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M v Refugee Status Appeals Authority (No. 3)

High Court Auckland CP545/02; [2003] NZAR 614
13 February 2003; 19 February 2003
Venning J

Judicial review - curing - whether once the entire process is completed and both the refugee status officer and RSAA decisions have been made the court may review those decisions - effect of failings in the decision of the refugee status officer

Judicial review - fairness - whether notice must be given of proposed credibility finding

Judicial review - interim order - discretion to grant relief - whether fact that applicant has absconded relevant to exercise of discretion - grant of relief on conditions

New Zealand Bill of Rights Act - right to justice - whether appeal to RSAA by de novo hearing - whether RSAA bound by credibility findings made by refugee status officer

Procedure of RSAA - nature of appeal - whether appeal by de novo hearing - whether RSAA bound by credibility findings made by refugee status officer -  Immigration Act ss 129A, 129N, 129O, 129P - New Zealand Bill of Rights Act, 1990, s 27

Refugee Status Branch - curing - whether once the entire process is completed and both the refugee status officer and RSAA decisions have been made the court may review those decisions - effect of failings in the decision of the refugee status officer

UNHCR Handbook - procedures for determination of refugee status - para 192

The applicant, a citizen of Afghanistan, arrived in New Zealand on 14 September 2002 and claimed refugee status at Wellington Airport.  At first instance, a refugee status officer had concerns as to the veracity of the applicant's account but, after affording him the benefit of the doubt, accepted as credible the applicant's evidence in its entirety.  The refugee status officer went on to conclude that while the fear of being persecuted was well-founded, the refugee claim failed because there was no nexus between the risk of being persecuted and any one of the five Convention grounds. From this decision the applicant appealed to the Refugee Status Appeals Authority (RSAA).  The appeal hearing was conducted de novo and the Authority, in accordance with its established procedure, regarded all issues of law, fact and credibility as being at large.  After a full interview which lasted a day, the RSAA rejected the claim on credibility grounds, concluding that there was no credible basis on which it could be found that the applicant had a well-founded fear of being persecuted upon returning to Afghanistan.  

The applicant sought judicial review of the RSAA decision and also applied for an interim order to prevent his removal from New Zealand pending a substantive hearing of his application for review.  As a consequence of the application for review the plaintiff was transferred back to the Mangere Detention Centre and Crown counsel gave an undertaking to the applicant's solicitors that they would be given 72 hours notice if the applicant was to be removed from New Zealand. The applicant and another detainee absconded from the Mangere Detention Centre and at the time of the interim order application remained at large but his counsel advised that he (the applicant) had contacted his solicitors and had provided them with a cell phone number.  When the application for review was first called before the High Court on 5 February 2003 counsel for the Crown withdrew the previous undertaking in light of the applicant's action in absconding from the Detention Centre.

It was submitted that the applicant, having satisfied the refugee status officer of his credibility, the RSAA should have restricted the hearing and its inquiry to one issue, namely whether there was a link between the fear of being persecuted and a Convention ground.

Held:

1.    On an application for an interim order, the fact that the applicant has absconded from lawful custody is a factor relevant to the exercise of the Court's discretion.  However, it is not on its own determinative.  In the event the application is otherwise meritorious then the absconding from custody could be met by relief being granted on appropriate conditions and for a limited time, including a requirement for the applicant to surrender him or herself to the authorities, failing which the interim relief would lapse (see para [16]).

2.    The submission that the RSAA is bound by credibility findings made by the refugee status officer and is not entitled to inquire further about those matters is inconsistent with the statutory framework the RSAA operates under. There was no arguable case and no real contest between the parties that in adopting a de novo approach the RSAA was wrong.  Nor did de novo appeals breach s 27 of the New Zealand Bill of Rights Act 1990 (see paras [40], [41] & [42]).

3.    The RSAA was not required to formally warn the applicant that it might make adverse credibility findings against him (see para [46]).

Khalon v Attorney-General [1996] NZLR 458 (Fisher J) applied.

4.    While in principle it is correct that once the entire process is completed, ie both the refugee status officer and RSAA decisions have been made, the Court may review those decisions, the practical purpose and effect of the review may well be limited in relation to the decision of the refugee status officer.  As the statutory procedure involves an appeal to the RSAA any failing in the refugee status officer's decision would often be cured by the right of appeal to the RSAA particularly as that is a de novo hearing.  If there is no reasonable ground to challenge the RSAA decision then even if there were failings in the decision of the refugee status officer, that can be of no moment from a substantive law point of view (see para [50]).

Malkit Singh v Attorney-General [2000] NZAR 125 (Randerson J) followed.

Observation

1.    On an interim order application the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, para 192 (a refugee applicant should be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending) is of no assistance:

(a)    The paragraph had been met entirely in that the applicant had been permitted to remain in the country pending a decision (by the refugee status officer) on his initial request and he had also been permitted to remain while his appeal to a higher authority (namely the RSAA) had been determined (see paras [12] & [13]).

(b)    In any event the comments in the Handbook are not determinative of the Court's obligations on the application for interim review (see paras [13] & [14]).

R v Home Secretary; Ex parte Bugdaycay [1987] AC 514 (HL) and S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA) followed.

Application for interim orders dismissed

Other cases mentioned in judgment

Achhido v Governor of Mt Eden Prison [2001] NZAR 584
Esekielu v Attorney-General (1993) 6 PRNZ 309
Jiao v Refugee Status Appeals Authority [2002] NZAR 845
Malkit Singh v Attorney-General [2000] NZAR 125 (CA)
R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 (CA)
Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA)

Counsel

C Tennet & Ms Smythe for the plaintiff
MA Woolford for the defendants

VENNING J [1] The applicant seeks interim relief pursuant to s 8 of the Judicature Amendment Act 1972 to prevent his removal from New Zealand by the New Zealand Immigration Service pending a substantive hearing on his application for review of both the Refugee Status Branch ("RSB") decision dated 22 November 2002 and the Refugee Status Appeals Authority ("RSAA") decision dated 22 December 2002 on his application for refugee status.

Background

[2] The applicant, an Afghanistan, arrived in New Zealand at Wellington Airport on 14 September 2002 and claimed refugee status.  Shortly thereafter he was transferred to Auckland.  His claim to refugee status was acknowledged on 18 September.  On 19 September his current solicitors wrote to the RSB to inform them they were acting for the applicant.  On 24 October 2002 the RSB conducted an interview with the plaintiff.  Shortly thereafter on 29 October 2002 the Refugee Status Officer sent an interview report to the applicant through his solicitors.  The applicant was asked to provide comment on some factual matters related to his claim and on some potentially prejudicial information.  On 11 November 2002 the solicitors responded with extensive written submissions.  On 22 November 2002 the RSB declined the applicant's claim for refugee status in a fully reasoned decision running to some 24 pages.  On the same day the solicitors lodged an appeal with the RSAA.  The appeal was heard before the RSAA on 18 December.  The applicant was represented by counsel at the appeal.  This application for review was lodged on 23 December 2002.  As a consequence of the application for review the applicant was transferred back to the Mangere Accommodation Centre and Crown counsel gave an undertaking to the applicant's solicitors that they would be given 72 hours notice if the applicant was to be removed from New Zealand.

[3] The applicant and another detainee absconded from the Mangere Accommodation Centre on 24 December 2002.  The applicant remains at large but counsel for the applicant advised that the applicant had contacted his solicitors and provided them with a cell phone number.  The solicitors have left a number of messages for the applicant on that cell phone number.

[4] When this application for review was first called before the Court on 5 February counsel for the Crown withdrew the previous undertaking in light of the applicant's action in absconding from the detention centre.

Preliminary matters

[5] At the outset of the hearing counsel for the applicant sought orders suppressing the applicant's name.  That was not opposed by Mr Woolford for the Crown.  There will be an order suppressing the name and any details which might identify the applicant.  The applicant is to be referred to as "M" for future documentation, particularly in Court circulars and notices and the Registrar is to refer any application to search this file to a Judge on notice to all parties.

[6] At the conclusion of the hearing at the end of the day on Thursday, 13 February, I indicated to counsel that my decision would be reserved and I would deliver it within a few days.  In the circumstances Mr Woolford quite properly gave an undertaking on behalf of the Crown that until receipt of the decision the Crown would not take any steps to have the applicant removed from New Zealand.

The test for interim relief

[7] Both counsel referred to the commentary to McGechan on Procedure on s 8 of the Judicature Amendment Act at para JA 8.05 and generally accepted that the second approach identified by the text was the appropriate test, namely the Court should begin with the statutory threshold of the necessity to preserve the position of the applicant.  Consideration of whether interim relief ought to be granted then requires the Court to consider all of the circumstances.  The circumstances include the strength or weakness of the claim, the statutory framework, the public interest and the private and public repercussions of granting relief.

[8] In addition Mr Tennet submitted that there was a further gloss in the case of Immigration decisions, that the Court should recognise the special nature and effect of decisions on applicants and that the procedures put in place by the 1999 amendment to the Immigration Act were set up to comply with New Zealand's international obligations, citing Tavita v Ministry of Immigration [1994] 2 NZLR 257.

[9] The special nature of immigration cases on review was recently noted by the English Court of Appeal in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 where at p 849 Laws LJ noted that in an approach to substantive application for review:

There is, rather, what may be called a sliding scale of review; the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required.  It is in the nature of the human condition that cases where, objectively, the individual is most gravely affected will be those where what we have come to call his fundamental rights are or said to be put in jeopardy.
[10] In the New Zealand context both counsel referred to the decision of Hammond J in Esekielu v Attorney-General (1993) 6 PRNZ 309 where His Honour directly addressed the issue of interim relief in immigration cases as follows:
... the appropriate question then is: what sort of threshold test should an applicant for relief in an immigration case have to meet?  Or, to put it another way, what are the sorts of interests which are at stake?

In general terms, from the point of view of the State, it has a significant interest in protecting its borders and services of various kinds against utilisation by persons who are not entitled to the protection and support of that State.  >From the point of view of the affected individual, the question of whether that individual is entitled to that protection and those services is a very significant one.  If the threshold test is set too low - as merely raising a question which is not trivial (which is what the House of Lords meant by "serious") - interlocutory relief would be gained on just about every application.  And it must be borne in mind that the processes under the immigration legislation in New Zealand themselves involve a serious vetting exercise, culminating in certain appeal procedures which can (and routinely do) reach as high as the Minister of Immigration.

It seems to me therefore, that whilst the individual applicant should not be required to demonstrate a very strong  probability of success on the merits, the kind of matters that that individual must establish in support of a claim to interlocutory relief must be more than a showing that the question is not merely trivial.  I would have thought both that there must be a real contest between the parties, and that the applicant has a respectable chance of succeeding in that contest.

Somehow, the notion seems to have crept into the jurisprudence that it is the plaintiff who is being deprived of something, rather than a requirement that the plaintiff demonstrate entitlement, after due review by the agencies of the State.  If New Zealand had a somewhat antiquarian immigration statute, and inadequate appeal procedures on humanitarian grounds, then one's view might be otherwise as to the way in which the law should operate in this area.  But it does not.  The immigration legislation has been reviewed and appropriate procedures are in place.

Once the appropriate threshold test on an application has been met, with respect, I would adopt the view of those Judges in the authorities set out in McGechan (supra) that a relatively wide ranging inquiry is then necessary.

Since that decision of course the 1999 amendments to the Act have been made to provide for the consideration first by the RSB and then the right of appeal to the RSAA.

[11] It is convenient at this stage to refer to the handbook published by the United Nations High Commissioner for Refugees on the "procedures and criteria for determining refugee status (Geneva 1979)".  Mr Tennet referred to the following passage:

(vii) The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that his request is clearly abusive.  He should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending
and submitted that that passage was supportive of the applicant's application for interim relief until the substantive review application was dealt with.

[12] In response Mr Woolford noted that in this case the requirements of the section cited had been met entirely in that the applicant had been permitted to remain in the country pending a decision (by the RSB) on his initial request and that he had also been permitted to remain while his appeal to the higher authority, namely the RSAA had been determined.  Mr Tennet countered by submitting that the reference to a higher administrative authority or to the Courts included both and that this application for judicial review was effectively an appeal as referred to in the clause.

[13] On my reading of the clause I prefer Mr Woolford's interpretation but in any event the comments in the handbook are not determinative of the Court's obligations on this application for interim review.  In R v Home Secretary, ex parte Bogdaycay [1987] AC 514 at 524 Lord Bridge of Harwich noted of the status of the handbook:

[it is] neither necessary nor desirable that this House should attempt to interpret an instrument of this character [the handbook] which is of no binding force either in municipal or international law.
[14] Our Court of Appeal has said of the handbook that it could be:
Accorded due weight, [but] it cannot override the function of, in this case the Court, in determining the meaning of the words of convention.  (S v Refugee Status Appeals Authority [1998] 2 NZLR 291 at p 300).
The parties' cases

[15] In this case Mr Tennet submitted, using the words of Esekielu that there was "a real contest" between the parties and the applicant had "a respectable chance" of succeeding in the contest so that he ought to be granted the interim relief sought until the substantive application is determined.  In response Mr Woolford submitted that the applicant did not have any arguable case so there was no real contest between the parties and it could not be said that the applicant had a respectable chance of succeeding with his arguments.  Mr Woolford also submitted that in the exercise of the Court's discretion, the Court ought not to grant relief to an applicant who had absconded from custody such as the applicant in this case as that may send a completely wrong message to other detainees.

[16] I accept that in the exercise of the Court's discretion the fact the applicant has absconded from lawful custody is a relevant factor.  However, that aspect on its own is not determinative.  In the event the application was otherwise meritorious then his absconding from custody could be met by relief being granted on appropriate conditions and for a limited time including a requirement for him to surrender himself to the authorities, failing which the interim relief would lapse.

[17] It is necessary for this Court to determine the application for interim relief on its merits.  In other words, whether there is a real contest and whether the applicant has a respectable chance of success in that contest.  That requires consideration of the RSB and RSAA decisions under attack and the basis upon which review is sought of those decisions.

The RSB decision

[18] As noted the RSB decision delivered on 22 November 2002 was a fully reasoned decision running to some 24 pages.  On the claim itself the RSB  noted:

The RSB has some concerns as to the veracity of [M's] account ... other aspects of [M's] account provided discrepancies or appeared vague.  However, the core of [M's] claim has been presented in a consistent manner, and therefore the benefit of the doubt is afforded, and [M's] claim is accepted as credible in its entirety.
[19] The RSB then went on to conclude that there was a real chance that M would be persecuted if he returned to Jalalabad, Afghanistan now.  The RSB considered his fear of persecution was therefore well founded.

[20] The RSB decision turned on whether there was a nexus between his well-founded fear of persecution and one or more Convention reasons.  The RSB then referred to a number of sections from the Michigan Guidelines on Nexus to a Convention Ground.  The RSB considered political opinion, religion and whether the lack of state protection was because of any Convention reason, before concluding there was no nexus between M's well-founded fear of persecution and a convention reason.  On that basis the RSB declined his application.

The RSAA decision

[21] The RSAA decision was delivered on 20 December 2002 following a one day hearing before the RSAA on 18 December 2002.  The RSAA determined the appeal on the grounds of credibility.  After considering the evidence provided by the appellant before it the RSAA rejected his claim holding there was no credible basis on which it could be found that the appellant had a well-founded fear of being persecuted upon returning to Afghanistan.

The RSB decision - grounds for review

[22] In their submissions as to the grounds relied upon in support of the arguable case to make out the interim relief, counsel for the applicant referred to an error of law (determining that religion and politics were not sufficiently linked to the threat of harm to the applicant); a breach of natural justice by the RSB in failing to produce part of the evidence and reasoning relied on to support its finding; or alternatively unreasonableness.

The RSAA decision - grounds for review

[23] Mr Tennet's main submission in support of the application for interim relief was a challenge to the process adopted by the RSAA.  In short Mr Tennet submitted that the process adopted by the RSAA of a de novo hearing was flawed in the particular circumstances of this case.  He submitted that in this case given the findings of the RSB as to credibility the appeal ought to have been limited to the issue of whether the applicant could make out the necessary link between the fear of persecution and a convention ground.  He submitted that by adopting a de novo process to the appeal before it, the RSAA in this case opened the door to make an adverse credibility finding and that such a process was unfair in this case.

RSAA - The process adopted

[24] The RSAA held a one day hearing on 18 December 2002.  Present at the hearing were the members of the RSAA - counsel for the appellant, junior counsel appearing before this Court Ms Smythe (incorrectly recorded in the decision as Myers), the applicant and an interpreter.  The members of the RSAA asked the applicant a number of questions.  Ms Smythe asked the applicant a number of questions and Ms Smythe addressed some submissions to the RSAA at the conclusion.  The transcript of the haring runs to some 85 pages.

[25] The procedure adopted by the RSAA was a de novo hearing.  That was in accordance with a Practice Note 2/99 issued by the RSAA with effect from 1 October 1999.  The Practice Note records:

Hearing de novo

[3.1]  All appeals before the Authority proceed by way of hearing (either by interview or on the papers) de novo, and all issues of law, fact and credibility are at large.  The Authority will make a decision on the facts as they stand as at the date of determination of the appeal and is not confined to the facts as they stood (or as they were presented) at the initial hearing before the refugee status officer.

[26] The procedure of the RSAA was referred to by Randerson J in Malkit Singh v Attorney-General [2000] NZAR 125.  At p 133 Randerson J noted:
The Registrar of the Authority has sworn an affidavit in which he deposes that until 30 September 1999, the Authority operated under the prerogative powers of the Executive.  >From 1 October 1999, the Authority has a statutory basis under the Immigration Amendment Act 1999.  The hearing before me proceeded on the agreed basis that the Rules Governing Refugee Status Determination Procedures in New Zealand and Practice Note 1/99 issued by the Authority would remain in force for the purpose of determining Mr Singh's appeal.  I was also referred to the decision of the Authority dated 17 March 1995 in Re RS (Refugee Appeal No. 523/92).

It was apparent from all this material that:

[a]    All appeals before the Authority are conducted by way of hearing de novo and all issues of law, fact and credibility are at large.

[b]    The Authority makes a decision on the facts as they stand as at the date of determination of the appeal and is not confined to the facts as they stood (or as they were presented) at the first instance hearing before the RSB.

[c]    There is no onus on the appellant to show that the decision at first instance is wrong in fact or in law.

[d]    The Authority proceeds on the basis that the decision is to be made unfettered by that taken at first instance and on the basis that there is no 'contest' between the appellant and the RSB.

...

[i]    The Authority has power to regulate its own procedure and to receive such evidence and to conduct hearings in such manner as it thinks fit.  It is not bound by the strict rules of evidence.

[27] When the Malkit Singh case was before the Court of Appeal, the Court of Appeal referred to the practice of the RSAA conducting an appeal by way of de novo hearing as follows:
The Judge was satisfied that the appeal would proceed de novo.  No issue is taken with that.
[28] I accept that the process of the de novo hearing was not directly challenged in the Malkit Singh case but nevertheless it was expressly recognised and if not referred to with direct approval was certainly referred to without demure by both Randerson J and the Court of Appeal.

[29] The RSAA's practice of a de novo hearing was considered again in Achhido & Ors v Governor of Mt Eden Prison [2001] NZAR 584.  At para 36 O'Regan J said:

Mr Woolford ... also referred me to the decision of the Court of Appeal in Malkit Singh v Attorney-General [2000] NZAR 136.  In that case the Court of Appeal referred to the fact that a hearing of the Authority would be de novo and recorded that no issue was taken with that.  This appears to be an endorsement by the Court of Appeal of the approach taken by the Authority itself. ... Mr Woolford also submitted, citing the decision of Fisher J in Khalon v Attorney-General [1996] 1 NZLR 458, that credibility findings are fundamental to the work of the Authority.
[30] Despite those authorities Mr Tennet submitted that while de novo hearings may be required for many cases, there would be cases such as the applicant's where a narrow legal issue fell to be decided and a de novo hearing was unnecessary.  Mr Tennet submitted that the applicant had satisfied the RSB of his credibility but had fallen at the last hurdle in failing to satisfy the RSB that there was a link between his fear of persecution and a convention ground, namely religion, and the RSAA should have restricted the hearing and its inquiry to that one issue, namely whether there was a link between the applicant's fear of persecution and a convention ground.  As Mr Tennet put it in his written submissions:
The RSAA decision - Error of law, failure of legitimate expectation and/or breach of NZ Bill of Rights

This is pleaded in detail in paragraph 14 in a number of alternatives, but essentially there was a substantial error of law and/or the RSAA fettered (sic) its decision in applying the policy that it did.

Decision

[31] Despite Mr Tennet's careful argument I am unable to accept that submission.

[32] The RSB and RSAA are established by Part 6A of the Immigration Act 1987 as inserted by the Immigration Act Amendment Act 1999.  Section 129A records that the object of the part is to provide a statutory basis for the system by which New Zealand ensures it meets its obligations under the Refugee Convention (the United Nations Convention relating to the status of refugees).  The Refugee Status Appeals Authority is established by s 129N.  Inter alia it provides that members of the RSAA are to be barristers or solicitors who have held practising certificates for at least five years' experience or have other equivalent or appropriate experience.  It includes an ex officio member, a representative of the United Nations High Commissioner for Refugees.

[33] Section 129O(1) provides:

A person whose claim ... has been declined by a refugee status officer ... may appeal to the Refugee Status Appeals Authority [RSAA] against the officer's decision.
[34] Section 129P provides for the procedure on appeal as set out below:
(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.

(3) An appellant must provide the Authority with a current address in New Zealand to which communications relating to the appeal may be sent and a current residential address in New Zealand, and must notify the Authority in timely manner of a change in either of those addresses.  The Authority may rely on the latest address so provided for the purpose of communications under this Part.

(4) In its consideration of an appeal or other matter under this Part, the Authority may request the chief executive of the Department of Labour to seek and provide relevant information.

(5) The Authority may dispense with an interview of the appellant or other affected person only if both:

(a)  The appellant or other affected person has been interviewed by a refugee status officer in the course of determining the relevant matter at first instance or having been given an opportunity to be interviewed, failed to take that opportunity; and

(b)  The Authority considers that the appeal or other contention of the person affected is prima facie manifestly unfounded or clearly abusive.

(6) Despite subsection (5), the Authority may determine an appeal or other matter without an interview if the appellant or other person affected fails without reasonable excuse to attend a notified interview with the Authority.

(7) If a summons is issued by the Authority under section 4D of the Commissions of Inquiry Act 1908 in respect of a person detained in custody, the Superintendent or other person in charge of the relevant penal institution or other approved premises, or other person having custody of the detained person, must produce, or allow the production of, the person as directed in the summons.

(8) The Authority may decide the order in which appeals or other matters are to be heard, and no decision on an appeal or other matter is to be called into question on the basis that the appeal or other matter ought to have been heard or decided earlier or later than any other appeal or matter or category of appeal or matter.

(9) In any appeal involving a subsequent claim, the claimant may not challenge any finding of credibility or fact made by the Authority in relation to a previous claim, and the Authority may rely on any such finding.

[35] There are a number of features of that section which support the RSAA approach of a de novo hearing.  First it refers to the responsibility of the appellant to establish a claim and to ensure that all information, evidence and submissions are provided to the authority.  The reference to the claim is of course a reference to the claim for refugee status.  It involves all aspects of that claim including the evidence necessary to satisfy the RSAA the claim is a genuine or credible claim.

[36] Section 129P(5) and (6) contemplate the appellant will be interviewed by the RSAA.  It is only in very limited circumstances that the RSAA is authorised to dispense with such an interview.  There is no limit or constraint placed on the subject matter of the interview.

[37] As noted by Potter J in Jiao v Refugee Status Appeals Authority [2002] NZAR 845 to a large extent the same procedure is to be followed on appeal as at first instance (ie the RSB hearing):

The appeal before the [RSAA] is to be heard de novo, so that there is no presumption that the decision at first instance was in fact correct.  ... the Authority must be satisfied that the claimant's claim has been made out. [para 19]
[38] Thus the statutory framework within which the RSAA operates is consistent with the RSAA approach of de novo hearings.

[39] Next, it is apparent that credibility findings are fundamental to the work of the RSAA: Khalon v Attorney-General [1996] NZLR 458:

The first [matter of relevance] is that credibility findings would seem fundamental to this authority's work.  Mr Woolford submitted, without challenge from Mr Hooker, that it lay at the heart of this authority's function to decide whether a refugee applicant's version of events ought to be accepted.  Although the authority has some opportunity for independent inquiry as to the political and social conditions prevailing in the country or origin, it will nearly always lack independent knowledge of those facts and matters personal to the applicant.  Credibility must therefore be to the very forefront of cases of this nature. (p 467) (emphasis added).
To make credibility findings the RSAA will need to consider the applicant's evidence about all issues.

[40] The suggestion that somehow the RSAA is bound by credibility findings made by the RSB and is not entitled to inquire further about those matters is simply inconsistent with the statutory framework the RSAA operates under.  It suggests a form of "a ratcheting process" whereby a base line is drawn at the RSB level if the RSB makes findings favourable to the applicant, and that the RSAA is constrained in the scope of its inquiry.  I am unable to accept that submission.  The Court of Appeal rejected a compartmentalised approach to the RSB and RSAA procedures in Part 6A of the Act in Malkit Singh (supra) as follows:

Mr Hooker, although accepting that there will be circumstances in which a subsequent de novo hearing can be regarded as overtaking breaches of natural justice, contended for a compartmentalised approach to the two stages of consideration of applications for refugee status.  We do not accept such an approach is called for.  The whole scheme of the legislation indicates the adoption of a process designed to ensure overall the fair consideration of applications in accordance with international obligations.  There is nothing in the legislation indicating any need to regard the process before the Refugee Status Branch as requiring special consideration separate from the scheme as a whole. (p 142) (emphasis added).
[41] In short I do not accept there is an arguable case on this point or put another way, that it can be said there is a real contest between the parties on the ground that in adopting a de novo approach in this case the RSAA was wrong.

[42] Nor am I able to accept Mr Tennet's submission that the de novo appeals are effectively in breach of s 27 of the New Zealand Bill of Rights in these circumstances.  As the Court of Appeal said in Malkit Singh (supra), where an argument was raised under s 27 Bill of Rights:

We see nothing in s 27 of the Bill of Rights Act that requires any different approach [to the two stage process and a de novo hearing at the RSAA stage].
[43] It is strictly unnecessary to consider the broader grounds for the review as counsel did not dwell on them, but I note that the RSAA reached the decision it did on the basis that:
  • The applicant's evidence regarding his father's relationship with the Mujahedin was evasive and inconsistent.
  • The applicant asserted the first time before the RSAA that his proposal of marriage was rejected by Ms Bibi's parents as he was from a different political group.  That was not raised before the RSB.
  • There were discrepancies between the applicant's various accounts of how he heard of Ms Bibi's engagement.
  • The RSAA found it implausible the plaintiff would flee to Kabul rather than across the border to Pakistan given the fact that he was familiar with Pakistan but had never been to Kabul.
  • The Authority was concerned about the contradictory evidence given by the plaintiff regarding who had advised him of his girlfriend's death, speaking of which event the RSAA stated if true it [would be vividly imprinted on his memory].
    • [44] Mr Tennet queried why the RSAA accepted the applicant was an Afghan but declined to accept his credibility in relation to the remainder of his claims.  With respect, however, there is a significant difference between accepting someone's nationality and accepting the basis of their claim for refugee status.

    [45] The adverse credibility finding made by the RSAA was open to it.

    [46] Nor is there anything in the point that the RSAA did not formally warn the applicant it may make adverse credibility findings against him.  There is no need to give such a warning: Khalon (supra) p 466.  Further, the applicant was represented by counsel at the hearing.  From the line of questioning by the members of the RSAA it would have been apparent that the RSAA had concerns regarding certain aspects of the applicant's case.  Counsel for the applicant was apparently aware of that as it is apparent from the transcript that towards the conclusion of the interview counsel tried to clarify a number of issues with the applicant and then submitted:

    I think we need to actually take that into account [that he was not a man of the world and was not a very sophisticated person] when we are considering his evidence in the manner in which he has acted and the choices he has made.
    And later counsel implicitly acknowledged that credibility was an issue:
    ... if we accept his story as he's given it and we accept the fears that he has, ... the main problem I guess is with the convention ground.
    [47] I have referred to these issues because they were referred to in the statement of claim for substantive relief although, as noted the thrust of Mr Tennet's submission before the Court was the challenge to the procedure adopted.

    [48] It follows that I do not consider there is a real contest between the parties on the application for review of the RSAA decision.

    The challenge to the RSB decision

    [49] The application for review also challenges the RSB decision.

    [50] While in principle I accept, as Randerson J did in Malkit Singh, that once the entire process is completed, ie both the RSB and RSAA decisions are made, this Court may review those decisions, the practical purpose and effect of the review may well be limited in relation to the RSB decision.  As the statutory procedure involves an appeal to the RSAA any failing in the RSB decision would often be cured by the right of appeal to the RSAA particularly as that is a de novo hearing.  If, as here, there is no reasonable ground to challenge the RSAA decision then even if there were failings in the RSB decision that can be of no moment from a substantive law point of view.

    [51] I am unable to accept Mr Tennet's submission that if the RSB decision was wrong then it effectively put the applicant at risk of an unfavourable RSAA decision and therefore the whole process was unfair.  The effect of that submission would be that if the RSB submission was arguably wrong it could never by cured by a RSAA hearing unless that RSAA hearing was favourable to the applicant.  I am unable to accept that is the effect or intent of the legislation.  As noted under s 129O the purpose of part 6A is to satisfy New Zealand's obligations under the convention.

    [52] In any event it cannot be said the applicant has a respectable chance of succeeding with his challenge to the RSB decision.

    [53] I accept Mr Woolford's submission that the substance of the challenge to the RSB decision is that the RSB got it wrong when it applied the law to the facts before it and what the applicant seeks is in fact a second appeal.

    [54] As noted the RSB decision was a fully reasoned decision.  It cannot be said the RSB adopted any incorrect approach or process in coming to the decision it did.  While acknowledging that there was some link between Pashtunwali and Islam the RSB ultimately concluded that Pashtunwali, including the concept of honour killings, was a social rather than a religious application of the honour code.  It emerged from Afghan's pre-Islamic past.

    [55] In coming to that view the RSB took into account not only the applicant's own evidence but also referred to a number of other sources of information:

    In short again the RSB finding was a finding open to the RSB.  The ground set out in the statement of claim in support of the application to review the RSB cannot be said to have a respectable chance of success.

    Result

    [56] For the foregoing reasons the application for interim orders is dismissed.
     
     

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