E v Chief Executive, Ministry of Business, Innovation and Employment
[2017] NZHC 3175
•18 December 2017
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.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-001819 [2017] NZHC 3175
UNDER THE Judicature Amendment Act 1972 and the
Immigration Act 2009
IN THE MATTER OF
The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, the International Covenant on Civil and Political Rights and the Convention
against Torture and the Vienna Convention on the Law of Treaties
BETWEEN
E Applicant
AND
CHIEF EXECUTIVE, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT
Respondent
Hearing: 1 June 2017 Appearances:
G M Coumbe QC assisting the Court
M G Coleman and M Clark for RespondentJudgment:
18 December 2017
JUDGMENT OF GILBERT J
This judgment was delivered by me on 18 December 2017 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules
Counsel/Solicitors:
Gillian Coumbe QC, Auckland
………………………………………..
Registrar/Deputy Registrar
E v CHIEF EXECUTIVE, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2017] NZHC
3175 [18 December 2017]
Martha Coleman, Barrister, Wellington
Crown Law Office, Wellington
TABLE OF CONTENTS
Introduction [1]–[8]
Background [9]
First claim for refugee status [10]–[24]
Second claim for refugee status and first
claim for protected person status [25]–[39]
Third claim for refugee status and second
claim for protected person status [40]–[44]
First ground — failure to apply the correct test
under s 140(3)? [45]–[62]
Second ground — failure to consider whether the
combined report was “new” evidence? [63]–[68]
Third ground — error in finding that the medical report
was reliant on E’s own account? [69]–[77]
Fourth ground — error in rejecting the medical report on
the basis of earlier credibility findings? [78]–[82]
Fifth ground — failing to take other relevant material into account?
Facebook material [83]–[85]
E’s brother’s statutory declaration [86]–[91]
Result [92]–[93]
Introduction
[1] This case raises questions about the correct interpretation and application of s 140 of the Immigration Act 2009 (the Act) which was enacted to limit successive claims for recognition as a refugee or protected person and thereby prevent abuse of the determination process.
[2] It is helpful to set out s 140 in full at the outset:
140 Limitation on subsequent claims
(1) A refugee and protection officer must not consider a subsequent claim for recognition as a refugee or a protected person unless the officer is satisfied —
(a) that there has been a significant change in circumstances material to the claim since the previous claim was determined; and
(b) the change in 1 or more of the circumstances was not brought about by the claimant —
(i) acting otherwise than in good faith; and
(ii) for a purpose of creating grounds for recognition under any of sections 129 to 131.
(2) For the purposes of determining the matter in subsection (1), the refugee and protection officer must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.
(3) A refugee and protection officer may refuse to consider a subsequent claim for recognition as a refugee or a protected person if the officer is satisfied that the claim —
(a) is manifestly unfounded or clearly abusive; or
(b) repeats any claim previously made including a subsequent claim.
[3] The principal issue on this application for judicial review is whether a refugee and protection officer applied the correct test under s 140(3) in refusing to consider a third claim for recognition as a refugee and a second claim for recognition as a protected person (the present claim). The key question is whether further medical evidence provided in support of the present claim means that it does not simply repeat a previous claim.
[4] The applicant, who I shall refer to as “E”, is a citizen of Uganda. He came to New Zealand in 2007 and since then has made three claims for refugee status and two for protected person status. None of these claims has succeeded despite appeals to the Refugee Status Appeals Authority (the Authority), the Immigration and Protection Tribunal (the Tribunal), the Minister of Immigration and an application to this Court for leave to apply for judicial review. E’s claims have failed essentially because he has not been believed. He has given multiple different accounts at different times and has candidly admitted that many of his claims were untruthful.
[5] Following delivery of this Court’s judgment dismissing the application for leave to apply for judicial review, E made his third claim for recognition as a refugee and his second for recognition as a protected person. A Refugee and Protection Officer concluded that this claim was manifestly unfounded, clearly abusive and repeated his previous claims. Accordingly, the Officer refused to consider the claim, acting in reliance on s 140(3) of the Act.
[6] E applies for judicial review of this decision. In making this application, E has been ably assisted by Ms Coumbe QC who was appointed by the Court to raise all issues and arguments reasonably available to him.1 It is appropriate to record the Court’s gratitude for the quality of the written submissions and oral argument presented by all counsel.
[7] E claims that the Officer made the following reviewable errors in refusing to consider the present claim:
(a) he failed to apply the correct test under s 140(3);
(b)he failed to consider whether a medical report submitted with the application was “new” evidence;
(c) he erred in finding that the medical report was reliant on E’s own account;
1 E v Chief Executive, Ministry of Business, Innovation and Employment HC Auckland CIV-2015-404-1219, 10 February 2016 (Minute of Duffy J), 8 March 2016 (Minute of Duffy J), and 13 December 2016 (Minute of Hinton J).
(d)he erred in rejecting the medical report on the basis of earlier credibility findings; and
(e) he failed to take other relevant material into account.
[8] Ms Coumbe submits that the test under s 140(3) is stringent and was not made out. She argues that E’s present claim should not have been summarily dismissed, particularly given it is supported by new medical evidence. An order is sought setting aside the decision and directing that another officer consider E’s present claim on its merits.
Background
[9] It is convenient to commence by detailing the prior claims and the decisions declining these claims. This will set the context for assessing the significance of the “new” medical evidence and its relevance to the earlier adverse credibility findings against E. It will also enable the present claim to be compared with the earlier claims.
First claim for refugee status
[10] A refugee is defined by the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees and includes a person who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[11] E made his first claim for refugee status shortly after his arrival in May 2007. In his initial written application, E said that he had been very politically active in Uganda and had been a supporter of the Forum for Democratic Change (FDC). He attached a membership card purportedly issued by FDC in 2002. He also said he was a born again Christian. He said he was previously imprisoned and tortured because of his political beliefs. He claimed he had to leave Uganda because he had been “attacked during a demonstration and was sought by the authorities”.
[12] E expanded on his claim in a written statement he prepared in June 2007 with the assistance of his solicitor. He also gave evidence during the course of an extensive interview conducted by a Refugee Status Officer over a four-day period during July to September 2007. E said that in 2001 he was attacked by police who put him in a car and blindfolded him. They then took him to a place where he was imprisoned for three weeks and repeatedly beaten with batons. He said that after his knee was broken he was “dumped” in a rural hospital but he was later taken to a bigger hospital after relatives paid money to the police.
[13] E said he had to leave Uganda six years later after he took part in a demonstration in April 2007 protesting against a decision by the government to clear the local Mabira forest in order to grow sugar cane. He said the government brought in soldiers dressed in police uniforms who shot at the demonstrators and beat them with sticks. He said he ran home but armed men came looking for him a few days later. He said he was very fearful of what would happen to him if he was caught by the authorities and this is why he decided to leave Uganda and flee to New Zealand.
[14] The Refugee Status Officer declined E’s claim for refugee status for reasons detailed in his decision dated 30 April 2008. The Officer found that many aspects of E’s account, which went to the core of his claim, were not consistent with country information. For example, E claimed to have supported and worked for a political party called Reform Agenda from May 1998 whereas country information showed that this party was not formed until after the 2001 presidential elections. The FDC membership card E produced dated 11 January 2002 was found to be false because the FDC was not established until August 2004 and did not commence issuing membership cards until November 2006. E’s claim that he was paid as a campaign agent and to have been based at FDC national headquarters was contradicted by information supplied by senior FDC officials. The letter E produced purporting to confirm his appointment as a campaign agent of the FDC was also found to be false.
[15] E appealed against this decision to the Refugee Status Appeals Authority. The appeal hearing was conducted over three distinct periods, September 2008, December 2008 and February 2009. This was because E’s instructions to his solicitor
kept changing. Ultimately, E gave four different accounts to the Authority during the course of the hearing.
[16] The Authority recorded the circumstances surrounding each of these changes in its decision dated 28 July 2009 declining the appeal.2
[17] On 3 September 2008, during the third day of evidence (the first account), counsel advised the Authority that they had received instructions from E which amounted to a “significant departure” from his previous instructions and the evidence he had given to the Authority.3 The hearing was accordingly adjourned until December 2008.
[18] When the hearing resumed in December E gave a second account. During the course of hearing this evidence, counsel advised that E had instructed them to inform the Authority that some of the evidence he had given in support of this second account was also not truthful.4 It was agreed that the hearing would be adjourned for a second
time.
[19] When the hearing resumed on 16 February 2009, E made some significant admissions about the untruthfulness of his second account. These were recorded by the Authority as follows:5
[E] now admitted he did not:
(a) hold the positions of junior and full campaign agent in the FDC as he had claimed;
(b) undertake any of the activities in these positions as he had claimed; (c) suffer any arrests, detention or beatings following his release in
2001.
[20] On 17 February 2009, after E gave evidence in support of his third account, counsel asked for yet another adjournment to take further instructions and prepare a
2 Refugee Appeal No 76216 (28 July 2009).
3 At [14].
4 At [25].
5 At [26].
new statement.6 This statement was provided to the Authority on 20 February 2009 and further evidence was given on 25 February 2009. E made further significant admissions that his earlier statements were untrue, which the Authority recorded:7
… [E] now admitted that:
(a) He had not converted to Christianity as he had claimed in his first story. In truth, the appellant was a Muslim and has always been a Muslim;
(b) He did not do anything in respect of the Mabira forest campaign but merely supported those who were actively involved in the campaign;
(c) His wife and other family members had not been assaulted by the authorities because of his involvement in the Mabira forest or the FDC.
[21] E also offered an explanation for making these false claims which the Authority also recorded in its decision:8
He claims that he mentioned to his brothers B2 and B1 the problems he was having in sticking to the false story before the Authority. They had advised him to carry on with the charade but to adjust the dates. He followed this advice and received a further false police bond which he submitted.
[22] The Authority summarised E’s four accounts as follows:9
(a) That he is a Muslim apostate who converted to Christianity. He was an active member of Reform Agenda and the Forum for Democratic Change (FDC) — well known opposition parties in Uganda — in various capacities between 1999 and 2006. He was detained in 2001. He also claimed to have participated in a number of demonstrations in 2007 organised by a coalition of opposition political parties in protest against the Ugandan government’s planned sale of a particular forest (“the appellant’s first story”).
(b) That he is a Muslim convert who held the political positions claimed in his first story. He was detained not only in 2001 but also in 2006. He did not take part in the demonstrations relating to the forest but rather acted as a “mobiliser”, distributing fliers and stickers and generally encouraging other people to join the demonstrations (“the appellant’s second story”).
(c) That he is a Christian convert who, in the period following his detention in 2001 until he resumed activities for the FDC in 2006, had not been actively involved with Reform Agenda or the FDC. He had
6 At [36].
7 At [37].
8 At [37].
9 At [3].
not been detained in 2006. Nevertheless he had acted as a mobiliser in respect of the forest demonstrations (“the appellant’s third story”).
(d) That he is not a Christian convert. He had been involved in the political activities as he claimed in his third story. However, he had not been a mobiliser in respect of the forest demonstrations but had merely supported those who were active. He was at risk because he had been caught at the United States Embassy in Kampala with a passport containing false entry stamps; because he had exposed the people smuggling ring which had brought him to New Zealand and because details of his refugee claim had been published in a Ugandan newspaper (“the appellant’s fourth story”).
[23] The Authority noted that E abandoned the first three of these accounts and finally elected to adhere to the fourth.10 The Authority also recorded E’s admission that he had produced a number of documents in evidence that he knew to be false.11
The Authority then gave convincing reasons why E’s most recent account was “implausible”12 and “far-fetched”.13 The Authority concluded that there was no credible evidence to establish that E has a well-founded fear of being persecuted for a Convention reason and he was therefore not a refugee.14 E’s appeal was accordingly dismissed by the Authority in its decision dated 28 July 2009.
[24] E appealed to the Minister of Immigration on 3 March 2010 but this was declined on 22 September 2010.
Second claim for refugee status and first claim for protected person status
[25] E made a second claim for refugee status and also claimed protected person status in November 2010. A person must be recognised as a protected person if there are substantial grounds for believing that he or she would be in danger of being subjected to torture, arbitrary deprivation of life or cruel treatment if deported from New Zealand. E stated that he feared being arrested, tortured and possibly killed if he returned to Uganda. He said he believed this would happen because of his publicly expressed opposition to the government and the Ugandan authorities’ knowledge that
he is seeking asylum in New Zealand.
10 At [3].
11 At [3].
12 At [75] and [78].
13 At [77].
14 At [109].
[26] The application was assessed by a different Refugee and Protection Officer following a further interview conducted on 24 February 2011. In deciding whether there had been a significant change in circumstances material to the claim since the previous claim was determined and therefore jurisdiction under s 140(1) of the Act to consider it, the Officer summarised E’s original claim (the fourth version) and compared that to the second claim. The original claim was summarised in these terms:
[E’s] original account was based on his claim that he travelled to New Zealand under a false identity via a YMCA scam. He feared that he would be at risk
from the people connected to the YMCA-linked people-smuggling-ring, which also involved a Ugandan security officer. [E] fears he would be accused
of using false documents and charged. He claimed that his name, photograph and details of his refugee claim were published in a Ugandan newspaper. [E] also claimed that he would be investigated about his previous passport which
the US Embassy officials confiscated and sent to the Ugandan authorities in
July 2004 following [E’s] attempt to obtain a US visa under the YMCA scam. He also claimed that he was arrested and tortured, and sustained injuries in
2001 due to his opposition activities, and that he was involved in FDC
campaign in the 2006 election.
[27] The Officer noted that the second claim was “largely advanced” on the same grounds relied on previously, namely:
• The Ugandan authorities may have learned about his travel to New Zealand under a false identity via a YMCA scam and that he would be accused of using false documents and charged.
• He would be at risk from the people connected to the YMCA-scam, including a Ugandan security officer.
• His name and the details of his refugee claim were disclosed and published in a Ugandan media following an enquiry by an RSO about his political involvement with the FDC.
• He was arrested and tortured by the Ugandan security, and sustained injuries in 2001.
• He was involved in FDC campaign in the 2006 election.
[28] However, the Officer observed that since E’s previous claim was determined he had obtained a Ugandan emergency travel card from the Ugandan High Commission in Canberra. As a result, E claimed that the Ugandan authorities learned of his illegal departure from the country and his fraudulent attempt to obtain a United States visa resulting in his passport being confiscated in July 2004. He claimed that his wife had been detained and questioned by Ugandan security officers in
November 2010 concerning E’s “opposition activities” in Uganda and New Zealand. The Officer concluded that there had been a sufficient change in circumstances to justify considering E’s further claim.
[29] The Officer carefully analysed each aspect of the claim and concluded that there was no “real chance” of E being persecuted if he returned to Uganda. His fear of being persecuted was therefore not well-founded. Similarly, there were no substantial grounds for believing that E would be in danger of being tortured, subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand. Accordingly, E’s application was declined on 1 November 2011.
[30] E appealed to the Tribunal on 9 November 2011. The hearing took place over two days, 28 August 2012 and 12 June 2013. The Tribunal issued its decision declining the appeal on 11 February 2014.15
[31] The Tribunal summarised E’s claims at this appeal hearing as follows:16
The appellant maintained his previous claim to be at risk because of past political activities. He renewed his claim that his unlawful status in New Zealand has been brought to the attention of the Ugandan authorities (albeit for different reasons). He also claims that he will attract adverse attention upon his return because he will enter Uganda using an emergency travel document, rather than a passport. He also asserts a new claim that the content of political commentary that he has been posting on the internet since coming to New Zealand will create difficulties for him. He also claims that he is at risk by virtue of association with four dissidents who fled Uganda because they were implicated in a plot to overthrow the government in Uganda. The appellant has never met any of them personally but believes he is at risk because all four have joined his Facebook page. He also claims to be at risk because his brother recently experienced political difficulties of his own. He believes that he will have acquired a profile in Uganda through his involvement with a philanthropist in New Zealand, Alistair Galpin, in connection with a humanitarian engineering project proposed for a part of Uganda. Finally, he claims that he may be at risk by reason of comment made in connection with two Ugandan cricketers who may have sought asylum in New Zealand in 2014.
[32] In rejecting E’s appeal regarding refugee status, the Tribunal concluded that there was no credible evidence that E was of any interest to the Ugandan authorities
15 Re [E] [2013] NZIPT 800261.
16 At [26].
when he left Uganda or that he has become of interest to them since that time.17 The Tribunal considered that any risk faced by E in Uganda was “speculative to the point of being remote”.18
[33] The Tribunal also found that there were no substantial grounds for believing that E was in danger of being subjected to torture, arbitrary deprivation of life or cruel treatment if he returned to Uganda.19 Accordingly, E was not entitled to be recognised as a protected person.
[34] In March 2014 E applied for leave to bring judicial review proceedings against the Tribunal’s decision. The proposed grounds of review were: first, that important medical evidence (a report of Dr Thomas Wenzel) was not before the Tribunal and this would have answered the adverse findings the Tribunal made about E’s credibility; and second, whether s 231 of the Act had been misinterpreted and misapplied by the Tribunal. This section entitles the Tribunal to rely on any finding of credibility or fact made previously by the Tribunal or any appeals body.
[35] In a judgment delivered on 28 November 2014 Venning J concluded that neither of the proposed grounds of review was arguable.20 Accordingly he declined the application for leave to bring the judicial review proceedings.
[36] Dr Wenzel is a professor of psychiatry at the University of Vienna. He and Dr Sebnem Korur Fincanci, a professor of forensic medicine at Istanbul University, were in Auckland in June 2011 to train a group of medical doctors and members of the New Zealand asylum authority on the application of the Istanbul Protocol.21 These two doctors are internationally recognised experts in assessing victims of torture and they
examined E on 21 June 2011.
17 At [94].
18 At [97].
19 At [101] and [105].
20 D v Immigration & Protection Tribunal [2014] NZHC 3017 at [35] and [44].
21 The Istanbul Protocol is a manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment. It was submitted to the United Nations High Commissioner for Human Rights on 9 August 1999.
[37] It was intended that they would prepare a joint report. However, for various reasons (not related to E) their joint report was not completed until July 2014. In the interim, Dr Wenzel prepared a separate report dated 24 August 2012. In this report, Dr Wenzel noted that E’s short-term memory “might be mildly impaired” but stated that his long-term memory “is mostly intact”. Dr Wenzel expressed the opinion that E’s symptoms were “highly consistent” with post-traumatic stress disorder and this in turn was “consistent with events described in the patients documentation and narrative”. This narrative of events was not detailed in the report but was said to be “conveyed separately”. This appears to be a reference to the intended joint report which is now relied on as the “new” medical evidence.
[38] Counsel decided not to produce Dr Wenzel’s report to the Tribunal because she considered it needed to be supported by the expected report from Dr Fincanci. Venning J considered that this was a reasonable decision.22 Instead, counsel provided the Tribunal with a report dated 17 October 2012 from Dr Katie Ritchie, a consultant psychiatrist, stating that E “has a diagnosis” of post-traumatic stress disorder. Counsel also produced a report dated 17 December 2012 from Dr Martin Reeve, the Public Health Medical Officer at the Mangere Refugee Resettlement Centre. This report was not produced for the purposes of the current hearing but its contents were described by Venning J in his judgment. Dr Reeve considered that: E’s left leg bore surgical scars; x-rays disclosed the existence of screws that were consistent with E’s claim to have been hit on the leg with a rifle butt and a baton; and scars on the inner part of his lower left shin and the inside of his left foot were consistent with being caused by a bayonet.23
[39] Venning J concluded that the further medical evidence from Dr Wenzel could not be admitted.24 This was because it was available at the time of the hearing and the Tribunal knew of the prospect of it being available.25 Further, even if the evidence was admitted, it merely confirmed the evidence of Dr Ritchie that E suffers from post-
traumatic stress disorder.26 Venning J considered that the fundamental difficulty for E
22 D v Immigration & Protection Tribunal, above n 20, at [29].
23 At [17].
24 At [27].
25 At [28].
26 At [30].
was that all medical reports, including that of Dr Wenzel, relied on E’s report of his symptoms and the cause of his injuries.27 Venning J considered that Dr Wenzel’s report could not overcome the Tribunal’s finding that there was no credible evidence to confirm how the injuries were caused.28
Third claim for refugee status and second claim for protected person status
[40] In December 2014, soon after delivery of Venning J’s judgment, E brought a third claim for refugee status and a second claim for protected person status. E’s counsel stated that this “claim centres on [E’s] political opinion and membership as a dissident against the Ugandan authorities”. Counsel submitted that a “significant change or piece of new information” was the completed combined report of Drs Wenzel and Fincanci. Counsel further submitted that this medical evidence supported E’s claims that he had been beaten.
[41] The joint report dated 7 July 2014 records the history including the circumstances of E’s arrest as related by E. This was the “narrative including history of alleged torture and mistreatment, as well as medical history” that was referred to by Dr Wenzel as having been “conveyed separately” in his 24 August 2012 report. This history was recorded in the joint report as follows:
In 1998 there had been a casualty where 41 people were killed and he suffered head trauma during this attack. In 2001 he was detained for 3 weeks where he was put in a dark and crowded room. They had squeezed his first toe, forced to fall down and kicked to the wall, a blindfold and handcuffs were applied and beaten where they had hit on his knee with batons which resulted with severe injuries and he had been unconscious for the last week of detention. In 2006 he had been attacked, and kicked severely which caused chest pain. He had an operation after 2001 event and then had to leave Uganda for safety. He worked in his own private electronics job before he left Uganda, and he is worried about his wife and children.
[42] The doctors set out their conclusions as follows:
His medical examination revealed that he had several marks, and particularly a multiple fragmented tibia with an intact fibula which supports his narrative to be beaten severely and his knee was targeted.
27 At [31].
28 At [31].
Psychological/Psychiatric symptomatology and diagnosis assessed together with physical findings based on a thorough medical examination indicate that all physical and psychological findings are highly consistent with the patient’s history of torture and mistreatment.
His history of torture with all described methods is found to be reliable since he also indicated several of the scars to be sustained before detention, not being related with his torture which confirmed his sincerity.
[43] E’s further claim was referred to a third Refugee and Protection Officer. The Officer considered that E’s claim “simply repeated aspects of his previous claim; namely his political opinion and comments made on the internet”. The Officer noted that the Tribunal had already found that there was no credible evidence that E was a person of interest to the Ugandan authorities or that his expression of opinion on the internet would come to their attention or create difficulties for him on his return. The Officer considered that the combined medical report of Drs Wenzel and Fincanci “does not constitute a different ground for the purpose of s 140(3)”. The Officer noted the Tribunal’s finding, which was confirmed by Venning J, that there was no credible evidence to establish how or why these injuries arose. For this reason, the Officer concluded that E’s current claim was manifestly unfounded, clearly abusive and repeated his previous claims. He accordingly refused to consider the claim relying on s 140(3) of the Act.
[44] The present application for judicial review is brought in relation to this decision.
First ground — failure to apply the correct test under s 140(3)?
[45] There are two limbs in s 140(3): the subsequent claim is manifestly unfounded or clearly abusive; and the subsequent claim repeats a previous claim. Although the Officer relied on both limbs, the argument principally focuses on whether the Officer erred in finding that the present claim repeats a previous claim despite being supported by “new” medical evidence.
[46] Ms Coumbe draws attention to the Tribunal’s decision in AO (Afghanistan) holding that a literal interpretation of “claim previously made” is required such that it will only apply to claims previously made that are re-filed without any modification:29
… the phrase “repeats a claim previously made” must be taken as meaning exactly that. This applies where the second or subsequent claim is no more than an unmodified re-filing of a previous claim.
[47] Ms Coumbe realistically acknowledges that the Court might be reluctant to adopt such a literal interpretation. Plainly, there could be no justification for taking such an approach. It would mean that any modification to an earlier claim, no matter how inconsequential, would be sufficient to avoid the operation of the provision and enable an applicant to require the process to be undertaken afresh with the attendant appeal rights. Such an interpretation would defeat the clear legislative purpose which is to prevent the process being abused.
[48] While recognising that the Court may prefer a less literal interpretation,
Ms Coumbe submits that for a claim to repeat a claim previously made, it would need to be obvious on its face that the subsequent claim as asserted in fact adds nothing new. On the other hand, where additional evidence is provided in support of a subsequent claim, s 140(3)(b) cannot be invoked unless it is obvious that the additional material is not credible “new” evidence that was not reasonably available earlier.
[49] Ms Coumbe argues that this test was not applied in this case because the Officer stated that “further evidence in support of a previous claim does not constitute a different ground for the purpose of s 140(3)”. Ms Coumbe submits that this statement does not reflect the statutory language and impermissibly broadens the scope of s
140(3). She argues that the test applied by the Officer would necessarily capture any subsequent claim that differs from a previous claim only to the extent that it relies on further evidence. She says that such an interpretation cannot be correct because it would mean, for example, that where a history of torture was alleged in the previous claim, then any additional independent evidence of such torture, no matter how
compelling, could not found a new claim.
29 AO (Afghanistan) [2015] NZITP 800797 at [33].
[50] Ms Coumbe drew attention to several judgments of this Court dealing with s 140 but none of these address the particular point at issue in this case.30 She also attempted to draw support from United Kingdom and Canadian authorities. However, there are material differences in the legislation and those authorities are consequently of limited assistance.
[51] In the United Kingdom “further submissions” will amount to a fresh claim if they are significantly different from the material that has previously been considered. In R (on the application of HS (Uganda)) v Secretary of State for the Home Department the Court of Appeal of England and Wales considered that a medical report arguably “changed the landscape” of the claim for asylum so as to qualify it as a fresh claim.31 In Canada there is specific provision for “new evidence” to be presented. The United Kingdom and Canadian authorities therefore have to be treated with care before applying them in the New Zealand context.
[52] The equivalent provision in the United Kingdom is r 353 of the Immigration
Rules, which provides:
Fresh Claims
353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.
30 BV v Immigration and Protection Tribunal [2014] NZHC 283, [2014] NZAR 415; CP v The Chief Executive, Ministry of Business, Innovation and Employment [2015] NZHC 3332; BD (India) v The Refugee and Protection Officer [2016] NZHC 1762; and AR v Refugee and Protection Officer [2016] NZHC 2916.
31 R (on the application of HS (Uganda)) v Secretary of State for the Home Department [2012] EWCA Civ 94, [2012] All ER (D) 117 at [62].
[53] The comparable provision in Canada is s 113 of the Immigration and Refugee Protection Act 2001, which enables a person to apply for relief from a removal order. The Canadian scheme contains a fresh evidence provision:
Consideration of application
113Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been
rejected may present only new evidence that arose after the
rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances
to have presented, at the time of the rejection;
[54] There is no equivalent of these provisions in the New Zealand legislation enabling reconsideration of a rejected claim upon receipt of “further submissions” or “new evidence”.
[55] By virtue of s 140(1) of the Act a refugee and protection officer is not permitted to consider a subsequent claim unless there has been a “significant change in circumstances material to the claim” since the previous claim was determined. For the reasons that follow, I consider that “circumstances material to the claim” refers to the facts on the ground supporting the claim, not to the evidence establishing those facts.
[56] First, this interpretation gives the word “circumstances” its natural and ordinary meaning. The primary meaning of “circumstance” according to the New Zealand Oxford Dictionary is:
A fact, occurrence, or condition, esp. (in pl.) the time, place, manner, cause, occasion etc., or surroundings of an act or event.
(in pl.) the external conditions that affect or might affect an action. An incident, occurrence, or fact, as needing consideration.
[57] Second, this interpretation is supported by the second limb of the test in s 140(1) which refers to “circumstances” “brought about by the claimant” for the “purpose of creating grounds for recognition”. The “circumstances” referred to in s 140(1)(b) cannot sensibly mean evidence. There is an obvious difference between “grounds” and “evidence”.
[58] Third, this interpretation fits most naturally with the surrounding provisions. Section 133 of the Act sets out how a claim is made. The person making the claim must provide all relevant information to support it including a statement of the grounds of the claim. In terms of s 135, responsibility is placed on the claimant to establish the claim. The claimant must ensure that all information, evidence and submissions is provided to the refugee and protection officer prior to the determination being made.
[59] The terminology is clear and consistent. The “evidence” proves the
“circumstances” which constitute the “grounds” to establish the “claim”.
[60] While the power to refuse to consider a subsequent claim under s 140(3) of the Act can be exercised without having to address whether the prohibition in s 140(1) applies, these subsections need to be read together to understand the intended scope of subsection (3). The power under subsection (3) to refuse to consider a subsequent claim that repeats a previous claim must extend to claims that have passed, or are at least capable of passing, through the subsection (1) filter. Otherwise, the provision would be otiose.
[61] Here, there is no suggestion that the circumstances — that is the facts on the ground — relied on in support of E’s claim have changed in any material respect. It follows that the Officer would not have been permitted to consider the claim because of the prohibition in s 140(1). He was correct to conclude that s 140(3) was also engaged, because despite the further medical evidence, it was clear on the face of the material provided that the present claim repeated an earlier claim.
[62] In conclusion, while the Officer departed from the precise language of s 140(3) by stating that “further evidence in support of a previous claim does not constitute a different ground”, I am not persuaded that this was a material error. A subsequent claim will repeat a previous claim if the same ground is relied on and there is no material change in circumstances, only additional evidence of the unchanged circumstances. This ground accordingly fails.
Second ground — failure to consider whether the combined report was “new”
evidence?
[63] My conclusion on the first ground is sufficient to dispose of the application because the remaining grounds are contingent on E succeeding on the first ground. However, in case I am wrong on the first issue, I deal briefly with the remaining grounds of review.
[64] Ms Coumbe’s conception of “new” evidence appears to draw on the United Kingdom and Canadian authorities. As noted above, in the United Kingdom “further submissions”, which would include new evidence, may found a “fresh claim”. In Canada there is express provision for “new evidence” to be presented after a claim has been rejected. There is no equivalent in the New Zealand legislation, which makes no reference to “new evidence”. However, for the purposes of addressing this ground of appeal I will assume, contrary to my earlier finding, that further evidence could be regarded as “a significant change in circumstances material to the claim” for the purposes of s 140(1) and qualify a subsequent claim as distinct from a previous claim for the purposes of s 140(3)(b). In that case, a failure to consider whether such evidence was “new”, such that it materially changed the landscape, could constitute a reviewable error.
[65] I do not accept Ms Coumbe’s submission that the Officer failed to consider whether the evidence was new. It is clear that the Officer considered the combined report. He observed that it “relates to [E’s] most recent account of his mistreatment by the Ugandan authorities” which had already been found not credible by the Tribunal.
[66] Dr Wenzel’s opinion in the joint report was that E displayed symptoms highly consistent with chronic post-traumatic stress disorder which was in turn consistent with events described by E. This confirms the evidence that was presented to the Tribunal from Dr Ritchie that E suffers from post-traumatic stress disorder. Dr Ritchie’s evidence was before the Tribunal and does not appear to have been challenged.
[67] Dr Fincanci’s opinion in the joint report was that E’s leg injuries were “highly consistent” with being beaten by a solid object. She noted that E’s intact fibula supports a conclusion that he sustained direct targeted blows on his tibia. This would
suggest that these injuries were not sustained in other types of trauma such as a traffic accident. Dr Fincanci’s opinion confirms the evidence of Dr Reeve that these injuries were consistent with E’s account of having been beaten. The fact that E has these injuries to his leg has never been in dispute.
[68] As noted, the evidence of Drs Ritchie and Reeve appears not to have been contested. The joint report adds nothing material. It is not “new” in the required sense; it does not materially change the landscape. This ground also fails.
Third ground — error in finding that the medical report was reliant on E’s own account?
[69] The “new” medical evidence cannot overcome the fundamental problem E faces. The issue is whether E has a well-founded fear of being persecuted by reason of his political opinion, religion or for some other Convention reason. Drs Wenzel and Fincanci conclude that their physical and psychological findings are highly consistent with E’s history of torture and mistreatment as relayed by him. The dates of arrest and alleged torture were recorded in their report as 1998, 2001 and 2006. The arresting unit was recorded as “Army?” However, this “history” has been discredited, including by E himself.
[70] E told these doctors when they examined him in June 2011 of an “attack” in
1998 in which 41 people were killed and he suffered head trauma. This alleged attack has not featured in any of the numerous detailed accounts given by E in his written and oral evidence over the past 10 years.
[71] E also advised the doctors that he had been unconscious for the last week of his three-week detention in 2001. This was an escalation on anything he had said previously.
[72] E also told the doctors that he was “attacked, and kicked severely” in 2006. However, E told the Authority in February 2009 that he did not suffer any arrests, detention or beatings following his release in 2001. He told the Authority that his
earlier claim about what had happened to him in 2006 was part of the “false story” he was having “problems” “sticking to”.
[73] Whereas E previously claimed that he feared persecution by the government, he now claims that he is “at risk from people connected to the YMCA-linked people-smuggling-ring”.
[74] I readily accept Ms Coumbe’s submission that all relevant evidence should be considered in assessing a claim and that medical findings can corroborate a claimant’s evidence. There is ample authority to support this self-evident proposition.32
[75] However, there are limits to the support that can be drawn from corroborating medical evidence. A medical finding that an injury is consistent with a claimant’s account of torture can support that account but not if other evidence demonstrates its falsity. Here, E has admitted that his account was false. Although he has consistently claimed that he was beaten in 2001, the asserted reason for this beating was his political involvement with Reform Agenda and FDC. However, his claims in that respect were discredited and ultimately acknowledged to be false by E himself.
[76] The Officer was correct to observe that the combined report related to E’s account of what had allegedly happened to him in 1998, 2001 and 2006. The independent psychological and physiological findings could lend support to that account but not if it had already been proved to be false, as was the case here. The claimed history of torture in 1998 never featured in any of E’s claims. The claimed events in 2006 did not feature originally. They were introduced at the appeal hearing before the Authority as part of his “second story” to answer the difficulty that his claimed involvement in FDC could not explain the 2001 beating because FDC was not formed until August 2004 and did not commence issuing membership cards such as he possessed until November 2006. E later acknowledged that he did not hold the positions previously claimed with FDC and did not suffer any beatings following his release in 2001. The events in 2001 do not explain why E left Uganda in 2007 or why
he has a well-founded fear of returning. He claimed to have left Uganda having
32 See, for example, Ameir v The Minister of Citizenship and Immigration 2005 FC 876 at [27]; and
Benzaba v The Minister of Citizenship and Immigration 2015 FC 812 at [6].
participated in the forest demonstration but has since acknowledged that he did not take part in that demonstration. His current claimed fear centres on the circumstances of his departure and the YMCA-linked people-smuggling-ring who assisted him. The joint report does not advance this claim which emerged long after their consultation in June 2011.
[77] I conclude that the Officer did not err. It is clear that the joint report was incapable of materially changing the landscape in this case because it related to E’s false account and could not assist his current claim. This ground must also fail.
Fourth ground — error in rejecting the medical report on the basis of earlier credibility findings?
[78] The Officer took into account that E’s evidence as to how the injuries arose and why they were inflicted was rejected by the Tribunal as not credible. The Officer also referred to Venning J’s conclusion that it “cannot be seriously argued that the Tribunal acted unreasonably in rejecting [E’s] evidence as not credible”.33
[79] Ms Coumbe submits that it was a “clear error” for the Officer to rely on these negative credibility findings to disregard the joint report. She argues that this was a “back to front” approach because the joint report was capable of filling “any deficit of evidence” that led to the adverse credibility findings and may provide independent support for E’s claim, notwithstanding those adverse credibility findings. Ms Coumbe referred to Martineau J’s remarks in Benzaba v The Minister of Citizenship and Immigration:34
The [Refugee Protection Division] 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 reports.
[80] I am not persuaded that the Officer erred in relying on the negative credibility findings as one of his reasons for concluding that it was appropriate to exercise his
33 D v Immigration & Protection Tribunal, above n 20, at [35].
34 Benzaba v The Minister of Citizenship and Immigration, above n 32, at [8].
power under s 140(3) to refuse to consider the current claim. This was expressly permitted under s 141(2) and appropriate in this case.
[81] Section 141(2) provides that a claimant is not entitled to challenge on a subsequent claim any finding of credibility or fact made by a refugee and protection officer or the Tribunal, and that a refugee and protection officer determining any subsequent claim may rely on those findings:
141 Procedure on subsequent claims
…
(2) In a subsequent claim, a claimant may not challenge any finding of credibility or fact made by a refugee and protection officer (or by a refugee status officer under the former Act) or the Tribunal (or by the Refugee Status Appeals Authority under the former Act) in relation to a previous claim by the claimant, and the refugee and protection officer determining the subsequent claim may rely on those findings.
[82] This provision is consistent with the statutory scheme which does not restrict the provision of information and evidence during the initial determination process up to the time of decision and at the hearing of any appeal where there is no restriction on facts being revisited. However, once appeal rights have been exhausted, s 140 operates as a statutory form of res judicata or issue estoppel. Section 141 works in concert with s 140 by preventing claimants from re-litigating in subsequent claims conclusive findings of credibility or fact made in the final determination of an earlier claim by an officer or the Tribunal.
Fifth ground — failing to take other relevant material into account?
Facebook material
[83] When E submitted his current claim, he copied material from his Facebook account to demonstrate that he had been protesting on the internet against the Ugandan government. Ms Coumbe acknowledges that it is difficult to assess the material from the hardcopies provided but she submits that the Officer erred by not taking it into account.
[84] The Tribunal investigated E’s claim that the political commentary he had been posting on the internet since coming to New Zealand might create difficulties for him. The Tribunal accepted that E had commented on publicly available websites on various matters ranging from Ugandan domestic affairs to broader pan-African issues.35 It also accepted that in some of these postings E had made comments strongly critical of the Ugandan government and called for popular uprising. Nevertheless the Tribunal found, based on country information, that there was no credible evidence to believe that E’s expression of opinion over the internet would have come to the attention of the Ugandan authorities or would create any difficulties for him if he were to return to Uganda.36
[85] E is not able to challenge this finding of credibility and fact. The Officer was entitled to rely on these findings by the Tribunal in declining to consider E’s subsequent claim which impermissibly sought to reopen this issue. There is no reason to suppose that the Officer overlooked the Facebook material which formed part of E’s application and was referred to in counsel’s submissions. However, even if he had, the error would not have been material.
E’s brother’s statutory declaration
[86] Ms Coumbe next submits that the Officer failed to consider a declaration provided by E’s brother. This attached copies of three newspaper articles ostensibly published in May 2008, July 2008 and June 2014. The first of these articles is headed “Mabira Rioter Flees Uganda” and commences by stating that a “man believed to have been at the centre of last year’s infamous Mabira demonstration has fled the country”. One of the obvious problems with this article is that E admitted in the course of presenting his “second story” to the Authority in December 2008 that his previous claim that he participated in the Mabira demonstration was untrue.
[87] The second article is headed “Besigye Agent Flees Country” and includes a picture of E. It states that E was a “former campaign agent to the opposition leader”
and suffered “much harassment from the state”. However, this simply repeats his
35 Re [E], above n 15, at [65].
36 At [95].
previously rejected claim. E himself confessed to the Authority in February 2009 that he had never been a campaign agent, contrary to his earlier claim, and that this too was part of the false story he had been urged by his brothers to stick to, adjusting dates as necessary. The suggestion in the article that E was a campaign agent has now been contradicted by E himself.
[88] The Authority addressed these two articles in its July 2009 decision. It rejected as “fanciful” E’s claim that an FDC officer arranged for both articles to be published as a favour to E and as an act of remorse for having failed to recall E’s claimed involvement in the 2006 presidential election.37
[89] The third item purports to be a classified advertisement published in a Ugandan newspaper in June 2014 headed “Uganda Police Force: Police Appeal” with a photograph of E and his name printed underneath. It states:
[E] whose photograph appears above is wanted by Police for offence vids
CRB 81/2011 of CPS Kampala.
Police, therefore, appeals to whoever has any information which may lead to his arrest and prosecution to pass it on in confidence to the nearest Police Station or ring telephone numbers …
[90] Given that the other two articles appended to E’s brother’s statutory declaration are manifestly fraudulent, the prospect that this classified advertisement is genuine seems highly remote. This is particularly so when E has admitted producing false documents in support of his various claims and had previously been urged by his brothers to stick to his false account but change the dates to suit.
[91] I am not persuaded that the Officer overlooked E’s brother’s statutory declaration or these articles that were attached to it. In any event the statutory declaration could not have affected the outcome. In the circumstances it was clearly an abuse of process to seek to have these admittedly false claims reconsidered.
Result
[92] The application for judicial review is dismissed.
37 Refugee Appeal No 76216, above n 2, at [69].
[93] There is no issue as to costs.
M A Gilbert J
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