Cao v Immigration and Protection Tribunal

[2014] NZHC 259

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-9824 [2014] NZHC 259

BETWEEN  CAO Applicant

ANDIMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

MINISTER OF IMMIGRATION Second Respondent

Hearing:                   19 February 2014

Counsel:                  N R Woods for Applicant

No appearance for First Respondent (abides outcome) C J Fleming and M F Clark for Second Respondent

Judgment:                24 February 2014

JUDGMENT OF THE HON JUSTICE KÓS (Application for leave to appeal)

[1]      Mr  Cao1   is  an  English  language  student  from  Vietnam.    He  arrived  in New Zealand in August 2009 on a student visa.   It has expired.   He is now in New Zealand illegally.  Mr Cao claimed refugee status in May 2012.  He says that as the son of prominent Communist Party members in his region of Vietnam, married to a Catholic woman, he faces a real prospect of persecution if he returns to Vietnam.

[2]      His claim to be recognised as a refugee under s 129 of the Immigration Act

2009 (the Act) was rejected by refugee and protection officer in September 2012.

1      Not his real name.   The applicant’s identity is protected in accordance with s 151 of the

Immigration Act 2009.

CAO v IMMIGRATION AND PROTECTION TRIBUNAL & ANOR [2014] NZHC 259 [24 February 2014]

His appeal to the Immigration and Protection Tribunal was dismissed in October

2013.  From that decision he seeks leave to appeal.

The Tribunal’s decision

[3]      Mr Cao’s claim of persecution arose from the fact that he had converted to Catholicism, and married a Catholic woman.  In consequence, he had been ostracised from the Communist Party of Vietnam.   His parents were members.   His father, a prominent member in the relevant region.  Mr Cao had been a probationary member of the party.   He said he had now in effect been expelled.   He said he had been harassed by officials.  He said that his parents-in-law had become concerned for his safety.  Unknown to him, they applied for him to enter tertiary institutions in New Zealand.  They also applied for a student visa.  He said he did not know any of this until June 2009, shortly before he travelled.   He said he did not find out he had a place at an educational institution until he arrived in New Zealand, when he found the documents in his suitcase.

[4]      The Tribunal concluded that Mr Cao was not a credible witness.  It did not accept his evidence that he travelled to New Zealand with little or no knowledge of the overall plan, or that it had been carried out entirely by his parents-in-law.  That was inconsistent with documents lodged with Immigration New Zealand.   He had shifted his evidence on these matters during questioning.  It was clear that Mr Cao intended to obtain a student visa and travel to New Zealand long before June 2009. It found “vague and unrealistic” his account of his late realisation that marrying a Catholic meant that he would be rejected by the Communist Party.   The Tribunal accepted that he had converted to Catholicism in 2008.  That was despite misgivings about the apparent date of the baptism certificate.  It also accepted his evidence as to his father’s status.  And it accepted that he had not been made a full party member after his marriage.  He had not actually been expelled.  But it did not accept that he was unaware of the reaction his parents and the party leadership would have to his marrying a Catholic and converting to that faith.  It also rejected his account of an allegedly heated confrontation at a party meeting in June 2009.  Again, Mr Cao’s evidence on that subject moved significantly at the hearing.

[5]      As to whether there was a real chance that Mr Cao would be persecuted if he returned to Vietnam, the Tribunal reviewed the available information.  It concluded:

The only consequence of the appellant’s conversion to Catholicism and his marriage to a Catholic is, possibly, the fact that he was not made a full member of the CPV after his probationary year ... There is no reason to suspect any other, more sinister, repercussions.

The Tribunal found there was no convincing evidence of risk of harm, let alone serious harm.  Mr Cao was not entitled to be recognised as a refugee under s 129 of the Act, or as a protected person under ss 130 and 131.

Is the appeal out of time?

[6]      A preliminary point must be addressed.   On 29 November 2013 Mr Cao, perhaps out of an abundance of caution, applied for an extension of time to bring judicial review proceedings, under s 247(1) of the Act.  At that time Mr Cao (or his counsel) believed he was out of time to appeal (or to seek additional time to appeal) under s 245(2).

[7]      But that belief was misconceived.

[8]      Section 386(3) and cl 17(5) of sch 2 required the Tribunal to notify the appellant of the decision in one of three relevant ways defined in s 386(3): personal service, registered post, or service on a lawyer or agent (who then signs a memorandum accepting service).   There is no evidence any of these were done. Mr Cao simply received a copy of the decision from his lawyer, who had not signed such a memorandum, on 11 November 2013.  It follows that he could have appealed within time on 29 November 2013, when he filed the present application.

[9]      After these matters  were  traversed,  the  Crown  sensibly consented to  the applications filed by Mr Cao being treated as application for leave to appeal2 brought

within time.

2      Rather than review.

Should leave to appeal be granted?

[10]     The proposed appeal rests on two grounds:

(a)       the Tribunal failed to give Mr Cao the benefit of the doubt; and

(b)      the Tribunal reached conclusions not supported by the evidence.

[11]     Appeals  from  the  Tribunal  may  be  brought  only  on  a  question  of  law: s 245(1).  Section 245(3) provides that regard must be had by this Court to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

[12]     Only in very limited situations may a challenge to the factual conclusions of the Tribunal be categorised as question of law. The matter has been put in this way:3

In  the  present  case,  which  is  based  wholly  upon  criticisms  of  factual findings, the applicant faces a triple hurdle:

(a)       First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court’s finding.

(b)       Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:

(i)        the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and

(ii)       the  errors  of  fact  are  so significant  and  extensive  that  a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.

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

3      Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19]. See also Nabou v Minister of Immigration [2013] NZAR 155 (HC), Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125.

appeal. The former is a hard ask in the case of factual errors, no matter how profound. (Here, the applicant does not seek to argue that the questions he presents meet the requirement of being of general or public importance. Thus he relies on the alternative limb that there is “other reason” why the question should be submitted to the High Court.) In my view 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, that this alternative requirement will be met.

First ground of proposed appeal: benefit of the doubt

[13]     In concise submissions Mr Woods submitted that there is a public interest in reconsidering refugee cases in which credibility of the appellant is in issue.  It is a recognised problem in refugee cases that concrete evidence is, per se, difficult to adduce.   Mr Woods contended that the Tribunal, having accepted that Mr Cao’s father  was  a  high-ranking  communist  official,  that  he  had  himself  been  a probationary member of the Communist Party, and that he was a Catholic convert, unreasonably  concluded  that  his  narrative  was  implausible.    The  Tribunal  was entitled to come to its own conclusion related to his credibility, but it was unreasonable, and therefore an error of law, for it to state that the benefit of any doubt should be exercised in favour of Mr Cao but then fail to apply the same principle to the evidence before it.

[14]     Ms Fleming submitted that the applicable law as to “benefit of the doubt” in s

129 cases has been well settled.  So far as the question is a mixed one of law and fact, it could not be said that the Tribunal erred.  No question of general or public importance arose.   Nor was there any “other reason” of sufficiently exceptional circumstance or individual injustice that would warrant further consideration.

Discussion

[15]     I agree with Ms Fleming that the relevant legal principles have been stated clearly by the Court of Appeal in Jiao v Refugee Status Appeals Authority4  and by the Supreme Court in Attorney General v Tamil X.5   The decision in Jiao, which was given by Keith J, traced the public international law background to the “benefit of

the doubt” principle.   In Jiao it was noted that normal domestic rules of evidence

4      Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA).

5      Attorney-General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721.

may be inappropriate in proceedings for the determination of refugee status.  There it is frequently the case that the claimant is not in a position to submit conclusive evidence. The very point Mr Woods made here.

[16]     The starting point remains, as the Court of Appeal held in Jiao, that claimants of refugee status must prove the facts that they assert.6    The “benefit of the doubt” principle is a dispensing rule, which alters the standard of proof.  As a former legal adviser for the United Nations High Commissioner for Refugees, Dr Paul Weis, put it, in a passage quoted in Jiao:7

It will essentially be a question whether his submissions ... are credible, and in the circumstances, plausible.  The principle “in dubio pro reo” should be applied mutatis mutandis, ie, where there is, in the absence of conclusive evidence, doubt about the facts the applicant alleges, he should be given the benefit of the doubt.

[17]     In Jiao the Court of Appeal also approved a passage from the Office of the United Nations High Commissioner for Refugees Handbook on Procedure and Criteria for Determining Refugee Status:8

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility.  The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

[18]     There can be no doubt here that those principles were applied properly by the Tribunal.   Mr Woods’ argument comes down to the proposition that if the broad framework for the applicant’s contentions is coherent, detailed inconsistencies destructive of credibility should be disregarded. That approach cannot be right.

[19]     In  respect  of  the  first  proposed  ground  for  appeal,  there  is  no  error  of principle by the Tribunal.  Nor is there any profound error of fact amounting to an error of law.   And nor could it be one of sufficient importance or significance to

justify a further appeal under s 245(3).

6 At [23].

7 At [24].

8 At [28].

Second ground of proposed appeal: findings unsupported by evidence

[20]     Mr Woods submitted that the Tribunal recognised that stakes are high when serious human rights violations are possible.  It had found such possibility existed in Vietnam.   But, he submitted, the Tribunal had reached a number of conclusions, regarding  Mr  Cao’s  credibility,  not  supported  by the  evidence  adduced.    These appeared to negate the principle that the benefit of the doubt should be exercised in favour of Mr Cao.  It is plain that this ground of appeal overlaps somewhat with the preceding one.

[21]     Ms   Fleming   submitted   that   Mr   Cao’s   submission   that   the   Tribunal unreasonably concluded that his narrative was implausible was not arguable.   Nor did  it  raise  a  point  of  sufficient  general  or  public  importance,  or  exceptional individual importance, to justify further appeal.

Discussion

[22]     The decision of the Tribunal is a careful and reasoned one.   It finds, in a number of respects, that Mr Cao’s evidence is inherently and internally inconsistent. Few of its conclusions in this respect turn on the absence of further evidence, which might be dispensed with by granting the benefit of the doubt.   Rather they are a reasoned determination reached by the Tribunal after considering evidence given by Mr Cao himself.  The Tribunal was uniquely placed to assess credibility.  There is little purpose to be achieved in traversing each conclusion.  Indeed Mr Woods did not attempt to do so on behalf of Mr Cao.  As I said earlier, his argument comes down to one of seeking to disregard inconvenient, and damning, detail on the basis that the underlying framework is coherent.  But a credibility assessment necessarily examines the whole of the superstructure presented.

[23]     I cannot find that the factual findings of the Tribunal were not open to it on the evidence.   Nor can  I find that the alleged factual errors are so grave as to constitute an error of law.  And nor could such factual errors amount to an issue of public importance or quite exceptional individual importance.

Result

[24]     Application for leave to appeal dismissed.

[25]     The second respondent is entitled to costs calculated on a category 2 band B basis, together with reasonable disbursements to be fixed (in the event of disagreement) by the registrar.

Stephen Kós J

Solicitors:

Rowland Woods Legal, Wellington for Applicant

Crown Law, Wellington for Second Respondent