HA v Refugee and Protection Officer
[2017] NZHC 1787
•31 July 2017
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS OR HER 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-2017-404-87 [2017] NZHC 1787
UNDER the Immigration Act 2009 IN THE MATTER
of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, the Immigration Act 2009, the New Zealand Bill of Rights Act 1990, s 131 of the International Covenant on Civil and Political Rights 1966, and ss 130(1) and (6) of the Convention Against Torture
1987.
BETWEEN
HA Applicant
AND
REFUGEE AND PROTECTION OFFICER
Respondent
Continued over……
Hearing: 8 June 2017 Appearances:
Applicant in person (McKenzie friend, B Johnson of
International Justice Advocates Ltd) J D Simpson for the Respondents
Judgment:
31 July 2017
JUDGMENT OF MUIR J
This judgment was delivered by me on 31 August 2017 at 4.30 pm Pursuant to Rule 11.5 of the High
Court Rules.
HA v REFUGEE AND PROTECTION OFFICER [2017] NZHC 1787 [31 July 2017]
Registrar/Deputy Registrar
Date:…………………………
CIV-2017-404-88
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 Immigration act 2009, the
New Zealand Bill of Rights Act 1990, s 131 of the International Covenant on Civil and Political Rights 1966, and
ss 130(1) and (6) of the Convention
Against Torture 1987
BETWEEN HA Applicant
ANDIMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
REFUGEE AND PROTECTION OFFICER
Second Respondent
Counsel/Solicitors:
J D Simpson, Meredith Connell, Auckland
Copies to:
The applicant
B Johnson, International Justice Advocates Ltd, Auckland
Introduction
[1] The applicant applies for leave to appeal and to commence judicial review proceedings1 in respect of a decision of the Immigration and Protection Tribunal (the Tribunal) declining his claim to be recognised as a refugee or protected person.
[2] The applicant is a citizen of Pakistan who claims that he will be tortured or executed by the Taliban2 if returned to that country. The Tribunal found such claims were not credible. Accordingly, it declined to find the test in Article 1(A)(2) of the Refugee Convention made out and reached like conclusions in respect of the claims under the Convention Against Torture and the International Covenant on Civil and Political Rights.
Background
[3] The applicant is of Pashtun ethnicity and Sunni Muslim faith, aged 38. He was born and has lived most of his life in a village in the Swat Valley, Khyber, Pakhtunkhwa Province of Pakistan, an area of great natural beauty but with a troubled history. In 2007 much of the valley, including the applicant’s village, was over-run by the Taliban. Subsequently the army regained control of the area.3
[4] The Tribunal accepted that since that time Taliban insurgents based in adjacent mountainous areas had successfully carried out targeted killings of people whom they identified as having profiles of interest, including security personnel, government workers and individuals working for Village Defence Committees (VDCs),
established since the Taliban were removed from the area.4
1 Immigration Act 2009 (the Act), ss 245 and 249.
2 As the Tribunal records in [3] of its decision, the term “Taliban” is frequently used as a shorthand for a variety of Deobandi and Salafist jihadi groups operating in Afghanistan and Pakistan. I adopt the same shorthand in this judgment.
3 At [12] of the Tribunal decision this is described as having been in late 2007. However at [78] of the decision the Tribunal states that “the Swat Valley in Pakistan has been under government
control since 2009”. That latter date is correct.
4 Relying on country information including D Jan “KP Lawmakers angered by targeted killings in Swat” (15 November 2014) The News International < “Pakistani PM Announces Permanent Army Base in Swat” (16 January 2014) Radio Free Europe/Radio Liberty
< “Pakistani Police Injured By IED Blast in Swat Region” (12 July 2016) Radio
Free Europe/Radio Liberty ww.rferl.org>.
[5] The applicant claims to be at risk of serious harm from the Taliban due to his previous membership of such a VDC.
[6] The applicant was married in 2004 at which point his wife moved into the family home in their village. They now have three children. The home was also occupied by his parents, brother and sister-in-law and their children.
[7] In 2006 the applicant began working on board a Pakistani registered bulk carrier. In August 2007 he returned to his village which was shortly thereafter over- run by the Taliban. Between October 2008 and October 2009 he worked on another cargo ship, again returning to his village at the conclusion of his contract. By that time the army had regained control of the area.
[8] The applicant says that after this had occurred, VDCs were established, including in his village, and that his brother became a member. He also says, and the Tribunal accepted, that on his return to the area in 2009 he was required to perform night duty patrol in the neighbourhood at the direction of the VDC. He said this was something everyone in the village was required to do. At that time he claims there were four army checkpoints around his village where personnel were stationed 24 hours a day, but nevertheless insurgents made frequent incursions into the village. Indeed he described the Taliban as effectively free to enter at will.
[9] He further claims that on an evening in August 2010 he was at home with his wife, children, parents and his brother’s wife and children when the Taliban forcibly entered the home, tying both his feet and hands and beating him with sticks and guns. His evidence was that they were looking for the applicant’s brother who, he said, was not at home at the time, having left a short time earlier in response to a telephone call. He does not claim that either his own life or that of anyone else present at the time was threatened.
[10] He says a family member phoned his brother and told him about the incident but that his brother nevertheless returned to the house two or three hours later. He says that subsequently his brother informed him that he had received further threatening telephone calls from the Taliban.
[11] Shortly afterwards the applicant says he joined the VDC himself. He says he did so because of the attack on the family home and his desire to protect the people of the village. He says that he was issued with a membership card and that his role was to report any strangers or spies coming into the area.
[12] The applicant’s brother died in May 2012. The Tribunal accepted his death as a fact having been given photographic evidence of his grave site. The applicant claims his brother was shot by the Taliban while working on the family farm and died in transit to hospital. The applicant says he was at sea when this happened, that on his return he stayed in Karachi for a short period and that he was not informed of the death or the circumstances of it until he arrived back in his village in June 2012.
[13] He says that on his return he continued to work as a member of the VDC and received approximately four or five threatening calls from the Taliban during that period. He says that in the first call he was told that, since he was now working against them, he would suffer the same fate as his brother.
[14] He says that in April 2013 he received a threatening letter from the Taliban after a report to the VDC President contrary to Taliban interests. That letter has since been lost or misplaced. A few days later, while working on the family farm, he further claims that he heard gun fire, dived for cover and then heard a bullet pass over his head. He says that he ran to a nearby army checkpoint and that he then left the area for three to four months with his wife and children to stay with other family in Dargai. He claims to have resigned from the VDC at this point but says that he continued to receive threatening telephone calls for approximately the next one to two months.
[15] In September 2013 the applicant returned to his village where he remained until January 2015. He then travelled to China where he again took up a position on the bulk carrier. He has not returned to Pakistan since. He claims that in June 2015, while the ship was in India, his wife informed him by telephone that the family had received a second letter from the Taliban threatening his life. He says that because his wife is illiterate someone must have read the letter to her.
[16] In August 2015 the bulk carrier arrived in New Zealand. The crew was placed in hotel accommodation while the ship was being fumigated. The applicant was billeted in a room with “AB” who comes from the same area in Pakistan. Both subsequently absconded from the ship.5
[17] The applicant claimed refugee status saying that he had a well-founded fear that he would be killed by the Taliban if he returned to live in his village and, that because the Taliban operated throughout Pakistan, he could not safely reside elsewhere in the country.
[18] His claim was declined by the Refugee Status Branch (RSB) on 23 February
2016. The applicant then appealed to the Tribunal. The appeal was heard over two days. In its decision dated 21 December 2016 the Tribunal declined the appeal.
The Tribunal’s findings
[19] The Tribunal accepted the following aspects of the applicant’s evidence on the basis that it was consistent, spontaneous and detailed:
(a) His family lives in a village in the Swat Valley.
(b)He was involved in night patrols in his village from a date in 2009, after the army regained control of the area.
(c) His brother died in 2012.
[20] It rejected the applicant’s account of being a VDC member, being targeted by the Taliban and that his brother was killed by the Taliban because of his VDC
membership. It did so for two primary reasons.
5 AB’s applications under ss 245 and 249 were heard on 20 June 2017 and rejected in a reserved decision of Wylie J delivered on 26 June 2017 (AB v Refugee and Protection Officer) [2017] NZHC 1424). The decision records that the Tribunal likewise found that the core of AB’s claim was not true, noting his evidence to be “inconsistent, vague, evolving, mobile and at times implausible”. No challenge was made on the applications for leave to the Tribunal’s conclusions in relation to the applicant’s own credibility. The challenge was confined to the Tribunal’s approach to certain evidence in relation to AB’s brother.
[21] Firstly, the applicant’s evidence was found to be inconsistent, vague and implausible. Cumulatively the various inconsistencies and implausibilities left the Tribunal with what it described as “no doubt that the core of the appellant’s claim is not true”.6 Although it acknowledged the applicant had been on medication for sleep problems and depression, it did not consider that these factors adequately explained the numerous credibility issues which it identified.
[22] In particular the Tribunal found:
(a) the applicant could not adequately explain why, if the Taliban had entered his family home in August 2010, it had not threatened him as a result of his own assistance with night patrols from 2009, or why the Taliban had not returned to the house after he had become a member of the VDC in late 2010.
(b)the applicant’s account of the Taliban’s visit to the family home in August 2010 was itself evasive, inconsistent and implausible, specifically around when and how his brother was advised of the Taliban’s visit. Before the RSB the applicant has said that his brother was advised of what had happened after his return home. Before the Tribunal he said that his brother had been contacted by telephone immediately after the attack. Since that in turn raises issues about the plausibility of his brother returning home rather than attempting to find at least temporary shelter elsewhere, the applicant emphasised before the Tribunal that the army had been placed on notice of the attack and therefore the Taliban were unlikely to return.
(c) the applicant’s account of his brother’s activities for the VDC was vague and evasive. In particular, despite the fact that his brother resided in the same house, the Tribunal said the applicant was unable to describe what his brother did for the VDC or how the Taliban came to know about his brother’s activities. The applicant was also inconsistent
in terms of the evidence given to the RSB and to the Tribunal about
6 At [69].
telephone threats allegedly made to his brother over succeeding months. Specifically, the Tribunal found:7
Only after much prompting by the Tribunal did he assert that the caller had stated that his brother was lucky that he was not at home and next time, if he was located, they would kill him.
(d)it did not accept as genuine the second letter from the Taliban. It pointed out that in his written statement to the RSB the appellant had said, at para [55]:
The letter stated that I am still a target because the Taliban has suffered and I have not learnt from my brother and they know I am abroad and when I return they will take revenge.
By contrast, the translated letter contained no reference to the Taliban’s alleged knowledge that he was abroad. The Tribunal found unconvincing the applicant’s submission that his wife was illiterate and had been relying on someone else to explain the letter to her. It said that according to the applicant’s statement to the RSB his wife had provided significant detail about the letter.
[23] Secondly, the Tribunal was concerned that the applicant’s supporting documentation was materially similar to that of his fellow crew member “AB” who had also sought refugee status. Both claimed to be at risk of harm from the Taliban due to VDC membership in the Swat Valley. Both produced VDC membership cards with identical bar codes and formatting (albeit signed by different people) and both produced threatening letters from the Taliban with identical formatting and materially similar wording. The Tribunal acknowledged the Taliban may use pro forma threat letters but concluded that it was in “no doubt that these are not genuine documents”.8
[24] In coming to that conclusion the Tribunal rejected the applicant’s claim that he had never discussed seeking refugee status with AB, indeed that he knew nothing about AB’s life in Pakistan. It found that claim implausible given that they had
travelled together from Pakistan to China to board the bulk carrier, had served aboard
7 At [67].
8 At [58].
the ship for extended periods on two occasions and were staying in the same room in
New Zealand before absconding.
[25] Having found his account not to be credible, the Tribunal determined that the applicant did not have a profile that would be of interest to the Taliban or other extremist groups in the Swat Valley and that accordingly:
(a) he did not have a well-founded fear of being persecuted in Pakistan and so was not entitled to be recognised as a refugee under s 129 of the Act;
(b)there were no substantial grounds for believing he would be in danger of being tortured if deported to Pakistan and so he was not entitled to be recognised as a protected person under s 130; and
(c) there were no substantial grounds for believing he would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported to Pakistan and so was not entitled to be recognised as a protected person under s 131.
Application for leave to adduce further evidence
[26] The applicant applied in writing on the day of the hearing for leave to adduce a UNHCR report dated May 2013 and Federally Administered Tribal Areas (FATA) Security Reports for the year ended 31 December 2016. The second respondent did not oppose the admission of either.
[27] However, a further oral application to admit an affirmation by the applicant dated 23 May 2017 was opposed. In this affirmation the applicant deposes to a telephone call from his nephew on 17 April 2017 in which his nephew says he was stopped the day before, as he was returning from prayers in his local village, by two men stating they had information the applicant had returned to Pakistan and wanting to know his whereabouts. When the applicant’s nephew said he was still overseas they allegedly said that if he was lying he would “also be in trouble the same way as his uncle is in trouble”.
[28] The second respondent opposes admission of the evidence on the basis that, because it relates to alleged events some months after the Tribunal’s decision was delivered, it cannot be relevant to whether there is an error of law in the decision or whether the decision is, in its terms, amenable to review. At one level that may be so but it cannot be the final determinant in terms of whether admission is allowed. If, for example, there was fully authenticated evidence that, subsequent to the decision, the applicant’s family had all been killed by the Taliban it seems to me that might be admitted on an application for leave to appeal or review and for the purposes of any subsequent hearing rather than requiring the applicant to bring a second claim for refugee status under s 140 of the Act. But this hypothetical is a considerable distance from what is proposed here. Applying an orthodox approach, I decline to admit the evidence on the basis that it is insufficiently cogent. Because it is unverified it is highly unlikely to have dissuaded the Tribunal from its finding that the core of the applicant’s claim was untrue. Nor does it reliably point to a different conclusion on the current application.
Position in respect of reply submissions
[29] The applicant does not speak English. He was assisted in the hearing not only by Mr Johnson as his McKenzie friend but by his friend Mr Zahid Samad who acted as his interpreter. At Mr Johnson’s request the hearing proceeded on the basis that HA’s case was set out in his “initial” and “final” submissions, the latter comprising 21 pages and filed at 4.40 pm on the eve of the hearing. I accordingly heard first from Mr Simpson whose address followed closely his written submissions dated 30 May
2017. At the conclusion of his address I invited reply submissions from the applicant. Some attempt was made to address me through Mr Samad. I concluded however that the fairest approach was to allow a written reply within one week on the basis that this would allow input as required from Mr Johnson. In my Minute of 8 July 2017 I set out parameters for the reply noting that the applicant had already filed (and I had with leave received) his extensive “final” submission filed in response to the first respondent’s own submission. I have received and considered the reply submission.
Amicus
[30] On 28 April 2017 the applicant filed a memorandum asking if Mr Samad could act as his interpreter in the proceedings and requesting that the Court appoint an amicus.
[31] Potential appointment of an amicus is a matter appropriately addressed at the first mention of an application under s 245 and/or s 249 of the Act. In the present case such first mention was scheduled for 23 February 2017 and was the subject of a consent memorandum filed on 15 February 2017. The memorandum made no mention of such appointment. Consent directions were made by Hinton J on 20 February 2017 with appearances excused.
[32] In the event an applicant seeks the appointment of an amicus subsequent to the first conference, a formal application should be made. Such would ensure that the situation which has arisen in this case – whereby I only became aware of the unresolved (and informal) application as a result of reviewing the applicant’s “final submission” filed on the eve of the hearing – can be avoided. In the event I was not minded to adjourn the hearing. The applicant has been very ably assisted by his McKenzie friend Mr Johnson of International Justice Advocates Ltd. The quality of submissions has been at least equivalent to counsel of typical competence in immigration matters and Mr Johnson was given a further opportunity to assist with a reply submission. Amici are seldom appointed by this Court at the application for leave stage and in my view, appointment was not necessary in this case to do justice on the application.
Relevant principles – leave to appeal and leave to bring review proceedings
Leave to appeal
[33] This is governed by s 245 which relevantly provides:
245 Appeal to High Court on point of law by leave
(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
(Emphasis added)
[34] Accordingly, an applicant for leave to appeal must establish that there is a seriously arguable case that the appeal involves:9
(a) an error by the Tribunal that amounts to a seriously arguable question of law; and
(b)a question of law which is of general public importance or for some other reason ought to be submitted to the High Court.
[35] Where the alleged error of law is premised on a challenge to factual findings, the Court of Appeal in Taafi v Minister of Immigration described applicants as facing a “triple hurdle”, namely:10
(a) First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court’s finding.
(b) Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
(i) The Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of
9 See Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR
721 at [8].
10 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
the only reasonable conclusion of fact available on the evidence; and
(ii) The errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.
(iii) Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound….
(Footnotes omitted)
[36] In practice, because the first limb invokes the existence of an available evidential foundation, the inquiry in that respect tends to merge with that in (b)(i).
Leave to review – s 249
[37] Section 249 of the Act relevantly provides:
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
…
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.
…
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
(7) A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.
… (Emphasis added)
[38] In relation to the criteria in subsection 6(a), I accept the submission of the respondent that the clear legislative intention is that appeal and not review is to be the primary mechanism by which Tribunal decisions are challenged. In CV v Immigration and Protection Tribunal, Duffy J observed:11
[38] …. In principal, the nature of the issues that can be raised in an appeal under s 245 are going to be much the same as those that can be raised in judicial review proceedings. It is hard to envisage an argument that would not qualify as a ground of appeal under s 245 but still qualify as a ground of review under s 249.
(Footnotes omitted)
[39] With that said, however, the legislative direction in subsection 6(a) must, as
Heath J observed in Hu v Immigration Protection Tribunal:12
… be considered against the important role that the remedy of judicial review plays within New Zealand’s constitutional structure. It is the means by which citizens can challenge executive decisions on grounds of illegality or irrationality.
Issue of general or public importance or for any other reason requiring submission to the High Court
[40] In respect of applications under both sections, the Court must have regard to whether the issues raised are of general or public importance or for any other reason ought to be submitted to the High Court. This test was considered by the Court of Appeal in Minister of Immigration v Jooste.13 The Court found the test to be similar to that applying to second appeals to this Court under s 67 of the Judicature Act 1908.
[41] An issue will not be of sufficient importance to justify further litigation where it is fact specific, where it is of concern to the parties only, where the law is well settled or where there is little prospect of success.
[42] In the s 245 context Duffy J held in LMN v Immigration Protection Tribunal
that the issues raised must “go beyond the particular circumstances of the applicant”
or “raise an issue that suggests the existing law should be revisited by the Court”.14
11 CV v Immigration and Protection Tribunal [2015] NZHC 510, [2015] NZAR 594.
12 Hu v Immigration and Protection Tribunal [2016] NZHC 1661 at [11].
13 Minister of Immigration v Jooste [2014] NZCA 23.
14 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32].
[43] In BY (China) v Refugee and Protection Officer I expressed the position in the following terms:15
[37] The misapplication by the Tribunal of existing law to the particular facts will not qualify and where an applicant attempts to prove a Tribunal’s factual findings are so incorrect as to constitute an error of law a very high threshold applies. These principles have been applied or affirmed in numerous recent High Court decisions.
[38] In respect of the “any other reason” ground, the Court of Appeal has confirmed that, in a s 245 context, it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.
(Footnotes omitted)
[44] In the s 249 context there has been some divergence of opinion at High Court level about whether the “some other reason” ground should be interpreted in the same way. In SK v Immigration and Protection Tribunal Faire J held that the test should be interpreted identically.16 However in RM v Immigration and Protection Tribunal,17
Hu v Immigration and Protection Tribunal,18 and Kumar v Minister of Immigration19
a less stringent test was applied. Heath J succinctly stated the reasons for this in Hu
where he said:
[18] In my view, the Court’s gate-keeping role under s 249 of the Act should be interpreted in a manner that best accords with the rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990. While Parliament has (lawfully) placed constraints around the ability to seek judicial review in an immigration context, the fact remains that a general right to seek remedy of judicial review is affirmed by s 27(2) of the Bill of Rights. The test for granting leave should be determined in lights (sic) of that guaranteed right. If after balancing countervailing circumstances the interests of justice require that the applicants be given the opportunity to challenge a decision through the judicial review procedure leave should be granted.
[45] In BY (China) at [40] I respectfully adopted this approach although pointing out that I suspected in most cases the distinction was likely to be more notional than
real. However, as Palmer J said in RM v Immigration and Protection Tribunal,20 where
15 BY (China) v Refugee and Protection Officer [2016] NZHC 2244, [2016] NZAR 1595.
16 SK v Immigration and Protection Tribunal [2014] NZHC 2693, at [6]–[7].
17 RM v Immigration and Protection Tribunal [2016] NZHC 735, at [42]–[50].
18 Hu v Immigration and Protection Tribunal, above n 12, at [17]–[19].
19 Kumar v Minister of Immigration [2016] NZHC 1593 at [37]–[40].
20 At [51].
the case is a marginal one, an approach emphasising the constitutional function of judicial review and the fact that any leave requirement impacts rights under the New Zealand Bill of Rights Act may tip the balance.
[46] In Kumar v Minister of Immigration the Court of Appeal acknowledged the differences at High Court level, but said that the case was not an appropriate one in which to resolve the issue because Mr Kumar had not demonstrated any substantive ground for judicial review with sufficient prospect of success to make the question other than moot.21 Like the present case, that was one where the Tribunal had found Mr Kumar’s evidence was not credible. Both the High Court and Court of Appeal declined leave on the basis that no error of law had been established. That was because the appellant could neither show that the decision lacked any evidential underpinning nor that the Tribunal’s evaluation of the evidence was not one reasonably available to
it.22
The applications
[47] The applicant does not identify in either his s 245 application or statement of claim the issue of law said to be engaged on the proposed appeal.
[48] It appears from his written submissions, however, that the core of his complaint is that the Tribunal’s findings in respect of his credibility and therefore in respect of his stated fear of being persecuted were so gravely in error as to constitute an error of law. Specifically, he attacks:
(a) The Tribunal’s findings that he colluded with AB.
(b) The Tribunal’s rejection of the following claims as not credible:
(i) that his brother was shot and killed by the Taliban in 2012; and
(ii) that he was himself threatened and shot at in 2013.
21 Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 at [7].
22 At [5].
(c) The Tribunal’s rejection of the following documents as inauthentic:
(i) his VDC membership card; and
(ii) the second threatening letter from the Taliban.
[49] He also submits that the Tribunal did not give him the required benefit of the doubt or properly apply the so-called “Hathaway test”.
[50] The Tribunal’s findings in respect of the matters identified in [48] were factual findings premised on findings of credibility. Assessment of credibility may of course itself engage issues of law as, for example, whether the so-called “benefit of the doubt” principle has been properly applied. But where the assessment occurs within the correct legal framework, the relevant factual findings can only be elevated to errors of law if they are findings made in the absence of evidence or on a basis which was not reasonably available to the Tribunal. I am conscious of the inevitable advantage available to the Tribunal as a result of having heard evidence from the applicant during the course of what was a two day hearing and of the Tribunal’s inquisitorial role. I also note that the applicant was represented by counsel in the context of that hearing.
[51] As to the legal framework within which the assessment occurs, I am aware that, in the recent decision of Duffy J in AR v Immigration and Protection Officer, her Honour granted leave to appeal a Tribunal decision on the basis that:23
[27] To my knowledge the New Zealand courts have not considered in great detail how credibility assessments should be made in claims for refugee status, and whether those assessments require a particular approach that differs from that adopted in other legal proceedings. This seems to me to raise a question of law of general and public importance. In terms of credibility assessments in general I do not think the Tribunal’s assessment can be faulted. However, until the standard for such assessments in refugee cases has been identified, whether the Tribunal has adequately assessed Mr AR’s credibility cannot be known.
(Footnotes omitted)
23 AR v Immigration and Protection Officer [2017] NZHC 132.
[52] The substantive appeal and review proceedings in that case have yet to be determined. My inquiries indicate that the Court has appointed an amicus to assist it in respect of the legal issue identified.
[53] Importantly in my view however, her Honour’s conclusions need to be read in the context of the specific challenge made in that case. This is summarised in the decision in the following terms:
[25] Mr AR argues that when a claimant’s account supporting his or her claim for refugee status is plausible and not inconsistent with country information, which he asserts to be the case here, the Tribunal should be “agnostic and open to evidence”. It should not start from a point of active disbelief which can only be overcome by a perfectly consistent story. He submits that a “credibility assessment should not be a search for contradictions, with any inconsistency immediately leading to a negative conclusion.” Mr AR draws support for this submission from a passage in The Law of Refugee Status as well as a passage from Guo v Minister for Immigration and Ethnic Affairs. From this he argues that the Tribunal erred in law by focussing too much on the inconsistencies in his account rather than because it found the account to be implausible.
(Footnotes omitted)
[54] The Tribunal’s alleged focus on inconsistencies was clearly something which influenced her Honour as she noted, at [26] of the decision, that the life experience of persons who have well-founded fears of persecution may lead them to giving false evidence in the hope of bettering their chances rather than because the basis of the claims themselves are a fabrication. Likewise she recognised that incoherent testimony may be explained by their “experiences to date, rather than because they are telling a poorly fabricated lie”.24
[55] In my view the position in that case needs to be contrasted with the present, where the Tribunal not only identified a number of inconsistencies between the approach which the applicant adopted before the RSB and that adopted before the Tribunal (and, in turn, “mobility” in the evidence given before the Tribunal), but also
considered key features in his account to be implausible.
24 At [26].
[56] In particular it appears to have been influenced by what it considered to be the inherent implausibility of both HA’s and his brother’s continued residence in the family home if as the appellant said the Taliban were free to enter the village at will and they were both to their knowledge active targets.
[57] As United Kingdom guidelines state, the plausibility of a fact is assessed on its “apparent likelihood or truthfulness in the context of general country information relevant to the applicants’ country of origin and/or their own evidence”.25 I accept therefore the applicant’s submission26 that plausibility involves “country information and common-sense intuition in the context of the whole story”, mindful however that assessments of common sense can be influenced by a Judge’s own cultural perspective and therefore assessment of how events could or should have unfolded in a foreign context.27
[58] In my view the combined credibility and plausibility findings made by the Tribunal take the case beyond that contemplated by Duffy J in AR. I have considered but therefore ultimately reject the submission that I should adjourn these proceedings for further argument after the publication of the substantive decision in that case.
[59] In terms of the application for leave to bring review proceedings, the applicant’s pleadings rely on the same grounds as advanced in the application for leave to appeal. In his written submission the identified grounds are:
(a) alleged failure to consider all relevant evidence including his VDC
membership card;
(b) alleged focus on the irrelevant consideration of collusion with AB;
(c) alleged unreasonableness; and
(d) failure to adopt the benefit of the doubt principle.
25 United Kingdom Home Office Asylum Policy Instruction: Assessing credibility and refugee status
(6 January 2015) at [5.6.4].
26 Reply dated 15 June 2017.
27 See Office of the United Nations High Commissioner for Refugees Beyond Proof: Credibility
Assessment in EU Asylum Systems (May 2013) at 66, 74, 178, and 184.
[60] Given the legislative direction in s 249(6)(a), I address first the application for leave to appeal and will then consider any remaining issues discrete to the s 249 application.
Discussion
[61] Because the application is framed as an attack on specific credibility findings I address each in turn. However the point needs to be made at the outset that the Tribunal made an overall credibility assessment based on cumulative factors. In that context it is the end result which must be focused on and in particular whether it is one for which there was no evidential foundation or whether it is inconsistent with other findings or contradictory of the only reasonable conclusion. In that respect I adopt the following observations of Katz J in Nabou v Minister of Immigration:28
Judges have repeatedly warned against minute and detailed analysis of the facts or separate parts of the decision in an attempt to expose defects or to identify some error or imperfection which can be elevated into an error of law. The decision must be looked at as a whole. Findings of fact themselves cannot be impugned unless the factual errors were of such significance, extent and nature that they would render the decision legally flawed. Value judgments made by the Tribunal in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law.
(Footnotes omitted)
Alleged collusion with AB
[62] The applicant’s notices of application contend that the alleged collusion with
AB was:
(a) refuted by the applicant but that nevertheless the Tribunal did not believe him.
(b) irrelevant as it did not affect his substantive claim that he was a VDC
member working against the Taliban and at risk of his life for having done so.
28 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9].
[63] In respect of the first point, it is clear that the Tribunal did not regard the applicant as adequately refuting the allegations of collusion. At [48] of its decision it records having put to him the similarity in their claims, the fact that they presented almost identical documents and the fact that before the RSB the applicant had endeavoured to distance himself from AB in a manner inconsistent with information the RSB had itself received. In response, the applicant reiterated that he did not know AB from the Swat Valley or anything about his activities or his refugee claim. This was despite the applicant’s acknowledgment that he had worked with AB on ships between 2006 and 2007, had travelled with him to China in January 2015, had worked with him on the bulk carrier for seven months and had been billeted together in Whangarei immediately before they both absconded and sought refugee status.
[64] In that context the Tribunal found it:29
… highly unusual and suspicious that the appellant does not know anything about [AB]’s life in Pakistan or the basis of his claim having worked with him over extended periods of time and now living with him. The appellant’s explanations for this are unconvincing.
[65] In substance the applicant’s first ground is simply a claim that the Tribunal’s conclusions were wrong and that his explanations should have been accepted. Applying the test in Taafi, the challenge to this particular credibility finding fails at the first hurdle as it was one clearly open to the Tribunal on the evidence. I share the Tribunal’s scepticism that, in the circumstances referred to, the applicant did not have a greater knowledge about AB’s alleged involvement with the VDCs or his intentions to seek refugee status. Ultimately whether the applicant and AB spoke about their respective situations and intentions not to return to their ship is of limited relevance. They could both have had legitimate claims to refugee status undiminished by their discussions. But the denial of any material knowledge about AB’s background in the circumstances described was a matter the Tribunal was legitimately entitled to take into account in its assessment of the claimant’s overall credibility.
[66] As to the alleged irrelevance of the collusion, it is clear from its decision that the Tribunal did not reject the appellant’s claim solely on account of its conclusions
29 At [49].
about the existence of collusion. Its approach was to consider the core elements of the claim, namely that the applicant was a VDC member who had been actively targeted for retribution by the Taliban. It held that such core elements were not true. To the extent it regarded the applicant’s denial of any material knowledge about AB’s background or claim as unusual and suspicious, this was simply a supporting factor in its overall assessment of credibility.
Rejection of certain aspects of claim as not credible
[67] In the applicant’s written submissions he takes particular issue with the
Tribunal’s rejection of the following aspects of his claim:
(a) that his brother was killed by the Taliban; and
(b)that he was shot at in April 2013, that as a result he fled with his family and that he subsequently received a number of threatening phone calls from Taliban representatives.
[68] He further contends that the Tribunal was wrong to reject these claims in light of the country information he had provided.
[69] The Tribunal accepted that the applicant’s brother had died in 2012 but did not accept he was killed by the Taliban. In doing so the Tribunal did not base its decision on an absence of probative evidence of a Taliban killing but rather on the fact that the applicant’s general evidence about his brother’s VDC’s activities was inexplicably vague, evasive and mobile. In particular:
(a) he was unable to tell the Tribunal how and when he learned of his brother’s membership of or activities on behalf of the VDC;
(b)he was unable to describe what his brother did for the VDC which was implausible given the applicant’s evidence that he, his brother and their respective families lived in the same house;
(c) his evidence about telephone threats to his brother was vague and inconsistent; and
(d)he was unable to explain how he came to know about these telephone calls and his evidence before the RSB and the Tribunal was again inconsistent in this respect.
[70] Again the applicant does not in my view establish an absence of any evidential foundation for the Tribunal’s conclusion. Individually and cumulatively the five factors identified meant that an adverse credibility finding was one reasonably available to it.
[71] In respect of the claimed April 2013 attack and the applicant’s evidence of having subsequently fled with his family and receiving further telephone threats, the Tribunal recorded these claims but did not specifically discuss them.30 It nevertheless appears to have rejected them on the grounds that if, as the applicant said the Taliban could enter the village “at will” despite the army presence and if, as he again said, they had attacked his home in a search for his brother, then the absence of a similar attack in search of the applicant meant that he was clearly of little or no interest to them.
[72] Certainly an adverse credibility finding in respect of these alleged incidents is implicit in the Tribunal’s rejection of refugee status and in my view such a conclusion was one available to the Tribunal on the evidence and legitimate inferences. There was undoubtedly a “disconnect” between the alleged impunity with which the applicant said the Taliban could enter his village and the fact that, if he was indeed an ongoing Taliban target, he had not been sought out in his home after he became a VDC member. Moreover it was open to the Tribunal to consider it implausible that if he had been shot at in 2013 and genuinely considered himself in fear of his life at that time he would have despite further threatening phone calls returned to live in the village for 18 months before again taking up a further position on the bulk carrier.
[73] Nor is any different result dictated by the country information. The Tribunal properly recognised that certain persons living in the region of the applicant’s village
30 At [61].
were at risk from the Taliban. However, its finding was the applicant was not such a person.
Tribunal’s rejection of documents as not genuine
[74] The applicant challenges the Tribunal’s finding that both his VDC membership card and the second threatening Taliban letter were not being genuine.
[75] The Tribunal’s approach is set out at [51] in terms:
Because of the ease with which certain types of documentary evidence can be obtained in order to support Refugee claims, findings as to reliability of documents would usually follow findings with regard to the credibility of witnesses: Refugee Appeal No 72570 (11 November 2002) and Refugee Appeal No 75794 (23 May 2006) at [56].
[76] In AP v Immigration and Protection Tribunal Woodhouse J approved this approach noting:31
[19] The passage of the decision dealing with the documents, earlier quoted, clearly records that the Tribunal assessed the documents on two independent bases. The first involved the legitimate use of judicial knowledge that documents can be forged, with this implicitly underpinned by country knowledge. But it was not a conclusion in isolation; that is to say, it was not founded simply on the basis that documents can be forged. It was coupled with the earlier and carefully reasoned conclusions relating to the applicant’s credibility and the reliability of the evidence he was advancing without any supporting evidence other than the two documents.
[77] In my view these observations apply with equal force to this case.
[78] Turning to the specific documents, in my view the Tribunal’s conclusion in relation to the VDC membership card was clearly open to it. The fact that it contained an identical barcode to that on AB’s card was clearly relevant and cogent evidence and the applicant’s attempts to now explain that the barcode was that of the VDC and not intended to be particular to the card holder is undermined by the fact that the card holder’s name appears immediately beneath the barcode. Nor was any evidence led before the Tribunal in support of this new submission. The matters now raised by the
applicant and in particular that the barcode is clearly visible and has not been
31 AP v Immigration and Protection Tribunal [2016] NZHC 1085.
disfigured, that AB’s card has a different signature on it and the applicant’s portrait photo is scratched from constant use do not individually or cumulatively establish that the only reasonable conclusion of fact is that the document is genuine.
[79] In respect of the second threatening letter, the Tribunal noted that it was in material respects identical to that submitted by AB. It acknowledged that the Taliban may use pro forma letters but said that the similarities in the correspondence along with the inconsistencies in the appellant’s account regarding the content of the letter led it to conclude it was not genuine.
[80] The Tribunal highlighted one sentence in particular which appeared in both letters namely: “Our friends have suffered a huge loss because of you”. I accept that this appears to be a very particularised allegation and one unlikely to attach with equal relevance to both the applicant and AB. It was in my view clearly open to the Tribunal to form an adverse view about genuineness on this account alone.
[81] Nor do I consider that the applicant adequately explained differences in the letter’s content as reported to the RSB and in the letter as produced to the Tribunal. There was clearly an available foundation for the Tribunal to conclude that, if the document had been received by the applicant’s family in the form submitted to the Tribunal then, whether illiterate or not, the applicant’s wife would not have made reference to it as having included a statement that the Taliban knew he was abroad and would take revenge on his return. That is information unlikely to be interpolated, whether the applicant’s wife was able to read the document herself or was recounting what someone in turn had read to her. In my view although the inconsistency would not in isolation have been sufficient to impugn the applicant’s credibility, it was nevertheless legitimately included in a cumulative assessment of credibility.
Benefit of the doubt
[82] The applicant submits the Tribunal erred by not affording him the benefit of the doubt. He relies on the decision in Edwards (Inspector of Taxes) v Bairstow.32
That case is often cited as the genesis of the proposition, now captured in the second
32 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL).
limb of Taafi, that where a factual finding is made without evidence or in conflict with other evidence or on a basis contradictory of the only reasonable conclusion, the factual error will be elevated to one of law. It is not of itself however authority for the submission.
[83] In BV v Immigration and Protection Tribunal33 the Court of Appeal did, however, acknowledge application of the benefit of the doubt principle as featured in the United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criterion for Determining Refugee Status34 in terms:
[6] The correct approach to assessing claims for refugee status is well settled. As this Court discussed in Jiao v Refugee Status Appeals Authority, the difficulties facing claimants must be borne in mind. It can be difficult to provide proof, given the claimant is inevitably separated from home and has limited access to material that could support his or her account. Flowing from this, it is accepted that claimants should be given the benefit of the doubt, a concept that embraces the need to view the matters generously given the difficulties faced by claimants, and given also what may be the consequence if refugee status is declined.
(Footnotes omitted)
[84] Significantly, however, the 2011 reissue of the Handbook itself provides:35
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[85] As a result, although deficiencies in proof should be appropriately accommodated on the basis that claimants for refugee status will seldom have available to them documentary verification or reliable third party testimony, a claim which is inconsistent or implausible cannot be made good by application of the benefit
of the doubt principle.
33 BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139.
34 Office of the United Nations High Commissioner for Refugees Handbook on Procedures and
Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1992), cited in Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) at [28]. The Handbook has since been reissued in 2011.
35 Office of the United Nations High Commissioner for Refugees Handbook and Guidelines on
Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees (2011) at [204].
[86] Clearly the Tribunal was not obliged to accept the evidence advanced by the applicant. If authority is required for that reasonably self-evident proposition it is contained in the Court of Appeal decision in JO v Chief Executive of the Ministry of Business, Innovation and Employment where it was said:36
[19] It seems JO may be under the misapprehension that the RPO and Tribunal were obliged to accept the evidence he placed before them and erred in law in rejecting it. That is not at all the position. The correct position was explained with admirable clarity by Fisher J in Auckland City Council v Wotherspoon:
A Court may not make factual findings without any evidentiary foundation but that notion does not operate in reverse. A Court can always reject evidence. It can decline to find that facts have been affirmatively established, having regard to credibility, weight and permissible inferences. … But it is not possible for the prosecution to demonstrate to an appellate Court as a question of law that the Court at first instance was deficient in declining to accept primary facts alleged by the prosecution merely on the ground that the Court had before it evidence which, had the Court chosen to accept it, would have supported those facts. There is in law no answer to the point that the Court at first instance had the power to reject that evidence. The Court cannot conjure up evidence which is not there but it can not be forced to accept the evidence put before it.
(Footnotes omitted)
[87] As in BV, the Tribunal’s primary concern in this case was with the implausibility of the applicant’s account. That assessment was influenced by inconsistencies across various versions of the account and what might be described as inherent implausibilities in the account itself (as for example why the applicant would have returned to his home town in 2013 and remained there until January 2015 if he was genuinely in fear of his life and had been the target of an attempted murder, or the inherent implausibility of his brother remaining in the family home after the alleged home invasion of the property in 2010). The applicant’s argument elevates the benefit of the doubt principle to a mechanism for establishing the very credibility which that Tribunal found to be absent at the outset. In reality the argument is simply that the
Tribunal should not have rejected his evidence.
36 JO v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZCA 482.
Alleged failure to apply the Hathaway approach
[88] In his supplementary submissions the applicant expanded his criticism of the Tribunal’s treatment of the country information with a claim that it had, in error of law, failed to apply the so-called “Hathaway approach”. By this he invokes the proposition of Professors James Hathaway and Michelle Foster in terms:37
Even if there is no basis to find any value in the applicant’s own testimony, it may still be the case that there is evidence other than the impugned testimony that is sufficient to warrant the recognition of refugee status.
[89] In support of this argument the applicant referred to updated country information in the form of the FATA Research Centre Annual Security Report 2016 and First Quarter Report 2017.
[90] In the First Quarter 2017 report the applicant highlighted the observation at page 12 that:
During the first quarter 2017, a rise of 61% in violent incident was observed in Khyber Agency38 as compared to the previous quarter. During fourth quarter 2016, 26 incidents of terrorism and counter-terrorism were recorded, while during the first quarter 2017, 42 such incidents were reported. Moreover, the casualty index also increased to 75% during this quarter.
[91] However, on further review of the report it identifies that of the 105 killings recorded in the first quarter, five only were civilians, whereas in the full year to 31
December 2016, 60 civilians were killed or on average 15 per quarter. Moreover, the
2016 result was said to be 34 per cent down on the 2015 result in terms of civilian casualties and the areas in the Khyber Agency described in the First Quarter 2017 report as “most disturbed” do not include the Swat Valley.
[92] So if anything this updated country information indicates an improving civilian security situation in the Swat Valley, possibly at the expense of additional military
casualties.
37 James C Hathaway and Michelle Foster The Law of Refugee Status (2nd ed, Cambridge University Press, Cambridge, 2014) at 160. The approach has been recognised by Palmer J in AI v Immigration and Protection Tribunal [2016] NZAR 1471 at [54] and Whata J in BZ (Sri Lanka) v Immigration and Protection Tribunal of Auckland [2015] NZHC 2883 at [45].
38 In which the Swat Valley is located.
[93] However, even if that had not been the case I do not see how application of the Hathaway approach assists the applicant. That is because the Tribunal decision is premised on it regarding as untrue the applicant’s core claim that he was a person of interest to the Taliban, so that even evidence of increasing vulnerability on the part of such people would not have assisted him. It would have been quite different, for example, if the updated country information indicated that all villagers were now at risk on the basis, for example, that they practised a more moderate form of Islam than the Taliban.
General and public importance
[94] If I am incorrect in the conclusions expressed then I would not have found that the case raised an issue of general and public importance. As noted in Taafi this will always be a “hard ask” in the context of an appeal based on alleged factual errors.39
Nor as in AR v Immigration and Protection Officer is this a case where a wider issue about credibility assessment is engaged given the Tribunal’s concurrent findings of implausibility in relation to several key aspects of the claimant’s account.
Conclusion – s 245 application
[95] I do not for the reasons indicated consider that the applicant has established an error of law such as to engage the s 245 jurisdiction. I do not consider the applicant to have established a seriously arguable case that the Tribunal’s findings were actually wrong, but if incorrect in that conclusion I consider the case falls far short of satisfying the second limb of Taafi. Moreover, the issues raised by the applicant are specific to his case so cannot in my view be said to raise issues of general or public importance. Nor can I identify any equivalent reason in terms of s 245(3) for the appeal to proceed.
Application for leave to review
[96] The applicant raises identical grounds in the notices of application for leave to appeal and leave to bring judicial review proceedings. I accept the respondent’s
39 At [19].
submission that since the challenge is essentially one to the Tribunal’s factual findings, appeal is the correct vehicle. Whatever relaxation from strict Wednesbury principles the applicant may contend for in matters with a human rights overlay, unreasonableness will not be established where factual findings are neither based on an absence of evidence, nor contradict other findings of fact or the only reasonable conclusion of fact available on the evidence. As such, all relevant factual issues are engaged in the Taafi analysis.
[97] As Priestley J said in GA v Refugee Status Appeals Authority:40
… a judicial review application cannot possibly be used as a guise to invite this Court to reassess credibility issues and the weight given to evidence.
[98] Nor in circumstances where the Tribunal acknowledged and took account of the applicant’s use of sleeping pills and anti-depressants was it required on that account to come to some different conclusion about the applicant’s credibility, at least not in the context of the various concerns it identified.
[99] Moreover, as the challenge is one against factual findings, the proceedings do not engage the core function of judicial review (that is ensuring that the executive branch acts according to the law), which is the focus of the cases adopting a more expansive approach to s 249(6). In that respect the application falls some distance short of being in the marginal category recognised by Palmer J in RM v Immigration and Protection Tribunal.
Result
[100] I decline the applications under both ss 245 and 249 of the Act.
[101] If the second respondent seeks costs, memoranda may be filed on the following timetable:
(a) Memorandum of respondent by 14 August 2017.
(b) Memorandum of applicant by 28 August 2017.
40 GA v Refugee Status Appeals Authority HC Auckland CIV-2005-404-1520, 1 March 2006 at [37].
Muir J
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