JS v Immigration and Protection Tribunal
[2015] NZHC 2832
•13 November 2015
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-2027 [2015] NZHC 2832
UNDER The Judicature Amendment Act 1972 AND UNDER
Sections 247 and 249, Immigration Act
2009IN THE MATTER OF
The 1951 Convention relating to the Status of Refugees and its 1967 Protocol
BETWEEN
JS Applicant
AND
THE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
Continued over page…
Hearing: 5 November 2015 Counsel:
R Pidgeon for the Applicant
First Respondent - abiding the decision of the Court
BCL Charmley for the Third RespondentJudgment:
13 November 2015
JUDGMENT OF MUIR J
This judgment was delivered by me on Friday 13 November 2015 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
JS v THE IMMIGRATION AND PROTECTION TRIBUNAL [2015] NZHC 2832 [13 November 2015]
THE CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Second Respondent (Discontinued)
A REFUGEE AND PROTECTION OFFICER, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Third Respondent
Counsel:
R S Pidgeon, Barrister, Auckland
Solicitors:
J Pidgeon, Pidgeon Law, Auckland
D Harris, Crown Law, Wellington
BCL Charmley, Crown Law, Auckland
[1] The applicant, “JS”, seeks leave to bring review proceedings in respect of a decision of the Immigration and Protection Tribunal (the Tribunal) dismissing his appeal.1 That decision was delivered on 27 March 2015 with the result that the parties are agreed the present application falls to be decided under the former iteration of ss 247 and 249 of the Immigration Act 2009 (the Act).
[2] As from 7 May 2015 those sections have been amended in a manner which Mr Pidgeon, for the applicant, accepts would preclude their application, at least on the recent authority of Gilbert J in D v Immigration and Protection Tribunal New Zealand.2
[3] The application is substantially out of time with the result that under the former s 247 it can only proceed if the Court is satisfied that special circumstances exist.
[4] For the reasons set out in this Judgment, I find that no such special circumstances are demonstrated. In the result, leave is declined under both ss 247(1) and 249(1B).
Background
[5] The applicant is a Sri Lankan national who in May 2001 travelled from Sri Lanka to Japan. While in Japan he sought and obtained a New Zealand Visitor’s Visa. He arrived in New Zealand on or about 23 October 2012.
[6] Approximately three months after his arrival, the applicant made a claim for refugee and/or protected persons’ status. That application was declined by the Refugee Status Branch (RSB) on 15 April 2013.
[7] The applicant appealed the RSB’s decision to the Tribunal. His case was that because of his late brother’s involvement with the Liberation Tiger’s of Tamil Eelam
(LTTE) from 1989 until his death in the Civil War in 1992 and because of the
1 Re JS [2015] NZIPT 800527.
2 D v Immigration and Protection Tribunal New Zealand [2015] NZHC 2458.
applicant’s support for the opposition United National Party (UNP) in 2010/2011, he was under threat of persecution in Sri Lanka.
[8] The applicant’s appeal came before the Tribunal on 19 November 2014 and 1
December 2014. The substantive hearing appears to have taken place on the latter of these two dates.
[9] On 27 March 2015 the Tribunal issued its decision declining the appeal. It concluded that JS was not a refugee within the meaning of the Convention Relating to the Status of Refugees, was not a protected person within the meaning of the Convention Against Torture (CAT) and was not a protected person within the meaning of the International Covenant on Civil and Political Rights (ICCPR). Fundamental to the Tribunal’s decision were adverse credibility findings against JS. In particular, it found his evidence of harassment over an extended period and of requiring assistance to exit the country lacked credibility. Two letters provided in support of the application were identified as unreliable. The first, called the Amaratunga letter, which referred to the applicant’s assistance of the UNP in the run up to presidential elections was, on its face, inconsistent with the applicant’s own evidence that his assistance was provided in respect of general elections. The second, referred to as the Weerakody letter, was dismissed as self-evidently implausible.
[10] On 28 August 2015, four months after expiration of relevant time limits, JS filed an interlocutory application for leave to commence review proceedings and for grant of further time, together with brief affidavits from himself and a friend, Mr J. On 2 October 2015 he filed an amended interlocutory application, an application for review and statement of claim in support, together with a further affidavit and extensive exhibits.
Preliminary Points
[11] At the commencement of the hearing counsel made submissions about the admissibility of two additional affidavits in support of the application both dated 23
October 2015. I address those arguments in my analysis of the merits of the underlying claim where the context of the additional evidence is better explained.
[12] Mr Pidgeon’s submissions also foreshadowed a possible stay application and an application to seek production of an arrest warrant. Neither application was, however, maintained.
[13] In relation to the Tribunal hearing, I was provided with a partial transcript relating to the natural justice allegation discussed subsequently in this judgment. I was not provided with a transcript of the statements made by JS at the commencement of the hearing about previous contact with his counsel and to which he refers in his challenged affidavit of 23 October. Having decided to admit that affidavit and a response from JS’s former counsel acknowledging the statement, I do not require any additional parts of the transcript to be reproduced for the purposes of this Judgment.
The statutory framework
[14] Sections 247 and 249 in the terms then applicable provided:
247 Special provisions relating to judicial review
(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.
…
249 Restriction on review
(1B) Review proceedings may … only be brought in respect of [an IPT decision] … 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.
(1C) 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.
[15] Four key points emerge:
(1)Review of a Tribunal decision is not available as of right. A person who wishes to review a Tribunal decision must seek leave (s 249(1B)).
(2) In deciding whether to grant leave the court is required to consider
(s 249(1C)):
(a) Whether the review proceedings raise issues that could be dealt with on appeal; and
(b)Whether those issues are of general public importance or, for any other reason, ought to be submitted to the High Court.
(3)There is a time limit on commencing review proceedings. They must be filed not later than 28 days after the date on which the intended plaintiff is notified of the decision (247(1)).
(4)The Court has a discretion to grant further time to an intended plaintiff who fails to meet the time limit where it is satisfied that special circumstances exist (s 247(1)).
Application for further time
[16] The parties are agreed that, absent a finding of special circumstances in terms of s 247(1), JS’s applications cannot proceed further.
[17] The leading authority on the meaning of special circumstances in s 247(1) of the Act is the Court of Appeal decision in Rajan v Minister of Immigration.3 While that case was decided under the 1987 Act it has been held that it “clearly provides guidance in the immigration context, and specifically on the question of special
circumstances”.4
3 Rajan v Minister of Immigration [2004] NZAR 615 (CA).
4 Ly v Minister of Immigration HC Auckland CIV-2011-404-1540, 5 May 2011 at [32].
[18] In Rajan the Court of Appeal held that special circumstances are to be
interpreted in light of the Act’s emphasis on timeliness:5
… Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residence, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. The s 146A [the predecessor to s 247(1)] time limit for the filing of judicial review proceedings must be interpreted in that context.
[19] The reasons for such strict time limits were explained by Priestley J in Xie v
Minister of Immigration, in the following terms:6
… Given the very broad supervisory powers which [the Judicature Amendment Act 1972] confers on the High Court, it makes sense that judicial review proceedings should be tightly controlled from a temporal point of view. Particularly is this the case in situations where perhaps proceedings would impede or delay removal from New Zealand of people unlawfully residing here.
… the policy of s 146A is clearly designed to place tight temporal constraints on judicial review being used as a mechanism to slow up removal procedures.
[20] Rajan provides a framework for deciding whether “special circumstances”
exist by reference to the following three factors:7
1. the length of the delay;
2. the reason for the delay; and
3. in marginal cases, a brief examination of the merits.
Length of delay
[21] In Rajan the Court of Appeal held:8
... the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans’ application was filed one month late and thus would require an extension of one-third of the time limit. In the
5 Rajan v Minister of Immigration, above n 3, at [24].
6 Xie v Minister of Immigration HC Auckland CIV-2008-404-2401, 25 July 2008 at [24] and [35].
7 Rajan v Minister of Immigration, above n 3, at [24]-[30].
8 At [24].
context of the Immigration Act this cannot necessarily be seen as a short delay.
[22] Although each case must be regarded as fact and context specific, the authorities are consistent in regarding lengthy delay as typically fatal to any application for the grant of further time. For example in Kesonsung v Minister of Immigration Allan J stated, “… a long delay will ordinarily preclude the grant of leave in any circumstances”.9
[23] In assessing whether a delay is to be regarded as “long” the courts have typically considered the delay as a fraction or multiple of the relevant time limit. Thus in Zanzoul v Removal Review Authority and Department of Labour Dobson J commented that:10
Generally delays for greater than the period permitted… tend to be characterised as “long” or “very long”, tending to support a conclusion that leave should be declined.
[24] In Rajan a delay of one month in the context of a three month time limit was described in the terms referred to above. In Zanzoul a delay of seven months and 24 days in the context of a three month time limit was found to be substantial. And in Ly v Minister of Immigration11 a delay of 23 days in the context of a 28 day time limit was regarded as “too long”. In all three cases the applications for leave to proceed out of time were refused.
[25] I accept the third respondent’s submission that the delay in the present case – four months against a 28 day time limit – exceeds in relative terms the delays in each of these cases. I accept also its submission that if the requirement for timely applications is not appropriately reinforced, those unlawfully residing in New Zealand would be incentivised to undermine the deportation process by delaying applications. Certainly, the delay in the present case is such that, in terms of the
existing authorities, I would need to be satisfied both that there was a compelling
9 Kesonsung v Minister of Immigration HC Auckland CIV-2006-404-1597, 22 September 2006 at
[35].
10 Zanzoul v Removal Review Authority and Department of Labour, HC Wellington CIV-2007-485-
1333, 9 June 2009 at [26].
11 Above n 4.
explanation for the delay and that there was merit in the substantive application for review, before granting leave under s 247(1). I am not satisfied on either count.
Reasons for the delay
[26] The cases indicate that a strict approach is taken to what constitutes a justifiable reason for delay. In Rajan the Court of Appeal found the criterion of “special circumstances” requires “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”.12 The third respondent’s review of the relevant case law demonstrates that the following have been found to be inadequate reasons to justify delay:
(a) shock or distress;13
(b) limited English language;14
(c) financial difficulties;15
(d) the lack of availability of legal aid;16
(e) counsel inexperience or error;17 and
(f) ignorance of the need to bring an application for judicial review within the time period.18
[27] In the present case, nowhere does JS address directly the reasons for delay in bringing his application for review although I distil from his affidavits that a combination of limited understanding of the justice system, ignorance of the right to bring an application, feelings of distress and confusion and language difficulties
may be among the reasons he advances. He states in particular:
12 Rajan v Minister of Immigration, above n 3, at [24].
13 Ly v Minister of Immigration, above n 4, at [20] and [39] – [40].
14 Above.
15 Veitogavi v Department of Labour HC Auckland CIV-2009-404-1583, 18 August 2009.
16 Zanzoul v Removal Review Authority and Department of Labour, above n 10 at [33] and [35].
17 At [33]-[34].
18 Achhido v Governer of Mt Eden Prison [2001] NZAR 584 (HC) at [26]; M R v Refugee Status
Appeals Authority [2008] NZAR 655 (HC) at [29]-[32].
[9] Ms Curtis [his former counsel] said we should apply for a humanitarian appeal but did not advise me on the possibility of an appeal to the High Court. I did not know there was the option to take it to the High Court.
[10] I frankly do not know the difference between an appeal, judicial review or even a humanitarian application.
…
[15] I was not really aware of my rights, but as I said above, I did receive advice from Ms Curtis that I should focus on a humanitarian appeal. I knew no other lawyers and did not know how to go about doing things. We are still waiting for the humanitarian decision.
[28] This account is disputed by Ms Curtis who says that:
12.Before the Tribunal’s decision was issued, I explained to the applicant that he had the right to seek leave for a judicial review or appeal to the High Court in the event he was unsuccessful. However, I told the applicant I would not act for him in the event he wishes to pursue proceedings in the High Court but I did explain to him what the High Court is, where it is and how it works. I also explained that legal aid would be required if an application to the High Court was pursued. The applicant came several times to my office to see me before the decision was released by the Tribunal.
13.I told the applicant that if the Tribunal dismissed his appeal on the basis of credibility issues, it would be difficult to obtain leave to appeal or file judicial review. I explained that the most that would happen if this path was successfully pursued was that the High Court would send the matter back to the Tribunal which would hear the appeal, once again.
14.Despite telling the applicant I would not act for him in the High Court in any High Court matters, the applicant again asked me whether I would act for him in the High Court in the event his appeal to the Tribunal was dismissed. I again explained that I would not act for him in the High Court but offered to provide the details of the New Zealand Law Society which would point him in the direction of a lawyer who could assist him. He declined this offer.
[29] In Fernandes v The Immigration and Protection Tribunal19 the Court of Appeal emphasised that any failure by a legal adviser to take steps to file an appeal in a timely fashion is not of itself a good reason to excuse delay.20
[30] From the applicant’s perspective the present case is even weaker. There is no suggestion that Ms Curtis was ever instructed to file an application for review. She specifically declined to act on any such application.
[31] In my view the applicant’s circumstances fall within what could be described as “common place” in relation to someone who has been declined refugee status and unsuccessfully appealed that decision. All of the matters which, on a generous reading of his affidavit, might be thought to explain the delay are within the categories previously recognised as insufficiently “abnormal”. No doubt he was disappointed in the outcome of his appeal. He may have placed undue confidence in the outcome of his humanitarian appeal pursuant to ss 194-195 of the Act. He may, as his affidavit suggests, have been feeling high levels of stress but none of these factors are sufficiently out of the ordinary to explain that extended period of delay.
Merits of the claim
[32] In Rajan the Court of Appeal held:21
Brief examination of the merits may in some cases be called for. Even with a strong excuse for the delay, however, if the review proceedings were hopeless, this would suggest that the s 146A discretion should not be exercised. …
Examination of the merits could tip the balance in a marginal case. For example where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. We doubt, however, that even very strong merits could ever justify an extension if (as here) there is no proper excuse for the delay in filing. …
[33] In Zanzoul the High Court noted that:22
The merits … should not automatically be considered when assessing a grant of leave, and only in a marginal case will the perceived strength of the merits tip the scales in favour of granting leave.
[34] I do not consider this case a marginal one and an examination of the merits is not, in that context, necessary. However, if I am wrong in that conclusion I would not have considered the merits such as to tip the balance in any event.
Alleged failings of counsel
[35] The gravamen of the applicant’s case is that his former counsel did not spend adequate time with him in preparation of his case. Indeed, he says, he “never actually met with Ms Curtis before the IPT hearing and dealt with a junior, Tamil speaking, staff member [at her practice]”.
[36] In her affidavit in opposition Ms Curtis denies that allegation stating:
4.It is not true that I did not meet with the applicant prior to the Tribunal hearing. I met with the applicant several times to prepare for his appeal and I also had an ongoing email conversation with the applicant’s wife about the upcoming hearing (on instructions from the applicant). We would have met in person to discuss the applicant’s appeal approximately six–eight times before the hearing.
She goes on to say that in November 2014 alone they met three times and that “on the Sunday prior to the Tribunal hearing we met again and carefully went through the Tribunal process together”.
[37] In what is styled a “further affidavit of the applicant”, dated 23 October 2015, JS repeats his allegation that he had not met Ms Curtis before the IPT hearing and says further:
9.When I went to the IPT hearing Ms Curtis came up to me and said “Hi, I am Carole, I am your lawyer”. It was the first time I had met her.
10.I made a point of saying in the IPT (which is recorded on the transcript), that it was the first time I had met my lawyer and I had never met her before. She replied to the member in a long and defensive way.
[38] The third respondent opposes admission of that evidence, together with a further affidavit of Mr J of the same date, on the grounds that there is no proper basis for their admission as supplementary evidence and that they are not strictly affidavits in reply.
[39] I admit JS’s affidavit as in part a reconfirmation of material previously
stated23 and in part a reply to Ms Curtis’ denial of never having met previously.24
[40] I decline to admit Mr J’s further affidavit which contains a mixture of hearsay, irrelevancy and material (including copies of an unspecified complaint to the Law Society) which is clearly not in the reply category.
[41] To meet the contingency that JS’ “further affidavit” may be admitted, Ms Curtis herself prepared a response to which no objection is taken by Mr Pidgeon. In that affidavit she reiterates that she met with the applicant a number of times before the hearing, albeit that on several occasions he arrived without a prescheduled appointment. She records distress at the allegation that she was unsupportive of him and says, in relation to the advice by JS to the Tribunal that he had not previously met his lawyer:
56.When the hearing began JS suddenly alleged that he had not been properly advised and was not properly prepared.
57.This was a shock to me. I did not know how to respond to this. I knew of all the attempts made to get him to come and meet with me by appointment, – the numerous times the applicant had “dropped in” to my office without appointments and the ongoing correspondence with his wife.
58.This allegation put me in a difficult position because I could refute what he said but if I did it would place him and I [sic] in conflict. I also did not want to say anything which could potentially damage his credibility.
59.As we had experienced problems finding Tamil interpreters in 2014, I said this as a way of not being forced to have to argue with my client. Of course I now wish I had withdrawn.
[42] Although it is not possible to resolve these conflicts within the context of the present application, the criticisms directed to Ms Curtis are in a very different category to those cases where, on account of some inadequacy in terms of counsel’s
performance, a proper basis for judicial review has been recognised.
23 Acknowledged as satisfying the requirements of reply evidence under the former r 510(1)(d)(ii)
in McDougall v Council of the Central Institute of Technology (1989) 5 PRNZ 672 (HC).
24 Mr Pidgeon’s submission being that until such denial was tabled, Ms Curtis’ position on the point was unknown and it was not therefore necessary for JS to table at the outset all evidence in support of his allegation.
[43] In AL v Immigration and Protection Tribunal Asher J stated that:25
It is possible for counsel error in failing to call important evidence to be a ground for review. However, such cases will be exceptional.
[44] Justice Asher went on to review relevant authority including Lal v Removal Review Authority26 and Isak v Refugee Status Appeals Authority.27 In the former McGeghan J referred to cases of “vital omission” and in Isak, where counsel’s error led to an important letter not being put before the Authority, the Court held: 28
If the factual issue here had been less fundamental, or the evidence less cogent, the result might have been different.
[45] In this case JS does not identify any specific omission or alleged failing by Ms Curtis in the presentation of his case before the Tribunal. He does not, for example, say that his statement of evidence was deficient, nor that there was any inadequacy in other evidence adduced on his behalf, nor failure adequately to put his case in counsel’s written and oral submissions. He makes a generalised allegation that the quality of his case was undermined by inadequate time spent with counsel in advance of the hearing.
[46] What cannot be gainsayed from the documentary record, however, is that Ms Curtis personally progressed a substantial number of inquiries over a substantial period (many with JS’s wife in Sri Lanka) as part of preparation for trial. Moreover, JS does acknowledge briefing sessions with other members of Ms Curtis’ firm. How additional time with Ms Curtis herself would have improved the prospect of his success is not stated.
[47] Moreover, the Tribunal’s decision was based on its assessment that the applicant’s evidence was not credible. It found:
25 AL v Immigration and Protection Tribunal [2014] NZAR 1079 (HC) at [36].
26 Lal v Removal Review Authority HC Wellington AP 95/92, 10 March 1994.
27 Isak v Refugee Status Appeals Authority [2010] NZAR 535 (HC).
(1)That JS’s active involvement in the UNP spanned no more than four weeks and was at a level no more than that of an “ordinary campaign worker”.29
(2)In that context, his evidence of receiving harassing telephone calls over a long period of time was implausible.30
(3)Given the applicant’s extended absence from Sri Lanka, his wife’s evidence that people continued to harass the family and pursue him was likewise implausible.31
(4) That the Amaratunga letter was inconsistent with the applicant’s
account.32
(5)That inconsistency having been demonstrated to JS in the RSB interview, he became unwell and requested that the interview be adjourned, with the Tribunal concluding that the subsequent explanation for the inconsistency was inadequate.33
(6)The Weerakody letter was similarly implausible to the extent it suggested that a government minister was searching for the applicant. The Tribunal found that “there was no sensible reason why the applicant, a car dealer of modest means and no personal political ambition, would have become such a target”.34
[48] In my view, even on the assumption that the (strongly denied) allegations against Ms Curtis were true, the applicant has failed to demonstrate how the outcome before the Tribunal was affected by the alleged errors. The case is very different from those where, as in Isak a specific error of judgment was made on counsel’s part.
It is a long bow to suggest that Ms Curtis’ alleged failure to meet with JS on any or
29 Re JS, above n 1, at [53].
30 Above.
31 At [49].
32 At [56].
33 Above.
adequate occasions affected the credibility of his evidence, that of his wife, or the letters presented by the applicant in support of his claim. In each respect, such credibility was found to be lacking.
[49] What these credibility findings also underscore is an absence of any issue of general or public importance such as to engage the jurisdiction in s 249(1C)(b) of the Act.
[50] In Minister of Immigration v Jooste35 the Court of Appeal held that the test for what is a matter of general or public importance is “similar to that applying to second appeals to this Court under s 67 of the Judicature Act 1908”.36 That test has been summarised in the following terms:37
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally, or to the parties as to justify the further pursuit of litigation which has already been twice considered and ruled upon by a court. 38
[51] In LMN v Immigration and Protection Tribunal39 the Court considered the test under s 245 of the Act (which is in the same terms of s 249(1C)) and found 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”.40
[52] An issue is not of sufficient importance to justify further litigation where it is fact specific, of concern to the parties only, where the law is well settled or where there is little prospect of success. 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.41 Typical of any appellate or review jurisdiction, credibility findings will be
difficult to displace.
35 Minister of Immigration v Jooste [2014] NZCA 23.
36 At [5].
37 Waller v Hider [1998] 1 NZLR 412 (CA) at 412.
38 This approach has been cited as the applicable test under s 249(1)(c) in Allada v Immigration and Protection Tribunal [2014] NZHC 953 at [36] and SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [8].
39 LMN v Immigration and Protection Tribunal [2013] NZHC 2077.
40 At [32].
41 Allada v Immigration and Protection Tribunal, above n 38, at [27].
[53] It is settled law that, in making a finding as to refugee status, the Tribunal must assess the claimant’s credibility. In Attorney-General v Tamil X42 the Supreme Court observed:
The inapplicability of rules of evidence gives the Authority a broad discretion as to what material it obtains and uses in its consideration of a claim. A realistic and careful approach to that material must be taken by the Authority having regard to the evidential gaps and other difficulties that refugee claimants face in making out their claims. A proper analysis and evaluation is required in the course of which a legitimate and important consideration will often be whether what the applicant says in evidence relevant to his or her status is credible and plausible in the circumstances. In reaching factual conclusions the Authority must usually assess the credibility of those giving evidence.
[54] The Supreme Court cited the (then) Refugee Status Appeals Authority as saying: 43
The Authority’s general approach to refugee claims is to focus primarily on the credibility of the refugee claimant as assessed against publicly accessible information.
This approach was not questioned by the Court.
[55] In BV v Immigration and Protection Tribunal44 the Court of Appeal noted academic research showing “negative credibility factors “included vagueness, contradictions, delayed revelation of key facts and implausibility”.45 It noted also the requirement in the UNHCR Handbook that an applicant’s statements must be “coherent and plausible and not contrary to generally known facts”.46
[56] In the present case the Tribunal found that “the core of the [applicant’s claim] is not credible”.47 In so doing it approached the subject of credibility on conventional grounds identifying what it regarded as contradictory and implausible evidence. Its findings were fact specific and of concern to the parties only. They do not give rise to an issue of sufficient general or public importance to engage the
review jurisdiction.
42 Attorney-General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 at [44].
43 At [37].
44 BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139 at [13].
45 Above.
46 At [12].
47 Re JS, above n 1, at [43].
Alleged breach of natural justice
[57] The applicant claims that the Tribunal erred in requiring him to leave the hearing room while his wife gave evidence, in breach of natural justice and his legitimate expectation of fair process.
[58] I regard the prospects of success in relation to this claim as slight. I was provided with a partial transcript of the Tribunal’s hearing from which it is clear that JS was not required to leave the hearing. To the contrary, he was told that he was “entitled to hear your wife speak to us” but that the Tribunal “may be able to give more weight to your evidence if you have not heard your wife’s evidence”. The Tribunal concluded by stating “ultimately it is a choice for you because you are entitled to be in the room if you wish, and you can decide that at 1.30 if you wish”.
[59] After a brief discussion between counsel and the Tribunal JS then asked the Tribunal, “Should I answer, give you an answer now, or later on?” indicating his understanding of the issue that was being put to him. The Tribunal responded to that by saying, “No, try and have a chance to talk to your counsel first and you can give me an answer later around 1.30”.
[60] The Tribunal then adjourned to allow JS to take advice. After the adjournment the Tribunal was advised that JS would remain absent from the room while his wife gave evidence.
[61] In summary, therefore, the applicant was legally represented, received advice in relation to an option provided to him by the Tribunal and exercised that option. In those circumstances I see no realistic prospect of success in relation to the claim. Accordingly it does not, in my view, satisfy the criteria of s 249(1C)(b).
Alleged failure adequately to consider country information
[62] I regard the prospects of success in relation to this claim as similarly slight. The Tribunal considered that Sri Lanka “remains a country experiencing ethnic based civil and political conflict” with “significant human rights violations against
some groups within society”.48 It cited a relevant report by Amnesty International. It did not, however, find that the applicant had a sufficiently adverse profile to place him at risk of serious harm at the level of a real chance.49
Alleged failure adequately to consider international covenants
[63] JS says that the Tribunal failed adequately to consider the provisions of the
CAT and the ICCPR.
[64] The Tribunal’s decision refers to both Conventions concluding that there were no substantial grounds for believing that JS was either in danger of being subjected to torture if deported from New Zealand or of being subjected to arbitrary deprivation of life or to cruel, inhuman or degrading treatment.50
[65] Its findings followed from its earlier findings of credibility. In that respect the methodology adopted was similar to that in BV v Immigration and Protection Tribunal51 where the Court of Appeal observed that once a refugee claimant’s account was found “not to be believed”, it was of course open to the Tribunal and inevitable that it would reject [the] appeal.52
[66] I accept the respondents’ submission that once the Tribunal had rejected the applicant’s account of events as lacking credibility, it was not required to embark on a detailed assessment of the Conventions. There were simply no credible facts with which to carry out such an assessment. Again therefore the criteria in s 249(1C)(b) are not, in my view, engaged.
Result
[67] I decline the applicant’s application for leave pursuant to s 247(1) of the Act to file review proceedings out of time.
48 At [52].
49 Above.
50 At [79] & [84].
51 BV v Immigration and Protection Tribunal, above n 44, at [19].
52 Above.
[68] It follows from such finding that the application pursuant to s 249(1)(b) for leave to bring judicial review proceedings is likewise declined.
Costs
[69] The third respondent applies for costs on a 2B basis.
[70] If, as I understand the position, JS is legally aided then the provisions of s 45 of the Legal Services Act 2001 will apply. In that event, no order may be made against JS in civil proceedings unless the Court is satisfied that there are “exceptional circumstances”.
[71] If the third respondent maintains a claim to exceptional circumstances and therefore to a costs award, memoranda may be filed. They are to be exchanged by
counsel in advance so as to limit areas of difference.
Muir J
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