YLs v Refugee and Protection Officer
[2017] NZCA 582
•12 December 2017 at 11 am
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NOTE: THE CONFIDENTIALITY OF THE NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANTS AND THEIR CLAIMS OR STATUSES MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA174/2017 [2017] NZCA 582
BETWEEN YLs (CA174/2017)
Appellants
AND
REFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 23 August 2017 Court:
Miller, Winkelmann and Clifford JJ
Counsel:
R E Harrison QC and C Curtis for Appellants K G Stephen and R D Garden for Respondent
Judgment:
12 December 2017 at 11 am
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe High Court order is set aside.
CThe decision of the Immigration and Protection Tribunal granting the appellants refugee status is reinstated.
DThe respondent must pay the appellants costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.
REASONS OF THE COURT
(Given by Clifford J)
YLs (CA174/2017) v REFUGEE AND PROTECTION OFFICER [2017] NZCA 582 [12 December 2017]
Table of Contents
Introduction [1]
Background [4]The YLs’ initial claim [4]
The YLs’ appeal to the Tribunal [8]
The RPO’s appeal to the High Court [11]
The High Court’s decision [16]This appeal [19]
Background and submissions [19]
The legislative scheme [23]
Background and purpose [23]
Refugee and protection status determinations [27]
Appeals [38]
Necessary implication? [44]
The Refugee Convention [48]
Alternative protection [64]
Conclusion [68]The Lazarus principle [69]
Result [71]
Introduction
[1] In November 2014, an Refugee and Protection Officer (RPO) declined the YLs’ claim for refugee status.
[2] The YLs appealed that decision to the Immigration and Protection Tribunal (the Tribunal). In February 2016, the Tribunal allowed that appeal and granted the YLs refugee status.1 With the leave of the High Court,2 the RPO then challenged that decision on a point of law. In February 2017, Fogarty J upheld that challenge, and remitted the YLs’ claim for refugee status to the Tribunal for reconsideration in light of his judgment.3
[3] The YLs now appeal that judgment to this Court, leave to appeal having been granted in the High Court by consent.4
1 YL [2016] NZIPT 800789-92 [Tribunal decision].
2 A Refugee and Protection Officer v YL [2016] NZHC 1548.
3 A Refugee and Protection Officer v YL [2017] NZHC 113 [High Court decision].
4 A Refugee and Protection Officer v YL HC Auckland, CIV-2016-404-536, 21 March 2017.
Background
The YLs’ initial claim
[4] The YLs comprise a mother and three daughters. They arrived in New Zealand in 2014. With them were the family’s husband/father and mother/maternal grandmother.
[5] The YLs are citizens of China and practitioners of Falun Gong. Together with the maternal grandmother, the YLs claimed refugee status based on their fear of persecution if they returned to China or Singapore (where they, but not the maternal grandmother, were permanent residents).
[6] The father made no claim for refugee status in New Zealand, and returned to Singapore in 2014.
[7] The RPO granted the maternal grandmother’s claim for refugee status: he accepted that, as a practitioner of Falun Gong, she had a well-founded fear of being persecuted in China. But he declined the YLs’ claim. Whilst they may have had a well-founded fear of being persecuted in China, the same could not be said of Singapore. As permanent residents of Singapore, they therefore already had protection somewhere else than New Zealand.
The YLs’ appeal to the Tribunal
[8] The YLs appealed to the Tribunal. After the Tribunal had heard the YLs’ appeal, but before a decision had been issued, the YLs renounced their status as permanent residents of Singapore. They advised the Tribunal of that fact. The Tribunal then decided the appeal on the basis that protection was no longer available to the YLs in Singapore and hence solely by reference to their predicament if they were to return to China.
[9] In line with previous decisions,5 the Tribunal concluded that there was a substantive basis for finding that if either the mother or the eldest daughter were to
5 AK (China) [2012] NZIPT 800202; and BO (China) [2015] NZIPT 800533-535.
return to China, as members of Falun Gong they would come to the attention of the local authorities.6 There was a real chance they would be detained, questioned and that while detained they would be subjected to cruel, inhuman or degrading treatment, punishment or torture which constituted serious harm amounting to persecution.7 Those circumstances meant that the middle and youngest daughters would also come to the attention of the Chinese authorities.8
[10] The YLs were accordingly recognised as refugees.
The RPO’s appeal to the High Court
[11] In reaching its decision, the Tribunal had observed:
Credibility
[40] There are aspects of the [YLs’] evidence that the Tribunal did not find credible. In particular, their claim not to have permanent resident status in Singapore was disingenuous and contradicted by clear evidence to the contrary. Likewise, the Tribunal does not accept that if returned to Singapore the mother and the older daughter would, as they claimed, protest in Singapore in such a manner as to bring them into conflict with Singaporean authorities. However, in light of subsequent evidence relating to the relinquishing of their resident status, such matters are no longer relevant to the assessment of their appeals.
[12] Implicit in that observation is the issue which is the focus of this appeal. When a claim for refugee status is made, s 134 of the Immigration Act 2009 (the Act) requires an RPO to first determine whether to accept that claim for consideration. As relevant, s 134(1) provides:
(1)In determining whether to accept a claim for consideration, a refugee and protection officer may take into account whether,—
…
(c)1 or more of the circumstances relating to the claim were brought about by the claimant—
(i)acting otherwise than in good faith; and
(ii)for a purpose of creating grounds for recognition under section 129.
6 Tribunal decision, above n 1, at [61].
7 At [61].
8 At [62].
[13] Section 134(3) then provides:
(3)A refugee and protection officer must decline to accept for consideration a claim for recognition as a refugee if the officer is satisfied that 1 or more of the circumstances relating to the claim were brought about by the claimant—
(a)acting otherwise than in good faith; and
(b)for a purpose of creating grounds for recognition under section 129.
[14] The YLs’ claims had already been accepted for consideration by an RPO when the Tribunal considered the YLs’ appeal. The Tribunal therefore proceeded on the basis that no further “good faith” inquiry was required into the YLs surrender of their permanent resident status in Singapore. In doing so, the Tribunal would appear to have followed one of its earlier decisions, DY (Fiji).9 In DY (Fiji), the Tribunal characterised the good faith inquiry as a threshold issue. Accordingly, on appeal from the substantive decision of an RPO on an accepted claim, the Tribunal did not have jurisdiction to inquire into the good faith or otherwise of the applicant as a stand-alone consideration.10 Good faith could, however, go to the Tribunal’s assessment of an applicant’s credibility.
[15] The RPO considered the failure of the Tribunal to consider the good faith of the YLs surrender of their Singaporean residency was an error of law. He sought and was granted leave to appeal to the High Court on the following question:
Whether, in deciding to grant refugee status to the [YLs], the [Tribunal] failed to take into account a mandatory relevant consideration and materially misdirected itself by failing to consider whether any or all of the [YLs] acted otherwise than in good faith or acted in bad faith in unilaterally renouncing their Singapore residence status prior to the [Tribunal’s] determination to grant them refugee status in New Zealand.
9 DY (Fiji) [2014] NZIPT 800375-380, 800419. The Tribunal followed DY (Fiji) in CH China [2016] NZIPT 80081, heard and decided after the RPO had been granted leave to appeal the Tribunal’s decision but before that appeal had been heard or determined.
10 DY (Fiji), above n 9, at [96].
The High Court’s decision
[16] Shortly after he heard the appeal, Fogarty J released a minute to the parties.
That minute read:11
[1] I am in the process of drafting my judgment in relation to this proceeding.
[2] I am currently minded to find that good faith is expressed as a threshold issue only in the Immigration Act 2009. This is for the reason that the text of the statute includes the term “good faith” in three specific provisions that are limited to the refugee and protection officer’s decision whether or not to consider a claim to refugee status.
[3] However, on reflection, it seems to me that a principle of common law, independent of the Immigration Act, might be of assistance to resolving the question of law in dispute. The principle of law is that articulated by Lord Denning in Lazarus Estates Ltd v Beasley:
No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.
[4] I am minded to the view that conduct demonstrating lack of good faith is always relevant to the exercise of a statutory discretion. There is no need for each statute to state the same. The reason for three specific provisions in the Immigration Act addressing the matter of good faith is in order to impose a severe statutory policy of declining a claimant’s application where the claimant is acting otherwise than in good faith. Absent the enactment of such a specific provision, the decision maker has a discretion as to the consequence of lack of good faith during the process, in any statute, including the Immigration Act.
[17] The Judge sought and received written submissions. The RPO supported the approach the Judge anticipated in his minute. The YLs argued to the contrary, pointing to the statutory scheme the Judge had already referred to.
[18] The Judge released his judgment on 9 February 2017. As his minute had anticipated, he reached the conclusion that the statutory consideration of good faith was, in the Act, expressed as a threshold issue only.12 He then discussed the principle in Lazarus Estates Ltd v Beasley.13 In reliance on that decision, and a
11 A Refugee and Protection Officer v YL HC Auckland CIV-2016-404-536, 1 November 2016 (footnotes omitted).
12 High Court decision, above n 3, at [27].
13 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 (CA).
number of subsequent United Kingdom authorities,14 the Judge confirmed his preliminary view that the principle of “fraud unravels everything” applied to the conduct of the YLs in renouncing their Singaporean permanent resident status.15 The possibility of their having acted otherwise than in good faith was therefore one which, in the circumstances, the Tribunal was required to consider. It had not.16 Accordingly, the appeal was allowed, and the decision remitted to the Tribunal for reconsideration.17
This appeal
Background and submissions
[19] Given Fogarty J agreed with the Tribunal that statutory consideration of good faith was a threshold issue only, the YLs did not seek to challenge that part of his decision. They instead sought leave on the question of “whether the Tribunal erred in law in failing to investigate and determine whether they had acted otherwise than in good faith in order to obtain refugee status”. Leave was granted by consent. Although the RPO supported Fogarty J’s conclusion, the submission remained that the scheme of pt 5 of the Act mandates the consideration of good faith by the Tribunal, characterising Fogarty J’s judgment as being consistent with that approach. Those differing perspectives were reflected in the way the parties presented what they termed were the agreed issues to be determined on this appeal. Those issues were:
(a)Whether, in deciding to grant refugee status to the YLs, the Tribunal was required to take into account as a mandatory relevant consideration whether any or all of the YLs acted otherwise than in good faith or acted in bad faith?
(b)If so, whether, in deciding to grant refugee status to the YLs, the Tribunal erred in law by failing to consider whether any or all of the YLs acted otherwise than in good faith or acted in bad faith?
14 R v Secretary of State for the Home Department, ex parte Hussain [1978] 1 WLR 700 (CA); R v Secretary of State for the Home Department, ex parte Choudhary [1978] 1 WLR 1177 (CA); and Zamir v Secretary of State for the Home Department [1980] AC 930 (HL).
15 High Court decision, above n 3, at [40].
16 At [41].
17 At [44].
(c)If so, whether the YLs’ refugee and protected person status appeals should be remitted to the Tribunal in accordance with the directions given by the High Court or otherwise.
[20] In summary, the YLs say that good faith is a threshold issue only. Fogarty J was right to so conclude. The Judge, however, erred when he imported the Lazarus principle into the realm of New Zealand’s international obligations (the performance of which the Act provides for as a matter of domestic law). The question of good faith only arises where the Act expressly so provides.
[21] The RPO acknowledges that the good faith test is a derogation from New Zealand’s international obligations. However, he submits Parliament, by necessary implication, intended consideration of an absence of good faith to be mandatory. The circumstances of the YLs clearly demonstrated an absence of good faith; hence, the Tribunal had erred in its decision and Fogarty J was correct to remit the matter to the Tribunal for further consideration.
[22] The principal question we must answer is whether, under the scheme of the Act, good faith was a mandatory consideration for the Tribunal when it determined the YLs’ appeal. This raises an issue of statutory interpretation. The well-known principles apply.18
The legislative scheme
Background and purpose
[23] The explanatory note to the Bill that became the Act records:19
Significant global changes have taken place since the Immigration Act 1987 (the 1987 Act) was enacted. There are greater flows of people around the world and greater global competition for skills, talent, and labour, especially given ageing population demographics and skill shortages in many Organisation for Economic Co-operation and Development (OECD)
18 We are to construe the relevant provisions, here principally found in pt 5 of the Act, in light of the plain meaning of the words used as understood in the context of the scheme and purpose of the Act as a whole, guided by the Act’s legislative history. We are to check any interpretation we reach based on plain meaning for consistency with that scheme and purpose. Case law and academic commentary can inform that analysis.
19 Immigration Bill 2007 (132-1) (explanatory note).
countries. There are heightened risks and pressures on the border. New Zealand needs to recognise these changes, and to adapt the immigration system to ensure the best outcomes for this country.
This reform modernises and simplifies the immigration system. It will give New Zealand a more robust and accountable system. It will also ensure compliance with New Zealand’s immigration-related international obligations in a more transparent way.
[24] As enacted, those general intentions are reflected in s 3 of the Act. Section 3 has two parts. Subsection (1) sets out the overriding purpose of the Act: “to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”.
[25] Subsection (2) provides an overview of the operative parts of the Act. As relevant, it provides:
(2)To achieve this purpose, the Act establishes an immigration system that—
…
(d)provides a process for implementing specified immigration-related obligations; and
…
[26] That process is found in pt 5 of the Act.
Refugee and protection status determinations
[27] Part 5 begins with its own purpose statement:
124Purpose of Part
The purpose of this Part is to provide a statutory basis for the system by which New Zealand—
(a)determines to whom it has obligations under the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees; and
(b)codifies certain obligations, and determines to whom it has these obligations, under—
(i)the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:
(ii)the International Covenant on Civil and Political Rights.
[28] Those international law documents are defined in s 4 of the Act as the Refugee Convention, the Convention against Torture and the Covenant on Civil and Political Rights. We refer to them individually by those titles. We refer to them together as the Conventions and the Covenant.
[29] Part 5 is a carefully drafted and complex scheme. Section 125 first establishes the domestic law basis for that scheme:
125Refugee or protection status to be determined under this Act
(1)Every person who seeks recognition as a refugee in New Zealand under the Refugee Convention must have that claim determined in accordance with this Act.
(2)Every person who seeks recognition as a protected person in New Zealand must have that claim determined in accordance with this Act.
(3)Every question as to whether a person should continue to be recognised as a refugee in New Zealand or as a protected person in New Zealand must be determined in accordance with this Act.
(4)Nothing in subsection (1) affects section 126.
[30] In summary, an RPO must first decide whether or not to consider a claim for recognition. That initial decision may be appealed to the Tribunal.20 If an RPO accepts the claim, or the Tribunal does so on appeal, that claim must be considered. The decision by an RPO on a substantive claim is also appealable to the Tribunal.21 Part 5 also provides provisions whereby refugee or protected person status may cease, be withdrawn or be cancelled.22 Where an RPO makes any such decision, rights of appeal to the Tribunal apply.23 Decisions of the Tribunal on such matters may be appealed on a point of law to the courts (as here), or judicially reviewed.
20 Immigration Act 2009, s 194(1)(a).
21 Section 194(1)(c).
22 Section 145.
23 Section 194(1)(e).
[31] More specifically, and relevant here, ss 129–131 provide the domestic law basis upon which such claims are to be recognised. They do so by reference to the terms of the relevant Convention or Covenant:
129Recognition as refugee
(1)A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention.
…
130Recognition as protected person under Convention Against Torture
(1) A person must be recognised as a protected person in New Zealand under 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.
…
(5)In this section, torture has the same meaning as in the Convention Against Torture.
131Recognition as protected person under Covenant on Civil and Political Rights
(1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights 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.
…
(5)For the purposes of this section,—
(a)treatment inherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivation of life or cruel treatment, unless the sanctions are imposed in disregard of accepted international standards:
(b)the impact on the person of the inability of a country to provide health or medical care, or health or medical care of a particular type or quality, is not to be treated as arbitrary deprivation of life or cruel treatment.
(6)In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment.
[32] Section 127 further emphasises the importance of the Refugee Convention:
127 Context for decision making
(1)Every claim under this Part must be determined by a refugee and protection officer.
(2)In carrying out his or her functions under this Act, a refugee and protection officer must act—
(a)in accordance with this Act; and
(b)to the extent that a matter relating to a refugee or a person claiming recognition as a refugee is not dealt with in this Act, in a way that is consistent with New Zealand's obligations under the Refugee Convention.
(3)The text of the Refugee Convention is set out in Schedule 1.
[33] That general scheme is, as regards the centrality of the terms of the Conventions and the Covenant to the determination of claims for refugee and protected persons status, similar to that which prevailed under the previous legislative framework, the Immigration Act 1987 (the 1987 Act). There is an important qualification to that observation. Section 129D(1) of the 1987 Act provided:
In carrying out their functions under this Part, refugee status officers and the Refugee Status Appeals Authority are to act in a manner that is consistent with New Zealand’s obligations under the Refugee Convention.
In contrast, and has been observed,24 s 127 appears to create a hierarchy requiring decisions to be made by reference to the Act in the first place, and then only if a matter is not explicitly dealt with in the Act, by reference to the Refugee Convention. The issue raised in this appeal relates to how that hierarchy operates as regards the issue of good faith when the Tribunal is making its substantive decision under pt 5.
[34] A discretion or a requirement to consider whether an absence of good faith exists is now provided for at two points in pt 5:
(a)As already noted, under s 134(1) an RPO considering whether to accept a claim for recognition may consider whether “one or more of the circumstances relating to the claim were brought about by the applicant
24 Johanna Commins “Good Faith in the Immigration Act” [2011] NZLJ 103 at 105.
acting otherwise than in good faith and for a purpose of creating grounds for recognition under s 129”. If an RPO finds such circumstances exist, they must decline to accept that claim for consideration.25
(b)Under s 140(1) an RPO must not consider a subsequent claim26 unless satisfied that there has been a material change in circumstances since the (initial) claim was finally determined, and that change in circumstances has not been brought about by the complainant acting “otherwise than in good faith”.
[35] Once a claim has been accepted for consideration, ss 136–138 provide how an RPO is to determine that claim. An RPO may seek information from any source further to that provided by the applicant, but is not required to do so. An RPO must determine the matters set out in s 137:
137Matters to be determined by refugee and protection officer
(1)For each claim accepted for consideration, a refugee and protection officer must determine, in the following order:
(a)whether to recognise the claimant as a refugee on the ground set out in section 129; and
(b)whether to recognise the claimant as a protected person on the ground set out in section 130; and
(c)whether to recognise the claimant as a protected person on the ground set out in section 131.
(2)For each claim accepted for consideration, a refugee and protection officer must also determine, as part of the process in respect of a determination under subsection 1(b) or (c), whether there are serious reasons for considering that the claimant has—
(a)committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or
(b)committed a serious non-political crime outside New Zealand before entering New Zealand; or
25 Immigration Act, s 134(1)(3).
26 The Immigration Act distinguishes between claims and subsequent claims. Subsequent claims are claims made under pt 5 by a person who has previously made a claim under pt 5 of the Immigration Act that has been finally determined.
(c)been guilty of acts contrary to the purposes and principles of the United Nations.
(3)To avoid doubt, a determination made under subsection (2)—
(a)must not be used as grounds to refuse a claim by the person concerned for recognition as a protected person; and
(b)is relevant only if the person is recognised as a protected person; and
(c)if answered in the affirmative, requires the Minister to determine the immigration status of the protected person in accordance with section 139.
(4)For each claim accepted for consideration, a refugee and protection officer must also determine whether the claimant has the protection of another country or has been recognised as a refugee by another country and can be received back and protected there without risk of being returned to a country where he or she would be at risk of circumstances that would give rise to grounds for his or her recognition as a refugee or a protected person in New Zealand.
(5)To avoid doubt, a refugee and protection officer—
(a)in determining the matters specified in this section, may make findings of credibility or fact:
(b)must determine all the matters described in subsections (1), (2), and (4), regardless of whether the claim was made only on 1 or 2 of the 3 grounds set out in sections 129 to 131.
[36] Section 138 again takes the process and the decision-maker to the Conventions and the Covenant:
138Decision on claim
(1)A refugee and protection officer must recognise a person as—
(a)a refugee if satisfied that the grounds for recognition in section 129 have been met:
(b)a protected person if satisfied that the grounds for recognition in section 130 or 131 (or both) have been met.
[37] As can be seen, there is no reference to the good faith or otherwise of the applicant in those provisions. Nor is the question of good faith mentioned further in pt 5.
Appeals
[38] Part 7 of the Act contains comprehensive appeal and review mechanisms. Sections 193–200 provide for appeals against decisions relating to refugee or protection status.
[39] Sections 194(1)(b) and 195(1)(a) provide, respectively, for appeals against decisions of an RPO declining to accept for consideration a claim or a subsequent claim.
[40] In the case of such a decision on a claim, s 197 provides:
197Determination of appeal against decision declining to accept for consideration certain claims for recognition as refugee
(1)Where an appeal is brought under section 194(1)(b), the Tribunal must—
(a)determine the matter de novo; and
(b)determine whether 1 or more of the circumstances relating to the claim were brought about by the claimant—
(i)acting otherwise than in good faith; and
(ii)for a purpose of creating grounds for recognition under section 129.
(2)For the purposes of determining the matter in subsection (1), the Tribunal must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.
(3)The Tribunal may dismiss or allow the appeal.
(4)If the Tribunal allows the appeal,—
(a)it must refer the claim back to a refugee and protection officer for consideration; and
…
[41] In the case of such a decision on a subsequent claim, s 200 provides:
200Determination of appeal against refusal or declining of subsequent claim for recognition as refugee or protected person
(1)Where an appeal is brought under section 195(1)(a), the Tribunal must first consider—
(a)whether there has been a significant change in circumstances material to the appellant’s claim since the previous claim was determined; and
(b)if so, whether the change in 1 or more of the circumstances was brought about by the appellant—
(i)acting otherwise than in good faith; and
(ii)for a purpose of creating grounds for recognition under any of sections 129 to 131.
(2)The Tribunal must dismiss the appeal if it determines that—
(a)there is no significant change in circumstances; or
(b)the change in 1 or more of the circumstances was brought about by the appellant—
(i)acting otherwise than in good faith; and
(ii)for a purpose of creating grounds for recognition under any of sections 129 to 131.
(3)The Tribunal must consider the claim for recognition in accordance with section 198(1) if it—
(a)determines that there is a significant change in circumstances; and
(b)does not determine that the change in 1 or more of the circumstances was brought about by the appellant—
(i)acting otherwise than in good faith; and
(ii)for a purpose of creating grounds for recognition under any of sections 129 to 131.
…
[42] The way the Act provides for appeals against an RPO’s substantive decisions on claims and subsequent claims for refugee status reflects the Act’s scheme for the making of those decisions in the first place. As relevant here:
(a)By s 193(1) the Tribunal must determine those appeals “in accordance with the Act”. To the extent that an issue is not dealt with in the Act, the Tribunal must act in a way that is consistent with New Zealand’s obligations under the Refugee Convention.
(b)By s 198(1) the Tribunal is directed on appeal to determine a claim de novo and by reference to the terms of the relevant Convention or Covenant:
(1)Where an appeal is brought under section 194(1)(c), (d), or (e), the Tribunal must—
(a) determine the matter de novo; and
(b) determine, in the following order:
(i)whether to recognise the person as a refugee on the ground set out in section 129; and
(ii)whether to recognise the person as a protected person on the ground set out in section 130; and
(iii)whether to recognise the person as a protected person on the ground set out in section 131; and
…
(3)The Tribunal may dismiss or allow the appeal, but may not refer the claim back to a refugee and protection officer for reconsideration.
(c)Under s 200, as has already been seen, the Tribunal on appeal is also required to determine a subsequent claim de novo, both where the appeal challenges an RPO’s decision not to accept a subsequent claim for consideration and where, having considered a subsequent claim, an RPO refuses that claim. In the latter circumstances:
(i)Section 195(2) creates the right of appeal:
(2) A person may appeal to the Tribunal against a decision by a refugee and protection officer to decline a subsequent claim by the person to be recognised under any of sections 129, 130, and 131 as a refugee or a protected person (whether or not the refugee and protection officer recognised the person as a refugee or a protected person under the grounds set out in another of those sections, or both of those other sections).
(ii)Section 200(7) requires the Tribunal to determine that claim under s 198(1) (that is, on a de novo basis and by reference to the relevant Convention or Covenant).
[43] As can be seen, where an appeal is against an RPO’s refusal of a claim or a subsequent claim which has been accepted for consideration, there is no reference to the Tribunal having a discretion, or being required, to consider the good faith issue. Rather, it is only where the Tribunal on appeal is considering a decision of an RPO to decline to accept a claim or a subsequent claim for consideration, that the Tribunal is required to consider that issue.
Necessary implication?
[44] The RPO’s argument was it was a necessary implication that Parliament intended good faith to be a mandatory consideration on all appeals.27 The principal justification for that conclusion was, the RPO argued, the scheme of the Act as a whole. Matters do not have to be explicit in statute for them to be mandatory considerations. What is required is to determine the legislature’s intention from the scheme and purpose of the legislation. The more obviously important the consideration, the readier a court will be to find that Parliament must have meant it to be taken into account.28
[45] Here, the purpose of the Act (to manage immigration in a way that balanced the national interest and the rights of individuals), the statutory place of good faith in the scheme of the Act, and the Tribunal’s de novo jurisdiction in relation to appeals against decisions declining refugee status, all supported that proposition. Having set out a good faith requirement as a necessary pre-condition to obtaining refugee status, there was, the RPO submitted, no logical reason why Parliament would have elected to prevent the Tribunal from considering good faith on appeal.
27 In DY (Fiji), the RPO’s argument was that the Tribunal had an implied power to consider the good faith question on appeal. Here the RPO takes this one step further: it is no longer his argument that there is an implied power, but rather that by necessary implication good faith is, on appeals generally, a mandatory consideration. It is also to be noted that the RPO did not appeal the decision in DY (Fiji). Nor, in this appeal, did the RPO explicitly challenge, or indeed refer in any detail to, the Tribunal’s reasoning in DY (Fiji).
28 Citing CREEDNZ Inc v Governor General [1981] 1 NZLR 172 (CA) 183; and Attorney-General v New Zealand Māori Council [1991] 2 NZLR 129 (CA) at 140.
[46] We acknowledge the general proposition that, in strong cases, a court may conclude as a matter of necessary implication that Parliament’s intention was otherwise than as expressly provided.29
[47] We are satisfied, however, that there is no room for necessary implication here. We reach that conclusion on the basis of the following considerations.
The Refugee Convention
[48] First and foremost is the way the Act expressly provides for the Tribunal to determine appeals. The key section is s 193. As is the case with determinations of an RPO, there is a hierarchy by reference to which the Tribunal is to make its determination. The Tribunal is first directed to determine the appeal in accordance with the Act. To the extent that an issue is not dealt with in the Act, however, the Tribunal must act in a way that is consistent with New Zealand’s obligations under the Refugee Convention.
[49] Here, the Act does not expressly provide for good faith to be considered once a claim is accepted for consideration. The Tribunal, then, is to act in accordance with the Refugee Convention as regards the relevance of good faith in that situation. There is no room for a necessary implication that good faith is to be dealt with otherwise.
[50] The Refugee Convention does not make the good faith or otherwise of an applicant a relevant consideration. The Refugee Convention can be seen as treaty expression of the right recognised in art 14(1) of the Universal Declaration of Human Rights 1948, which provides: “everyone has the right to seek and to enjoy in other countries asylum from persecution”.
[51] The Refugee Convention itself, therefore, is of an avowedly humanitarian character. Central to that character is the prohibition on refoulement. Article 33(1) provides:
No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontier of territories where his life or freedom would be
29 RI Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 319–329.
threatened on account of his race, religion, nationality, membership of a particular social group or particular opinion.
[52] As observed in Refugee Protection in International Law:30
… [W]ithin the scheme of the [Refugee Convention], the prohibition on refoulement in art 33 holds a special place. This is evident in particular from art 42(1) of the [Refugee Convention] which precludes reservations inter alia to art 33.
[53] The prohibition on refoulement in art 33 is therefore a non-derogable obligation under the Refugee Convention. It embodies the humanitarian essence of the Refugee Convention. Moreover, non-refoulement is not limited to those formally recognised as refugees. The Refugee Convention does not define a refugee as being a person who has been recognised as having a well-founded fear of persecution. It simply provides that the term shall apply to any person who “owing to a well-founded fear of being persecuted” are outside their country of origin. That is, a person who satisfies the conditions of art 1A(2) is a refugee regardless of whether he or she has been formally recognised as such pursuant to a municipal law process.
[54] That matter has been addressed authoritatively by the United Nations High Commissioner for Refugees in the Handbook on Procedures and Criteria for Determining Refugee Status as follows:31
A person is a refugee within the meaning of the [Refugee Convention] as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee.
[55] Accordingly, the generally accepted proposition is that good faith, or more accurately perhaps an absence of good faith, is not a requirement for recognition as a refugee. Penelope Mathew has written:32
30 Elihu Lauterpacht and Daniel Bethlehem “The Scope and Content of the Principle of Non-Refoulment” in Erika Feller, Volker Türk and Frances Nicholson (eds) Refugee Protection in International Law (Cambridge University Press, Cambridge, 2003) 89 at 107.
31 United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status HP/1P/4/Eng/REV.3 (1992).
32 Penelope Mathew “Limiting Good Faith: ‘Bootstrapping’ Asylum Seekers and Exclusion from Refugee Protection” (2010) 29 Australian Year Book of International Law 135 (footnotes omitted).
Good faith is an important principle in international law. It underpins the observance of treaties, and their interpretation. Good faith also has a role outside treaty law — for example, equitable principles such as the doctrine of clean hands may be considered general principles of international law. However, as international law generally binds states rather than non-state actors, the principle of good faith usually does not apply to individuals, even when international law recognises individual rights. It would be worrying if “inalienable” human rights were dependent on the absence of wrong-doing. Individuals may be punished under the criminal law and deprived of certain rights in order to protect others — indeed, international law still tolerates the death penalty. However, human rights do no depend on a person having clean hands.
[56] Notwithstanding, and in a decision that attracted a degree of adverse comment, the Refugee Status Appeals Authority in Refugee Appeal No 2254/94, Re HB expressed the view that, in the case of refugees sur place,33 those who had acted in bad faith (that is, those who, having no well-founded fear of persecution, deliberately created circumstances exclusively for the purpose of subsequently justifying a claim for refugee status) may thereby not be granted that status.34 That conclusion was not necessary for the Authority’s decision declining the relevant applicant refugee status: that decision was founded on the Authority’s findings of fact that the central core of the applicant’s case was entirely unsupported by evidence.35 In expressing that opinion, and with reference to a range of international jurisprudence and academic opinion, the Authority concluded that a person:36
… who, not being at risk of fundamental marginalisation or disenfranchisement in the country of origin, wilfully creates a set of circumstances simply as a mean of accessing the benefits of the Refugee Convention cannot be said to be a refugee for the purpose of the Refugee Convention.
[57] The Authority went on:37
Our decision to interpret the Refugee Convention as requiring, implicitly, good faith on the part of the asylum seeking turns on a value judgment that the Refugee Convention was intended to protect only those in genuine need of surrogate international protection and that the system must be protected from those who would seek, in a sur place situation, to deliberately manipulate
33 A refugee sur place is a person “who claims to be a refugee as a result of political events in his home country or because of his own actions that have taken place after his departure from said country”: Atle Grahl-Madsen The Status of Refugees in International Law (AW Sijthoff, Leiden, 1966) at 94.
34 Refugee Appeal No 2254/94, re HB [1995] IJLR 332 at 54.
35 At 30.
36 At 59.
37 At 59.
circumstances merely to achieve the advantages which recognition as a refugee confers. The sooner abuses of this kind are detected and eliminated, the longer the integrity of the refugee status determination procedures and the protection afforded by the Convention will enable the bona fide asylum seeker to escape persecution. Clearly this is the underlying assumption of the Convention.
[58] Re HB was decided under the 1987 Act. In two recent, strongly reasoned decisions (neither of which the RPO appealed), the Tribunal has moved away from that interpretation.38 It has done so by rejecting the RPO’s necessary implication argument by reference to:
(a)its analysis of the structure of the Act, and the implications thereof (to similar effect as the analysis we have set out);
(b)academic commentary about good faith under the Refugee Convention;39 and
(c)overseas case law.40
38 In CH (China), above n 9, the Tribunal considered the issue afresh, given the RPO’s indication in the YL proceedings that he disagreed with the proposition that the statutory provisions relating to good faith were exhaustive.
39 See generally James Hathaway and Michelle Foster The Law of Refugee Status (2nd ed, Cambridge University Press, Cambridge, 2014) at 75–90; and Guy Goodwin-Gill and Jane McAdam The Refugee in International Law (3rd ed, Oxford University Press, Oxford, 2007) at 65–67.
40 In the United Kingdom, see Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000; YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360; TM (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 916; and KS (Burma) v Secretary of State for the Home Department [2013] EWCA Civ 67. In Canada, see Yang v Canada (Minister of Citizenship and Immigration) 2012 FC 849; Li v Canada (Minister of Citizenship and Immigration) 2012 FC 998; and Ghasemian v Canada (Minister of Citizenship and Immigration) 2003 FC 1266. The approach in Australia has changed over time; for a recent decision, see SZNIL v Minister for Immigration and Citizenship [2010] FMCA 470.
[59] The first decision is DY (Fiji).41 As we noted above, in that case the Tribunal found that, on appeal from the substantive decision on an accepted claim, it did not have jurisdiction to inquire into the good faith or otherwise of the applicants as a stand-alone consideration. While it was clear that Parliament had intended to reduce incentives for people to act otherwise than in good faith, the Act specifically provides for a mechanism through which the good faith issue must be determined. The second case is CH (China).42 There, a differently constituted Tribunal considered the issue afresh in light of Brewer J’s judgment granting the RPO leave to appeal to the High Court. The Tribunal agreed with the reasoning in DY (Fiji).43 While there used to be a broad good faith requirement, the new statutory scheme introduced in 2009 “signalled a clear departure from such a broad application of a good faith principle and provided for specific, limited circumstances in which good faith could be considered”.44 “As was comprehensively addressed in DY (Fiji)”, this move “reflects the predominant international consensus on this issue, as articulated in both academic commentary and jurisprudence from other jurisdictions”.45 The Tribunal concluded that:
[74] The Act has codified the jurisdiction for refugee and protection determination in New Zealand to the exclusion of implied powers which are not inherent in the Tribunal’s duty, where the Act is silent, to act consistently with the Refugee Convention. The existence of such an implied power would be in breach of the Tribunals obligations under s 193(3), as it would be inconsistent with the Refugee Convention; a view supported by the overwhelming weight of international opinion and jurisdiction.
(Emphasis added.)
[60] We agree. As there is no express power for the Tribunal to consider good faith on appeals against decisions of RPOs declining, after consideration, applications for refugee status, the issue must, by virtue of s 193(3), be considered in accordance with the Refugee Convention. It is inconsistent with the Refugee Convention to take the good faith of the appellant into account.
41 DY (Fiji), above n 9.
42 CH (China), above n 9.
43 At [54].
44 At [57].
45 At [64].
[61] There is no room for necessary implication. To accept the RPO’s “necessary implication” argument would be to recognise a further derogation from the Refugee Convention. But, given the terms of the Act itself, in order to derogate from the Refugee Convention in that way, Parliament would have had to expressly so provide (as it has done in other parts of the Act).
[62] This also explains the Tribunal’s decision in AH (Egypt).46 There, the Tribunal was faced with the question of whether it had the power to determine appeals on the basis of the availability of protection elsewhere. The Act did not expressly address the matter. The RPO argued, as here, that the Tribunal had that power by necessary implication. The Tribunal agreed. It did so by reference to its statutory obligation to act consistently with the Refugee Convention as regards matters not expressly dealt with by the Act. In contrast to its finding on the issue of good faith, the Tribunal found that it was consistent with the Refugee Convention to determine the appeal on the basis of protection elsewhere. Accordingly, and as a matter of “necessary implication from the express wording of s 193(3)”, it had the power to determine the appeal in that way.47
[63] As our analysis demonstrates, the centrality of New Zealand’s international obligations to the Act’s scheme, and the recognition that the introduction of a good faith test in the process is a derogation from those international obligations, supports the YLs’ argument that, when the good faith provisions were introduced, Parliament’s intention was limited to those specific provisions and the Act cannot now be interpreted in the way the RPO argues for.
Alternative protection
[64] One other aspect of the scheme of the Act, relating to the way in which the availability of a place of alternative protection is to be considered when decisions are being made, precludes the RPO’s interpretation. The Refugee Convention provides that a person who is already entitled to protection in another jurisdiction will not be
46 AH (Egypt) [2013] NZIPT 800268-272.
47 At [50].
granted refugee status in a second jurisdiction because of an existing threat of persecution in their home country:
In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
[65] That principle is incorporated in each of ss 130 and 131, as regards recognition as a protected person in the following terms:
130Recognition as protected person under Convention Against Torture
…
(2)Despite subsection (1), a person must not be recognised as a protected person in New Zealand under the Convention Against Torture if he or she is able to access meaningful domestic protection in his or her country or countries of nationality or former habitual residence.
131Recognition as protected person under Covenant on Civil and Political Rights
...
(2)Despite subsection (1), a person must not be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if he or she is able to access meaningful domestic protection in his or her country or countries of nationality or former habitual residence.
[66] That principle is further reflected in s 138(2) of the Act:
(2) Despite subsection (1), a refugee and protection officer may refuse to recognise a person as a refugee or a protected person if he or she is satisfied that the person has the protection of another country or has been recognised as a refugee by another country and can be received back and protected there without risk of being returned to a country where he or she would be at risk of circumstances that would give rise to grounds for his or her recognition as a refugee or a protected person in New Zealand.
[67] In AH (Egypt), the Tribunal considered the significance of that principle, whilst at the same time recognising the different ways various jurisdictions had responded to it. The RPO’s argument, of necessary implication, faces the very specific difficulty here that it is at least arguable that on the basis of AH (Egypt) the Tribunal could have
considered the YLs’ action in renouncing their status as permanent residents of Singapore as going to the credibility of their claim for refugee status in New Zealand. That is, through the lens of s 138(2) of the Act, the Tribunal could have inquired as to the effect of that renunciation: for example, whether it is irrevocable, particularly given the father’s continued residence in Singapore. The Tribunal did not do that, and the RPO did not seek to challenge its decision on that basis. The only point raised on appeal was that good faith was a mandatory consideration in all appeals, with the effect that Fogarty J had been correct to remit that matter back (albeit on the wrong basis).
Conclusion
[68] For all those reasons, we reject the RPO’s argument that it is a necessary implication of the purpose and scheme of the Act that good faith is a mandatory consideration for the Tribunal on all appeals against a decision of an RPO declining, after consideration, an application for refugee status.
The Lazarus principle
[69] Finally, and as neither the RPO nor the YLs supported this aspect of Fogarty J’s reasoning, we record briefly our reasons for concluding that Fogarty J erred in using the Lazarus principle in the way that he did.
[70] As the YLs persuasively argued, doing so cuts across a carefully drafted legislative scheme. The significance of good faith or lack thereof has been dealt with expressly. This is not surprising given that consideration of good faith is a derogation from New Zealand’s international obligations. In those circumstances, there is no room for the application of some general common law principle in a way that neither those international obligations, nor their expression in domestic law, calls for.48
Result
[71] For those reasons, we allow the appeal.
48 The general rule is that common law principles cannot be imported into a statute where a contrary intention is apparent: Oliver Jones Bennion on Statutory Interpretation (6th ed, LexisNexis, London, 2013) at 929.
[72] The High Court order is set aside.
[73] The decision of the Immigration and Protection Tribunal granting the appellants refugee status is reinstated.
[74] The respondent must pay the appellants costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.
Solicitors:
Marshall Bird & Curtis, Auckland for Appellants Crown Law Office, Wellington for Respondent
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