High Court Cases

High Court Auckland M 207-PL02; [2002] NZAR 845
12 June 2002; 29 July 2002
Potter J

Treaties - interpretation of domestic legislation to be consistent with international obligations - Immigration Act 1987, s 129A

Judicial review - duty to investigate - whether Refugee Status Appeals Authority (RSAA) under a duty to make enquiries and to investigate - s 129P(2)

Immigration Act 1987 - responsibility to establish refugee claim - meaning of - whether a burden of proof - Immigration Act 1987, ss 129G(5) and 129P(1)

Procedure of RSAA - burden of proof - responsibility to establish refugee claim - meaning of - whether a burden of proof

Procedure of RSAA - inquisitorial procedure - whether tribunal may adopt either an inquisitorial or adversarial procedure or some combination of both

The plaintiff, a citizen of the Peoples Republic of China, was unsuccessful in his claim to refugee status.  On judicial review the issue was whether refugee status claimants (claimants) bear the onus of proof.

Held:

1    Section 129P(1) of the Immigration Act 1987 means that the claimant bears the onus of proving his or her claim before the Authority (see para [40]).

2    Section 129G of the Immigration Act 1987 clearly distinguishes between, and provides separately for, the claimant's responsibility to establish the claim to be recognised as a refugee and the claimant's duty to make the claim, to provide information relevant to the claim, to state the grounds for the claim, and to ensure that supporting information, evidence and submissions are placed before the refugee status officer.  The broad scope of the latter duties means that, when read in context, the statutory phrase - "It is the responsibility of the claimant to establish the claim" - should not be construed as simply conferring an obligation to establish what the claim is.  Such an interpretation would create an unnecessary redundancy in the statutory language: by performing the various duties set out in s 129G(2) and (3) and the balance of (5) the claimant has already established what the claim is.  See paras [22] & [23].

3    Reading the statutory phrase as imposing a burden of proof on the claimant affirms the situation prior to legislative intervention, avoids creating redundancy in the statutory language, and reflects the language used by the legislature (see para [24]).

4    The fact that a refugee status officer has broad powers of inquiry under ss 129G(6) and (7) is not inconsistent with the imposition of a burden of proof.  The officer is not prevented by strict adversarial process from assisting the inquiry into refugee status, but the evidential obligation remains that of the claimant regardless of the extent to which the officer exercises his or her powers of inquiry (see para [25]).

5    Sections 129G(5) and 129P(1) are identical in all practical respects and must bear the same meaning (see para [26]).

6    The interpretation adopted will not place New Zealand in breach of its international obligations (see para [28]).

Refugee Appeal No. 72668/01 [2002] NZAR 649 (RSAA) referred to.

7    A tribunal may adopt either an inquisitorial or adversarial procedure, or some combination of both.  The role of the Refugee Status Appeals Authority (RSAA) is to determine whether the claimant should be recognised as a refugee.  There is no question as to the standard of proof that must be met; the question is whether the claimant is obliged to prove that the standard has been met.  Matters of statutory interpretation aside, it would seem very strange for the claimant not to be obliged to prove his or her case.  In any refugee status claim, the claimant will have almost exclusive access to the evidence necessary to prove the claim.  The Authority is obliged to determine whether the evidence before it satisfies the standard of proof.  In making that assessment the primary burden must be on the claimant to argue for and establish his or her position.  The Authority's powers to investigate may assist in fulfilling its role as adjudicator, but they do not shift the onus of proof onto the Authority itself (see para [36]).

T v Refugee Status Appeals Authority [2001] NZAR 749 (Durie J) disapproved and not followed.

8    The legislation bestows on the RSAA broad powers of inquiry which it may choose to exercise.  This reflects and preserves the situation prior to 1999 when the Authority effectively determined its own procedure.  The legislation explicitly states that the Authority may choose not to seek further information: s 129P(2)(b).  If it does not do so, the evidence on which it reaches its decision, will be that provided by the claimant.  The breadth of the Authority's powers of inquiry is not incompatible with the claimant bearing the onus of proof.  Further, a detailed survey of international practice demonstrates that the concept of burden of proof is utilised in inquisitorial systems (see para [37]).

T v Refugee Status Appeals Authority [2001] NZAR 749 (Durie J) disapproved and not followed. Refugee Appeal No. 72668/01 [2002] NZAR 649 referred to.

9    While the Authority has some of the powers of a Commission of Inquiry it is not a Commission of Inquiry and should not be expected to act as though it were.  The legislation grants the Authority broad powers of inquiry but imposes no obligation to seek information: the Authority is not itself obliged to establish or disprove the claim.  On the contrary, the only reference to establishing the claim indicates that the claimant is responsible for doing so.  This confirms the view that there is no inconsistency between the Authority exercising broad powers of investigation and inquiry and the claimant being obliged to prove his or her claim (see para [38]).

Attorney-General v Moroney [2001] 2 NZLR 652 applied.  T v Refugee Status Appeals Authority [2001] NZAR 749 (Durie J) disapproved and not followed.

Application for review declined

Other cases mentioned in judgment

Bajao v Chief Executive of the Department of Labour [2000] NZAR 185 (Wild J)
Butler v Attorney-General [1999] NZAR 205 (CA)
Refugee Appeal Nos. 1/91 Re TLY and 2/91 Re LAB [1992] NZAR 542 (RSAA)
Refugee Appeal No. 523/92 Re RS (17 March 1995) (RSAA)
R v Keyn (1876) 2 ExD 63

Counsel
Paul Chambers for the plaintiff
Mark Woolford for the defendant

POTTER J

Introduction

[1] This is an application for judicial review of the decision of the Refugee Status Appeal Authority ("the Authority"), dated 17 December 2001, rejecting Mr Jiao's appeal for refugee status.  Mr Jiao applies for review on the grounds that the Authority made an error of law in proceeding on the basis that a refugee status claimant bears the onus of proving his or her claim in the appeal process.

Background

[2] Mr Jiao is 42 years old and is a citizen of the People's Republic of China ("the PRC").  Mr Jiao's case was that he knew that a manager at his work was embezzling funds.  The manager had an influential father and threatened Mr Jiao because of his knowledge.  Mr Jiao was involved in a workers' protest indirectly related to the embezzlement.  Subsequently he was arrested by the Police in connection with the workers' protest and the 1989 student riots.  He was beaten until he received a serious head injury and then taken to hospital, where he was diagnosed as being in a serious condition.  He states that he was unable to speak clearly as a result of the head injury.  Subsequently, he travelled to New Zealand where he has remained ever since.

[3] He was examined by a neurologist in July 2000, who could not determine whether he had suffered a head injury, although Mr Jiao's higher functions appeared to be abnormal.  Before the Authority, however, Mr Jiao's employer disclosed that they communicated adequately in English and that Mr Jiao was an excellent employee.  At the appeal hearing, Mr Jiao's speech was slurred but he answered all questions put to him.

[4] Mr Jiao says he fears that on return to China the manager, who has since moved to another work place, will carry out his threats.  He also fears that the Police will blame him for his manager's fraud and may bring up old allegations of his involvement in the workers' protest and the student riots.  In the time that he has been in New Zealand, his family have not been approached or threatened by the Police in relation to these matters.

[5] The Authority rejected Mr Jiao's appeal.  It rejected his assertion that there was a real chance of his manager causing him harm on his return to China.  It also rejected the claim that the possibility of Police investigation for fraud was persecution relevant to refugee status.  Further, the Authority did not accept that the Police would be interested in Mr Jiao for his political activities.  Finally, it rejected Mr Jiao's claim that he should be recognised as a refugee because his speech impediment would result in social ostracisation and unemployment in China.

The issue

[6] The central issue in this case is whether refugee status claimants ("claimants") bear the onus of proof before the Authority appeal process.  Counsel for the Crown, Mr Woolford, contended that s 129P(1) of the Immigration Act 1987 ("the Act"), which provides that in the appeal process "it is the responsibility of an appellant to establish the claim", clearly means that claimants must bear the onus of proof.  Counsel for Mr Jiao, Mr Chambers, contended that the statutory phrase in s 129P(1) means only that an appellant must establish what the claim is; it does not mean that he or she must prove the claim.

[7] Mr Chambers relied extensively on T v Refugee Status Appeals Authority [2001] NZAR 749, in which Durie J observed that it would be an error of law for the Authority to hold that claimants bear the onus of proving their claims.  Mr Woolford argued that this Court should not follow T and should instead find that the statutory phrase in s 129P(1) confirmed the situation that existed prior to 1999 when the Act was amended, in which refugee claimants were required to prove their claims.  Counsel helpfully referred the Court to the decision of the Authority in Refugee Appeal No. 72668/01 (5 April 2002), where this issue was extensively canvassed.

[8] This case turns, therefore, on whether the 1999 amending legislation requires a claimant to bear the onus of proving his or her claim.  My analysis of the legislation will be structured as follows.  First, I will consider the appeal procedure as it stood prior to 1999.  Second, I will examine the impact of the amending legislation, especially s 129(1), on that procedure.  Finally, I will consider the interpretation of s 129P(1) advanced in T.

The situation prior to legislative intervention

[9] Prior to the introduction of the current legislative regime in 1999, refugee status claims were addressed under the Crown prerogative.  The refugee claim process was established to meet New Zealand's obligations under the 1951 Convention Relating to the Status of Refugees ("the Convention").  The current legislative regime is also explicitly designed to ensure that New Zealand conforms to the Convention: s 129A.

[10] The Authority was established in late 1990 and heard its first appeal in 1991.  Over the next few years, various terms of reference were issued to regulate the refugee claim procedure.  The terms of reference did not state that claimants had to prove their claims.  Outside the scope of the terms of reference, the Authority was left to regulate its own procedure.

[11] In the early 1990's the Authority tried to avoid requiring claimants to prove their case, and attempted to conduct the hearings from the perspective of a traumatised and genuine claimant: see Refugee Appeal  Nos. 1/91 Re TLY and 2/91 Re LAB [1992] NZAR 542, 546.  Rising levels of fraud and obstruction made this impossible and led the Authority to decide, in 1995, to require claimants to prove their claims: Refugee Appeal No. 523/92 Re RS (17 March 1995).  In that decision, the Authority reasoned that a failure to require claimants to prove their claims would facilitate abuse of the system and would frustrate the Authority's performance of its duties.  The imposition of a burden of proof was said not be an unreasonable obligation because the necessary standard of proof remained low, the Authority liberally applied the benefit of the doubt principle, and the proceedings were non-adversarial, which meant that the Authority and claimants shared the enquiry.

[12] This procedural approach was consistent with UN guidelines and with the Canadian approach.  The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at para 196 that "It is a general legal principle that the burden of proof lies on the person submitting a claim".  In Canada, that principle has been codified in s 8(1) of the Immigration Act 1985 (Canada).

[13] The Court of Appeal closely scrutinised this extra-statutory procedure in Butler v Attorney-General [1999] NZAR 205 (CA).  The Court requested legislative codification of the refugee claim process to provide explicit guidance to the participants within the system.  The Court appeared to endorse the Authority's procedure, pursuant to which refugee status claimants were required to prove each element of their claim.  The salient passage in the judgment states, at p 213, that "A person claiming refugee status has the burden of establishing the elements of the claim".

[14] Thus, from 1995 and prior to the legislative intervention in 1999, it appears that the Authority did require that refugee status claimants prove their claims.  There is no reason to believe that this was inconsistent with the Convention, especially given the fact that Article 31.1 of the Convention requires claimants "to show good cause for their illegal entry or presence".

The amending legislation

[15] On 1 October 1999, the legislature responded to Butler by enacting Part VIA of the Act ("the 1999 amendment").  The new legislation established a statutory regime to govern the refugee status claim process.  The Act provides for claims to be determined by refugee status officers at first instance and for appeals against those decisions to be heard by the Authority.  It is necessary to examine the procedure prescribed by the 1999 amendment in some detail.

[16] Section 129B(1) states that a "claim means a claim in New Zealand to be recognised as a refugee in New Zealand".

[17] Section 129G regulates the making of a claim and the procedure that refugee status officers are to follow in determining the claim (emphasis added):

129G. How claim made and handled

(1) A claim is made as soon as a person signifies his or her intention to seek to be recognised as a refugee in New Zealand to a representative of the Department of Labour or to a member of the Police.

(2) Once a claim is made, the claimant must, on request by a refugee status officer, confirm the claim in writing in the prescribed manner.

(3) A claimant must as soon as is possible endeavour to provide to an officer all information relevant to his or her claim, including—

(a) A statement of the grounds for the claim; and

(b) An indication of whether any other members of the claimant's immediate family who are in New Zealand are also seeking recognition as refugees and, if so, whether any such claim is on different grounds.

...

(5) It is the responsibility of the claimant to establish the claim, and the claimant must ensure that all information, evidence, and submissions that the claimant wishes to have considered in support of the claim are provided to the refugee status officer before the officer makes a determination on the claim.

(6) For the purpose of determining a claim, an officer—

(a) May seek information from any source; but

(b) Is not obliged to seek any information, evidence, or submissions further to that provided by the claimant; and

(c) May determine the claim on the basis of the information, evidence, and submissions provided by the claimant.

(7) Subject to this Part and to any regulations made under it, and to the requirements of fairness, an officer may determine his or her own procedures on a claim.

129P. Procedure on appeal

(1) It is the responsibility of an appellant to establish the claim, and the appellant must ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are provided to the Authority before it makes its decision on the appeal.

(2) The Authority—

(a) May seek information from any source; but

(b) Is not obliged to seek any information, evidence, or submissions further to that provided by the appellant; and

(c) May determine the appeal on the basis of the information, evidence, and submissions provided by the appellant.

...

The meaning and effect of the legislation

[20] The material question is whether the new legislation altered the pre-existing procedure whereby claimants were required to prove their claims.  To answer this question, I will analyse the first instance procedure mandated by s 129G, before determining how, if at all, this varies from the appeal procedure under s 129P.

[21] The definition of "claim" set out in s 129B means that s 129G(5) (and also s 129P(1)) must effectively be read as placing on the claimant the responsibility to establish the claim in New Zealand to be recognised as a refugee in New Zealand.  Section 129G also obliges the claimant to perform the following duties:

(a)    Confirm the claim in writing: s 129G(2);

(b)    Provide the refugee status officer with all information relevant to the claim including a statement of the grounds for the claim: s 129G(3); and

(c)    Ensure that all information, evidence and submissions that the claimant wishes to have considered be placed before the refugee status officer before the officer makes his or her decision: see the balance of s 129G(5).

[23] Moreover, in contrast to the statutory duties mandated by s 129G, the statutory phrase in s 129G(5) is expressed in language that indicates less of a mandatory duty and more of an evidential burden of proof.  If the phrase were intended to communicate merely a duty to establish what the claim is, rather than an obligation to prove that the claim meets the necessary standard of proof, then it would be logical for the phrase to follow the language of s 129G(2)(3) and the balance of (5).  Those subsections all state that the "claimant must ..." perform a duty.  By contrast, this phrase places responsibility on the claimant to establish the claim.  This suggests that unlike a duty to provide information or co-operate with officials, the phrase places on the claimant the evidential onus, which may or may not be discharged, of proving that he or she should be recognised as a refugee.

[24] Reading the statutory phrase as imposing a burden of proof on the claimant affirms the situation prior to legislative intervention, avoids creating redundancy in the statutory language, and reflects the language used by the legislature.

[25] My conclusion that the phrase in s 129G(5) bears this meaning is not undermined by the inquisitorial nature of refugee status claim proceedings.  Pursuant to ss 129G(6) and (7), the officer has broad powers of inquiry, but is not obliged to use them, and may determine his or her own procedure.  That the officer may go beyond the materials provided by the claimant emphasises that the legislature intended to retain a flexible inquisitorial procedure.  However, this is in no way inconsistent with the imposition of a burden of proof.  The claimant, as the person seeking to be recognised as a refugee, bears the onus of proving, in accordance with the accepted standard of proof, that he or she is a refugee.  The officer is not prevented by strict adversarial process from assisting the inquiry into refugee status, but the evidential obligation remains that of the claimant regardless of the extent to which the officer exercises his or her powers of inquiry.

[26] Section 129P is not identical to s 129G.  Section 129G(5) and s 129P(1) are identical, except to the extent that the latter subsection refers to the Authority rather than to a refugee status officer.  I am satisfied that the phrase under examination, used in both sections, must bear the same meaning.  The primary difference between ss 129G and 129P is that on appeal the claimant is no longer obliged to confirm the claim in writing or provide a statement of the grounds of the claim.  Presumably this is because those duties have already been performed and the relevant information is already before the Authority, along with the decision of the refugee status officer.  Section 129P(1) does, however, confirm that the claimant must provide the Authority with all information, evidence and submissions that he or she wishes the Authority to consider.  Thus, there is no material difference between the statutory contexts.

[27] Given that prior to the 1999 amendment claimants were obliged to prove their claims to the Authority, the applicant's submission is effectively that the phrases in s 129P(1) changed that situation and relieved the claimant from bearing the onus of proof.  I do not accept that submission.  The legislature chose to enact a phrase that is extremely close to the formula adopted by the Court of Appeal in Butler, namely that "A person claiming refugee status has the burden of establishing the elements of the claim".  The statutory language and context indicates, as I have already noted, that the responsibility to establish the claim to be recognised as a refugee means that it is the claimant's obligation to prove that he or she should be recognised as a refugee.

[28] The Courts presume that Parliament intends to legislate consistently with New Zealand's international obligations: R v Keyn (1876) 2 ExD 63, 85.  This presumption is even stronger in the present case, given that Part VIA was enacted specifically to ensure that New Zealand complies with the Convention: s 129A.  As noted at paragraph [12] above, both UN guidelines and Canadian legislation place the onus of proof on claimants.  Further, the extensive survey of international practice conducted by the Authority in Refugee Appeal No. 72668/01, at paragraphs [19] through [29], indicates that other Convention parties, including those with inquisitorial systems of justice, require claimants to bear the burden of proof.  I do not accept that the interpretation of the statutory phrase I have adopted, places New Zealand in breach of its international obligations.

[29] Were it not for the fact that this matter has already received detailed judicial consideration, I would be minded simply to decline the application for the reasons given above.  However, my interpretation of the section in question differs from that of Durie J in T.  I will therefore consider his judgment in some detail.

T v Refugee Status Appeals Authority

[30] This case concerned an application for review of the Authority's decision dismissing T's appeal on the grounds that the Authority had made an error of law in holding that appellants had to prove their claims.  At paragraph [13], Durie J cited the following passage from the Authority's judgment (emphasis in the original):

Counsel is reminded ... that his rejection of the Authority's decision in Refugee Appeal No. 523/92 Re RS (17 March 1995) that a refugee claimant bears the burden of proving his/her claim is ill-conceived.  Specifically, s 129G(5) and s 129P(1) of the Immigration Act 1987 are unequivocal in this regard.

[32] Thus, the Authority was required to exercise an inquisitorial function, although in appropriate cases it could decline to seek further information (s 129P(2)).  Durie J relied on this analysis of the Authority's functions to ground his interpretation of s 129P(1).  The relevant paragraphs of his judgment are set out below:

[23]    What is meant then by "the responsibility of an appellant to establish the claim" in s 129P(1)?  First, as I have mentioned, the reference is not to a burden of proving the claim.  I think it confuses when an inquisitorial body substitutes words more at home in a Court and for that reason alone I think it is unwise, in this instance, to substitute for words that the legislature itself has chosen.  But more than that, in looking at the scheme as a whole, I think the responsibility referred to in the subsection can be no more than a responsibility to establish what the claim is.  The provision cannot by itself deprive the Authority of its role as a Commission of Inquiry with all the attendant duties to fully inquire into such claims as are presented to it.

[24]    I am reinforced in that conclusion by looking at the words that follow and then the subsections as a whole, or the section as a whole for that matter.  The succeeding words, though linked by a distinguishing conjunction, do not ascend to the more refined world of onus and standards of proof.  They remain grounded with the paraphernalia of supporting material.

[34] Durie J's legal findings were not essential to his ultimate determination that while the Authority had misdirected itself as to law, the substance of its decision accorded with correct legal practice.  It follows that Durie J's analysis of the legislation was technically obiter.  However, his careful argument merits close consideration.

[35] It will be evident that Durie J's conclusion depends on two arguments.  The first concerns the propriety of an inquisitorial tribunal employing such concepts as "onus of proof".  The second relates to the implications of the breadth of powers that the Authority enjoys in determining appeals.

[36] With respect, both arguments are in my view misconceived.  A tribunal may adopt either an inquisitorial or adversarial procedure, or some combination of both.  The role of the Authority is to determine whether the claimant should be recognised as a refugee.  There is no question as to the standard of proof that must be met; the question is whether the claimant is obliged to prove that the standard has been met.  Matters of statutory interpretation aside, it would seem very strange for the claimant not to be obliged to prove his or her case.  In any refugee status claim, the claimant will have almost exclusive access to the evidence necessary to prove the claim.  The Authority is obliged to determine whether the evidence before it satisfies the standard of proof.  In  making that assessment the primary burden must be on the claimant to argue for and establish his or her position.  The Authority's powers to investigate may assist in fulfilling its role as adjudicator, but they do not shift the onus of proof onto the Authority itself.

[37] The legislation bestows on the Authority broad powers of inquiry which it may choose to exercise.  This reflects and preserves the situation prior to 1999 when the Authority effectively determined its own procedure.  The legislation explicitly states that the Authority may choose not to seek further information: s 129P(2)(b).  If it does not do so, the evidence on which it reaches its decision, will be that provided by the claimant.  Thus, I am not persuaded that the breadth of the Authority's powers of inquiry is incompatible with the claimant bearing the onus of proof.  Further, I accept that the detailed survey of international practice conducted in Refugee Appeal No. 72668/01 demonstrates that the concept of burden of proof is utilised in inquisitorial systems.

[38] I also note that while the Authority has some of the powers of a Commission of Inquiry it is not a Commission of Inquiry and should not be expected to act as though it were: Attorney-General v Moroney [2001] 2 NZLR 652.  The legislation grants the Authority broad powers of inquiry but imposes no obligation to seek information: the Authority is not itself obliged to establish or disprove the claim.  On the contrary, the only reference to establishing the claim indicates that the claimant is responsible for doing so.  This confirms my view that there is no inconsistency between the Authority exercising broad powers of investigation and inquiry and the claimant being obliged to prove his or her claim.

[39] For the reasons outlined above, I do not, with respect, find Durie J's interpretation of the relevant statutory provisions convincing.

Conclusion

[40] I conclude that s 129P(1) of the Act means that the claimant bears the onus of proving his or her claim before the Authority.  It follows that in this case the Authority did not make an error of law.  The application is therefore declined.
 

Solicitor for the plaintiff: R S Wood (Auckland)
Solicitor for the defendant: Meredith Connell (Auckland)