DO v Immigration and Protection Tribunal
[2016] NZHC 3158
•20 December 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-0001633 [2016] NZHC 3158
BETWEEN DO
Appellant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
REFUGEE PROTECTION OFFICER Second Respondent
CIV-2016-404-001634
BETWEEN DO Appellant
ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
REFUGEE PROTECTION OFFICER Second Respondent
Hearing: 10 November 2016 Appearances:
Peter Andrew for the Appellant
Briar Charmley and Maria Clark for the RespondentsJudgment:
20 December 2016
JUDGMENT OF MOORE J
This judgment was delivered by me on 20 December 2016 at 11:30 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
DO v THE IMMIGRATION AND PROTECTION TRIBUNAL [2016] NZHC 3158 [20 December 2016]
Contents
Paragraph
Number
Introduction ..............................................................................................................[1] These proceedings in summary ...............................................................................[6] Background.............................................................................................................[10] IPT’s decision..........................................................................................................[26] Credibility findings in favour of DO [28] Credibility findings against DO [29] Assessment of claim for refugee status [31] The applications before this Court .......................................................................[36] Leave principles......................................................................................................[37]
Do any of these grounds amount to a question of law capable of serious argument?
The alleged breach of natural justice [47] The alleged “backward” reasoning [67] The alleged “material mistake of fact” in concluding that the existence,
bona fides and evidence of Abdul Marsook had not been established [76]
Do the first or second grounds raise questions of law of such general or public importance that they ought to be submitted to the High Court for decision? ..................................................................................................................[81]
Should the first and second grounds be submitted for any other reason? ........[86] Would the issues on review be adequately dealt with in an appeal? .................[87] Application to adduce evidence.............................................................................[92] Result .......................................................................................................................[93]
Introduction
[1] The applicant, DO, is a Sri Lankan national of Tamil ethnicity and Muslim faith.1
[2] He seeks leave to appeal and judicially review a decision of the Immigration and Protection Tribunal (“the IPT”) which dismissed his appeal against a decision of the Refugee and Protection Officer (“the RPO”) declining him refugee status.2
[3] DO submits the IPT erred in law by rejecting crucial evidence from DO’s attorney in Sri Lanka in support of DO’s claim that he remains a person of adverse interest to forces loyal to former President Mahinda Rajapaska. More particularly, he claims that since leaving Sri Lanka the Police have issued warrants for his arrest on false money laundering charges. He claims this step is an act of retribution by Rajapaska’s supporters angered by a substantial financial donation he made to the opposition United National Party (“UNP”) prior to its success in the August 2015 elections.
[4] As proof that money laundering charges had been laid against him and active warrants for his arrest lay in the Magistrate’s Court in Colombo DO produced a letter of confirmation from a Sri Lankan attorney retained by his family.
[5] The IPT accepted as credible DO’s claim that by reason of his donation he and his family were subjected to threats and intimidation while living in Sri Lanka. However, the IPT determined there was no credible evidence that DO was a person of adverse interest to the Sri Lankan authorities and, as such, did not have a well founded fear of persecution and was thus not entitled to recognition as a refugee or protected person. In particular the IPT rejected the Sri Lankan attorney’s letter as being neither reliable nor credible. The principal ground for this rejection was the adverse credibility finding made in relation to certain other aspects of DO’s account
unconnected to the evidence from the Sri Lankan attorney.
1 The anonymisation of the applicant’s name was made by Woodhouse J as recorded in his Minute
of 12 August 2016.
2 DO (Sri Lanka) [2016] NZIPT 800856.
These proceedings in summary
[6] In these proceedings DO submits the IPT’s rejection of the letter was unlawful claiming it reasoned “backwards” from the adverse credibility finding without proper regard to the independent evidence obtained by counsel confirming the identity of the Sri Lankan attorney and the authenticity of his letter in support.
[7] The IPT rejected the Sri Lankan attorney’s letter as unreliable due to discrepancies in the email address. This finding was made despite DO’s then counsel, Ms Manning, explaining the discrepancy and recounting counsel’s discussions with the attorney which were confirmed in correspondence.
[8] Thus DO submits there is a seriously arguable case that the IPT’s rejection of the letter as not credible was plainly wrong and, in the context of DO’s claim, so grave as to constitute an error of law because it related directly to critical issues of whether DO would face a real risk of persecution should he be returned to Sri Lanka, a corrupt State with a long history of systemic human rights abuses.
[9] The RPO, the second respondent, opposes both applications submitting that the tests for leave are not satisfied. The RPO submits it was open to the IPT to give no weight to the Sri Lankan attorney’s evidence in circumstances where it considered there were objective deficiencies in DO’s core evidence. Furthermore, the second respondent submits the issues do not extend beyond DO’s case: they are not of general or public importance. This is not one of those rare species of cases where the Court simply could not countenance the decision standing.
Background
[10] DO is from Matale, Central Province, Sri Lanka. He is married and has two children. His wife and children remain in Sri Lanka.
[11] DO is from a relatively wealthy family. His late father and grandfather supported the opposition UNP. DO has owned and run a number of successful businesses in Sri Lanka and, from time to time, has worked for periods overseas.
[12] In May 2014 DO applied for a New Zealand Visitor Visa (Business) to attend a trade show. The visa was issued for six months. The IPT found the following facts were proved.
[13] In June 2014 DO made a significant one-off donation to the campaign of
Harin Fernando, a UNP candidate. DO then left Sri Lanka on business.
[14] While he was overseas, a number of unusual events occurred back in Sri Lanka which were of concern to him. For example, he was told by his father-in- law that two men had visited his home looking for him. DO returned to Sri Lanka on 13 October 2014. The pressures of his business commitments overseas had been such that he had insufficient time to attend the trade show in New Zealand.
[15] Following his return, the door bell of his home was rung at night on several separate occasions. Each time he opened the door two unidentified men rode away on a motor cycle. He also believed he was being followed on the street. As a consequence he relocated himself and his family to a relative’s house.
[16] Some months later the family returned home but the same conduct was repeated. At about the same time his younger son, when out walking with DO, was struck on the head by an object thrown from a passing vehicle. DO went to the Police and reported these incidents on 3 November 2014. DO’s wife, children and parents-in-law left the family home to stay with relatives.
[17] On the evening of 5 November 2014, two men wearing motor cycle helmets who said they were from the Ministry of Defence forced their way into the family home and threatened DO with a gun. They demanded money and instructed DO to stop supporting the UNP and change allegiance to Rajapaska. As a result of the events DO’s wife, children and parents-in-law left the house to stay with relatives.
[18] On 11 December 2014 DO’s father-in-law returned to check on the house. While he was there two men in civilian clothing arrived. They were looking for DO. According to DO they left a piece of paper with Singhalese writing on it. Because DO’s father-in-law cannot read Singhalese he did not know what the note contained.
[19] The following day DO left Sri Lanka and travelled to New Zealand using the business visa he already held.
[20] On arriving in New Zealand DO claimed refugee status on the basis that he was at risk of serious harm as a result of his political opinions and as a supporter of the UNP. On 10 April 2015 the RPO declined DO’s claim for refugee status.
[21] On 16 April 2015 DO lodged an appeal against the RPO’s decision with the
IPT.
[22] According to DO, in February 2016, in the context of preparing for his forthcoming appeal, he contacted his wife requesting further information about the situation in Sri Lanka. He claims it was at this time his wife informed him about the document which had been left with her father during the visit on 11 December 2014. DO’s wife obtained the document and read it. It stated that DO was wanted in relation to money laundering charges. It recorded that failure to report to the Police would result in a case being filed against him and a warrant issued for his arrest. This document, which together with its translation was produced in evidence, appears on its face to be an official Police document.
[23] As a consequence, the family arranged for a local Sri Lankan attorney to assist by attending on the Police to investigate the matter further and determine whether any case had actually been filed against DO and if there were any outstanding warrants. A letter dated 16 February 2016, addressed to “To whom it may concern”, was received from a person calling himself Abdul Marsook LLB, Attorney-at-Law and Notary Public. It is this letter and its provenance which lies at the centre of the present proceedings.
[24] The letter (“the Marsook letter”) states that Mr Marsook, on the instructions of DO’s father-in-law, visited the local Police station to investigate why Police officers visited DO’s home on 12 February 2016 in search of him and demanding his personal details. The letter states that the CID informed Mr Marsook that the Magistrate’s Court had issued an arrest warrant against DO. It goes on to say the CID had established a specific monitoring unit tasked with collecting information
about persons living abroad who had been involved in money laundering. The letter said that the CID refused to provide any further information in respect of DO’s case and Mr Marsook was thus unable to obtain any Court documents or copies of any warrants. However, he advised that if he was given the case reference number he would be able to obtain the necessary Court documents.
[25] Mr Marsook also advised that where an arrest warrant is issued against someone living abroad the CID issues a “stop list/travel ban” which would result in DO being arrested if he was to return to Sri Lanka.
IPT’s decision
[26] The IPT concluded that while DO’s account was partly credible he did not have a well founded fear of being persecuted if he returned to Sri Lanka. Accordingly the appeal was dismissed.
[27] In particular, the IPT rejected DO’s account that a warrant for his arrest on
false money laundering charges had been issued after he had left Sri Lanka.
Credibility findings in favour of DO
[28] As noted, the IPT did not flatly reject all of DO’s claims. Instead, it found some proved and others not. Significantly, the IPT determined that DO had satisfied it of the following material facts:
(a) he was a Tamil Muslim from a relatively wealthy family whose late father and grandfather had supported the UNP;
(b) in June 2014 he made a significant one-off donation to
Harin Fernando, of the UNP;
(c) subsequently, on a number of occasions DO’s door bell was rung with
the unknown callers running away;
(d) he reported the incidents to the Police;
(e) in October 2014 he attended a UNP political rally;
(f) in November 2014 his son was hit on the head by an object thrown by unidentified individuals while he and DO were out walking;
(g)on 5 November 2014, two men wearing motor cycle helmets and claiming they worked for the Ministry of Defence, forced their way into his home and threatened him with a gun. They demanded money and directed him to stop supporting the UNP and, instead, support Rajapaska; and
(h) he arrived in New Zealand on a business visa.
Credibility findings against DO
[29] However, despite these material credibility findings in favour of DO the IPT determined other aspects of his account were not capable of belief. These focused on his claim that false money laundering charges had been laid and a warrant for his arrest had been issued. The IPT rejected these claims for the following reasons:
(a) the first time DO said he learned of the money laundering charges was after the IPT’s pre-hearing conference on 11 February 2016, that is over a year after DO claimed two Ministry of Defence or Police personnel left the note with his father-in-law. The IPT considered it implausible that the father-in-law did not arrange for someone to read the document at any point before February 2016 in circumstances where, following DO fleeing to New Zealand, his wife, children and
parents-in-law had gone into hiding in Sri Lanka;3
(b)DO provided inconsistent evidence to the IPT as to who had informed him he was of interest to the Police;
3 The note is in Singhalese. DO said his father-in-law told him he did not bother to look at the note because he thought it related to the complaint DO had made to the Police.
(c) despite DO’s claim that a warrant had been issued for his arrest no further attempt had been made by the Sri Lankan authorities to inform DO, either directly or through his family, that a warrant had been issued. Further, when the IPT asked DO to comment on the implausibility of the fact that no attempts had been made by the authorities to contact him he was unable to provide an explanation;
(d)no weight was placed on the evidence and contents of the Marsook letter, confirming that active warrants for money laundering lay in Court in Sri Lanka. In rejecting this evidence the IPT relied in particular on a discrepancy between the email address recorded on Mr Marsook’s letterhead ([email protected]) and that which appeared on the Sri Lankan online lawyers’ directory ([email protected]). On this point the IPT observed:
“The Tribunal places no weight on this documentary evidence due to the aforementioned credibility concerns and the ease with which documentary evidence can be produced. Furthermore, the letter from the person purporting to be Abdul Marsook contains a letterhead with an email address which is different to that indicated in the directories of both the Bar Association of Sri Lanka and the Negomobo law directories as being the correct email address for this lawyer. The Tribunal provided counsel with an opportunity to comment on this material. Counsel contacted the lawyer on the email address on the letterhead who confirmed that the one contained in the law directories was a previous email address. He advised the law directories that he had changed his email address last year but they had not updated it. However, the Negomobo law directory states the webpage was updated on 31 October 2015, well before the letter of February 2016. There was no explanation provided as to why in that case his ‘correct’ email would not have been included in this update.”
[30] The IPT found that due to the “cumulative effect” of the concerns as outlined above it was not satisfied a warrant had been issued for DO’s arrest on false charges of money laundering as an act of revenge by Rajapaska supporters angered by DO’s financial support of the UNP. It determined there had been no adverse interest shown by the authorities in DO or his family following his departure from Sri Lanka in November 2014.
Assessment of claim for refugee status
[31] The IPT reviewed the country information noting that in the lead up to the August 2015 parliamentary elections there had been attacks on and several killings of UNP supporters. It noted there were attacks on both sides of the political spectrum.
[32] The IPT observed that despite changes in government, human rights violations had continued by Sri Lankan military and intelligence services since Rajapaksa had been replaced. The IPT also considered an Amnesty International report which referred to Muslims being harassed by the Police, the public and politicians in the lead up to the 2015 elections.
[33] However, despite these findings, the IPT determined there was no credible evidence that since his departure there had been any continued interest in DO. It also noted that since DO’s departure Rajapaska had been ousted from power.
[34] The IPT acknowledged that while Rajapaksa retained some political influence there was no evidence to conclude that wealthy Tamil businessmen, whether Muslim or not, were being targeted for making donations to political rivals by State or non-State persons loyal to Rajapaksa.
[35] This led the IPT to conclude that DO was not of any interest to those loyal to Rajapaksa or anyone else. It found there was no reason why DO should be recorded as a person of interest if he was to return to Sri Lanka. It thus determined he did not have a well founded fear of being persecuted in Sri Lanka and was therefore not entitled to recognition as a refugee.
The applications before this Court
[36] DO seeks leave to both appeal and judicially review the IPT’s decision on three grounds. He argues that in rejecting his evidence in relation to the Marsook letter and his Sri Lankan attorney the IPT made errors of law in that it:
(a) breached DO’s right to natural justice by adversely drawing conclusions regarding the existence and bona fides of Abdul Marsook without providing DO’s counsel with an opportunity to properly respond;
(b)wrongly disregarded the Marsook letter by reasoning backwards from the adverse credibility findings it had made in relation to DO rather than assessing the letter in the light of independent evidence obtained by counsel which confirmed Mr Marsook’s identity and the authenticity of his letter; and
(c) made a material mistake of fact by concluding that the existence, bona fides and evidence of Abdul Marsook had not been established, and that this mistake of fact was so grave that it amounts to an error of law.
Leave principles
[37] Leave to appeal a decision of the IPT is governed by s 245 of the Immigration 2009 Act (“the Act”) and leave to commence proceedings for judicial review governed by s 249 of the Act. In relation to applications to leave to appeal s 245(1) and (3) provide:
“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.
…
(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.”
[38] This Court has emphasised that the introduction of a leave requirement indicates a deliberate intention by Parliament to limit appeals and reviews to this Court.4
[39] Three questions are engaged when considering whether to grant leave to appeal. These are:
(a) Is there a question of law?
(b)If so, is the question of such general or public importance that it ought to be submitted to the High Court for decision?
(c) Is there any other reason why it should be so submitted?
[40] Palmer J has commented that in relation to the first question, although the strict wording of s 245(1) only requires that the appellant themselves be “dissatisfied” with the IPT’s determination “as being erroneous in point of law,” in practice a Court will not grant leave unless the alleged question of law is capable of
serious argument.5 This interpretation must be correct otherwise the Court would be
obliged to grant leave in cases where any question of law, however objectively hopeless, was advanced. Such an outcome simply would be inconsistent with Parliament’s plain intention to limit appeals in this area. I thus adopt this interpretation.
[41] It will always present a more challenging obstacle to demonstrate that there is a seriously arguable question of law where the challenge made is to a factual finding, such as that advanced by DO’s third proposed ground which I have summarised at [36](c). In these circumstances the applicant will be required to show a seriously
arguable case that the factual findings in question are actually incorrect and, taken
4 SK v Immigration Protection Tribunal [2014] NZHC 2693 at [5]; Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [6]; Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [52].
5 I adopted a similar interpretation in EG v Minister of Immigration [2016] NZHC 2071 which was upheld by the Court of Appeal in K v Minister of Immigration [2016] NZCA 569; see also Wu v Minister of Immigration [2016] NZHC 1309 at [15], footnote 4.
together and assessed in the context of the decision as a whole, are so grave as to constitute an error of law.6
[42] Only where it can be shown that there is a seriously arguable question of law will a Court proceed to consider the second and third questions. In the recent case of Machida v Chief Executive of Immigration New Zealand, the Court of Appeal commented that these questions effectively require a court to determine if the proposed question of law:7
(a) has importance extending beyond the particular case (which is what
“general or public importance” entails); or
(b) for some other reason warrants a decision from the High Court. [43] The Court observed at [8]:
“Although category (b) is open ended, we agree with the series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.”
[44] Under s 249, leave must also be obtained to judicially review a decision of the IPT. In relation to applications for leave to commence judicial review proceedings s 249(3) and (6) provide:
“249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
…
(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.
6 This is effectively a summarised version of the criteria put forward by Kós J in Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19] with which I fully agree. I note that these criteria have been endorsed in a number of cases and referred to as “well established”; see Guo v Immigration & Protection Tribunal [2014] NZHC 804; Cao v Immigration & Protection Tribunal [2014] NZHC 259; Teitiota v Chief Executive, Ministry of Business, Innovation and Employment [2013] NZHC 3125; Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162; C v Chief Executive [2014] NZHC 2655.
7 Machida v Chief Executive of Immigration New Zealand, above n 6.
…
(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.”
[45] Traditionally, the leave provisions for both leave to appeal and judicial review have been interpreted in the same manner.8 However, in RM v Immigration and Protection Tribunal, which was decided before the Court of Appeal delivered its decision in Machida, Palmer J, in recognising that ss 245(3) and 249(6) were similarly worded, suggested that determining whether to grant leave to judicially review a decision of the IPT could invoke wider constitutional or human rights considerations than when determining an application for leave to appeal.9 In the context of this case, however, this is not of critical importance.
[46] The remainder of this judgment will be devoted to answering the three questions I have referred to in [39] in relation to each of DO’s proposed grounds.
Do any of these grounds amount to a question of law capable of serious argument?
The alleged breach of natural justice
[47] The first ground raised by DO is a quintessential question of law; the only real issue is whether it is seriously arguable.
[48] In refugee cases higher standards of fairness and natural justice are engaged. This recognises the consequences of a tribunal or Court declining refugee or
protected person status. Not infrequently those consequences may involve threats to
8 Songmia v Minister of Immigration [2013] NZHC 3233; SK v Immigration and Protection
Tribunal, above n 4; Minister of Immigration v Jooste [2014] NZCA 23.
9 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [42] and [45].
health or life, personal safety and liberty. It was no doubt in recognition of these principles, at least in part, that Palmer J made the comments referred to above.
[49] I agree with the observations of Whata J in BZ (Sri Lanka) v Immigration and Protection Tribunal on this question.10 There his Honour, in examining whether the potential for substantive unfairness was such that general public interest considerations demanded intervention, noted that the starting point for this evaluation is the recognition refugee status claims involve claimants at the highest end of vulnerability and potential for risk of gross human rights violations. The
tolerance for procedural unfairness in such cases must be small.
[50] It is a fundamental requirement of natural justice that a party be given a reasonable opportunity to present his or her claim with full knowledge of the case which he or she has to meet.11 This is uncontroversial.
[51] These principles, particularly the requirement for the IPT to set a reasonable time within which an affected party may rebut or comment on information, is contained in s 230 of the Act which provides as follows:
“230 Tribunal must disclose prejudicial information
(1) Except as provided in subsection (3), the Tribunal must disclose to the appellant or affected person, and give the appellant or affected person an opportunity to rebut or comment on, information or material that—
(a) is provided to the Tribunal by a source other than the appellant or affected person; and
(b) is or may be prejudicial to the appellant or affected person; and
(c) the Tribunal intends to take into account in determining the appeal or matter.
(2) The Tribunal must set a reasonable time within which the appellant or affected person may rebut or comment on the information or material.
10 BZ (Sri Lanka) v Immigration and Protection Tribunal [2015] NZHC 2883.
11 Khalon v Attorney-General [1996] 1 NZLR 458 (HC); B v Immigration and Protection Tribunal [2014] NZART 415 (HC) (where this Court held that the Khalon principles applied equally to proceedings under the Immigration Act 2009).
(3) Subsection (1) does not require the Tribunal to disclose any information or material if—
(a) the disclosure would be likely to endanger the safety of any person; or
(b) it is classified information that the Tribunal must keep confidential and must not disclose under section 259.
(4) The Tribunal must, however, notify the appellant or affected person of the fact of any non-disclosure on the grounds specified in subsection (3).”
[52] Ms Charmley submits that s 230(1) of the Act is directed towards the provision of evidence contrary to the appellant’s own account by a person other than the appellant. She thus submits that the section is not engaged in the present case because here the IPT was concerned with the credibility of a document tendered by DO himself. She submits it is incumbent on an appellant to make his case and, in doing so, anticipate the concerns the IPT may have with his evidence, adding that a decision maker is not usually required to give a warning as to every possible adverse credibility finding.
[53] Despite this submission, Ms Charmley also responsibly concedes that even if s 230(1) is not engaged the general principles of natural justice nonetheless apply to the procedures and processes of the IPT. However, she submits that in the present instance the requirements of natural justice were clearly met because the IPT brought the discrepancy between the email addresses to the attention of DO’s counsel and sought an explanation and evidence on the issue. Having received a response from counsel the IPT maintained the view that the evidence lacked credibility by reason of the email address discrepancy and, in particular, rejected the application because the date when the online Negombo law directory was updated preceded the making of the Marsook letter.
[54] Mr Andrew, for DO, submits that although the IPT raised its concerns about the email address discrepancy, an examination of the notes of evidence reveals that counsel would have been left with the clear view that if the discrepancy was adequately explained the IPT’s reservations about the letter’s provenance and reliability would be extinguished. He further submits that when this explanation was
eventually provided, the IPT’s response, or rather lack thereof, provided no
indication that it was dissatisfied with this explanation.
[55] At the end of the first day’s evidence the IPT addressed Ms Manning for DO. It properly gave notice of its concerns about the differences in the email address and the effect this discrepancy had on the credibility of the Marsook letter. The exchange is recorded below:
“Q Okay, so we’ll stop now for today and reconvene tomorrow at 10am.
There was one thing I wanted to put to you before we did; this letter
here from Abdul Marsook … I’ve looked at his email address and it doesn’t seem to be the correct email address for this lawyer, so there’s a lawyer Abdul Marsook whose registered in the bar in Sri Lanka. Okay and so we have the same address but we have a different email, so that calls into question the credibility of this document because it didn’t.
…
A Have the 27 on it? Q Mmm.
A Yes because I’ve also got his bar entry.
Q Okay.
ASo I’ve actually just in the course of this hearing to date, emailed Mr Marsook so hopefully we’ll be able to have an answer for that tomorrow.
Q Okay.
AIt may be that he’s got – you know, there could be a number of reasons for that.
Q Okay, so you have the – I have the Sri Lanka –
A Bar Association of Sri Lanka? Q Yes.
A Yes.
Q The lawyers directory there –
A Yes I have that also.
Q- And then the Negombo Law Society, there’s also an entry there which the 27 also. I’ll provide you with a copy of that, so you don’t need the lawyers’ director, you’ve got that question mark?
A No I have that thank you.
…
QThe reference to – oh in a search of that email address, the only thing that came up in a Google search was the Sri Lankan Indonesian Association membership list but it just has “marsook” without the “a”, “@yahoo.com,” so no other references to that email came up on just a general search.
A… would I be correct in if we could get further confirmation from this lawyer confirming his email and why his letterhead has a difference to this address?
QYes, if we could get confirmation from that email address, so have you emailed that email address?
ANo, I have emailed the email address that the mail came – that the letter came in on.
Q Which is the one that was provided that says, subject line, ‘Lawyer’s
Letter?’
AThat’s right, yep so that’s the client received the letter on [email protected]. So I can send that letter to [email protected] and –
Q Sorry, it came in on amarsook@ –
A – yahoo.com. Q Yes.
A So
…
QSo if we could get confirmation from [email protected], that is the letter that was produced for this case, that would be what we are after.
A Yes and it may be – I’ll see what I can do this evening, it may be just
I need to seek leave of some days to get that sorted.”
[56] The IPT then addressed DO directly:
“The Chair
Now, I’ve just been talking with your lawyer about the letter from the lawyer that was provided in just about the email address, so we’re just going to do some checks which she’s going to follow up with the lawyer about that and just some other news articles which we’ll discuss tomorrow …”
[57] Following those comments an exchange was recorded between the IPT and
Ms Manning in relation to various aspects of country information.
[58] On its face this portion of the record does seem to lend a degree of support to Mr Andrew’s submission that counsel would have been left with the view that if the email discrepancy was adequately explained the IPT’s concerns about the authenticity of the letter would be met.
[59] The following morning Ms Manning advised the IPT that overnight she had managed to speak to Mr Marsook. She then emailed him using the [email protected] to confirm the conversation the parties had had. A copy of that email exchange dated 8 March 2016 (the second day of the hearing) was produced. Ms Manning’s email read:
“Dear Mr Marsook,
Further to my last email and our phone call just now, could you please confirm that this is your email address? This is because [email protected] is listed in the Negombo Law Society and Sri Lankan Law Society directories (attached) as your email address, yet you emailed my client, Mr Ashek Mohammed Farook on [email protected].
As we just discussed by phone, you have advised that the relevant Sri Lankan law directories or your new email address which you changed about a year ago, but the directories have not been updated. I’d be grateful if you would please confirm this by email.
Many thanks,
Deborah.”
[60] The reply, received the following morning approximately 10 hours later, is reproduced below:
“Deborah Manninh (sic). Thanks for your enquiry mail. Presently my email add is [email protected]
Previously I used [email protected] which listed in the directory long time before. I inform about the change but so far not updated. It will be updated very soon in the new edition of lawyers directory publication.
Best regards
Abdul Marsook Attorney-at-Law Sri Lanka”
[61] Armed with this information Ms Manning addressed the IPT. She confirmed Mr Marsook’s explanation for the difference in the email address. It would appear from those parts of the record which have been produced for the present proceedings there was no further exploration of the issue at the hearing by the IPT.
[62] On its face the record does tend to support Mr Andrew’s contention. There does not seem to be any indication from the IPT that it regarded Mr Marsook’s or Ms Manning’s explanation for the discrepancy as inadequate.
[63] Mr Andrew submits that in circumstances where the IPT continued to harbour misgivings or doubts about the reliability and/or the authenticity of the Marsook letter the IPT should have given counsel the opportunity to provide further information or evidence to establish the authenticity and bona fides of the letter and its author.
[64] For the purposes of the present application it is neither necessary nor appropriate for me to determine this issue. However, the Marsook letter assumed considerable significance in DO’s case in support of his claim he was the subject of corrupt practice on part of the Sri Lankan authorities and, more particularly, that this unwelcome interest endured and that in the event he returned to Sri Lanka he would be arrested on false money laundering charges.
[65] Ms Charmley submits that the IPT should not be required to register every reservation it may hold and/or provide counsel with the opportunity to marshal and present further evidence to meet the IPT’s concerns. That submission carries some force in my view. The important work of the IPT would be delayed or frustrated if such a requirement was imposed upon it.
[66] I thus share Ms Charmley’s concern about placing an impossible or unduly heavy procedural burden on the IPT. However, its obligations in this context will always involve considerations of fact and degree. Again, while it is not appropriate
for me to express a concluded view about the scope of these obligations, I am satisfied that Mr Andrew has raised a seriously arguable question of law that DO’s right to natural justice was breached in this case.
The alleged “backward” reasoning
[67] I am also satisfied that there is a seriously arguable question that the IPT erred in principle in that it disregarded the Marsook letter by reasoning backwards from the adverse credibility findings it had made in relation to DO rather than assessing the letter in the light of independent evidence obtained by counsel which confirmed Mr Marsook’s identity and the authenticity of his letter. It seems obvious that this too is a question of law.
[68] The essence of this ground is that the reasoning process adopted by the IPT in rejecting the Marsook letter was flawed. The IPT determined that certain aspects of DO’s account were credible. However, it found other aspects were not. The complaint is that the IPT wrongly extrapolated its adverse findings of credit to the Marsook letter.
[69] Mr Andrew submits that in rejecting the Marsook letter the IPT performed an impermissible exercise in “backwards” analysis. He says it failed to give proper consideration to independent objective evidence, namely the email correspondence produced by Ms Manning, including reference to the telephone conversation between Mr Marsook and counsel which established Mr Marsook as a bona fide Sri Lankan lawyer whose email address was that which appears at the top of the Marsook letter. He cites a number of cases where he says the Courts have upheld similar arguments.
[70] In Belahmar v Cananda (Citizenship and Immigration) the Court held that the tribunal had acted incorrectly in failing to give any weight to medical reports which were based on objective factors independent of what the claimant had told
them. The Court said:12
12 Belahmar v Canada (Citizenship and Immigration) [2015] FC 812 at [6]-[8].
“The RPD essentially performed its analysis backwards: instead of using the medical reports to assess the applicant’s credibility, the RPD drew conclusions about credibility and then used those conclusions to reject the report.”
[71] Similarly, the English Court of Appeal in WM (Democratic Republic of Congo) v Secretary of State for the Home Department held that credibility findings “may be of little relevance” when the new material “does not emanate from the applicant himself and thus cannot be said to be automatically suspect because it comes from a tainted source”.13
[72] Recently this Court, in the context of an application for leave from an extension of time to bring judicial review, observed there was merit in the intended argument that the RPO had erred in disregarding a medical report which concluded the claimant had injuries consistent with torture on the basis of having determined
the applicant lacked credibility.14
[73] Ms Charmley accepts there will be instances where evidence produced is capable of providing independent support which does not emanate from the applicant’s own account. However, she submits that this is not the case in the present instance. The IPT did not make its decision “backwards”. Instead, she submits, the IPT expressed concerns about the authenticity of the lawyer’s identity, noting the discrepancy between his email address on his letter and that which was on the online directory. She submits these concerns did not emanate from the issues with DO’s credibility because in contrast to the medical reports referred to in the cases cited by Mr Andrew, the Marsook letter merely mirrors DO’s “incredible” account in general terms and does not, for example, attach any supporting documentary evidence such as Court documents.
[74] While I accept Ms Charmley’s submission that the adverse findings of credibility made against DO were available to the IPT on the evidence, material aspects of his account were accepted. In my view although the Marsook letter was
generated by a request from DO’s counsel it was no less “independent” than the
13 WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA CIV 1495 at [6].
14 E v Refugee and Protection Officer [2016] NZHC 2599.
medical reports referred to in the cases discussed. However, unlike the medical reports the central issue in relation to the Marsook letter was its authenticity. This was a matter which, at least on preliminary consideration, might well have been capable of proof had counsel for DO known or understood its authenticity remained in issue.
[75] Again, while I am reluctant to stray too far into an examination of the merits of this ground, it is at least seriously arguable that the reasoning process adopted by the IPT was “back to front”. More importantly, irrespective of what label it is given, it is seriously arguable that the rejection of the Marsook letter as lacking authenticity because other aspects of DO’s evidence were not accepted as credible, was wrong in principle given Ms Manning undertook the confirmatory inquiries herself and provided that information to the IPT. I consider that the statements made in the decisions cited by Mr Andrew also bear proper consideration in the context of this case.
The alleged “material mistake of fact” in concluding that the existence, bona fides
and evidence of Abdul Marsook had not been established
[76] Mr Andrew also submits that the IPT’s error in rejecting the Marsook letter may also be characterised as a mistake of fact in the judicial review sense. In support of this submission he refers to the comment of the Supreme Court in Bryson v Three Foot Six Limited:15
“An ultimate conclusion of the fact-finding body can sometimes be so unsupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer.”
[77] To amount to an error of law such a mistake of fact must be one where there is no evidence to support the determination or one where the evidence is inconsistent with and contrary to the determination or one in which the true and only reasonable conclusion contradicts the determination.16
[78] Applying these principles to the present facts Mr Andrew submits the IPT
was clearly mistaken as to the identity of Mr Marsook and the authenticity of his
15 Bryson v Three Foot Six Limited [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
16 Edwards (Inspector of Taxes) v Barstow [1956] AC 14 (HL) at 36 per Lord Radcliffe.
letter. He submits this was plainly evident and established through the independent intervention of Ms Manning. Simply because the IPT doubted some of DO’s testimony the authenticity of the Marsook letter could not be summarily dismissed.
[79] I do not accept that submission. I agree with Ms Charmley that this was not a situation where there was no evidence on which the IPT could have declined to accept the Marsook letter. The IPT identified the discrepancy in the email address, raised it with counsel and ultimately rejected counsel’s explanation. Whether that approach was either fair or principled is quite a different issue and one which I have already discussed.
[80] I do not consider that this ground constitutes a seriously arguable question of law and leave is therefore denied in relation to it. I will now consider the remaining questions in relation to leave on the first and second grounds alone.
Do the first or second grounds raise questions of law of such general or public importance that they ought to be submitted to the High Court for decision?
[81] This question emerges from the requirements contained in ss 245(3) and
249(6)(b) of the Act.
[82] Mr Andrew submits there is general and public importance in the IPT dealing with independent evidence in a principled way and not reasoning backwards from adverse credibility findings. In other words he submits the issues are of general importance and relevance beyond the issues engaged in this particular case.
[83] I agree. The wider issues are of significance. For example, what are the limits of the obligations on the IPT to provide an applicant with the opportunity to adduce further evidence of a corroborative nature where the credibility of a document, or other evidence, is likely to be determinative of the application? More particularly, what is the extent of any such obligation where the IPT may not accept an explanation proffered? Is the IPT required to disclose its continuing reservations particularly where additional evidence may be capable of assuaging those concerns? Does s 230 of the Act have application in these circumstances? What are the limits of that provision?
[84] Similarly, the correct approach to the making of credibility findings is also a matter of general or public importance. The reasoning approach adopted by the IPT is such that it could be seriously argued that the IPT’s determination was arrived at through a reasoning process which was wrong in principle, namely by elevating the IPT’s findings of lack of credibility in relation to certain aspects of DO’s account into a finding of lack of credibility in relation to an assessment of the reliability/credibility of the Marsook letter.
[85] Furthermore, the relationship between these principles in cases involving claims for refugee or protected persons status may also raise questions of general or public importance beyond the circumstances of this particular case.
Should the first and second grounds be submitted for any other reason?
[86] Because I have determined that both grounds raise questions of law which are of general or public importance it is not necessary for me to consider the “other reasons ground”. However, even on that basis I am satisfied that leave should be granted. In my view this may be one of those rare and exceptional cases involving individual injustice to such an extent that the Court simply cannot countenance the
IPT’s decision standing.17
Would the issues on review be adequately dealt with in an appeal?
[87] I have determined that the criteria for granting leave to appeal are met in respect of the first and second grounds advanced by DO. However, that is not the end of the matter. Leave to bring judicial review proceedings is also sought in relation to both grounds.
[88] Section 249(3) of the Act states that for the purposes of granting leave to judicially review a decision of the IPT, I am required to have regard to whether review proceedings would involve issues which could not be adequately dealt with through an appeal.
[89] The error of principle in relation to the IPT’s reasoning relative to the credibility of the Marsook letter could, in my view, be capable of being dealt with on appeal. It is therefore inappropriate to grant leave to judicially review the first ground as well.
[90] However, any failure to adhere to the principles of natural justice is quintessentially an issue for determination on a judicial review. Affidavit evidence would be adduced. It might be expected this would include evidence from Ms Manning. Evidence might also be adduced from the Sri Lankan Law Society and conceivably from Mr Marsook himself. Copies of the Sri Lankan Court documents might be produced if the case reference number was supplied as Mr Marsook suggested in the letter.
[91] Furthermore, the range and flexibility of the discretionary remedies available to DO on judicial review under the Judicature Amendment Act 1972 are broader than those available to an appellant appealing on a question of law. It follows I am satisfied that the second ground is better and more appropriately dealt with by way of judicial review.
Application to adduce evidence
[92] Mr Andrew seeks to admit in these proceedings a declaration and a copy of Mr Marsook’s current practising licence. This is opposed by Ms Charmley who submits that if these documents carry the relevance and weight which Mr Andrew submits they do they should have been adduced in evidence before the IPT. In any event, Ms Charmley submits these documents do not affect the IPT’s findings on DO’s credibility and do not provide objective corroborating evidence as was the case
with the medical report in E v Refugee and Protection Officer.18 I am not prepared to
admit the documents for the purpose of the present application. I have not needed to rely on them in coming to the conclusion I have. However, these documents and their contents may well assume evidential significance and relevance at a judicial review.
Result
[93] DO’s application for leave to appeal the IPT’s decision is granted on the question of whether the IPT erred in law in relation to the manner it approached its credibility/authenticity conclusion in respect of the Marsook letter.
[94] His application for leave to judicially review the IPT’s decision is granted on the question of whether it breached DO’s rights to natural justice.
[95] My inclination is that DO is entitled to costs on a category 2B basis. If costs cannot be agreed the parties are to file and serve memoranda within 25 working
days of the date of this judgment.
Moore J
Solicitors:
Mr Andrew, Auckland
Crown Law Office, Wellington
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