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M v Refugee Status Appeals Authority

High Court Auckland M 1101-SW00
16 & 18 October 2000; 28 November 2000
Nicholson J

Judicial review - approach to judicial review of RSAA decisions - judicial review not an appeal - challenge to credibility finding - Immigration Act 1987, s 129Q(5)

Judicial review - review not an appeal - whether grounds of challenge relate to merits of RSAA decision and not to manner in which it was made

Judicial review - reasonableness - challenge to credibility finding

Judicial review - ineffective counsel - whether established on the facts

Judicial review - proceedings without any foundation - costs - whether order for payment of costs should be made against counsel and solicitors

Law practitioners - proceedings without any foundation - costs - whether order for payment of costs should be made against counsel and solicitors

The plaintiff was a 31 year old citizen of Iran who claimed to be a Sufi. Sufism is a school of thought and not a religious sect which is an aspect of Islamic belief and practice. In January 1997 the plaintiff had met a married woman and after committing adultery with her went into hiding to escape disciplinary forces. The woman was subsequently punished by lashing and was divorced by her husband. The authorities searched the plaintiff's shop and discovered Sufi documents and leaflets hidden in the ceiling. After his refugee claim was declined at first instance the plaintiff appealed to the Refugee Status Appeals Authority (RSAA). In a decision published on 24 February 2000 the RSAA dismissed the appeal on credibility grounds. Judicial review proceedings were commenced on 11 September 2000 challenging the credibility finding and criticising in an unsubstantiated way the competence and judgment of counsel who represented the plaintiff at the appeal hearing.

Held:

1. The Immigration Act 1987, s 129Q(5) provides that a decision of the RSAA is final once notified to the appellant or other affected person. Therefore challenge to a decision of the RSAA is limited to an application for review under the Judicature Amendment Act 1972. The approach of the courts is not to convert applications for judicial review into something akin to a general appeal on fact when the statute does not provide for such an appeal (see paras [27] & [28]).

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) and Korengkeng v Removal Review Authority (High Court Auckland M 1250/97, 30 January 1998, Williams J) referred to.

2. There was no tenable basis for the submission that the RSAA had failed to take relevant matters into consideration or had taken irrelevant matters into consideration or had made mistakes of fact. Nor was there foundation for the criticism of the competence and judgment of counsel who represented the plaintiff at the hearing before the RSAA (see paras [20] & [29]).

3. As the review application was unfounded and bereft of any merit it seemed an appropriate case in which to order the payment of costs by the plaintiff and/or his lawyers who made and pursued the review proceedings. An award of costs can be a disincentive to unwarranted proceedings. Counsel were directed to file memoranda on the issue (see paras [30], [31] & [32]).

Minister of Immigration v Gholami [1996] NZAR 52 (CA) and Holden v Architectural Finishes Limited [1997] 3 NZLR 143 (McGechan J) applied.

Application for review dismissed

Other cases mentioned in judgment

[no other cases were mentioned]

Counsel

C Tennet for the plaintiff
M A Woolford for the defendants

[Editorial note: This is not the first time that the High Court has shown impatience with meritless challenges to decisions of the various immigration appeal authorities. Solicitors and counsel have received clear warning that they may have costs awarded against them personally. See for example Butler v Removal Review Authority [1998] NZAR 409, 420 (Giles J); Fa'tafa v Chief Executive, Department of Labour (High Court, Wellington, AP 120/97, 26 April 1999, Gendall J) and Butler v Removal Review Authority [1999] NZAR 68, 79 (Wild J).

Jurisdiction to make an order for costs against a barrister was affirmed in Harley v McDonald [2002] 1 NZLR 1; [2001] 2 WLR 1749 at [45] (PC) but the Privy Council nevertheless overruled the decision of the New Zealand Court of Appeal in Harley v McDonald [1999] 3 NZLR 545. The Privy Council emphasised at [52] that the court's only concern when it is exercising this jurisdiction is to serve the public interest in the administration of justice. At [57] it held that a duty rests on officers of the court to achieve and maintain appropriate levels of competence and care and that, if he or she is in serious dereliction of such duty, the officer is properly amenable to the cost jurisdiction of the Court. But care must be taken not to assume that just because it appears to the court that the case was hopeless there was a failure by the barrister or solicitor to achieve the appropriate level of competence and care. See also paras [47], [50] and [51]. For a commentary see Andrew Beck, "Costs Against Practitioners: Harley v McDonald in the Privy Council" [2001] NZLJ 148. See also Paul Perell, "Ordering a Solicitor Personally To Pay Costs" (2001) 25 Adv. Q. 103.

In a decision published on 2 February 2001 Nicholson J decided to make no costs order but warned that he would have awarded sanction costs of $4,000 against the plaintiff's current counsel and $1,000 against the plaintiff's current solicitor had this not been the first time that such a situation had arisen on the dismissal of a review application in respect of a decision of the Refugee Status Appeals Authority.]

NICHOLSON J

Introduction

[1] M is an Iranian national. He is 31. In July 1997 he went from Iran to Thailand using a false Iranian passport. In January 1998 he went from Thailand to New Zealand using a false Spanish passport. On arrival in New Zealand he claimed refugee status.

[2] At the airport M stated that his reason for claiming refugee status was:

"I was in love with a lady [AS] who was married to someone who works for the Iranian authorities. I didn't know she was married and one day someone came to our shop asking for me and we knew he was from the authorities. If I got caught I'd be stoned to death."

[3] M's claim was considered in detail by a refugee status officer. At the interview on 1 September 1998 M told how he was a Sufi. Sufism is a school of thought and not a religious sect which is an aspect of Islamic belief and practice. M said that he had opened a printing shop and used to copy and distribute notices about Sufi meetings. He said that he met AS in January 1997 when she came to his shop. On 9 April 1997 he slept with AS at her house and when the disciplinary forces raided he escaped over the roofs of neighbouring houses leaving some of his clothes behind. He went into hiding and did not return to his shop. In July he purchased a false passport through contacts of his friend [A] and went to Thailand via Malaysia. In January 1998 M left Thailand on a Spanish passport and arrived in New Zealand later that month. M told the refugee status officer that about a month earlier he had received a letter dated 4 July 1998 from his friend A advising him that his father had died of a heart attack brought on by the stress of pressure applied by the Iranian authorities, AS had been punished by a lashing and had been divorced by her husband and that the authorities, seeing that M's shop had closed, searched it and discovered Sufi documents and leaflets hidden in the ceiling.

[4] The refugee status officer found that M was not a refugee and declined refugee status. M appealed to the Refugee Status Appeal Authority ("the Authority"). It dismissed the appeal. M has applied for review of the Authority's decision and seeks a declaration that it is invalid.

Refugee Status Officer's decision

[5] In his 16 page written decision the refugee status officer said:

"... there is no information to support [M's] view that Sufis are currently being persecuted in Iran or are likely to be in the future given [M's] only peripheral adherence to Sufism and low profile in the community.

Additionally, neither [M] nor his family have ever had a political profile with the Iranian authorities. Any attention they may have received were as adherents of Sufism. There is no acceptable evidence put forward by [M] to suggest that the Iranian authorities have made any such political inference against him.

[M's] only problems with the Iranian authorities stem from a past confiscation of family property and his affair with a married woman, which can hardly be described as political offences."

[6] The refugee status officer finished his decision by stating:

"Conclusion

For all the reasons set out above I consider that there is not a real chance that [M] will be persecuted if he returns to Iran now. His fear of persecution is not therefore considered to be well-founded.

There is no need to further consider [M's] refugee claim in regard to a Convention reason.

Decision

For these reasons I find that [M] is not a refugee within the meaning of Article 1A(2) of the Convention. Refugee status is declined."

Authority hearing and decision

[7] M appealed to the Authority against the refugee status officer's decision. His appeal was heard by the Authority on 9 December 1999. M was represented by a barrister and solicitor, Mr D Ryken. On 24 February 2000 the Authority delivered an 11 page written decision. It said:

"... the principal issues are:

1 Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

2 If the answer is yes, is there a Convention reason for that persecution?

Assessment of the appellant's case

Before proceeding to determine the above two issues, it is first necessary to make an assessment of the appellant's credibility. We do not accept the appellant's claim that he was compelled to flee Iran because he feared persecution as a result of an illicit relationship with a married woman. In reaching this conclusion, we have taken into account the following ..."

[8] Then followed three pages of reasons which included the statement:

"As for the one letter received from the appellant's friend A, we note that coincidentally this arrived just in time for the appellant's Refugee Status Branch interview. A was supposedly the appellant's good friend, confidant, and the person whose assistance he had sought in his time of need. It seems therefore most improbable that a letter from A should not arrive until one year after the appellant's departure from Iran because A, as stated in his letter, had no address or telephone number for the appellant. The purpose of A's letter would appear to be to convey the news that AS had received lashings and that a month after the appellant's departure from Iran, his shop had been searched and incriminating Sufi material located therein. We consider it most improbable that if the authorities had apprehended AS the night they had disturbed her and the appellant at her house, and within a day or so had visited the appellant's shop in an endeavour to locate him, that they would delay a further four months before initiating a search of the shop. In the circumstances, the Authority is unable to give any weight to A's letter. We consider that the document was brought into existence solely to lend credibility to the appellant's refugee claim."

[9] The Authority concluded:

"For the reasons discussed, we reject the appellant's claim to fear persecution in Iran because of his adulterous relationship on the ground that the account he has given is not a truthful one.

It follows that issues one and two as identified above, must be answered in the negative."

[10] The Authority found that M was not a refugee within the meaning of article 1A(2) of the Refugee Convention, it declined refugee status and dismissed his appeal.

Review pleadings

[11] On 11 September 2000 M filed an application in the High Court for review of the Authority's decision and sought a declaration that it was invalid. The review proceedings were filed by Ms C Curtis, as solicitor for M.

[12] The grounds for relief pleaded in M's statement of claim are:

[i] Failure to take into account relevant considerations and taking into account irrelevant considerations.

[ii] Mistake of fact.

[iii] Breach of natural justice.

[iv] Unreasonableness.

[13] The statement of claim alleges that the Authority failed to take into account ten "relevant considerations regarding the plaintiff's fear of persecution for political and religious reasons". As an example of the ten alleged relevant considerations I quote the first - "the plaintiff fears persecution because he is a Sufi". It further alleges that the Authority also failed to take into account ten "relevant considerations in regard to the plaintiff's fear of persecution for adultery". As an example of the ten alleged relevant considerations I quote the first - "the plaintiff was recovering from a severe bout of depression when he met AS". It further alleges that in making the decision the Authority had regard to nine "irrelevant considerations". As an example of the nine alleged irrelevant considerations I quote the first - "the RSB's finding that there is no indication of the persecution of Sufis by the current regime in Iran".

[14] The statement of claim also alleges that the Authority made eight mistakes of fact and that "as a result of these mistakes of fact, the Decision is flawed". As an example of the eight alleged mistakes of fact I quote the first - "that Country Information on Sufism in Iran states that there is no indication of the persecution of Sufis by the current regime".

[15] The statement of claim also alleges that the Authority breached its obligation to act in accordance with the principles of natural justice due to "the failure of the plaintiff's previous counsel [Mr Ryken] to advance the appeal to refugee status on the basis that the plaintiff is a Sufi worshipper".

[16] The statement of claim alleges that the decision "was, in all of the circumstances, unreasonable in the sense that it was a decision that no reasonable authority in the position of the defendant authority would make and is thereby flawed".

Review hearing

[17] At the review hearing, which started on 16 October 2000, M was represented by Mr C Tennet, barrister.

[18] Having considered the pleadings and the 207 page agreed bundle of documents before the start of the hearing and having looked through Mr Tennet's 20 page "Synopsis of Argument" soon after the hearing started, I expressed my concern that the review proceedings seemed to be, in effect, an appeal against the Authority's decision under the guise of the review procedure. Mr Tennet assured me that they were not and then spent over half a day making submissions which were in essence a challenge to the soundness of the Authority's credibility finding and unsubstantiated criticism of the competence and judgment of counsel who represented M on the appeal.

[19] As an example of the nature of the credibility challenge I quote three paragraphs from Mr Tennet's "Synopsis of Argument":

"4.13 The convert and disjointed nature of the plaintiff's relationship with AS meant they did not have the opportunity to talk about each extremely difficult to talk about his father (sic). The strange environs of the Authority hearing room and the strangers questioning him compounded this difficulty. As he answered questions about his father, the plaintiff's mood saddened as he lapsed into feelings of quilt and remorse. This is because he feels responsible for his father's death.

4.14 His father died of a heart attack. The plaintiff considers the stress that induced the heart attack was a direct result of the Islamic authorities' interrogation of the plaintiff's father, following the plaintiff's departure from Iran. The plaintiff felt that if he had not gotten into trouble with the Islamic authorities over AS, the authorities would not have had cause to interrogate his father about his whereabouts.

4.15 Although the Authority moved on to question the plaintiff about his relationship with AS, for the plaintiff, his mind remained on his father and the circumstances that lead to his death. So when the Authority began to question the plaintiff about AS, the plaintiff's mind was not on task. This affected the accuracy of the responses he gave about his relationship with AS, and ultimately it affected his credibility. In making its decision, the Authority failed to consider how its prior questioning about the plaintiff's father adversely affected the plaintiff's ability to accurately answer questions concerning AS".

[20] Having considered the submissions of both counsel and the documents, I find that there is no tenable basis for Mr Tennet's submissions that the Authority failed to take relevant matters into consideration or took irrelevant matters into consideration or made mistakes of fact.

[21] This leaves the challenge that the Authority committed a breach of natural justice and reached an unreasonable decision. The alleged fear of persecution by reason of M's Sufi associations was advanced by Ms Robins to the refugee status officer and rejected by him. It was not advanced by M's next counsel, Mr Ryken, at the appeal and, although alluded to at the appeal hearing, it was not pursued.

[22] At the review hearing I was given a letter written by Mr Ryken as principal of Ryken and Associates in response to a letter of 2 October 2000 from Mr Curtis. It said:

"In late 1996, Mr Ryken was counsel in a three-day hearing involving a Sufi. We have in our office probably more than two eastlight folders on the subject. For the case in December 1996 we conducted case law research on the topic throughout the world. In preparation for [M's] appeal, because he raised the issue of suffism we updated our research last year.

We consider ourselves therefore extremely well informed on the subject and to have conducted all of the necessary research and to have been in a proper position to assess the relevance of such matters in an appeal hearing.

We have a wide knowledge of what we call 'theological' differences within Islam having represented Muslim refugees for more than ten years. We have found in many instances that our knowledge exceeds that of our clients ...

We are extremely concerned at the implications from your letter. As we have indicated above we are happy to assist with the discussion of whether suffism as an issue will be of any relevance to [M's] refugee status application. If there is a submission that we should have made that we have not made either in written submissions, before the hearing orally, during the hearing, or after the hearing during closing submissions or subsequent to that, then we will be the first to agree that [M's] matter must be reheard. We are not satisfied that there is any submission that should have been made that was not made. If you were to provide us with any case law or country information to suggest otherwise then we would be the first to agree that the matter should be reheard. We would be prepared to sign an affidavit to that effect."

[23] Mr Ryken clearly considered that a ground of appeal based on fear of persecution because of M's Sufi beliefs and activities was groundless and did not advance it. >From his letter to Ms Curtis, he clearly still maintains that view. Mr Tennet submitted that Mr Ryken was wrong and that the ground should have been advanced and pursued.

[24] At the appeal hearing there was the following exchange between a member of the Authority and M:

"... the Immigration Service produced some country information to you from the Canadian authorities which said in summary, 'While there is no indication of persecution of Sufis by the Islamic government of Iran the Sufi brotherhoods are regarded suspiciously and generally have kept a low profile'. Do you have any country information to contradict that?

[M]: Regarding country information, I have got no information, but I have seen that Sufis centres being closed down and the beard and hairs and moustaches of these people being cut off. It's not only Sufis in that case. Any religious group, anyone, cannot get together and present a religious idea, and the most threatened ones are the ones who have got information about Koran, and Sufis who have got very good information about Koran."

[25] Obviously neither Mr Ryken nor M had any information to contradict that country information.

[26] In his affidavit filed in support of the review proceedings, M annexed three publications which Mr Tennet submitted contradicted or cast serious doubt on the country information referred to by the Authority. Consideration of these documents, however, reveals that they do not.

Decision

[27] Part VA of the Immigration Amendment Act 1999 ("the Amendment Act") provided a statutory basis for the system by which New Zealand ensures it meets its obligations under the refugee convention. Before then the Authority functioned without a statutory basis. There was no right of appeal to any Court in respect of its decisions. This contrasted with the situation relating to the Removal Review Authority, the Residence Appeal Authority and the Deportation Review Tribunal in respect of which the Immigration Act 1987 ("the Act") provided limited rights of appeal on questions of law. However, the High Court accepted that decisions of the Authority were subject to review under the provisions of the Judicature Amendment Act 1972 and in a number of review cases stated the administrative law principles which applied. These were conveniently summarised by Fisher J in Khalon v Attorney-General [1996] 1 NZLR 458, 463. In providing a statutory basis for the Authority and for appeals to it, the Amendment Act did not create any right of appeal from a decision of the Authority. Furthermore s 129Q(5) of the Act as amended by the Amendment Act provides "A decision of the Authority is final once notified to the appellant or other affected person". Therefore challenge to a decision of the Authority is still limited to an application for review under the Judicature Amendment Act 1972.

[28] In Korengkeng v The Removal Review Authority & Minister of Immigration Auckland Registry, M 1250/97, 30 January 1998, Williams J pointed out that there was no general appeal in respect of a decision of the Removal Review Authority and that a review application required to be determined on conventional judicial review grounds and in doing so, the Court considered the process by which the defendant's decisions were reached rather than the merits of those decisions. He pointed out that, as so often happens in such matters, the matter before him was argued very much as if it were a general appeal on the facts and that the Court's approach to such matters is not to justify converting applications for judicial review into something akin to a general appeal on fact when the statute does not provide for such an appeal. The same considerations apply to applications for review of a decision of the Authority.

[29] The initial impression and concern that I expressed that the proceedings were in effect an appeal under the guise of the review procedure were not dispelled by Mr Tennet's submissions and indeed were confirmed by them. The pleadings and submissions presented me with a thicket of irrelevancy and confusion which, when I picked my way through it, took me down two paths. One, challenge to the Authority's credibility finding. The other, criticism of the competence and judgment of counsel who represented M at the appeal. Both paths lacked foundation. No ground for granting review has been made out. I dismiss the application for review.

Costs

[30] In Minister of Immigration v Gholami [1996] 2 NZAR 52, 59 the Court of Appeal stressed the importance of achieving finality and said there should be no encouragement to the bringing of unfounded review applications. In my view the present review application was unfounded and bereft of any merit. Accordingly this seems to be an appropriate case in which to order the payment of costs by the plaintiff and/or his lawyers who made and pursued the review proceedings. The second defendant has been put to the cost of defending the proceedings and considerable Court resources have been expended.

[31] In Holden v Architectural Finishes Ltd [1997] 3 NZLR 143, 149 McGechan J said:

"Court time is a valuable public resource. It is expensive, and in short supply. It always has been, and I fear it always will be. As a matter of public interest, Court time must not be wasted. There should be corresponding disincentives to unwarranted proceedings ..."

An award of costs can be such a disincentive.

[32] I invite counsel for the second defendant to file a memorandum advising whether the second defendant considers that this is an appropriate case in which to order that the plaintiff and/or his current lawyers pay costs. Such memorandum should be filed and served within 14 days of this judgment. Any document in response should be filed and served within 14 days of service of the memorandum, with a limited right to file and serve documents relating to matters raised in response within 14 days of service of the response documents.

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