CT (Pakistan) v Refugee and Protection Officer

[2018] NZHC 1946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-003039

[2018] NZHC 1946

BETWEEN

CT (PAKISTAN)

Applicant

AND

REFUGEE AND PROTECTION OFFICER

Respondent

CIV-2017-404-003041

BETWEEN

CT (PAKISTAN)
Applicant

AND

REFUGEE AND PROTECTION OFFICER

First Respondent

IMMIGRATION AND PROTECTION TRIBUNAL

Second Respondent

Hearing:

25 July 2018

Counsel:

T Mukusha for Applicant

MJ Mortimer for Respondent

Judgment:

1 August 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 1 August 2018 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Avondale Law, Auckland. Meredith Connell, Auckland.

CT (PAKISTAN) v MINISTER OF IMMIGRATION [2018] NZHC 1946 [1 August 2018]

The case

[1]    CT is from Pakistan. CT has sought refugee status here on three occasions. This case is concerned with his most recent application. However, CT’s earlier applications also have relevance for reasons that will become apparent.

[2]    The case comes from the Immigration and Protection Tribunal (the Tribunal), which dismissed CT’s appeal.1 CT contends the Tribunal was wrong to do so. He seeks permission to appeal and bring an allied judicial review proceeding.

[3]    Permission is governed by the Immigration Act 2009 (the Act). Put broadly, an applicant must identify a question of law or issue, which must be of general or public importance, or otherwise warrant curial attention.2 The threshold is high. Mere error correction is not anticipated.

Background

[4]CT came to New Zealand in December 2014.

CT’s first application for refugee status

[5]    CT said he was at risk in Pakistan from the Taliban and Muttahida Qaumi Movement (MQM) supporters because of his support for the Awami National Party (ANP). CT said in 2013, the Taliban delivered a threatening letter to his home. In December 2014, he was twice attacked and beaten. So too his parents by people looking for him. In November 2015, CT’s family home was again visited by people looking for him. CT’s father was assaulted. Similar events happened the next month.

[6]The Tribunal accepted CT is a Pakistani citizen, a Pashtun and a Sunni Muslim.

But, it found the evidence:3

(a)Of threats and attacks by the Taliban against him was not credible, and inconsistent with documentary evidence.

1      CT (Pakistan) [2017] NZIPT 801217.

2      Immigration Act 2009, ss 245 and 249.

3      CT (Pakistan), above n 1, at [14](a)–(d), and [15].

(b)Of CT’s move to another city (to escape the danger posed by the MQM and Taliban) was not credible.

(c)Regarding the MQM’s interest in CT was not credible. So too CT’s evidence in relation to the Taliban’s visits and attacks on his parents.

[7]    The Tribunal also found bogus a document provided by CT. This raised concerns about the balance of his documentary evidence.

CT’s second application

[8]    CT repeated the core of the first application, but added material. CT said in June 2016, his brother was kidnapped from a public square. CT said friends present heard the attackers yelling they wanted CT, and would kill his brother and CT’s family.

[9]The Refugee Status Branch refused to consider the claim:4

After interviewing the appellant, the RSB refused to consider his claim because it found that the brother’s kidnapping was further evidence in support of the previous claim and just repeated the claim which had already been rejected by the Tribunal. The RSB considered the claim to be abusive, and “lodged merely to prolong the appellant’s time in New Zealand, and not because he had a well-founded fear of being persecuted in Pakistan”.

The third application

[10]CT’s third—and instant application—was based on a new narrative.

[11]   CT said around August 2008, he was moved by seeing orphaned Shia children, whose parents had been killed in bomb blasts. CT said this spurred him to support charitable causes for Shia. Thereafter, CT provided financial and other support to these causes. He encouraged friends and family to do likewise. CT continued his support for Shia causes until December 2014, when he left Pakistan for New Zealand.

[12]   CT said on 28 November 2016—so, two years later, and after both his earlier claims had been declined—CT’s family were told of a fatwa declaring CT “worthy of death”.  CT said the fatwa had been issued by Lashkar-e-Jhangvi, a Sunni militant

4      CT (Pakistan), above n 1, at [17].

organisation. CT understood the fatwa had been issued because of his support for Shia causes.

[13]The Tribunal rejected the key elements of CT’s claim because:

(a)Of its earlier adverse assessment of CT’s credibility, a course envisaged by s 231(1) of the Act.

(b)CT was “unable to provide a credible explanation about why he had never mentioned this involvement [with Shia causes] in either of his previous statements of claim, interviews with the RSB, or his first appeal hearing”.5 It was “improbable … an activity that was clearly an important part of [CT’s] life did not rate even a passing mention in any of the interviews he had with the [Refugee Status Branch] or the Tribunal”.6

(c)CT’s earlier claims were based in part on his fear of the Taliban, another Sunni organisation. Involvement with a Shia organisation was thus also relevant to those claims.7 And yet he had not mentioned this aspect.

(d)Of the fatwa’s timing. The Tribunal considered it “simply astonishing” a fatwa would be issued against CT only four days after the Refugee Status Branch declined to hear his claim for refugee status.8 The Tribunal acknowledged “coincidences can occur”.9 However, it observed even if everything CT said was true, his account provided no explanation as to why the fatwa would be issued then.

(e)CT’s claim about the fatwa bore similarity to his earlier claim his brother had been kidnapped. The latter allegedly occurred “only a few weeks after the Tribunal had declined his first appeal”.10

5      CT (Pakistan), above n 1, at [56].

6 At [59].

7      At [60] and [62].

8 At [65].

9 At [65].

10 At [66].

(f)CT’s account of his assistance for Shia events omitted an activity identified by a New Zealand resident in a letter provided to the Tribunal.

(g)CT’s reliance on a letter allegedly from the Pakistan government commending his inter-faith works raised questions about CT’s veracity. CT did not mention the letter until after his most recent Refugee Status Branch interview. CT said he had forgotten about the letter. The Tribunal considered the explanation inadequate given the letter’s obvious importance.

(h)CT’s explanation about his father’s delayed Police complaint and related Police action was “implausible”.11

(i)The “news websites” relied on by CT in relation to the alleged fatwa “contained large paragraphs which had been copied verbatim from articles from other news sources”.12 A letter alleging support for CT from a Shia committee was, the Tribunal concluded, “linked” to a person in relation to one of the “news” websites.13

(j)Of the ease “with which false or fraudulent documents in Pakistan can be obtained, a reality [CT] … acknowledged in the hearing”.14

(k)Of the absence of independent probative evidence supportive of CT’s claim. The only material support came from a witness to whom the Tribunal had spoken over the telephone.

CT’s proposed appeal or review

[14]   CT contends the Tribunal left open the possibility a fatwa was made against him. Consequently, it erred in concluding he was not a refugee. CT advanced this submission as his primary one. At the hearing, he contended the question of law or

11     CT (Pakistan), above n 1, at [76].

12 At [81].

13 At [84].

14 At [90].

issue would be: if the Tribunal does not exclude the possibility of the existence of a fatwa against an applicant for refugee status, could this found a well-founded fear of persecution?

[15]   CT also contends irrespective of whether a fatwa was made, he faced a well-founded fear of persecution as three internet articles refer to the existence of a fatwa against him. Elaboration is required.

[16]   CT gave the Tribunal three internet articles from two “news websites [which] allow readers to submit news”,15 each of which referred to the alleged fatwa. The Tribunal concluded these reports were not genuine because anyone may upload “false news” to these websites,16 and the articles appeared to have been drafted using information copied from other sources, including “with information specific to [CT] added in to them”.17 CT does not challenge this reasoning. Rather, he submits there  is a risk someone may act against him (in Pakistan) believing a fatwa exists because of the existence of this internet material, even if false. CT did not identify the question of law or issue in relation to this submission, which he acknowledged as subsidiary.

[17]   CT submits both alleged errors mean the decision is marred by error of law, unreasonable, or both.18

Analysis

[18]CT’s primary argument confronts insuperable hurdles.

[19]   First, the Act places responsibility on the person seeking refugee status to establish his or her claim.19 In Jiao v Refugee Status Appeals Authority,20 Mr Jiao contended this obligation did not require an applicant to prove his or her claim. The Court of Appeal rejected this argument, while acknowledging “the process is not to be

15     CT (Pakistan), above n 1, at [81].

16 At [83].

17 At [82].

18 CT did not prosecute a written submission the Tribunal erred in law by failing to follow the Michigan Guidelines, guidelines  the  High  Court  has  concluded  are  permissive  only:  see  AP v Immigration and Protection Tribunal [2016] NZHC 1085 at [27]–[28].

19     The Act, ss 135(1) and 226(1).

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

seen as identical to the regular court process for determining disputed facts”.21 Jiao

was recently affirmed by the Court of Appeal.22

[20]   Second, CT failed to establish his claim because the Tribunal disbelieved him. The Tribunal’s emphatic rejection of CT’s account foreclosed any realistic prospect of a favourable outcome in relation to refugee status. The Tribunal variously described aspects of that account as: entailing “significant credibility concerns”;23 “improbable”;24 “[un]persuasive”;25 “simply astonishing”;26 “an untrue device to overcome the jurisdictional hurdles of the Act”;27 giving rise to “further concerns about ... veracity”;28 and “implausible”.29 The Tribunal also concluded CT had “proffer[ed] two false documents”.30

[21]   Third, the Tribunal’s decision cannot be read as leaving open the possibility a fatwa was made against CT. Its key conclusions are below:31

Conclusion on Credibility and Findings of Fact

The Tribunal finds … the cumulative effect of the credibility concerns outlined above is such that it does not find the appellant’s account truthful.

The Tribunal does not accept that the appellant played any significant role in supporting the Shia based committees, or that the LEJ issued a fatwa against him because of his role in supporting the committees. Accordingly, the Tribunal finds that there is no credible evidence that the appellant is of interest to the LEJ or faces a risk of serious harm from that organisation.

[22]   Fourth, even if one assumes the proposed question or issue is one of law, the balance of the statutory threshold is not met. No issue of general or public importance arises, and the question or issue does not warrant appellate assessment for any other reason.

21     Jiao v Refugee Status Appeals Authority, above n 20, at [21].

22     BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139.

23     CT (Pakistan), above n 1, at [54].

24 At [59].

25 At [60].

26 At [65].

27 At [66].

28 At [70].

29 At [76].

30 At [90].

31     At [99]–[100].

[23]CT’s subsidiary argument confronts the same difficulties—and more:

(a)The Tribunal expressly rejected “the genuineness of [the] two media reports citing the fatwa”.32 It described them as “false”,33 and later as “not genuine”.34 As observed earlier, CT does not challenge this reasoning.

(b)The Tribunal nonetheless examined whether there was a real risk of CT’s persecution if he returned to Pakistan. It concluded no such risk existed.35

(c)In reaching (b), the Tribunal observed: “neither counsel nor [CT] provided any information as to why the existence of these articles heightens … risk, or increases the threat that he faces. The Tribunal does not consider that these articles have any material impact on the level of threat faced by [CT]”.36

(d)It is not clear what the proposed question or issue is in circumstances in which the Tribunal’s conclusion was available on the evidence.

[24]   In summary, neither of the proposed arguments meets the statutory test. Nor does either come close to doing so.

Orders

[25]Permission for an appeal and judicial review is declined.

32     CT (Pakistan), above n 1, at [90].

33 At [91].

34 At [94].

35     At [109]–[112].

36 At [94].

Costs

[26]Unless he is legally aided, CT must pay the Crown 2B costs.

……………………………..

Downs J