High Court Cases
High Court Auckland
CIV2005-404-1520
16 February 2006; 1 March
2006
Priestley J
Judicial review -
implausibility - finding of - principles of review
Judicial review -
credibility findings - implausibility - finding of - principles of
review
Judicial review -
deference to RSAA - challenge on grounds of unreasonableness
Judicial review -
approach to judicial review of RSAA decisions
Judicial review -
review not an appeal - challenge to credibility finding
Refugee Status
Appeals Authority - deference - when decision challenged on grounds of
unreasonableness
Held:
1. In
relation to decisions of the RSAA, the High Court has no jurisdiction
to exercise an appellate function. Interventions by way of judicial
review are the exception rather than the norm and will not occur unless
there is some clear descernible jurisdictional or process error. In
cases where the RSAA has made adverse credibility findings or found a
claimant's narrative to be implausible, intervention will obviously be
rare and unlikely (see paras [5] and [8]).
2. It is
not just the deference which the High Court will on occasions
appropriately accord to a "specialist tribunal" which is a factor. It
is the nature of the process of the Authority (see paras [9] to [15]).
3. At no
level did the plaintiff come anywhere close to the threshold of
judicial review. There was nothing on the face of the decision of the
RSAA which justified the challenge. The findings of the Authority were
clearly open to it and totally consistent with the materials available
to it, including the viva voce evidence
of the plaintiff and his witness and the documents the plaintiff
produced (see para [30]).
4. There
was nothing on the face of the RSAA decision to suggest that the RSAA
had inappropriately weighed any of the evidence it had before it. In
any event a judicial review application cannot possibly be used as a
guise to invite the High Court to reassess credibility issues and the
weight given to evidence (see para [37]).
Application dismissed
Other cases mentioned in judgment:
Chief Constable of the North Wales Police
v Evans [1982] 1 WLR 1155 (HL)
Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA)
Mercury Energy Ltd v Electricity
Corp of NZ Ltd [1994] 2 NZLR 385 (PC)
Minister of Foreign Affairs v
Benipal [1984] 1 NZLR 758 (CA)
Minister of Foreign Affairs v
Benipal
[1988] 2 NZLR 222 (CA)
Refugee
Appeal No. 1312/93 re GJ [1998] INLR 387 (NZRSAA)
Refugee Appeal No. 74665/03 [2005]
NZAR 60 (NZRSAA)
R v Immigration Appeal
Tribunal, ex parte Shah [1999] 2 AC 629 (HL)
Singh v Minister of Immigration
(HC
Auckland, 9 February 1998 M.1561/97, Williams J)
U and V v
Refugee Status Appeals Authority (High Court Auckland,
CIV2003-204-002530, 30 September 2003, Harrison J)
Counsel
M I Hanif for the
plaintiff
A R Longdill for
the
defendants
PRIESTLEY J
Overview
[1] For half a century
New Zealand has been a party to the 1951 Convention and the 1967
Protocol on the Status of Refugees. In addition to New Zealand‘s
international law obligations the Immigration Act 1987 (“the Act“) has
set up various procedures for determining refugee status.
[2] The Convention, which is effectively the source of the refugee jurisprudence which has evolved in New Zealand and other common law countries, appears in the sixth schedule of the Act. Section 129D(1) of the Act obliged refugee status officers and the Refugee Status Appeals Authority to act consistently with New Zealand’s obligations under the Convention.
[3] The evolution of the relevant statutory provisions and jurisprudence has occurred over the last 16 years. New Zealand’s geographic isolation, the fact that it is an island state, and the vast tracts of ocean which surround it made New Zealand‘s borders relatively easy to control in comparison with other First World states. Refugee claimants did not appear in New Zealand in significant numbers until the late 1980s. Refugee claims at that time were determined by an interdepartmental committee (See Minister of Foreign Affairs v Benipal [1984] 1 NZLR 758; [1988] 2 NZLR 222).
[4] At the apex of refugee status determination procedures sits the Refugee Status Appeals Authority (“the Authority”). In terms of s129Q(5) of the Act the Authority’s decision is final.
[5] The High Court, as is the case with other immigration decisions made under the Act, has no jurisdiction to exercise an appellate function. As with all administrative and delegated decisions, however, the Authority’s decisions are amenable to judicial review under the Judicature Amendment Act 1972. (Section 146A(1)).
[6] The distinction between an
appeal on the one hand and a judicial review application grounded on a
jurisdictional or process error is not difficult to comprehend.
Eight years ago, Williams J, drawing on both House of Lords and Privy
Council dicta, pithily summarised the basic principles applicable to
judicial review in the context of the Act in Singh v Minister of Immigration (HC
Auckland, 9 February 1998 M.1561/97):
[7] Rarely in recent years has this Court granted judicial review in respect of a decision of the Authority. Given the enormous pressure exerted by refugees on immigration officers both in New Zealand and in comparable states; given further the response of various legislatures to those pressures and to post-11 September 2001 security concerns; and given further interesting definitional problems which can arise in situations where a refugee claimant may well face persecution not fitting easily into the five stipulated article 1A(2) Convention grounds, review by the High Court and indeed appellate courts will from time to time be inevitable.
[8] Such interventions, however,
are the exception rather than the norm and will certainly not occur
unless there is some clear discernible jurisdictional or process
error. In cases where the Authority has made adverse credibility
findings or found a claimant’s narrative to be implausible,
intervention will obviously be rare and unlikely.
[9] In this latter regard the
comments of Harrison J in U and V v
Refugee Status Appeals Authority (HC Auckland 30 September 2003)
are worth repeating. I endorse them.
[10] It is not just the deference
which the High Court will on occasions appropriately accord to a
“specialist tribunal” which is a factor. It is the nature of the
Authority’s process. As was recognised by the Court of Appeal in Jiao v Refugee Status Appeals Authority (CA
167/02, 21 July 2003) the Authority has formidable experience (now of
some 15 years duration) and impressive information on which it can draw.
[11] The procedure of the Authority
is inquisitorial. Members thus have the opportunity to assess and
weigh the answers given (despite the fact that an interpreter is
invariably involved) against previous statements made at the refugee
status branch level of the Immigration Service, and frequently at the
border. The same assessment process occurs against available
country information and indeed against other similar refugee claims
involving applicants of the same nationality relying on similar grounds
and factual situations.
[12] Refugee applicants, who appear
with counsel or representatives have the added protection of
independent representation and the ability of counsel to clarify,
through questioning, answers given during the inquisitorial process.
[13] The Authority members undergo regular training
sessions. Their decisions are subject to a system of peer
review. As observed by Harrison J, members of the Authority are
not only legally trained s129N(3)(a) - (a contrast to the
Deportation Review Tribunal where only the Chair need be a lawyer) but
are expected to have some aptitude and interest in people, current
affairs, and foreign countries.
[14] It is thus unsurprising that
decisions of the Authority are not only treated with respect in New
Zealand courts but are frequently cited in overseas jurisdictions and
have on occasions been applied by the House of Lords.
[15] Lest the absence of such a
disclosure provoke some future snide comment by commentators or
counsel, I reveal that from 1991 until my appointment to this Court in
November 2000 I myself was a part-time member of the Authority.
That formal appointment, however, has not influenced my comments in
paras [10] – [14] all of which are correct and readily
ascertainable. Nor, of course, has my experience in the field of
refugee jurisprudence affected my approach to this proceeding.
Background
[16] The plaintiff is a
national of Bangladesh. He arrived in New Zealand on 6 March 2004
on a false passport. He was at that stage unmarried. He was
detained.
[17] On 22 April 2004 he was
interviewed in Mt Eden prison by a refugee status officer. He had
similarly been interviewed 10 days after his arrival, at which stage he
was uncertain if he wished to proceed with his refugee claim.
Refugee status was declined on 27 May 2004 which led to his appeal to
the Authority.
[18] A two day hearing took place
in July 2004. The plaintiff’s refugee claim was based on an
alleged well-founded fear of persecution were he to return to
Bangladesh on the Convention ground of his political opinion.
Born into a wealthy Muslim family in Bangladesh, and being a university
graduate to a Master’s level, the plaintiff claimed he had held office
at branch level of the Awami League, a Bangladesh political party.
[19] As is apparent from country
information contained in the materials before the Authority, political
activists attached to the various political parties of Bangladesh have
perpetuated a culture of violent physical demonstrations, brawls,
fights, occasional homicides and endeavouring to neutralise political
opponents by lodging false complaints with the Bangladesh police.
As is the case from time to time, when one political party achieves or
loses government office the political dynamic of activism on the street
changes. The “outs” demonstrate against the “ins”.
Significantly the dynamic is well known to any reasonably intelligent
and educated Bangladeshi who might be minded to claim refugee status in
a Western country.
[20] In the wake of the two day July
hearing the plaintiff’s then counsel wrote to the Authority with fresh
information. This information was to the effect the plaintiff was
a homosexual, had entered into a stable homosexual relationship with a
Bangladesh national whom he had met in the Bay of Plenty, and that news
of this relationship had filtered back to the plaintiff’s family in
Bangladesh who now, together with the plaintiff, were allegedly very
much at risk if he were to return to Bangladesh. Persecution on
the ground of his sexuality, in terms of the Authority’s jurisprudence,
falls inside the ambit of the Convention ground of persecution of “a
particular social group”. (See Refugee
Appeal No. 1312/93 re GJ [1998] INLR 387, 422 – 423; Refugee Appeal No. 74665/03 [2005]
NZAR 60; R v Immigration Appeal
Tribunal, ex parte Shah [1999] 2 AC 629, 643-644).
[21] To deal with this new ground,
the Authority reconvened on 24 November 2004 and conducted a further
hearing.
[22] The Authority comprised two
members, P J Andrew and S L Murphy. Its decision, delivered on 21
December 2004 is 18 pages in length and comprises 68 paragraphs.
The appeal was dismissed.
[23] When the plaintiff arrived in
New Zealand on 6 March 2004 and endeavoured to enter New Zealand on a
false passport he was informed that he would be charged with using a
false document. This information led to the plaintiff promptly
revealing his true identity and claiming refugee status. When
advised by the airport authorities that he would nonetheless be
detained pending determination of his refugee claim and the criminal
charges relating to the false passport, the plaintiff asked if he could
be returned to Bangladesh. This evidence, legitimately but
subject to appropriate weight, is inconsistent with a fear of returning
to Bangladesh because of persecution. It clearly weighed with the
Authority but was by no means the only factor which led to its
decision. Nor was it determinative.
[24] Dealing with the political
opinion limb of the refugee claim the Authority stated:
[25] The Authority then went on to
devote 13 paragraphs to the various inconsistencies in the plaintiff’s
evidence.
[26] On the aspect of the plaintiff’s homosexuality he claimed
that from the age of 12 he had had sexual relations with older
men. He also had sex with various cousins and with five members
of the Awami League. He had never disclosed to anyone he was a
homosexual (other than presumably to his various alleged partners) and
stated he had never had any sexual contact with a woman.
[27] These claims sit uneasily with
evidence filed in this Court. Twenty days after the Authority’s
decision was released the plaintiff married a Maori woman 22 years his
senior who sat with him in the public gallery throughout his
hearing. That, however, is irrelevant to the issue of whether the
Authority’s decision is vulnerable to judicial review.
[28] At the November 2004 hearing the Authority heard evidence from both the plaintiff and his alleged homosexual partner. The Authority found this evidence to be unreliable, inconsistent and implausible. The Authority additionally pointed to a number of differences between the statement filed by the plaintiff’s first counsel in August 2004 and the statement prepared by his new counsel and relied on at the hearing. Attempts were made by the plaintiff to explain these differences which the Authority did not accept.
Discussion
[29] Clearly for the plaintiff’s judicial review application to
have any prospect of success it would have to be demonstrated that the
Authority’s adverse credibility findings were procedurally flawed,
unreasonable, plainly not open to the Authority, or were
irrational. Such a challenge could also be linked to some flawed
process such as failure to observe the rules of natural justice,
oppression, or bias. An exhaustive recital of potential grounds
is unnecessary.
[30] At no level does the plaintiff
come anywhere close to these thresholds. There is nothing on the
face of the Authority’s decision which justifies such a
challenge. The findings of the Authority were clearly open to it
and totally consistent with the materials available to it, including
the viva voce evidence of the plaintiff and his witness and documents
the plaintiff produced.
[31] Nor does a scrutiny of the
plaintiff’s amended statement of claim point to a viable
challenge. That document alleges the Authority breached the rules
of natural justice and “adopted errors of fact which had been made by
the refugee status branch”. The particulars, however, of that
claim relate to matters of weight and conflict.
[32] It was further alleged the
Authority breached the rules of fairness, and in particular placed
undue weight on the plaintiff’s statement that he would prefer to
return to Bangladesh rather than be detained or die in New
Zealand. Again no unfairness is discernible and the Authority was
perfectly entitled to give weight (being short of determinative weight)
to the plaintiff’s undisputed reaction when faced with the prospect of
incarceration in New Zealand for travelling on a false document.
[33] The amended statement of claim
further alleges the Authority “paid too much regard” to
credibility. This cannot possibly be legitimate grounds of attack
in a situation where the Authority, with stated reasons, decided the
plaintiff’s claims were not credible.
[34] Ten further pleaded attacks on
the Authority’s process follow. They are, with respect, no more
than attempts to repeat various aspects of the plaintiff’s narration
coupled with assertions that the Authority should not have dealt with
those aspects in the way it did. The jurisdictional or process
claims clearly necessary to justify judicial review are lacking.
[35] Counsel was invited to identify
what he considered to be the strongest points he could advance in
support of the proposition that the Authority’s decision could properly
be the subject of judicial review. His three points advanced by
way of submission were:
a) The Authority gave too much weight to
the plaintiff’s reaction at the airport to the prospect of imprisonment
in New Zealand.
b) Insufficient weight was given by the
Authority to the various false complaints made against the plaintiff by
his political rivals in the Bangladesh National Party (“BNP”),
(opponents of the Awami League).
c) The Authority’s decision was unfair
because, although the plaintiff gave evidence to the best of his
recollection, the Authority failed to give that evidence appropriate
weight.
[36] This valiant attempt by Mr
Hanif to salvage the situation advances matters not one iota.
Although it is clear from a portion of the Authority’s decision (supra
[24]) that the plaintiff’s stance at the airport was seen by it as
being inconsistent with a genuine fear of persecution, the Authority
was at pains to list a large number of other inconsistencies relevant
to both the political opinion ground and the social group ground.
The appellant’s stance was not solely determinative.
[37] With both that submission and
the third submission ((c) supra) weight is ultimately a matter for the
Authority to determine. There is nothing in the amended statement
of claim or on the face of the Authority’s decision to suggest that the
Authority has inappropriately weighed any of the evidence it had before
it. In any event a judicial review application cannot possibly be
used as a guise to invite this Court to reassess credibility issues and
the weight given to evidence.
[38] As to the written complaints
lodged by the BNP with Bangladesh police I have perused and considered
these. Copies of the documents were forwarded to the plaintiff,
purportedly by the Awami League, after his arrival in New Zealand .
These were mentioned by the Authority in paragraph [30] of its
decision. In respect of one first information report (“FIR”) the
complaint is clearly bogus. It alleges the plaintiff was
participating in an illegal gathering, fighting, theft, and demanding a
ransom, a month after he had arrived in New Zealand . The other
report alleging similar crimes under Bangladesh’s Penal Code on 2
February 2004.
[39] The Authority has not made any
finding on the authenticity of these documents but, in the context of
its overall assessment of the plaintiff’s claim as not credible and
implausible I do not for one moment consider the Authority erred in its
jurisdiction by choosing not to address these FIRs directly.
[40] Such FIR documents are easily
procured in Bangladesh. Their authenticity cannot be
verified. Although caution is needed in assessing all refugee
claims, such documents from South Asia, as apparent from many of the
Authority’s decisions, are regrettably acquired and fabricated to
assist claims. They are thus in many cases entitled to little
weight.
[41] I decline to speculate,
however, what weight if any, the Authority would have given to these
documents which it clearly considered. Given its findings overall
in relation to the political opinion limb of the plaintiff’s case, it
is safe to assume the omission of any specific finding on the FIR
documents is insignificant and the Authority was not minded to assess
the claim any differently.
[42] In short, the plaintiff’s attempt to attack the Authority’s decision by a judicial review proceeding is hopeless. No grounds for attack are made out. The proceeding accordingly must be dismissed.
Result
[43]The plaintiff’s
application for judicial review is dismissed.
Costs
[44] Counsel for the defendants
(the first defendant abiding by the decision of the Court), sought a
reservation of costs.
[45] If costs are to be pursued by
the successful defendant or cannot be resolved, a memorandum must be
filed by counsel for the second defendant within 28 days with a
memorandum in reply 14 days thereafter. In the absence of any
indication to the contrary by counsel I am happy to deal with the costs
in chambers on the basis of such memoranda.