available country information and broadly consistent with previous accounts they have given, and with each other’s testimony. There was a difference in timing of one of the robberies referred to by the father; he told the Refugee Status Branch it occurred in Cape Town around 2009, and told the Tribunal it occurred in Benoni in 2003. Given the length of time that has elapsed, however, the Tribunal draws no negative inference from that detail in the context of the father’s evidence as a whole.”

[18]   The other aspect which the IPT determined was not reliable or credible was the son’s evidence about Ismail and the call he said he received from his aunt. The IPT

rejected this evidence because the son had never previously disclosed the existence of the threat despite having numerous opportunities to do so. In particular, the IPT pointed to the fact that there was no reference to it in his statement in support of his claim and he did not refer to it during his interview with the RPO or when responding to various queries of the RPO following that interview. Nor did he provide an updated statement to the IPT prior to the appeal hearing. When challenged on these omissions he was unable to explain them. Furthermore, the son claimed he never disclosed the threat to his father who made no reference to it during his evidence before the IPT.

[19]   The IPT identified the relevant statutory and convention provisions before posing the following questions:4

(a)Objectively, on the facts as filed, is there a real chance of either appellant being persecuted if they returned to their country of nationality? and

(b)If the answer is yes, is there a Convention reason for that persecution?

[20]   The IPT recorded that “being persecuted” requires serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection.5 A well-founded fear requires a real, as opposed to a remote or speculative, chance of it occurring6 and that the standard is entirely objective.7

[21]   The IPT concluded that, considered objectively, there was not a real chance of the applicants being persecuted if they returned to South Africa.

[22]The IPT distinguished one of its own decisions involving South Africa,

AS (South Africa)8. There, a South African citizen of Kurdish/Iraqi ethnicity was

4      BP (South Africa), above n 2, at [51].

5      Citing DS (Iran) [2016] NZIPT 800788 at [114]-[130] and [177]-[183].

6      Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA).

7      Refugee Appeal No. 76044 [2008] NZAR 719 at [57].

8      AS (South Africa) [2013] NZIPT 8005011.

granted refugee status. However, that case involved much greater adversity with a clear link to the applicant’s ethnicity.9

[23]   The IPT referred to another of its decisions, AI (South Africa),10 where the IPT held that notwithstanding the high crime rate in South Africa:11

“in the absence of any aggravating features, the risk to any particular individual in South Africa of serious harm arising from crime was no more than a mere possibility”.

[24]   The IPT adopted that formulation in the present case.12 The IPT accepted that violent crime in South Africa is a significant social problem, affecting African and coloured working class people disproportionately, but the risk remained well below that of a real chance.13

[25]In respect of the applicants the IPT concluded:

(a)they had not established that the attacks on the father’s business were motivated by the father and son’s ethnicity rather than the fact the father operated a retail business;14

(b)the last two incidents involving the father and son were committed by a criminal gang wanted by the Police for a number of criminal acts against different victims. It was not suggested that the father and son’s ethnicity was a motivating factor for the robberies. In other words, the robberies were not committed by South Africans who targeted those of Pakistani descent by reason of ethnic hatred;15

(c)between 2004 and 2010, there were no robberies. During that period there were incidents of shop lifting which the father accepted was a

9      At [55]-[59].

10     AI (South Africa) [2011] NZIPT 800050-53.

11 At [60].

12     BP (South Africa), above n 2, at [60]; see also AR (South Africa) [2013] NZIPT 800576.

13     BP (South Africa), above n 2, at [61].

14     At [62]-[63].

15 At [64].

constant reality for all shop owners. There was no suggestion that the shop lifting was motivated by xenophobia;16

(d)the motive for offending against the father and son appeared to be for pecuniary gain rather than targeting the father and son by reason of their ethnicity;17

(e)while the son had been a victim of random criminal acts there was no evidence that any such aggression was directed towards the son for religio-cultural reasons. Furthermore, since he had abandoned attempts to spread the influence of Islam he had not suffered any retributive acts of violence. There was no suggestion the son intended to resume these activities in the event he returned to South Africa. The IPT specifically noted that his right to freedom of religion under Article 18 of the International Covenant on Civil and Political Rights (“the ICCPR”) was not engaged because he did not suggest he refrained from these activities by reason of fear nor had he attempted, while in New Zealand, to act in this way;18 and

(f)that Ismail had no any interest in the father or son as they had not seen him since 2009.19

[26]   Because the son assisted his father in his shop keeping duties, the cases for the father and son overlapped.

[27]The IPT concluded with the following:

“[73]    The Tribunal finds that the appellants’ respective fears are not well- founded. They are not at risk of serious harm at the real chance level. Any

16 At [65].

17     At [66.]

18 At [67].

19 At [71].

risk they face is random in nature, and is no more than remote and speculative.”

[28]   For these reasons the IPT did not go on to consider whether there was a Convention reason for the persecution.

[29]   For similar reasons the IPT also declined to allow the appeals in respect of the Convention against Torture and ICCPR claims.20

The applications before this Court

[30]   The father and son seek leave to both appeal and judicially review the IPT’s decision on three grounds:

(a)it is seriously arguable that the factual findings by the IPT were and are incorrect;

(b)the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law; and

(c)it is seriously arguable:

(i)the IPT has made a finding of fact which is based on evidence inconsistent with or contradictory of another finding of fact; and

(ii)the errors of fact are so significant and extensive that a properly directed IPT may well have reached a different decision overall on the appeal; and

(iii)the question of law (here based on alleged fundamental errors of fact) involves individual injustices to such an extent that the Court simply should not countenance the first instance decision standing.

20     At [78]-[82].

Leave principles

Leave to appeal

[31]   Leave to appeal a decision of the IPT is governed by s 245 of the Immigration 2009 Act (“the Act”) and leave to commence proceedings for judicial review is governed by s 249 of the Act. I shall first deal with the principles relative to appeals.

[32]Section 245(1) and (3) provide:

“245    Appeal to High Court on point of law by leave

(1)Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

…

(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.”

[33]   This Court has emphasised that the introduction of a leave requirement indicates a deliberate intention by Parliament to limit appeals and reviews to this Court.21

[34]   Three questions are engaged when considering whether to grant leave to appeal. These are:

(a)Is there a question of law?

21 SK v Immigration Protection Tribunal [2014] NZHC 2693 at [5]; Nabou v  Minister  ofImmigration [2012] NZHC 3365, [2013] NZAR 155 at [6]; Guo v Immigration and ProtectionTribunal [2014] NZHC 804 at [52].

(b)If so, is the question of such general or public importance that it ought to be submitted to the High Court for decision?

(c)Is there any other reason why it should be so submitted?

[35]   Palmer J has commented that in relation to the first question, although the strict wording of s 245(1) only requires that the appellant themselves be “dissatisfied” with the IPT’s determination “as being erroneous in point of law,” in practice a Court will not grant leave unless the alleged question of law is capable of serious argument.22 This interpretation must be correct otherwise the Court would be obliged to grant leave in cases where any question of law was advanced, however objectively hopeless. Such an outcome would be inconsistent with Parliament’s plain intention to limit appeals in this area. I thus adopt this interpretation.

[36]   Only where it can be shown that there is a seriously arguable question of law will a Court proceed to consider the second and third questions. In the recent case of Machida v Chief Executive of Immigration New Zealand, the Court of Appeal commented that these questions effectively require a court to determine if the proposed question of law:23

(a)has importance extending beyond the particular case (which is what “general or public importance” entails); or

(b)for some other reason warrants a decision from the High Court.

[37]The Court went on to observe as follows:24

“Although category (b) is open ended, we agree with the series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.”

22 I adopted a similar interpretation in EG v Minister of Immigration [2016] NZHC 2071 which was upheld by the Court of Appeal in K v Minister of Immigration [2016] NZCA 569; see also Wu vMinister of Immigration [2016] NZHC 1309 at [15], footnote 4.

23    Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].

24     Machida v Chief Executive of Immigration New Zealand, above n 23 at [8].

[38]In similar vein, Duffy J in LMN v Immigration and Protection Tribunal

summarised the approach to s 245 in the following way:25

“Section 245 of the Immigration Act 2009 provides a right of appeal with leave to this Court against a decision of the Tribunal. The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question of law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus, factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing ‘any other reason’ for his appeal to be submitted to this Court for determination.”

[39]   I agree with Mr Mortimer, for the respondents, that if the application has little or no prospect of success, it follows that the issues must also be of limited general or public importance, and this points towards not granting leave.26

[40]   I also accept Mr Mortimer’s submission, formulated on the basis of the authority cited above, that because leave is only available in respect of questions of law, factual findings will be immune from challenge unless they are of such magnitude they constitute an error of law.

[41]   It was in this context that Kós J, in Taafi v Minister of Immigration emphasised that applicants face a triple hurdle:27

“(a)First, the applicant will need to show a seriously arguable case that   the 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 findings.

(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

25     LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [2]. This passage was cited with approval in SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [7].

26     See Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880at [36].

27     Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].

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.

(c)Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal.

…”

[42]   These criteria have been upheld in a number of subsequent cases;28 indeed in C v Chief Executive Officer of the Ministry of Business, Innovation and Employment of Auckland, Thomas J remarked that the application of the Taafi test is now “well established.”29

Leave to file judicial review proceedings

[43]   I turn now to consider the principles which apply to applications for leave to commence judicial review proceedings.

[44]   The comments already made in relation to Parliament’s purpose in requiring leave also apply to applications under this heading.

[45]Section 249 relevantly provides:

“249 Restriction on judicial review of matters within Tribunal’s jurisdiction

(1)No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made out and the Tribunal issues final determinations on all aspects of the appeal.

…

28 Guo v Immigration & Protection Tribunal [2014] NZHC 804; Cao v Immigration & Protection Tribunal [2014] NZHC 259; Teitiota v Chief Executive, Ministry of Business, Innovation and Employment [2013] NZHC 3125, [2014] NZAR 162.

29     C v Chief Executive Officer of the Ministry of Business Innovation and Employment of Auckland

[2014] NZHC 2655 at [23].

(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

[46]In determining whether to grant leave, the Court is required to consider:30

(a)whether review proceedings would involve issues which could not be adequately dealt with in an appeal against the final determination of the IPT; and

(b)if (a) above applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

[47]   Traditionally, the leave provisions for both leave to appeal and judicial review have been interpreted in the same manner.31 However, in RM & SM v Immigration and Protection Tribunal, which was decided before the Court of Appeal delivered its decision in Machida, Palmer J, in recognising that ss 245(3) and 249(6) were similarly worded, suggested that determining whether to grant leave to judicially review a decision of the IPT could invoke wider constitutional or human rights considerations than when determining an application for leave to appeal.32 For reasons which will become apparent later in this judgment, is it unnecessary for me to consider whether I agree with the remarks made by Palmer J.

[48]   This is because I am of the view that even if the more expansive approach favoured by Palmer J is adopted, the grounds advanced in the present case fall well short of establishing that leave to review should be granted. This is not the “marginal case” as contemplated by Palmer J.

30     Subsection (6).

31     SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [7].

32     RM & SM v Immigration and Protection Tribunal [2016] NZHC 735 at [42] and [45].

Should leave to appeal be granted?

Did the IPT err in fact?

[49]   In the course of his submissions Mr Mukusha pointed to three ways in which the IPT erred; errors of fact, inconsistency with its own decisions in comparable cases and failure to give proper weight and consideration to country information. I shall deal with each of these criticisms in turn.

[50]   For the applicants Mr Mukusha advances the application for leave to appeal on the basis that the IPT made such significant errors of fact that it erred in law.

[51]   It is well settled that while errors of this magnitude may constitute an error of law rather than fact Taafi reinforces that the errors of fact must be so significant and extensive that a properly directed IPT may well have reached a different decision.

[52]   In the present case, I am satisfied that on any analysis Mr Mukusha’s challenge goes to questions of weight. The essence of his submission is that the IPT, having determined that the evidence of the father and son in material respects was credible erred when it determined that neither had a well-founded fear of being persecuted in South Africa and that they had not established that there were substantial grounds for believing that either of them would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if they were to be deported from New Zealand. He submits that the IPT wrongly took the view that since neither the father nor the son had been harmed there was no risk of serious harm should they be returned to South Africa. He submits that the country information tendered revealed that Pakistanis were targeted in a systematic and non-random way.

[53]   This submission is simply a re-assertion of the submissions made to the IPT. The essence of Mr Mukusha’s submissions, both in writing and during the hearing, was that the IPT’s conclusions were unreasonable having regard to its determinations on credit.

[54]   I am not satisfied that the IPT made any factual errors in its assessment of whether the father and son have an objectively well-founded fear of persecution. My reasons follow.

[55]   First, while Mr Mukusha is correct that the IPT accepted that the father and son had been the victim of assaults and robberies it did not accept that the crimes were racially motivated or that the risk of future crimes reaches the level of real or substantial risk.

[56]   Secondly, Mr Mukusha submits that the country information revealed that harm against Pakistani nationals was systemic. This aspect is discussed more fully below. However, an examination of the voluminous material presented does not support that submission. While the articles contain reports on violence committed against non-native South Africans, and people of Pakistani origin are mentioned, the material when read as a whole does not reveal any systemic pattern of violent offending against Pakistani store owners.

[57]   The IPT took this into account when it stated that it accepted xenophobic attitudes exist and that foreign communities and non-African ethnicities are sometimes exposed to crime and violence but the IPT also had access to other material, including country information and previous IPT assessments of South Africa. The IPT assessed the issue in the following way:

“[68]  The Refugee Convention offers protection from serious harm where  it is established that there is a real, as opposed to a remote or speculative, chance of a serious harm occurring. While that measure is not capable of mathematical exactitude, there must be evidence that establishes a real, as opposed to a remote or entirely speculative risk of such harm.

[69]      The Tribunal accepts that there is evidence that the levels of crime in South Africa are comparatively high. That includes the level of violent crime in the nature of robbery. It also accepted that xenophobic attitudes exist and that members of foreign communities and non-African ethnicities are sometimes exposed to crime and violence. It acknowledges that incidents occur such as those outlined in the articled presented by counsel, referring to the death of the Pakistani manager of a mobile telephone store who was shot and killed in front of customers (Megan Baadjies “Shot dead in shop” Daily Report (23 June 2016)). That article, however, quotes members of the deceased’s family who indicated that they do not know why he was targeted and stated that nothing was taken from the shop. It may or may not have been a crime arising from xenophobia.

[70]      The Tribunal finds that the risk of either appellant again being the victim of violence in the future is no more than random and speculative.”

[58]   In other words, the IPT determined that any fears or concerns held by the father and son did not rise to the level of a well-founded fear.

[59]   The IPT also relied on previous assessments it had made of the risk of crime in South Africa.33

[60]   For these reasons I accept Mr Mortimer’s submission that the IPT did not simply rely on its previous decisions. It considered the country information contained in its previous decisions in combination with the additional material provided to the IPT by the father and son. It then considered the father and son’s own experiences and evidence and assessed this against the country information.

[61]   In terms of the Taafi test I am far from satisfied that the father and son have shown a seriously arguable case that the factual findings by the IPT are actually incorrect. To the contrary, on the evidence before the IPT not only am I satisfied that the findings were open to the IPT but also that the IPT was correct in finding as it did; the latter determination going a good deal further than I am required for present purposes.

[62]   In any event, even if the IPT erred in fact it cannot be said any errors reach the second threshold in Taafi or are matters of general or public importance.

Was the IPT inconsistent?

[63]   The second broad ground of challenge is that the IPT failed to consistently apply the law having regard to its own previous, similar cases.

[64]   While I have considerable misgivings about whether such a failure, if it did occur, would amount to an error of law, for reasons which follow I am not satisfied that this ground is made out either.

33     AI (South Africa), above n 10; AS (South Africa), above n 8, see in particular [45]-[53].

[65]   Two cases cited by Mr Mukusha were AS (South Africa)34 and AK (South Africa).35 I shall discuss each in turn.

(a)AS (South Africa)

[66]   Mr Mukusha submits that this case is comparable and the IPT incorrectly distinguished it.

[67]   AS was a single man born in Iraq of Feyli Kurdish ethnicity. He lived in  South Africa between 1998 and 2012. He claimed that he was at risk of being seriously harmed because he was identified as a foreign migrant in South Africa and because he had no community support to assist him in securing employment, accommodation and day-to-day security. He complained of suffering numerous physical attacks and had not been able to obtain meaningful assistance from the South African Police. He claimed that these incidents would continue in the future and that there was no prospect of him obtaining adequate state protection from a dissipated harm. The evidence was that AS was subjected to racial and homophobic slurs during each of the attacks on him causing serious mental health issues and suicidal ideation.

[68]   However, the circumstances in AS are, in my view, readily distinguishable. AS was an employee rather than a business owner and the attacks on him were focused and targeted accompanied by racial abuse.

[69]   In contrast, the father and son in the present case have not been subjected to systematic harassment. The six robberies occurred over a relatively lengthy period and the offending (the shop lifting and robbery) occurred in each case because the perpetrators were targeting goods and funds in a retail shop. There is no evidence that any of the attacks were racially motivated.

[70]   Furthermore, at least some of the incidents involving the father appeared to be cases of being “in the wrong place at the wrong time”. An example of this was the robbery which took place when the father was in the automotive spares shop purchasing a battery.

34     AS (South Africa), above n 8.

35     AK (South Africa) [2012] NZIPT 800174-176.

(b)AK (South Africa)

[71]   The applicants in this case were a father, mother and teenage daughter. The father was the director of a sign writing company who claimed to be at risk of serious harm at the hands of a criminal group in South African who used violence, including the murder of the father’s business partner, to drive the father’s company away from a lucrative commercial contract. The wife and daughter had also been threatened with harm by the group.

[72]   The father established his sign writing business with a former black employee who, a few months after the business started, was stopped in his car and fatally shot. The other person in the car was left unharmed. Later that evening two unknown men arrived at the father’s home and told him that his business partner’s killing was a warning to him to abandon the sign writing business; that if he did not leave the country within 48 hours his wife and daughter would be raped and killed. Once the men left the father telephoned the Police who told him there was nothing they could do in the absence of actual harm.

[73]   When the father spoke with his business partner’s widow she told him that she had also been threatened and told to leave the country. Her approach to the Police had been met with a similarly unsatisfactory rebuff. There was also other evidence which tended to support the conclusion that unless the family left South Africa they would be targeted and likely killed.

[74]   Unsurprisingly the IPT was satisfied that the father faced a real risk of being persecuted if he returned to South Africa and that he was at risk of serious harm. In respect of the mother and daughter the IPT also concluded that they, too, were at risk due to the criminal group’s interest in driving the family away from the sign writing contract.

[75]   Mr Mukusha submitted that there were parallels and similarities between the two cases because the IPT accepted it was unable to assess how extensive the criminal group behind the threats was. The IPT posited they may have been part of a small group confined to Kwa Zulu-Natal or they might have been more widespread.

[76]   However, the differences between AK (South Africa) and the present case are plain. In AK (South Africa) there was an immediate and identifiable risk of serious harm. It was not harm capable of being effectively eliminated by the family moving to another part of South Africa. The threats were commercially, not racially, motivated but in my view that makes no difference to the core issue of risk assessment. The cases are factually quite different and the IPT was correct in finding so.

Did the IPT fail to give proper weight and consideration to the country information?

[77]   As Mr Mukusha developed his argument in oral submissions it became apparent, particularly in the course of his reply, that he places considerable reliance on the IPT’s alleged failure to give proper weight and consideration to the country information it had before it.

[78]   The country information was in the form of the IPT’s earlier decisions involving South African applicants as well as supplementary information and material provided by the father and son to the IPT. I have already discussed the IPT’s approach on this topic. However, for the reasons which follow it is necessary to expand on this criticism.

[79]   In his oral reply, Mr Mukusha submitted that a further question of law for this Court could relate to the extent to which the IPT should have taken into account country information. He submitted the question of law might be posed in the following way:

“How should the decision maker apply country information in cases which have similar features to the present?”

[80]   Mr Mortimer submitted that the correct approach to an assessment of country information, which has been endorsed by various decisions of the Senior Courts, is that the IPT must first make credibility findings in respect of the applicant’s circumstances supporting the determination that they have a well held fear of persecution. Only after that exercise has been completed is the IPT then required to examine the country information.

[81]   At Mr Mortimer’s invitation I directed that further written submissions be filed on this point.

[82]   Mr Mukusha submits that the IPT erred by not attaching sufficient weight to the country information which was provided by his clients. He claims that this country information clearly revealed that business people of Pakistani origin in South Africa are being targeted. Shop owners in the situation which the father and son found themselves are objectively fearful of being  executed  because  of  their  ethnicity.  Mr Mukusha submits that the IPT erred by not following the spirit of the United Nations High Commissioner for Refugees Handbook and the Guidelines on Procedures and Criteria for Determining Refugee Status. He says that if the RPO and the IPT had carefully assessed the material before it the outcome would have been different.

[83]   The difficulty with this submission is that again, it amounts to a challenge to the weight the decision maker placed on a relevant consideration. Weight is a matter for the IPT. As Palmer J observed in relation to a similar challenge:36

“The Tribunal has said to have failed to adequately evaluate the personal circumstances of the applicants and the country information. This is not a question of law. It is a question of weight given to facts.”

[84]   Furthermore, I agree with Mr Mortimer’s submission that country information is like any other piece of evidence before the IPT. It is scrutinised by the IPT and may be accepted, rejected, or have varying weights ascribed to it. If accepted, it may be objective evidence against which a claimant’s account is assessed and a credibility finding made. Country information which is accepted would be used in conjunction with other evidence to determine whether the various legal tests are met, for example whether, objectively viewed, an applicant holds a well-founded fear of persecution.

[85]   Country information is often considered after significant parts of an applicant’s account have been rejected as not credible.37

36     RM v Immigration and Protection Tribunal [2016] NZHC 735 at [53](b).

37     AL (Somalia) v Immigration Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [52]- [55].

[86]   But that is not the case here. Here, the IPT found that in material respects the father and son’s accounts were credible. It then went on to identify the country information before making a decision on all the evidence.

[87]   The IPT considered an article submitted by the applicants which reported the death of a Pakistani shop owner but noted, correctly in my view, that it was unclear from the record whether the killing was a consequence of xenophobia. The IPT also considered its decision in AS (South Africa). This contained helpful country information but as discussed there were compelling factors present in that case which are absent in the present.

[88]   It was for this reason that the IPT observed that the country information supported a finding that crime rates and xenophobic violence in South Africa, while high, was not at a level which rose to a real, as opposed to a speculative, chance.

[89]   I agree with Mr Mortimer that there was no error in the IPT’s methodology. In particular, there was no error in the way in which it used the country information which might reveal an error of law. The decision turned on the IPT’s assessment of the facts and the evidence before it.

Summary of conclusions

[90]   I thus conclude that none of the proposed grounds establishes a question of law let alone one which is a matter of such general or public importance that a grant of leave should be made. Furthermore, the issues raised are not seriously arguable and even if they were they are specific to the particular case such that they lack a general or public importance.

[91]   As earlier noted, this is a case where the father and son simply disagree with the IPT’s assessment. For that reason leave should not be granted to bring a second appeal.

Should leave to judicially review be granted?

[92]   I turn now to consider whether leave to file judicial review proceedings should be granted.

Grounds

[93]   The grounds are contained in the draft statement of claim which mirror the grounds relied on the application for leave to appeal.

[94]By way of summary the grounds appear to be:

(a)the IPT acted unreasonably in rejecting country information which supported the applicants’ claim;38 and

(b)the IPT erred in law in the way it treated the aspect of the son’s evidence it rejected by failing to follow the Michelin Guidelines on Well-

Founded Fear.39

[95]I shall discuss each in turn.

Did the IPT act unreasonably in rejecting the country information?

[96]   In respect of the first ground it is apparent that the IPT did not reject the father and son’s evidence nor the articles they submitted. Instead, it considered all of the evidence and came to the conclusion that any fear was speculative. There was a clear evidential basis on which to do so. The question of well-founded fear of persecution did not demand a single answer.

38     Draft statement of claim at [14]-[15].

39 Draft statement of claim at [17].

Did the IPT err in the way it treated the son’s evidence (Michelin Guidelines)?

[97]   In respect  of  the  second  ground,  the  use  of  the  Michelin  Guidelines,  Mr Mortimer referred me to the observations of this Court in AP v Immigration Protection Tribunal, where it was said:40

“[27] It was submitted that the Tribunal failed to follow the Michelin Guidelines on Well-Founded Fear. This failure was said to constitute an error of law for the purposes of an appeal and pleaded in support of the judicial review ground of failure to take account of the death certificate and the threat assessment. The draft statement of claim for judicial review pleaded the following from the Michelin Guidelines:

‘To determine whether an application faces a significant risk of being persecuted, all material evidence from whatever source must be considered with care, and in context. Equivalent attention must be given to all forms of material evidence, with a decision on the relevant weight to be assigned to different forms of evidence made on the basis of the relative veracity and cogency of the evidence adduced.’

[28] This is no more than a guideline for assessment evidence. It is useful but it has no binding force. In any event, and the reason I have quoted, the manner in which the Tribunal weighed all of the evidence put before it is not inconsistent with these guidelines.”

[98]   Contrary to Mr Mukusha’s submission I am satisfied that the IPT did, in fact, follow the Michelin Guidelines. The IPT accepted almost all of the applicants’ account. It looked to future and past risk. It did not rely solely on country information but weighed and considered it in light of the father and son’s own accounts. That process is consistent with the Michelin Guidelines.

Conclusion

[99]For these reasons I am satisfied that the IPT’s decision was not unreasonable.

[100]   It follows that no ground for review has been shown that meets the statutory test for leave in s 249 of the Act. No matter of general or public importance is engaged nor should leave be granted under the “any other reason” ground.

40     AP v Immigration Protection Tribunal [2016] NZHC 1085 at [27]-[28].

Conclusion

[101]   Despite the fact that the father and son’s factual accounts were accepted, almost in their entirety, their claim was rejected because even on their own accounts the evidence did not disclose an objective basis for finding that they would be persecuted if they were returned to South Africa.

[102]   Pared back to its essentials, the present applications essentially seek this Court to arrive at a different conclusion. I am not satisfied that any errors of law were made and even if they were made, I am not satisfied that there is any general or public importance engaged in this case which would justify a grant of leave for any other reason.

Result

[103]The applications for leave are refused.

Costs

[104]   The respondents, being the successful party is entitled to costs. My preliminary view is that costs should be awarded on a 2B basis.

[105]   If counsel agree they are to file a joint memorandum to that effect. If counsel are unable to agree they are to file memoranda not exceeding five pages.

[106]   In any event, any memoranda are required to be filed and served within 60 clear working days of the date of this judgment.

Moore J

Solicitors/Counsel:

Mr Mukusha, Auckland Mr Mortimer, Auckland