E AND THE REFUGEE STATUS APPEALS AUTHORITY

[2005] NZHC 1842

ORDER FORBIDDING PUBLICATION OF ANY INFORMATION LIKELY TO IDENTIFY THE PLAINTIFFS PENDING FURTHER ORDER OF THE COURT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-188

UNDER

IN THE MATTER OF

the Judicature Amendment Act 1972

a decision under s129N of the Immigration

Act 1987

BETWEEN

E

Plaintiff

AND

THE REFUGEE STATUS APPEALS AUTHORITY

First Defendant

AND

THE ATTORNEY-GENERAL

Second Defendant

Hearing:

10 February 2005

Appearances: C Curtis for Plaintiffs (in support)

No appearance by or on behalf of First Defendant S Mount for Second Defendant (to oppose)

Judgment:      11 February 2005

JUDGMENT OF HEATH J

Solicitors:

Marshall Bird & Curtis, PO Box 105045, Auckland Crown Solicitor, PO Box 2213, Auckland

E V THE REFUGEE STATUS APPEALS AUTHORITY And Anor HC AK CIV 2005-404-188 [11 February 2005]

Introduction

[1]    New Zealand is a signatory to the United Nations Convention relating to the Status of Refugees 1951. The Convention has been adopted into New Zealand municipal law through its enactment as Schedule 6 to the Immigration Act 1964 (the Act). The Convention is designed to provide protection for a person who can establish a well founded fear of persecution in his or her own country for a Convention reason. Convention reasons for seeking refugee status include those based on race, religion, nationality, membership of a particular social group or political opinion. The country in which refugee status is sought must  grant  that status if the applicant is, owing to a fear of persecution, “unwilling to avail himself  of the protection of” his or her country of origin or “is unable or . . . owing to such fear, is unwilling to return” to that country.

[2]    The application before me is for interim relief to prevent the intended deportation of the applicants. The application seeks to review a decision of the Refugee Status Appeals Authority (the Authority) denying refugee status to them. The case arises out of a claim of persecution on religious grounds in respect of the applicants’ country of origin, Nigeria.

[3]    The Authority found that the applicants (husband and wife) had a well founded fear of persecution in northern Nigeria on that ground. Refugee status was, however, declined because the Authority held that there were areas in the south of Nigeria in which the applicants could safely live. Thus, it held that there  was  no need for New Zealand to grant refugee status to the applicants.

[4]    An important issue arises about what has become known as the “internal protection” principle. The question is whether the Authority applied the correct test in determining that there were places in Nigeria in which the applicants could safely live. The question is whether the test applied overlooked important requirements of the Convention to focus on the availability or otherwise of State sponsored security or protection within the alternative regions. While that issue was not raised directly before the Authority (or, indeed this Court when the interim application first came

before me) I raised the point because of its fundamental level. Ms Curtis now adopts the argument.

[5]    The application came before me initially during the legal  vacation while I was sitting as a Duty Judge. After hearing from counsel and expressing concerns about the test applied, I invited counsel for the Attorney-General to seek instructions on whether undertakings would be offered to the Court that the applicants not be deported pending a decision of this Court. Those undertakings were offered pending resolution of the interim relief application.

[6]    Although counsel were given the opportunity to proceed on the basis of a substantive hearing, Mr Mount informed me that the legal issue was of such importance to the daily practice of the Authority that it would require a number of days to argue at a substantive level. That estimate is not unreasonable because of the extent of the international jurisprudence on the Convention. Accordingly I deal with the proceeding on the application for interim relief only.

[7]    I am grateful for the comprehensive and learned submissions provided by both Ms Curtis and Mr Mount on the substantive legal issues. They have greatly assisted me in determining the application.

The facts in outline

[8]    The applicants are practising Christians. They sought refugee status on the grounds that they feared religious persecution from Muslims living in northern Nigeria, that part of Nigeria from whence they came. Country information and evidence before the Authority made it clear that there had been serious problems involving violence between Muslims and Christians in northern Nigeria.

[9]    The male applicant has particular character traits that were emphasised by Ms Curtis in submissions to the Authority and to me. He is an evangelist at heart, with a high profile as a Christian preacher in Nigeria, who seeks to convert Muslims to Christianity. His primary reason for seeking refugee status was fear of persecution because of his proclaimed ability to heal people. He was, while in Nigeria, prone to

preach in the street to promote conversion to Christianity. He would proselytize at least twice a week on the streets.

[10]   Violence suffered previously by the male applicant arose directly as a result of his high profile as a Christian preacher. Violence suffered by his wife arose both out of her husband’s activities and the attire she chose to wear, that attire being of a western nature marking her out significantly from Muslim women living in the area.

[11]   The Authority had the benefit of hearing and seeing both applicants give evidence before it. The Authority made a positive finding on credibility issues. The Authority said that their “accounts [were] accepted in their entirety”.

[12]   Having made those findings, the Authority found that there was a real chance that the applicants, if returned to their local area in northern Nigeria, would be seriously harmed due to the male applicant’s religious activities. For that reason an express finding was made that husband and wife had a well founded fear of persecution in their local area, Kano, on religious grounds. Refugee status was declined on the internal protection ground.

The Authority’s approach to the internal protection issue

[13]   The Authority approached the appeal before it by asking itself three questions. They were:

a)Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

b)If the answer is yes, is there a Convention reason for that persecution?

c)Can the appellants genuinely access domestic protection which is meaningful?

[14]   The first two questions were answered in favour of the appellants. The third was resolved against them.

[15]   In approaching the third question the Authority posed three sub-questions, namely:

a)In the proposed site of internal protection, is the real chance of persecution for a Convention reason eliminated?

b)Is the proposed site of internal protection one in which there is no real chance of persecution, or of other particular serious harm of the type that might give rise to the risk of return to the place of origin?

c)Do local conditions in the proposed site of internal protection meet the standard of protection prescribed by the Refugee Convention?

[16]   The third question (and the secondary questions) were applied by the Authority based on the Authority’s earlier decision in Refugee Appeal No. 71684/99 (29 October 1999).  In that case the Authority (constituted by RPG  Haines QC and  P Millar) reviewed international jurisprudence and academic writings on the “internal protection” principle and formulated those questions to assist the Authority in dealing with internal protection issues in the future.

[17]   It is clear from the 1999 decision that the test as formulated was intended to represent what are known as The Michigan Guidelines on the Internal Protection Alternative, those Guidelines having been published following a symposium convened by Professor Hathaway (an acknowledged world authority on the Convention) at the University of Michigan Law School in 1999. The background to the Michigan Guidelines is set out in para [64] of the 1999 decision.

[18]   Judicial review will lie (subject to discretionary considerations) if the Authority asked itself the wrong question. In truth, determination of the question whether the correct test was applied turns on whether the test formulated by the Authority in Refugee Appeal No. 71684/99 is a correct statement of the legal principle to be applied.

Applicability of internal protection principle in New Zealand

[19]   As a matter of New Zealand law, the internal protection principle applies: Butler v Attorney-General [1999] NZAR 205 (CA). In that case, the Authority had held that internal flight options were available to Mr Butler either within Ireland or within the United Kingdom, other than Ulster. Mr Butler had sought refugee status in New Zealand on the grounds of fear of persecution due to political opinion; his fears relating to death threats made against him by the Irish People’s Liberation Organisation and to his relations with the Royal Ulster Constabulary. The Court of Appeal held that the internal protection principle applied in New Zealand: in particular, see Butler at 216-217.

[20]   The starting point for my analysis is that the internal protection principle applies. The question is whether it was correctly applied by the Authority in this case.

Interim relief

[21]   Section 8(1) and (2)(a) of the Judicature Amendment Act 1972 empower this Court to make an interim order declaring that the Crown ought not to take  any further action that is, or would be, taken consequential on the exercise of a statutory power. The Court may make such an order if it “is necessary … [to preserve] the position of the applicant” pending final determination of the application for judicial review.

[22]   More detailed guidance on the test to be applied can be found in Carlton and United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) as adapted for immigration issues by Hammond J in Esekielu v Attorney-General (1993) 6 PRNZ 309 at 313.

[23]   There is an onus on the applicants to demonstrate a respectable argument that the decision under attack is flawed in an administrative law sense and that there is a real prospect that the substantive application could succeed.

[24]   I can deal briefly with alternative grounds of review advanced by Ms Curtis that challenge the Authority’s decision based on its evaluation of the evidence, the alleged unreasonable nature of its decision and alleged failure to comply with the principles of natural justice.

[25]   If the test applied by the Authority were correct then the findings made were open to the Authority on the evidence before it. For the same reason, the decision cannot be characterised as unreasonable in an administrative law sense. Finally, the issue of internal protection was squarely before the Authority at the time of the hearing before it and counsel for the applicants had an adequate opportunity to make submissions on the issue. No natural justice point arises.

[26]   In this case, the real issue is whether the Authority applied the correct  test and whether, if it did not, there is any realistic prospect of the applicants succeeding in their claims for refugee status on the basis of any alternative test that might be  held to exist. The application for interim relief falls to be determined in that context.

Competing submissions

[27]   On the issue of the legal test Mr Mount submitted that the correct test to  apply was not raised in submissions before the Authority, resulting in this Court not having the benefit of the Authority’s views on the test that ought to be applied. Further, he submitted that on the country material and evidence before the Authority no different outcome could have resulted. Finally, he submitted that on no  view of the test that might be applied could it be said that there was  information available that could lead to a successful application by the applicants for refugee status.

[28]   Ms Curtis candidly acknowledged that she had not argued the correct test to be applied before the Authority. She proceeded, in that jurisdiction, on the basis that the correct test had been stated in Refugee Appeal No. 71684/99. Having considered

the issue further since the application for judicial review was filed, Ms Curtis submitted that, in light of academic writings and material from other jurisdictions since the 1999 decision of the Authority, it could be strongly argued that the test had been wrongly stated, by failing to emphasise sufficiently the need to inquire as to why state protection was not available in one part of the state or country but available in another.

Was the correct test applied?

[29]   It is true, as has been emphasised in both Butler v Attorney-General (at 215) and Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) at para [33], that it cannot be an error of law for a tribunal considering a matter properly before it to fail to rule on some particular aspect of that matter, if the particular aspect is not referred to by the interested party and does not stand out as requiring decision.

[30]   However, while the correct test was not raised before the Authority that test has been applied for many years and was formulated in the judgment given in Refugee Appeal No. 71684/99. That judgment was plainly intended to provide guidance to other members of the Authority when considering similar issues. In effect, its statement of the relevant questions to be asked provided a framework for analysis for future decisions of a like kind.

[31]   Given the need for the Refugee Convention to be interpreted in a consistent manner throughout those countries that are signatories to it, it will be important from time to time to reconsider the applicability of principles applied by the Authority. It may be that international developments require reconsideration of the test to be applied.

[32]   For the purpose of the present application I am satisfied that a respectable question of law does arise. The test set out in Refugee Appeal No. 71684/99 focuses on internal protection but does not require, as such, any analysis of the reason why protection from the state or country involved is available in one part of the state or country but unavailable in another. The need for a comparative analysis of that type

is clear from the terms of art 1(A)(2) of the Convention itself and para 1 of the analytical framework contained in the Michigan Guidelines. That paragraph states:

The essence of the refugee definition set out Art. 1(A)(2) of the 1951 Convention relating to the Status of Refugees (“Refugee Convention”) is the identification of persons who are entitled to claim protection in a contracting state against the risk of persecution in their own country. This duty of state parties to provide surrogate protection arises only in relation to persons who are either unable to benefit from the protection of their own state, or who are unwilling to accept that state’s protection because of a well-founded fear of persecution. (my emphasis)

[33]   This question is so fundamental to the question whether refugee status is granted that I hold it ought to be considered by this Court notwithstanding the fact that the test to be applied was not raised by the applicants before the Authority. Questions of liberty are at stake. Also at stake is the question whether, if the applicants are returned to Nigeria, they will be at risk of serious harm. In those circumstances this Court should not lightly decline interim relief when a serious question of law arises.

[34]   In any event, I comment that the observations of the Court of Appeal in Butler and Jiao seem to be directed at other than fundamental issues the Authority must consider. For example, Butler at 215 makes it plain that if the issue stands out as requiring decision it must be addressed. In this case the test was addressed, in reliance on the 1999 decision. The question now is whether that decision is correct.

[35]   The next questions, raised by Mr Mount, are whether there was material before the Authority that is relevant to the present issue and whether ultimate success of the application on the legal test to be applied would not result in a different outcome.

[36]   Ms Curtis took me through some of the country information, relating to the south of Nigeria, provided to the Authority and on which it based its decision. That information is a combination of information from reputable international sources collated by counsel for the applicants, the Refugee Status Branch of the Immigration Service and the Authority respectively. I am satisfied that there was information before the Authority that might have resulted in a different outcome had a differently expressed test been applied. I am also satisfied there is a respectable case for the

proposition that if a test were applied that focussed more on comparative State protection in different locations, a different outcome might result if the application for review were granted and the appeal remitted for further consideration by the Authority in light of the High Court’s findings.

[37]For those reasons I hold that the interim application ought to succeed.

Timetabling issues

[38]I direct that:

a)an amended application for judicial review and an amended Statement of Claim identifying the issues to be argued be filed and served on or before 3pm on Friday 4 March 2005 and

b)a Notice of Opposition to the amended application for judicial review and Statement of Defence to the Amended Statement of Claim be filed and served by 3pm on Thursday 24 March 2005.

[39]   The proceeding is adjourned for a case management conference before the Civil List Judge, Venning J, at 9.20am on 12 April 2005.

[40]   At that conference counsel should be in a position to advise the Judge on timetabling requirements on the following issues:

a)Exchange of affidavits

b)Provision of a bundle of paginated material from the Authority

c)Whether the transcribed notes taken before the Authority ought to be typed up and made available to this Court

d)Exchange of submissions

[41]   Mr Mount has already indicated to me that given the importance of the internal protection issue some time might be required as the issue is properly regarded as important from the Crown’s perspective and from the perspective of the Authority.

[42]   My recommendation is that a Full Court be convened to deal with the issue but the decision whether that ought to be done will be for Venning J to make.

Issues relating to substantive argument

[43]   It may assist counsel if I mention material to which my attention has been drawn relating to this issue. There appears to be a division of opinion about the precise interpretation to be given to the phrase “protection of that country” in art 1A(2) of the Convention.

[44]   Counsel may wish to consider, as part of the post 1999 developments, Horvath v Secretary of State for the Home Department [2001] 1 AC 489 (HL), at 495 per Lord Hope, E v Secretary of State for the Home Department [2004] QB 531 (CA), Minister of Immigration and Multi-Cultural Affairs v Khawar [2002] HCA 14 at para 62 and the Guidelines published by the European Council on Refugees and Exiles in September 2000, at para 37. I refer also to the discussion in Feller, Turk and Nicholson UNHCRs Global Consultations on Internal Protection in Refugee Protection in International Law (Cambridge 2003) at 418-419. This list is not intended to be exhaustive.

Result

[45]The application for interim relief is granted.

[46]   I declare that the second defendant ought not to take any further action that is, or would be, consequential on the Authority’s decision to decline refugee status to the applicants pending final determination by this Court of the application for judicial review. Costs are reserved.

[47]   The timetabling orders set out in para [38] above are made and  the proceeding adjourned for a case management conference before Venning J at 9.20am on 12 April 2005.

P R Heath J

Dated at 4.00pm 11 February 2005