DG (Bangladesh) v Refugee Protection Officer
[2020] NZHC 1528
•1 July 2020
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF THEIR CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
SEE
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2020-404-000320
[2020] NZHC 1528
UNDER The Immigration Act 2009, s 245, The 1951 Convention Relating to the Status of Refugees, and its 1967 Protocol and the International Covenant on Civil and Political Rights and the Convention Against Torture BETWEEN
DG (BANGLADESH)
Applicant
AND
THE REFUGEE PROTECTION OFFICER
Respondent
continued overleaf…
Hearing: 5 June 2020 Appearances:
R S Pidgeon for the Applicants E A M Mok for the Respondent
Judgment:
1 July 2020
JUDGMENT OF GWYN J
This judgment was delivered by me on 1 July 2020 at 2.30pm
Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
DG (BANGLADESH) v THE REFUGEE PROTECTION OFFICER [2020] NZHC 1528 [1 July 2020]
continued from previous page…
CIV 2020-404-000285 UNDER
The Immigration Act 2009, s 245, The 1951 Convention Relating to the Status of Refugees, and its 1967 Protocol and the International Covenant on Civil and
Political Rights and the Convention Against Torture
BETWEEN
DG (BANGLADESH)
Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
AND
THE REFUGEE PROTECTION OFFICER
Second Respondent
Introduction
[1] DG (Bangladesh)1 seeks leave, pursuant to s 245 and s 249 of the Immigration Act 2009 (Act), to appeal and to review a decision of the Immigration and Protection Tribunal (Tribunal) declining to grant the father or the child of this family either refugee status within the meaning of the United Nations Convention Relating to the Status of Refugees (Refugee Convention) or protected person status within the meaning of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), the International Covenant on Civil and Political Rights (ICCPR), and/or the United Nations Convention on the Rights of the Child (UNCROC).
[2] The Tribunal took no part in the hearing before me and has indicated its intention to abide by the Court’s decision. The Refugee and Protection Officer (RPO) opposes the applications.
[3] For reasons which I set out below leave to appeal is granted and the application for leave to review is dismissed.
Background facts
[4] Mr and Mrs DG (who I shall refer to as the husband and the wife) and their now seven year old son (the child), arrived in New Zealand from Bangladesh in 2015 and have lived in a North Island city since then. In December 2017 the wife decided to become a Christian, and in May 2018 she was baptised at a church in that city. She is now a committed Christian. The claim to refugee status and protection status at issue in this application was advanced on the basis that the wife’s conversion to Christianity put the applicants at risk of being seriously harmed in Bangladesh.
[5] The RPO who heard the claim at first instance declined the application for refugee status for all three of the husband, wife and child. Protected person status was also declined. An appeal to the Tribunal was lodged on 25 September 2018.
1 The applicants’ names are confidential under s 151 of the Immigration Act 2009 and, pursuant to a Minute of Palmer J, dated 19 March 2020, their names are anonymised in these proceedings as “DG (Bangladesh)”, consistent with the decision in the Immigration and Protection Tribunal.
[6] That appeal was the second time that the appellants had appealed against the decline of a claim to refugee status and/or protection in New Zealand. Their first claims were based on the husband’s political activities in Bangladesh. In a decision dated 16 May 2017, the Tribunal determined that that claim was not credible.2
[7] Subsequent humanitarian appeals, based on the child’s medical condition, were declined by the Tribunal.3 An application for leave to appeal that decision to the High Court was declined by the High Court4 and a subsequent appeal was declined by the Court of Appeal.5
[8]The husband and wife have had asylum seeker work visas throughout.
The Tribunal decision from which leave to appeal/review is sought
[9] In the second appeal, the Tribunal found that the wife is a refugee within the meaning of art 1A(2) of the Refugee Convention and her refugee status is recognised.6 The Tribunal found that the husband and the child are not refugees within the meaning of art 1A(2) of the Refugee Convention. It also concluded that the husband and the child are not protected persons within the meaning of the Convention Against Torture and/or the ICCPR.
[10] The Tribunal defined the essential issues before it as “whether the new claim is credible and secondly, if so, whether, the wife’s conversion to Christianity puts the appellants at risk of being seriously harmed in Bangladesh.7
[11]The Tribunal found the following facts:
[78] The husband and wife are a married couple in their early thirties from Dhaka, Bangladesh. They were both raised as Muslims. Their son is seven and has severe autism and seizure disorder. The Tribunal finds that the wife has converted to Christianity in New Zealand and has been baptised. She is deeply involved with the Christian faith and she has attributed improvements
2 BO (Bangladesh) [2017] NZIPT 801041–43.
3 BR (Bangladesh) [2017] NZIPT 502795–96.
4 BR (Bangladesh) v Chief Executive of the Ministry of Business, Innovation and Employment
[2018] NZHC 234.
5 BR (Bangladesh) v Chief Executive of the Ministry of Business, Innovation and Employment
[2018] NZCA 267.
6 DG (Bangladesh) [2020] NZIPT 801646–648.
7 At [4].
in her son’s health to this involvement. It is accepted that the fact of her conversion has been disclosed to family in Bangladesh, and it has not been welcomed by her mother. It is also accepted that her conversion is likely to be unwelcome to the husband’s family who, like her mother, are devout Muslims. It is on this basis that the appellants’ second appeal is to be assessed.
[12] Relevant for the purposes of this application, the RPO had “accepted as credible that [the child] suffers from medically intractable seizures and epileptic spasms” and “has severe autism and marked developmental delay.”
[13] The Tribunal went on to consider country information concerning the treatment of Christians in Bangladesh and, in particular, the treatment of Muslim converts to Christianity (apostates).8 The Tribunal noted “as a known apostate [the wife] faces some risk of reprisal, not only in terms of the ostracism and shunning she may face from those that disapprove, but also in the form of a physical attack such as that inflicted on the Christian convert in the [news] article referred to above.”9 And further “her profile as a known apostate is likely to be augmented by her son’s severe autism which makes her identifiable. Her determined view that Christianity has helped her son’s development may also be a provocative factor.”10
[14] Having regard to the country information as well as the evidence about the reaction of the wife’s family to her conversion the Tribunal determined that the wife’s risk if she were to return to Bangladesh now is not so remote as to be purely speculative.11 The Tribunal found that there is a real chance of her being the victim of an attack, which would amount to serious harm, should she return to Bangladesh and attempt to practise Christianity. The Tribunal also found that state protection is not available to the wife and that she is at risk of a sustained or systemic violation of internationally recognised human rights demonstrative of a failure of state protection, and that, objectively, there is a real chance of her being persecuted if she returned to Bangladesh.12 The Tribunal also found that that situation arose because of the wife’s religion and is accordingly for reason of a Convention ground.13
8 At [85]–[93].
9 At [96].
10 At [98].
11 At [100].
12 At [101]–[102].
13 At [103].
[15] In relation to the husband’s and child’s applications the Tribunal found that they are not apostates. It found that there was no evidence before the Tribunal establishing that the child would face a risk of serious harm in Bangladesh for a Convention reason should he be returned there.14 In relation to the husband, the Tribunal found that he may be ostracised by his family on return to Bangladesh should they be aware of the wife’s conversion but that there was no evidence that they would seek to harm him beyond this:15
While the wife has been found to be at risk of being subjected to serious harm on account of her conversion, this is on the basis of her specific profile. The risk to the husband, who continues to be a Muslim, is sufficiently remote as to be merely speculative. The Tribunal finds the husband does not face a real chance of being persecuted if returned to Bangladesh.
[16] The Tribunal went on to consider whether the husband and son should be granted protected person status. It noted that they relied on the same evidence under this aspect of their claim as for their refugee appeals. For the reasons given in relation to those appeals, the Tribunal found that there are no substantial grounds for believing either of them is in danger of being tortured if returned to Bangladesh and accordingly concluded that they are not protected persons within the meaning of the Convention against Torture.16 It also concluded that “just as the husband and the son do not face a real chance of cruel, inhuman or degrading treatment, or of arbitrary deprivation of life, as a form “being persecuted” in the context of the refugee enquiry, neither are they in danger of it in the context of the ICCPR.”17 Accordingly, the husband and the child are not protected persons within the meaning of the ICCPR.18
[17] The father and the child now seek leave to appeal or review that decision of the Tribunal. The wife is the responsible adult for the child in terms of ss 375 and 376 of the Act.
14 At [104].
15 At [105].
16 At [111].
17 At [114].
18 At [115].
Law
[18] Section 3(1) of the Act provides that “the purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”. Section 3(2) outlines the immigration system established by the Act to achieve this purpose. In particular it states the system:
(d)provides a process for implementing specified immigration-related international obligations; and
(e)includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—
(i)enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and
(ii)prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and
(f)establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals; and
(g)supports the settlement of migrants, refugees, and protected persons…
Refugee and protection status determinations
[19] Part 5 of the Act governs refugee and protected status determinations. Section 124 states its purpose as:
… to provide a statutory basis for the system by which New Zealand—
(a)determines to whom it has obligations under the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees; and
(b)codifies certain obligations, and determines to whom it has these obligations, under—
(i)the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:
(ii)the International Covenant on Civil and Political Rights.
[20] Section 127 provides that every claim under this part of the Act must be determined by an RPO who must act:19
(a)in accordance with [the] Act; and
(b)to the extent that a matter relating to a refugee or a person claiming recognition as a refugee is not dealt with in [the] Act, in a way that is consistent with New Zealand’s obligations under the Refugee Convention [which is set out in, and incorporated into, sch 1 of the Act]
[21]Sections 129–131 provide that a person “must be”:
(a)recognised as a refugee if he or she is a refugee within the meaning of art 1 of the Refugee Convention and its 1967 Protocol (in sch 1), which is any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country”;
(b)recognised as a protected person under the Convention Against Torture “if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand”; and
(c)recognised as a protected person under the ICCPR “if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand”.
Appeals and Reviews
[22] Part 7 of the Act governs appeals and reviews. In s 184, its purpose is stated to be:
19 Immigration Act 2009, s 127(2).
(a)to provide comprehensively for the system of appeal and review in respect of decision making under this Act, including by providing for—
. . .
(iii)appeals in respect of decisions concerning recognition of a person as a refugee or a protected person; and
(iv)appeals against liability for deportation; and
(b)to establish the Immigration and Protection Tribunal, a specialist tribunal to determine appeals and other matters under this Act; and
(c)to provide for appeals from the decisions of the Tribunal, and deal with judicial reviews of decisions made under this Act.
[23] Section 194 provides for appeals of RPO decisions on refugee or protected person status to the Tribunal, a specialist body. The Tribunal’s proceedings may be inquisitorial or adversarial.20 The Tribunal finds facts, applies the law and makes determinations.21
[24] A person cannot be served with a deportation order until after their application for leave to appeal a determination or decision has been resolved.22
[25] I also note that a person who can appeal a decision on refugee or protected person status may also be able to make a “humanitarian appeal” to the Tribunal against liability for deportation on humanitarian grounds under s 206. Humanitarian appeals must be filed alongside other refugee or protected person status appeals.23 The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that:24
(a)there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b)it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
20 Section 218(2).
21 Section 218(1).
22 Section 175(a)(2).
23 Sections 194(6) and 206(3)(a).
24 Section 207(1).
Appeals on questions of law by leave
[26] Section 245(1) of the Act allows for appeal to the High Court from a decision of the Tribunal on a question of law by leave. The first limb of s 245(3) sets out a mandatory relevant consideration for the Court in considering whether to grant leave but the second limb is an open-ended alternative consideration that there simply be a reason for appeal:
… the court … 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.
[27] As the Court of Appeal has recognised, the test for leave here is similar to that applying to second appeals to that Court under s 67 of the Judicature Act 1908.25 That approach to leave to appeal on questions of law is well established and informs interpretation of the phrase “any other reason”. There has to be raised “some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal”.26 Not every alleged error of law will satisfy either test.27
[28] In RM v Immigration and Protection Tribunal Palmer J acknowledged that the introduction of the leave provision indicates Parliament’s intent to limit appeals in immigration decisions.28 He went on to say:29
[35] … But I consider the “any other reason” limb preserves judicial flexibility in the considerations relevant to granting leave. The subsection sets out what a court must have regard to; it does not purport to set out the test a court must apply. As Asher J recognised in Allada v Immigration and Protection Tribunal New Zealand, in relation to the equivalent clause in s 249(6), it is conceivable in rare circumstances that a Court could grant leave even if the factors to which regard must be had were not made out. Indeed, the Ministry of Justice’s advice to the Attorney-General that the wording of the s 239(6) clause was consistent with the Bill of Rights was based
25 Minister of Immigration v Jooste [2014] NZCA 23 at [5]; and Guo v Minister of Immigration [2014] NZCA 513 at [11]. The Court of Appeal’s decision in Guo was overturned on appeal in Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 but without reference to the Court’s application of the leave test.
26 Waller v Hider [1998] 1 NZLR 412 (CA) at 413; applied in an Immigration Act context by Woodhouse J in Tong v Chief Executive of the Department of Labour [2011] NZHC 1433 at [10].
27 Waller v Hider, above n 26, at 413.
28 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [35]; citing Taafi v Minister of Immigration [2011] NZHC 1768, [2013] NZAR 1037 at [18].
29 (Footnotes omitted).
on it noting that “the courts have a wide discretion to grant leave for judicial review where it is a matter of ‘general or public importance or any other reason”.
[36] Parliament’s use of this phrase indicates that it intended to allow judges to use their discretion when encountering situations it could not envisage. The essence of that is allowing judges to make decisions in the interests of justice, especially in a field in which human rights may be at stake. I consider further assistance is available from the criteria which guide the Supreme Court in considering applications for leave to appeal. Section 13 of the Supreme Court 2003 provides that Court must be satisfied an appeal is “necessary in the interests of justice”. That phrase is defined (non- exhaustively) to include several situations including, relevantly, an appeal involving a matter of general or public importance or a substantial miscarriage of justice.
[29] Palmer J rejected the narrow interpretations of s 245(3) taken in LMN, which held that the s 245 jurisdiction permits the Tribunal to make errors of law on the face of the record, providing such errors have no effect beyond the appellants,30 and Taafi, in which the Court considered “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.”31 I respectfully agree and adopt Palmer J’s approach.
Judicial Review by leave
[30] In addition to restricting appeals, the Act also restricts the availability of judicial review. Section 249 provides:
249 Restriction 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.
(3)Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
30 At [37]; citing LMN v Immigration and Protection Tribunal New Zealand [2013] NZHC 2077 at [34].
31 Taafi v Minister of Immigration, above n 28, at [19].
(4)An application to the High Court for leave to bring review proceedings must be made—
(a)not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or
(b)within such further time as the High Court may allow on application made before the expiry of that 28-day period.
(5)A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.
(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.
(7)A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
(8)Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[31] The High Court has recognised that s 249 reflects a deliberate intention by Parliament to restrict the availability of judicial review, as indicated by its title.32 The Court of Appeal has, briefly, expressed a similar view.33 In H v Refugee and Protection Officer the Supreme Court found that s 249 is a privative clause, given in practice it operates to preclude judicial review of an RPO’s decision (because the reviewing court will focus on the Tribunal’s decision).34
32 See Liu v Immigration New Zealand [2014] NZHC 195 at [16]–[23]; and SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5].
33 SK v The Immigration and Protection Tribunal [2015] NZCA 26, [2015] NZAR 335 at [13]; and
K v Immigration and Protection Tribunal [2014] NZCA 585 at [2].
34 H v Refugee and Protection Officer [2019] NZSC 13 at [62]. This warrants a cautious approach and “anxious consideration” of the section’s interpretation and application, consistent with Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] NZLR
153. H involved an appellant seeking to commence judicial review proceedings challenging the decision of an RPO who had declined to recognise him as a refugee without interviewing him (after refusing to accept a medical certificate provided in picture format with accompanying doctor’s notes giving reasons why H could not attend the scheduled meeting, because it was not
[32] The statutorily mandated considerations relevant to leave under s 245(3) and 249(6)(b) are worded similarly and I interpret them similarly, as outlined above in relation to s 245(3). As Palmer J held in RM, there are constitutional and New Zealand Bill of Rights Act considerations relevant to applications for judicial review that do not impact on applications for leave to appeal in the same way.35 As his Honour summarised in a later decision:36
The New Zealand Bill of Rights Act 1990, which applies to decisions by the judiciary, preserves the right to apply for judicial review subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Where ss 249(1) and (2) are satisfied and a court considers a ground of review is potentially arguable, ss 6 and 27(2) of the Bill of Rights militate in favour of granting leave to bring judicial review proceedings. This can make a difference in marginal cases.”
I agree with and adopt that analysis and conclusion.
Do the grounds of appeal and the grounds of review raise issues of general or public importance?
Submissions for the applicant
[33] The applications as framed put forward a number of grounds of appeal and review. At the hearing, Mr Pidgeon for the applicants advanced the applications on one ground only: that the Tribunal failed to take into account all relevant considerations; and particularly relevant international conventions.
[34] Mr Pidgeon’s submission is that the Tribunal should have had regard to the relevant international conventions but did not. He relies on arts 3, 5, 9 and 18 of the UNCROC and notes that two clear threads run through these provisions. First, promotion of the “best interests” of the child (arts 3(1), 9(2) and 18(1)). Second, respect for the integrity of the child’s family unit (arts 5, 9 and 18).
[35]He cites Jason Pobjoy in relation to article 3 of the UNCROC:37
in the prescribed form). In such a case, the Court found, s 249 did not preclude judicial review of an RPO’s decision.
35 RM v Immigration and Protection Tribunal, above n 28, at [42].
36 AI Somalia v Immigration Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [35] (footnotes omitted).
37 Jason M Pobjoy “The Best Interests of the Child Principle as an independent Source of International Protection” (2015) 64(2) ICLQ 327 at 330.
The express language of the provision, which captures all actions concerning children, makes clear that the best interests principle is engaged not only where a decision directly affects a child, for example where a child independently claims international protection, but also when a child is indirectly affected by a decision, for example where a child’s parent is at risk of being removed.
[36] Counsel also refers to a discussion paper from the 2011 World Conference of the International Association of Refugee Law Judges in support of the proposition that the art 3 UNCROC requirements have virtually reached the stage of jus cogens (also known as peremptory norms, which are fundamental and universally accepted principles of international law).38
[37] Mr Pidgeon also relies on art 23(1) of the ICCPR which provides that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” He refers also to the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating the Status of Refugees (the Handbook). The Handbook outlines the principle of family unity at chapter VI:
181.Beginning with the Universal Declaration of Human Rights, which states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” most international instruments dealing with human rights contain similar provisions for the protection of the unit of a family.”
182.The Final Act of the Conference that adopted the 1951 Convention: “Recommends Governments to take the necessary measures for the protection of the refugee’s family, especially with a view to: (1) Ensuring that the unity of the refugee’s family is maintained particularly in the cases where the head of the family has fulfilled the necessary conditions for admission to a particular country.”
…
183.The 1951 Convention does not incorporate the principle of family unity in the definition of the term refugee. The above-mentioned Recommendation in the Final Act of Conference is, however, observed by the majority of States, whether or not parties to the 1951 Convention or to the 1967 Protocol.
184.If the head of the family meets the criteria of the definition, his dependants are normally granted refugee status according to the principle of family unity. It is obvious, however, that formal refugee
38 Rebecca MM Wallace “The best interests of children seeking refugee protection and their right to be heard” (workshop discussion paper presented to World Conference of the International Association of Refugee Law Judges, Bled, Slovenia, 2011) at 25.
status should not be granted to a dependant if this is incompatible with his personal legal status. ….
185.As to which family members may be benefit from the principle of family unity, the minimum requirement is the inclusion of the spouse and minor children. …
[38] Mr Pidgeon notes that while the Handbook is not a mandatory consideration for New Zealand refugee status determinations it is nevertheless very influential and an accepted model worldwide.39
[39] In further support of his argument that the Tribunal should have had regard to the relevant international Conventions Mr Pidgeon cites the Supreme Court’s comments in Helu that ‘protecting the family’: 40
… is an abstract concept, if unrelated to the particular family. The societal benefit of protecting family unity will vary depending on the circumstances of the particular family. For example, the societal interest in protecting family unity will be greater where there are young children or disabled persons in the family needing special care.
[40] In his written submissions, Mr Pidgeon cited a 2015 seminar paper by Martin Treadwell, Deputy Chairman of the Tribunal:41
As a rule of procedure: Whenever a decision is to be made that will affect a child, the decision-making process must include any evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. It requires procedural guarantees and the decision must show that the right has been explicitly taken into account explaining how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations.
Mr Treadwell expressly referred to articles 23 and 17 of the ICCPR.42
[41] While Mr Pidgeon acknowledges that the international conventions were not strongly emphasised at the hearing before the Tribunal he says they were implicit in the content, where there were three separate but related claims from the members of a
39 Referring to Keith J’s discussion of the Handbook and its “recognised role” in Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) at [28]–[30].
40 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [210] (footnotes omitted).
41 Martin Treadwell “Making Good Use of Useful International Conventions” (ADLS seminar, Immigration Series, Auckland, September 2015) at [35](c).
42 At [28].
family group, comprising the two parents and their child. He points also to the Tribunal’s inquisitorial powers, which mean the Tribunal was not solely dependent on the applicants raising the relevance of the conventions.
[42] Mr Pidgeon argues that the principles of family unity and children’s best interests in the refugee context are mandatory considerations. As to application of these principles, he says that there is no evidence in the Tribunal’s decision that they were considered at all, noting the two brief paragraphs of the decision that consider the position of the husband and the child.43 This, he says, is contrary to the view of the Supreme Court in Ye v Minister of Immigration 44:
[25] It is appropriate, in the light of New Zealand’s obligations under art 3 (1), to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes. The words “a primary consideration” in art 3(1) do not denote how this consideration ranks against any other relevant considerations such as public interest. The child’s interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any other applicatory statutory test.
[43] Mr Pidgeon said the Tribunal was required to give meaningful consideration to what might be in the child’s best interests. In particular, on the facts of this case, it was required to have regard to the principle of family unity as it applied to a vulnerable seven year old child with severe autism and seizure disorder, who is non-verbal and has a very close attachment to his mother.45 The father himself has health issues, which the Tribunal’s judgment acknowledged as “problems with his memory that may relate to the condition of intention tremor with which he has recently been diagnosed.”46
Submissions for the RPO
[44] Ms Mok, counsel for the RPO in response, emphasised that refugee status is a distinct type of status which is accompanied by its own specific rights. The focus in a claim to refugee status must necessarily be on whether the applicant has established a
43 DG (Bangladesh), above n 6, at [104]–[105].
44 Ye v Minister of Immigration [2009] NZSC 76, [2010] NZLR 104 (SC).
45 BR (Bangladesh) v Chief Executive of the Ministry of Business, Innovation and Employment, above n 5, at [1].
46 DG (Bangladesh), above n 6, at [33].
well-founded fear upon return to their country of origin on the basis of a Convention reason. That means that the Tribunal was required to examine the specific circumstances of each applicant to determine whether they should be recognised as a refugee and/or protected person. There was no evidence before the Tribunal to indicate that the husband or child would face a risk of persecution if returned to Bangladesh for a reason in the Convention.
[45] Counsel submits that the onus was on the applicants to establish their claims and that their circumstances differed from the wife’s circumstances, given that they had not likewise converted to Christianity. They were obliged to provide the evidence that their particular circumstances meant that they also faced a real risk of persecution for Convention reasons.
[46] She notes that being a family member of someone who is a recognised refugee will not, in and of itself, qualify someone as a refugee themselves. In the present case the applicants did not identify that they were at a risk of persecution arising out of their familial status (their relationship to the wife or, in the child’s case, to his status as a disabled child).
[47] However, she acknowledged that obligations in international conventions may be relevant to an assessment of an applicant’s refugee claim – for example, in assessing the particular nature or extent of any risk the person faces. But here the applicant did not provide evidence to establish that factors such as the protection of the family unit, the child’s status as a child, or his medical conditions meant that either of the applicants would face a real risk of persecution upon return to Bangladesh for a Convention reason. There was no evidence before the Tribunal to suggest that the wife’s Christianity would be imputed to either of the applicants or that they were at risk due to their familial links to the wife.
[48] Addressing the Handbook, counsel says that it is a form of guidance only and neither the Convention itself nor the Handbook incorporates the principle of family unity into the definition of “refugee”.
[49] Ms Mok submits that New Zealand is able to meet its obligations to ensure the protection of the family unit through other processes, outside the determination of refugee status. Although the applicants have not been afforded refugee or protected person status, that does not mean the family will, of necessity, be separated. The Tribunal’s determination that the applicants were not refugees or protected persons does not equate to a decision that they must return to Bangladesh.
[50] Ms Mok also says that Helu and Ye are distinguishable.47 Those cases were deportation/removal cases, where there was a live prospect of separation of the applicants from their family. The principle of family unity was directly relevant to the balancing exercise required to be undertaken as part of the applicable statutory test. In this case, in contrast, the applicants are not liable for deportation, being currently lawfully in New Zealand and not having had the opportunity to explore alternative avenues to regularise their immigration status.48
[51]Finally, Ms Mok notes that if the application has little or no prospect of success
– as in her submission, is the case here – it follows that the issues are of limited general or public importance which points against granting leave.49
Analysis
[52] The Tribunal’s assessment of the case for the husband and child is brief. The Tribunal found that:50
[104] The husband and son are not apostates. There is no evidence before the Tribunal establishing that the son would face a risk of serious harm in Bangladesh for a Convention reason should he be returned there.
[105] The husband may be ostracised by his family on return to Bangladesh should they be aware of his wife’s conversion. There is no evidence indicating that they would seek to harm him beyond this. As noted earlier, the email text from his uncle, if genuine, does not establish anything more than considerable offence on the part of the uncle. Country information indicates that attacks on apostates occur but they are infrequent. While the wife has been found to be a risk of being subjected to serious
47 Helu v Immigration Protection Tribunal, above n 40; and Ye v Minister of Immigration, above n 44.
48 All three family members are holders of temporary visas which are current until 25 September 2020.
49 Allada v Immigration Protection Tribunal [2014] NZHC 953, [2014] NZAR 80 at [36].
50 DG (Bangladesh), above n x, at [104]–[105].
harm on account of her conversion, this is on the basis of her specific profile. The risk to the husband, who continues to be a Muslim, is sufficiently remote as to be merely speculative. The Tribunal finds that the husband does not face a real chance of being persecuted if returned to Bangladesh.
[53] There is no further discussion or analysis of the husband and child’s claims, before the conclusion that the husband and child are not refugees51 and, because they rely on the same evidence as in the refugee appeals, nor are they protected persons within the terms of the Convention Against Torture or the ICCPR.52
[54]In EW (Sri Lanka) v Refugee Protection Officer Muir J observed:53
[The] starting point in respect of refugee appeals is that they involve claimants “at the highest end of vulnerability and potentially at risk of gross human rights violation”.54 In assessing whether to grant leave to appeal, this Court needs therefore to be vigilant to all reasonable arguments. It is in the broader public interest to ensure that the statutory provisions relating to claims for refugee status are interpreted and applied appropriately and with the principle of non-refoulement in mind.
[55] Bearing that approach in mind, my concern in relation to the Tribunal’s decision is that it has applied too narrow a focus. As Elias CJ said in Helu:55
[1] Conscientious decision-makers commonly seek to organise their exercise of statutory powers of decision according to sequences, tests, and balances which they take from close analysis of the statutory text and scheme. Such methodology allows them to demonstrate fidelity to the legislative purpose and promotes consistency and better justification of conclusions. Care is needed however, to ensure both that the methodology is consistent with the terms of the statute and that it avoids over-refinement through such elaboration, especially when contextual value-judgment is inescapable. The risk then is not only that the methodology may mask the ultimate value- judgment required with a show of objective rationality, but that it may itself compel outcomes which would not be accepted if the choice for the decision- maker was recognised to be constrained only by the need to reach the decision he or she believes to be right after taking into account all considerations contextually relevant. I think the present appeal illustrates the trap.
[56] That statement has some bearing in this case, where the Tribunal has focused, as Ms Mok says it was obliged to, only on the specific, individual circumstances of each applicant and whether the specific evidence offered by each of them was adequate
51 At [107].
52 At [111] and [115].
53 EW (Sri Lanka) v Refugee Protection Officer [2018] NZHC 2130 at [35].
54 BZ (Sri Lanka) v Immigration and Protection Tribunal of Auckland [2015] NZHC 2883 at [52].
55 Helu v Immigration Protection Tribunal, above n 40, at [1].
to show that they, in addition to the wife, also faced an independent and real risk of persecution for Convention reasons.
[57] The Tribunal’s apparently narrow focus on the specific evidence in relation to each applicant meant that it risked not seeing the wood for the trees. It does not appear to have stepped back from its step by step process, focusing on the specific evidence before it – or the absence of specific evidence – to make the “contextual value judgement” Elias CJ referred to and which in my view is necessary on the facts of this case. The context here is a child who is dependent on his mother and particularly vulnerable by reason of both his age and his medical condition; a husband who has himself some health issues and who, I infer, may to some extent be held “responsible” for his wife’s conversion. In addition, the Tribunal noted that the wife’s profile as a known apostate was likely to be amplified by her son’s severe autism which makes her identifiable, but it does not appear to have considered the converse proposition, that is that the combination of the wife’s apostasy and the child’s severe autism may put all members of the family at risk.56 In RM Palmer J said:57
I consider it possible to envisage circumstances in which children of a persecuted faith, race or other characteristic might themselves create the preconditions of persecution of parents who do not share that characteristic. Or some circumstances may legitimately lead parents to fear cruel treatment of their children if they would be returned to another country. For example a child may face female genital mutilation if returned whereas the parents might not.
[58] In this case the claim of the child and the husband is largely derivative from the mother’s status as someone who has been found to have a well-founded fear of persecution based on her conversion to Christianity.
[59] I am satisfied that there is a bona fide and serious argument that the Tribunal ought to have had regard to those provisions of the UNCROC and the ICCPR on which the applicants rely.
56 DG (Bangladesh), above n 6, at [98].
57 RM v Immigration Protection Tribunal above, n 28, at [70].
[60] Having come to that conclusion, I must then consider whether the arguable error of law raises issues of sufficient general or public importance for it to be submitted to the High Court.
[61] I conclude that it does. I accept Mr Pidgeon’s submission that there is public interest and general importance in clarifying how decision makers in the refugee context apply relevant international conventions as they relate to the interests of the child and the principle of family unity.
[62] In my view it is appropriate that this Court clarify or correct any errors in approach which may have implications for other potential applicants for refugee and protected person status.
[63]Accordingly, I allow the application for leave to appeal.
[64]The High Court has observed:58
In practice if the issue could adequately be dealt with in an appeal, leave to bring judicial review proceedings are unlikely to be granted.
[65] There will of course be cases where the issue or issues identified in an application are appropriately resolved through judicial review rather than appeal, or where the flexibility of relief options available under the Judicial Review Procedure Act 2016 might be of assistance. I do not consider this one of those cases.
Result
[66] I allow the application for leave to appeal the Tribunal’s decision under s 245 of the Act on the question of whether the Tribunal erred in law in failing to have regard to the applicable international conventions.
[67] I decline the application under s 249 of the Act on the basis that whether the Tribunal made an error of law is clearly an issue capable of determination on appeal.
58 Allada v Immigration and Protection Tribunal, above n 49, at [36].
[68] I direct that the applicant’s notice of appeal be filed within ten working days of delivery of this judgment. If for any practical reason that is not possible an application, supported by submissions, can be made to vary that timeframe.
Costs
[69]The applicant is legally aided and no order as to costs is sought.
Gwyn J
Solicitors/Counsel:
R S Pidgeon, Barrister, Auckland Meredith Connell, Auckland Crown Law, Wellington
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