High Court Cases

High Court Auckland CP310/98
18 September 1998; 6 November 1998; [2001] NZAR 209
Nicholson J

Judicial review - Fairness - Whether Refugee Status Appeals Authority (RSAA) under a duty to make enquiries and to investigate - Test for determining when RSAA under such duty - Factors to be taken into account by RSAA in determining whether to make enquiries or to investigate

Judicial review - Fairness - Mistake of fact - Date at which issue of mistake to be looked at - Whether appropriate to allow by affidavit material not before decision-maker and largely brought into existence after the impugned decision had been made and for the purpose of casting doubt on the substantive reasonableness of the decision

Judicial review - Fairness - Mistake of fact - Whether mistake of fact applies as a basis for judicial review when more than one view of the facts can reasonably be held - Circumstances in which it is relevant that the RSAA is a specialist tribunal

Procedure of RSAA - duty to investigate - whether RSAA under a duty to make enquiries and to investigate - test for determining when RSAA under such duty

The plaintiff, a citizen of (country deleted), claimed to be wanted by the police in (country deleted).  In support of this claim he produced copies of a field information report, a warrant of arrest and a summons to witness.  After hearing the plaintiff, the RSAA doubted whether court proceedings had in fact been commenced against the plaintiff and articulated four specific reasons for this finding.  The plaintiff brought judicial review proceedings and submitted that before making its assessment of the documents, the RSAA was under a duty to make proper enquiries as to the genuineness of the documents.  It was further submitted that the RSAA had made a mistake of fact.

Held:

1    Bearing in mind the RSAA's specialist knowledge and function and the difficulties of obtaining authentication of some documents, a court should not find the RSAA was wrong in failing to make enquiries about or investigating the authenticity of a document so as to be in breach of the principles of natural justice, unless it is clear that the RSAA's failure to make enquiries or to investigate was so unreasonable and unfair that no reasonable Authority would forgo the making of such further enquiry or investigation.  The practicability of reliably and promptly authenticating or updating a document would be a major factor in deciding reasonableness.  The result of such a stringent test will always depend upon the facts and circumstances of each particular case (see para [53]).

S v Refugee Status Appeals Authority (High Court, Wellington, CP203/97, 7 April 1998, Gallen J); Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 (FC:FC); Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 (Foster J); Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 (FC:FC); Garcha v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 55 (Mansfield J) referred to.

2    On the facts, the RSAA was not in breach of the principles of natural justice in failing to make enquiries about or investigating the authenticity of the documents.  It was doubtful whether such enquiries or investigation could have decided authenticity.  In the context of corrupt acts by officials, any statement by an official that he had in fact issued a suspect document at the time alleged, and in the circumstances alleged, would not necessarily assist the RSAA in deciding whether it was in fact an authentic document issued when, on its face, it states it was (see para [54]).

3    Although a party should have the opportunity to respond to an allegation which, with adequate notice, might effectively be refuted, the obligation to give such an opportunity will not arise if the risk of an adverse finding was foreseeable, since the allegation would not be a surprise and there would not be any prejudice to the applicant (see para [56]).

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) applied.

4    The issue of mistake of fact is to be looked at as at the date of the impugned decision.  In judicial review proceedings, the issue of error must be considered on the basis of what was before the decision-maker at the time the decision was made.  It is inappropriate to allow affidavit material which was not before the decision-maker and was largely brought into existence after the impugned decision had been made for the purpose of casting doubt on the substantive reasonableness of the decision (see para [60]).

Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Limited [1997] 1 NZLR 650 (CA); Taiaroa v Minister of Justice (High Court, Wellington, CP99/94, 4 October 1994, McGechan J) applied.

5    Mistake of fact does not apply as a basis for judicial review when more than one view of the facts can reasonably be held.  It was open to the RSAA to take the view it did on the material before it, and it is inappropriate on judicial review proceedings to allow the plaintiff to have a de novo hearing.  In addition, the RSAA is a specialist tribunal and its reasoning and conclusions on the material before it should not be revisited and alternative conclusions substituted unless there are strong and highly persuasive reasons to do so (see para [65]).

New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) applied.

Application for review dismissed

Other cases mentioned in judgment

Counsel
A Chauca for the plaintiff
Gina de Graaf for the second defendant

[Editorial note:  Significantly, the judgment records at length and with apparent approval, the principle factors ordinarily taken into account by the Refugee Status Appeals Authority in deciding whether to exercise its discretion to request the Refugee Status Branch of the New Zealand Immigration Service to obtain information, or to carry out an investigation in terms of paragraph 10, Part II of the Terms of Reference which came into force on 30 August 1993 and which has been carried forward into paragraph 11, Part II of the Rules Governing Refugee Status Determination Procedures in New Zealand which came into force on 30 April 1998.  Those factors are, in summary:

(a)  the potential for breaching the confidentiality obligation;

(b)  the potential that the making of an enquiry can render the refugee claimant a refugee sur place.  That is, the enquiry may place at risk a refugee claimant who would otherwise have no proper claim to refugee status;

(c)  delay;

(d)  practical difficulties;

(e)  even if an enquiry is made, the outcome may be problematical;

(f)  the veracity of documents or their content is often incapable of effective verification;

(g)  expense.

Subsequent to the delivery of judgment by Nicholson J the refugee determination procedures were placed on a statutory footing and the decision of the High Court must now be read in the light of the new Part VIA of the Immigration Act 1987.  The duty on a refugee status officer and on the Authority to make inquiries is the subject of express statutory provisions in the form of ss 129G(6) and 129P(2) of the Immigration Act 1987.  Under these legislative amendments the officer or Authority may seek information from any source but is not obliged to seek any information, evidence or submissions further to that provided by the refugee claimant and may determine the claim on the basis of the information, evidence and submissions provided by the claimant.

On an entirely different topic, the judgment of Nicholson J is not without difficulty.  It contains a statement (p 20) that the RSAA:

 "... is required to observe the principles of natural justice, the procedures and practice stated in the United Nations Handbook, and the New Zealand Terms of Reference."

NICHOLSON J

Application

[1] The plaintiff seeks judicial review of a decision of the Refugee Status Appeals Authority ("the Authority") delivered on 30 October 1997 in which it found that the plaintiff was not a refugee and accordingly declined to give him refugee status and dismissed an appeal by him against a decision of the Refugee Status Branch ("RSB") to that effect.

[2] The plaintiff seeks a declaration that the Authority's decision is invalid, an order directing the Authority to reconsider its decision and an order directing the Minister of Immigration not to take any step to remove the plaintiff from New Zealand pending a final determination of his refugee status claim. The plaintiff pleaded three causes of action:

I     Breach of natural justice.

2    Mistake of facts.

3    Breach of legitimate expectation.

[3] The plaintiff is a thirty-four year old single man from (City).  After leaving school in 1979 he worked as a (occupation).

[4] In 1991 the plaintiff met a Mr S who had returned to (Country) from New Zealand looking for workers to go to New Zealand.  Mr S applied on the plaintiff's behalf for a work permit from the New Zealand Government.  This was granted and on 29 December 1992 the plaintiff left (Country) and arrived in New Zealand on 2 January 1993.  He held a working permit valid for two years.  The plaintiff initially worked for Mr S's company but left that employment in 1993.  In August 1993 the plaintiff and other (Country) men who had been brought to New Zealand to work for Mr S's business commenced Court proceedings seeking return of their passports which were being held by Mr S, along with monies owing for their employment.

[5] The plaintiff engaged a lawyer, (lawyer's name), to act for him on employment and immigration matters.  (The lawyer) applied for an open work permit for the plaintiff on humanitarian grounds.  However, the plaintiff's work permit was revoked in October 1993.  On 9 November 1994 a removal order was served on the plaintiff.  In December 1994 he appealed to the Removal Review Authority against that order and (the lawyer) made submissions on his behalf in support of the appeal.

[6] On 10 August 1995 the plaintiff lodged an application for refugee status in New Zealand.  The appeal against the removal order had not been heard by then.  Essentially the plaintiff claimed refugee status on the basis of persecution by both the State and a political group in (Country), namely the (name of group). When the plaintiff's application for refugee status was declined by the Refugee Status Branch in January 1997, the plaintiff appealed to the Authority.  The appeal was heard on 21 April 1997 and the Authority delivered its decision on 30 October 1997.  The application for review was filed in June 1998.

[7] The nature, procedure and legal validity of the New Zealand Refugee Determination Scheme has been clearly and comprehensively defined by New Zealand Courts - Singh v Refugee Status Appeals Authority [1994] NZAR 193, Smellie J; Khalon v Attorney General [1996] 1 NZLR 458, Fisher J; B v The Refugee Status Appeals Authority Auckland Registry M 1600/96 15 August 1997, Giles J; and Butler v Attorney General CA 181/97 13 October 1997, Court of Appeal.

[8] The procedural issues of an appeal to the Authority are stated in a decision of the Authority delivered by R P G Haines Esq in Re RS (Refugee Status Appeals Authority, Auckland, Appeal 523.92, 17 March 1995).  The Authority stated its conclusion on procedural issues at p 27:
 

"1 A refugee claimant carries the burden of proving the claim to refugee status.

 2 The proceedings before the authority are non-adversarial and are in the nature of a de novo hearing.

3 On appeal, a refugee claimant does not have to establish that the decision at first instance by the Refugee Status Section was wrong.

If at the conclusion of the hearing the authority is in a state of equipoise, the benefit of the doubt principle requires that the appellant receive the benefit of that doubt."

"The definition of a refugee in Article 1A(2) of the Refugee Convention requires that the individual possess a "well-founded" fear of persecution.  The definition relevantly provides that a refugee is a person who:

'...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.'"

"In summary, before it can be said that a fear is well-founded, there must be a real chance of persecution.  There must be more than a remote chance of persecution occurring.  It follows that the standard of proof is much less than fifty per cent and can be as low as a ten per cent chance.  It is undesirable, however, to express chances in terms of percentages as this can be misleading. It is preferable to enquire whether there is a real chance as opposed to one which is remote.

The standard of proof is not only a low one, experience shows that genuine refugees are well able to meet this standard, particularly given the liberal application of the benefit of the doubt in relation to the 'real chance' question.  Our holding that the legal burden of proof is carried by the claimant does not, in the result, impose a burden of any great weight."

[11] In Khalon v Attorney General (supra), Fisher J expressed at p 463 four basic propositions of administrative law principles which applied to the Authority:

"(a) The authority performs a function which requires it to observe natural justice in general: see for example Daganyasi v Minister of Immigration [1980] 2 NZLR 130 (CA) and Chen v Minister of Immigration [1992] NZAR 261 (CA).

(b) It is a fundamental requirement of natural justice that a party be given a reasonable opportunity to present his or her case with knowledge of the case which he or she has to meet:  ibid; Kanda v Government of the Federation of Malaya [1962] AC 322. 337; Kioa v Minister for Immigration and Ethnic Affairs (1984) 55 ALR 669.

(c) The way in which that fundamental requirement is implemented will depend upon the context including the nature of the function which the decision maker is called upon to perform (see in particular the well-known dictum of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109, 118D) and the circumstances of the particular case which has come before that decision maker (Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, 506.

(d) In refugee cases only the highest standards of fairness will suffice since questions of life, personal safety and liberty are at stake: R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514, 531G (HL); Benipal v Ministers of Foreign Affairs & Immigration (High Court, Auckland, A 993/83, 29 November 1985, Chilwell J) and Singh v Refugee Status Appeals Authority [1994] NZAR 193."

[12] The plaintiff gave oral evidence and produced documents at the Authority hearing.

[13] In reviewing the plaintiff's case the Authority said:

"In August 1993 court proceedings were commenced by the appellant and other (Country) men, who had been brought to New Zealand to work for Mr S's business.  The men sought the return of their passports which were being held by Mr S, along with moneys owing in relation to their contracts of employment.

Consequently, at the end of 1993, the appellant received a letter from his family advising him that Mr S's brother and two other men had come to the family home threatening to kill the appellant because he had left Mr S's business and commenced court proceedings (in New Zealand) against him.  The family was told that the appellant had abused Mr S and that he should return to Mr S and work for him.  In the same letter, the appellant's family also advised him that (group) members were being arrested by the Government.

The appellant has since learnt that Mr S's brother visited the family once again in 1994 and has not visited the family since that time.  The appellant's parents never complained to the police about the visits from Mr S's brother as they were afraid of bringing trouble upon themselves.

The appellant speaks to his family on the telephone every eight to nine months.  In August 1995, one week after lodging his refugee application the appellant spoke to his family on the telephone and was advised that the police had visited the family looking for him.  This was the first time that the appellant had been told of police interest in him since he had been in New Zealand.  In this same conversation, the appellant was advised that a warrant had been issued for his arrest.  The appellant believes that police have visited his family three times in 1995 and the first visit was in August.  The appellant knew of one further visit to his family in January or February 1997 by the police but he was not aware of any visits beyond that.  The appellant had not contacted his parents since the elections in February 1997.

In January 1996, the appellant's lawyers provided the RSB with copies of the following documents:

1    Field Information Report dated 13 February 1992 (RSB file p 163).

2    Warrant of Arrest dated 27 December 1992 (RSB file p 165).

3    Summons to Witness dated 13 August 1992 (RSB file p 167).

All of the above documents have been signed on 19 November 1995 by Mr SANR, 'Notary Public, Advocate, High Court, (City), (Country).'

The Field Information Report was issued on the information of L police and states that the appellant and others, described as 'terrorist workers of the (group)' had kidnapped and murdered a man in an unknown vehicle.  The report alleges that as police approached to apprehend them, the appellant and the others allegedly opened fire on police and fled on foot.  The appellant and the others were also accused of setting fire to a taxi.  The appellant stated that the report was issued from the police station in which he was detained in 1990.  The appellant stated that he did not know any of the men referred to in the report and maintained that all allegations made were false and concocted by the H faction.

The Summons to Witness is issued by the 'Court of the Fourth Judicial Magistrate East (City)' and requires the appellant to appear in Court on 13 August 1992 to give evidence in relation to the allegations in the Field Information Report.  The Summons provides that a warrant will be issued to compel the appellant's attendance in the event that he fails to appear on 13 August.

The appellant explained that the summons was served on the family while he was in hiding in X. The document was not received by the appellant until over three years after it was issued as the original document served on the family had been torn and a further copy was obtained through the services of a lawyer.

The arrest warrant requires the appellant's production in court.  The appellant stated that the family only became aware of the existence of the arrest warrant in 1995 when the police had come to the house and advised the family that the warrant had been issued.  The family then attended the station and obtained a copy of the warrant.

At the conclusion of the RSB interview the appellant produced a copy of a letter dated 20 August 1996 from Mr AAM, 'Advocate of High Court, (City)', (RSB file p 175) in which he states:
 

'Mr [NK] father of [the appellant] has approached to me to proceed his son's case in (City). [The appellant] is my client and after scrutiny (sic) I found the papers like F.I.R., Summons and Warrant issued against him are original but the charges imposed on my client is completely political revenge.

... [the appellant's] case is in proceeding but due to present situation of (City) his case is in awkward position.  If he appears in (City) or in any part of (Country) his life will be in danger.' (sic)
 
 

The appellant did not know when his father first saw this lawyer nor did he know what action the lawyer was taking in relation to the case against the appellant.  The appellant himself had not requested that the lawyer take action to have the proceedings dismissed.  The appellant knew little about these matters as he felt that while he was in New Zealand he was safe.

The appellant feared returning to (Country) because of the court proceedings, and also because he feared that he would be troubled by the police because of his (group) membership.  The appellant believed that Mr S's brother would endeavour to kill him.  He also feared that the H faction would force him to join their group and he would be troubled by them due to the animosity between the two groups.

The appellant claimed that one man who had worked with the appellant in Mr S's business in New Zealand, had returned to (Country) and been arrested and tortured by the police along with his two brothers.  This person had been a member of the (group) and left the party in 1991.  The appellant feared the same would happen to him." pp 5-8

"The Authority had doubts as to whether court proceedings were in fact commenced against the appellant for the following reasons:

1   It seemed unlikely that the court documents would be issued in 1992 and yet the first time the appellant was told that the police came to the appellant's home to look for him was in August 1995 after he had applied for refugee status.  Furthermore the appellant stated that the first time his family were aware that an arrest warrant was in existence was in 1995 even though the warrant was issued in 1992 in relation to the appellant's failure to appear in court in February that year.  The timing of the appellant being told of police interest in him and the arrival of the court documents in New Zealand is highly dubious given that these events occurred after the appellant applied for refugee status.  The appellant's explanation that the summons was not sent earlier as the original document was torn and that a lawyer had to obtain a further copy, in the circumstances, is unconvincing.

If the court documents were genuine then one would have expected the police to have taken stronger action closer to the time the documents were issued.

2   All court documents have been notarised with a stamp containing the words:

'Notarized (sic) to take effect in all Continents out of (Country) Under International Law.'

It is extremely difficult to understand the actual meaning of this wording and furthermore why it has been applied to the documents.  The notation is inherently improbable using inappropriate and grandiose wording.  When asked to explain the appellant stated that he did not know anything about it.  The wording of the stamp does not have the appearance of being genuine and further reflects poorly on the authenticity of the documents.

3   The Authority is mindful of the letter from the lawyer Mr AAM but at the same time the Authority is concerned at the appellant's lack of knowledge as to what action this person was taking in relation to the proceedings against him.  The appellant stated that while he is in New Zealand he feels safe and he has not taken an interest in any of these matters.  In view of our concerns as to the timing of police visits to the family and the arrival of the documents and considering that the
appellant fears returning to (Country) in view of the court proceedings the Authority has great difficulty accepting the appellant's explanation.

4   The Authority notes that the appellant did not apply for refugee status until three years after arriving in New Zealand which further reflected poorly on the sincerity of his current claim.  When asked about this the appellant said:

'I felt safe, had a work permit and did not have enough money to get a lawyer.'

The Authority notes that the appellant's work permit was revoked in October 1993.  The appellant engaged the services of (lawyer), Barrister, to approach the RSB about this matter and the RSB file contains correspondence dating from late 1993 to early 1994 between (the lawyer) and the RSB on this issue.  Furthermore the appellant was served a removal order on 9 November 1994.  The appellant appealed against the order and engaged (the lawyer) to write submissions on his behalf in support of the appeal.  The appeal has not yet been determined.

It would appear that well before applying for refugee status the appellant's own status in New Zealand was uncertain due to the revocation of his work permit and the existence of the Removal order.  Notwithstanding his statement that he could not afford a lawyer it appears that he was able nevertheless to obtain legal representation on the two matters referred to.  His explanation for the delay in applying for refugee status is, in the circumstances, unconvincing.

In view of the matters raised above, the Authority can only reject the court documents produced by the appellant and the lawyer's letter as it purports to verify the court proceedings.  Accordingly the Authority does not accept that there are any court proceedings on foot against the appellant as he claims."

"If neither the Plaintiff nor his legal representative were to be given an opportunity to make explanatory comments on the issues above described the Authority has failed to make its own investigation as per the Terms of Reference (Refugee Status Determination Procedures), given that a decision on these matters would determine whether the Plaintiff is or is not persecuted by the State in (Country)."

"It is a general legal principle that the burden of proof lies on the person submitting a claim.  Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.  In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents.  Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.  Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.  Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof.  In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."

"The Authority may in relation to any matter properly brought before it, request the Refugee Status Section to do one or more of the following things:

(a)    Seek to obtain further information and report to the Authority; or

(b)    Carry out further investigations and report to the Authority; or

(c)    Request the presence of a particular witness or particular type of witness."

[19] Ms de Graaff submitted that the Authority had no duty to make enquiries or undertake investigation about the authenticity of the documents.  She relied upon the provisions of the New Zealand Terms of Reference, Court decisions and practical considerations.  She submitted that the very possibility of such a duty existing needed to be approached with a great deal of caution.

[20] Paragraph 10 of the New Zealand Terms of Reference prescribes:

"(1) The Authority may, in relation to any matter properly brought before it, request the Refugee Status Section to do one or more of the following things:
 
(a)    Seek to obtain further information and report to the Authority; or

(b)    Carry out further investigations and report to the Authority; or

(c)    Request the presence of a particular witness or particular type of witness.
 
 

(2) If, in the opinion of the General Manager of the New Zealand Immigration Service in any such case, it is not practicable to obtain or to seek to obtain the information or to carry out the investigation or request the presence of a witness, the Refugee Status Section shall report accordingly to the Authority."

[22] The issue of whether a refugee determining authority should obtain further information has been considered in one New Zealand case and some Australian cases.

[23] In S v Refugee Status Appeals Authority High Court Wellington Registry CP 203/97, 7 April 1998, Gallen J, reviewed a decision of the Authority declining refugee status to a citizen of xxxxxxx who had "jumped" a xxxx vessel and claimed that there was a real chance of his being persecuted if he was returned to xxxx.  In reaching its decision the Authority had relied on a report dated xxxxxxx from the Documentation Information and Research Branch, Immigration and Refugee Board of Ottawa relating to xxxxxx ship jumpers.  The report dealt with the likely penalty for ship jumping and said it depended on whether ship jumpers had left xxxx for economic or political reasons.  It said at p x:

"If individuals have left xxxx for economic or personal purposes and had not been involved in anti-Government activities in xxxx or abroad, they may face either no penalty or a light one .... "

"I have come to the conclusion that as a matter of law it understandably enough did not satisfy an obligation resting upon it to ensure that the material upon which it relied still represented the true picture of what might lie ahead for the plaintiff on his return to xxxx and that that material continued to provide an objective basis to discount the reality of the fears which it accepted he held."

[26] In considering whether that aspect gave rise to a question of law which would justify the Court in interfering, Gallen J found the question to be finely balanced but had regard (at p 24) to the decision of the Federal Court of Australia in Guo Wei Rong v Minister for Immigration and Ethnic Affairs and Another (1996) 135 ALR 421, which accepted there could in certain circumstances be investigative obligations on the Australian equivalent of the Authority.

[27] Australia, unlike New Zealand, has legislative provisions for refugee determination.  They are based upon and implement the 1951 Convention and 1967 Protocol and reflect the provisions of the United Nations Handbook.

[28] The Federal Court of Australia has considered whether a Refugee Determination Authority has investigative obligations in four reported cases.  In Guo Wei Rong v Minister of Immigration and Ethnic Affairs & Anor (supra at p 460), the Federal Court referred to and appeared to adopt para 196 of the United Nations Handbook and its statement "... the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.  Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application".  I set this paragraph out in full earlier.

[29] In Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179, the Federal Court considered the statutory provision requiring that in carrying out its functions, the Australian Refugee Review Tribunal ("the Tribunal") "must act according to substantial justice and the merits of the case." - s 420(2)(b) Migration Act 1958.  It found at p 180:

"There was no general rule of administrative law that an administrative decision-maker was obliged to make or cause to be made inquiries in areas which have been opened up by materials placed before her on behalf of an applicant.  Whether the absence of further inquiries was indicative of a reviewable error was entirely dependent upon the facts and circumstances of the individual case.

The requirement for further investigation found its origin in either the broad concept of natural justice or in unreasonableness principles in the sense that the circumstances could be such that no reasonable decision-maker would forego the making of further inquiry."

"It is primarily for the tribunal and not for this court, to determine whether additional investigation as to the integrity of such a document is or is not necessary.  There may be cases where a determination of the tribunal on that topic will indicate a failure to accord substantial justice under s 420(2)(b) (at least on the assumptions I have made above).  I do not think that the tribunal's reasons are, in any sense, insignificant or that it acted quite unreasonably or capriciously in deciding to not accept the warrant as genuine on the grounds specified.  Its reasons do not demonstrate that the tribunal overlooked the document, or treated its potential authenticity other than in a serious way.  Its assessment was based upon, and in the context of, the whole of the evidence before it.

Accordingly, on this aspect, I do not think that an error on the part of the tribunal is made out ..."

"In an application for review of a decision by the Minister for Immigration and Ethnic Affairs concerning an application for refugee status, the respondent submitted what purported to be copies of warrants of arrest for himself and his wife, in India.  The respondent had been detained and mistreated on many occasions by the Indian authorities as a direct result of his political activities, and he feared persecution on the grounds of religion and political opinion.  The warrants were a crucial part of the respondent's case as, if the alleged crimes for which they were issued were based on breaches of anti-terrorism or national security laws, that fact would have been of the utmost importance in determining whether the Refugee Review Tribunal (the tribunal) was satisfied that the respondent had a well-founded fear of persecution.  The tribunal did not conclude the warrants were forgeries, but their genuineness was doubted.  Although it would have been relatively simple for the tribunal to have the documents verified through official channels, no inquiries were made.  As a result the tribunal was unable to attach any weight to the arrest warrants."

"In our view the respondent has fallen short of showing that the tribunal's failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice.  The tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come.  The tribunal was given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic.  Moreover, although the failure to ask the tribunal to exercise its power to make inquiries could not be decisive, there is nothing to indicate that it was ever suggested to the tribunal by the respondent or by the migration agent who was assisting him that it should take any steps of its own to authenticate the documents in question.

Although we have concluded that there may be circumstances in which the tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that, where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the tribunal was under a duty to verify in such cases.  In a particular case the tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect."

[34] Ms de Graaff submitted that in considering the Authority's duty, the realism of its task and functions should be borne in mind and the limitation of "practicability" should not be underestimated.  The second defendant filed three affidavits describing the practicality aspect of the Authority's task.

[35] Ms CantIon, the Manager of the Refugee Status Branch of the New Zealand Immigration Service ("the Branch"), deposed that one of the Branch's functions was to assist the Authority.  The New Zealand Terms of Reference required the Branch "to obtain further information" or "carry out further investigations" in any case where the Authority requires it to do so.  The New Zealand Terms of Reference empower a general manager to make a decision about the practicability of such a request.  The general manager may decide it is simply not practicable to carry out a particular request and in such a case the Authority will be advised accordingly.

[36] When a request is received, the nature of the request is significant.  In some cases it may be possible to make enquiries directly to the officials in the country concerned.  The classic example of this would be a records check in another country.  For example, verification of whether or not a claimant has residence in another country.  In other instances, other channels would be necessary.  The Branch's options are limited, especially where the request relates to document verification or identity of the claimant.  The Immigration Service has only a limited number of branches overseas.  It does not have a branch in (Country).  If a request was received relating to (Country), the branch would have to approach its (City) office for assistance.  If that branch was unable to assist, it might request assistance from foreign embassies in the country in which it was based or the country concerned, such as Canada or Australia.  In Ms Cantlon's experience, such requests rely virtually entirely on the goodwill between the New Zealand Immigration Service and Embassy staff.  Despite that goodwill, requests tend to get a low priority, due to embassy staff's own workload.  Responses can take a very long time.  Theoretically, an approach could be made via New Zealand Diplomatic Post overseas, either through the Ministry of Foreign Affairs and Trade or directly to the post concerned.  Ms Cantlon's understanding is that the Ministry would charge for any assistance given to the New Zealand Immigration Service.

[37] Whether the request is handled by New Zealand Immigration Service staff or Ministry of Foreign Affairs staff abroad or Foreign Embassy staff, there are practical difficulties which arise, particularly in the Third World.  In this regard, the second defendant filed an affidavit by Mr R P G Haines.  Mr Haines is a barrister sole and has practised in the field of immigration law for twenty-six years.  He was appointed a member of the Authority when it was first constituted in 1991 and is currently Deputy Chairperson.  Mr Haines explained in a general way the principal factors ordinarily taken into account by the Authority in deciding whether to exercise its discretion to request the Branch to obtain information or carry out an investigation.  Those factors are confidentiality, refugees sur place, delays, practical difficulties, outcomes, verification difficulties, and expense.

[38] Mr Haines stated that confidentiality was the first and most important issue.  It is essential for refugee claimants to make full disclosure of all the circumstances relevant to their case.  However, for the genuine refugee, such disclosure will frequently expose either the claimant, family members, associates or similarly suited persons to the risk of persecution in the home country.  For that reason, confidentiality is vital to the functioning and integrity of the entire refugee determination process, and it is the practice of the Authority to assure all refugee claimants at the commencement of the appeal hearing that the Authority will treat all evidence and information as confidential.

[39] The second and related consideration is that the making of an enquiry can render the refugee claimant a refugee sur place.  That is, the enquiry may place at risk a refugee claimant who would otherwise have no proper claim to refugee status.

[40] Dealing with delays, Mr Haines deposed that in main, refugee claimants come from so-called Third World countries where the infrastructure is unsophisticated.  Communication by telephone, fax, E-mail and even by post, can be difficult to poor, particularly if the relevant part of the home country is remote, or if the country is prone to natural disasters which can drastically affect both communication and transport.  Language difficulties also contribute to delay.  The Authority is encouraged to deliver its decision within a period of eight weeks from the lodging of the appeal and it strives to do this.  The Authority is aware refugee claims should be determined as expeditiously as possible given the interest at stake and the distress caused to genuine claimants by unnecessary delay.

[41] Mr Haines deposed that experience has shown making enquiries in the home country can lead to inordinate delay.  Mr Haines instanced delays of fourteen months and eleven months for requests to the British High Commission in Dhaka for verification of documents purportedly issued by a Court in Bangladesh.

[42] Mr Haines described many practical difficulties.  Sometimes these difficulties are physical.  For example, long distances might have to be travelled over rugged terrain and there may not be many roads.  Often too, insurrection, civil war or even a culture of violence will place at risk the lives of individuals sent out to carry out the investigation.  In other countries, the opposite is true in that the degree of control by the State is so marked that it is dangerous for civil servants and citizens alike to speak to foreigners, especially foreign diplomatic staff.  There are also the problems inherent in carrying out an enquiry across a language barrier and it is usually inevitable that the enquiry process involves finding a trustworthy interpreter who is prepared to accompany the investigator.

[43] The situation is complicated by the fact that the enquiry is usually one dimensional.  That is, the request for information is usually specifically focused on a single issue, for example whether a certain event occurred, whether a particular document is genuine, whether certain matters are contained in a Court record.  Of necessity, the enquirer will not have access to the balance of the information before the Authority, or be aware of the wider context of the case.  The response, therefore, often cannot be understood by the enquirer in its context with the result that further questions which should have been asked are not, or further questions which are in fact asked are not material to the matter in issue.

[44] The fifth factor is that even if an enquiry is made, the outcome can be problematical.  The question or issue investigated may not have been fully or properly answered.  The results may be enigmatic or ambiguous at the best.  The refugee claimant might also properly object that the information is of no value as a response given to a diplomatic official will be so coloured by the desire of the person being interrogated to please, that the answer is worthless.  So in Refugee Appeal No. 70497/97 (28 May 1998) after a delay of 12 months, British diplomatic officials in Bangladesh reported that certain Court documents were false.  However, the claimant maintained that Bangladesh was full of corruption and in any event, Court officials would not be willing to disclose to a foreign official, evidence which would confirm that fabricated charges are brought against opponents of the Government.

[45] Mr Haines deposed that the corruption point is a telling one as it is not unknown for officials in many countries to issue entirely "genuine" documents, but which have been issued at the request of the refugee claimant or the family to lend authenticity to the claim.  Documents of this kind encountered by the Authority have included birth certificates, marriage certificates, death certificates, court documents, arrest warrants and the like.  Thus a warrant of arrest may well have been issued by a certain magistrate or by a certain court, but on payment of a bribe by the claimant's family, not on the due request of the Police.

[46] Mr Haines explained that the sixth factor was that often the veracity of the documents or their content is inherently incapable of effective verification.  For example, the Authority has over the years received a large number of solicited letters from practising lawyers in India, Bangladesh and (Country) where one has no reason to doubt the identity of the author, but where the contents of the letter are significantly at variance with the known facts or the facts being advanced by the appellant.

[47] In other words, it is not difficult to obtain letters from professionals in South Asia which are akin to testimonials or references which are effectively being written to order.  Investigation of these documents will almost inevitably lead to a claim that the contents are true, or to an assertion that the author of the document has merely recorded information supplied by a third party.

[48] There is always a real danger that what starts off as an enquiry into a limited, focused issue, will lead to an investigation of the whole factual substratum of the refugee claim.  There are real questions as to whether such enquiry can fairly or realistically be conducted by remote control, as it were, by an embassy official facing the considerable hurdles described and in the absence of both the decision-maker and the refugee claimant.

[49] Mr Haines pointed out that the seventh factor for consideration is expense.  The Authority is not funded by Government to carry out investigations, and this is recognised by the Terms of Reference and by the Rules which empower the Authority only to request information or the making of enquiries.  It has no involvement in or control over the decision-making process as to whether those enquiries or investigations will be carried out.  This is a decision made by the General Manager of the New Zealand Immigration Service when formulating an opinion on whether it is practical to obtain the information or to carry out the investigation.  Experience has shown the New Zealand Immigration Service is highly sensitive to the budgetary issues raised by such requests and to the apparently severe constraints imposed by Government on expenditure.  Mr Haines believes from what he has been told by Immigration Service officials, enquiries made by the Immigration Service through the Ministry of Foreign Affairs and Trade are charged for by the Ministry.  Regrettably, the cost issue permeates the entire refugee determination system, even to the basic level of obtaining the translation of documents.

[50] In describing the approach of the Authority Mr Haines said largely because of the considerations he outlined, 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.  Such information can be quite specific as can be seen from the material published by the Documentation Centre of the Refugee Division of the Canadian Immigration and Refugee Board.  At other times it is simply not possible to obtain any relevant or meaningful country information.

[51] Mr Haines concluded his affidavit by pointing out that the Authority is, of necessity, a non-adversarial and inquisitorial body.  Because of the evidentiary voids inherent in the subject matter of its enquiry, it cannot seek the high degree of evidentiary certainty which characterises conventional criminal and civil proceedings.  For this reason, the issue of well-foundedness of a fear of persecution is understood to involve an assessment whether there is a real chance of persecution and in this assessment, as in the assessment of credibility, the benefit of the doubt principle is applied liberally.

[52] The Authority is a specialist tribunal which is constantly assessing the credibility of appellants and witnesses and the authenticity of documents.  It is required to observe the principles of natural justice, the procedures and practice stated in the United Nations Handbook, and the New Zealand Terms of Reference.  Even allowing for its specialist function and knowledge in light of the earlier stated requirements, I agree with Gallen J in the S case, (supra) there may be circumstances in which a failure to make enquiries about or investigate the authenticity of a document may amount to a breach of the principles of natural justice.

[53] However, bearing in mind the Authority's specialist knowledge and function and the difficulties of obtaining authentication of some documents, I consider that a Court should not find the Authority was wrong in failing to make enquiries about or investigate the authenticity of a document so as to be in breach of the principles of natural justice, unless it is clear that the Authority's failure to make enquiries or investigate was so unreasonable and unfair that no reasonable Authority would forego the making of such further enquiry or investigation.  The practicability of reliably and promptly authenticating or updating a document would be a major factor in deciding reasonableness.  The result of such a stringent test will always depend upon the facts and circumstances of each particular case.  A Court might find breach where, for example, there had been a failure to get updated information from a readily obtainable reliable source such as occurred in the S (supra) case.

[54] In this case, because of the reasons given by the authority and having regard to the factors of impracticability as referred to by Mr Haines, I consider the Authority was not in breach of the principle of natural justice in failing to make enquiries about or investigate the authenticity of the documents.  Indeed, one wonders if such enquiries or investigation could have decided authenticity.  I particularly bear in mind the plaintiff's evidence that his father bribed the Police 5000 (money) to release the plaintiff from custody and not having been allowed to leave (Country) on 28 December 1992, the plaintiff was allowed to leave the following day by paying a bribe of 3,000 (money) to a police officer who arranged for officials not to prevent him from leaving.  In this context of corrupt acts by officials, any statement by an official that he had in fact issued a suspect document at the time alleged, and in the circumstances alleged, would not necessarily assist the Authority in deciding whether it was in fact an authentic document issued when, on its face, it states it was.

[55] Mr Chauca submitted that the Authority should not have made the decision not to make investigation or enquiry about the authenticity of the suspect documents without giving the plaintiff the opportunity to present further submissions or material to answer the Authority's concern about authenticity.

[56] However, as found by Fisher J in Khalon v Attorney General (Supra at p 459), although a party should have the opportunity to respond to an allegation which, with adequate notice, might effectively be refuted, the obligation to give such an opportunity will not arise if the risk of an adverse finding was foreseeable, since the allegation would not be a surprise and there would not be any prejudice to the applicant.

[57] In the present case, the risk of an adverse finding about the pertinent documents was clearly present before the start of the hearing.  Furthermore, the Chairman of the Authority at an early stage of the hearing raised with counsel for the plaintiff his concern about the authenticity of the "notarised" documents.  Counsel agreed about the unusualness of the notarisation and took the matter no further.

[58] I therefore find there was no breach of the principles of nature justice by failing to give an opportunity to present further submissions or material about the authenticity of the documents.

Mistake of fact

[59] The plaintiff alleges the Authority made four mistakes of fact in reaching its decision.  In respect of two of these alleged mistakes, he has filed documents which he obtained after the Authority's decision.  In respect of the other two, he has made further submissions through his counsel on the conclusions to be drawn from the evidence considered by the Authority.

[60] The issue of mistake of fact is to be looked at as at the date of the impugned decision - Taiaroa v Minister of Justice McGechan J, High Court Wellington, CP 99/94 4 October 1994.  In Judicial Review proceedings, the issue of error must be considered on the basis of what was before the decision maker at the time the decision was made.  It is inappropriate to allow affidavit material which was not before the decision-maker and was largely brought into existence after the impugned decision had been made for the purpose of casting doubt on the substantive reasonableness of the decision - Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650, 658 (CA).

[61] However, even if I were to have regard to the newly introduced material, it would not persuade me that the Authority's decision was wrong in such a way as to require a contrary decision or a rehearing.  In considering the authenticity of alleged Court documents produced for the hearing, the Authority considered a stamp on those documents which contained the words "Notarized to take effect in all continents out of (Country) under International Law".  The Authority commented that the notation was inherently improbable using inappropriate and grandiose wording and that such wording did not have the appearance of being genuine and further reflected poorly on the authenticity of the documents.

[62] In an affidavit sworn on 24 July 1998, the plaintiff said he had obtained from the law department, Government of (region), (City), (Country), a document which the plaintiff produced as an exhibit to that affidavit.  The document is addressed "To whom it may concern" and states:

"Every notary may use a seal of such form and design as 'Notarized to take effect in all continents out of (Country) under International Law' is recognised by Law Department, Government of (region), (Country)."

[64] As an exhibit to an affidavit which he swore on 26 June 1998, the plaintiff produced a copy of a publication of the US Department of State dealing with practices in (Country) and respect for civil liberties.  He submitted that this supported his evidence that he was able to leave (Country) by paying a bribe to a Police officer even though he was included in a list of people not permitted to leave (Country).  I consider that, even if this material had been before the Authority, it is unlikely to have influenced its decision about the plaintiff's credibility and its consequent findings.

[65] The other two alleged mistakes of fact involve submissions on behalf of the plaintiff that the Authority should have reached different views on the material before it.  Mistake of fact does not apply as a basis for judicial review when more than one view of the facts can reasonably be held - New Zealand Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 552 (CA).  I consider it was open to the Authority to take the view it did on the material before it, and that it is inappropriate on judicial review proceedings to allow the plaintiff to have a de novo hearing.  Also, I bear in mind the factor previously mentioned that the Authority is a specialist tribunal and its reasoning and conclusions on the material before it should not be revisited and alternative conclusions substituted unless there are strong and highly persuasive reasons to do so.

[66] I accordingly consider the plaintiffs mistake of fact points do not warrant this Court reversing the Authority's decision or ordering a rehearing.

Legitimate expectation

[67] The plaintiff pleaded:

"The plaintiff had a legitimate expectation that:

(a) By providing documentary evidence and notarisation of documentary material he was substantially discharging his onus of proving his claim as it relates to the authenticity of the documents produced.

(b) If the First Defendant would not accept the authenticity and/or veracity of the documents procured in evidence the Plaintiff would be given an opportunity to adequately explain matters before conclusions were drawn.

(c) If doubts existed as to the authenticity of any document produced which would be determinative in assessing persecution by the State the First Defendant would use its power to instruct an investigation with a view to clarify these doubts, or if it chose not to investigate the benefit of any doubt would be given to the Plaintiff."

[69] At the hearing Mr Chauca acknowledged this cause of action inter-mingled substantially with the first cause of action alleging breach of natural justice by failing to make investigation or enquiry.  In light of my finding on the first cause of action, that the duty of the Authority to make investigation and enquiry was limited to circumstances where it was so unreasonable and unfair that no reasonable authority would forego the making of such further enquiry or investigation, the plaintiffs legitimate expectation could only be that the Authority in this case would so act.  As stated, I find that the Authority did not breach that duty and therefore there was no breach of the plaintiffs legitimate expectation.

Conclusion

[70] The plaintiff has failed to establish any of his causes of action and accordingly I dismiss the application for judicial review.  The challenged decision of the Authority stands.

Solicitors for the plaintiff: Sandringham Law Centre
Solicitors for the second defendant:  Meredith Connell & Co