High Court Cases 

High Court Auckland M 917-SW00; [2001] NZAR 343
28 August 2000; 20 September 2000
Chambers J
 
Judicial review - admission of new evidence on review - whether further medical evidence admissible

Judicial review - credibility findings - whether obligation on refugee claimant to obtain reliable evidence from other sources to substantiate claim to refugee status - obligation on claimant to ensure that all information, evidence and submissions in support of application provided - Immigration Act 1987, s 129P(1)

Judicial review - duty to investigate - whether RSAA under duty to seek information, evidence or submissions further to that provided by refugee claimant - whether RSAA entitled to determine appeal on basis of information, evidence and submissions provided by the claimant - Immigration Act 1987, s 129P(2)

Judicial review - relevant considerations - whether judicial officer must refer to every specific item of evidence when giving reasons for decision - whether distinction between taking into account relevant considerations and taking into account particular pieces of evidence

Medical evidence - cross-examination - whether obligation on decision-maker to cross-examine medical witness

The plaintiff, a citizen of Sri Lanka, was declined refugee status by a refugee status officer and appealed to the Refugee Status Appeals Authority (RSAA).  His appeal was dismissed on credibility grounds.  In the High Court the plaintiff submitted that the decision was irrational as the admitted inconsistencies in his evidence were not a result of lying but rather stemmed from the lack of an interpreter at certain times and to the fact that the plaintiff was diagnosed as having post-traumatic stress disorder.  Further medical evidence was tendered to the High Court.  It was argued that the RSAA could not disregard the post-traumatic stress disorder without cross-examining the medical witness on the point.  It was also submitted that the RSAA was under a duty to have sought further information.  Finally, it was said that the RSAA had failed to take into account the fact that the plaintiff's daughter was living in an orphanage in Sri Lanka.

Held:

1.    The additional medical evidence would not be taken into account as the focus of enquiry must be the integrity of the earlier decision-making process (see para [7(a)]).

Roussel Uclaf Australia Pty Limited v Pharmaceutical Management Agency Limited [1997] 1 NZLR 650, 658 (CA) applied.

2.    In any event, the additional medical material was irrelevant.  Even if the plaintiff did suffer from the disorder, at best all that would do was to provide perhaps some explanation for all the inconsistencies in his various accounts.  It would not make any particular account true.  If the plaintiff did have difficulty in recalling crucial events and such difficulty stemmed from the disorder, it was incumbent on him or his counsel to get reliable evidence from other sources to substantiate his assertion that he met the test for refugee status.  Insofar as he had attempted to provide independent evidence, the RSAA had found such evidence to be suspect, as it was entitled to do (see para [7(b)]).

3.    The challenge to the RSAA's decision was misconceived.  It was common ground that there were inconsistencies in the plaintiff's accounts, with the consequence that the RSAA could not be satisfied that he did meet the refugee test.  The RSAA was entitled to reject his evidence and was not acting irrationally in so doing.  The obligation under the Immigration Act 1987, s 129P(1) was on the plaintiff to ensure that all information, evidence and submissions in support of his appeal were provided to the Authority.  The RSAA was not obliged to seek any information, evidence or submissions further to that provided by the plaintiff and was entitled under s 129P(2) to determine the appeal on the basis of the information, evidence and submissions provided by the plaintiff (see para [8]).

4.    There was no obligation on the RSAA to cross-examine the medical witness and there was no obligation on the RSAA to reconvene the hearing for that purpose (see para [10]).

5.    It was clear that the RSAA had appreciated that the plaintiff's daughter remained in Sri Lanka.  It may well be that the RSAA had not specifically referred to her being in an orphanage but that did not mean that that evidence was not considered.  A judicial officer does not have to refer to every specific item of evidence when giving the reasons for his or her decision.  The submission for the plaintiff confused taking into account relevant considerations with taking into account particular pieces of evidence.  The relevant consideration which the RSAA was obliged to take into account was whether the plaintiff faced a real chance of persecution should he return to Sri Lanka.  It was clear that the RSAA had taken that consideration into account (see paras [13] & [14]).

Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225, 236 referred to.

Application for review dismissed

Other cases mentioned in Judgment

[No other cases were mentioned]

Counsel

C Tennet and M Bell for the plaintiff
M Treleaven for the defendants

[Editorial note: The decision in Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 was applied in Muralidharan v Minister for Immigration and Ethnic Affairs (1995) 40 ALD 265, 269.  Similarly, in Tawfik v Canada (Minister of Employment & Immigration) (1993) 26 Imm LR (2nd) 148 (FC:TD) it was held that there was no necessity for the Immigration and Refugee Board to refer in detail to all of the evidence before it.  The IRB had recognised expertise, and unless its conclusions of fact from all the evidence before it could be said to be capricious or perverse, the Court should not intervene.  The duty of a tribunal such as the Refugee Status Appeals Authority to make enquiries was considered by a single judge of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [13] (McHugh J) (HCA).]
 
CHAMBERS J

Introduction

[1] Mahindaratna Kanahaarachige Don, the plaintiff, is a Sri Lankan.  He arrived in New Zealand on 18 May 1997.  On 10 July 1997, he sought refugee status.

[2] On 27 January 2000, a refugee status officer decided that the plaintiff was not a refugee.  The plaintiff appealed.  The Refugee Status Appeals Authority heard his appeal on 5 April.  On 1 June, the plaintiff's appeal was dismissed.  Because a decision of the Authority is final (Immigration Act 1987, s 129Q(5)), the plaintiff brought an application for review of the Authority's decision pursuant to the Judicature Amendment Act 1972.  It is that application with which I am concerned.

The issues

[3] The plaintiff sought relief on 2 bases:

(a)    He said that the Authority's decision was in the circumstances 'irrational in the sense that no sensible decision-maker, acting with a due appreciation of his/her responsibilities would have arrived at [it] and it is thereby flawed'.  The basis of the irrationality was said to be the Authority's finding that the plaintiff lacked credibility.  The plaintiff, through his counsel, Mr Tennet and Ms Bell, said that the admitted inconsistencies in his evidence were not a result of lying but rather stemmed form 'the lack of an interpreter at certain times and to the fact that the plaintiff was diagnosed as having Post-Traumatic Stress Disorder'.

(b)    The second failure on the Authority's part was said to be a failure 'to take into account the evidence that the plaintiff's very young daughter is living in an orphanage in Sri Lanka'.  It was said that the Authority failed to consider why the plaintiff had not returned to Sri Lanka to take care of his daughter and that the fact that he had not added 'compelling weight to his refugee claim'.

[4] There was no dispute that the plaintiff had the responsibility of establishing his claim.  Section 129P expressly so provides.  The plaintiff did not establish his claim.  He was the only witness and, unfortunately for him, the Authority did not believe a word he said.  The Authority gave its reasons as to why it did not believe him.

[5] The first ground of review accepts that there were inconsistencies in the various accounts the plaintiff had given.  Mr Tennet sought to explain these on two different bases.  First, 'the lack fo an interpreter at certain times'.  The Authority was aware of that assertion:  see paragraph 25(b) of its decision.  The Authority concluded, however, that that was not a satisfactory explanation for all the inconsistencies.  It is clear from reading the Authority's decision that many of the inconsistencies found by the Authority had nothing whatever to do with the lack of or inadequacies of an interpreter.

[6] The second explanation for the admitted inconsistencies advanced by Mr Tennet was 'the fact that the plaintiff was diagnosed as having Post-Traumatic Stress Disorder'.  It is  not correct that the plaintiff had been diagnosed as having that disorder.  The plaintiff put before the Authority a medical report dated 8 May 2000 from Dr Denis de Castro.  Dr de Castro did not diagnose post-traumatic stress disorder.  He merely indicated that, based on what he had been told by the plaintiff, the plaintiff exhibited 'typical cognitive features of post-traumatic stress disorder and probable stress-related headaches'.  This is far from being a diagnosis.

[7] Since the Authority's decision, the plaintiff has tried to bolster that initial report with additional medical evidence.  I do not take that additional evidence into account for the following reasons:

(a)    The focus of my enquiry must be on the integrity of the earlier decision-making process.  As the Court of Appeal said in Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] NZLR 650 at 658:
 
'New opinion evidence, not presented to the decision maker, can seldom help to demonstrate that a decision on what is essentially an evaluation exercise, was unreasonable when made.  It is not appropriate to allow in this material which was not before the decision-maker, and was largely brought into existence after the impugned decision was made, and to do so essentially for the purpose of casting doubt on the substantive reasonableness of the decision.'
 
(b)    In any event, the additional medical material is irrelevant.  Even if the plaintiff does suffer from the disorder, at best all that would do is provide perhaps some explanation for all the inconsistencies in the plaintiff's various accounts.  It would not make any particular account true.  That was precisely the point the Authority made at paragraphs 27 and 28 of its decision when it considered the evidence relating to this disorder.  Clearly, if the plaintiff does have difficulty in recalling crucial events and such difficulty stems from this disorder, it was incumbent on him or his counsel to get reliable evidence from other sources to substantiate his assertion that he met the test for refugee status.  In so far as he did attempt to provide independent evidence, the Authority found such evidence to be suspect, as it was entitled to do.

[9] Mr Tennet, in his submissions to me, attempted to widen the grounds for the irrationality attack.  There is nothing in any of the additional points.  First, it was said that the Authority failed to assess whether the plaintiff was a refugee.  That is not correct.  The Authority found that it could not believe the plaintiff given the differing versions he had given as to what had happened to him.  In those circumstances, in the absence of other reliable, independent evidence, the Authority was not satisfied that the plaintiff had established a 'well-founded fear of being persecuted'.

[10] Secondly, there is a suggestion that the Authority was obliged to seek further information if it was not satisfied with the plaintiff's evidence.  Mr Tennet suggested that the Authority should have sought further information from a Sri Lankan Member of Parliament who had written a letter put in evidence by the plaintiff.  There was no such obligation on the Authority:  see s 129P(2).  Mr Tennet submitted that the Authority was not entitled to discount post-traumatic stress disorder 'without cross-examining an expert of the point'.  Again, that is not accurate.  There was no obligation on the Authority to cross-examine Dr de Castro.  There was no obligation on the Authority to reconvene the hearing for that purpose.

[11] Finally, Mr Tennet submitted that the Authority had breached s 27 of the New Zealand Bill of Rights Act 1990 in failing to accord 'the principles of natural justice' to the plaintiff.  Again, that submission is wrong.  The Authority conducted the appeal in accordance with Part VIA of the Immigration Act and in accordance with the Refugee Convention.

[12] The first ground of attack must fail.

Failure to take into account relevant consideration

[13] The second failure on the Authority's part was said to be a failure 'to take into account the evidence that the plaintiff's very young daughter is living in an orphanage in Sri Lanka'.  There is nothing in this point.  It is clear that the Authority did appreciate that the plaintiff's daughter remained in Sri Lanka.  In paragraph 2 of the decision, there is reference to the plaintiff's child remaining in Sri Lanka.  The child is again referred to in paragraph 16.  It may well be that the Authority did not specifically refer to her being in an orphanage but that does not mean that that evidence was not considered.  A judicial officer does not have to refer to every specific item of evidence when giving the reasons for his or her decision.

[14] Mr Tennet's submission confuses taking into account relevant considerations with taking into account particular pieces of evidence.  The relevant consideration with the Authority was obliged to take into account was whether the plaintiff faced a real chance of persecution should he return to Sri Lanka.  It is clear that the Authority did take that consideration into account.  The Authority found that the plaintiff had not made out his case.  My conclusion on this aspect is on all fours with that of Carr J in Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236.

Result

[15] The application for review is dismissed.

Costs

[16] Neither party addressed me on costs.  I express a preliminary view.  This would seem to be a category 2 proceeding.  My preliminary view is that the plaintiff should pay costs to the second defendant.  If the parties cannot resolve costs between them, memorandums may be filed.

Signed at 2.30pm on 20 September 2000

Solicitors for the applicant Marshall Bird & Curtis (Auckland)
Solicitor for the defendants: Crown Solicitor (Auckland)