BU v Immigration and Protection Tribunal
[2016] NZHC 1499
•1 July 2016
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-3173 [2016] NZHC 1499
BETWEEN BU AND BU
Applicants
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
A REFUGEE AND PROTECTION OFFICER
Second Respondent
Hearing: 12 April 2016 Further submissions 20, 22 and 30 June 2016 Counsel:
R Pidgeon for Applicants
No appearance for First Respondent
M Conway and B Charmley for Second RespondentJudgment:
1 July 2016
JUDGMENT OF WHATA J
This judgment was delivered by me on 1 July 2016 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Pidgeon Law, Auckland
Crown Law, Wellington
BU AND BU v THE IMMIGRATION AND PROTECTION TRIBUNAL [2016] NZHC 1499 [1 July 2016]
[1] BU and BU (BT within this judgment to avoid confusion) sought refugee status. Their claim was based on an asserted consanguineous relationship which is prohibited in Sikh culture. The Immigration Protection Tribunal (IPT) rejected this claim. They now seek leave to appeal to the High Court on the basis that the IPT breached their right to natural justice. They say that the IPT granted them leave to produce DVD evidence purporting to show that they have familial connection, but did not wait for the DVD to be received before issuing a decision.
[2] As Mr Pidgeon submitted, the key issues are:
(a) Was proceeding to issue a decision without receipt of the DVD a breach of natural justice?
(b) Would the DVD make a difference?
(c) Is this a matter of general or public interest, or a matter of individual injustice warranting leave to be granted?
Background
[3] BU travelled to New Zealand from India on a student visa in 2011. She entered into a romantic relationship with BT in 2012. She claims BT is related to her as the grandson of her father’s half-sister. BT, also from India, was, at the time, residing in New Zealand, also on a student visa. His student visa expired in 2013. With BU’s assistance, he made an application for a work visa. The contents of this application included a false statement by a friend of BU who claimed that she was BT’s sister. This was done, they say, because they could not contact family members for assistance as their relationship was prohibited.
[4] Meanwhile, BU claims that the family became aware of BU’s relationship with BT. On a trip to her sister’s wedding in India in January 2014, BU says her brother assaulted her and accused her of having an affair. Later that same year, she says that she received a telephone call from her brother accusing her of having committed a crime against the family.
[5] BT was arrested in March 2015 by Immigration New Zealand officials. BU
received advice that they should seek refugee status and they did so on 11 March
2015. About this time, BU says that her brother stated that he would kill them on their return to India. BT also fears harm from male members of his family.
Tribunal decision
[6] The Tribunal decision describes the evidence given by BT and BU. It also refers to evidence given by TS, in support of the appellants. The Tribunal then records the material received with submissions, including country information.1
[7] The Tribunal notes that on 4 December counsel filed closing submissions and further documentation with the Tribunal, including material previously submitted, and:
(a) A copy of Punjabi transcript and English translations of DVD voice recordings made to the first appellant, with handwritten notes;
(b) Emails between counsel and the first appellant, dated 5 June 2015 and
1 December 2015, concerning the voice recordings;
(c) An email from the first appellant to counsel, dated 1 December 2015, attaching five screenshots recording the names of family members attending the wedding of the first appellant’s sister;
(d) Email from Baljit Kaur, dated 26 November 2014;
(e) Professor V Patel, Shreemati Nathibai Damodar Thackersey (SNDT)
Women’s University, Mumbai, Women’s Movement and Crimes
1 The country information included the following materials: National Legal Research Desk – A Shakti Vahini Initiative Honour Killings/Crimes in India (20 November 2014) at Excerpts from Honour Based Violence Awareness Network, International Resource Centre at “Mathura: Eloped Couple found in Kolkata” Press Trust of India (14 May 2015); Australian Refugee Review Tribunal Mixed Marriage in India (June 2012); Immigration and Refugee Board of Canada India: Honour Crimes, Including the Prevalence in Both Rural and Urban Areas: Government Protection and Services Offered to Victims of Honour Crimes (2009-April 2013) IND104370.E (9 May 2013).
Concerning ‘Honour’ An Indian Experience – A Review Paper
(undated);
(f) A Singh, National Legal Research Desk The Crimes of Prejudice
(1 February 2012).
[8] The Tribunal also records that on 8 December 2015, the Tribunal wrote to counsel inviting further evidence related to matters arising from the file and of the material on 4 December 2015 and on 10, 11 and 14 December, including emails from counsel seeking to extend the timeframe for providing further information and advising that two DVDs would be submitted once counsel had received further clarification from the appellants. At the time of delivering the decision, the Tribunal says no further material had been received by it. The decision was delivered on 15
November 2015.
Credibility finding
[9] The Tribunal did not accept that the appellants’ account was credible, referring to the mobility, vagueness and inconsistency of the accounts provided by the appellants. The Tribunal specifically referred to:
(a) The failure to mention November/December threats in a statement to the Refugee Status Authority;
(b) The mobile account of purported threats;
(c) Delay in BU disclosing threats to BT and the implausibility of the reason for it – that is, BT’s stress at the time;
(d) Inconsistent accounts as to how BT’s family learned of the
relationship in question;
(e) Inconsistent accounts of source threats, evolving from brother and
sister, to including BT’s mother by the time of the Tribunal hearing;
(f) Lack of evidence of family connection – I return to this aspect below at [24]; and
(g)The timing of the account upon which the claim is made – when BT was first arrested he expressed that he was happy to return to India underscoring that the alleged threats to him and BU were not true.
[10] The Tribunal concluded, in light of the foregoing, that there was no credible evidence establishing that the appellants are at risk of serious harm if returned to India.
Jurisdiction
[11] Leave to appeal to this Court is limited to questions of law only.2 Leave to commence judicial review proceedings is limited to issues that could not be adequately dealt with in an appeal.3 In deciding whether to grant leave to appeal or review, I must have regard to whether the question of law or review issue is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the High Court.4 I examine the threshold test for leave at [33]-[35].
Grounds of appeal/review
[12] Mr Pidgeon identified in his written submissions a number of case-specific issues to be resolved. He accepted in oral argument that the core issues are those listed at [2]. I will proceed on that basis.
Was proceeding to issue a decision without receipt of the DVD a breach of natural justice?
[13] It is necessary to elaborate on the approach taken to evidence of familial connection.
2 Immigration Act 2009, s 245.
3 Section 249
4 Sections 245(3) and 249(6) both contain this requirement. The standard applied is the test similar to that applying to second appeals to the Court of Appeal under s 67 of the Judicature Act 1908: Minister of Immigration v Jooste [2014] NZCA 23.
[14] The refugee and protection officer (RPO) found that the evidence regarding the appellants’ relationship and family connection “was detailed and compelling and was supported by documentary evidence”. The documentary evidence included:
(a) Translation of an affidavit of BU’s aunt and BU’s mother’s village
council identity card;
(b)Translations of various text message and email correspondence between BU and others;
(c) A transcript and translation of telephone messages received by BU, including several messages from her sister, received by BU after her RSB interview;
(d)Photocopies of selected pages from passports belonging to BT’s mother, BU’s father, and BT’s sister.
(e) Four photographs featuring family members of BT and BU. [15] The RPO concluded that the following was credible:
(a) BU and BT are nationals of India;
(b) They are related to one another through Mr BT’s grandmother;
(c) They have been involved in a romantic relationship.
[16] As noted at [9], the IPT took a very different view of the evidence of familial connection. The IPT observed:
[64] The documentary foundation for the appellants’ claim to be blood relatives is based on the common maternal name of [“MK”] specified in the passports of the first appellant’s father and the second appellant’s grandmother (whom it is claimed are half-siblings). Such documentation conveys that they share a mother with a common name. Photographs of these two persons together are tendered, as is a DVD of a family wedding where they are again present together. However, such information, alone, is not determinative of the relationship described.
[67] … viewed against the backdrop of evidence given in other areas of the appellants’ central claim, including vague, mobile and inconsistent features, the Tribunal rejects the evidence of the appellants as being blood relatives, and finds this claim to be untrue.
[18] Mr Pidgeon submits that the evidence considered by the IPT did not include the DVD evidence identifying family members at a wedding together, including a list of names of family members that correspond to other documentary material produced by BU and BT.
[19] It appears from the available record that:
(a) The IPT did not allow the DVD to be produced at the hearing;5
(b)On 4 December 2015 the IPT granted leave to the appellants to produce this DVD evidence by 11 December 2015;
(c) Counsel for the appellants emailed the IPT on 8 December 2015 to advise that she hoped to receive the DVD by Friday (11 December
2015) and receipt of the email is acknowledged;
(d) Counsel for the appellants emailed the IPT on Monday 14 December
2014 to advise that Counsel has received two DVDs but that they have been unable to access and view them and will be seeking instructions;
(e) The IPT confirms receipt of the email and that the Tribunal member will be advised;
(f) A copy of further closing submissions, a schedule of documents and two DVDs are purportedly sent to the IPT under cover of letter dated
16 December 2015.
[20] At the first hearing before me, a DVD was played. This did not show a list of names corresponding to the members of the family said to have been identified in other documentation. I granted Mr Pidgeon five working days to produce this DVD. Regrettably, it took considerably longer to (a) view it and (b) discern its full significance. The second DVD purported to show the two families together and in particular, a common ancestor, SK. On its face it was unhelpful, because I could not verify the identities of the persons. Mr Pidgeon submitted that the common ancestry could be verified from passports, which included photos of the key persons. I therefore adjourned the matter a second time in order for the passport documentation to be assembled and tabled with the Court. I come back to the significance of this below at [24].
[21] In any event, there is an arguable case for a breach of natural justice insofar as the IPT, having granted leave to produce the DVD (presumably on the basis that it might provide probative evidence of familial connection), should have extended that time for their production; Counsel having responsibly updated the Court as to the receipt of the DVDs prior to the issuance of the decision. More specifically, it is arguable that BU and BT had a legitimate expectation that the Tribunal would not make a final decision without either fixing a further date for filing or waiting for the DVDs to be produced, bearing in mind that the appellants were only one working day late when the IPT decision was released and that the IPT was advised that the DVDs would be shortly produced.
[22] In saying this, I should not be seen to be making a finding of breach of natural justice. This is a leave application, and for present purposes I need only be satisfied that there is a seriously arguable case for breach. If leave is granted, the Court would need to determine, in light of the approach taken by the Tribunal to the submissions and evidence as a whole, and by reference the procedural scheme of the legislation, whether the appellants can successfully claim a breach of natural justice.
[23] I turn then to consider the second issue.
[24] The DVD revealed the presence of who Mr Pidgeon claims is the common relative, SK. He then submitted that this evidence added to and corroborated the common ancestry evidence, including passport evidence produced which identifies BU and BT by photograph, the parents by photograph, and the common ancestor by photograph, namely SK, who is BU’s aunt and BT’s grandmother. Significantly also, Mr Pidgeon submits that the DVD corroborates this evidence of common ancestry. He therefore submits that the failure to have regard to the DVD evidence was a substantive error and that, had the Tribunal had proper regard to it, the Tribunal may have come to a different conclusion as to the credibility of the applicants’ evidence. Mr Pidgeon also emphasised that this is an exceptional case given that the IPT departed from the factual finding of the RPO as to consanguinity.
[25] Counsel for the RPO respond:
(a) The DVD would not have changed the Tribunal’s decision – the IPT
had the relevant screen shots;
(b) The Tribunal’s conclusion that the applicants are not related to each
other was open to it on the evidence.
(c) The fact that the Tribunal made a different factual finding on blood relationship is not relevant because the Tribunal hearings are de novo.
(d)Credibility findings, if there is an available foundation for them, are not open to challenge.6
Assessment
[26] This is not an appeal on factual error simpliciter. This is a case of arguable procedural error that may have meant that the IPT went wrong in its overall analysis
of the facts. That this type procedural error is an error of law is well known.7 The central issue on the leave application is simply whether the alleged procedural error is such that this Court, in its limited appellate jurisdiction, should be afforded the opportunity to consider whether there was a procedural error and, if so, whether the applicants should be afforded an opportunity to have their application referred back to the IPT for reconsideration.
[27] The starting point is that any alleged error must be material to the outcome before leave is granted.8 Having viewed the available DVD together with the passport information, it is arguable that the three dimensional depiction of the “family” may have caused pause for thought and a reconsideration of the credibility findings. Put simply, the everyday interactions of the “family” members identified in the passport information vividly bring to life their interconnectedness in a way that is not displayed by the screenshots. Subject to what I have to say below at [31], the
coincidence of the passport information linking the applicants and their individual and collective presence at the wedding (except for BT) provides a sound basis, if the passport information is accepted as true (as it was by the RPO), for finding the requisite familial connection.
[28] But against this, the adverse credibility findings of the Tribunal are clear and rest on the core proposition that the evidence of the applicants is simply not accepted as truthful. As Counsel for the RPO submitted, the Tribunal took into account documentary evidence purporting to show familial connection, including the passport evidence and DVD screen shots showing SK, and rejected it. Approaching the assessment as generously as I can, I am unable to accept that the probative force of the additional DVD material is sufficient to reverse the adverse credibility findings (including expressions of concern about the passports) which follow from a
detailed review of the evidence as a whole, including evidence of lies, inconsistency,
7 See, for example, Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR
622 (PC) at 681 where Lord Diplock held that a decision maker’s factual findings can be disturbed if “the procedure by which such findings were reached was unlawful (in casu by failure to observe the rule of audi alteram partem)”.
8 Lal v The Removal Review Authority HC Wellington AP95/92, 10 March 1994, and in Amosa v Secretary of Justice HC Wellington CP317/94, 22 December 1997, helpfully cited by Ms Conway and Ms Charmley for the RPO.
mobility and vagueness. The following passage from the decision is illustrative of
the Tribunal’s reasoning:
[54] The Tribunal has no doubt that the mobility on this point reflects an underlying lack of veracity, with the first appellant seeking to deliberately change her account to try and overcome the implausibility of her previous evidence in which her mother, one of the claimed agents of persecution and armed with knowledge of the taboo relationship, fails to mention it to her at all. Far from the disclosure to her mother being no more than a scare tactic employed by her brother, the first appellant went to some length during her RSB interview to explain why her brother would not have told her father of the relationship, as he had her mother. She claimed that it was her father’s ill health which prevented her brother from telling their father at this time.
[29] And further:
[71] Owing to the mobile and inconsistent nature of the evidence given by both appellants, the Tribunal dismisses the core of their account (to be blood relatives and to have been subject to threats by family members as a consequence), as untrue. Although separate evidential concerns may not have led the Tribunal to this conclusion, a cumulative assessment of all the concerns leads it to dismiss the claim as false.
[30] The significance of this is that, to the extent that there may have been a procedural error, I am not satisfied that it was of such a nature as to materially affect the outcome.
[31] There is a further problem. The passport information tabled with me does not show a link between SK and BT (other than a common last name). Presumably BT’s mother, identified as MK, is the daughter of SK, but the passport information does not show this. The applicants have had ample opportunity to produce this information. While not determinative, the absence of such information bears on the creditability of the claim overall.
[32] This conclusion also disposes of the third question, but given the significance attached to it by Mr Pidgeon in his submissions, I will consider whether the alleged error of law or the review issue is a matter of general or public importance, or whether for some other reason the matter warrants judicial intervention.
Is this a matter of general or public interest, or a matter of individual injustice warranting leave to be granted?
[33] Mr Pidgeon initially accepted that the issue of procedural justice raised by the appeal is not obviously a matter of general or public importance. He appeared to accept that whether the Tribunal should have waited for the DVD material is essentially about the significance of that material, and the particular procedural error, in this case.
[34] At the second hearing Mr Pidgeon had been emboldened by the intervening judgment of Palmer J in RM.9 In that case the Judge declined to grant leave, but observed that the test for granting leave to appeal includes judicial discretion to grant leave to appeal “in the interests of justice”10 and review where the ground of judicial review is clearly available.11 The Judge placed significance on the constitutional significance of appeals and judicial review, particularly in a human rights context.
[35] Ms Conway responds by reference to another intervening decision, but of the Court of Appeal, in Machida12 (in reasons delivered by Kós J) 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.”13
Assessment
[36] It is unnecessary for me to adopt a particular articulation of the threshold tests recently discussed in RM and Machida because they arrive at the same end point in
9 RM v Immigration and Protection Tribunal [2016] NZHC 735.
10 At [36]–[37], departing from narrower constructions of s 245 of the Immigration Act 2009
proffered by Duffy J in LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC
2077 and Kós J in Taafi v Minister of Immigration [2011] NZHC 1768, [2013] NZAR 1037. The former ascribed a threshold test of errors that have an effect beyond that of the appellant (at [2], [33]–[34]), while the latter thought that “it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing” (at [19]).
11 RM at [51], disagreeing with the approach taken by Faire J in SK v The Immigration and Protection Tribunal [2014] NZHC 2693 who adopted, by analogy, the approach taken by Duffy J to leave to appeal.
12 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 at [8].
13 At [8].
this case. I also proceed on the basis that this Court should be slow to dismiss at the leave stage an alleged procedural error that raises the real prospect of substantive unfairness to the applicant, given that the consequence of an erroneous decision may be refoulement.14 A flagrant and material breach of natural justice is an example of the type of error that would trigger the “any other reason” gateway, for example, the failure to admit incontrovertible evidence supporting a claim would also likely
qualify – say non-contentious DNA evidence showing that BU and BT were closely related by whakapapa. This is the type of material and/or exceptional error that I think that Palmer and Kós JJ respectively had in mind in RM, Taafi15 and Machida.
[37] But there is nothing material or exceptional about the claimed error in this case. The DVD evidence has limited added probative value, especially given the clear adverse credibility findings. While the Tribunal did not provide detailed reasons for departing from the findings of the RPO on familial connection, the reasons for declining the application, in its de novo capacity, were cogent.
Outcome
[38] The asserted procedural error would not, if corrected, materially affect the outcome. I am therefore not satisfied that the claimed error raised by the applicants is a matter of general or public importance or should otherwise be considered by this Court pursuant to the limited second appellate jurisdiction conferred by the
Immigration Act 2009.
14 An approach I took in BZ v Immigration and Protection Tribunal [2015] NZHC 2883.
15 Above n 9.
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