CO v Chief Executive of Ministry of Business, Innovation and Employment

[2018] NZHC 442

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-2017-404-001121

[2018] NZHC 442

BETWEEN

CO

Applicant

AND

CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT

Respondent

CIV-2017-404-001122

BETWEEN

CO
Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT

Second Respondent

Hearing:	15 February 2018
Counsel:	Applicant in person, B Johnson as McKenzie friend N Copeland for Respondents
Judgment:	14 March 2018

[REDACTED] JUDGMENT OF WHATA J

CO v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 442 [14 March 2018]

This judgment was delivered by me on 14 March 2018 at 4.30 pm.,, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:          Meredith Connell, Auckland

[1]                CO seeks leave to judicially review and/or appeal the decision of the Immigration Protection Tribunal (the IPT) dated 22 May 2017.1

[2]In written submissions, CO raised the following question:

How much evidence does a fleeing and frightened person have to present to the RSB or the IPT before the convention test of a well founded fear is passed?

[3]And:

If after considering all the life-threatening events he has suffered, and the evidence and facts he presented to the RSB and IPT, he is not found to be a refugee with the convention definition then surely no one can pass that hurdle?

[4]                Building on this starting point, Mr Johnson appearing as a McKenzie friend, identified the key grounds of appeal as follows:

(a)The IPT made numerous errors of fact, particularly about the likely impact of religious, cultural, social and political conditions in Pakistan on CO;

(b)The IPT placed undue reliance on the IPT’s assessment in the earlier refugee decision of the risk of danger to CO;

(c)The IPT failed to consider relevant country information;

(d)The IPT did not have specific regard to relevant international human rights conventions; and

(e)The IPT failed to record the international human rights conventions to which it had specific regard.

[5]                The jurisdiction to grant leave to appeal and/or review a decision of the IPT in this context is limited. There must be an appeal or judicial review on important points of law only. For reasons that I will explain, the grounds of CO’s appeal do not meet this threshold test. Leave to appeal is declined.

1      CO (Pakistan) [2017] NZIPT 502918. (“IPT Appeal”)

Procedural issue

[6]                At the commencement of the hearing Mr Johnson sought to produce evidence of CO’s counsel’s notes from the hearing before the IPT. He wanted to show that certain information was handed up to the Judge but not then considered by him. I did not allow them in. They were not produced by way of affidavit. They were handed up too late. The underlying point lacks merit.

Background

[7]                The following findings of fact were made in CO’s refugee and protection status decision and repeated in the decision now under appeal. While CO does not agree with this account in all respects, it provides sufficient context for present purposes:2

[6]        The appellant was born in 1985 in Z district, Pakistan. He is of Punjabi ethnicity. His family home is in Y village, in the Z district. He was the fifth child born to his father (a farmer) and his mother. His father and his married brother still live in the family village, and his three married sisters live elsewhere in Z district.

[7]        The appellant was born and raised in the Islamic faith, and has always practised this faith. He continues to attend services at the mosque.

[8]        In 2004, the appellant completed his schooling in X village, a village in the vicinity of Z district. He then continued to live at home, and was supported by his parents during times of unemployment.

[9]        In 2008, the appellant married his wife, who had lived with her family in X village. After the marriage, the wife moved to live with the appellant and his parents in Y village. The following year their first son was born.

[10]      In 2009, the appellant began working as an assistant purchase officer for a company in Lahore, Pakistan. In 2010 his second son was born, and the following year his third son was born.

[11]      In November 2011, the appellant commenced a course in English as a Second Language (ESOL) in Manchester, England. He completed the course and then commenced a business administration course.

[12]      In May 2014, the appellant returned to Pakistan (without completing his business administration course) as his mother’s health had deteriorated. The following month he commenced working as a purchase manager for a company in Lahore. He rented an apartment in Lahore, while his wife and children remained with his parents in Y village. He travelled to see his family once a week or fortnight.

2      CO (Pakistan) [2017] NZIPT 801075 at [6] – [12], [23], [26].

[…]

[23]   In February 2016, the appellant’s employer said that he had to travel  to New  Zealand  and  asked  the  appellant  to  accompany  him.  Between 16 February 2016 and 16 March 2016, the appellant was in Dubai waiting for his visa to New Zealand to be approved.

[…]

[26] The appellant arrived in New Zealand on 18 March 2016, and on 27 April 2016 he lodged a claim to refugee and protected person status. He has suffered depression while waiting for his claim to be processed, but has been working for the last three months.

[8]                 The grounds upon which CO based his humanitarian appeal against deportation are also recorded by the IPT. They were summarised as follows:3

(a)The appellant is the sole provider for his immediate family, his wife is unable to earn a living outside the home, and he has three young children. He would struggle to settle in Lahore without any family support, he has no references or contacts to assist with finding employment, a sparse employment history, and few financial resources. His problems are made more difficult by the fact that in Pakistan, unemployment rates are poor and security issues are problematic.

(b)The appellant remains fearful about returning to Pakistan because of the threats previously made against him.

(c)The appellant’s exceptional humanitarian circumstances will cause him and his family emotional and financial hardship.

(d)The appellant has been law abiding since his arrival in New Zealand, he is committed to settling and working in New Zealand, he has a good level of English and has previously obtained employment in New Zealand.

[9]                 The essential issue for the Tribunal in determining whether to make a favourable decision to CO was whether there are exceptional circumstances of a humanitarian nature. The Tribunal was dismissive of the appellant’s concerns about employment. The Tribunal noted:

[26] The reality is that the appellant has, in recent years, been able to find employment and provide for his wife and children, without her having to work as well. For two years (2009-2011), he worked for a company in Lahore. Three years ago, he resumed work for a company in Lahore, and remained in this position for 20 months before he chose to leave. During the latter time, he rented an apartment in Lahore, while his wife and children remained with

3      IPT Appeal, above n 1, at [19].

his parents in the family home. The appellant has completed a course in English as a Second Language (ESOL), and has a good level of English. This, and his past work experience, should assist him to regain work in Pakistan. There is also no evidence that his cousin is demanding immediate repayment of the loan which was made to him, at least before he has re-established himself in Pakistan.

[10]              The Tribunal also refers to the appellant’s supportive brother and family and concludes there is no evidence that the support of his family would not continue. It is noted that the appellant has only been in New Zealand for the past 14 months and was, for a short period, in employment here.

[11]              The Tribunal acknowledged CO remains fearful about returning to Pakistan because of threats previously made against him by a member of the Taliban. It also acknowledged that the Tribunal in its decision dealing with refugee status accepted by a narrow margin that the incidents which affected the appellant and his family, and the ongoing threats by the member of the Taliban against him in his home village, give rise to a real chance of the appellant being persecuted in his own village should he reside there.

[12]              However, the Tribunal concluded that CO’s past residence and employment in Lahore was without any threats to his safety. The Tribunal concluded it was no more than speculative that he would be located by his opponent in Lahore, in a city of over ten million people, and no more than speculative that even if he was located, he would be harmed. The Tribunal found that there was no credible evidence that an individual with the appellant’s characteristics (including being a member of the Sunni Muslim faith, which is a religious majority in Pakistan) was at risk of serious harm in Lahore and the Tribunal was satisfied that the real chance of persecution for a Convention reason was eliminated in Lahore.

[13]The Tribunal concludes:

[33]      Looked at cumulatively, the appellant’s circumstances are such that deportation could cause him disappointment, distress and emotional upset. However, the High Court has held that the stringent statutory test of “exceptional circumstances of a humanitarian nature” cannot be equated with “compassionate factors”, circumstances that are more than simply “routine”, or “genuinely concerning circumstances”. The High Court has noted “the high threshold for a finding of exceptional circumstances of a humanitarian nature”

– see Minister of Immigration v Jooste [2014] NZHC 2882 at [45].

[34]      Assessing the circumstances of the appellant, the Tribunal is not satisfied that he has met the high threshold required for exceptional circumstances of a humanitarian nature.

Summary of CO’s arguments

[14]              In written submissions, CO submits the decision of Judge Spiller was plainly wrong on the facts:

(a)The facts were that CO provided a safe-haven for Mr B that stopped Mr M of the Islamic terrorist organisation JeM that is part of the Taliban in Pakistan to carry out an apostate execution of Mr B for his conversion from Islam to the Christian faith.

(b)Since this incident, CO has not been able to live peaceably in his village and has become a fugitive.

(c)Consequently, the applicant fled to New Zealand and has left his wife, three sons and mother in Pakistan, who are fully reliant on him.

(d)CO has no friends or family in Pakistan to support or house them.

[15]              CO then sets out what he believes to be errors of fact in the Tribunal’s decision, particularly relating to the conditions CO will face if he is returned to Pakistan. CO also submits that on the evidence provided to the Tribunal, no reasonable member could have seriously proposed that CO would be able to secure himself and his family by moving to Lahore, due to security and economic concerns. It is further submitted that the decision is unjust and unduly harsh and that the denial of family rights could give rise to undue hardship.4

[16]The following grounds for invalidity are then also promoted:

(a)The decision was made on an incorrect assessment of security afforded to a victim of Taliban interest in Pakistan.

4      Citing a judgment of Durie J in Leiataua v Minister of Immigration HC Wellington CIV-2003- 485-742, 26 November 2003 at [18].

(b)The decision was made on an incorrect assessment of economic conditions in Pakistan.

(c)The decision violates CO’s human rights enshrined in the International Bill of Rights and the ICESCR, to which New Zealand is a signatory.

Submissions of the McKenzie Friend

[17]              Mr Johnson, McKenzie Friend, reframed the grounds of appeal, emphasising the following key points:

(a)Key findings were plainly wrong, for example:

[31] … The appellant as a Sunni Muslim and as a member of the religious majority in Pakistan, will not be at any greater risk of being persecuted in Lahore than any other Pakistani citizen…;

(b)Findings of this kind reveal the Judge did not consider the information supplied to him by CO and instead simply adopted findings from the refugee appeal decision;

(c)In so doing, the Tribunal cut itself off from the proper assessment of the humanitarian grounds, the most relevant information and the applicable conventions, including the ICCPR5 and the ICESCR.6

(d)The Tribunal decision lacks transparency – there being no reference to any of the relevant international conventions – making it very difficult to appeal.

[18]              Mr Johnson emphasised that CO’s case is exceptional. It is the first occasion he has experienced of a Sunni Muslim in Pakistan protecting an apostate. He says the risk to CO is real, and the Judge failed to take this key fact into account. While Mr

5      International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).

6      International Covenant on Economic Social and Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976).

Johnson did not specify questions to be considered on appeal, I understand from his submissions that leave is sought to pursue the grounds stated at [4] above.

Threshold for appeal

[19]              The application for leave is made under ss 245 and 249 of the Immigration Act 2009. Section 245 relevantly states:

245 Appeal to High Court on point of law by leave

(1)   Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

(1A) A decision by the Court of Appeal to refuse leave to appeal to the High Court is final.

(2)   An application to the High Court under this section for leave to appeal must be made—

(a)   not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or

(b)     within such further time as the High Court may allow on application made before the expiry of that 28-day period.

(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.

[…]

[20]Section 249 provides:

249Restriction on judicial review of matters within Tribunal’s jurisdiction

(1)No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

(2)No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.

…

(6)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.

[21]              The evident policy of this part of the Act is that it will not usually be sufficient to identify a case-specific error of law (or fact). The reference at s 245(3) and 249(6)(b) to “any other reason” is not an open gateway. The preponderance of authorities suggest that this limb is engaged only in “exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing”.7 There is contrary authority.8 For my part, both lines of authority support the basic proposition that case-specific errors of law will not be amenable for leave except in clear cases of substantive unfairness. The assessment of fairness will however consider New Zealand’s commitment to international human rights norms.9

[22]              It is also necessary to observe, as Koś J noted in Taafi v Minister of Immigration,10 that on questions directed to the factual findings of the Tribunal (as here), a triple-hurdle is faced by the applicants, namely:

(a)The applicant will need to show a seriously arguable case that the factual findings of the Tribunal are actually incorrect;

7      Taffi v Minister of Immigration [2013] NZAR 1037 at [19]. See also Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].

8      R M v Immigration and Protection Tribunal [2016] NZHC 735 at [34]-[37].

9      Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104, at [24].

10     Taafi v Minister of Immigration, above n 7, at [19].

(b)The applicant will need to show that the factual areas are in, combination and in the context of the whole decision, so grave as to constitute an error of law; and

(c)The applicant must show that the question of law is one of general or public importance or, for some other reason, ought to be considered on appeal.

[23]            I also adopt the observation made by Katz J in Nabou v Minister of Immigration:11

Findings of fact themselves cannot be impugned unless the factual errors were of such significance, extent and nature that they would render the decision legally flawed. Value judgments made by the Tribunal in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law.

Assessment

[24]              I will address each of the key grounds of appeal raised by Mr Johnson. The first two can be dealt with together.

The IPT made numerous errors of fact, particularly about the likely impact of religious, cultural, social and political conditions in Pakistan on CO

The IPT placed undue reliance on the IPT’s assessment in the refugee decision of the risk of danger to CO

[25]              Central to CO’s appeal are alleged errors of fact, not law, particularly relating to the cultural, social and political conditions in Pakistan. They fall at the triple hurdle. There was an ample basis for Judge Spiller to form a robust conclusion about those conditions. He referred to relevant country information to support his position. His conclusions were logically available to him based on that information and it is not seriously arguable for the purpose of an appeal on a point of law, or in judicial review proceedings, that Judge Spiller made a material error of fact.

11     Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9].

[26]                I accept heavy reliance is placed on the Tribunal’s decision on the refugee status appeal. But that can hardly be a reason for challenge in this Court. First, that decision provides a comprehensive review of the risk to CO of returning to Pakistan, based on relevant information, including by reference to international conventions. Second, that decision is now beyond challenge. Third, the refugee status appeal assessment of risk was directly relevant to CO’s claim as part of the humanitarian appeal that he remained in danger. Fourth, CO was afforded the opportunity to and did table fresh information relating to risk. It is speculative to suggest it was not considered by Judge Spiller.

The IPT failed to consider relevant country information

[27]              CO’s related complaint is that the Judge did not properly turn his mind to the humanitarian grounds of appeal in light of the best available information. Mr Johnson identifies a Country Report on Human Rights Practices for 2016 that is not referred to in the decision. However, what is clear, is that the Judge turned his mind to each of the matters counsel for CO raised as part of the humanitarian appeal in the memorandum of Counsel and cited the country information also referred to in that memorandum.12 It is more than counsel of perfection to suggest the Tribunal erred by expressly referring only to these reports. It is plainly not a ground of appeal on a question of law of general or public importance.

The IPT did not have specific regard to relevant international human rights conventions.

The IPT failed to record the international human rights conventions to which it had specific regard.

[28]              The final two grounds can also be considered together, that is, the apparent failure by the Judge to consider or expressly refer to relevant conventions on human rights. But as Ms Copeland noted, unlike other parts of the Act, there is no statutory requirement to refer to relevant conventions in a Tribunal decision on an appeal on humanitarian grounds. Furthermore, the engagement of those conventions, where

12 Memorandum of Counsel dated 8 May 2017. See also [20], [24] and [25] of the IPT Appeal.

relevant, would have been obvious to the Judge who was specifically tasked to undertake an assessment of humanitarian grounds based on arguments and information that presupposed the existence of these conventions. Judge Spiller’s decision on the refugee appeal considered a number of the relevant conventions.13 It is also notable in this case that Counsel at the hearing did not in fact refer to any particular conventions in her memorandum filed with the Tribunal and reproduced in this Court. This does not mean that there will not be occasions where those conventions should be recorded as having been considered, but this is not a case where consideration of that issue is warranted.

[29]              Finally, even if, for arguments sake, there is some merit to the criticisms of Judge Spiller’s decision, I am not satisfied there should be a further opportunity to be heard. First, the primary issues raised by the proposed appeal are largely case specific. Second, CO has had two appellate opportunities to make a case against deportation essentially on the same grounds (though I accept different considerations apply on a humanitarian appeal). Third, the decision on refugee status (which is beyond challenge)14 provides a compelling basis for concluding that the risk to CO of returning to Pakistan is small. While as Mr Johnson eloquently noted, the impact on CO of refoulement should not be dealt with by way of glib generalisations, the weight of material before this Court strongly suggests that the risk to CO does not trigger humanitarian grounds for intervention. Third, CO’s genuine concerns about providing for his family are valid matters to consider. But, in a context where he has shown the wherewithal to obtain employment in a variety of situations, including in Pakistan, these concerns similarly do not obviously trigger humanitarian grounds for intervention.

[30]              Overall, CO’s primary questions, recorded at [2]-[3], best illustrate the true object of the appeal. He cannot understand and wants to test the merits of Judge Spiller’s decision. His concerns about the risk he faces, as the Tribunal noted in the refugee appeal decision, are not meritless. But that is not a sufficient basis for appeal on a question of law or judicial review. Leave to appeal is therefore declined.

13 CO (Pakistan) [2017] NZIPT 801075 at [82].

14     It appeared that Counsel advised CO to wait for the decision on the appeal on humanitarian grounds.