JC (India) v Refugee and Protection Officer
[2020] NZHC 3327
•16 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-845 CIV-2020-404-846
[2020] NZHC 3327
UNDER the Immigration Act 2009, s 245 BETWEEN
JC (India) Applicant
AND
REFUGEE AND PROTECTION OFFICER
First Respondent
THE IMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent
Hearing: 5 November 2020 Counsel:
RS Pidgeon for applicant
BCL Charmley for first respondent
Judgment:
16 December 2020
JUDGMENT OF FITZGERALD J
[As to application for leave to appeal and/or seek judicial review]
This judgment was delivered by me on 16 December 2020 at 11am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors: Crown Law, Wellington To: R Pidgeon, Auckland
JC (India) v Refugee and Protection Officer [2020] NZHC 3327 [16 December 2020]
Introduction
[1] The applicant is from India. Before his arrival in New Zealand in 2015 on a student visa, he had converted from Hinduism to Islam. The background to the applicant’s present application for leave to appeal to this Court is somewhat unusual and is summarised below.
[2] In January 2016, the applicant lodged a claim for refugee and protected person status on the basis that his conversion to Islam rendered him liable to religious persecution were he to return to India. His claim was declined by the Refugee Status Branch (RSB), as was his subsequent appeal to the Immigration and Protection Tribunal (the Tribunal).1 In October 2017, Hinton J declined to grant leave to appeal to this Court against the Tribunal’s decision.2
[3] In 2018, the applicant lodged a second claim for refugee and protected person status on broadly the same grounds as his earlier claim, though stating that since his first claim had been determined, the situation facing Muslims in India had deteriorated further. This second claim was declined by a Refugee and Protection Officer (RPO), who found that there had been no significant change in circumstances material to the claim and thus the RPO had no jurisdiction to consider the claim.3
[4] The applicant’s appeal against that decision was due to be heard by the Tribunal in July 2019. However, a matter of days before the hearing, the applicant suffered a psychotic episode and was admitted to hospital. One of the consequences of that episode was that the applicant lost all but his short-term memory. He therefore had no recollection of his time in India or his conversion to Islam. These consequences are not in dispute; in other words, the Tribunal accepted that the applicant was not malingering.
[5] Given the applicant’s medical condition, the Tribunal granted an adjournment of the July 2019 hearing. In the event, the hearing was adjourned some eight months to February 2020. Medical evidence at that time given by the applicant’s treating
1 Re CW (India) [2017] NZIPT 801003.
2 CW (India) v The Immigration and Protection Tribunal [2017] NZHC 2675.
3 Immigration Act 2009, s 140(1)(a).
psychiatrist was that the applicant’s mental health had greatly improved with medication, and there was no suggestion he was incapable of attending and participating in the appeal hearing. The medical evidence was, however, that the applicant still suffered from amnesia.
[6] At the commencement of the hearing on 12 February 2020, counsel for the applicant, Mr Pidgeon, sought a further adjournment for a period of at least three months (or indefinitely), given his client’s continuing inability to recall his time in India and his conversion to Islam. Mr Pidgeon submitted that because of his amnesia, the applicant had been unable to fully or properly prepare his case on appeal. Mr Pidgeon also submitted that further medical expert evidence from a neuropsychiatrist would be sought were the adjournment granted.
[7] The Tribunal declined to adjourn the February 2020 hearing. It accepted the medical evidence about the applicant’s amnesia, and also that it was impossible to say whether the applicant would ever regain his memory, and even if so, when. The Tribunal nevertheless proceeded on the assumption that it was at least foreseeable that the applicant would regain his memory, and thus would regain his memory of converting to Islam and would therefore continue to practice that faith at some point in the future.4 Having made those assumptions, however, the Tribunal did not see any unfairness in proceeding with the February 2020 hearing.
[8] In its decision on the appeal delivered in May 2020 (the Tribunal’s Decision), the Tribunal accepted that the applicant’s medical condition represented a qualifying change in circumstances since his first appeal (and thus that the Tribunal had jurisdiction to consider the second appeal), but dismissed the appeal on substantive grounds.
[9] The applicant now wants to appeal against the Tribunal’s Decision on a question of law. He needs leave to do so. The applicant says that in declining to grant the adjournment, the Tribunal failed to take into account and give effect to the Convention on the Rights of Persons with Disabilities (the CRPD) and in particular art 13(1), which confers on a person with a disability the right to enjoy legal capacity
4 Re JC (India) [2020] NZIPT 801529 at [102].
on an equal basis with others. The applicant submits that in order to comply with New Zealand’s obligations under the CRPD, the February 2020 appeal hearing ought to have been adjourned, including to give the applicant an opportunity to complete the evidence he had intended to adduce on the second appeal. The applicant further submits that the Tribunal ought to have engaged in a procedure analogous to that under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP) to assess the applicant’s “fitness” to engage in the appeal. The applicant says that by not doing so, the Tribunal again failed to take into account and apply the obligations under the CRPD.
[10] The applicant says that how the Tribunal ought to have implemented the rights and obligations contained in the CRPD is a matter of general or public importance, and ought to be fully ventilated before this Court by way of an appeal on a question of law.
[11] For completeness, I record that the applicant also filed an application for leave to apply for judicial review of the Tribunal’s Decision. But the argument on the application for leave to appeal concerning the CRPD effectively subsumed the points that the applicant intended to raise in his application for leave to commence judicial review proceedings. Mr Pidgeon confirmed at both the commencement and conclusion of the hearing before this Court that the judicial review application was therefore not pursued.
Factual background – more detail
[12] The following factual background is drawn from the helpful summary in the Tribunal’s Decision.
[13] As noted, the applicant lodged his first claim for refugee and protected person status in New Zealand in January 2016. An RPO declined the claim in a decision issued in May 2016.
[14] The applicant’s first appeal to the Tribunal was heard and declined in January 2017. The Tribunal accepted parts of the applicant’s claim, and in particular that he
had converted to Islam and had experienced a level of harassment from some family members as a result.
[15] The first Tribunal also accepted the applicant’s account that he had met a young Muslim woman (referred to as “A”), but rejected that they had been in a serious romantic relationship and had effectively “eloped” across India in 2012. The applicant said that he and A had run away to Delhi and tried to get married but could not as A was only 17 years old at the time. The applicant said that his family began searching for him and filed a missing persons report with the Police. The applicant said that in about February 2013, his uncle and two Police officers found him and A and returned with them to Meghaninagar. The applicant said his uncle and the officers took them to the Police station and questioned them for three to four hours, including about whether they were terrorists. When the applicant saw his family, his parents said that they would take A back to her parents, and would try to convince her parents to allow them to marry once she had turned 18.
[16] The applicant said he did not see A again and feared she may have been killed. He also said that shortly after returning home, six of his uncles and members of the local community gathered in his family home and asked him questions about whether he had converted to Islam and whether he was a terrorist. He said he was punched by one of his uncles. He also said that 17 to 18 militants, including from the Rashtriya Swayamsevak Sangh (the RSS), arrived at the house to question him. The applicant said he told them that he was not a Muslim but Hindu. He said the militants threatened to kill him, A and his family if he converted to Islam or ran away again.
[17] The applicant said that because of the opposition of his extended family and his fear for the safety of himself, A and his family, he did not practise his faith openly and pretended to follow Hinduism. He subsequently married a Hindu woman (his cousin) in what he said was a forced marriage. The applicant said that some point he told his wife that he had converted to Islam which caused difficulties and that the two have a poor relationship. He said he continued to attend a nearby mosque on occasion and to experience resistance to his conversion.
[18] From about April or May 2013, the applicant said he started to work for a tax consultant. During the period December 2013 to March 2014, however, the applicant said he stopped working as he was upset with his married life and wished to have a rest from work. He then resumed work. In December 2014, he applied for a student visa to the United Kingdom but his application was declined.
[19] In January 2015, the applicant lodged a student visa application with Immigration New Zealand. His application was initially declined. He re-applied in June 2015 and declared that he was single. He said before the first Tribunal that he did so because he feared that if he had declared that he was married, his visa application might be rejected or he would have to incur expenses and bring his wife with him to New Zealand.
[20] The first Tribunal accepted that the applicant continued to practice as a Muslim after his arrival in New Zealand in September 2015. The first Tribunal also recorded that after arriving in New Zealand, the applicant spoke with his father and sister weekly; his wife every two to three weeks; and his other relatives, including uncles and cousins, every three weeks or so.
[21] On 4 November 2015, a daughter was born to the applicant and his wife, in India.
[22] Despite accepting parts of the applicant’s account, the first Tribunal found that the claimed elopement and travel across India with A conflicted with the information and documents supplied by the applicant to Immigration New Zealand before he had lodged his application for refugee and protected person status.5 In particular, the applicant provided with his application for a student visa copies of income tax returns and a letter of employment which confirmed he had been working for the tax consultant during the time he said he was travelling across India with A. Before the first Tribunal, the applicant sought to explain this by saying the information contained in his visa application was a lie and that the letter and income tax returns were false. But the first Tribunal rejected this as implausible, there being no reason for the applicant to lie about such matters in the context of applying for a student visa which
5 Re CW (India), above n 1, at [42]–[48].
did not rely on his work history. The Tribunal also found the applicant’s account of his elopement with A to contain a number of inconsistencies and overall to be lacking in credibility.
[23] Having made a number of adverse credibility findings against the applicant, the Tribunal stated that if it had reached only one of those findings, it may have been left in some doubt as to that account. But it said that weighing the findings cumulatively, it was driven to put to one side the applicant’s alleged elopement and the alleged ensuing consequences.6
[24] The first Tribunal nevertheless went on to consider whether the applicant would be at risk of serious harm were he to return to India, given his (accepted) conversion to Islam. In this context, the first Tribunal accepted that the country information disclosed intercommunity tensions and violence between the Hindu majority and the Muslim minority in India, but found there was no particular evidence that Hindu militant groups had any awareness that the applicant had converted to Islam or otherwise took any particular interest in him.7 The Tribunal accordingly concluded that there was nothing more than a remote or speculative chance of the applicant being seriously harmed were he to return to India and manifest his adopted religious beliefs.8
[25] As noted, Hinton J declined to grant leave to appeal to this Court from the first Tribunal’s decision.
[26] On 29 June 2018, the applicant lodged a second application for refugee and protected person status. He stated that he would be at risk of being persecuted or tortured if he returned to India “because of my religious belief and some past incident”. He stated in the application that “further information will be provided in a written statement”.
[27] In a further statement dated 29 August 2018, the applicant said that the situation in India had deteriorated and that it was not safe for him to return. He referred to a telephone conversation in early June 2017 (so a few months after the first
6 At [49].
7 At [62].
8 At [65].
Tribunal’s decision) with a friend in India, J, who told him that Hindu extremists were still interested in finding him. The applicant said J had told him that the extremists had approached the applicant’s friends to inquire as to his whereabouts.
[28] In June 2017, J was interviewed by an associate of the applicant in New Zealand. A transcript of that interview was attached to the applicant’s further statement dated 29 August 2018. The Tribunal on the second appeal stated that:9
According to the transcript, the friend told [the applicant’s associate] CC that it was common knowledge in the local community that the [applicant] had had a relationship with a young Muslim partner, that they had been found and that his partner had been murdered by Hindu extremists. He also repeated that the [applicant] was still being sought by Hindu extremists.
[29] The applicant was interviewed by an RPO in September 2018. The applicant said that he had spoken to J again in July 2018, and that the Hindu extremists were still looking for him, most recently in March 2018. J reported having been threatened and that when he and others tried to file a complaint with the Police they were jailed for 12 days. The applicant’s evidence before the RPO was that he had been unable to make further contact with J since that conversation.
[30] The applicant also said that he had received a message around this time from an uncle asking why he was away and demanding that he return home to India because his mother was in hospital. Further country information concerning the situation in India was also submitted before the RPO.
[31] The RSB, in a decision issued in late 2018, concluded that the applicant’s further evidence simply reaffirmed an aspect of his claim that the first Tribunal had rejected. It also disagreed that the additional country information demonstrated there had been a significant change in circumstances since the applicant’s prior claim had been denied.
[32] The applicant then lodged an appeal with the Tribunal. The following extracts from the Tribunal’s Decision summarise the events and procedure which ultimately led to the hearing which commenced on 12 February 2020:
9 Re JC (India), above n 4, at [33].
[38] The appellants second appeal was originally set down for hearing on 2 July 2019. In line with its standard practise, the Tribunal convened a teleconference on 5 June 2019, to monitor and assist with the appellants readiness for the hearing. In a letter of that date, counsel confirmed that the appellant intended to give evidence in person, and to call three additional witnesses.
[39] The first proposed witness, [I], was described by counsel as a teacher at an Islamic Association Centre in Uttar Pradesh, India. He was likely to give evidence confirming the claim the appellant made during his first appeal, that the appellant and his partner had stayed in [I]’s Islamic centre seven years earlier. He would also give information about circumstances faced by Muslims in India.
[40] The second proposed witness was the Imam from the mosque the appellant attended in New Zealand. He is not a national of India. Finally, it was likely that the appellant would call a friend who lives in New Zealand now, but who lived in Gujarat at the time of religious riots in 2002, when the current Indian Prime Minister was Chief Minister of Gujarat. Counsel did not know the name of that witness.
[41] Counsel indicated that the proposed witness statements would be lodged with the Tribunal within two weeks, which was approximately two weeks before the scheduled date for the hearing. This was in line with the Tribunals standard timetable directions.
[42] In the event, no evidence was lodged and the hearing did not proceed as scheduled. On 1 July 2019, the day before the hearing, counsel lodged an application for an adjournment. A medical certificate was lodged later that afternoon. The general practitioner who signed the certificate confirmed that he had examined the appellant earlier that day and the appellant displayed signs of thought disorder. He was unable to orientate himself as to time and place and had difficulties with his memory. In the doctors opinion, the appellant was sufficiently unwell that he was unable to properly participate in a hearing at that time.
[43] Counsel appeared before the Tribunal on Tuesday 2 July 2019, in support of the application for an adjournment, which the Tribunal granted. A Minute dated 4 July 2019 was issued, indicating that a further teleconference would be convened in late July 2019, by which time counsel was to have arranged for the appellant to be assessed by an appropriate medical expert such as a psychiatrist.
[44] During a further teleconference on 30 July 2019, counsel advised that the appellant was under the care of Dr Tom OFlynn, a psychiatrist working with a community mental health service under the local District Health Board. Dr OFlynns preliminary view was that the appellant had experienced a psychotic episode. He was still unwell and it would be appropriate to reassess his ability to participate [in] a hearing within approximately three months.
[45] In a subsequent report, dated 9 September 2019, Dr OFlynn confirmed that the appellant had presented with symptoms of psychosis, including auditory hallucinations and persecutory delusions. He was being treated with antipsychotic medication. Dr OFlynn stated that the delusions and hallucinations "appear to have abated" and continued:
The unusual factor with [the appellant] has been his loss of memory for all events before relatively recently, including his first language and any memories of family or place of origin or prior education or employment.
His short-term memory is fully intact.
This is an unusual presentation which does not follow any pattern of organic damage.
It is possible that his memory loss is related to trauma.
It is impossible at this point, beyond providing emotional support and suggesting using cues to remind him of his former life, to address any traumas which he does not appear to remember.
In these circumstances it is impossible to predict when his memory will/may return.
[46] Dr OFlynn did not suggest that the appel lant was incapable of attending and participating in the hearing of his appeal.
[47] The Tribunal issued a further Minute, dated 11 September 2019, again recording standard directions with a view to the appeal being ready for hearing on 12 February 2020. The Tribunal also directed that:
(f) If counsel intends to adduce expert evidence from a psychiatrist or psychologist with respect to the appellants state of mind, his current state of health, or in any other respect, a brief of evidence must be lodged with the Tribunal 14 days in advance of the appeal hearing, and the expert must be available to attend the hearing before the Tribunal should the Tribunal need to examine him or her.
[48] Counsel was granted leave to apply for further directions if necessary. During another teleconference, convened in January 2020, Mr Pidgeon requested that a subpoena be issued by the Tribunal, requiring Dr OFlynn to attend the hearing. Dr OFlynn attended the hearing by telephone. His evidence is outlined below. Mr Pigeon did not seek leave to call evidence from any other expert prior to the appeal hearing, which commenced on 12 February 2020.
[33] It is worth interpolating at this point that in addition to the further evidence the applicant had intended to advance at the original July 2019 hearing (and referred to at
[39] and [40] of the above extract from the Tribunal’s Decision), Mr Pidgeon confirmed at the hearing before me that had it been possible to do so, it was also proposed to adduce visual evidence of the applicant’s alleged elopement with A. As Mr Pidgeon said in his written submissions filed in support of the application for leave to appeal:
What was sought to be done was to provide a play by play or step by step birds eye view of the journey of the eloping lovers through northern India to Uttar Pradesh to the sanctuary where [I] was to be found. This journey was to be
reinforced via Google Earth snapshots, in a way reminiscent of the well- known movie Lion, to get the best evidence before the Court.
[34] Ultimately, Mr Pidgeon’s submission to the Tribunal was that given the applicant had no memory of his time in India, he was not able to provide counsel with details as to how to contact I or to finalise the other evidence referred to, or to engage with counsel preparing the “bird’s-eye view” evidence.
The Tribunal’s Decision
[35] Having proceeded in February 2020 to hear the application for an adjournment and the substantive appeal (the Tribunal stating that it would rule on both in its substantive decision), the Tribunal’s Decision was delivered on 13 May 2020.10
[36] Given the focus of the application presently before the Court, it is helpful to set out in full the relevant extract from the Tribunal’s Decision on the adjournment application:
[87] Section 231(1) of the Act provides that the Tribunal may rely on the findings of credibility and fact made by the first Tribunal panel. Section 231(2) provides further that a person "may not challenge" any such finding of credibility or fact. Yet it is to precisely that end that counsel seeks a further adjournment of the hearing. There could be no other purpose in calling [I] to give evidence purporting to reinforce the basis upon which the appellants first appeal was advanced, and which the first Tribunal panel rejected.
[88] Counsel submitted that there are circumstances in which the Tribunal may exercise its discretion not to follow previous findings of fact. In support of that submission, he cited DX (Iran) NZIPT [2016] 800943 at [41], where the Tribunal (differently constituted) stated that:
... the Act preserves the flexibility to enable subsequent decision makers to reach different findings should the evidence now before them warrant a departure.
[89]While that may be so as a matter of general principle, the Tribunal in
DX (Iran) also stated, in the same paragraph, that:
... where negative credibility findings have been made which have been left undisturbed by applications in the High Court ... a subsequent panel should be slow to depart from these findings in the absence of compelling and credible evidence that those past findings should be departed from. The clear thrust of the Act is designed to prevent appellants from simply repeating assertions that were made previously but not believed.
10 Re JC (India), above n 4.
[90] Here, counsels su bmission is predicated on the possibility that the appellant may recover his memory sufficiently to instruct counsel to make contact with [I]. Even if this were to occur, [I’s] evidence would simply repeat aspects of the appellants first claim that were rejected by the first Tribunal panel, for a variety of reasons endorsed by the High Court. It is difficult to envisage that evidence of that nature, given by a witness whose credibility would be difficult to assess by telephone, and who would not be in any meaningful sense subject to a sanction for violating an oath or affirmation to tell the truth, could be "compelling and credible" to the point that previous findings should be departed from.
[91] In similar vein, the appellant gave evidence to the Refugee Status Branch for his subsequent claim, that a friend of his had been threatened in mid-2017 by Hindu militants who were looking for the appellant. He provided the transcript of a telephone interview [the applicant’s associate] conducted with his friend. Like the hypothetical evidence that might have been offered by [I], the transcript simply purports to confirm (at third hand) aspects of the appellants claim that had been rejected by the first Tribunal panel.
[92] Nor does the prospect of hearing the largely non-specified evidence of the other potential witnesses originally identified by counsel, the Sri Lankan Imam or the unnamed former associate of the appellant who lived in Gujarat, support a further adjournment.
[93] With respect to the appellants mental state, the CPMIP Act does not apply to appeals conducted by the Tribunal under the Immigration Act 2009. Nor does the matter need to be referred to the High Court by way of case stated, because the matter can be addressed by the Tribunal.
[94] In determining appeals, the Tribunal must act fairly. It must have regard to its obligation to observe the principles of natural justice under section 27 of the New Zealand Bill of Rights Act 1990. There are no specific criteria as to what will be fair in any given circumstance. As Kós J has observed, in one of the authorities cited by counsel, "one size does not fit all": Jones v R [2015] NZCA 601, at [17].
[95] In the context of a hearing where an appellant has experienced problems with their mental health, the Tribunal will also have regard to the 2006 Convention on the Rights of Persons with Disabilities. Article 13(1) of that Convention requires the Tribunal to take steps to promote effective access to justice for persons with disabilities.
[96] In that light, the Tribunal adjourned the hearing first set down for July 2019, because the appellant was so unwell at that time that it was not appropriate to proceed. The psychosis for which he was then being treated prevented him from being able to participate in the appeal hearing in any meaningful way. He may not have understood the nature of the proceeding, or its significance. He may not have been able to engage with the Tribunal, or with counsel. In those circumstances, the Tribunal adjourned the hearing, subject to various directions, and monitored the appellants subsequent progress with the assistance of Dr O’Flynn and counsel.
[97] Accepting, for present purposes, that the appellant has experienced loss of memory, it may be that there are aspects of his past that he cannot
recall. It may be that he has no recollection of the basis upon which he previously claimed refugee status.
[98] However, by the time the hearing resumed in February 2020, it appeared to the Tribunal that the appellant had recovered from his psychotic episode. Dr O’Flynn stated that he had responded to treatment. He was no longer delusional and did not manifest any cognitive deficits. His mental state did not appear to impede his ability to understand the nature of the appeal. He was able to discuss this with counsel and to understand the purpose of the hearing. He appeared to be able to understand the questions he was asked, by the Tribunal and by counsel, and his answers and responses demonstrated an appropriate level of comprehension.
[99] The appellants ability to engage with the appeal process was tested again after the second appeal hearing. He says that, having received a series of telephone calls that he found distressing, he decided to contact a support person, and communicate with his lawyer about what had happened. Those responses reflect an appropriate level of understanding of the legal process in which he was engaged.
[100] The Tribunal has not overlooked counsels submission that the second appeal hearing ought to be adjourned to enable him to seek evidence from Dr Finucane, as to whether or when the appellant will recover his memory.
[101] Counsel had some eight months after the adjournment of the hearing in July 2019, during which he could have pursued that option. Even putting that to one side, the Tribunal finds that there is no substantive basis for adjourning the hearing to that end. It is difficult to anticipate what value Dr Finucanes opinion might add. If he was to express an opinion that the appellant will not recover his memory, or state that he is unable or unwilling to offer an opinion either way, the appellants interests would not be advanced.
[102] Even if Dr Finucane was to confirm that the appellant could recover his memory, the appellants interests would not be advanced. That is because the Tribunal indicated to counsel that it will assess the appellants subsequent claim on the basis that it is at least foreseeable that he could recover his memory, and therefore that he may resume his previous practise as a convert to Islam. It gave that indication on the basis that, while Dr OFlynn was unable to say whether the appellant would recover his memory, nor could he rule it out.
[103] The application for a further adjournment is therefore declined for the following reasons:
(a)The appellants subsequent appeal was adjourned from July 2019 until February 2020, to enable the appellant to recover sufficiently to participate meaningfully in the hearing.
(b)The issue as to whether the Tribunal has jurisdiction to determine the appeal turns upon the evidence of Dr O’Flynn. The appellants claim to have been unwell is borne out by Dr OFlynn, and his claim to have lost his memory has been accepted by the Tribunal, for reasons outlined below.
(c)The appellant is not prejudiced by his loss of memory of past events or his inability to adduce evidence from [I] because relevant credibility findings were made by the first Tribunal panel and are adopted by the Tribunal under section 231. Nothing suggests that the proposed evidence would change that.
(d)The appellant is not prejudiced by not calling evidence from Dr Finucane. For the purpose of this hearing, the Tribunal accepts that the appellants loss o f memory is genuine, and that it is plausible that he may recover his memory and resume practise as a Muslim.
(e)Whether the appellants substantive appeal is objectively well-founded turns upon objective country information identified by counsel. It does not turn upon the appellants additional personal testimony as to his past.
(f)The appellant had recovered sufficiently that he was able to participate meaningfully and effectively in the hearing of his subsequent appeal in February 2020.
(g)The Tribunal has given counsel the opportunity to adduce further country information and submissions following the appeal hearing.
[104] In the circumstances, the Tribunal has taken appropriate steps to ensure that the appellant has been treated fairly, and that he has had effective access to justice. No additional appraisal of the appellants "fitness" is necessary. The application for a further adjournment is declined.
[37] Having declined the application for an adjournment, the Tribunal proceeded to consider the appeal. For the purposes of s 200(3)(a) of the Act, the Tribunal was satisfied that because of the applicant’s psychiatric illness and amnesia, there had been a “significant change in circumstances” since the applicant’s previous claim. The Tribunal accordingly concluded it had jurisdiction to hear the substantive appeal in accordance with s 198(1) of the Act.
[38] In that context, the Tribunal adopted the first Tribunal’s credibility and factual findings with respect to the applicant’s history and his account of eloping with A.11 Information was also put before the Tribunal on the availability of psychiatric care in India, given Dr O’Flynn’s evidence that having suffered a psychotic episode once, there was a prospect the applicant would suffer a further such episode. The Tribunal accepted that in those circumstances, the applicant would be unlikely to access
11 Re JC (India), above n 4, at [109].
healthcare of a similar standard to that which would be available in New Zealand. But the Tribunal was not satisfied the applicant would “be so deprived of health care as to jeopardise his right to life or that he would be deprived of a life of dignity”.12 The Tribunal also rejected the applicant’s claim that he could not expect help from his family on return to India, or that the combination of the risk of a further episode and his status in India would confine him to a life of poverty and deprivation. In this context, the Tribunal observed that the evidence submitted in support of the applicant’s original student visa application demonstrated:13
… he lived a full life [in India] and there is no basis for suggesting that he would return to a vacuum, with no family support if he were to become or remain unwell.
[39] The Tribunal noted the more recent contact from members of the applicant’s family asking him to come back to India given his mother was unwell and in hospital.14
[40] In terms of the risk of persecution given his conversion to Islam, the Tribunal reviewed the updated country information and acknowledged that the reported violence towards Muslims in India is “disturbing and is not to be trivialised”.15 Nevertheless, the Tribunal concluded that the risk to the applicant of being caught up in the anti-Muslim violence was no more than speculative or remote. The Tribunal also adopted the first Tribunal’s findings that neither the Indian Government nor right- wing organisations were specifically interested in the applicant himself.
[41]The applicant’s substantive appeal was therefore dismissed.
Application for leave to appeal – legal principles
[42] Applications for leave to appeal to this Court against a decision of the Tribunal are governed by s 245 of the Act which relevantly provides as follows:
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
12 At [129].
13 At [127].
14 At [125].
15 At [144].
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.
[43] The Court of Appeal in Machida v Chief Executive of Immigration New Zealand discussed the proper approach to applications for leave to appeal pursuant to s 245.16 The Court stated that in its practical application, an applicant seeking leave will need to identify a seriously arguable question of law which either:17
(a)has importance extending beyond the particular case (and thus has general or public importance for the purposes of s 245(3)); or
(b)for some other reason, warrants a decision from the High Court.
[44] In relation to (b) above, the Court endorsed a series of decisions in the High Court to the effect that 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 the “for some other reason” test set out in s 245(3) could be met.18
[45] More recently, in Hai v Minister of Immigration, the Court of Appeal referred to the “any other reason” threshold addressed in Machida, and the “more flexible test” preferred in some decisions of this Court (including RM v Immigration and Protection
16 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721.
17 At [8].
18 At [8].
Tribunal and AI (Somalia)).19 In a footnote to these observations, the Court in Hai
acknowledged:20
…the distinction may be no more than a matter of tone and emphasis since, according to AI (Somalia) at [32], both in the end “depend on and are driven by, the interests of justice.”
The parties’ submissions
Applicant’s submission
[46] Mr Pidgeon submits that at the time of the hearing before the Tribunal, the applicant was unfit to participate in the Tribunal appeal, relying by analogy on the concept of “unfitness” in the CPMIP. Mr Pidgeon also referred to the concept of fitness under the common law, by reference to authorities such as R v Presser.21
[47] While Mr Pidgeon acknowledged that the applicant understood what was occurring at the appeal hearing and what was involved, he submitted that given his amnesia, the applicant could not give the necessary instructions to counsel letting him know what his version of the facts was and, if necessary, informing the Tribunal of the same. In this context, Mr Pidgeon submits that it is seriously arguable that in order to comply with the CRPD, the Tribunal ought to have adopted a procedure analogous to CPMIP and found the applicant unfit to present his appeal. Mr Pidgeon said this was particularly important given the statutory onus on the applicant to prove his case before the Tribunal.
[48] It was not entirely clear from Mr Pidgeon’s submissions what he says ought to have been done had the Tribunal adopted a procedure analogous to CPMIP and found that, at least at February 2020, the applicant was not fit to conduct his appeal. However, it was implicit in Mr Pidgeon’s submissions that at the very least, the Tribunal ought to have adjourned the February 2020 hearing, potentially indefinitely.
19 Hai v Minister of Immigration [2019] NZCA 55, [2019] NZAR 1867 at [38]. See also RM v Immigration and Protection Tribunal [2016] NZHC 735 at [35]–[37]; and AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [32].
20 At [38], fn 48.
21 R v Presser [1958] VR 45 (SC) at 48.
[49] In a similar vein, Mr Pidgeon argued that it is seriously arguable that in order to implement this country’s obligations under the CRPD, the Tribunal ought to have sought guidance from this Court on how to proceed, through either a “case stated” procedure or as a consequence of the Tribunal’s inherent ability to control its own procedures. Mr Pidgeon did not specify what guidance or orders might have been sought from or given by this Court. Rather, the argument was more broadly framed as the High Court being in a position to give “appropriate” guidance on how to proceed.
[50] Mr Pidgeon further submits that it is seriously arguable that the Tribunal failed to adequately engage with the additional evidence which the applicant proposed to call on his second appeal, had he been in a position to instruct counsel on completing that evidence. Mr Pidgeon submits that the Tribunal was “fishing in shallow waters” and failed to “deeply” engage with the proposed evidence, including a failure to recognise that such evidence could well have swayed the Tribunal from the first Tribunal’s adverse factual and credibility findings.
[51] Mr Pidgeon also submits, though did not press firmly, that had an adjournment been granted, he would have been able to seek and obtain further specialist psychiatric advice as to the applicant’s mental health condition. Mr Pidgeon submits that more focused and specialist advice might have provided a clearer pathway of how the applicant’s case ought to be dealt with by the Tribunal, in a manner consistent with the CRPD.
[52] On the basis that it is seriously arguable that the Tribunal erred as a matter of law in not granting the adjournment (or implementing the other steps said to have been necessary to comply with the CRPD), Mr Pidgeon submits that clarifying how decision-makers in the refugee context apply the relevant principles of the CRPD is a matter of public interest and general importance extending beyond the applicant’s own case.
The first respondent’s submissions22
[53] Counsel for the first respondent, Ms Charmley, submits it is not seriously arguable the Tribunal failed to adequately take into account or give effect to New Zealand’s obligations under the CRPD.
[54] First, counsel points to authorities such as Puli’uvea v Removal Review Authority and Singh (Harpal) v Chief Executive of the Ministry of Business, Innovation and Employment that the Tribunal is under no obligation to expressly mention all the international conventions that it is taking into account, but rather to apply them in substance.23 Ms Charmley refers to the fact that the CRPD was nevertheless expressly raised with the Tribunal in the February 2020 hearing, directing the Court’s attention to those aspects of the transcript where the CRPD was discussed between Mr Pidgeon and the Tribunal. Ms Charmley also points to that extract from the Tribunal’s decision set out at [36] above where the Tribunal (at [95]) expressly noted that art 13(1) of the CRPD required the Tribunal to take steps to promote effective access to justice for persons with disabilities. She accordingly submits that it is not seriously arguable that the Tribunal did not take into account the CRPD.
[55] Ms Charmley further submits that it is not seriously arguable that the process adopted by the Tribunal failed to reflect or was otherwise inconsistent with the obligations under the CRPD. She highlights that the applicant was in fact granted a lengthy adjournment of almost eight months from July 2019 to February 2020 given his mental health condition. Ms Charmley submits that the applicant and his counsel accordingly had ample time to secure and present further medical evidence, particularly given the topic of further medical evidence had been raised by the Tribunal with the applicant’s counsel well before the February 2020 hearing (see [32] above). Ms Charmley further submits that the need for and effect of any further medical evidence was somewhat moot in any event, given the Tribunal accepted that the applicant had amnesia and Dr O’Flynn’s evidence that it was impossible to say whether, and if so when, he would regain his memory. For that reason, Ms Charmley
22 The second respondent, the Tribunal, abides the Court’s decision.
23 Puli’uvea v Removal Review Authority [1996] 3 NZLR 538 (CA) at 542; and Singh (Harpal) v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 2337, [2017] NZAR 722 at [29].
notes that the Tribunal proceeded on a basis in the applicant’s favour, in assuming that he would regain his memory and thus would resume his practise of Islam.
[56] Ms Charmley also submits that the CRPD did not oblige the Tribunal to grant the adjournment in order to enable the applicant to complete the evidence referred to at [32] above. She submits there is no reason why the evidence of I could not have been put before the first Tribunal, or the RPO on the second claim (before whom hearings took place on 29 June and 29 November 2018), or prepared and finalised in the months after the applicant’s appeal was filed but before his medical episode which occurred shortly before the July 2019 hearing. Ms Charmley accordingly queried the “freshness” and cogency of the evidence, as well as the cogency of the proposed “bird’s eye view” of the applicant’s alleged travel across India with A. Ms Charmley further submits that it is entirely speculative whether the proposed further evidence could ever be put before the Tribunal in any event, given it is not known whether the applicant will regain his memory.
[57] Ms Charmley accordingly submits that even if the applicant’s state of amnesia meant he could not now recall what had occurred in India, it did not prevent him from progressing his appeal in a way that maintained fairness. She submits that if the applicant relied on what had happened in India, the first Tribunal had already made findings on those events, and the proposed new evidence was not sufficiently compelling or credible to have overcome those earlier findings.24
[58] As to the suggestion that a CPMIP-type approach ought to have been adopted, Ms Charmley submits that that procedure applies only in criminal proceedings and has no application to appeals before the Tribunal, by analogy or otherwise. Rather, what is required before the Tribunal is for the Tribunal to consider the obligation of enabling applicants, including those with mental health disabilities, to effectively participate in a fair hearing. Ms Charmley submits that this was afforded to the applicant in the present case.
24 Contrasting the proposed evidence in this case with the type of evidence in issue in E(CA746/2017) v Chief Executive, Ministry of Business, Innovation and Employment [2019] NZCA 658, being independent expert medical evidence that could not have been adduced at the earlier hearing.
[59] In relation to the updated country information, Ms Charmley submits that this does not depend on specific evidence from the applicant himself, and it was clear that through his counsel, the applicant was able to adduce updated and comprehensive country information which was properly considered by the Tribunal.
[60] Finally, even if it were seriously arguable that the Tribunal erred in law, Ms Charmley says that the issues arising in this case do not give rise to any matters of general or public importance. She highlights that the Tribunal must engage with procedural fairness in all cases before it, and how it approaches fairness in any given case will be specific to the circumstances of any given case. She accepts that the circumstances arising in this case are novel. But she highlights that this means that any ruling or “guidance” given by this Court would be very specific to the applicant’s case, rather than offering any broader guidance on how the Tribunal is to implement the obligations under the CRPD.
Is it seriously arguable that the Tribunal erred in law?
[61] Mr Pidgeon accepted at the hearing before me that the applicant was, at the time of the February 2020 hearing, “fit” to engage in that hearing, in terms of understanding and being able to engage in the process and with counsel. The central issue is accordingly whether whether it is seriously arguable that the CRPD obliged the Tribunal to adjourn the February 2020 hearing (potentially indefinitely) to provide the applicant with the opportunity to advance the proposed further evidence (if and when he regained his memory).
[62] Before considering the answer to that question, however, it is useful to reflect on the circumstances in which further evidence can be adduced on a second appeal.
[63]Section 231 of the Act provides as follows:
231 Findings of credibility and fact
(1)On any appeal or matter, the Tribunal may rely on any finding of credibility or fact—
(a)by the Tribunal in any previous appeal or matter determined by the Tribunal that involved the appellant or affected person; or
(b)by any appeals body in any previous appeal or matter determined by the appeals body that involved the appellant or affected person.
(2)A person may not challenge any finding of credibility or fact that may be relied on by the Tribunal under subsection (1).
…
(emphasis added)
[64] As the Tribunal noted in its decision, the purpose of the further evidence the applicant intended to advance on the second appeal was to seek to persuade the Tribunal to depart from the credibility and factual findings made by the first Tribunal. Prima facie at least, this could be seen as conflicting with the prohibition in s 231(2) on challenging any findings of credibility or fact that a subsequent Tribunal is entitled to rely on.
[65] Nevertheless, as the Tribunal in Re DX (Iran) stated, “the Act preserves the flexibility to enable subsequent decision makers to reach different findings should the evidence now before them warrant a departure”.25 In the same decision, the Tribunal also observed that:26
…where negative credibility findings have been made which have been left undisturbed by applications in the High Court … a subsequent panel should be slow to depart from these findings in the absence of compelling and credible evidence that those past findings should be departed from. The clear thrust of the Act is designed to prevent appellants from simply repeating assertions that were made previously but not believed.
(emphasis added)
[66] That s 231 is not an absolute bar to adducing evidence to seek to persuade a second or subsequent Tribunal from relying on earlier factual and credibility findings was endorsed by Muir J in EW v Refugee Protection Officer, in which his Honour stated:27
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
25 Re DX (Iran) [2016] NZIPT 800934, [2017] NZAR 388 at [41].
26 At [41].
27 EW (Sri Lanka) v Refugee Protection Officer [2018] NZHC 2130 at [32].
the credibility of the new claim. (emphasis added, footnote omitted)
[67] I sought further submissions from counsel on the type of evidence which might cause a Tribunal on a second (or subsequent) appeal to depart from earlier credibility and factual findings, which the subsequent Tribunal is entitled but not obliged to rely on pursuant to s 231(1).
[68] In the event, there was a broad degree of agreement. Both counsel accepted that the “new” Tribunal must maintain an open mind to the new claim, and must not prejudge that claim simply because an earlier claim, absent the new evidence, had been rejected. That much is clear from Muir J’s judgment in EW. Both counsel also agreed that it will not be any and every piece of new evidence that will prompt a second or subsequent Tribunal to depart from its (permitted) reliance on an earlier credibility or factual finding. Referring to various authorities, Mr Pidgeon relied primarily on the Tribunal’s approach in cases such as DX (Iran) and Re CD (Bangladesh)28 to the effect that compelling and credible evidence may justify a departure from earlier factual and credibility findings. Ms Charmley, relying on the Court of Appeal’s decision in E (CA746/2017) v Chief Executive, Ministry of Business, Innovation and Employment, submits that the Tribunal is only required to depart from its usual reliance on an earlier credibility finding if the evidence sought to be adduced:
(a)is “fresh”, in the sense of being unavailable at the time of the earlier Tribunal decision;
(b)is cogent; and
(c)is credible.
[69] In relation to (c) above, Ms Charmley further submits that the evidence will be unlikely to be credible if it emanates from the appellant’s own testimony, when the credibility of the appellant’s account has already been rejected.29
28 Re CD (Bangladesh) [2018] NZIPT 801306.
29 Referring to the Canadian Federal Court’s decision in Vijayarajah v Canada [1999] 167 FTR 295 at [18], as cited by Hinton J in E v Ministry of Business, Innovation and Employment [2016] NZHC 2599 at [39(c)].
[70] I do not read the Court of Appeal’s decision in E (CA746/2017) as imposing a strict requirement as to “freshness” in this context, rather than that being a key reason in that case why the particular evidence in question gave rise to a “significant change in circumstances” warranting a second claim. And the “freshness” of evidence is likely to be a more material consideration in the context of determining whether there has been a qualifying change in circumstances since the dismissal of an earlier claim, rather than whether new evidence warrants a departure from an earlier Tribunal’s credibility and factual findings. New evidence that is not strictly fresh, but is nevertheless highly cogent and credible, may well justify a Tribunal departing from those earlier findings.
[71] Despite these observations however, the issue of “freshness” does have relevance in my view as to whether it is seriously arguable the Tribunal erred in not adjourning the February 2020 hearing. That is because the issue of the fairness of the overall hearing process (in other words, considerations of natural justice) must be considered in the overall statutory context.30 Sections 222 and 223 of the Act require appeals to the Tribunal to be heard expeditiously. It would be contrary to that statutory directive if, for example, successive adjournments were granted to enable an appellant to adduce new evidence on a subsequent appeal when that evidence could and should have been advanced at an earlier hearing.
[72] Returning then to the central issue posed at [61] above, I am not persuaded it is seriously arguable that compliance with the CRPD obliged the Tribunal to adjourn the February 2020 hearing, for either a period of months or indefinitely. I say this for the following reasons.
[73] First, and as noted above, ss 222 and 223 of the Act require appeals to the Tribunal to be heard expeditiously. The applicant had already been granted a nearly eight-month adjournment from the original July 2019 hearing date. A further and potentially open-ended adjournment would have been inconsistent with the statutory directive.
30 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
[74] Second, it was entirely speculative as to whether the proposed further evidence would ever be able to be put before the Tribunal, given it was (and remains) unknown whether the applicant will regain his memory to a sufficient degree to be able to engage with counsel in the finalisation of that evidence.
[75] Third, at least in some respects, the further evidence could have been put before the first Tribunal in any event, and there was no explanation as to why it had not been. Most importantly, there appears to have been no reason why the evidence of I, considered crucial to bolstering the applicant’s account of his travel across India with A, could not have been advanced at the hearing of the first appeal to the Tribunal (or even earlier). Similar observations apply to the proposed evidence of a friend of the applicant who now lives in New Zealand but was living in Gujarat in or around 2002.
[76] Fourth, and without formally prejudging or determining the credibility or cogency of the proposed evidence, I share the Tribunal’s concern that the proposed evidence did not appear sufficiently cogent or compelling, at least to the extent it might realistically have required a departure from the Tribunal’s earlier findings and thus justified a further and potentially open-ended adjournment. I’s evidence, in addition to not being fresh, would have sought to reinforce the applicant’s case of his elopement across India, the credibility of which the first Tribunal had comprehensively rejected, including by reference to inconsistent documentary records. Evidence was also proposed to be given from a local imam from the mosque where the applicant worshipped in New Zealand, said in counsel’s correspondence with the Tribunal dated 5 June 2019 (in advance of the July 2019 hearing) to be about:
… the steps [the applicant] has had to go through to hide his religion after [A] was killed and he was dragged home to Ahmedabad by his family and forced to marry his first cousin, and in order to come to New Zealand, ostensibly to study, he had to have a child with her.
[77] To the extent this evidence would summarise the applicant’s attempts to hide his religious faith, the witness could not proffer any first-hand evidence and would presumably rely on the account given to him by the applicant. Further, it is not entirely clear how this evidence would have advanced the applicant’s case in any event, given the Tribunal’s assumption that the applicant would at some point regain his memory and continue to practice openly as a Muslim were he to return to India. In addition, to
the extent it was proposed the witness would give expert evidence on matters pertaining to Islam or Sharia, the applicant’s amnesia would not have prevented such evidence from being briefed and adduced at the February 2020 hearing.
[78] I also struggle to see how the “bird’s eye view” evidence, akin to that in the film Lion, would have advanced matters materially, if at all. What that evidence would have done is to show in a visual form the applicant’s stated progress across India with
A. The content of that visual evidence would therefore rely on the applicant’s own account of that journey, which had already been rejected by the Tribunal as not credible.
[79] Fifth, I do not consider it seriously arguable that the Tribunal erred as a matter of law in failing to adjourn the proceedings to engage in a process analogous to that under the CPMIP. The CPMIP is a bespoke regime for use in criminal proceedings. It is not applicable to appeals before the Tribunal, nor does the Act or any other relevant statute provide for an analogous procedure.
[80] Further, once a defendant has been found unfit to stand trial pursuant to the CPMIP, there are very specific steps that are then to be taken in relation to that defendant. In particular, if the Court is satisfied on the balance of probabilities that the defendant was “involved in” the offending in question, the Court must deal then with the defendant under subpart 3 of the CPMIP.31 This can lead to their detention in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.32 Relevantly for present purposes, even if the applicant had been found “unfit” in the sense suggested by Mr Pidgeon, application of a CPMIP-type procedure would not have seen the applicant’s case simply adjourned off indefinitely. Moreover and in any event, the evidence before the Tribunal, and accepted by Mr Pidgeon, was that the applicant was “fit” to engage in his February 2020 appeal hearing, in terms of being able to effectively understand and participate in that process. This reinforces that the real inquiry is whether there ought to have been an adjournment to enable further evidence to be adduced on the appeal at an unknown point in the future. This inquiry has been addressed above.
31 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 13(4).
32 Section 24(2)(a).
[81] Sixth, I am not persuaded it is seriously arguable that the Tribunal erred as a matter of law on the basis that the CRPD obligated the Tribunal to adjourn the February 2020 hearing and seek guidance from this Court on the situation that had arisen. There is no general “case stated” procedure under the Act by which the Tribunal can refer matters to this Court. Further, given the very tightly defined and controlled circumstances set out in the Act in which matters may be brought before this Court, I do not consider it seriously arguable that in managing its own procedure, the Tribunal could have simply referred the matter to this Court for general guidance.
[82] Finally, I do not consider it seriously arguable that the Tribunal failed to adequately consider or implement New Zealand’s obligations under the CRPD by not granting the adjournment to enable further medical evidence to be obtained. The Tribunal had adjourned the first hearing in July 2019 and the applicant thus had ample time to secure further specialist medical evidence if that had been desired. A fairness obligation pursuant to the CRPD does not require open-ended adjournments when sufficient time has already been granted for evidence to be gathered. This is particularly so given in early September 2019, the Tribunal issued a minute specifically directing that if further expert medical evidence was to be adduced with respect to the applicant’s state of mind, any such evidence was to be lodged with the Tribunal 14 days prior to the February 2020 hearing.
[83] In any event, the applicant was afforded a sufficient opportunity to adduce medical evidence at the hearing, both in the form of a written statement and oral evidence given by Dr O’Flynn. And given the Tribunal’s acceptance of the applicant’s medical condition, and that it was foreseeable he would regain his memory and practice again as a Muslim, it is difficult to see what difference further medical evidence would have made in any event.
[84] Because I am not satisfied it is seriously arguable that the Tribunal erred as a matter of law, it is not strictly necessary to comment on whether any such error would give rise to matters of general or public importance, or whether there is any other reason why the matter ought to be heard by this Court. I simply observe that even if there was a seriously arguable error, I am not persuaded it raises a matter of general or public importance. The need to ensure procedural fairness to those appearing before
the Tribunal is of general importance. However, there was no dispute between counsel that the circumstances arising in this case are novel and quite unusual. Any “guidance” on how the CRPD might tailor a fair process for the applicant in this case would therefore be bespoke to his circumstances. In other words, it is not the interpretation or application of the CRPD generally which is in issue, but rather its particular application to the (novel) facts of this case.
[85] Finally, and although not relied on by the applicant, had there been a seriously arguable error of law, I consider there would have been a better argument that the very unusual circumstances arising in this case meet the “any other reason” limb of s 245(3). As Mr Pidgeon highlights, those seeking refugee status are inherently vulnerable, and such persons with mental health issues will be in an especially vulnerable position. In that context, had it been seriously arguable that the Tribunal erred in law in determining how such a vulnerable person could adequately participate in and present their appeal, there would have been in my view a good case for the “any other reason” threshold being met. But given my view that it is not seriously arguable the Tribunal erred in law, the point does not arise for determination.
Result and consequential orders
[86]The application for leave to appeal is accordingly declined.
[87] Neither party addressed me on costs. Should the position on costs not be agreed, the first respondent may file a costs memorandum within 20 working days of the date of this judgment. The applicant may file a memorandum in response within a further 10 working days. No memorandum is to be longer than 3 pages. I will thereafter determine costs on the papers.
[88] The order I made in my minute dated 5 November 2020 that the Court file is to be sealed and access is not to be granted to any person without further order of this Court is to continue.
Fitzgerald J
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