BZ (Sri Lanka) v Immigration and Protection Tribunal
[2015] NZHC 2883
•19 November 2015
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-2015-404-1902 [2015] NZHC 2883
UNDER the Judicature Amendment Act 1972 AND UNDER
the Immigration Act 2009, s 249
IN THE MATTER
of the 1951 Convention Relating to the
Status of Refugees and its 1967 ProtocolBETWEEN
BZ (SRI LANKA) Plaintifft
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL OF AUCKLAND
First Defendant
THE CHIEF EXECUTIVE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT
Second Defendant
Hearing: 3 November 2015 Appearances:
J R S Lewis for Plaintiff
No appearance for First Defendant
D N Soper for Second DefendantsJudgment:
19 November 2015
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
19 November 2015 at 12.00 p.m., pursuant to r 11.5 of the High Court Rules
Solicitors:
Pidgeon Law, Auckland
Crown Law Office, Wellington
Registrar/Deputy Registrar
Date:
BZ (SRI LANKA) v THE IMMIGRATION AND PROTECTION TRIBUNAL OF AUCKLAND [2015] NZHC
2883 [19 November 2015]
Background
[1] Mr BZ (“B”) is a Sri Lankan citizen of Tamil ethnicity. He sought refugee status on the basis that he had been detained and tortured in 2008 because of alleged connections to Liberation Tigers of Tamil Eelam (LTTE). His application for refugee status was declined. His appeal to the Immigration and Protection Tribunal (“IPT”) was also unsuccessful. He did not seek leave to appeal or review the decision within the required 28 days. He now seeks leave to:
(a) Extend the period to commence an application for judicial review by about six months.
(b) Apply for judicial review of the IPT decision. [2] B contends that:
(a) His personal circumstances, including his language difficulties, depression and inability to retain counsel, properly explain and justify an extension of time to commence the proceedings for the purpose of s 247(1) of the Immigration Act 2009 (IA).
(b)His grounds of review are not more adequately addressed in an appeal and are of general and public importance for the purpose of s 249 IA.
[3] In this regard, B’s primary grounds of review are that (in summary):
(a) The Tribunal was transfixed by its credibility assessment to the exclusion of independent country information that showed that B was at risk of harm as a Tamil, illegal migrant and a failed asylum seeker;
(b)The Tribunal failed to assess his claim as a protected person under the Convention against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR); and
(c) B was unfairly required by the Tribunal to leave the hearing while his wife gave evidence that ultimately undermined his credibility.
Summary of Outcome
[4] I am not satisfied that B meets the criteria for leave to commence review proceedings out of time, and in case I am wrong about this, I decline leave in any event. In short:
(a) B’s personal circumstances, including his (asserted) mental health issues, are not sufficiently special or uncommon to warrant a six month extension of time;
(b)I accept that one of B’s grounds for complaint is amenable to judicial review, namely the claim of procedural injustice based on B’s absence during the questioning of his wife by the Tribunal; but
(c) I do not accept that any of the grounds raised by B raise matters of general or public importance – the alleged failures relate to the particular facts of B’s case and there is, in any event no substantive unfairness.
[5] My reasons follow.
Background
[6] B is a Tamil and citizen of Sri Lanka. His wife and their three children remain in Sri Lanka. He sought refugee and protected person status on the ground that he had a well-founded fear that if he returned to Sri Lanka he would face persecution within the meaning of the United Nations Refugee Convention 1951 or other harm in contravention of the Convention on Torture. The Refugee Status Branch declined his application and B appealed to IPT.
IPT hearing process
[7] The appeal was heard on 18 and 19 November 2014. His then Counsel, Ms Uca made opening submissions emphasising among other things that B was at risk of persecution because of his Tamil ethnicity as well as at risk of harm because he unlawfully left Sri Lanka and sought asylum in New Zealand. B gave evidence about, among other things, the ill treatment he had suffered. Part way through his testimony, evidence was taken by telephone from his wife. B was asked to remain outside by the Tribunal member while his wife gave evidence. B did not hear any of the evidence and did not discuss the evidence given with his then counsel, Ms Uca, before he was called to complete his evidence immediately upon his return to the hearing room.
IPT decision
[8] On 14 January 2015, the IPT dismissed the appeal.1 The Tribunal made the following key findings.
[9] The Tribunal records that the appellant claimed that he is at risk of harm at the hands of the Sri Lankan authorities because he is suspected of being associated with the LTTE and possibly other political groups involved with issues of disappeared persons and government violations of human rights.
[10] The Tribunal states:
[3] The essential issue to be determined on appeal is whether the appellant’s account is credible. For the detailed reasons outlined below, the Tribunal finds that the account is not credible and the appellant is not entitled to be recognised as a refugee or protected persons in New Zealand.
[11] The Tribunal describes the appellant’s evidence about key incidents:
(a) His arrest and detention for approximately 45 days:
[15] In 2008, the appellant was stopped on the street outside his home by men claiming to be from the Criminal Investigation Department of the Sri Lankan Police (CID). They asked the appellant to accompany them for enquiries and when he refused they
1 [2015] NZIPT 800743 at [1].
assaulted him and dragged him into a white van. He was driven for some hours and then taken into a building where he was detained for approximately 45 days. During that time he was repeatedly questioned about his links with the LTTE and accused of transporting LTTE fighters and weapons in the Jaffna region. He was beaten and tortured. The appellant denied the accusations and did not name LTTE members. He was questioned and beaten on approximately three or four occasions during his detention.
[16] The appellant was released from the detention after his wife and father complained to the Sir Lankan Human Rights Commission and paid a bribe to someone with links to the CID. The appellant has been unable to obtain a copy of the Human Rights Commission complaint and when his father recently requested a copy from the Commission, the request was refused.
[17] As the appellant was released from detention, one of the officers threatened that next time the appellant was apprehended, he would be shot.
(b)In 2010–2011, his travel to Belgium, failed application for refugee status, his detention overnight on his return and the questioning about his refugee status and his release because his wife complained to the Human Rights commission;
(c) In 2013, his association with a group of people attending a meeting between Tamil families and the United Nations Commissioner and that he was approached by Sinhalese army officers;
(d)In 2014, a confrontation with men in civilian clothes who sounded like government men and that a number of them came to his house where he suspected they were going to abduct him;
(e) In 2014, a call that he received in which strangers told him that they knew he was LTTE and that he should surrender or be shot; and
(f) His moving away from his family and his stay with a friend who helped make arrangements for him to leave which he did in March
2014.
[12] The Tribunal refers to the wife’s evidence, material and submissions
received. Paragraph 37 records:
[37] In support of his appeal, the appellant provides:
(a) six items of country information (received 12 November
2014) relating to the situation for failed asylum seekers returning to Sri Lanka in violation of human rights in Sri Lanka;
(b) under cover of a letter of 11 November 2014: a supplementary statement from the appellant; seven letters from family members and others in Sir Lanka attesting to various aspects of the appellant’s claim; a certificate of registration of the appellant’s vehicle in Sri Lanka; and two newspaper articles relating to ‘Gopi’; and
(c) under cover of a letter of 14 November 2014, written opening submissions, a medical certificate (11 November
2014) and a letter from the Australian Department of
Immigration and Citizenship relating to the appellant’s brother’s refugee claim in Australia.
[13] The Tribunal then turns to the credibility assessment. The decision observes:
[40] The appellant’s account that he has previously been arrested,
detained and mistreated on suspicion of being involved with the LTTE in
2008 and 2012 is rejected as untruthful. His claim to have been the victim of a targeted abduction attempt in February 2014 is also rejected, as is his claim that there are ongoing inquiries about him in Sri Lanka. The specific reasons follow.
[14] The Tribunal refers to the following inconsistencies and problems with the evidence:
(a) Inconsistent accounts of his arrest and detention in 2008;
(b)His wife’s inconsistent account of what had occurred, namely that the appellant was inside the house when the CID officers knocked on the door while the appellant maintained he was standing on the street; and
[44] When the wife’s account was summarised for the husband, he told the Tribunal that his own account was correct and gave no sensible explanation as to why his wife would have misremembered the event.
(c) The appellant’s account of his return from Belgium in April 2012 was inconsistent with the date in the Human Rights Commission
complaint form; and with his wife’s version of events — the Tribunal records that his wife says that on his return to Sri Lanka he was arrested early in the morning of 3 April at about 4.00 am whereas the appellant says he landed in Sri Lanka some time during the night, possibly about 9.00 pm. The Tribunal also observed:
[51] On the second day of the hearing, when the wife’s evidence (given the previous day) about the length of detention was put to him, the appellant changed his evidence and said that he may have been detained for more than 24 hours. He said that he thought that he was detained at night (although he could not be sure), he was kept in a “cool room” and he was not aware of the length of the detention.
(d) Discrepancies as to the manner and timing of B’s exit from the airport.
(e) The Human Rights Commission complaint form shows no evidence of having been officially filed or accepted by the Human Rights Commission.
(f) Evidence about an abduction attempt made in 2014 is inconsistent both as between B’s version of the event and between his evidence and that of his wife. In particular reference is made to inconsistencies between his statement made on arrival in New Zealand, his evidence and the wife’s evidence given by telephone. The Tribunal records:
[61] When the appellant was asked to reconcile his account with his wife’s account, he maintained his own evidence. In regards to his evidence to the RSB (that before the men arrived he had been watching television with his wife and father rather than taking a shower), the appellant did not explain the RSB evidence but said that his Tribunal version of the events was correct.
(g) Inconsistent descriptions of the family home.
[15] Other problems are noted in terms of the various accounts in relation to the taking of his wife to her mother’s house on 18 February 2014, travel to the airport in March 2014 together with the wife’s vague evidence as to her own whereabouts. The following passage is indicative:
[70] Surprisingly, at the end of the Tribunal hearing, when the appellant provided a copy of the emergency travel document which was issued to
facilitate his return to Sri Lanka from Belgium in 2012, he gave his address as Puttalam. When the Tribunal asked him to explain why it would give that as his address, the appellant stated that he did not know. Asked if the other details on the card such as his date and place of birth and identity number were correct, he confirmed that they were. The appellant states that he has never lived in Puttalam and does not know how the Belgian authorities or Sri Lankan Embassy in Belgium would have obtained that address. The appellant denied mentioning Puttalam at the airport interview in New Zealand because he had never previously lived there.
[71] The Tribunal finds that the inconsistent evidence of his whereabouts in the weeks before his departure from Sri Lanka, combined with the appearance of a Puttalam address on his 2012 emergency travel document, undermines the credibility of the appellant’s account about where he was staying in March 2014. Both of his accounts are rejected.
[16] The wife is also described by the Tribunal as having given vague and obfuscatory evidence about certain matters including the last time that she saw B.
[17] The Tribunal also addresses claims by the appellant that his memory was impaired and refers to a letter written by Dr Tharani Vignakumar. The decision states:
[80] The Tribunal notes the statement that the appellant’s memory is impaired. However, this statement appears to have been made on the basis of a self-report by the appellant and there is no detail about the nature or the memory impairment or how that claimed impairment might impact on the ability of the appellant to give evidence at his appeal hearing. Neither is there any psychological assessment or more detailed information relating to the claimed impairment before the Tribunal.
[18] The Tribunal also observed that over a two day hearing the appellant did not hesitate to answer questions about past events and did not display any notable signs of impairment.
[19] The Tribunal addresses counsel’s submissions on the inconsistencies in this
way:
[82] The Tribunal has also noted counsel’s closing submissions that the significant inconsistencies in the evidence can be explained by the appellant’s poor recollection of detail, lack of education, trauma of events associated with the Sri Lankan civil conflict and the appellant’s previous alcohol problem. Counsel submits that the discrepancies between the evidence of the appellant and his wife may point to a genuine account because if it were a false account, they would have rehearsed the details more carefully. Counsel also points to the plausibility of the claimed events in the context of Sri Lanka and in particular, the sensitivity about LTTE
activity in 2008 and the monitoring of those aligned with political issues in
2013/2014.
[83] For the specific reasons given above however, the Tribunal finds that counsel’s submissions do not alleviate its concerns about the credibility of the evidence. The evidence concerns are so numerous and comprehensive that they cannot be sensibly explained. As already noted, there is no credible objective evidence before the Tribunal that the appellant is impaired by trauma or memory issues to the extent that his evidence cannot be relied upon.
[20] The key factual findings are then made namely:
[84] For all the reasons given, the Tribunal finds that the appellant was not arrested and detained in 2008 and was not the subject of enquiries and an abduction attempt in 2014. His claim to have been questioned on arrival back in Sri Lanka in 2012 is accepted inasmuch as it is credible that, as a returnee using a temporary travel document, he was questioned about the circumstances of his travel and return. However, it is not accepted that he was questioned about his brother or in relation to his previous (claimed)
2008 detention. Nor is it accepted that he was detained at the airport or that the Human Rights Commission was required to intervene on his behalf.
Having wholly rejected the appellant’s evidence as to his purported negative
profile as a suspected LTTE associate, the Tribunal also rejects his account of his family being targeted for harassment because of those activities since
the appellant’s departure from Sri Lanka.
[85] The Tribunal finds that the appellant is a Sri Lankan citizen, of Tamil ethnicity. He is married with three children and his wife and children remain living in Sri Lanka. The appellant travelled to New Zealand in 2014 and wishes to remain here.
[21] In a section dealing with the assessment of the claimed refugee status the Tribunal refers to the standard authorities dealing with persecution and then refers to the United States Department of State Country Reports on Human Rights Practices
2013: Sri Lanka (27 February 2014). The following passage is quoted:
Sri Lanka is a constitutional, multi-party republic. President Mahinda Rajapaksa was re-elected to a second six-year term in 2010. The Parliament, which was elected in 2010, shares constitutional power with the president. The president’s family dominates government. Two of the president’s brothers hold key executive branch posts, as defense secretary and economic development minister, and a third brother is the speaker of Parliament. A large number of the president’s other relatives, including his son, also serve in important political and diplomatic positions. Independent observers generally characterized the presidential, parliamentary, and local elections as problematic. Polls were fraught with election law violations by all major parties, especially the governing coalition’s use of state resources for its own advantage. Authorities maintained effective control over the security forces. Security forces committed human rights abuses.
The major human rights problems were: attacks on, and harassment of, civil society activists, journalists, and persons viewed as sympathizers of the Liberation Tigers of Tamil Eelam (LTTE) terrorist organization by individuals allegedly tied to the government, creating an environment of fear and self-censorship; involuntary disappearances and a lack of accountability for thousands who disappeared in previous years; and widespread impunity for a broad range of human rights abuses, particularly torture by police and attacks on media institutions and the judiciary. Disappearances and killings continued to diminish in comparison with the immediate postwar period. Nevertheless, attacks, harassment, and threats by progovernment loyalists against critics of the government were prevalent, contributed to widespread self-censorship by journalists, and diminished democratic activity due to the general failure to prosecute perpetrators.
Other serious human rights problems included unlawful killings by security forces and government-allied paramilitary groups, often in predominantly Tamil areas; torture and abuse of detainees by police and security forces; poor prison conditions; arbitrary arrest and detention by authorities; and neglect of the rights of internally displaced persons (IDPs)…
[22] The Tribunal then observes:
[92] Even recognising these concerns about the respect for human rights in Sri Lanka, the evidence does not disclose that the appellant is at any risk of serious harm if he returns there. He simply does not, on the evidence, have any adverse profile which will put him at risk of serious harm in Sri Lanka at the level of a real chance. The appellant does not have a well- founded fear of being persecuted in Sri Lanka.
[23] The Tribunal concludes therefore that there is no Convention reason for persecution. It also observes that in terms of the Convention Against Torture and in relation to the ICCPR, the findings of credibility and fact are the same and thus the Tribunal found that there were no substantial grounds for believing that B would be in danger of being subjected to torture if deported or in danger of being subjected to arbitrary deprivation of life, or to cruel treatment, if deported.
Correspondence with the Minister
[24] B did not seek leave to appeal or to review the IPT decision within the required 28 days after the decision. His reasons for this are addressed below at [28]– [30] and [35]. He did, however, write to the Minister seeking dispensation. A copy of this letter was not made available to the Court, but the Minister’s response was produced. The Minister declined the request on 27 July 2015. It refers to representations having been made on 15 April 2015.
The judicial review application
[25] B filed the application for judicial review on 18 August 2015. B claims that the IPT decision was invalid because it was:
(a) Irrational and/or unreasonable;
(b)Made as a result of failing to take into account mandatory relevant considerations;
(c) Made as a result of a breach of natural justice; and/or
(d) Based on an error or errors of law. [26] In particular, B claims:
IPT’s finding – Number 1
(a) The IPT’s finding that the plaintiff’s credibility was disproved was
unreasonable and/or irrational and/or erroneous in law by:
(i) Treating the IPT’s finding Number 1 as determinative when the overreliance on irrelevant and/or minor inconsistencies when the corroboration of evidence (including Country Information which was not adequately considered by the IPT) and the confirmation of the plaintiff’s identity and country of origin (which was accepted) are more central matters for determinations under Part 5 of the Immigration Act 2009.
(ii) The treating of the IPT’s finding Number 1 as determinative for close proper evaluation of whether there was a real chance of persecution of the plaintiff (for his membership of a social group of failed asylum seekers) upon return to Sri Lanka immerging from a consideration of the evidence (as a whole) which the IPT had before it.
IPT omission/finding Number 2
(a) The failure to evaluate the Country Information led to a failure to evaluate the United Nations Refugee Convention 1951 issue of whether there was a real chance of well-founded fear of the plaintiff being persecuted (for his membership of a social group being failed asylum seekers) upon return to Sri Lanka.
(b) The failure to evaluate the Country Information led to a failure to evaluate the Convention Against Torture issue of whether there was
a real chance of well-founded fear of the plaintiff being persecuted (for his membership of a social group being failed asylum seekers) upon return to Sri Lanka.
(c) The failure to evaluate the Country Information led to a failure to evaluate the International Covenant on Civil and Political Rights issue of whether there was a real chance of well-founded fear of the plaintiff being persecuted (for his membership of a social group being failed asylum seekers) upon return to Sri Lanka.
…
IPT omission/finding Number 3
(a) The IPT’s finding with respect to credibility was in notable part due to the evidence of the wife of the plaintiff.
(b) The IPT’s decision was unreasonable and/or irrational and/or
erroneous in law by:
(i) Treating the IPT’s finding Number 3 with respect to
credibility as determinative.
(ii) Therefore foreclosing a proper evaluation of whether there was a real chance of well-founded fear of persecution of the plaintiff (for his status as a failed asylum seeker) as it formed an overwhelming view following the giving of evidence by the plaintiff’s wife from which he was excluded.
(iii) This exercise of the Tribunal’s discretion is not permitted by the Immigration Act 2009 or its regulations in amounting to a breach of the plaintiff’s legitimate expectation as to fair process and was a breach of natural justice.
[27] B seeks, among other things, a declaration that the IPT decision was invalid, certiorari and an order remitting the matter back for a de novo hearing.
Application for leave
[28] The application for review was filed about six months after the date permitted by the Immigration Act 2009 for such applications. Leave is therefore required to commence the application out of time, together with leave to file to the application for review. I address the criteria below at [32]–[34].
[29] The asserted grounds for leave are:
(a) It is in the interests of justice that leave be granted.
(b) Leave to proceed out of time by reason of special circumstances under s 247(1) Immigration Act 2009 which arise because of:
(i) The applicant’s depressed state of mind, sense of hopelessness (in part arising from his ignorance of the Immigration Act 2009 and appurtenant regulations) and misuse of alcohol from shortly after the late November 2014 release of the IPT decision in question and the early December 2014 visit to Mr Colin Henry (barrister) who declined the instructions.
(ii) The IPT has:
A. Failed to consider/adequately consider country information pertaining to Sri Lanka to the effect that the social group the applicant belongs to;
B. Adequately consider (in the light of (A) immediately above) the provisions of the CAT or ICCPR as they apply to the applicant;
C. Breached the applicant’s legitimate expectation to fair
process.
(iii) The applicant’s position as being akin to that as described in [64] of Isak v Refugee Status Appeal Authority [2010] NZAR 535.
(iv) As appearing in his affidavit affirmed 18 August 2015.
(c) In terms of the application for leave for judicial review, Immigration
Act 2009, s 249:
(i) The grounds appearing in the statement of claim filed herein. (d) The judicial review is one by reason of its general or public
importance or for any other reason as it:
(i) The exclusion of parties is relatively commonplace in Tribunal hearings and deprives the party from the ability to hear potentially adverse evidence and assist counsel to cross- examine (and is a breach of natural justice);
(ii) Addresses best practice methodology in determining both how refugee and/or protected person status is determined and the (muted) role credibility should play in that determination process.
[30] This is supported by an affidavit from B detailing: (a) His depression;
(b) His alcohol abuse;
(c) His suicidal thoughts; (d) Lack of sleep;
(e) The stress caused by his family’s situation in Sri Lanka;
(f) His difficulty in finding an appropriate laywer; (g) His isolation; and
(h) His limited financial means.
[31] I propose to deal first with the application for leave out of time.
Special circumstances
[32] Section 247(1)(a) states any review proceedings must be commenced “not later than 28 days after the date on which the person concerned is notified of the decision, unless the High Court decides that by reason of special circumstances, further time should be allowed.”
[33] The Court of Appeal decision in Rajan v Minister of Immigration2 decided under the 1987 Act continues to provide authoritative guidance on the question of special circumstances.3 Four key directions flow from it:
(a) Special circumstances are defined as “not commonplace, out of the ordinary, abnormal” (at [24]).
(b)The discretion to extend time “should not be exercised too readily and very rarely if the delay is long” (at [24]).
(c) A brief examination of the merits may be called for in cases at the margin (at [29]).
2 Rajan v Minister of Immigration [2004] NZAR 615 (CA).
3 Ly v Minister of Immigration HC Auckland CIV-2011-404-1540, 5 May 2011 at [32]. I note, however, that since Rajan, the time limit for commencing proceedings has been shortened.
(d)Even with a strong excuse for delay, if the review proceedings are hopeless, the discretion should not be exercised (at [29]).
[34] A review of a number of more recent authorities dealing with s 247 also suggests that the Court will need very strong reasons in order to justify substantial delay.4
Argument
[35] Mr Lewis submitted that:
(a) B had suffered and continues to suffer from depression and insomnia, and exhibits symptoms of post traumatic stress disorder;
(b)B found it very difficult to obtain representation given his personal circumstances, including limited financial means and isolation;
(c) He could not find a lawyer to represent him on an appeal or for judicial review proceedings; and
(d) The merits strongly favour the grant of leave.
Assessment
[36] B’s circumstances fall well short of justifying a delay of six months or as Mr Lewis put it, 198 days. Firstly, the evidence is weak in terms of identifying serious mental health issues that might properly explain the extent of the delay. B’s self diagnosis of depression, alcohol usage, and evidence of prescriptions of anti- depressants do not demonstrate the type of mental health problem that might justify the failure to commence proceedings within or proximate to the statutory timeframe. Furthermore, the medical notes provided by B do not state that B suffers from
depression or post traumatic distress disorder.
4 Kesonsung v Minister of Immigration HC Auckland CIV-2006-404-1597, 22 September 2006 at
[35]; Zanzoul v Removal Review Authority & Department of Labour HC Wellington CIV-2007-
485-1333, 9 June 2009 at [22], [26] and [32]; Ly v Minister of Immigration, above n 3 at [55].
[37] I am prepared to accept that B suffered from bouts of depression and alcohol abuse connected to his failed attempts to obtain refugee status. I also accept that this will have exacerbated other problems, including cultural and language barriers and limited financial resources that would have made the commencement of appeal or review more difficult. But without demeaning the significance of these matters to B, there is nothing particularly unusual or uncommon about them in a context involving disappointed applicants for refugee status. Moreover, the combination of factors
indentified does not explain the inordinate delay in commencing proceedings.5
[38] I also do not accept that the matters raised precluded the giving and taking of instructions for the purpose of an appeal or review. Indeed, B engaged through counsel, in correspondence with the Minister (rather than early commencement of an appeal and or review) within the required 28 day period. He could not have done this without having the capacity to instruct counsel.
[39] Finally, while this is not a case at the margin, I have examined the merits of the application to satisfy myself that declining leave will not result in substantive unfairness. For reasons that will shortly follow, I am satisfied that no substantive unfairness arises in this case which demands intervention.
The s 249 criteria
[40] In case I am wrong about the s 247 assessment I turn to consider whether leave should be granted under s 249.
[41] As at January 2015, s 249(1C) stated:
(1C) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
5 Mr Soper helpfully identified a number of authorities (not disputed by Mr Lewis) which showed that the following reasons were not sufficient to justify delay: shock or distress, limited English language, financial difficulties, the lack of availability of legal aid, counsel inexperience or error and a strategic or tactical decision to seek Ministerial intervention before commencing review proceedings. Mr Soper cited to me: Ly v Minister of Immigration, above n 3, at [20] and [39]– [40]; Veitogavi v Department of Labour HC Auckland CIV-2009-404-1583, 18 August 2009 at [15]; Zanzoul v Removal Review Authority & Department of Labour, above n 5, at [33] – [35]; Kesonsung v Minister of Immigration, above n 4, at [34]; Yu and Anor v Chief Executive, Department of Labour HC Auckland CIV-2006-404-5702, 13 November 2006 at [28].
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) 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.
[42] In B’s case, the first limb is not satisfied, save in respect of the procedural fairness issue. But none of the issues pass the general or public interest threshold. They are really matters particular significance to B only.
[43] For completeness I will deal with each key ground of review identified in the application – refer [29] above.
Did the IPT fail to consider/adequately consider country information pertaining to Sri Lanka to the effect that the social group B belongs to; or adequately consider the provisions of the CAT or ICCPR as they apply to B?
[44] Failure to have regard to relevant matters simpliciter, including material country information, is an error of law amenable to appeal or review.6 Mr Lewis, however, emphasised under this heading that the alleged failure also manifests an error of law in that the Tribunal did not follow the “Hathaway” approach, namely to the effect that the Tribunal must still be satisfied that the applicant is not at risk based on independent country information irrespective of credibility findings.7 The key alleged risk of harm is said to drive from a combination of his Tamil ethnicity, illegal migration and failed application for asylum. But even so, the first limb of s 249(1) is still not met. The failure to have regard to relevant considerations, whether through oversight or error of legal reasoning is an issue that is amenable to appeal.
[45] As to the merits, whether the Tribunal put inordinate weight on some matters and no or insufficient weight on other matters is, by itself, of low general importance
and public interest. Furthermore, it appears settled that the Tribunal will consider
6 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA).
7 James C Hathaway and Michelle Foster The Law of Refugee Status (2nd ed, Cambridge
University Press, 2015) at 159–160.
independent country information notwithstanding credibility findings, so no disputed point of general significance arises. As noted by Hathaway and Foster:8
Alternatively, even if there is really no basis to find any value in the applicant’s own testimony, it may still be the case that there is evidence other than the impugned testimony that is sufficient to warrant the recognition of refugee status. As framed by the New Zealand Refugee Status Appeals Authority,
Even if the entire account of a refugee claimant is dismissed as a fabrication, it does not necessarily follow that the individual is not a Convention refugee. Other evidence, independent of the claimant, including country information, may establish that the individual is at risk of being persecuted for a Convention reason; in which case recognition of refugee status must follow notwithstanding that the particular claimant’s account has been properly rejected in every respect on credibility grounds.
[46] In any event:
(a) While the Tribunal placed significant weight on B’s lack of credibility, it also had regard to country information on the face of the decision – refer [21]–[22].
(b)There is nothing to suggest that the Tribunal’s assessment of credibility was flawed or that the conclusions as to the risk of persecution based on B’s asserted vulnerability were obviously wrong.
(c) I have examined the country information tabled on the risk faced by B as a Tamil, illegal migrant and failed asylum seeker. This included an article from the Human Rights Watch and the country report on Human Rights Practices for 2013 produced by the United States Department of State. The first article refers to an incident involving forcible return of ethnic Tamils to Sri Lanka by Malaysia and the persecution of persons with suspected links to LTTE. The country information report also refers to ill treatment of Tamils and more generally to the parlous conditions faced by all persons subject to prosecution. But the implications of B’s Tamil ethnicity was
thoroughly addressed and dismissed as a relevant risk by the Tribunal
8 At 160 (footnotes omitted).
and there is nothing in the balance of the country information that places B within a specific group at risk of harm for the purposes refugee or protected person status, including for the purposes of CAT or the ICCPR.
[47] In these circumstances this ground of review does not satisfy either limb of s 249.
Did the IPT breach B’s legitimate expectation to fair process?
[48] The central issue raised by the pleadings is whether B’s exclusion from the hearing while his wife was questioned was procedurally unfair. I have a transcript of the relevant part of the hearing. This is what transpired:
MEMBER DINGLE:
All right. It’s seven minutes to four and we’re supposed to ring your wife at
4 o’clock. Mr Uca, have you discussed with your client about whether he’ll
be in the room or outside the room? MS UCA:
This is actually something I wanted to talk to you about that. So do you have any preference?
MEMBER DINGLE:
Well I have a very clear preference, and that is that he’s outside the room, and the reason for that is — well it’s the usual reason —
MS UCA: Mmm.
MEMBER DINGLE:
– that while he’s legally entitled to be in the room, I’m going to be asking
his wife about things which there are credibility issues about.
MS UCA: Sure.
MEMBER DINGLE:
Some of which I may not have even talked to him about yet, because we’re only, you know, half way through his evidence. So if he listens to her evidence —
MS UCA:
Of course. So if I can — if Y could help me just for one minute outside to explain to B is easiest I think.
MEMBER DINGLE:
All right. And the other thing is, do you have a mobile phone with you at the moment?
MR B: Yes.
MEMBER DINGLE:
I would prefer that the mobile phone stays in here with you while she’s giving evidence to prevent the temptation of him being in contact with her while she’s giving evidence to me on the phone, because I’ve had situations before where people have been giving telephone evidence but they’re being fed information from New Zealand. So you can talk to him about that too. But I would very much prefer that he is outside and that his mobile phone is left inside.
MS UCA: Sure.
MEMBER DINGLE: All right?
MS UCA:
When we should come back? MEMBER DINGLE:
So let’s take a short adjournment, you’re welcome to use —
MS UCA:
Just for one minute so she can have, Y can have a break actually. MEMBER DINGLE:
Yes. INTERPRETER:
(inaudible 15:54:54) that’s okay.
MEMBER DINGLE:
To explain that, and if there are any problems then we can discuss them, but I’ll just take a short break for about three minutes and then come back in and get ready to ring her.
MS UCA: Thank you. MEMBER DINGLE:
This number that I have is 0094 the Sri Lankan international calling code? INTERPRETER:
Double zero nine four, yes. MEMBER DINGLE:
Okay. So is this the number that you call when you call your wife? MR B:
Yes.
[49] The rationale for the approach taken was not clearly explained in the hearing, but it is reasonably self-evident – B was only part way through his evidence and the Tribunal member wanted to be able to test the veracity of B’s evidence, including by reference to his wife’s evidence, without affording B the opportunity to modify his account to coincide with her evidence.
[50] Mr Lewis accepted that there was no direction given requiring B to leave and that he could have refused to do so. But B’s exclusion from the hearing is nonetheless problematic. B was not able to give proper instructions to his Counsel as the evidence unfolded, including for the purpose of seeking clarification of certain matters from his wife that might have explained apparent inconsistencies. He was therefore deprived of an opportunity normally afforded to litigants to instruct counsel
in terms of adverse evidence.9 I therefore consider that in terms of s 249(1C)(a) an
issue of procedural fairness is raised by the pleadings, and while a matter that could
9 This principle is well-established in the common law. As the English Court of Criminal Appeal put it in R v Lee Kim 1 KB 337 at 341: “The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity, having heard it, of answering it.” The principle was recently discussed by the Supreme Court in the context of defendants tried in New Zealand who do not speak English. If a defendant cannot understand what a witness is saying, he or she cannot exercise his or her right to instruct counsel to meet the case against him or her: see Abdula v R [2011] NZSC 130, [2012] 1 NZLR 534 at [23]–[25].
have been raised on appeal as a question of law, it is properly amenable to review. The first limb is therefore met.
[51] This issue of procedural fairness is, however, not one of general or public importance. Rather, the issue arises from the particular circumstances of the case and its resolution is largely dependent on an examination of any unfairness arising in light of them. First, B was only part way through his evidence when his wife was telephoned to give her evidence and so the Tribunal member had not had the opportunity to put certain matters to him. Second, B’s counsel did not consider it was necessary in the circumstances to require B’s presence. Third, the conflicting evidence was called by B. This was not a case where the deponent is called to give adverse evidence per se where the need to secure procedural fairness in the strictest terms might be expected. It may explain why counsel did not insist on B’s presence during the questioning. While there may be other cases involving this unusual combination of factors, the resolution of B’s complaint does not call for a statement of principle or correction of Tribunal practice of general importance.
[52] I have also examined whether the potential for substantive unfairness is such that general public interest considerations demand intervention. The starting point for this evaluation is that refugee status claims involve claimants at the highest end of vulnerability and potentially at risk of gross human rights violation. The tolerance for procedural unfairness in such cases must be small. I nevertheless consider that Mr Soper’s submissions are compelling in this regard:
(a) The Tribunal found numerous inconsistencies in B’s evidence including but not limited to the inconsistencies with his wife’s evidence – see [14].
(b)B was given an opportunity to respond to the Tribunal’s concerns about the inconsistencies and the reason for them – including stress and memory impairment – see [19].
[53] Moreover, it was not explained in any detail why B’s presence would have made a material difference and what instructions might have followed had he been
given an opportunity to hear his wife’s evidence. Furthermore, the Tribunal’s decision as a whole presents a very compelling explanation for rejecting B’s claims, making it highly unlikely, in my view, that the capacity to give instructions during the course of the wife’s evidence would have made a material difference.
[54] Overall, while an issue of procedural fairness has been legitimately raised, I am not satisfied that it is of a kind or degree that meets the threshold test of general or public importance.
Outcome
[55] B’s appeal does not meet the requisite threshold test at s 247 IA for leave to appeal. Special circumstances have not been established that might properly justify a six month delay. If I am wrong about this, I would not have granted leave in any event. While an issue of procedural fairness is properly before the Court, the questions posed are not of general or public importance for the purpose of s 249 IA.
[56] Accordingly, B’s application to seek leave to extend the period to commence
an application for judicial review is denied.
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