DY (Pakistan) v Refugee and Protection Officer
[2021] NZHC 874
•23 April 2021
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS
MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-001908 CIV-2020-404-001909
[2021] NZHC 874
BETWEEN DY (PAKISTAN)
Applicant
AND
REFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 31 March 2021 Appearances:
S Lamain for Applicant
C Paterson and J A Herring for Respondent
Judgment:
23 April 2021
JUDGMENT OF VENNING J
This judgment was delivered by me on 23 April 2021 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland Counsel: S Lamain, Auckland
DY (PAKISTAN) v REFUGEE AND PROTECTION OFFICER [2021] NZHC 874 [23 April 2021]
Introduction
[1] DY (Pakistan) has applied for refugee and protected person status under the Immigration Act 2009 (the Act) on more than one occasion and on more than one ground. On 19 June 2017, DY’s first claim was rejected by a Refugee and Protection Officer (RPO) as not credible. His appeal against that decision was dismissed by the Immigration and Protection Tribunal (the Tribunal) on 7 February 2018.1
[2] DY lodged a second claim on 22 March 2018. The RPO declined to consider it as there had been no apparent significant change in circumstances. It was dismissed on 10 April 2018.
[3] DY then lodged a third claim on 7 September 2018. The RPO again declined it. On 15 September 2020 the Tribunal dismissed DY’s appeal from that decision, again finding his account was not credible.2 DY now seeks leave to challenge that decision by appeal to this Court and/or by judicial review.
Background and procedural context
[4] DY is a Pashtun Sunni Muslim who had previously lived and worked in the UAE for eight years after leaving Pakistan before coming to New Zealand in February 2016.
[5] DY lodged his first claim for refugee and protection status in March 2016. He initially claimed he was gay and that he feared being persecuted or being subject to qualifying harm in Pakistan on account of his sexuality. However, before the RPO determined the claim, DY admitted he was not gay, that his claim was false, and that the documents he had provided to support his application were fabricated.
[6] DY then changed the basis for his claim to protection. He told the RPO that in 2007 he had attempted to elope with a woman, M, when she was engaged to another man. Although the elopement was unsuccessful and M went on to marry the man her family had arranged for her to marry, her family wished to kill DY and M for
1 CU (Pakistan) [2018] NZIPT 801202.
2 DY (Pakistan) [2020] NZIPT 801673.
dishonouring the family name. The RPO declined DY’s claim for refugee or protected person status because it did not find his account credible. The applicant’s subsequent appeal was dismissed by the Tribunal on 7 February 2018, again on the grounds his claim was not credible. Apart from his initial false claim, the Tribunal found there were discrepancies in his evidence in support of his fresh claim.
[7] On 22 March 2018, DY lodged a second claim for refugee and protection status with the Refugee Status Unit (RSU). He said he would be tortured and killed by M’s family. On 29 March 2018, DY was advised that his second claim appeared to be on identical grounds to the first one and for it to be considered there needed to be a significant change in material circumstances since the first claim was determined. As DY did not respond, on 10 April 2018 he was advised the RPO had refused to consider his second claim. Also in April 2018 the applicant sought leave to appeal to this Court against the Tribunal’s first decision. That application was subsequently withdrawn on 5 June 2018.
[8] On 7 September 2018, DY lodged his third and current claim for refugee and protected persons’ status. It was made on the basis of a change in circumstances. DY claimed that M had been killed by the Taliban whom her family had involved in its ongoing efforts to capture him. The Taliban had also threatened to harm his remaining family members in Pakistan if he was not surrendered to them. Relying on adverse credibility findings the RPO declined the claim.
[9] On 15 September 2020 the Tribunal dismissed DY’s appeal from the decision of the RPO. The primary issue on appeal was the credibility of DY’s and his father’s evidence, and whether or not DY’s version of events was well founded.
The decision under appeal
[10] DY’s evidence in support of the third claim was summarised by the Tribunal as follows:
[33] [DY] was born in [R] Pakistan, the fourth of 11 children. He is Pashtun by ethnicity and Sunni Muslim by faith. During the last four-and-a- half years he has lived in New Zealand, he has kept in regular contact with his family members overseas, including his father by telephone and WhatsApp. In early 2019, [DY’s] parents and his youngest brother moved to Australia
where they have claimed asylum on account of threats made against them by the Taliban, acting as agents for [M’s] family.
[34] In June or July 2018, [DY] received a telephone call from his father. At the time, his father was still living in [A] with his mother and younger siblings. Approximately one to seven days earlier, [DY’s] father received a call from [M’s] family, inviting him to a meeting in [H]. As his father had been trying to reach a settlement with [M’s] family for a long time, he was motivated to attend the meeting.
[35] [DY] stated that his father drove to the meeting by himself. Upon his arrival, he was asked to go to a local cemetery. Once there, he saw three men who identified themselves as Taliban and who were not from the local area. The men wore turbans and were carrying guns. They asked for [DY’s] whereabouts. When his father asked why they wanted him, especially as [M] had married her husband, the men stated that they had killed her. They demanded that his father surrender [DY] because he attacked someone’s honour, the penalty for which was death. If he refused, this would not be a good thing for him or his remaining family members in Pakistan. After the meeting was over, [DY’s] father immediately returned to [A] because he was afraid of the Taliban.
[36] [DY] has learnt from a family member who is related to [M’s] sister, that [M] has been killed. This may have been the result of someone having taunted or provoked a member of [M’s] family into doing so. In Pashtun culture, it is not uncommon for honour killings to occur 20 to 100 years later.
[37] Currently living in Pakistan are six of [DY’s] siblings, including two younger sisters and a younger brother, who are not married and are living in [A]. Nothing negative has happened to these siblings because they have stayed indoors and have alternated homes between their two older sisters, both of whom are married and live in the same city.
The decision
[11] The Tribunal rejected significant portions of DY’s account as not credible. It made the following findings:
(a)There was an implausible coincidence between the timing of the Tribunal’s rejection of the first and second claims for refugee and protection status, and the telephone conversation between DY and his father, said to have occurred in June or July, which DY relied on as providing the fresh evidence that M had been killed by the Taliban.
(b)While accepting the existence of the concept of badal3 neither it nor DY’s further evidence explained why it was only at this time, rather than during the currency of the first or second claims, that the Taliban had become involved in the dispute and had killed M.
(c)There were credibility issues in relation to DY’s father’s claimed meeting with the Taliban. In particular, his father’s account was different to D’s evidence about the same account relayed to him by his father, on key points.
[12] In short, the lack of internal consistency between DY’s and his father’s evidence, and a separate issue in relation to the father’s evidence, led the Tribunal to conclude it could not accept DY’s or his father’s accounts. The Tribunal found the new evidence provided on appeal was merely an attempt to address the shortcomings identified with the appellant’s previous appeal. The Tribunal rejected the evidence in its entirety and concluded that DY did not face a well-founded fear of being prosecuted in Pakistan.
[13] DY did not advance any evidence to support claims under the Convention Against Torture or the International Covenant on Civil and Political Rights (ICCPR).
For those reasons the Tribunal dismissed his appeal.
Application for leave to appeal
[15] The provision for appeals from decisions of the Tribunal is s 245 of the Act. As relevant, ss 245(1) and (3) provide as follows:
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
3 Badal is an important aspect of Pashtunwali, exacted for wrongdoings such as blood feuds, personal insults and damage to property. It is not restricted to action against the culprit but can be taken against other members of his kinship group. It can be inter-generational and there is no limitation period.
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.
The grounds for leave to appeal
[16]The applicant DY contends that the Tribunal erred in law by:
(a)determining that the appellant’s evidence as to the timing of M’s death was implausible and not credible. While the Tribunal purported to accept the concept of badal explained how the need to take revenge could persist despite the passage of time, it fell into error by requiring DY to explain why the Taliban would become involved and kill M after 11 years. It did not properly apply the concept of badal or DY’s explanation that grudges may lie dormant and could be triggered by a subsequent slight;
(b)determining that DY’s evidence was not credible owing to apparent inconsistencies between his evidence and that of his father; and
(c)failing to apply the benefit of doubt in the applicant’s favour.
[17] The first two grounds are essentially challenges to factual and credibility findings by the Tribunal. An applicant challenging factual findings must show a seriously arguable case that the findings are incorrect. As Kós J (as he then was) noted in Taafi v Minister of Immigration:4
(a)First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. …
4 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19] (footnotes omitted). See also AH v Immigration and Protection Tribunal [2017] NZHC 1880 at [29]; and Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155.
(b)Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i)the Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and
(ii)the errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application …
[18] The Court of Appeal reiterated the onus on an applicant in AX (Afghanistan) v Immigration and Protection Tribunal and Refugee and Protection Officer:5
[12] The requirement that the appeal alleges the determination of the Tribunal was affected by error of law creates a high threshold designed to proscribe appeals that in reality simply raise questions of fact. Before factual issues can constitute an error of law it must be shown that the decision made was insupportable on the facts: that there was no evidence to support a particular finding or the evidence was inconsistent with and contradictory of the determination reached.
[19] The Tribunal had expressed some doubt about whether its first finding was sufficient to dismiss the application. In his oral submissions, therefore, Mr Lamain initially addressed the second error of law raised by DY, that is, the Tribunal’s rejection of DY’s and his father’s accounts relating to the Taliban’s involvement in M’s death and the threat to the applicant.
[20] Both the applicant and his father gave evidence in the Tribunal proceedings. The applicant’s father said that approximately five to six months before he, his wife and their younger son arrived in Australia in January 2019 (so June or July 2018) an unidentified man had come to his home in [A] with a message that M’s father wanted to meet him in [H]. He drove there and went for prayers in a mosque. Afterwards he said he was met by a young boy outside who told him to go to a cemetery. He did so and was met by three men, two of whom were Taliban and were carrying guns.
5 AX (Afghanistan) v Immigration and Protection Tribunal [2018] NZCA 290. See also Bryson v Three foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
[21] The applicant also gave evidence about what his father had relayed to him about the incident. The applicant made no mention of an unidentified man coming to his father’s home nor did he refer to his father going to the mosque or being approached by the young boy.
[22] The applicant’s description of the three men his father said he had met was also different from his father’s. The applicant said that his father had told him all three were wearing turbans, carrying guns and were members of the Taliban. On the other hand, his father was very clear that only two of them were wearing turbans and had guns. The third had short hair and was not a member of the Taliban and was possibly a member of M’s family.
[23] Mr Lamain submitted that any difference in the evidence of DY and his father was explainable by the fact DY was repeating what he had been told by his father in summary, while his father was providing a more detailed, first-hand, account. The Tribunal, Mr Lamain suggested, failed to take account of that fact. He drew an analogy with reasoning for the rule against hearsay.
[24] While the applicant submits the Tribunal failed to take into account the possibility the inconsistencies might be a result of the applicant not having witnessed the incident himself, and so was relying on his father’s account, as Mr Lamain accepted, the Tribunal was clearly aware that the applicant could not have been there at the time of the threats and was relaying what he said his father had told him.
[25] The Tribunal was entitled to take into account the differences in detail between the accounts. The father gave evidence of a particularly significant, and if it had happened, distressing event. It was directly related to DY. The Tribunal was entitled to consider that the father would have told DY the complete story and that DY would remember the detail as relayed to him by his father and tell that to the Tribunal. The differences were more significant than just matters of detail, as Mr Lamain submitted.
[26] Further, while acknowledging the possibility of a misunderstanding on some issues, as counsel for the respondent noted, the Tribunal observed that when DY could not remember something he was questioned about, he made it clear that he could not
remember. In contrast, he was very definite about his description of the Taliban at the cemetery. The Tribunal was entitled to attach significance to this discrepancy between the applicant and his father’s evidence.
[27] In relation to the issue of badal, and the Tribunal’s finding that the further evidence of M’s death was implausible and not credible, there are two relevant points. The first is that the Tribunal was prepared to accept the concept of badal. It heard evidence from the applicant regarding it and also from counsel for the applicant in submissions. The Tribunal expressly referred to the concept in its decision, noting the applicant’s explanation that it was not uncommon for honour crimes to take place 20, 50 or even 100 years later. However, the Tribunal still considered that it did not explain why, 11 years after the unsuccessful attempt to elope that DY relied on to support his claim, the Taliban had decided to intervene and kill M. DY suggested it could have been as a result of a taunt, or a build-up in pressure on M’s family. But there was no evidence to support such a taunt.
[28] There was a further feature relied on by the Tribunal in rejecting the father’s story. The applicant’s father also said he had been assaulted in 2007 by three men outside his home after DY’s attempt to elope with M. That had not been raised by the applicant in either of his previous applications. The Tribunal did not accept the father’s explanation that he did not consider it had anything to do with the applicant and so had not told him earlier. The Tribunal was entitled to regard that evidence with suspicion. DY and his father were able to contact each other reasonably regularly. DY’s father must have known that DY was applying for refugee status on the basis of the threats to him (and his family) following the attempt to elope with M. The assault the father belatedly referred to would have been directly relevant. It was not credible to suggest the father would not have said anything to DY because it had nothing to do with him.
[29] Mr Lamain next criticised the Tribunal’s reasoning that the new evidence suggested it was presented as “an antidote” to the earlier findings. He submitted that all subsequent claims that met the threshold of a significant change in circumstances under s 140 of the Act will necessarily be based upon evidence which addresses the shortcomings in a former decision. However, not all cases will fall into that category.
While there may be some cases in which fresh evidence enables a previous claim to be revisited in other cases, the provision also enables an applicant to rely on entirely new and different facts to support a fresh application.
[30] Where a second claim is made on the same alleged risk as the initial claim, but is pursued on the basis of a significant change in circumstances, the Tribunal is entitled to carefully consider the credibility of the fresh evidence supporting the alleged change in circumstances. The applicant’s credibility was the issue in the present case, particularly where his initial claim had been made on an acknowledged false basis. Not only had the applicant lied, he had fabricated false documents. Further the previous Tribunal decision had noted other discrepancies in his evidence in rejecting his initial application. The Tribunal was entitled to take those adverse credibility findings into account. As s 231 of the Act confirms, the Tribunal may rely on any such finding of credibility.
[31] In that context, the coincidence in timing of the further evidence of M’s death following the initial adverse finding of the Tribunal in its 2018 appeal is relevant. In dismissing DY’s claim in February 2018, the Tribunal had noted that M had not been harmed in any way despite the lengthy passage of time that had elapsed. Shortly after DY renewed his claim. On 10 April 2018 the RPO advised him that second claim was dismissed. It was dismissed because there had not been a significant change in circumstances. DY then sought to appeal the initial decision but that was withdrawn on 5 June 2018. Then, about that time, in June or July 2018, the applicant allegedly received a call from his father to tell him that M had been killed by the Taliban, thereby creating the change in circumstance relied on to support the fresh application.
[32] Neither of the first two proposed grounds of appeal satisfy the test for an error of law. The findings of fact, and rejection of DY’s evidence, was based on the evidence before it. The findings the Tribunal made were not contradictory of the only reasonable conclusion of fact available on the evidence.
[33] Counsel submitted that the applications raised questions of law of general or public importance, particularly the manner in which the Tribunal deals with credibility assessments. In his written submissions, Mr Lamain said the issues raised were
distinct from those addressed by the Supreme Court and Court of Appeal in Attorney-
General v Tamil X and Jiao v Refugee Status Appeals Authority.6
[34] Mr Lamain submitted that the credibility assessment of the Tribunal of the applicant’s evidence must start from a position of belief, as opposed to disbelief. He cited the commentary by Hathaway and Foster “The Law of Refugee Status”7 and a 2020 Masters study from Malmö University, Sweden, “The Assessment of Credibility in UK Asylum Applications”,8 which criticise a “culture of disbelief”.
[35] Counsel also noted the 1998 UNHCR “Note on Burden and Standard of Proof in Refugee Claims” which confirmed:9
Credibility is established where the applicant has presented a claim which is coherent and plausible, not contradicting generally known facts, and therefore is, on balance, capable of being believed.
[36]In the same vein, the Michigan Guidelines state:10
An applicant’s testimony may only be deemed not credible on the basis of a specific, cogent concern about its veracity on a significant and substantively relevant point.
[37] Finally, counsel referred to the decision of the Court of Appeal of England and Wales in Karanakaran v Secretary of State for the Home Department where the Court noted:11
For the reasons much more fully explained in the Australian cases, when considering whether there is a serious possibility of persecution for a convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur. …
6 Attorney-General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721; and Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA).
7 James C Hathaway and Michelle Foster The Law of Refugee Status (Cambridge, Cambridge University Press, 2014).
8 Francis Kendall, “’Catch-22’?: The Assessment of Credibility in UK Asylum Applications” (Masters Dissertation, Malmö University, 2020).
9 UNHCR Note on Burden and Standard of Proof in Refugee Claims (16 December 1998), at [11].
10 James C Hathaway and Michelle Foster The Law of Refugee Status (Cambridge, Cambridge University Press, 2014) at [11].
11 Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 (CA) at 469– 470.
[38] Despite Mr Lamain’s submissions, the issue of the Tribunal’s approach to credibility and the benefit of doubt has been sufficiently considered in the New Zealand context by the Supreme Court and the Court of Appeal.
[39] In Attorney-General v Tamil X, the Supreme Court discussed the nature of refugee decision-making, noting:12
[36] The inquisitorial nature of the process is further reflected in the language of the statutory provisions concerning the procedure on appeal. It is “the responsibility of an appellant to establish the claim” before the Authority. As the Court of Appeal pointed out in Jiao v Refugee Status Appeals Authority, Parliament has avoided the common law terms “onus” or “burden” by using “responsibility”. Likewise it has used “establish” instead of “prove”.
[37] There are special reasons for the legislature to prefer an inquisitorial process for refugee status determinations. There are particular problems in obtaining evidence on the crucial questions and determining its reliability. The position was well expressed by Professor Houle in the context of determinations by the Refugee Protection Division (RPD) of the Canadian Immigration and Refugee Board:
The process of assessing the weight of evidence to determine refugee status is complex and difficult, mainly because of the absence of credible evidence on which to base the refugee claims. The events related by the claimant cannot be checked directly: they took place in a foreign country and often a considerable period of time before the RPD hearing. In most cases, the decision-maker is given an incomplete story, namely the claimant’s version of events, and even then this is usually done through an interpreter. Therefore, Board members are required to make sound decisions based on scanty, ever- changing information about the claimants’ countries of origin and, more significantly, information about a culture that is alien to them. In fact, Board members are required to assess the credibility of testimony in something of a cultural vacuum. These factors often impede Board members from fully understanding the claimant’s story.
The Authority itself has discussed the evidential difficulties it faces, and the practical limits on its process:
Largely because of [such] considerations ... the Authority’s general approach to refugee claims is to focus primarily on the credibility of the refugee claimant as assessed against publicly accessible information.
In this context, inferences have to be drawn both as to the credibility of the claimant concerning matters of fact and in the evaluation required to decide
12 Attorney-General v Tamil X, above n 6 (footnotes omitted).
if a claimant is entitled to protection as a refugee under Convention provisions.
[40] In the earlier Court of Appeal judgment of Jiao v Refugee Status Appeals Authority the Court of Appeal confirmed:13
… the very widely accepted principle of law that claimants must prove the facts that they assert.
[41] It considered that Parliament had essentially required as much by placing responsibility of establishing a claim on the applicant.14 As Downs J observed in AR v Immigration and Protection Tribunal, the Court of Appeal in Jiao went on to note that:15
… because supporting evidence would rarely be available to an exile and he or she may be at risk if refugee status is declined, a “generous approach” was called for. That included the adoption of “the benefit of the doubt principle”, by which, if an applicant’s account for refugee status is credible, the applicant should be given the benefit of the doubt even in the absence of corroborative material.
[42]But as Keith J confirmed in Jiao:16
… the phrase should not get in the way of the proper consideration of the evidence bearing on disputed facts, including a weighing of the possible availability of other evidence supporting or questioning that given by the claimant.
[43] The benefit of the doubt principle does not exist to sweep away adverse credibility findings.
[44] In BV v Immigration and Protection Tribunal, the Court of Appeal confirmed the approach to assessing claims for refugee status was well settled, citing the Court’s discussion in Jiao.17 The Court noted its primary concern was the plausibility of BV’s account, given the significant inconsistencies with each version and across versions. But to do so was not to confuse proof and credibility:18
13 Jiao v Refugee Status Appeals Authority, above n 6, at [23].
14 At [23].
15 AR v Immigration and Protection Tribunal [2017] NZHC 2039, [2017] NZAR 1524 at [14] (footnotes omitted).
16 Jiao v Refugee Status Appeals Authority, above n 6, at [30].
17 BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139.
18 At [12].
Rather, it reflects the observations in Jiao that there must be proper consideration of the evidence, and in the UNHCR Handbook that an applicant’s statements must nevertheless be coherent and plausible, and not contrary to generally known facts.
As the Court observed:19
… the simple reality is that BV’s account was, again, not believed.
[45] In that case the Court was also directed to an article by Professor Kagan, in which the author had posited a framework for assessing the credibility of refugee claimants and counsel suggested the starting point should be a presumption of credibility. The Court noted that this was only one approach and it could not possibly be said the Tribunal erred in law by following a different analytical path. The Court made the further point that:20
… It is also important not to over-emphasise labels.
[46] Mr Lamain submitted the applicant DY should be afforded the benefit of the doubt with respect to discrete credibility issues and the Tribunal erred by blending credibility concerns from discrete aspects together resulting in a sweeping overall adverse finding. He submitted that if the core of the applicant’s account was accepted as credible, it would follow there was a real chance of him facing serious harm in Pakistan.
[47] The difficulty with that submission is that the core of the applicant’s account is undermined by the evidence to support it which relied on the Tribunal accepting it as credible. The Tribunal did not accept it.
[48] For these reasons I conclude there is no seriously arguable error of law evident in the Tribunal’s reasoning.
[49] Further, in any event, none of the issues raised by the applicant have importance beyond the particular case. The first two grounds are resolved on credibility assessments which the Tribunal was well placed to make. As to the burden
19 At [12].
20 At [14].
of proof issue, in BV v Immigration and Protection Tribunal, the Court of Appeal confirmed that the approach to assessing claims is settled.
[50] Mr Lamain also submitted that the application ought to be granted under the “for any other reason” ground. He argued that the injustice to the applicant if the Tribunal decision stands would be of such magnitude the Court should grant the application.
[51] In Machida v Chief Executive of Immigration New Zealand Limited the Court of Appeal noted that:21
[8] In its practical application, s 245 requires an applicant to identify a seriously arguable question of law which either:
(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.
Although category (b) is open ended, we agree with a 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.
[52] Thus, it will only be in an exceptional case involving an individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing that this requirement would be met.22 Mr Lamain emphasised the danger to the applicant if returned to Pakistan. However, that danger presupposes the acceptance of DY’s evidence before the Tribunal as to the threat. For the reasons given above the Tribunal was entitled to reject that evidence as not credible.
Application for review
[53]The application for review is under s 249 of the Act. Section 249(6) provides:
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—
21 Machida v Chief Executive of Immigration New Zealand Limited [2016] NZCA 162, [2016] 3 NZLR 721 (footnote omitted).
22 Machida v Chief Executive of Immigration New Zealand Limited, above n 21.
(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.
[54] In reliance on the decision of AI (Somalia), counsel submitted that both applications for leave ought to be granted.23 While some of the issues raised could be dealt with by way of an appeal, other issues such as correctness of review and inadequate reasons are essentially issues for judicial review.
[55] The issues sought to be advanced in the application for review essentially address the same aspects of the Tribunal’s factual findings concerning DY’s application.
[56]They are the challenges to the findings:
(a)that the timing of M’s death was implausible.
(b)as to the inconsistency between DY’s evidence and his father’s evidence.
[57] As noted, the Tribunal’s reasoning on these matters were fully set out. The review proceedings do not involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal.
[58] For the reasons given above, they also lack any general or public importance to support their submission to this Court for review.
Result
[59] The applications for leave to appeal and for leave to commence judicial review proceedings are dismissed.
23 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471.
Costs
[60] I understand the applicant is in receipt of legal aid. Were it not for the grant of legal aid, I would have awarded costs to the respondent on a 2B basis.
Venning J
0
6
0