CO Philippines v Immigration and Protection Tribunal
[2023] NZHC 654
•29 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1957
[2023] NZHC 654
UNDER Section 249 of the Immigration Act 2009 BETWEEN
CO PHILIPPINES
Applicant
AND
IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
REFUGEE AND PROTECTION OFFICER
Second Respondent
Hearing: 27 March 2023 Appearances:
A Williams for the Applicant
IMG Clarke for the Second Respondent
Judgment:
29 March 2023
JUDGMENT OF HARVEY J
This judgment was delivered by me on 29 February 2023 at 11 am pursuant to r 11.5 of the High Court Rules.
Date: …………………..
(Deputy) Registrar
Counsel:A Williams, Barrister, Manukau Isabella Clarke, Barrister,
Solicitors: Shabani Law, Papatoetoe Central
CO PHILIPPINES v IMMIGRATION AND PROTECTION TRIBUNAL [2023] NZHC 654 [29 March 2023]
Introduction
[1] CO is a citizen of the Philippines. He has been in Aotearoa – New Zealand since 2007 and has sought refugee and protected person status on three separate occasions. In November 2020, CO lodged a third refugee and protected person status claim, which was declined on 18 November 2021 by the Refugee Status Unit (RSU). CO’s subsequent appeal was heard by the Immigration and Protection Tribunal (IPT) in March 2022 and was then dismissed on 13 September 2022.1 He now applies for leave to seek judicial review challenging that decision.
[2] The Refugee and Protection Officer (RPO) opposes the application noting that the proposed review concerns the IPT’s consideration of a newspaper article from January-February 2022 and a translation dated 26 February 2022. The RPO argues that valid grounds for leave are not met, that there is no seriously arguable claim under review and accordingly, the application for leave should be dismissed.
[3] For completeness, I note that the IPT as first respondent confirmed on 19 October 2022 that it would abide the Court’s decision, and on 7 November 2022 sought leave to be excused from further attendance in the matter. This leave was granted on 14 March 2023.2
[4] The issue for determination is whether the application for leave to judicially review the decision of the IPT can be granted.
[5] Counsel for CO raised in the oral submissions at the hearing a second statement which he contended had not been considered by the IPT or was unsure as to whether it had been. This matter is also considered.
Background
[6] This brief summary is taken largely from the chronology provided by counsel for the RPO. In addition, the IPT decision the subject of the present application, which follows, sets out the background in more detail and need not be repeated here.
1 Re CO (Philippines) [2022] NZIPT 801997.
2 Minute of Powell J, 14 March 2023.
[7] In 2002, the applicant was acquitted on a charge of “frustrated murder” in connection with a shooting in 1997. In 2005, CO claimed he was required to pay a “revolutionary tax” by the New People’s Army (NPA), the armed wing of the Communist Party of the Philippines (CPP). On 11 December 2007, CO arrived in New Zealand. He was granted a work visa in February 2008. He applied for residence in 2010. That was declined due to Immigration New Zealand’s concerns that Police clearance certificates and a degree provided were false. In March 2011 CO’s work visa application was declined. In September 201l he was issued with a deportation liability notice but did not leave the country.
[8] In March 2017, CO lodged his first claim for refugee and protected person status with the RSU which was declined on 6 October 2017. On 11 January 2018, the IPT declined CO’s appeal finding that he no longer had difficulties with the NPA following his departure from the Philippines in 2007.3 Then on 19 October 2018 this Court dismissed an application for leave to appeal the IPT’s decision.4 On 24 May 2019, the Court of Appeal also declined an application for leave to appeal.5
[9] In May 2019, CO filed a second claim for refugee and protected person status. On 26 May 2020, the RSU declined CO’s claim resulting in CO filing an appeal with the IPT. On 5 October 2020, the IPT declined CO’s second appeal, accepting that there was a significant change of circumstances but rejecting, as not plausible or credible, his claims regarding the NPA showing further interest in him.6
[10] CO’s third refugee and protected person status claim was lodged in November 2020 and he was interviewed in April 2021. That application was declined on 18 November 2021. On 3 December 2021, CO claimed a sling bag containing a mobile phone, a home-made .38 calibre handgun, seven .38 calibre bullets and a photograph with his name and home address written on the reverse, was found by a taxi driver two hours’ drive from his home. On 1 March 2022, the IPT registry confirmed receipt of an email dated 28 February 2022 from CO’s counsel attaching a newspaper article and
3 BC (Philippines) [2018] NZIPT 801243.
4 BC (Philippines) v Immigration and Protection Tribunal [2018] NZHC 2722.
5 BC (Philippines) v Immigration and Protection Tribunal [2019] NZCA 180.
6 CG (Philippines) [2020] NZIPT 801749
an English translation. Then on 11 March 2022, the IPT heard CO’s appeal and subsequently dismissed it on 13 September 2022.7
The IPT’s decision
[11] The primary issues the IPT addressed in the appeal were whether CO’s claims were credible, and if so, whether his fear was well-founded. The IPT set out their jurisdiction under the Immigration Act 2009, noting CO’s right to appeal a decision by a refugee and protection officer. It outlined its requirement under s 198(1) of the Immigration Act to enquire into whether to recognise CO as:
(a)a refugee under the 1951 Convention Relating to the Status of Refugees (“the Refugee Convention” or “the Convention”) (section 129); and
(b)(b) as a protected person under the 1984 Convention Against Torture (section 130); and
(c)(c) as a protected person under the 1966 International Covenant on Civil and Political Rights (“the ICCPR”) (section 131).
[12] The IPT noted s 226(1) of the Act places the onus of establishing the claim on CO and who must ensure that all information and evidence they wish to be considered is provided to the Tribunal prior to it making its decision. Of relevance was s 231 which enables the IPT to rely on any finding of credibility or fact in a previous appeal or matter involving the person and prevents the person from challenging such findings relied upon. The IPT provided a summary of the prior claims and findings.
CO’s first claim
[13] The IPT recounted in detail the first refugee claim because the fear of harm from the NPA and CPP was asserted in all three claims. What follows is a summary of that account.
7 Re CO (Philippines) [2022] NZIPT 801997.
[14] CO operated a travel and recruitment agency. In mid-2003 he began to encounter problems with the NPA and CPP. CO was informed by a cousin that the NPA was demanding a ‘revolutionary tax’ from his business because it operated in areas where the NPA were control. CO reluctantly paid the “tax” out of concern for the safety of his family, recruitment agents, and himself. In October 2006, CO was advised by his lawyer to close business operations in three of the five offices where the NPA were active to avoid having to pay the “tax”. CO agreed and slowly wound down the three branches with all being closed by September 2007.
[15] Prior to the complete closure of the three offices, CO had a meeting with the NPA at their request, which he believed he could not refuse. At this meeting the NPA/CPP representatives told CO they wanted him to join their political party and that being a member would give him access to their support and protection. CO politely declined explaining that he was not ready to join any political party. His lawyer then raised the issue of the closing down of the offices and explained falsely that the reason for the closures was because the business was having trouble. He said this meant CO could not continue to pay the “tax”. The NPA/CPP representatives did not respond positively and insisted that CO keep the offices open.
[16] Following this meeting, CO was called to pay his next instalment of the “tax”, replying that he could not because of the closure of the three branches of his business. Then, in August 2007, CO was informed that he was to be tried for treason by a NPA court in absentia and was urged to leave the Philippines. CO went into hiding with his first wife and shortly thereafter, his office received a package containing two bullets with two black ribbons addressed to CO and his lawyer from the NPA. Approximately a week later, after several death threats, CO’s lawyer was murdered.
[17] CO and his family travelled to Australia and then arrived in New Zealand in December 2007. CO was granted a work visa in early 2008 and he subsequently applied for residence in February 2010. The residence application was declined because Immigration New Zealand was concerned about the truthfulness of the police clearance certificates and the bachelor’s degree provided by CO. A further application for a work visa was also declined and in September 2011, CO was issued a deportation liability notice on the basis he had become unlawful in New Zealand.
[18] During this time, CO was advised by the caretaker at his ancestral home that unknown people had visited enquiring as to his whereabouts. In April 2012, CO was informed of a similar encounter and in December 2016, he was told that one of his distant relatives had been killed by the NPA after being mistaken for CO. CO was warned by his cousin that he should not return to the Philippines because there was an NPA “liquidation squad” hunting him and that they would kill him.
[19] CO lodged his first claim for refugee and protected person status in March 2017, which was declined. CO’s appeal of that decision to the IPT was also dismissed because it found that CO had given a partially credible account but did not accept that he had further problems with the NPA since his departure in 2007. The IPT rejected the claim of the 2010 and 2012 visits at his ancestral home of armed men and men masquerading as police officers. The IPT found the risk to CO of suffering serious harm of any kind at the hands of the NPA was remote, speculative, and fell below the real chance threshold, particularly as CO’ last involvement with the NPA was over a decade ago.
CO’s second claim
[20] In May 2019, CO lodged his second refugee and protected person claim, again claiming to be at risk of being persecuted, or otherwise being in danger of suffering serious harm from the NPA or CPP. CO further asserted that the threat had intensified because the IPT’s decision on his first claim had been published on their website, and because there had been further interest from the NPA demonstrated by emails and visits to his relatives and friends. Furthermore, he claimed his mental health had deteriorated.
[21] The IPT declined the second appeal rejecting, either as not plausible or credible, CO’s various claims as to the NPA showing further interest in him. The IPT found no credible as to the reason why 13 years on, CO would still be of interest to the NPA or CPP. The IPT also rejected CO’s claims about the 2018 and 2019 visits to his home by the NPA enquiring of his whereabouts. The IPT accepted that CO had been assessed as having symptoms consistent with post-traumatic stress disorder,
anxiety and depression, but did not find it established that it was a result of the ongoing threats of persecution or prevented his return.
CO’s third claim
[22] In November 2022, CO lodged his third refugee and protected person status claim on the basis that he continued to fear harm from the CPP and NPA, and from the family of a man possibly seeking revenge on CO. CO explained he was charged with ‘frustrated murder’ of a young man and even though the charges were dismissed due to insufficient evidence, the family had vowed revenge. The RSU declined this claim on 18 November 2021, resulting in this decision by the IPT on the third appeal.
[23] The IPT then recounted the evidence given by CO and his witnesses prior to assessing its value or credibility. A summary of the evidence is as follows.
[24] CO affirmed his accounts given in the prior appeals and gave new evidence regarding events occurring after the date of his second appeal. This was that in late October 2020, CO was informed by his sister living in the Philippines that again, armed men had visited his house looking for him and that he should contact the caretaker. Upon calling, the caretaker confirmed that two men had asked if CO was there, to which he replied he had not been for a long time, and then forced their way into the house looking around before leaving. They threatened the caretaker that they would kill him if he was lying as to CO’s whereabouts. After reporting the incident to the local police, a copy of the report record was sent to CO.
[25] CO had no further contact with the caretaker and was informed that he had stopped working at the house because he was afraid, and subsequently was reported as a missing person. CO then requested his lawyer to make enquiries with local police regarding the visit of the two men, to which he was told it was still under investigation. CO was told that rumours in the local neighbourhood were that the family of the young man, who he was originally charged with murdering, was behind the visits. CO was interviewed by the RSU about his third claim in April 2021.
[26] After being told that a number of police officers had been to his house, CO ascertained through his lawyer that the local police of his city in the Philippines were
investigating the finding of an abandoned sling bag containing a mobile phone, a homemade .38 calibre handgun, seven .38 calibre bullets, and a photograph with CO’s name and home address on it. CO then obtained copies of the photographs showing the police, the taxi driver who found the bag, and the bag on the side of the road where it had been found. He also obtained copies of the police’s confiscation receipt document, further photographs, and a ‘threat assessment’ document.
[27] CO asserted that, in light of these recent events, it is plausible the CPP and NPA are still interested in him, although he acknowledged that he was unsure whether they still had the capacity to harm him. Alternatively, CO believed that it is more plausible these events are linked to the family of the victim of the frustrated murder case who previously threatened the appellant.
[28] Evidence was also given by a man identified as ‘EE’, who stated he is a police officer and confirmed the finding of the sling bag containing the aforementioned items, although noting it also contained a cell phone. He said the police investigation had been completed with no suspects identified, and that there was not enough evidence to establish that the abandoned bag was connected to a payment made to kill someone.
Evidence and submissions received
[29]Counsel filed with the IPT received submissions and the following documents:
(a)a copy of a certification (of police blotter entry) document dated 20 October 2020;
(b)a copy of police station letter dated 20 October 2020;
(c)“House Caretaker Threatened by 2 Armed Men” Sunday Punch (2 November 2020);
(d)a copy of a police confiscation receipt document dated 3 December 2021;
(e)a copy of a police blotter excerpt document dated 4 December 2021;
(f)copies of two undated photographs showing a man in a military uniform standing on the side of a road with two men in civilian clothing;
(g)copies of two undated photographs showing a man in a military uniform outside a building with a man in civilian clothing;
(h)a police threat assessment document dated 9 December 2021;
(i)a copy of a written statement by FF dated 26 February 2022 and an English translation;
(j)copies of text messages between the appellant and his lawyer in the Philippines and between the appellant and his sister in the Philippines;
(k)copies of text messages between unknown persons on a mobile phone; and
(l)a bundle of country information.
Assessment
[30] The IPT first considered the credibility of CO’s account. It found the IPT’s prior determinations in the first and second appeals persuasive and cogent and relied on them under s 231 of the Act. On the evidence presented by CO in the third claim, the IPT found that the core parts were not credible.
[31] The first point the IPT made was the highly coincidental timing of the two new pieces of evidence with the declining of CO’s appeals. The alleged visits of the two armed men occurred just several weeks after the IPT declined CO’s second appeal, and the finding of the sling bag containing various items was also alleged to have occurred just two weeks after the RSU declined CO’s third claim. In light of CO’s history and timing of incidents in respect of the first claim and appeal, the IPT found that these incidents lacked credibility.
[32] The IPT did not accept CO’s evidence as to the existence of neighbourhood rumours of a connection between the October 2020 visits to his home and the family of the victim in the frustrated murder case because CO failed to tell RSU about it in his third claim. In addition, CO’s failure to follow up on the police investigation into the October 2020 visits to his home was considered surprising by the IPT and did not in their view, align with CO’s efforts to obtain police documents via his lawyer regarding the abandoned bag.
[33] The IPT also had concerns about the ‘threat assessment’ document and the photographs CO presented as having been obtained by his lawyer from the police. In particular, EE’s evidence indicated that the threat assessment documents were intended for police office-use only, and with the document being proffered in support of this claim, the use of the word “recommendation” at the end of it seemed self- serving. In respect of the photographs, the IPT considered them to be probably, more than not, contrived or ‘staged’ for the purposes of supporting CO’s claim.
[34] The IPT also expressed serious doubts that if the sling bag had been abandoned by the armed men who visited the house in October 2020, the writing on the back of the photograph would be readable 13 months later given the seasonal rains. Therefore, the IPT considered such a link as claimed by CO was implausible, that there could be any logical or compelling reason for the bag and its contents to have been abandoned by persons wishing to cause harm to CO.
[35] Overall, the IPT found the cumulative effect of the credibility concerns meant it could not consider CO’s account of events after the second appeal to be truthful. The IPT acknowledged the armed conflict occurring in the Philippines, the existence of a ‘revolutionary tax’, and the issues with targeted killings, but still found no reason for them to depart from the position that CO is not facing risk of serious harm from the NPA, the CPP, or the family of the victim in the frustrated murder case.
[36]The IPT then summarised the relevant facts it accepted, including that:
(a)CO had been obliged to pay the NPA a revolutionary “tax” on his business;
(b)he was verbally threatened by a family member of the victim of the frustrated murder case after he was acquitted;
(c)he had been required to attend a meeting with NPA/CPP representatives where he claimed he could no longer pay the revolutionary “tax”;
(d)after failing to pay the next instalment of “tax” he received death threats by mail;
(e)his lawyer who had been at the meeting with him also received threats by text and was subsequently murdered; and
(f)CO moved to New Zealand with his family in December 2007 after going into hiding.
[37] The IPT, after considering the relevant provisions and authority on refugees, determined the two principal issues to be, first, objectively, on the facts as found, is there a real chance of the CO being persecuted in the Philippines? Secondly, if the answer is yes, is there a Convention reason for that persecution?
[38] While the IPT accepted that the Philippines has significant human rights issues, because it rejected CO’s account of being targeted by the NPA or CPP, or the family of the frustrated murder case victim, it found nothing to establish that CO had a characteristic, background, or circumstance which exposed him to a real chance of serious harm from breaches of human rights if he returned to the Philippines. Therefore, there would be no breach of his rights under Art 6 or Art 7 of the International Covenant on Civil and Political Rights (ICCPR), and no well-founded fear of persecution.
[39] Because the IPT concluded there to be no well-founded fear of persecution, it was unnecessary to address whether there was a Convention reason. CO was not recognised as a refugee under s 129(1) of the Immigration Act.
[40] The IPT also determined whether CO should be recognised as a protected person under s 130 or s 131(1) of the Immigration Act. Relying on the same reasons as above, and the same lack of credibility in CO’s accounts, the IPT found CO was not at risk of being subjected to torture as defined in the Convention Against Torture, Art 1(1). Therefore, CO was not a protected person under s 130 of the Act.
[41] For the same reasons as above, CO was not found to be in danger of being arbitrarily deprived of life or subjected to cruel treatment, and therefore was not a protected person in New Zealand under the ICCPR.
[42] The IPT concluded that CO was not a refugee or a protected person under any of the meanings available and the appeal was dismissed.
Applicant’s submissions
[43] Mr Williams submitted that this Court should grant leave for judicial review because the grounds for review are seriously arguable and raise a question that, due to its general or public importance, should be submitted to this Court for a decision. Counsel emphasised that the error of law and error of fact were identified by CO, which raise issues of general and public importance. Mr Williams argued that the IPT failed to take account of relevant information when determining the appeal. By failing to do so, the IPT’s reasoning has breached fundamental obligations “under the common law principles”. Further, Mr Williams submitted that the IPT had thus decided the appeal without determining the relevance of the evidence.
[44] Counsel underscored that CO’s circumstances were exceptional. He is a refugee and would suffer a miscarriage of justice that will cost him his life.
[45] As to the evidence in issue, Mr Williams contended that the ITP’s registry case manager confirmed receipt of the article in question, as supplied by counsel, but this was overlooked by the IPT. Conversely, the IPT expressed concerns about the credibility of CO’s claim while failing to consider relevant evidence, namely the article published in a local newspaper in the Philippines. The failure to consider this relevant evidence amounted to an error of law with the result that the case should be remitted back to the IPT for reconsideration.
[46] While the IPT mentioned all the evidence provided by counsel, there was no comment about the newspaper article. Added to that, the decision referred to a statement provided by FF, which is a written statement and not a newspaper article. As a result of this error, Mr Williams submitted that a miscarriage of justice occurred. A further error was when the IPT stated that the written statement was dated 26 February when in fact it was made in December 2021, but the translation was dated 26 February 2022. According to counsel, this “error of facts” would amount to a
miscarriage of justice if this Court does not grant leave for a judicial review. Counsel cited Daganayasi v Ministry of Immigration in support.8
[47] In addition, Mr Williams contended that where a decision is made on the basis of insufficient evidence that would amount to a mistake of fact, citing Talbot v Air New Zealand Ltd.9 Further, he argued that where a decision is reached on this basis, then it is reviewable on the ground of mistaken fact.10 In summary, Mr Williams submitted that the IPT failed to consider an important piece of evidence which resulted in an error of fact that led to the IPT arriving at an incorrect conclusion. The application for leave should therefore be granted.
Second respondent’s submissions
[48] Ms Clarke submitted that under s 249 of the Immigration Act 2009, three points are relevant. First, whether the proposed review would involve issues that could be adequately dealt with in an appeal, per s 249(6)(a). If it was appropriate, leave to commence judicial review would not likely be granted. Even so, as counsel have agreed to regularise the procedure in this instance, the RPO does not oppose the leave application for judicial review on that basis.
[49] Second, whether the proposed review raises a question capable of bona fide and serious argument, citing Kumar v Minister of Immigration in support.11 Counsel submitted that there is no seriously arguable ground for review.
[50] Third, whether the issue in the judicial review proceeding are, by reason of their general or public importance or for any other reason, properly matters for review per s 249(6)(b). Here, according to Ms Clarke, the proposed review involves no question that should be submitted to this Court for a decision in the context of general or public importance, or for any other reason. Moreover, counsel argued that the alleged errors are case-specific and do not raise issues of general or public importance. Ms Clarke submitted that the IPT applied the correct tests that are well settled in
8 Daganayasi v Ministry of Immigration [1980] 2 NZLR 130 (CA).
9 Talbot v Air New Zealand Ltd (No 2) [1994] 2 ERNZ 216 (EmpC).
10 Fowler & Roderique v Attorney-General [1987] 2 NZLR 56.
11 Kumar v Minister of Immigration [2016] NZHC 1593, at [35].
arriving at its decision. In particular, that CO’s circumstances are not exceptional or unjust and failed to provide sufficient reason to revisit the IPT’s decision.
[51] Ms Clarke refers to the orthodox presumption that a decision-maker has considered relevant information before it cannot be set aside in this case.12 The IPT received the article and translation as evidenced by the written confirmation from the registry on 1 March 2022. More importantly, a decision-maker need not refer in every decision to every piece of evidence filed. Even so, contrary to CO’s claim, Ms Clarke says the IPT did in fact refer to the documents at [51(i)] of its decision, since there was no other separate document matching its description that was before the IPT. The article referred to the sworn statement of FF and the decision referred to his written statement.
[52] Ms Clarke highlighted CO’s suggestion that the IPT’s description at [51(i)] amounted to an error of fact but noted that this would not meet the high threshold for demonstrating the factual findings were so incorrect as to constitute an error of law.
Counsel submitted that the ‘triple hurdle’ test was confirmed by Kós J:13
(a)The applicant needs to present a seriously arguable case that the IPT’s factual findings were wrong. An appeal court will not interfere where that is an evidential basis for the finding. The matter complained of is not a true error of fact. The IPT did not make a factual finding about the date of the article or the statement. It was simply imprecise in its description of the documents.
(b)The applicant needed to demonstrate that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. The imprecision in describing the documents was not material to the IPT’s decision and accordingly, CO fails to also overcome this hurdle.
(c)The question of law is not one of general public importance and not one for which some other reason should be considered by this Court.
12 Shi v Chief Executive, Ministry of Business, Innovation & Employment [2014] NZHC 1217, at [44].
13 Taafi v Ministry of Immigration [2013] NZAR 1037 (HC) at [19].
[53] Central to CO’s challenge is the issue of the weight the IPT gave to these documents. According to counsel, this is not an open ground for review. This is because weighting is a matter for the IPT alone, citing Minister of Immigration v Zhang in support.14 The IPT was entitled to not accord the article and translation significant weight. It had been provided in such a way that its provenance could not be determined. It was provided as a PDF absent the remainder of the edition of the newspaper in which the article was said to have been published. Moreover, according to Ms Clarke, the documents failed to advance CO’s case or provide any response to the IPT’s concerns about CO’s case.
[54] Ms Clarke submitted that the documents do not advance CO’s case. While the article corroborated the finding of the bag, the IPT did not reject that the bag existed or the nature of its contents. In addition, the IPT also had evidence via telephone from EE about the bag and its finding. In addition, the article did not link the bag to CO, with some of the article’s content being contrary to CO’s case that he is the man in the photo found in the bag. There was the suggestion in the article that the person in the photo had been living in the United States.
[55] Moreover, there was separate evidence before the IPT linking the bag to CO. Thirdly, the article did not confirm the link between the bag and the parties CO claimed to fear. Once again, some of the article’s content is contrary to CO’s case and refer to the possibility of competition and disputes, in the context of a successful business, and speculated that possibly competitors heard of his return and so hired a gunman.
[56] Equally importantly, Ms Clarke underscored that the IPT found CO’s account of events untruthful. The IPT concluded that there were a range of issues which, cumulatively, provided grounds for it to find that central elements of CO’s claim were simply not credible. More importantly, the article did not relate to matters relevant to why CO’s case failed. Six points were relevant, according to counsel.
[57] First, the IPT had real reservations about the coincidental timing central to CO’s claim. Those events occurred two weeks after the IPT’s decision declining a
14 Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88, at [31]-[32].
second claim and then two weeks after the RSU declined his third claim. The article could not explain that coincidence in timing.
[58] Secondly, the article does not assist with what the IPT described as improbabilities connected with the discarded sling bag. CO agreed that the bag was unlikely to have been abandoned at the time of the alleged October 2020 armed visit. The fact the bag was abandoned a significant distance from his home made it unlikely there was any link between the bag and the claimed visit. The article did not demonstrate a link between the bag and the armed visit that is alleged to have occurred.
[59] Thirdly, the IPT relied on its previous rejection of CO’s claim that armed men had visited his home in the Philippines, per s 231 of the Immigration Act. The article did not assist since it did not mention the armed visit.
[60] Fourthly, the IPT did not accept CO’s evidence that there had been neighbourhood rumours of a connection between the October 2020 visit and the family of the victim in the frustrated murder case. Nothing in the article corroborated the existence of any rumours. It did not explain why CO raised the rumours for the first time in the IPT. Tellingly, he had failed to mention them when interviewed by the RSU.
[61] Fifthly, the IPT expressed concern that CO failed to take further steps to ascertain what occurred with the police investigation of the October 2020 visit to his home. The article did not explain why he failed to take any follow up steps.
[62] Sixthly, the IPT was concerned about the reliability of CO’s documentation said to have been obtained by counsel from the police file. The article did not counter the IPT’s assessment that the recommendation at the end of the assessment document provided was curiously worded and self-serving. The article failed to counter the assessment that four photographs of police talking to individuals were, more probably than not, contrived or staged for the purpose of supporting CO’s claim.
[63] For all these reasons, Ms Clarke argued that the application for leave to judicially review the decision of the IPT should be declined.
Legal principles
[64] Sections 249 and 245 of the Immigration Act provide the legislative basis for leave applications for judicial review or for an appeal of an IPT decision. In addition, s 249A is relevant where an appellant intends to bring judicial review and appeal proceedings in respect of the same decision. In such circumstances, both leave applications must be lodged at the same time and the Court should attempt where practicable to determine them together. Further, it is well settled that the bar for leave to appeal or leave to bring judicial review proceedings is high, and the clear intent of the legislative scheme is that leave is not lightly granted. In short, IPT decisions will not be readily disturbed without sufficient grounds.
[65] By way of comparison, for leave to appeal, s 245 provides that an appeal of an IPT decision may only be brought with leave and only on a question of law. Even where there is a live question of law, that alone is insufficient to justify leave to appeal, per s 245(3):
In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
[66] It is arguable that leave to bring judicial review proceedings is even more constrained. Judicial review of matters within the IPT’s jurisdiction similarly may only occur with leave. Moreover, s 249(6) of the Act provides that:
…
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—
(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.
…
[67] Put another way, it is evident that Parliament has mandated that an appeal rather than a judicial review is the principal means to challenge IPT decisions where an issue can be appropriately disposed of by an appeal.15 Hinton J highlighted this point in Smith v Minister of Immigration:16
In any case, because of the high degree of coincidence between the tests under ss 245 and 249, there are few instances in which a matter could be raised on review but not on appeal. It follows that leave to bring judicial review proceedings of a Tribunal decision has rarely issued.
(footnote omitted)
[68] Where an application has limited prospects of success, then the issues will be of limited public or general importance. The Court is required to consider whether the issues’ importance outweighs the cost and delay of bringing the appeal or review.17
Discussion
[69] The applicant relies on the alleged failure to take account of the newspaper article as a ground for seeking leave to judicially review the IPT’s decision. It was argued that this alleged failure amounted to an error of law and fact. I disagree. Three points are relevant.
[70] First, the IPT did refer to the article in their decision, albeit referring to it as a ‘written statement’, because there was no other document provided that matched the description. The difference in dates can be explained by the date specified being the date of the English translation of the article. The discrepancies cannot amount to an error of fact so serious to constitute an error of law because they merely highlight an imprecision when referring to the document, which includes both the article and the English translation.
[71] Secondly, even if this was not an explicit reference to the document, the IPT does not need to refer in its decision to every piece of evidence filed.
15 See for example Smith v Minister of Immigration [2020] NZHC 1510 at [35]; and CV v Immigration and Protection Tribunal [2015] NZHC 510 at [38].
16 At [35].
17 See Allada v Imigration and Protection Tribunal New Zealand [2014] NZHC 953 at [36].
[72] Thirdly, the IPT is entitled to determine the weight to be given to the evidence, and it was entitled to do so in light of the issues of the provenance of the document. In any event, I agree with Ms Clarke’s submission that the document does not overcome or affect the reasons the IPT gave for dismissing the appeal. Nor does it advance CO’s position any further, and accordingly what weight the article was afforded is not determinative. Consequently, I also consider that the statement referred to by counsel in oral argument and produced during the hearing, does not assist in overcoming the more significant hurdles CO faced.
[73] Moreover, in my assessment, there is no bona fide or serious argument raised by this application and therefore there is no seriously arguable ground of review. The issues raised are not matters of general or public importance or for any other reason, warrant being submitted to this Court for review.
[74] For completeness, on the issue of natural justice in the context of appeals, and by way of analogy only, the Court of Appeal in Minister of Immigration v Wu commented:18
[53] We acknowledge, as did the Judge in Lal and the Supreme Court in Ye, that it cannot be the Tribunal’s responsibility to give notice of every reservation or concern that it may have about an appeal or to provide appellants with iterative opportunities to marshal further evidence to meet those concerns. Not only would that be impractical given the workload of the Tribunal, it would also be inconsistent with the statutory provisions already traversed. The proposition is a narrower one than that, and necessarily a matter of fact and degree in light of context and the requirements of justice.
(footnotes omitted)
[75] In any event, this was not a case like Lal v Removal Review Authority19 or Wu where the circumstances justified a further chance to respond be given. The IPT had all of the relevant evidence before it and took account of the matters it considered were determinative when assessing CO’s appeal. It was entitled to do so and took the view that the appeal should be dismissed.
18 Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217.
19 Lal v Removal Review Authority HC Wellington AP95/92, 10 March 1994.
[76] In conclusion, I accept the RPO’s submissions that the grounds for leave to apply for judicial review have not been made out. The application must accordingly be dismissed.
Decision
[77]The application for leave to file judicial review proceedings is dismissed.
[78]Given that CO is legally aided, there is no order as to costs.
Harvey J
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