EW (Sri Lanka) v Refugee Protection Officer
[2018] NZHC 2130
•17 August 2018
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-2018-404-461
[2018] NZHC 2130
UNDER The Immigration Act 2009 s 245, The 1951 Convention Relating to the Status of
Refugees, and its 1967 Protocol and The International Covenant on Civil and Political Rights and the Convention Against TortureBETWEEN
EW (Sri Lanka) Applicant
AND
THE REFUGEE PROTECTION OFFICER
Respondent
Continued over page … CIV-2018-404-466
Hearing: 15 August 2018 Appearances:
R S Pidgeon for the Applicants
MGA Madden and Z R Johnston for the Respondents
Judgment:
17 August 2018
JUDGMENT OF MUIR J
This judgment was delivered by me on Friday 17 August 2018 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Counsel/Solicitors:
R S Pidgeon, Barrister, Mairangi Bay P Pang, Integritas Law Firm, Auckland MGA Madden, Crown Law, Wellington Z R Johnston, Crown Law, Auckland
EW (Sri Lanka) v THE REFUGEE PROTECTION OFFICER [2018] NZHC 2130 [17 August 2018]
UNDERThe Immigration Act 2009 s 249, The 1951 Convention Relating to the Status of Refugees, and its 1967 Protocol and The International Covenant on Civil
and Political Rights and the Convention Against Torture
BETWEENEW (Sri Lanka) Applicant
ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
ANDTHE REFUGEE AND PROTECTION OFFICER
Second Respondent
Introduction
[1] The applicant seeks leave to appeal or review a decision of the Immigration and Protection Tribunal (the Tribunal) in which it declined an appeal from the Refugee and Protection Officer (RPO) refusing to consider his second claim for refugee or protected person status. Both the RPO and Tribunal decisions are premised on an absence of jurisdiction to entertain the claim on the grounds that there had not been, as required by the Immigration Act 2009 (the Act) “a significant change in circumstances material to the appellant’s claim since the previous claim was determined”.1
[2] For reasons which appear below I consider the application for leave to appeal appropriately granted and the application for leave to review dismissed.
Background
[3] The applicant arrived at Auckland International Airport on 30 March 2014 where he claimed refugee status. He had earlier (2010) travelled (via the Netherlands) to Belgium where he had made the same claim. In September 2011 that claim was declined and in January 2012 an appeal from that decision was dismissed. The applicant lodged a second refugee claim but the Belgian authorities declined to consider it and he was returned to Sri Lanka where he remained until his departure for New Zealand in April 2014.
[4] His claim to refugee status in New Zealand was premised on his being suspected by Sri Lankan authorities as having had associations with the Liberation Tamil Tigers of Elam (LTTE). He claimed that he was at risk of harm by Sri Lankan authorities on account of this association. The same allegations also underpinned his claim for refugee status in Belgium.
[5] The claim to refugee status was rejected by the two RPOs who considered it on the basis primarily that:2
1 Immigration Act 2009 ss 140(1)(a) (RPO decision) and 200(1)(a) (Tribunal decision).
2 Refugee and Protection Status decision dated 26 June 2014 at [21].
The various inconsistencies and the evolving nature of [the applicant’s] evidence, cumulatively, has resulted in [the applicant’s] credibility [being rejected in its entirety]. None of the key events here alleged as occurred to him are accepted as factual.
[6] The applicant appealed that decision to the Tribunal. It dismissed his appeal on 14 January 2015. It rejected the applicant’s claims that he had been arrested and detained in 2008 and had been subject to an abduction attempt in 2014. It further rejected his claim that he had been detained at the airport on return from Belgium and that the Sri Lankan Human Rights Commission had been required to intervene on his behalf. The Tribunal concluded:
Having wholly rejected the appellant’s evidence as to his purported negative profile as a suspected LTTE associate, the Tribunal also rejects his account of his family being targeted for harassment because of those activities since the appellant’s departure from Sri Lanka.
[7] On 19 November 2015, Whata J dismissed an application for leave to judicially review that decision out of time.3
[8] On 27 February 2017, the applicant made a second application for refugee and protected person status. He did so primarily on the basis that, since his first claim had been determined, Sri Lankan authorities had allegedly accused his wife and him of people smuggling and money laundering which, he said, was a pretext to locate him on account of his suspected LTTE involvement. The RPO determined that this claim was insufficient to amount to a significant change of circumstances and declined it on jurisdictional grounds.
[9] The applicant appealed that decision to the Tribunal. He claimed that he was of continuing interest to the Sri Lankan authorities.4 The Tribunal described that interest as “stem[ing] from the fact that in 2005 to 2007 he delivered newspapers and medicine to the LTTE” and went on to say:5
Further, in November 2015 his wife was called in for questioning by the Central Intelligence Division (CID) who questioned the wife about the appellant’s whereabouts. The CID were interested in the appellant because of
3 BZ (Sri Lanka) v Immigration and Protection Tribunal [2015] NZHC 2883.
4 [17] of the Tribunal decision states “the crux of his second appeal is that he continues to be of interest to the LTTE” but this appears to be a typographical error.
5 At [17].
his role of transporting weapons and other goods for the LTTE. They had summonsed the wife on the pretext of questioning her about a people smuggling charge. However, this was essentially done to locate the appellant because of his LTTE involvement.
[10] So stated, the appeal was premised not only on the alleged continuing interest (as evidenced by the alleged renewed questioning) but on his acknowledgement that he had in fact delivered newspapers and medicine for the LTTE, when no such concession had been made in his first application and appeal.
The Tribunal decision from which leave to appeal/review is sought
[11] The Tribunal described the applicant’s first refugee claim as being one that he was at risk of harm at the hands of Sri Lankan authorities because they suspected him of association with the LTTE, and in particular had accused him of transporting LTTE fighters and weapons. It summarised the previous Tribunal’s findings in relation to that claim and, in particular, its adverse assessment of the applicant’s credibility. It noted that in terms of s 231 of the Act it was entitled to rely on the Tribunal’s previous credibility and factual findings.
[12] It then compared this first claim with the circumstances subsequently relied on (as summarised in the extract appearing at [9] above). It noted that jurisdiction to entertain a second claim required, among other things, that the applicant establish a significant change in the circumstances previously identified. It noted further that the change of circumstances had to be “material to the underlying risk of being persecuted or subject to qualifying law”.6 It held that a “deliberate tactical election by a claimant not to reveal or rely on a circumstance in existence throughout the currency of a first or prior claim will not suffice”7 and therefore what it described as the applicant’s “belated admission” that he had indeed transported goods for the LTTE did not meet the jurisdictional requirements of the Act. No argument to the contrary is advanced in the context of the current applications for leave.
[13] In relation to the alleged investigations for money laundering and people smuggling, the Tribunal held that, on the applicant’s own account, these were
6 At [35].
7 At [35].
“inherently connected” to his now admitted involvement with the LTTE on the basis that “these actions were done with the sole purpose of locating and apprehending him by the Sri Lankan authorities because of his association with [that organisation]”.8 It cited his evidence before the Tribunal that he was currently at risk due to his “problems still being in existence” being “from the time I had been working as a driver”
[14]Key to the Tribunal’s decision is para [41]:
[41] While the appearance of money laundering and people smuggling charges was, as asserted, after the determination of his first claim, they are not a significant circumstance. The appellant’s (disbelieved) claim has, at its core, always been that he faces risk of detention and ill-treatment on account of the Sri Lankan authorities believing him to have been involved in the transportation of LTTE personnel and equipment prior to his departure from Sri Lanka. From this perspective, nothing significant has changed in respect of his second claim. It is the same agent of persecution (the Sri Lankan state) interested in him for the same reason (his involvement as an LTTE driver) and involves the same person (his wife). The only thing that is asserted to have changed is that he now claims the authorities have falsely accused him and his wife of people smuggling and money laundering as means to locate him and to bring him into detention. He has simply asserted a more recent series of events by the same agent of persecution for the same purpose.
[15]To similar effect it held at [44]:
… the appellant was clear in his evidence that the reason he was being sought through false money laundering and people smuggling charges, were due to interest in him as a LTTE associate. This is no more than a continuation of his previous claim to be at risk because of interest in him as a LTTE associate. It does not constitute a significant change in circumstances.
Application for leave to appeal Tribunal’s decision
[16] This is governed by s 245 of the Act in respect of which the jurisprudence is settled. A party to an appeal before the Tribunal may apply for leave to appeal to the High Court on a question of law if the question is both:
(a)capable of bona fide and serious argument;9 and
(b)by reason of its general or public importance or for any other reason a question of law that ought to be submitted to the High Court.
8 At [40].
9 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [12].
[17] The High Court has accepted that the introduction by Parliament of a leave requirement demonstrates a deliberate intention to limit appeals from decisions of the Tribunal.10
[18] The test for determining whether an issue is one which is “of general or public importance or for any other reason” should be submitted to the High Court has been held by the Court of Appeal to be similar to the test applied in relation to second appeals,11 namely that the Court is not engaged in the general correction of error and its primary function is to clarify the law, and determine whether it has been properly construed and applied by the Court below. In addition, the alleged error of law must be such to justify further pursuit of litigation. In LMN v Immigration and Protection Tribunal, Duffy J said the relevant issue must “go beyond the particular circumstances of the applicant” or be such “that the existing law should be revisited by the Court”.12 Accordingly, the misapplication by the Tribunal of the existing law to the particular facts will not qualify as a matter of general and public importance, nor will that be the case where the applicant has failed to demonstrate how the Tribunal’s alleged error would have made a material difference to the outcome.
[19] In terms of whether there is “any other reason” for a matter to be considered on appeal the Court of Appeal has confirmed that:13
It would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.
Application for leave to review Tribunal’s decision
[20] Section 249 of the Act sets out the test for granting leave to judicially review a decision of the Tribunal. A party to an appeal before the Tribunal may apply for leave if the proposed review proceeding:
10 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [18].
11 Minister of Immigration v Jooste [2014] NZCA 23 at [5], citing Waller v Hider [1998] 1 NZLR 412 (CA) at 412.
12 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32].
13 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
(a)involves an issue that could not be adequately dealt with in an appeal against the Tribunal’s decision;14 and
(b)raises a question of bona fide and serious argument;15 and
(c)is by reason of its general or public importance or for any other reason that one ought to be submitted to the High Court for review.16
[21]The High Court has recently observed:17
In practice if the issue could adequately be dealt with in an appeal, leave to bring judicial review proceedings are unlikely to be granted.
[22] In his written submissions Mr Pidgeon accepted that the focus of the hearing was on the s 245 application because his argument turned on an alleged error of law which was one adequately dealt with in an appeal context.
The applicant’s case
[23] The essential argument on both applications for leave is that the Tribunal applied an incorrect legal test to the appeal. Mr Pidgeon focuses on the twin references in [41] of the Tribunal’s decision to the fact that the most recent allegations involved the same agent of persecution for the same reasons or purpose, and refers also to its conclusion in [44].
[24] He submits that the Tribunal applied an interpretation which was “too narrow” and that, correctly interpreted, the test should recognise cases where the source of the risk was the same but the level of the risk had “heightened” or “intensified” since the first Tribunal decision.
[25] He also submits that the decision fails to consider the principle of “non- refoulement” which in his submission promotes a risk averse approach to the return of refugees.
14 Immigration Act 2009 s 249(6)(a).
15 Allada v Immigration and Protection Tribunal [2014] NZHC 953 at [36].
16 Immigration Act 2009 s 249(6)(b).
17 Panchal v Minister of Immigration [2017] NZHC 2080 at [20].
[26] In relation to the second limb of the relevant test for leave Mr Pidgeon says that it is in the public interest for the High Court to clarify s 200(1)(a) and that this clarification is of general public importance.
The respondent’s case
[27]In response Mr Madden submits:
(a)It is accepted there is no requirement in s 201(1)(a) that a new agent of persecution or a new reason for persecution be established.
(b)No clarification of the law is required in that respect.
(c)As the High Court has previously held, Tribunal decisions must be considered as a whole and should not be subject to minute and detailed analysis of the facts or separate parts of the decision in an attempt to expose purported defects and to extract from the individual words used some error or imperfection which can be elevated into a proposition of law.18
(d)The Tribunal correctly identified in [35] that the key question was whether there was a significant change in circumstances material to the underlying risk and that in so doing it implicitly recognised that intensified risk as a result of changed circumstances could potentially qualify.
(e)The references to the “same agent of persecution (the Sri Lankan state), interested in him for the same reason (his involvement as a LTTE driver)” must be read in light of its previous conclusion that, having regard to the nature of the initial claim “nothing significant has changed in respect of the second claim”. As such it was a finding that there was insufficient level of “intensification” to animate the jurisdiction.
18 BV v Immigration and Protection Tribunal [2014] NZHC 283, [2014] NZAR 415, citing Voratanamatanitu v Chief Executive of Department of Labour HC Wellington AP124/96, 11 August 1997.
(f)Accordingly, and in light of “the decision as a whole” the challenged parts of the decision cannot be elevated to an arguable conclusion that the Tribunal applied the wrong legal test.
(g)In relation to the second limb of the test, no issue of general or public importance is engaged because of the acceptance noted in subparagraph
(a) above and because the principle of non-refoulement is already reflected in the language of s 200.19 In other words the respondent says, that there is nothing for the High Court to clarify.
Analysis
[28] At the outset I record the accepted position that, neither in the context of an application for leave to appeal a s 200 decision, nor in the context of an appeal if leave is granted, nor even in the context of a s 245(4)(b) remission to the Tribunal on appeal from the jurisdictional finding, is the credibility of the alleged new claims in issue. As was made clear in Re AG (Sri Lanka):20
… the assessment of the credibility of the second claim will be made later, if the jurisdictional threshold is crossed.
[29] I approach the application for leave mindful therefore of the fact that the question before the Tribunal was whether the new claims as asserted disclosed the requisite changed circumstances.
[30] There is no definitive statement of the Senior Courts as to what constitutes a “significant change of circumstances”. As Edwards J observed in AR v Refugee and Protection Officer it is “clear as to its terms”.21 I also adopt her Honour’s observation that:22
The focus … is on the claim. It requires a comparison of the first claim with the second claim to see whether it is essentially the same claim. In some cases additional material may mean that the subsequent claim is not repetitive of the previous claim. (emphasis added)
19 Relying on WK v Refugee and Protection Officer [2018] NZCA 258 which considered the same “significant change in circumstances test in s 140.
20 Re AG (Sri Lanka) [2011] NZIPT 800092 at [13].
21 AR v Refugee and Protection Officer [2016] NZHC 2916.
22 At [50].
[31] The reference to “additional material” is apposite to this case because that is what the applicant advances in support of his second claim to refugee status. He says that at times subsequent to determination of his first application, events have occurred strongly suggestive of continued interest in him by the authorities. As such he considers the risk of persecution can be considered “intensified”.
[32] There is a possible logical paradox with the intensification argument because it assumes a pre-existing interest by the authorities which, in terms of the Tribunal’s decision on his first application for refugee status, was held not credibly to be the case. But that is not in my view determinative of the current application. In terms of s 231 of the Act the Tribunal may rely on any finding of credibility or fact made by it in previous proceedings involving the applicant but it is not obliged to. A new claim based on new evidence cannot simply be dismissed because the old claim was found not to be credible. That would be to prejudge the credibility of the new claim.23 Indeed, theoretically, the new claim could be regarded as so credible that the Tribunal had cause to reassess its earlier findings. So I do not see that paradox as assisting the respondent. Nor, in fairness to the Tribunal, did it identify this as a problem in the context of the jurisdictional question it was required to address.
[33] On the current applications the parties agree that a significant change of circumstances does not require either a new agent of or reason for persecution. The respondent acknowledges that intensification of a pre-existing circumstance can potentially qualify for the purposes of both s 140(1)(a) and appeals to the Tribunal under s 200(1)(a).
[34] The respondent’s essential point is that nowhere in the Tribunal’s decision does it state that an increased risk of the same harm does not or cannot meet the threshold and it invites the conclusion that when, on each of the occasions the Tribunal refers to the case as involving the “same agent of persecution” and the “same reason”,24 it was
23 See E v Ministry of Business Innovation and Employment [2016] NZHC 2599 at [39(c)] where the High Court was critical of the RPO’s rejection of new evidence based on previous adverse credibility findings. Note, however, that the new evidence in that case was a medical report whereas here it is further evidence of the applicant and/or his wife. I accept that an assessment of the credibility of that new evidence may be influenced by earlier credibility finding but the relevant inquiry is necessarily wider.
24 And the associated claim in [44].
simply stating the reality of the applicant’s claim — not the converse of the case he was obliged to establish. It says that focusing on these passages involves a “minute” examination of the decision contrary to this Court’s role and that, in the context of the Tribunal’s full decision, I can be satisfied that it did not apply the wrong legal test.25
[35] I am unable to accept that proposition. In my view there is a bona fide and serious issue as to whether the Tribunal inadvertently set the bar too high and made its assessment accordingly. I am conscious, as Whata J said in respect of the applicant’s previous appeal to this Court, that the starting point in respect of refugee appeals is that they involve claimants “at the highest end of vulnerability and potentially at risk of gross human rights violation”.26 In assessing whether to grant leave to appeal, this Court needs therefore to be vigilant to all reasonable arguments. It is in the broader public interest to ensure that the statutory provisions relating to claims for refugee status are interpreted and applied appropriately and with the principle of non- refoulement in mind.
[36] My concern that the Tribunal may have adopted too narrow a test starts with its introductory comment:
[3] The principal issue for determination is whether the Tribunal has jurisdiction to consider the appellant’s appeal. It must determine whether the appellant’s claim to be at risk as a Liberation Tigers of Tamail Eelam (LTTE) associate amounts to a significant change in circumstances material to his claim since the previous claim was determined, as required by the Act.
[37] This is not an accurate statement of what the Tribunal was required to determine. Rather the question was whether the allegations of renewed interest by the Sri Lankan authorities, if ultimately accepted, could constitute a significant change in circumstances. The claim to be at risk as an LTTE associate was a constant in both claims but was not determinative of the jurisdictional issue.
[38] Mr Madden submits that this paragraph in fact indicates that “right from the beginning the Tribunal contemplated that the same source of risk (i.e. the risk arising from being an LTTE member) could have met the threshold if there was a significant
25 Or more accurately, since this is an application for leave, that I can be satisfied there is no bona fide and serious argument that it did.
26 BZ (Sri Lanka) v Immigration and Protection Tribunal of Auckland [2015] NZHC 2883 at [52].
change in the circumstances material to that underlying risk”. In my view that reads too much into it, particularly in the context of the Tribunal’s later observations in [41] and [44] where it appears to answer the question posed in [3] by reference to the alleged persecution being by the same agent and for the same reason.
[39]Next Mr Madden highlights the first sentence of [35]:
In other words, there must not only be a significant change in circumstances, but such changed circumstances must be material to the underlying risk, as asserted, of being persecuted for a Convention reason or otherwise being in danger of being subjected to qualifying harm for the purposes of the protected person claim.
[40] He says, and I accept, that this is an orthodox statement of principle but again I consider he goes too far in saying that, in benchmarking against underlying risk, the Tribunal contemplated that the risk “could be intensified by a change of circumstances and not that a different source of risk and a different agent of persecution was required”. Significantly, the balance of [35] is devoted to the “deliberate tactical election” issue which it described as involving “no underlying change in circumstances giving rise to the asserted risks”. It is in that context rather than as a qualification to [41] and [44] that the “underlying risk” reference is, in my view, best understood.
[41] Mr Madden then relies on the reference in [41] to the “core” of the applicant’s claim being that he faces the risk of detention and ill-treatment because of his involvement with LTTE and “[f]rom this perspective nothing significant has changed in respect of his second claim”. He says that this was a finding that the underlying risk had not significantly changed. But that finding is immediately followed by the observation that “[i]t is the same agent of persecution … interested in him and for the same reason” and this is essentially repeated four lines later. It is at least bona fide and seriously arguable that the finding that “nothing significant has changed” was premised on an assumption that “significant change” required more than either the same agent, reason or purpose.
[42] That conclusion is reinforced by the Tribunal’s observation in [44] that the claim was “no more than a continuation of his previous claim to be at risk because of
interest in him as an LTTE associate”. As with para [3] this suggests the Tribunal’s inquiry was arguably misdirected. Again the “constant” of his LTTE association was not the issue.
[43] For these reasons I am satisfied that there is a bona fide and serious argument that the Tribunal applied an incorrect and excessively restrictive legal test in assessing its jurisdiction to hear the applicant’s second claim to refugee status.
[44] Having come to that conclusion, I must then consider whether the arguable error of law raises issues of sufficient general or public importance for it to be submitted to the High Court.
[45] I consider that it does. I accept Mr Pidgeon’s primary submission that there is public interest and general importance in ensuring that decision makers in the refugee context apply the law27 in a manner which accords with New Zealand’s obligations as a State party to the Refugee Convention.
[46] This is not a case involving misapplication by the Tribunal of existing law to the particular facts. Rather it is (arguably) one where the Tribunal has not properly construed and applied the relevant law. Nor can it be said that the (arguable) error was one which would not have made a material difference to the outcome. It may have.
[47] In my view it is appropriate that this Court correct all potential errors in approach which may, as in this case, have implications for other potential complainants. Although the respondent acknowledges that there is no requirement in s 200(1)(a) that a new agent of persecution or reason for persecution be made out, that should not be regarded as a substitute for this Court’s ruling in relation to a Tribunal error of law (if established).
[48]Accordingly I allow the application for leave to appeal.
[49] In relation to the application for leave to review, I decline it on the basis that whether the Tribunal made an error of law is clearly an issue capable of determination
27 Including the non-refoulement principle implicitly recognised in ss 140 and 200.
on appeal. I note that this alternative claim is, in any event, only advanced by Mr Pidgeon if unsuccessful on the application for leave to appeal.
[50]I also strike out, at Mr Pidgeon’s invitation, all ancillary applications.
[51] Finally, I make the observation that although the only matters before me were applications for leave, the parties may consider that remission to the Tribunal on a consent order was now the appropriate course. That will inevitably depend on their assessment of whether this Court can, on appeal, be materially assisted beyond the comprehensive submissions it has already received.
Result
[52]I allow the application for leave under s 245 of the Act.
[53]I decline the application for leave under s 249 of the Act.
[54] I direct that the applicant’s notice of appeal be filed within 10 working days of delivery of this judgment. If there is any practical reason that is not possible, application can be made supported by submission.
Costs
[55]The applicant is legally aided and no order as to costs is sought.
Muir J
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