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GA v Refugee Status Appeals Authority

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

The plaintiff, a citizen of Bangladesh, initially advanced a claim to refugee status based on his political opinion. Following a two day hearing before the Refugee Status Appeals Authority (RSAA) counsel wrote to the RSAA with fresh information to the effect that the plaintiff was a homosexual and had entered into a stable homosexual relationship with a Bangladesh national whom he had met in New Zealand, 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 were he to return to Bangladesh. To deal with this new ground, the RSAA reconvened and conducted a further hearing. In the written decision delivered one month later the appeal was dismissed on credibility grounds.

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):

Judicial review, as the House of Lords held in Chief Constable of the North Wales Police v Evans [1982] 1 WR 1155, 1173 (as endorsed by the Privy Council in Mercury Energy Ltd v Electricity Corp of NZ Ltd [1994] 2 NZLR 385, 389):

‘is concerned not with the decision but the decision-making process.  Unless that restriction on the power of the Court is observed, the Court will.. under the guise of preventing the abuse of power, be itself guilty of usurping power’

Broadly put, on judicial review the Court may only intervene if the decision or the decision-making process exceeds the Authority’s power, is procedurally unfair or is based on a misunderstanding of the facts, or discloses an error of law, or if it has taken irrelevant matters into account or is so unreasonable no rational authority could reach it.

[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.  

[14]    The practical context is this.  The Authority’s members are barristers, trained and experienced in the art of human evaluation.  They enjoy specialist expertise in this important area of the law, and a working familiarity with the reasons variously given by those wanting asylum.  That is not to suggest that the approach adopted by its members is clouded by cynicism, but to recognise the value of their knowledge and insight which a Judge on review cannot hope to replicate.  Accordingly, the RSAA’s factual decisions are entitled to particular respect, and a person challenging them faces a high hurdle in proving unreasonableness.

[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.

[8]    It does not of course follow from the discretions conferred on the officer and the Authority and from the contrast with the duties imposed by the other provisions on the applicant and appellant that the officer and the Authority need never use those discretions to seek information.  The Authority has decided over 6000 cases since it was established in 1991.  Over that time, it has no doubt built up considerable institutional knowledge.  Its librarians, according to its latest annual report, provide country information to its members, refugee status officers and lawyers.  The members and officers do in practice draw on such information as indeed is to be seen in the present case.  And circumstances may require them to consider whether to exercise those powers in respect of specific matters arising in a particular case.

[per Keith J]

[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:

[34] The appellant’s account was riddled with implausibilities and inconsistencies.  He was evasive and his account was mobile.  This, in combination with his request to return to Bangladesh when facing detention in New Zealand, leads the Authority to conclude that his account of the events precipitating his departure is not true, and that he does not have a well founded fear of persecution in Bangladesh.                          [Emphasis added]

[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.

Solicitors for the plaintiff: M I Hanif, Barrister (Auckland)
Solicitors for the defendants: Meredith Connell (Auckland)