NS (India) v A Refugee and Protection Officer
[2023] NZHC 3128
•7 November 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-000087
[2023] NZHC 3128
IN THE MATTER of an application for leave to appeal a determination of the Immigration and
Protection Tribunal ([2023] NZIPT 802114)
BETWEEN
NS (INDIA)
Applicant
AND
A REFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 7 August 2023; transcript provided 14 September 2023 Appearances:
Applicant in person (self-represented)
S M Perera and Z M McCoy for the Respondent
Judgment:
7 November 2023
JUDGMENT OF HARLAND J
Introduction
[1] The applicant applies for leave to appeal a decision of the Immigration and Protection Tribunal (Tribunal) declining to recognise him as a refugee or protected person. Leave is sought to appeal under s 245 of the Immigration Act 2009 (the Act). The application for leave is opposed by the respondent.
[2] I have decided to refuse the applicant for leave to appeal. This decision sets out my reasons for doing so.
NS (INDIA) v A REFUGEE AND PROTECTION OFFICER [2023] NZHC 3128 [7 November 2023]
Background
[3] The applicant is a citizen of India. He was granted a student visa and arrived in New Zealand on 8 July 2014. After studying, he was granted an open work visa.
[4] On 10 June 2021, Immigration New Zealand served the applicant with a deportation liability notice for working in breach of his visa conditions. The notice was challenged but upheld by Immigration New Zealand. The applicant’s appeal to the Minister of Immigration was also unsuccessful.
[5] On 23 February 2022, the applicant was convicted of charges of driving in a dangerous manner and presenting a firearm (a starter pistol). His charges arose from events that occurred in May 2021. He was sentenced to 120 hours’ community service.
[6] On 14 December 2022, the applicant lodged a claim for refugee and protected persons status. A refugee and protection officer declined his claim. Subsequently, he lodged an appeal with the Tribunal. The appeal was heard on 9 December 2022 with a decision being issued on 24 January 2023.1 The Tribunal dismissed the applicant’s appeal.
[7] The applicant now seeks leave to appeal the Tribunal’s decision. He filed an affidavit to support his application for leave to appeal. Counsel for the respondent opposed the admission of the affidavit. She submitted the evidence was not fresh. I deal with this issue later in this judgment.
Legal test
[8] The legal test for leave to appeal is well settled. Under s 245 of the Act, the Court must consider:2
(a) whether there is a question of law to be determined;
(b) whether the question of law is seriously arguable; and
1 NS (India) [2023] NZIPT 802114.
2 P v Minister of Immigration [2022] NZCA 188 at [16]; Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162], [2016] 3 NZLR 721 at [8].
(c) whether the question of law is of sufficient importance to be submitted to the High Court either:
(i)by reason of its general or public importance; or
(ii)for any other reason.
The Tribunal’s decision
Issues before the Tribunal
[9] The principal issues on appeal were set out in paras [2] to [5] of the Tribunal’s decision. The basis of the appeal was the claim by the applicant that he had a well- founded fear of being persecuted and/or he was in danger of being subjected to another qualifying form of harm arising from a loan he obtained from a moneylender in India. Fifteen lakh rupees (about NZ$28,600) was borrowed in 2014 from the moneylender to pay for the applicant’s fees and related costs in New Zealand when he came here to study. The principal and interest, at 36 per cent per annum, was due to be repaid by the end of 2017 but remains unpaid.
[10]The Tribunal considered the issues to be determined by it were whether:
(a) the applicant’s account was credible;
(b) the risk of the applicant suffering serious harm reached the required threshold; and
(c) if the threshold was reached, the applicant could nonetheless access meaningful protection from the moneylender by moving elsewhere in India.
The evidence
[11] The evidence before the Tribunal came from the applicant and his father, the latter of whom gave evidence to the Tribunal by telephone from India. The evidence was summarised in the Tribunal’s decision at paras [6] to [24].
[12] There is a dispute about what evidence was given to the Tribunal by the applicant’s father. I directed that a transcript of this evidence be obtained from the Tribunal.3
[13] I now outline the Tribunal’s record of the evidence before it and, where necessary, compare it to the transcript.
[14] The applicant was born in 1993 and his parents own an 8-10 acre farm in Katura Village in Uttar Pradesh. He has two brothers who live in the same village and operate businesses there. The applicant also has a married sister who lives with her husband’s family.
[15] At some point, it was decided that the applicant would come to New Zealand to study and then to work so that he could support his parents by sending money back to them. The funds to enable him to come to New Zealand were obtained from some of the family’s savings (about NZ$3,000) but the balance was borrowed from a moneylender. I have referred to the amount and terms of the loan in para [9] above. The applicant did not know whether the moneylender was licenced or unlicenced.
[16] The applicant told the Tribunal the moneylender’s name (referred to in the Tribunal as “the loan shark”) was a man named AA. A document referred to as the loan document was produced to the Tribunal.4 It refers to the applicant coming to New Zealand for studies in 2014, his father borrowing an amount of 15 lakh rupees, which was borrowed at three per cent interest but over a year the compounding rate of interest amounts to 36 per cent. The money was to be repaid within three years but was not.
[17] I have referred to the applicant’s father borrowing the money. The Tribunal referred to this money having been borrowed by the applicant however the Refugee and Protection Officer’s decision, which was appealed to the Tribunal, refers to the applicant’s written statement to it in which he stated that his father had taken out the loan to fund the applicant’s travel and study in New Zealand. Further, throughout the transcript, although initially the applicant refers to his father taking out the loan, there
3 Received on 14 September 2023.
4 Pages 11-12.
is later reference to “we” borrowing money. The applicant’s father, when he gave evidence before the Tribunal, also referred to “we” borrowing the money from the loan shark. Regardless of the correct situation about who might be legally responsible for the loan, the evidence was clear that the applicant and his father believe that the applicant is in danger as a result of the loan not being repaid.
[18] The applicant was granted a student visa and arrived in New Zealand on 8 July 2014. He completed his studies over the next two years, obtaining a national diploma in business (levels five and six). He was then granted an open work visa and worked for about two years in a restaurant. He earnt enough to send his parents about $285 a month. The applicant’s father confirmed to the Tribunal that none of this money was used to repay any of the loan from the moneylender. This was because the amounts sent by the applicant were barely sufficient to meet the family’s own needs.
[19] In October 2019, the applicant was granted an essential skills work visa to work as a farm assistant on a dairy farm. He moved to work at another dairy farm in May 2020 where the pay was better, but he was dismissed summarily after a short time and had to find work elsewhere.
[20] The applicant has returned to India on two occasions since he has been in New Zealand. The first, between 11 October and 22 November 2017, was for a holiday. He went back to India again between January and March 2019. During these visits, he did not experience any problems in relation to the outstanding loan.
[21] In what appears to be an affidavit prepared by the applicant’s father in India for the hearing before the Tribunal, the applicant’s father deposes that the moneylender is:
… very angry with [NS] and he is waiting to take the life of [NS]. If [NS] returns to India then [AA] is very angry – is a big danger for him and [AA] is telling the moment [NS] returns to India he will kill him.
…
There is the big danger awaiting [NS] if he, when he returns to India.
[22] The applicant told the tribunal that he was still paying back the loan but that it was accruing at the rate of three per cent interest every month. He considered the debt now amounted to between 20-25 lakh rupee (about NZ$48,000-50,000) and, because he had not been working since March 2021, he had not been able to send any money back to his family to repay the debt. He outlined that the last time he sent money would have been in March or April 2021. The applicant considered the only way he could repay the money was to work in New Zealand but, for that, he required a work visa or open visa.
[23] There is reference in the transcript to a Police email about text messages the applicant was alleged to have sent a former female co-worker that were said to be very aggressive and insulting. The applicant considers these were sent by someone using his details, in other words, someone was using his name and making fake calls.
[24] At around the time this became know, the applicant was served with a deportation liability notice.
[25] In relation to the loan, there was nothing in the document provided to say security was provided over the applicant’s family’s land or house but the applicant contended, if the loan was unable to be paid, the land would have to be sold.
[26] The applicant told the Tribunal his father had last heard from AA when he stopped sending money in 2021. He said that AA came to see his father with some people and threatened his family. He did not consider that anything could be done by the Police because AA was a wealthy man with connections, including political connections and also those with the Police. He said that nothing was reported and that the loan would have to be repaid.
[27] In relation to questioning by the Tribunal that he could live somewhere else in India, the applicant said his only option was to go back home because that was where he belonged and lived. He did not consider he could move anywhere else in India because it would be hard to find a job and for him to survive. He considered that, if he was in India, he would be under the moneylender’s influence again because it would
not be possible for him to travel anywhere and, I infer from what he said, that the moneylender would be able to find where he was.
[28] The applicant’s father gave evidence via a telephone link from India. He confirmed on numerous occasions that he had been threatened by the moneylender or associates of his on numerous occasions. He said there had been threats to seize the family home and land if the debt was not repaid. The applicant’s father also said that the moneylender was threatening the applicant and that the applicant’s life could be in danger if he returned. He repeated on numerous occasions that he wanted the Tribunal to allocate the applicant a visa. He said that the moneylender kept sending request messages to him asking for money and the last time such a message had been sent was about 20 days ago, and about two to three months before that. When asked if he had heard of the moneylender harming somebody who had not repaid a loan, the applicant’s father said “yes they keep beating up people and all but I am not fully aware about that but they keep threatening us and all I am concerned about that threat”.
[29] The applicant’s father confirmed he is not paying any of the money owed and he reiterated that the applicant had been sending him “meagre amounts”. It appears, from his answers to questions from the Tribunal, that the applicant’s father considered the only way the loan would be repaid was if the applicant could work in New Zealand and to do that he would need a visa.
[30] The applicant’s father was asked whether the moneylender had made any attempt to take his land for him. He replied “he’s trying. Yes he said that if we don’t return the money he keeps returning to grab the land”. When asked whether the moneylender had filed any papers in court about that, the applicant’s father said that this had been threatened but had not happened yet.
[31] The Tribunal accepted the applicant’s account. However, it referred to one aspect which it said appeared surprising but in respect of which there was a reasonable explanation. No mention had been made to Immigration New Zealand (or the Minister) of any claim that the applicant was at risk at the hands of a moneylender. This was important because the Tribunal noted it would have been most unlikely for him to have been granted a student visa on the basis of funds advanced by a
moneylender. However, the Tribunal considered it most likely that the applicant’s India-based immigration agent had put forward a concocted picture of personal or family wealth to support his application. Any plea to Immigration New Zealand on the basis of a risk of harm from a moneylender would therefore not sit comfortably with his visa application.
Finding about refugee status
[32] The Tribunal then considered the legal provisions that apply to refugee status it was required to address.
[33] The Tribunal referred to s 129 of the Act where it is stated that a person must be recognised as a refugee if they are a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees (Refugee Convention).
[34] The Tribunal then referred to the cases which establish that, when determining whether a person is a refugee, the principal issues to be addressed are:
(a) objectively, on the facts as found, whether there is a real chance of a person being persecuted in their country of nationality;5 and
(b) if there is, whether there is a convention reason for that persecution.
[35] After considering the international human rights engaged (article 6 of the Refugee Convention), the relevant country information and KHY (India),6 a decision of the Tribunal dealing with the issue of moneylending in India, as well as the 1976 Uttar Pradesh Regulations, the Tribunal then applied these matters to the applicant’s situation and the facts of his case. The Tribunal noted that the loan document did not disclose any liability by the applicant’s family members, rather, the liability rested with him, and it was considered notable that, notwithstanding the threats, the moneylender had made no attempt to have the family property seized. I have noted the issues to do with who obtained the loan in [17] above.
5 Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2014] NZCA 173, [2014] NZAR 688 at [15] and [21].
6 KHY (India) [2019] 801563 at 37.
[36] The Tribunal noted that the applicant was able to say very little about the nature and intentions of the moneylender as he had had no personal prior dealings with him and did not appear to know anything more about him. It was noted that the applicant could not point to any other examples of this particular moneylender dealing with a bad debt.
[37] The Tribunal found, on balance, that the threshold of risk was “no higher than a real chance”7 but it considered that, if the applicant returned to the family village, he faced a real chance of suffering serious physical harm at the hands of the moneylender “or his henchmen” if he was unable to pay the loan and interest in full. Given the amount of the loan, which is assessed to be now some NZ$48,000, the Tribunal found it would be inevitable that the applicant would be unable to satisfy the debt even if he was given further time to pay it off.
[38] Accordingly, the Tribunal found that there was a real chance the applicant would be subjected to serious physical harm in breach of his right to be free from cruel, inhuman or degrading treatment or punishment under article of the ICCPR if he was to return to his home village.
[39] Having made this finding, the Tribunal identified the remaining issue to be whether the applicant could access meaningful state protection elsewhere in India away from his village. But, because of the Tribunal’s finding about the applicant’s refugee status, it considered this enquiry was not required.
[40] In relation to whether there was a convention reason for the persecution, the Tribunal noted that the applicant was required to link his well-founded fear of being persecuted with one of the five convention grounds. The Tribunal noted that this requires the convention ground to be a contributing cause to the risk of being persecuted.8 It concluded that no convention ground arose because the harm the applicant is at risk of arose from defaulting on a commercial financial transaction and the moneylender’s revenge or retribution for that default, not for any of the five convention reasons.
7 At 49.
8 Refugee Appeal Number 76235 (6 September 2002), at 173.
[41] That being the case, the Tribunal concluded that there were no grounds for the applicant to be recognised as a refugee.
Finding about risk of torture
[42] The Tribunal then went on to consider the applicant’s claim under the Convention Against Torture. It first referred to s 130(1) of the Act which provides that a person must be recognised as a protected person in New Zealand against the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.
[43] Assessing the facts against the definition of torture under s 130(5) of the Act, the Tribunal found that, for the same reasons in relation to its conclusion as to refugee status, the applicant was not at risk of torture within the definition that applied. It therefore concluded that he was not a protected person for that reason.
Finding about risk of cruel treatment
[44] The Tribunal then considered and assessed the applicant’s claim under the International Covenant on Civil and Political Rights (ICCPR). Section 131 of the Act provides that a person must be recognised as a protected person in New Zealand under the ICCPR if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.
[45] The Tribunal accepted the applicant is in danger of being subjected to cruel treatment if he returns to his village in Uttar Pradesh. This meant the Tribunal was satisfied the applicant could be recognised prima facie as a protected person under s 131(1) of the Act.
[46] The Tribunal was then required to assess the applicant’s claim in accordance with s 131(2) of the Act which provides that, despite s 131(1), the applicant could not be recognised as a protected person in New Zealand under the ICCPR if, relevantly here, he was able to access meaningful domestic protection in India.
[47] With reference to AC (Russia),9 the Tribunal assessed the applicant’s case against what must be established. It referred to the fact that there are numerous large cities in India, many of which have sizable Sikh populations and any of the named cities could provide a possible internal protection alternative for the applicant. The Tribunal found that there was no reason why the applicant could not access any of the identified cities and that, while not possible to entirely eliminate him being seen by accident by the moneylender or one of his associates in any of the identified cities, this would be dependent on a chance encounter the likelihood of which was remote or speculative. For this reason, the Tribunal concluded the possibility of a chance encounter fell well below the required threshold.
[48] The Tribunal then noted that the applicant had not identified any other risk of persecution or serious harm or refoulement. With reference to his family bonds, the Tribunal considered that, given his age, the applicant could be expected to live independently, as he has been doing in New Zealand for some years. The Tribunal also considered that the applicant’s work experience in New Zealand and his command of English would help him to re-establish himself in India.
[49] Finally, the Tribunal found that the evidence did not establish that the applicant would need to forgo his human rights to avoid being persecuted were he to reside in one of the identified cities.
[50] The Tribunal concluded that the applicant was able to access meaningful domestic protection in India and therefore, in terms of ss 131(1) and (2) of the Act, he was not a protected person.
[51] The Tribunal dismissed the applicant’s appeal, leaving him liable to be deported.
The arguments
[52] There were two themes running through the applicant’s submissions. First, he says the caste system is a “major point” in his appeal. He disagrees with the conclusion
9 AC (Russia) [2012] NZIPR 800151.
of the Tribunal that he can live in other parts of India, as he submitted caste is an issue everywhere in India. Secondly, with reference to the Convention Against Torture, he submitted the Tribunal should have found he and his family were at risk of torture by “loan sharks and loan-mafia”.
[53] The respondent submits that the applicant did not raise the risk of persecution arising from his caste in his evidence and submissions to the Tribunal and his affidavit outlining this should not be admitted. The respondent’s case is that there are no grounds for this Court to grant leave to appeal.
Should the applicant’s affidavit be admitted?
[54] The respondent opposes the admission of the applicant’s further affidavit. Ms Perera referred to NM (Fiji) v Minister of Immigration which referred to an applicant for leave to appeal to the High Court from an Immigration Tribunal being able to file affidavits in support of it under s 245 of the Act as long as the affidavit is confined to matters relevant to the grant of leave.10 Ms Perera submitted that the evidence in the applicant’s affidavit goes to the substance of the first decision under challenge.
[55] Ms Perera also referred to CD v Immigration and Protection Tribunal and Hai v Minister of Immigration.11 The Court held in those cases that new evidence filed in support of applications under ss 245 and 249 of the Act can be rejected or accepted in such a manner as the court considers best serves the interests of justice. But Ms Perera submitted that the evidence provided must be credible, fresh and cogent.12
[56] Because the affidavit contains material that was not provided to the Tribunal relating to the moneylender assaulting the applicant’s family and making derogatory remarks about their caste, other examples of moneylender dealing with bad debt or with people from lower castes, the observation that the moneylender’s actions were motivated by the applicant’s caste and that he could use political connections to locate the applicant, Ms Perera submitted that it should not be admitted because it is not fresh
10 NM (Fiji) v Minister of Immigration [2020] NZHC 2077 at [3].
11 CD v Immigration and Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494 at [23]; and
Hai v Minister of Immigration [2019] NZCA 55 at [25].
12 Li v Chief Executive of Ministry of Business, Innovation and Employment [2018] NZHC 1309 at [18]; and Hai v Minister of Immigration, above n 11.
evidence. As well, Ms Perera submitted that the late admission of this evidence means that the Tribunal was not afforded the opportunity to test the credibility of it.
[57] But, more particularly Ms Perera submitted, the evidence is not cogent because, even if the Tribunal had found the applicant’s caste was a reason for his persecution and found there was a nexus to a convention ground, it would then have considered whether there was an internal protection alternative available to the applicant which, it any event, it considered and found existed.
[58] I agree with Ms Perera that, strictly speaking, the evidence should not be admitted, and this is particularly so given that the veracity of it was unable to be tested and weighed in the balance but, even if I am wrong about this, I do not consider the new evidence improves the applicant’s case.
Does the appeal identify a seriously arguable question of law?
Did the Tribunal correctly identify the sources of harm faced by the applicant?
[59] The applicant’s first ground asserts that the Tribunal misidentified the source of the risk of harm to him because the real cause of harm is the fact that he belongs to the Jat Kang caste.
[60] The applicant did not raise the risk of persecution arising from his caste in his evidence and submissions to the Tribunal. As outlined above, the Tribunal had recorded that he did not point to any other risk of persecution.13 But, more particularly, it was the applicant’s responsibility to establish his case and ensure that all information was put to the Tribunal.14 Although the Tribunal is able to make further enquiries,15 the Act specifically states that it is “expressly under no obligation to do so”.16
[61] As well, the Court of Appeal has held that it cannot be an error of law for a tribunal considering a matter properly before it to fail to rule on a particular aspect of
13 Decision at [72].
14 Immigration Act 2009, s 226.
15 Immigration Act, s 228.
16 Minister of Immigration v Wu [2019] NZCA 237, [2019] NZAR 1217 at [42].
the matter, if that matter is not raised with it by the party interested in the issue and if it does not stand out as a matter requiring decision.17
[62] I conclude that the Tribunal correctly identified the sources of harm faced by the applicant but, even if caste is included in the mix and this provided a nexus to a convention ground, it would not provide the remedy the applicant seeks unless the next question is also answered in the applicant’s favour.
Did the Tribunal correctly conclude the applicant had meaningful access to domestic protection?
[63] As his second ground for seeking leave, the applicant submitted the Tribunal was mistaken in finding he had meaningful access to domestic protection in terms of s 131(2) of the Act. This is because he says the issue of caste arises in every state.
[64] I am not persuaded that this ground of appeal succeeds either. The Tribunal correctly understood and applied the four-stage enquiry required of it to assess the risk of the moneylender locating him in the alternative cities referred to. I have outlined its conclusions in relation to this above.
[65] In addition, when asked by the Tribunal why he could not live in an alternative city away from his village, the applicant stated that family is important in India and he would want to live with his family.18
[66] I accept Ms Perera’s submission that, once the Tribunal raised the possibility of an internal protection alternative, the burden was on the applicant to prove the test was not met.19 Furthermore, there was no evidence before the Tribunal that the applicant’s caste put him at risk of being persecuted in other parts of India nor that it would force him to return to his home village.20
17 Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) at [33]; Butler v Attorney- General [1999] NZAR 205 (CA) at [215].
18 NS (India), above n 1, at [72].
19 A Refugee and Protection Officer v BA (Nigeria) [2022] NZHC 706 at [21].
20 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19]; Respondent’s submissions at 22.
[67] In conclusion, the Tribunal’s finding that the applicant had meaningful access to domestic protection was, in my view, correct. The addition of caste does not change this conclusion. This ground must also fail.
Should the Tribunal have found the applicant to be a refugee and a protected person?
[68] The applicant’s third ground is that the Tribunal’s findings contradict the only reasonable conclusion of fact available on the evidence presented by him to it. In my view, this ground challenges the merits of the decision and the weight placed by the Tribunal on the evidence. This Court will not concern itself with the merits of the case when addressing a question of law.21
[69]The applicant’s third ground of appeal must also fail.
Conclusion
[70] The applicant has not established that there is a seriously arguable question of law sufficient for him to be granted leave to appeal. Each of the grounds he has advanced to support this do not succeed.
Are there matters of general or public importance or any other reason for granting leave?
[71] There is nothing raised in the applicant’s submissions that demonstrate that there are matters of general or public importance or any other reason to grant leave. The issues in this case do not go beyond the circumstances of the applicant and do not meet the necessary threshold.
Result
[72] Having found that there are no grounds for leave to appeal, the application must be dismissed.
Harland J
21 Zanzoul v Removal Review Authority HC Wellington, CIV-2007-485-1333, 9 June 2009 at [119].
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