BV v Immigration and Protection Tribunal
[2014] NZHC 283
•26 February 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-007733 [2014] NZHC 283
UNDER the Judicature Amendment Act 1972, the Immigration Act 2009, the Declaratory Judgments Act 1908, the New Zealand Bill of Rights Act 1990, and the common law.
IN THE MATTER of an action for judicial review, and declarations
BETWEEN BV Applicant
ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
A REFUGEE AND PROTECTION OFFICER
Second Respondent
Hearing: 18 November 2013
Appearances: R K Francois for Applicant
C Griffin for Respondent
Judgment: 26 February 2014
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on Wednesday 26 February 2014 at 10.00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Counsel:
R K Francois, Barrister, Auckland
C Griffin, Crown Law, Wellington
Date:………………………….
BV v THE IMMIGRATION AND PROTECTION TRIBUNAL [2014] NZHC 283 [26 February 2014]
[1] BV is an Iranian citizen who seeks refugee or protected person status in New
Zealand. He arrived in this country on 4 June 2011, after first fleeing Iran on 24
September 2010. His first attempt at journeying here was interrupted when, in Singapore, he was interdicted to a detention centre in Indonesia from where he managed to arrange to return to Iran. After remaining there for about 6 months he made a second attempt to reach New Zealand, which proved more successful.
[2] BV’s claim for refugee/protected person status was declined by a refugee and protection officer (RPO). That decision was upheld on appeal to the first respondent, the Immigration Protection Tribunal (IPT). The IPT’s decision was principally based on its rejection of BV’s factual narrative concerning the events said to have caused him to flee Iran. In particular the Tribunal rejected:
(a) his account of his participation in a “bazaar strike” in Tehran and his
subsequent fear of persecution by the Iranian authorities; and
(b) his claim that, while in Iran, he had converted from Islam to
Christianity.1
[3] BV now seeks judicial review of that decision. He pleads that the IPT decision was unlawful, made in breach of natural justice, biased and unreasonable. The RPO submits that the IPT’s credibility findings were well open to it on the evidence and that in reality BV is seeking a further substantive, de novo, appeal to which he is not entitled.
[4] Before turning to consider the merits of the application for review in detail, however, it is necessary to say a little about the law governing claims for refugee and
protected person status and about the process by which such claims are determined.
1 Re BV (Iran) [2012] NZIPT 800227.
Relevant Law
Refugee status
[5] The Immigration Act 2009 (the Act) provides that a person must be recognised as a refugee in accordance with the Act if he or she is a refugee within the meaning of the Refugee Convention.2 Article 1A(2) of that Convention provides that a refugee is 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.
[6] Accordingly, as the Tribunal set out at [66] of the decision now under review, the principal issues in a case such as the present are whether:
(a) on the facts as found, there is a real chance of the appellant being persecuted if returned to the country of nationality; and
(b) if the answer to that question is “yes”, whether there is a Convention
reason for that persecution.
[7] It is also not in dispute that:
The concept of “being persecuted” means the sustained or systemic violation of core human rights, demonstrative of a failure of state protection. That is, it means the infliction of serious harm, coupled with the absence of state protection.3
[8] The cases establish that whether a person has a “well-founded fear” of persecution is a wholly objective test. A fear of being persecuted is well-founded if it is established that there is a real, as opposed to remote or speculative, chance of it
occurring.4
2 Immigration Act 2009, s 129(1).
3 See Refugee Appeal No 74665/03 [2005] NZAR 60 (RSAA).
4 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62, (1989) 169 CLR 379. See also Refugee Appeal 75692 [2007] NZAR 307 (RSAA).
[9] Self-evidently, then, in order to apply these principles the IPT needs to make findings in relation to the alleged facts upon which any given claim is based. It has long been recognised that assessments of credibility are central to the IPT’s work,5 including (for example) assessments of the credibility of a person’s claim to have a particular religious belief.6
Protected person status
[10] A person must be recognised as a protected person under the Convention Against Torture (CAT) or the International Covenant on Civil and Political Rights (ICCPR) if there are substantial grounds for believing that the person would be at risk of torture,7 or subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.8 The exception to such recognition is where the person
can access meaningful domestic protection in their country of nationality or former habitual residence.9
Determination of claims
[11] Every person who seeks recognition as a refugee in New Zealand under the Refugee Convention or as a protected person must have their claim determined in accordance with part 5 of the Act.10
[12] All such claims must be determined at first instance by a RPO. An RPO has a number of investigatory powers, including the power to require a claimant to supply such information as the RPO reasonably requires, and to attend an interview.11 The RPO is not however obliged to seek any information, evidence or
submissions further to that provided by the claimant, and may determine the claim
5 See, for example, Khalon v Attorney-General [1996] 1 NZLR 458 (HC) at 467; Jiao v Refugee Status Appeals Authroity [2003] NZAR 647 (CA) at [28], [Jiao]; and Attorney General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 at [37] and [44], [TamilX].
6 Indeed, there are a number of cases where the Tribunal has been required to assess the credibility of Iranian claimants who claim to have converted to Christianity. See, for instance, F v Refugee Status Appeals Authority HC Auckland CIV-2006-404-7714, 28 May 2008; Refugee Appeal No
76204 16 February 2009 (RSAA); and Y v Refugee Status Appeals Authority HC Auckland
M1803/98, 19 August 1999.
7 Immigration Act 2009 s 130(1).
8 Section 131(1).
9 Sections 130(2) and 131(2).
solely on the basis of the material the claimant provides.12 The “onus” is on a claimant to establish his or her claim for such status, and he or she is required to ensure that all information, evidence and submissions that he or she wishes to have considered in support are provided to the RPO prior to the claim’s determination.13
[13] Confidentiality as to the fact that a person is a claimant, and as to the particulars relating to a person’s claim must be maintained at all times during and subsequent to the determination of the claim.14
[14] The decision of the RPO is final, unless overturned by the IPT.15 Rights of appeal and review are fully set out in Part 7 of the Act.16 In short:
(a) If a person’s claim to be recognised as a refugee or protected person is declined by a RPO, the person has a right of de novo appeal to the IPT;17
(b)The IPT is a specialist body that has the role of deciding appeals by “making findings of fact, applying the relevant law, and making a determination”;18
(c) In determining an appeal, the IPT may adopt a process that is inquisitorial, a process that is adversarial or both.19 But it is not required to seek any information, evidence, or submissions further to
those provided by the appellant.20
12 Section 136(2) and (4).
13 Section 135(1) and (2).
14 Section 151.
15 Section 138(3).
16 See s 184, which sets out the purpose of Part 7.
17 Sections 194(1)(c) and 198(1)(a). This was explained to BV by the IPT in the following way: “in
this appeal hearing you have a fresh start to your case, in that we don't take any notice of the reason that the RSB declined your decision. We make our own independent and very separate decision on the basis of the evidence before us but we will refer back to evidence that you have previously given”.
18 Section 218(1).
(d)Thus, it remains the responsibility of an appellant (as it was before the RPO) to establish his or her claim and to ensure all information, evidence and submissions the appellant wishes to have considered in support of their appeal are provided to the IPT before it makes its decision.21
[15] The Act then provides for streamlined review and appeal procedures to the higher courts. There are limited rights of appeal on point of law to the High Court and Court of Appeal, with leave, from the decision of the IPT.22 A strict 28 day time limit operates from the date of notification of the IPT decision to file an application for leave to appeal or judicial review.23 Appeal and review proceedings are intended to be heard together, wherever practicable, to support the efficient resolution of immigration proceedings.24
[16] I record that, at the time BV filed the present application for judicial review, leave to do so was not required.25 A leave requirement has subsequently been introduced; the High Court must now consider whether the issues raised in the intended application for review should more appropriately be dealt with in an appeal on point of law.26
[17] Lastly, I note that where a person’s refugee or protected person claim is declined, he or she can make a subsequent claim or claims. But the threshold requirements are that there has been a significant change in material circumstances since the previous claim was determined, and that change was not brought about by
the appellant acting otherwise than in good faith.27
21 Section 226(1).
22 Sections 245 and 246.
23 Sections 245(2) and 247(1).
24 Section 247(2).
25 Sections 247 and 249 of the version in force from 29 November 2010 to 18 June 2013.
26 Section 249(1B) – (1C).
Approach on review
[18] I accept Ms Griffin’s submission that orthodox principles apply to an application for judicial review of a decision of the IPT.28 The refugee context does not change this. This Court’s function is thus to correct jurisdictional, procedural, and other errors of law that are properly the subject of review.29 As she said, the Court is not, however, prevented from carefully examining the IPT decision, mindful of the refugee context and with concern to ensure high standards of fairness were followed by the decision makers below.30
[19] I also accept that earlier decisions make it clear that the decision under review must be considered as a whole, with due regard for the specialist nature of the IPT’s jurisdiction.31 Successive courts in immigration cases have warned against minute and detailed analysis of the facts or separate parts of the decision in an attempt to expose “purported defects”, and to “extract from the individual words used some error or imperfection which can be elevated into a proposition of law”.32
[20] The Court of Appeal has held that Wednesbury remains the governing test of unreasonableness in an immigration context.33 And, in the same context, the
28 See, for instance, X v Refugee Status Appeals Authority [2009] NZCA 488, [2010] 2 NZLR 73 at
[6] and Tamil X, above n 5, at [45].
29 N v Refugee Status Appeals Authority HC Auckland CIV-2007-404-007932, 26 August 2008 at
[4], and as consistent with Tamil X, above n 5.
30 As similarly acknowledged by the High Court in RDF v Immigration and Protection Tribunal
[2013] NZHC 2583, [2004] NZFLR 45 at [17], in the deportation context, when upholding the traditional approach to review.
31 Minister of Immigration v Zhang [2013] NZCA 487 at [31]; A v Chief Executive of the Department of Labour HC Auckland CIV-2004-404-6314, 19 October 2005 at [31]; and Butler v Removal Review Authority [1998] NZAR 409 (HC).
32 Butler v Removal Review Authority, above n 31, at 419-420; Ogosi v Minister of Immigration
HC Wellington CIV-2006-485-673, 27 April 2007 at [22]-[23]; and Voratanamatanitu v Chief Executive Department of Labour HC Wellington AP124/96, 11 August 1997 at 11: “a technical and semantic analysis of the decision ... does not aid the appellant in endeavouring to create a
‘point of law’.”
33 Puli’uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA) at 325; Huang v Minister of
Immigration [2008] NZCA 377, [2009] 2 NZLR 700; Singh v Minister of Immigration [2011] NZCA 532 at [27]-[36]; Minister of Immigration v Zhang, above n 31, at [32]. In the refugee context, see Jiao, above n 5, at [35]. This can be contrasted with some conflicting High Court authority, including in the refugee context, suggesting greater intensity of review: Wolf v Minister of Immigration [2004] NZAR 414 (HC); A v Chief Executive of the Department of Labour, above n 31, at [30]; MPR v Refugee Status Appeals Authority [2012] NZHC 567 at [14]; and T v Immigration and Protection Tribunal [2012] NZHC 1871 at [22].
Supreme Court has said:34
In the absence of a right of appeal, it is not the role of a court in a judicial review proceeding to undertake a broad reappraisal of the factual findings of the Tribunal. We are satisfed that the Authority’s factual findings were within its powers in that evidence was available to support its factual conclusions, and it has not been shown those findings were unreasonable.
[21] In light of the tightly circumscribed rights of appeal from decisions of the IPT, the Court is therefore required to guard against a merits appeal being conducted under the guise of judicial review.35 It has been said that particular care is required in applications that seek to impugn the credibility findings made by that Tribunal.36
The Courts have, in the past, emphasised that it will only very rarely interefere with fidnings of that kind where they are made by a specialist immigration tribunal.37
[22] It is with the above principles and cautions firmly in mind that I turn now to
consider BV’s claim, the IPT’s decision and the application for review.
BV’s claim and the IPT’s decision
[23] The IPT summarised the basis of BV’s claim for refugee or protected person
status as follows:
[2] The appellant claims that he is at risk of serious harm on return to Iran because he has been identified as a participant in an anti-regime strike and there have been subsequent attempts by regime officials to find him. He says his wife (still in Iran) has been interrogated about his activities and whereabouts and has had her employment as a teacher terminated because of his predicament. The appellant also claims to have converted from Islam to Christianity many years ago and to be at risk on return for that reason.
34 Tamil X, above n 5, at [45]. The Refugee Status Appeals Authority (RSAA) is the body that determined appeals from decisions on refugee claims under the Immigration Act 1987 (the governing Act in Tamil X). It should be noted that, under the 1987 Act, there was no right of appeal from the RSAA. See also Jiao, above n 5, at [35].
35 For example, Minister of Immigration v Zhang, above n 31, at [32]; F v Refugee Status Appeals Authority, above n 6, at [25]; and A v Chief Executive of the Department of Labour, above n 31, at [31].
36 See Tamil X, above n 5, at [37] and [43] – [ 44].
37 In addition to Tamil X, see M v Refugee Status Appeals Authority HC Auckland CIV-2010-404-
3298, 17 September 2010 at [5]; Sadeghi v RSAA CIV 2003-404-5501, 3 October 2003 at [6]; U v Refugee Status Appeals Authority HC Auckland CIV-2003-404-002530, 30 September 2003 at [13](b); and GA v Refugee Status Appeals Authority HC Auckland CIV-2005-404-1520, 1 March
2006 at [8]-[14].
[24] As I have noted above, the BV’s appeal was rejected by the IPT on the grounds of credibility alone. After an extensive review of the factual matters upon which BF’s claim was based, the Tribunal said that:
[69] The Tribunal has found that the appellant is a married man who left Iran lawfully in 2011. There is no credible evidence to establish that he has any adverse profile with the Iranian authorities, or indeed any other person or organisation in Iran. There is therefore no credible evidence that the appellant is at risk of serious harm should he now return to Iran.
[70] In making this finding, the Tribunal has not overlooked counsel’s
reference to R v Refugee Status Appeals Authority and Anor [2012] NZHC
567 in which Duffy J set aside a decision of the Refugee Status Appeals
Authority because it had failed to properly consider the reason why the appellant in that case would be discreet as to the manifestation of his claimed Christian faith in Iran. Because the Tribunal finds in the present appeal that the appellant is not a genuine Christian and that he will not seek to practise any aspect of the Christian faith on return to Iran, it is not necessary to address the matter further. For the sake of completeness, the evidence does not establish that the Iranian authorities are aware of the appellant’s attendance at a church in New Zealand (or are aware of his claimed conversion in any other way) and so there is no risk of him suffering harm during any attempt to establish whether his conversion is genuine or not, or for being seen as having made a public denunciation of Islam (see, for example Refugee Appeal No 76204 (16 February 2009), at [157]).
[25] And in terms of the “protected person” aspect of the appeal, the IPT held:
[76] For the purposes of his claim for protected person status under section 131 of the 2009 Act, the appellant has not advanced any evidence other than the evidence (which is not accepted as credible) relied upon in connection with his refugee claim. For the reasons already given, the Tribunal finds that there are no substantial grounds for believing that the appellant would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.
[26] The IPT said that BV’s accounts of both his involvement in the bazaar strike and his conversion to Christianity were inconsistent, mobile and, at times, implausible. The Tribunal detailed numerous contradictions between what BV had said at various times since his arrival in New Zealand. These included differences between his statements made at the airport, in his confirmation of claim form, during his RSB interview and before the Tribunal.
[27] By way of general example the Tribunal held that there were telling inconsistencies between BV’s various accounts of the bazaar strike and its aftermath. These included differences in terms of:
(a) The timing of the strike (in particular, whether it had occurred in 2009 or 2010);
(b) The causes of the strike; (c) Its duration;
(d) His role in it and the way in which he came to be involved;
(e) Subsequent events (including the length of time he had spent in hiding, his use of a government contact to arrange his departure and the subsequent problems his wife and family have since had as a consequence of his negative profile).
[28] For similar reasons, the IPT found that BV’s claim to have converted to Chrsitianity while in Iran was not genuine, and considered that he would not continue to maintain his professed Christian faith if he returned to Iran.38 These findings were based on the inconsistencies between his accounts of his conversion in Iran and of his attempts to learn more about Christianity, including that:
(a) during BV’s RSB interview he said that he had received information about Chrsitianity through the Iranian President’s annual acknowledgement of the Christian denominations in Iran, and through friends. He said that he considered himself a Christian from the age of 18, and that he decided that he was Christian on a Friday;
(b)in BV’s New Zealand baptism statement he said that it was watching a film in Iran which changed his life. He further stated that he had gained the foundation of learning about Christianity during trips to several countries before arriving in New Zealand;
(c) during the IPT hearing BV stated that, at around the age of 17, he
watched a movie called “The Melody of Bernadette”, and that as a
38 Re BV (Iran), above n 1, at [51] and [62].
result started thinking and comparing Islam with Christianity. When asked when he had had the opportunity to expand upon his knowledge and build the foundations of his Christian belief, he said he could not get any more information about Christianity in Iran, and that it was when he came to New Zealand that he had the opportunity to build the
foundation of his knowledge.39 He also said that his conversion was a
gradual process from about the age of 17, that he considered himself Christian from around the age of 18 or 19, and that he could not remember what day of the week it was when he made that decision.40
[29] The IPT also considered that the fact that BV had not made any effort to obtain information about Christianity during his travels outside of Iran cast doubt on the genuineness of his claim to have converted while a young man. While the IPT accepted that BV had attended church and bible studies regularly in New Zealand, it
found that this did not establish the genuineness of his conversion in Iran.41 The
Tribunal noted that it was not onerous for him to patricipate in such activities and that his attendance was of obvious potential benefit to his refugee claim.42
The application for review
[30] I turn now to consider the application for review itself. As noted at the outset, the pleaded grounds are that the IPT’s decision was unlawful (in that it failed to take into account relevant considerations), made in breach of natural justice,
biased and unreasonable. I set out each ground in more detail below.
39 When asked about the inconsistency between this statement and his baptism statement, the applicant stated that the reference in his baptism statement to gaining the foundation of learning about Christianity during trips to several countries before arriving in New Zealand was in reference to asking some Iranians about Christian activities during his trip to Thailand, and asking questions about Christian activities when he was in Turkey.
40 When asked by the IPT why he stated in the RSB interview that he made the decision that he was a Christian on a Friday, the applicant stated that he may have forgotten about it or was
confused.
41 I record that BV has never made a sur place claim for refugee status.
42 Re BV (Iran), above n 1, at [58]. And contrary to an assertion in the Amended Statement of Claim, the transcript shows that the IPT did put to BV the proposition that his Christian activities in New Zealand were undertaken for the purpose of bolstering his refugee claim.
Failure to take into account relevant considerations
[31] The “relevant considerations” that are said not to have been taken into
account by the IPT are pleaded as follows:
(a) “the applicant’s own evidence at the hearing in relation to a well founded fear of being persecuted [as a Christian] upon returning to Iran”;
(b) relevant “country information” from Iran;
(c) “prior consistent statements” made by the applicant about his fear of
returning to Iran;
(d)evidence of “the difficulties of communication experienced by the applicant at the Airport interview, Refugee Status Branch interview, and Immigration Protection Tribunal hearing”.
[32] Further, more detailed particulars of each of these allegations are also given and I address these, as necesary, later in this judgment.
Breach of natural justice
[33] The pleading of this aspect of the claim begins with the uncontroversial proposition that the IPT is obliged to act in accordance with natural justice. The pleading then makes it clear that the specific “breach” alleged is that the IPT required BV to meet a higher “standard of proof” than that required by law in relation to his conversion to Christianity and his well founded fear of persecution. The claim asserts that BV established those matters “on the balance of probabilities”.
Bias
[34] In this cause of action BV essentially invites the Court to draw inferences of bias from various aspects of the IPT’s approach to the evidence and its choice of phraseology in the decision under review. By way of example only, issue is taken with the fact that the IPT refers to the village where the applicant states that he
stayed with his cousin as “the village”, rather than by its name; and with the IPT’s description of a pastor’s letter in support of BV’s claim as “short”. Bias is also said to be evident from the IPT’s mistaken reference to the date of BV’s baptism being early 2011, instead of 2012. The bias pleading also refers to the IPT’s “failure” to conclude that the applicant may be in danger by virtue of the fact of his application for refugee status.
Unreasonableness
[35] Here, the pleading is simply as follows:
The [IPT’s] decision was unreasonable because it adopted factual conclusions in relation to the applicant’s credibility that lacked the required reasonable factual support.
The [IPT’s] decision that the applicant lacked credibility was unreasonable given the submissions made to it of the applicant’s history of mental confusion with verbal and written forms of communication.
Evidentiary matters
[36] Before moving to discuss these pleaded grounds of review in more detail, I record that Mr Francois sought to file three affidavits raising new matters in relation to the present application. Briefly, these were:
(a) An affidavit by Bryan Ashley Johnson (who is a pastor at BV’s church) concerning a conversation that he says he had with an Iranian Consul on 29 June 2011. The affidavit suggests that the upshot of the conversation was that BV would be at risk of persecution if returned to Iran due to the fact that he has made a refugee claim.
(b)A further affidavit by Mr Johnson in which he opines on the treatment of Christians in Turkey and that country’s human rights record over an unspecified period of time. His object appears to be to undermine the inferences drawn by the IPT from the fact that BV did not attempt to engage in Christian activities or seek out Christian churches during his visits to Turkey.
(c) An affidavit by a fellow Iranian, Mr Rahdar, in which he seeks to explain that aspects of BV’s baptism statement may have been mis- translated (by him) and deposes to his belief that BV “is a genuine follower of Jesus Christ”.
[37] Although I was prepared to let Mr Francois refer to the affidavits during the hearing on a de bene esse basis, in my view none is admissible, for the reasons which follow.
[38] First, by virtue of the nature of judicial review, applications generally proceed on the basis of evidence available to the decision maker at the time of the decision.43
By way of recent example only, Collins J said in T v Immigration and Protection
Tribunal:44
More fundamentally, in the circumstances of this case, it is difficult to accept that it would be appropriate for the Court to overturn the IPT’s decision because it had failed to take account of evidence which was not presented to it. Such an approach would involve confusing the Court’s jurisdiction. A Court hearing an appeal by way of a rehearing de novo would not face the same jurisdictional issues that are raised through this being an application for judicial review. In an application for judicial review the focus is on whether the decision-maker reached the right decision on the basis of the evidence before it.45
[39] Secondly, and as I have noted above, an applicant in proceedings such as the present has an express statutory obligation to “ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the IPT before it makes its decision on the appeal or matter”.46
And as I understand it, BV did provide significant material to the IPT after the
hearing, before it made its decision.47 Similarly, a number of opportunities to clarify
43 Northcote Mainstreet Inc v North Shore City Council (2004) 10 ELRNZ 146 (HC) at [68], cited with approval in the immigration context in Wilfred v Chief Executive of the Department of Labour [2007] NZAR 237 (HC) at [13] (concerning a decision of the Removal Review Authority). More recently see RDF v Immigration and Protection Tribunal, above n 30, at [13] – [15].
44 T v Immigration and Protection Tribunal above n 33, at [41](2). See also RDF v Immigration
Protection Tribunal, above n 30, at [13]-[15].
45 That sits comfortably with the Supreme Court’s acceptance in Tamil X, a case involving very serious refugee matters, that the Court on review was correct to proceed on the factual findings made on the evidence before the RSAA. See Tamil X, above n 5, at [41] and [45].
46 Immigration Act 2009, 2 226(1).
47 See Re BV (Iran), above n 1, at [23]. As the IPT advised the applicant’s counsel during the hearing, it accepts “any material that comes in until the moment the decision is signed”.
information and make further submissions to the RPO were also offered and taken up.
[40] Thirdly, to admit such evidence cuts across the scheme of the Act, which stipulates that fresh evidence arising following the IPT’s decision is not grounds for a further appeal. Moreover, as I have also noted above, the Act makes express provision for subsequent claims for refugee status (and the circumstances in which they can be considered).48 Accordingly, if it is thought that the information provided in Mr Johnson’s first affidavit provides the basis for a subsequent refugee claim, then BV is able to lodge one in accordance with the process set out in the Act.
[41] Fourthly, while not for one moment intending to cast doubt on the genuineness of Mr Johnson’s opinions about the treatment of Christians in Turkey, his expertise in that area has not been established. Moreover, the affidavit does not directly address the specific matters at issue. As the Court of Appeal has observed, unprocessed generic country information tends to carry little weight if it is not directed to the circumstances of the parties under consideration.49
[42] And lastly, the affidavit of Mr Rahdar adds little if any strength to BV’s position. As Ms Griffin pointed out, BV’s evidence before the IPT was broadly consistent with his (translated) baptism statement. I do not for one moment consider that the matters of nuance or detail referred to by Mr Rahdar would have tipped (or could tip) the balance in BV’s favour.
[43] Accordingly I decline to take into account the material raised in the affidavits. It is therefore on that basis I turn, now, to consider the pleaded grounds of review in more detail.
Failure to take into account relevant considerations
[44] At the outset it may be observed that the “considerations” pleaded in the first cause of action to be “relevant” are, in reality, no more than evidentiary matters that
the IPT is said to have overlooked or to which the Tribunal is said to have given
48 See above at [17], and ss 140 and 200.
49 Minister of Immigration v Al-Hosan [2008] NZCA 462, [2009] NZAR 259 at [59].
insufficient weight. Matters of that kind are not regarded as “relevant considerations” in the public law sense. “Relevant considerations” in that sense are matters which the statute requires (expressly or implicitly) to be taken into account by the decision-maker. It is that link with the empowering statute which means that failure to have regard to such considerations can amount to an error of law.
[45] It is difficult, therefore, not to view this aspect of the pleading as no more than an attempt to get this Court on review to revisit the factual merits of the decision. As I have said, that is simply not permitted.
[46] Although that, in all likelihood, suffices to dispose of the first cause of action, I nonetheless propose briefly to address each of the pleaded “considerations”. I do so principally in recognition of Mr Francois’ considerable efforts on behalf of his client.
Well-founded fear of being persecuted as a Christian
[47] The particulars pleaded in support of the allegation that the IPT failed to take account of BV’s evidence about his well-founded fear or persecution as a Christian are, in summary, that the IPT was wrong to reject BV’s conversion claim and (therefore) was wrong to refuse to consider whether his fear of persecution was well- founded.
[48] These particulars merely serve to empahsise the points that I have already made above. The applicant’s submissions in this regard merely amount to the proposition that the IPT could have reached a different conclusion on the evidence before it. In my view, the Tribunal’s review and assessment of that evidence was thorough and fair and its conclusions in this respect were more than open to it. There was accordingly no need for it to consider evidence of country information about the treatment of Christians in Iran. That must be the end of the matter.
Country information
[49] This aspect of the claim alleges that the IPT was wrong not to take into account country evidence about the treatment of Christian dissidents in Iran and
takes issue with the way in which the Tribunal dealt with country evidence about the duration of the bazaar strike.
[50] I have dealt with the former point above. Because the IPT found that BV did not convert to Christianity while in Iran, the way in which Christians may or may not be treated in that country is irrelevant. The latter point also has no substance. There is no basis upon which this Court could or should second-guess the evaluation of the evidence that was before the Tribunal about the duration of the strike. Moreover, the difference between what BV said about the duration of the strike and the country information taken into account by the IPT was only (a minor) one of the many matters said to undermine his credibility. Again, there can be no tenable suggestion that it was in any way determinative.
Prior consistent statements about fear of returning to Iran
[51] The particulars relied on in relation to this aspect of the pleading are that the statements made by BV about his conversion and about the bazaar strike in both his confirmation of claim form and his RSB interview were consistent.
[52] Be that as it may, the IPT’s thorough questioning of the applicant and its carefully reasoned decision make it clear that it considered all material before it. There is no basis for suggesting that it did not consider his (consistent) statements that he feared returning to Iran because of his conversion to Christianity and the bazaar strike. It was the inconsistencies in the detail of those (and other) statements that caused the Tribunal to conclude that those claims were not genuine. There is no basis upon which this Court can interfere with that conclusion.
Communication difficulties
[53] Contrary to what is pleaded in this respect it is clear from the material before me that the IPT expressly took account of the submissions made to it by BV’s (then) counsel that he has trouble remembering particular dates and, indeed, the Tribunal questioned him about the nature of his difficulty in this regard. BV confirmed in his supplementary statement, and in response to questions from the IPT, that while he does have difficulty remembering dates, he has no difficulty remembering the
chronology of events and timeframes. The difficulty for him is that the inconsistencies and implausibilities identified by the IPT in his narrative was not limited to his recall of dates, but extended to the sequencing of the events that he claimed had occurred. Again, no error on the part of the IPT has been identified.
Breach of natural justice
[54] As I have said, there can be no question that the principles of natural justice apply in the refugee context. They were are authoritatively set out by Fisher J in Khalon v Attorney-General.50 In order for a breach to be found, BV would need to show surprise and potential prejudice arising from any adverse inferences drawn by the IPT as to the credibility of his claims.51
[55] The pleaded breach in this case, however, is that the IPT applied the wrong standard of proof. That allegation is fundamentally misconceived.
[56] As I have noted above, s 135(1) provides that “[i]t is the responsibility of a claimant to establish her or her claim” for recognition as a refugee. This wording is materially the same as the relevant provisions of the Immigration Act 1987,52 which have been authoritatively interpreted by the Court of Appeal in Jiao v Refugee Status Appeals Authority.53 Eschewing reference to onus or standard of proof as potentially
inapt,54 the Court held that the phrase means what it says – that claimants have a
responsibility to establish their claims – and that this concept must be applied with sensitivity to the particular difficulties faced by refugee claimants in making out their claims.55 This latter consideration is often referred to as the “benefit of the doubt” principle. As the Court of Appeal notes, it “should not get in the way of the proper consideration of the evidence bearing on disputed facts”.56
[57] As I understood it, however, Mr Francois contended that a different approach must be adopted where religious belief is at issue. He referred in that respect to the
50 Khalon v Attorney-General, above n 5.
51 At 466; and Ali v Deportation Review Tribunal [1997] NZAR 208, (HC).
52 Sections 129G(5) and129P(1).
53 Jiao, above n 5, cited with approval by the Supreme Court in Tamil X, above n 5, at [36].
54 Jiao, above n5, at [13], [14], [21], [31].
55 Jiao, above n 5, at [21], [30], [31]; and Tamil X, above n 5, at [36].
56 Jiao, above n 5, at [30].
reasoning of this Court in MPR v Refugee Status Appeals Authority.57 In that case, Duffy J held that, in order for the Authority to be able to reach a view on whether a person who worships in private has a well-founded fear of persecution, it is necessary to ascertain the reason why he or she does so. If it is that to worship otherwise would attract persecution, the adoption of secret behaviour simply confirms the existence of a fear of persecution.58
[58] In BV’s case, the IPT noted this dictum but observed that it had no application because of its finding that he is not a genuine Christian and that he will not seek to practise any aspect of the Christian faith on return to Iran.59 The issue with which Duffy J was concerned, namely whether the applicant’s religious faith gave rise to a well-founded fear of persecution therefore did not arise.
[59] To the extent that Mr Francois sought to contend that Duffy J’s reasoning is of broader import, and that “as a result … the [IPT] must be satisfied to a high standard of proof that the applicant is not a Christian”, I consider that submission is not sustainable. Duffy J’s analysis has no bearing on the the manner in which the IPT must assess the credibility of claims of religious faith.
[60] Lastly, and for completeness, I record that on my reading of the transcript, the IPT in BV’s case was scrupulous to ensure that it complied with the requirements of natural justice. The transcript shows that the Tribunal ensured that BV was given every opportunity to present his case and that he knew the case he had to meet. Although it could have come as no surprise to him that his credibility was at issue (because that had also been the basis for the decision under appeal) the Tribunal took great care to identify potential inconsistencies in BV’s various accounts and to give him an opportunity to explain them.
Bias
[61] Mr Francois submitted that the manner in which the IPT conducted the proceedings gives rise to a reasonable danger of bias.
57 MPR v Refugee Status Appeals Authority, above n 33. See the applicant’s submissions at [5.10].
58 At [35]-[36].
59 Re BV (Iran), at [70].
[62] This ground of review can be dealt with briefly. I agree with Ms Griffin that the matters listed in the pleading simply are not capable of providing an evidential foundation for a finding of bias.
Unreasonableness
[63] The focus of this pleading appears to be the contention that the IPT’s adverse credibility findings lacked the required factual support. I have already recorded my view that these findings were amply supported by the evidence. There is no basis on which to contend that the IPT’s findings are unreasonable, no matter what standard of review is applied.
Conclusion
[64] I am in no doubt that the application for judicial review must fail. As Ms Griffin submitted, Mr Francois has, through an intricate analysis of the IPT decision, attempted to unpick the factual foundation, the careful and nuanced balancing, and the highly evaluative and specialist judgements made by the IPT. That is not an exercise in which this Court should engage. No error of law in the IPT’s approach has been identified, there has been no breach of natural justice and no bias. The decision is demonstrably reasonable, by any standard.
[65] The application for judicial review is dismissed accordingly. There is necessarily no issue as to costs.
Rebecca Ellis J
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