EF v Refugee and Protection Officer - [2024] NZHC 1999

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read EF v Refugee and Protection Officer and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1999
Decision Date: 19 July 2024

CaseChat Overview and Summary

EF, a citizen of a redacted country and New Zealand resident, appealed against a decision of the Immigration and Protection Tribunal of New Zealand, which rejected his claims for refugee and protected person status and dismissed his appeals. The appellant contends that if he is deported to his home country, he fears he will be killed by members of an organised criminal group known as the Syndicate. The Court of Appeal granted leave to appeal on the question of whether the Tribunal erred in its approach to risk assessment and, as a result, improperly excluded material information from consideration. The appellant argues that the Tribunal engaged in a two-stage assessment consisting of a factual determination followed by a risk assessment based on limited facts. The appellant contends 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. The respondent argues that the approach to risk assessment and refugee status determination is well-settled and that the Tribunal's approach to risk assessment was consistent with both New Zealand and overseas authorities. The Court found that the Tribunal erred 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. The Court answered the question of law in the affirmative and remitted the matter to the Tribunal for rehearing.

Orders