EF v Refugee and Protection Officer
[2024] NZHC 1999
•19 July 2024
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT 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-2023-404-2192
[2024] NZHC 1999
UNDER the Immigration Act 2009 IN THE MATTER
of an appeal against a decision of the Immigration and Protection Tribunal of New Zealand under s 245 of the Immigration Act 2009
BETWEEN
EF
Appellant
AND
REFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 10 April 2024 (further submissions received 03 May 2024) Appearances:
S R G Judd, D A Manning and S H Lamain for Appellant M Deligiannis and S M Perera for Respondent
Judgment:
19 July 2024
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 19/07/2024 at 3pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
M Deligiannis, Crown Law Office, Wellington S M Perera, Crown Law Office, Wellington
S R G Judd, Barrister, Auckland D A Manning, Barrister, Auckland S H Lamain, Barrister, Auckland
EF v REFUGEE AND PROTECTION OFFICER [2024] NZHC 1999 [19 July 2024]
Table of Contents Para No
Introduction[1]
Background[8]
The first Tribunal decision [14]
The second Tribunal decision[32]
The issues[54]
Discussion[55]
Result[94]
Introduction
[1] EF is a citizen of [redacted] and a New Zealand resident. He was served with a deportation liability notice following conviction for his role in the importation of drugs into New Zealand. His claims for refugee and protected person status were rejected by a Refugee and Protection Officer and his appeals were dismissed by the Immigration and Protection Tribunal.
[2] Subsequently, the Court of Appeal granted leave to appeal on the following question of law:1
Did the tribunal err in its approach to risk assessment and, as a result, did it improperly exclude material information from consideration?
[3] The appellant says that if he is sent back to [redacted], he fears he will be killed by members of a [redacted] organised criminal group (the Syndicate). The appellant says that Syndicate members blame him for the failure of their criminal activities in New Zealand.
[4] The appellant contends that the Tribunal’s approach to determining his claims was incorrect because it engaged in a two-stage assessment consisting of a factual determination followed by a risk assessment based on limited facts. The appellant’s position is that the Refugee Convention requires the decision‑maker to undertake a single-stage risk assessment weighing all facts in the mix except those it can categorically discount. This is because the task of decision‑makers assessing refugee status is not a fact-finding exercise but an assessment of future risk. It is not for the
1 EF v Refugee and Protection Officer [2023] NZCA 372.
Tribunal to make findings about the truth of past events. The appellant says that, by focusing on a fact-finding exercise, the Tribunal improperly excluded material information from the risk assessment.
[5] The appellant says that the Tribunal’s approach is out of step with leading English authority approved by New Zealand courts.2 Karanakaran v Secretary of State for the Home Department sets out a single-stage test where all evidence capable of being given any weight at all is considered in an evaluative assessment of future risk. Evidence can be divided into four categories being:
(1) evidence the decision maker is certain about;
(2) evidence they think is probably true;
(3) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true; and
(4) evidence to which they are not willing to attach any credence at all.
[6] Only category 4 evidence is discounted. All other evidence forms part of the risk assessment. The appellant says this approach is correct and was not followed.
[7] The respondent says that the Tribunal did not err. It says that the approach to risk assessment and refugee status determination is well-settled. When determining whether a person is at risk of future persecution, the decision-maker must consider whether evidence is credible and must identify the relevant facts in order to assess risk. This involves a holistic approach to risk assessment, weighing up all facts and evidence. The respondent says that the approach to risk assessment applied by the Tribunal is consistent with both New Zealand and overseas authorities.
Background
[8] EF was granted New Zealand residence in [redacted] because of his marriage to a New Zealand citizen.
[9] In [redacted], he was sentenced to a lengthy sentence of imprisonment for his role in the importation of drugs into New Zealand. He was sentenced on the basis that
2 Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 (CA) (UK).
he was effectively a drug mule recruited late in the operation. [redacted] the appellant delayed and argued with his co-offenders, leading to threats being made against him.
[10] The appellant and his co-offenders were found guilty at trial and sentenced to various terms of imprisonment. The appellant gave evidence against his co-offenders at trial, although the evidence was of minimal value given that the entire sequence of events was captured by police surveillance.
[11] While in prison, the appellant faced further threats from co-offenders who blamed him for the failure of the operation. He was accused of being an informant. It was not disputed that the appellant spent the entirety of his sentence in segregation from the main prison population.
[12] While in custody, the appellant was in contact with his younger brother G in [redacted]. G informed the appellant, mainly by email, of ongoing threats by the Syndicate against their older brother H.
[13] The appellant made two claims for refugee and protected person status. Both claims were based on alleged risk from the Syndicate. The second claim relied on new evidence namely an allegation that H had been kidnapped and assaulted by the Syndicate in [redacted].
The first Tribunal decision
[14] The first Tribunal decision is dated [redacted]. The first Tribunal identified the issues on appeal as twofold. First, whether the appellant’s account was credible and secondly whether the facts as found met the requisite threshold for risk of qualifying harm (“a real chance” in terms of the claim for refugee status and “danger of” in terms of protected person status).
[15] The first Tribunal set out the appellant’s case and then considered the evidence of [redacted].
[16] [redacted]. He said that H normally lived in [city] but had been on the run for some years because the Syndicate wished to harm him in revenge for the appellant
causing the loss of their drugs. G said that he first became aware of threats to H [redacted] but did not advise the appellant. In [redacted], G wrote to the appellant to tell him that H had been threatened by members of the Syndicate who blamed the appellant for the loss of the drugs.
[17] The first Tribunal noted that the emails from G advising the appellant of the alleged threats began shortly after a further court decision. The implication is that the timing is suspicious and suggests that the threats were manufactured. The timing is certainly capable of affecting the weight to be attached to G’s evidence.
[18]The first Tribunal said:
[44] In determining whether the appellant is a refugee or a protected person, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellant’s account.
[19] It was accepted that during the offending members of the Syndicate became angry that the appellant appeared to be retaining the drugs and not handing them over. There was a flurry of threatening texts and messages received by the appellant. At that stage, members of the Syndicate had reason to assume that the appellant had taken the drugs. The first Tribunal said that the threats made at that time must be seen in that context.
[20] The first Tribunal did not accept that members of the Syndicate continued to suspect the appellant of taking the drugs. The first Tribunal said that whatever their initial suspicions, it would have been patently obvious to the Syndicate that the appellant had nothing to do with the disappearance of the drugs. The first Tribunal considered that the notes of evidence from the trial revealed that the appellant did not give any significant evidence against the other Syndicate members.
[21] The first Tribunal accepted that while in custody the appellant was segregated at his own request from other Syndicate members. The first Tribunal said that the appellant’s subjective fear of the other men was unsurprising. He was not a member of the Syndicate. He was recruited by the Syndicate at the last minute and had received threats from Syndicate members at a time when they assumed him to have taken the
drugs. His subjective fear and his claims to have heard rumours and gossip while in prison did not amount to evidence that there was an existing threat.
[22] In respect of the threats against H following the appellant’s convictions, the first Tribunal did not accept that such threats had been made. In reaching that view it took account of the fact that the [redacted] threats of harm to the appellant’s family members were made at a time when the Syndicate believed the appellant had taken the drugs. Since at least the trial and likely long before that the Syndicate must have understood the appellant was not to blame. The first Tribunal found there was no plausible reason why the Syndicate should now be interested in harming H.
[23] The first Tribunal found that the claims by the appellant and G as to the need for H to go into hiding were implausible. The appellant could not explain why, if it was safe for H’s wife and children to go to stay [redacted], it was not also safe for H to do so. Further, the initial claim that H had to abandon his [redacted] business in [redacted] was undermined by G’s evidence to the refugee status branch as recently as [redacted] 2018 that [redacted] was continuing to run the business. Nor could G sensibly explain why the Syndicate would not have forced H’s business to shut by the simple expedient of scaring off his employees if it was so determined to find and harm him. A claim that H had narrowly avoided being caught by the Syndicate owed more to melodrama than to reality and it was significant that H did not give evidence. The explanation, that G could not contact H because he did not carry a mobile phone to avoid being traced, was dismissed as nonsensical. The appellant’s refugee claim had been in existence since [redacted] and there had been ample opportunity for G to have arranged for H to give evidence.
[24] The first Tribunal said it was implausible that no harm had come to H, even though the Syndicate had supposedly been pursuing him since 2013. The first Tribunal also said it was implausible that a syndicate so intent on sending a message to the appellant would not have sought to harm G who was living, working, and studying openly in [redacted]. G when giving evidence, asserted vaguely, and the first Tribunal said unconvincingly, that unknown people had been coming to enquire about him causing him to leave his home for some weeks. The first Tribunal again found that claim implausible and said it had no doubt that if G had genuinely considered that an
international drug syndicate was hunting for him to harm him, he would not have simply absented himself for a few weeks before returning to the same lifestyle as before.
[25] The first Tribunal then recorded a heading “the facts as found” and under that heading listed the following:
[60] The Tribunal finds that the appellant is a [redacted] man from [redacted]. He holds New Zealand residence [redacted].
[61] The appellant is currently serving [redacted] sentence for his involvement in the importation [redacted] into New Zealand.
[26] The first Tribunal said that the facts as found established that the appellant is not a member of any drug syndicate, he was co-opted by one at the last minute to assist with the collection of drugs. Initial suspicion that he may have betrayed the Syndicate would inevitably have been dispelled by [redacted] and there was simply no reason for members of the Syndicate to harbour ill feeling against the appellant now. The Tribunal said it follows that notwithstanding the common use of violence by drug gangs [redacted], including in acts of retribution, there were no objective grounds for believing that the appellant was at risk of serious harm.
[27] The first Tribunal referred to publicity about the trial and said that it is inherently unlikely that a criminal organisation, which depends on outwitting law enforcement authorities, would not pay close attention to trials in which members were prosecuted. The first Tribunal considered the notion that Syndicate members in [redacted] might still mistakenly blame the appellant to be unreal.
[28] Finally, the first Tribunal said that regard must be had to the passage of time. The appellant was at that point several years into a lengthy sentence. Given the well- documented gang violence in [redacted], the first Tribunal said that it could not say with any confidence that the Syndicate would even exist when the appellant was eventually released, or that its current members would be alive let alone that they would remember him or be able to recognise him, a man none of the [redacted] syndicate members had ever met. The first Tribunal found that there was no antipathy
towards the appellant in [redacted] but even if there had been, it would be no more than speculative to find that it would still exist by the time of his release.
[29] The first Tribunal found that while the evidence of the offending and the appellant’s conviction was obviously correct, his claim to be the subject of ongoing adverse interest by the Syndicate was not credible. The evidence did not disclose a real chance of the appellant suffering serious harm arising from breaches of human rights if he returns to [redacted]. Accordingly, the threshold of risk was not met, and the appeal was dismissed.
[30] Given those findings, the first Tribunal did not need to address whether there was a convention reason for the persecution or whether the appellant was excluded from the protection afforded by the Refugee Convention under art 1F(c).
[31]The conclusions reached by the first Tribunal were that the appellant was:
(a)not a refugee within the meaning of the Refugee Convention;
(b)was not a protected person within the meaning of the Convention Against Torture; and
(c)was not a protected person within the meaning of the International Covenant on Civil and Political Rights.
The second Tribunal decision
[32] A second appeal was brought on the basis of new evidence namely an alleged kidnapping and assault of H following the first Tribunal decision. The second Tribunal decision was released on [redacted] 2022.
[33] The second Tribunal approached the decision by first setting out the evidence of H which was the only significant further evidence. H gave evidence that in [redacted] he began experiencing problems with the Syndicate. At the time, he had a [redacted] business (not an [redacted] business as the appellant stated in his first claim). H said he was visited in his shop by a person who informed him that the
appellant was trying to steal drug money. This person was threatening and told H to call the appellant and get him to return the money. H said that this heralded the beginning of a three-year campaign of sustained harassment and threats from the Syndicate which continued during and after the appellant’s trial. H said he was warned that he and his family would suffer consequences if the Syndicate did not get their money back. H said that, fearing for his safety and that of his family, he moved address however, the gang discovered his whereabouts and so he moved again. In [redacted] took his wife and children to stay [redacted]. Threats by the Syndicate made business progressively more difficult and by [redacted], H was forced to shut his business altogether and move from place to place to avoid the Syndicate.
[34] H said that in [redacted] he was kidnapped by [redacted]. He was blindfolded and driven to a house where he was left alone in a room for a day. He was held for three days during which he was regularly assaulted and asked where the money was. On the last day, his foot was deliberately punctured with a metal object so he would “always remember his motivation to look for the money.” H said that after his release he went into hiding in a West African country. Since then, he had only returned to [redacted] once following the death of his father in 2020. He did not attend the memorial or go to his father’s house located in their family village. said he had encountered no further problems with the Syndicate since the kidnapping. G had not encountered problems, something that H put down to the fact that G is considerably younger than himself and the appellant.
[35] The second Tribunal recorded H’s evidence that the appellant would be in danger in [redacted] and said that the Syndicate had indicated to him that they were aware the appellant was still in prison but that proceedings were underway relating to his eventual return to [redacted]. H gave evidence that he was “running for his life” at the time of the previous hearing and had cut off most communication with G.
[36] G also gave evidence at the second Tribunal hearing. He said that he became scared after an unknown person came looking for him at his previous address while he was away. G left his address for two or three weeks before returning. Three or four months later, in [redacted], he moved to a new residence. G said there had been no suspicious visits at his current address, nor had he experienced other problems.
[37] The second Tribunal set out the evidence of the appellant including the fact that one member of the Syndicate had recently been deported [redacted]. The second Tribunal accepted that the prison “grapevine” meant that the appellant’s eligibility for parole would become known to the Syndicate. The appellant gave evidence that the Syndicate would understand that, if paroled, he would be deported [redacted]. The Syndicate would be able to locate him. The appellant had no means of paying back the money and said he was at risk of being killed and/or subjected to serious physical harm.
[38] An undated statement of a lawyer [redacted] attaching a [redacted] affidavit was relied on by the appellant. The affidavit stated that H visited the lawyer on [redacted] and that the lawyer sighted injuries to H and particularly to H’s foot. The lawyer stated that H told him that the injuries were inflicted by members of a drug cartel who were demanding money from the appellant and that the cartel had threatened to kill the appellant wherever he is [redacted]. The lawyer confirmed that H swore an affidavit dated [redacted] regarding that incident and gave his opinion that it would not be safe for the appellant to return [redacted] because there is a trend [redacted] for drug cartel members to kill people over drug related matters.
[39] The second Tribunal decision contains a heading “Assessment” under which it reads:
[31] In determining whether the appellant is a refugee or a protected person it is necessary to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellant’s account.
[40] Before making the assessment, the second Tribunal set out its approach to issues of credibility and its decision-making process. The second Tribunal said that, contrary to the submissions of both parties at the hearing, the model taken in New Zealand refugee status determinations is a single-stage assessment consistent with the approach in Karanakaran.
[41] The second Tribunal said that what the appellant’s counsel characterised “as an erroneous or impermissible first stage”, being the “credibility” and “findings of facts” sections, is simply the mechanism by which the Tribunal identifies, with reasons, those portions of the evidence about which it has no real doubt. In terms of
the Karanakaran evidential schematic, this part of the process simply functions to highlight those portions of the evidence to which it is “not willing to attach any credence at all” and thus are to be given no weight in the forward-looking assessment of risk.3 These are the category 4 factors on a Karanakaran analysis.4
[42] The Tribunal said that the structure of its decisions did not convert the underlying process into a “two-stage process.” Rather it reflected that this element of the decision‑making process engages a duty to give adequate reasons just as much as those elements relating to the assessment of future risk. All assertions of fact not identified as being “not credible” are accepted although the assertions will vary in their relevance to the asserted risk depending on the claim advanced. Some will be accepted because they are demonstrably true. Others will be accepted because the benefit of the doubt is applied (for example where the appellant’s oral evidence is plausible but lacks corroboration). In recording the facts, the second Tribunal said that it typically summarises the key facts relevant to the risk enquiry.
[43] The second Tribunal said that it does not and never has approached credibility assessments on the basis of there being an applicable “standard of proof.” It has consistently recognised that its function and task is fundamentally evaluative. It is for this reason that its credibility assessments do not distinguish in the “facts as found” section between the remaining Karanakaran categories. In the “facts as found” section of any tribunal decision, there will be differing degrees of certainty the decision-maker has in relation to those facts but, for good reason, no distinction is made between them.
[44] The second Tribunal said that any differentiation between the accepted facts relates to their relative significance in the forward-looking risk assessment, not the underlying status as accepted facts upon which that assessment rests. In other words, they are weighted in terms of risk, not relative certainty. Each is an accepted fact and is regarded as equally true.
3 Kaja v Secretary of State for the Home Department [1995] ImmAR 1.
4 Karanakaran v Secretary of State for the Home Department, above n 2, at 459
[45] The second Tribunal said that in many ways the “benefit of doubt” principal is a misnomer. In truth, it is an expression of uncertainty. It only comes into play when there are factors which cause the decision-maker to have concern about categorising the asserted fact as one for which they have “no real doubt.” In recognising the dangers of making “the wrong mistake” uncertainty is resolved in the appellant’s favour.
[46]The second Tribunal quoted DS (Iran) where it was said:5
[1] The process of refugee status determination has aptly been described as inherently one of the most challenging in the legal world; … . The process involves evaluating future risks, not judging the more believable of two competing accounts of past events. It is not generally possible to verify a claim by conducting investigations in the country of origin to test the assertions made by the claimant; …. Typically, the only witness of fact will be the claimant, sometimes traumatised, and with cultural traits and life experiences often very different from those of the decision-maker. Speaking extra- judicially, Sir Stephen Sedley, former Lord Justice of Appeal in the United Kingdom, correctly observed that the process involves making ‘a possible life- and-death decision extracted from shreds of evidence and subjective impressions”, in a jurisdiction which “has neither the falsifiability of a science nor the completeness of an art’.
[47] The second Tribunal said that the realities are well understood by it and that its approach to both credibility and the assessment of risk reflects this.
[48] In assessing the credibility of evidence in the second claim, the second Tribunal said that the striking feature of the claim was the emergence in [redacted] of an incident in which H claimed that he was kidnapped and injured in the foot with a metal implement in what was described as a “final warning.” The second Tribunal regarded it as significant that, in the decision declining the first appeal one of the reasons the first Tribunal gave for rejecting the credibility of the claim was precisely because H had not been harmed by the Syndicate. The first Tribunal’s decision in respect of the appellant’s first claim was issued [redacted], a mere three months before the claimed kidnapping incident occurred. This raised a concern that the incident was manufactured in response to the first Tribunal’s finding.
5 DS (Iran) [2016] NZIPT 800788.
[49] While there was no doubt that H had suffered a puncture wound to the sole of his foot, the location and nature of the injury suggested that it was far more likely to have been caused by H stepping on something sharp by accident. The credibility issues, when aggregated, left the second Tribunal with no uncertainty that the claim of alleged kidnapping and mistreatment of H was untrue. In respect of G, the second Tribunal found his evidence was measured and credible but did little to advance the appellant’s assertion that there was a real chance that he would be subjected to retaliatory action by the Syndicate if returned [redacted].
[50] The second Tribunal found no reason to depart from the first Tribunal’s findings that, although the Syndicate may have thought at the time of the seizure of the drugs [redacted], that the appellant was to blame, the trial would have made it very clear this was not the case.
[51] The second Tribunal then set out the facts in a section of the decision headed “The facts as found” and said:
[66] The Tribunal adopts the findings of fact made by the first panel, namely that the appellant is [redacted] man from [country]. He holds New Zealand residence [redacted].
[67] The appellant is currently service a [redacted] sentence for his involvement in the importation of [redacted] into New Zealand. [redacted].
[68] The appellant has two brothers. [H] resides in a [redacted] where he is assisting a friend for his employment. This brother’s family live with [redacted]. [O] has recently [redacted] and lives in [city]. [redacted], an unknown person visited his former residence and, as a precautionary measure, he changed his place of residence.
[52] The second Tribunal accepted that [redacted] was experiencing a prevalence of drug syndicates and subsequent anti-social impacts.
[53] Having discounted the new evidence of H, the second Tribunal found that the appellant was not entitled to be recognised as a refugee or as a protected person.
The issues
[54]The question of law to be decided comprises two distinct questions:
(a)Did the Tribunal err in its approach to risk assessment?
(b)If it did, did the Tribunal, as a result, improperly exclude material information?
Discussion
[55] The appellant submits that the correct approach is that taken in Karanakaran and says that the way in which both Tribunals approached the decision-making process was not in accordance with Karanakaran.
[56] Karanakaran confirmed the approach taken by the Immigration Appeal Tribunal in an earlier decision Kaja v Secretary of State for the Home Department.6 The Court in Karanakaran summarised the effect of Kaja saying:7
The majority of the tribunal considered that the question they had to decide was whether the assessment of an asylum case was a two-stage process or a one-stage process. They considered that it was a one-stage process. The task of the decision-maker was to assess, to a reasonable degree of likelihood, whether the applicant’s fear of persecution for a convention reason was well- founded. It might be that there were parts of the evidence which on any standard were to be believed or not to be believed. Of other parts, the best that might be said of them was that they were more likely than not. Of other parts it might be said that there was a doubt. The need to reach a decision on whether an appellant had made his case to a reasonable degree of likelihood, arose only on the ultimate evaluation of the case, when all the evidence and the varying degrees of belief or disbelief were being assessed.
The majority considered that if there was a first stage (proof of present and past facts) followed by a second stage (assessment of risk) then any uncertainties in the evidence would be excluded at the second stage, and that this could not be right. In those circumstances, they considered that the introduction of an intervening stage was simply an unnecessary complexity.
…
What they decided was that when assessing future risk decision-makers may have to take into account a whole bundle of disparate pieces of evidence:
(1) evidence they are certain about;
(2) evidence they think is probably true;
6 Kaja v Secretary of State for the Home Department, above n 3.
7 Karanakaran v Secretary of State for the Home Department, above n 2, at 458–459.
(3) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true;
(4) evidence to which they are not willing to attach any credence at all.
[57] The effect of such an assessment is that the decision-maker would not exclude any evidence except category 4 evidence. Category 3 evidence, although unproven on the balance of probabilities, would remain relevant to the risk assessment.
[58] The Court in Karanakaran summarised the similar approach taken by a line of Australian authorities before Brooke LJ concluded with the agreement of the rest of the Court:8
This approach does not entail the decision-maker (whether the Secretary of State or an adjudicator or the Immigration Appeal Tribunal itself) purporting to find ‘proved’ facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). Similarly, if an applicant contends that relevant matters did not happen, the decision-maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did in fact happen.
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.
[59]Sedley LJ observed:9
No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it.
[60] The Australian authorities which informed the Court in Karanakaran include Minister for Immigration and Multicultural Affairs v Rajalingam,10 and Abebe v Commonwealth of Australia.11
8 At 469–470.
9 At 479.
10 Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, (1999) 93 FCR 220.
11 Abebe v Commonwealth of Australia (1999) 197 CLR 510.
[61] More recent Australian authorities have again confirmed Karanakaran and Abebe. In BAO16 v Minister for Immigration and Border Protection the Court cited with approval the remarks of Brooke LJ in Karanakaran quoted above and found that a decision-maker had improperly excluded information from the risk assessment.12 The Court said:13
The decision-maker must still consider the extent to which it is likely that the claimed event occurred in assessing whether the claimant has a well-founded fear of persecution, and the decision-maker cannot avoid “reasonable speculation” about the chances of persecution when the claimant’s material is considered as a whole. In so doing, and as part of the core task of evaluating and weighing the evidence, the decision-maker must consider how much weight should be given to these matters, having regard to the other claims and the evidence in the case. The assessor in this case apparently failed to appreciate that, in considering the issue of well-founded fear, hers was essentially an evaluative task.
[62] The Australian jurisprudence on the Refugee Convention uses the word “speculation” to describe a legitimate exercise falling short of fact finding.
[63] In the leading judgment of the High Court of Australia Minister for Immigration and Ethic Affairs v Wu Shan Liang Kirby J said:14
… the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: “What if I am wrong”?15 Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems “likely” or “entitled to greater weight”, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution.’
[64]In Wu Shan Liang Kirby J concluded:16
Ultimately, the question is whether the [decision-maker] allowed her mind to consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the “real”,
12 BAO16 v Minister for Immigration and Border Protection [2018] FCA 1463.
13 At [91].
14 Minister for Immigration and Ethic Affairs v Wu Shan Liang (1196) 185 CLR 259 at 507–508.
15 Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441 per Einfeld J.
16 Minister for Immigration and Ethic Affairs v Liang, above n 14, at 508.
as distinct from fanciful, “chances” would bring if the applicant were returned to China.
[65] In Minister for Immigration in Multicultural Affairs v Rajalingam the Court adopted the following finding by Drummond J in Thanh Phat Ma v Billings:17
… unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.
[66] Brooke LJ in Karanakaran, summarising the principles derived by Sackville J in Rajalingam said:18
There may be circumstances in which a decision-maker must take into account the possibility that alleged past events occurred even though it finds that these events probably did not occur. The reason for this is that the ultimate question is whether the applicant has a real substantial basis for his fear of future persecution. The decision-maker must not foreclose reasonable speculation about the chances of the future hypothetical event occurring.
[67] The New Zealand approach and whether it amounted to an impermissible two‑stage analysis was considered but not decided by the Court of Appeal in DY (Pakistan) v Refugee and Protection Officer.19
[68] The principles set out in Karanakaran have been cited with approval by the Tribunal and by New Zealand Courts.20 References to Karanakaran have however tended to focus on other aspects of the decision particularly the rejection of a balance of probabilities test for the determination of relevant risk factors. Karanakaran is authority for the proposition that the benefit of the doubt in respect of refugee status determinations operates to resolve doubt in favour of a claimant. This is uncontroversial in New Zealand and appears to be accepted as correct and applied by the Tribunal. Where the Tribunal has a doubt about whether evidence can be placed
17 Thanh Phat Ma v Billings (1996) 71 FCR 431 at 436.
18 Karanakaran v Secretary of State for the Home Department, above n 2, at 468.
19 DY (Pakistan) v Refugee and Protection Officer [2021] NZCA 522.
20 Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) endorsing Refugee Appeal No 72668/01 [2002] NZAR 649 which cited Karanakaran v Secretary of State for the Home Department, above n 2.
in category 4 of the Karanakaran categories (and therefore discounted) the benefit of that doubt should be resolved in favour of the applicant.
[69] The second Tribunal purported to adopt the Karanakaran approach and agreed it is the correct approach. The second Tribunal said that it did apply a single-stage test consistent with Karanakaran and that the structure of the decision was simply a convenient way to organise its reasons.
[70] A reading of both decisions does not sit easily with the contention that the Karanakaran approach was followed. Both Tribunals appear to completely dismiss the risk that Syndicate members remain angry with the appellant. The Tribunals appeared to find that members of the Syndicate would inevitably take a logical and reasonable approach to blame relying on the evidence at trial and would realise that the appellant was not to blame for the interception of the drugs. It seems optimistic, however, to entirely dismiss the risk that Syndicate members would continue to hold an adverse view of the appellant. The Tribunals had no way of knowing the size of the Syndicate or how connected all members were to each other or indeed how rational and logical individual members of the Syndicate might be. The Tribunals did not factor in the risk of misinformation.
[71] This is not to say that the risk of the Syndicate members continuing to hold an adverse view of the appellant is in any way decisive. That risk must be weighed against the passage of time, the fact that [redacted] based syndicate members never met the appellant, and the measures the appellant himself can take to ensure he remains distant from drug syndicates. The problem is that the Tribunal appears to have discounted entirely a risk that should have been weighed in the balance.
[72] Part of the problem is the way the Tribunal structures its decisions. It may well be correct that the Tribunal endeavours to take an evaluative and holistic approach to risk assessment but that is not apparent from the decisions. Rather the decisions are structured in such a way that it appears that the Tribunal has made factual findings discounting risk factors and has then assessed future risk with no reference to risk factors which should not have been entirely discounted. Where the Tribunal has found that a particular risk factor carries no weight at all, it is proper to disregard it, but not
all the risk factors which are absent from the final analysis appear to fall into that category.
[73] It is important that refugee status decisions are structured in such a way that the decision-maker cannot dismiss risk factors that are difficult to resolve. It is also important that the decisions are set out in such a way that the actual reasoning process is apparent. This provides for a robust reasoning process and ensures that all relevant risk factors are properly weighed as part of the ultimate enquiry.
[74] I have little difficulty in concluding that the Karanakaran approach is the correct approach. This aligns the New Zealand approach to that of both Australia and the United Kingdom. In Tamil X v Refugee Status Appeals Authority, the Court of Appeal said that whether a person qualifies as a refugee should not vary depending upon the jurisdiction in which the person makes the claim.21 As an international treaty the Refugee Convention should receive a uniform interpretation across jurisdictions which are party to it.22
[75] There is also no question that the Tribunal is entitled to make credibility findings. Under s 135 of the Immigration Act it is the responsibility of a claimant to establish their claim for recognition as a refugee or a protected person. Section 137(5) of the Immigration Act specifically states that a Refugee and Protection officer in determining the status of a claimant “may make findings of credibility or fact.”
[76] The correct approach to credibility assessments in the context of applications for refugee or protected person status is well-settled in New Zealand.23 Because there are real limitations upon an applicant in establishing a refugee claim through supporting evidence, a generous approach is called for, which includes the benefit of a 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.24 Statements which are sought to be relied on must not run counter to
21 Tamil X v Refugee Status Appeals Authority [2009] NZCA 488, [2010] 2 NZLR 73 at [151].
22 At [151].
23 AR v Immigration and Protection Tribunal [2017] NZHC 2039, [2017] NZAR 1524 at [10].
24 BV v The Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139 at [6]; and
Jiao v Refugee Status Appeals Authority, above n 20.
generally known facts. Even if the broad framework of an applicant’s contentions is coherent, detailed inconsistencies destructive of credibility should not be disregarded.25 There is nothing objectionable in rejecting an applicant’s claim by reference to various inconsistencies.
[77] In Attorney-General (Minister of Immigration) v Tamil X the Supreme Court held that the inapplicability of rules of evidence gives the authority a broad discretion as to what material it obtains and uses in consideration of a claim.26 A realistic and careful approach to that material must be taken having regard to the evidential gaps and other difficulties that refugee claimants face in making their claims. A legitimate and important consideration will often be whether the applicant’s evidence is credible and plausible.27
[78] The question in the present case is not whether the Tribunal can make credibility findings nor is it whether the credibility finding in respect of H’s evidence about the alleged kidnapping was open to the Tribunal. Both of those questions can be easily answered in the affirmative. The question concerns the correct methodology to be applied to the decision-making process.
[79]In Karanakaran Brooke LJ dealt with methodology to be applied and said:28
I express no view on the merits of that decision. That is, and must be, a matter for the judgment of the members of that experienced specialist tribunal, and unless they have committed some error of law this court will not interfere with their judgment. What is relevant in the present context is the methodology they adopted. Unless something is so trivial that even on a cumulative assessment it would be bound to carry no weight, or the decision-maker has no real doubt that it is entitled to discard some point from its consideration altogether, it would be wrong to eliminate that point completely.
[80] The correct approach is to identify the evidence relied on by both parties and to determine whether any evidence falls into category 4 of Karanakaran. That may well involve credibility and plausibility assessments. Evidence which falls into category 4 carries no weight and can be discounted. The tribunal must assess risk
25 Cao v Immigration and Protection Tribunal [2014] NZHC 259 at [18].
26 Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 at [44].
27 At [44].
28 Karanakaran v Secretary of State for the Home Department, above n 2, at 471.
taking into account all of the remaining evidence. Matters which carry little weight individually may cumulatively establish that the appellant’s fear of persecution is well founded. Equally matters which mitigate risk may cumulatively operate to establish that there is no real risk or that the risk can be adequately managed in the appellant’s home country.
[81] An example in the present case would be the evidence that the appellant was previously threatened by members of the Syndicate. That carries weight but the weight must be balanced against the fact that the appellant did not in fact betray the Syndicate and that should now be known to the Syndicate. That must in turn be balanced against the risk of misinformation and incorrect information being relied on by Syndicate members. The previous threats must be balanced against the passage of time, the fact that the appellant is not personally known to the members of the Syndicate and the lack of any harm or approach to G or other members of the family who would be relatively easy to locate.
[82] This evaluation of weight was discussed by Brooke LJ in Karanakaran who said:29
… when assessing the future, the decision-maker is entitled to place greater weight on one piece of information rather than another.
…
This balancing exercise may necessarily involve giving greater weight to some considerations than to others, depending variously on the degree of confidence the decision-maker may have about them, or the seriousness of their effect on the asylum-seeker’s welfare if they should, in the event, occur.
[83] Brooke LJ approved the Tribunal’s technique in Sayandan’s case of evaluating both the likelihood of a risk eventuating and the seriousness of the consequences if it were to eventuate.30 Brooke LJ said it was also correct for the Tribunal to assess the cumulative effect of the matters it was considering, particularly if there was a likelihood that they would all affect the applicant at the same time.31 Some evidence will carry much weight, some will not. Some will carry no weight at all. The decision-
29 At 470.
30 At 471 referring to Sayandan v Secretary of State for the Home Department IAT, 5 March 1998 (UK).
31 At 471–472.
maker must evaluate the cumulative weight of the evidence to determine whether the applicant meets the criteria for recognition as a refugee or protected person.32
[84] The Tribunal should be able to articulate its reasons for placing little weight on some parts of the evidence and more weight on others. It is important to remember that it is not necessary to reject the entirety of a witness’s evidence. A witness may exaggerate a threat, but some weight may be placed on the evidence that there is a threat, that weight being reduced by apparent exaggeration.
[85] It is entirely unclear from the decisions what weight if any was attached to the risk of deported co-defendants continuing to bear a grudge against the appellant despite the trial evidence. The Tribunal needed to ask itself what if the co-defendants still thought the appellant responsible in some way for what happened? What if they hold an irrational view about that? What is the risk they would seek him out? What is the likelihood they would have a chance encounter and if they did would they recognise him? This is the sort of speculation about the chances of hypothetical future risk envisaged by the Australian authorities. All of those questions may be answered by competing factors that mitigate risk, but such questions need to be considered.
[86] The format of both decisions supports the appellant’s contention that the Tribunal engaged in a two-stage approach whereby it considered and discounted evidence of past facts before moving onto an assessment of risk based on a narrow view of the facts.
[87] The second Tribunal said that the “credibility” and “findings of facts” sections, are simply the mechanism by which the Tribunal identifies, with reasons, the portions of the evidence about which it has no real doubt. That is difficult to reconcile with the items listed under the “facts as found” heading in both decisions. In the first decision, the only facts listed were that the appellant is a [redacted] from [country] who holds New Zealand residence [redacted]. [redacted], and the appellant is currently serving a lengthy sentence for his involvement in the importation of drugs into New Zealand. In the second decision the second Tribunal adopted the facts as found by the first Tribunal and added information about the appellant’s brother G receiving a visit from
32 See James A Sweeney “Credibility, Proof and Refugee Law” (2009) 21 IJRL 700.
an unknown person which caused him to change his place of residence as a precautionary measure.
[88] Other facts about which the Tribunal can have had no doubt are not listed in the “facts as found section.” This includes the fact that the appellant was subjected to threats from the Syndicate, he was segregated for his entire prison sentence, and his co-defendants have been deported to [redacted]. These facts are mentioned elsewhere but if the “facts as found” section is a way to set out the facts about which the Tribunal has no doubt, it does not do that. The structure of the decisions is such that a two-stage process is encouraged even if that is not intended.
[89] It is impossible to avoid the conclusion that the Tribunal excluded material information from consideration. The most obvious example is consideration of the risk that Syndicate members would continue to harbour ill-feeling toward the appellant notwithstanding the evidence at trial. The Tribunal appeared to completely disregard that possibility. The Tribunal assumed a logical and rational approach by all members of a drug syndicate. Had the analysis been carried out in the way suggested in Karanakaran, the possibility of ongoing ill-will by the Syndicate towards the appellant could not be completely discounted. It may well be that the evaluation of the weight to be attached to that risk would result in the same outcome, but it should not have been excluded from consideration.
[90] The second Tribunal differed from the first in its view of G’s credibility. There was no discussion of the evidence that G became aware of ongoing threats between [redacted]. Again, the weight of that evidence might have been considerably affected if the information came to G from H. But that was not considered. If the information did come from H that would suggest that H was complaining of ongoing threats from [redacted]. That might properly have led the Tribunal to consider whether any credence should attach to H’s evidence even if the later kidnapping claim was entirely discredited.
[91] In the present case, the Tribunal did err in its approach to risk assessment by failing to clearly distinguish evidence to which no credence at all should be attached from evidence which did have some credence. The Tribunal also erred by failing to
clearly evaluate the weight to be applied to evidence to which it attached little credence but nevertheless remained in the mix.
[92] It follows from this discussion that the question posed by the Court of Appeal must be answered in the affirmative. The Tribunal did err in its approach to risk assessment and, as a result, it did improperly exclude material information from consideration.
[93] There was a suggestion that this Court should determine the substantive issue. I agree with Wylie J who said in the unsuccessful High Court leave application that it is far from clear that a different approach would lead to a different outcome for EF.33 That is a matter best determined by the Tribunal whose members have specialist expertise and experience in this area.
Result
[94] I answer the question of law in the affirmative and I remit the matter to the Tribunal for rehearing.
Wilkinson-Smith J
33 EF v Refugee and Protection Officer [2022] NZHC 3371 at [40(e)].
0
12
1