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High Court Cases
M v Refugee Status
Appeals
Authority (No. 5)
High Court Auckland
CIV-2010-404-003298
9 August 2010; 17 September 2010
Courtney J
Benefit of the doubt
- when appropriate to apply
Credibility findings
- findings based on implausibility - whether jurisdiction to determine
plausibility
Judicial review -
approach to judicial review of RSAA decisions - specialist tribunal
Judicial review -
credibility findings - whether notice must be given of a proposed
adverse credibility finding
Judicial review -
not an appeal - challenge to credibility finding
Political opinion -
meaning - whether complaining to the authorities about fraud a
political act or an expression of political opinion
The plaintiff, a
citizen of Romania, had been convicted in Romania and sentenced to a
term of imprisonment on a charge of VAT refund fraud. Although he
accepted that he had signed documents used to perpetrate the fraud, he
claimed that he was an unwitting participant and that his prosecution
and conviction were orchestrated by his wife's uncle, D, as punishment
for the plaintiff trying to distance himself from D and his associates.
The claim to be recognised as a refugee failed at first instance and on
appeal to the Refugee Status Appeals Authority (RSAA). [See Refugee Appeal No. 76339 [2010]
NZAR 386 (NZRSAA)].
The grounds for the
judicial review application were that the RSAA did not have grounds for
its adverse credibility finding in respect of the plaintiff and failed
to warn him of the possibility of an adverse credibility finding; that
it failed to give the plaintiff the benefit of the doubt; that it erred
in finding that the prosecution of the plaintiff had been genuine and
did not amount to persecution; that it failed to give any or adequate
weight to the evidence the plaintiff relied on to show a well-founded
fear of persecution if he returned to Romania; and that it erred in
finding that the plaintiff's actions in reporting D's involvement in
the fraud did not amount to an expression of political opinion.
Held:
1 An
application for judicial review is concerned with the decision-making
process rather than the decision itself. The court will only intervene
if the decision-making process was procedurally unfair or the decision
was based on a misunderstanding of facts, an error or law or if the
Authority has taken irrelevant matters into account, failed to take
relevant matters into account or was so unreasonable that no rational
Authority could have made that decision (see para [4]).
Chief
Constable of North Wales Police v Evans [1982] 1 WLR 1155 (PC)
and Mercury Energy Ltd v Electricity Corp of
NZ Ltd [1994] 2 NZLR 385 (PC) referred to.
2
One of the reasons given for the Authority's credibility assessment was
the
inherent implausibility of the plaintiff's account. This is recognised
as a legitimate basis for decision-making (see para [5]).
B v Refugee Status Appeals Authority
(High Court Auckland, M1600/96, 23 July 1997, Giles J) referred to.
3
As to the submission that when an applicant swears to the truth of
allegations it creates a presumption that the allegations are true
unless there is reason to doubt their truthfulness, this is the not the
approach that has ever been adopted in New Zealand and it would in fact
be contrary to the requirement under ss 129G(5) and 129P(1) of the
Immigration Act 1987 that the claimant has a statutory duty to
"establish the claim". In any event the Authority did have
reasons for rejecting the plaintiff's sworn statements and the
plaintiff's claim was also inherently improbable and the Authority was
entitled to take that view (see paras [21]-[24]).
4
The submission that the Authority should have given the plaintiff
warning of the possibility of an adverse credibility finding needs to
be considered against the fact that the Authority is a body recognised
as having specialist expertise in the assessment of claims for refugee
status. Its expertise and the specialist nature of its inquisitorial
process has previously been recognised by the High Court and the Court
of Appeal (see para [29]).
U
and V v Refugee Status Appeals Authority (High Court Auckland,
CIV-2003-404-002530, 30 September 2003, Harrison J); A v Refugee Status Appeals Authority
(High Court Auckland, CIV-2005-405-1520, 1 March 2006) and Jiao v Refugee Status Appeals Authority
[2003] NZAR 647 (CA) referred to.
5
Although the Authority usually has available to it some independent
information about the conditions in the applicant's country of origin
it will almost always depend on the applicant to provide a truthful
account of the particular circumstances relied on to support the claim
to refugee status. In that situation, and especially where an applicant
is represented, it is difficult to see how any applicant would not
appreciate his or her credibility was in issue (see para [30]).
Khalon
v Attorney-General [1996] 1 NZLR 458 (Fisher J) applied.
6 As to
the submission that the plaintiff was entitled to be given the benefit
of the doubt in terms of the assessment of his claim, there was no real
dispute over the significant facts in the case. The issue was whether
the plaintiff was a knowing participant or an innocent participant.
That was a question that required an assessment of the plaintiff's
credibility. The Authority concluded (and was entitled to) that the
plaintiff is generally unreliable. It is plain that the question
whether the plaintiff should be entitled to the benefit of the doubt
was not one that the Authority was even required to consider (see para
[34]).
7 The
Authority was entitled on the evidence before it to take the view that
D's primary interest was enriching himself and that the plaintiff's
complaint to the authorities about D were properly viewed as steps
taken in self-interest. Aside from the plaintiff's assertions as to D's
political power, which were not supported by any independent
evidence, there was simply no basis on which the Authority could
properly have found that complaining to the authorities about D's fraud
was a political act or an expression of political opinion (see para
[44]).
Application for
review
declined
Other cases
mentioned
in judgment
Augebor v Minister of Employment and
Immigration (1993) NR 315 (FCA)
Cen
v Canada (The Minister of Citizenship
and Immigration) [1996] 1 CS 301
Counsel
Plaintiff in person
P
M McCarthy for
defendants
[Editorial note: On 21 December 2010 the
plaintiff was ordered to pay costs of $5,000. See M v Refugee Status Appeals Authority
(High Court Auckland, CIV-2010-404-003298, 21 December 2010, Courtney
J). On the same day Courtney J dismissed the plaintiff's separate but
related judicial review proceedings in which he challenged a decision
by the Department of Labour to revoke his work permit and he was ordered to pay
$1,970 costs
in those proceedings.]
COURTNEY J
Introduction
[1] The plaintiff, M,
applies for judicial review of a decision by the Refugee Status Appeals
Authority in which the Authority found that M, a Romanian national, did
not satisfy the requirements of Article 1A(2) of the 1951 Convention on
the Status of Refugees.1
[2] M had been convicted in
Romania and sentenced to a term of imprisonment on a charge of VAT
refund fraud. Although M accepted that he had signed documents used to
perpetrate the fraud, he claimed that he was an unwitting participant
and that his prosecution and conviction were orchestrated by his wife’s
uncle, D, as punishment for M trying to distance himself from D and his
associates.
[3] The grounds for the
judicial review application are that the Authority:
a) did not have
grounds for its adverse credibility finding in respect of M and failed to warn M
of the possibility of an adverse credibility finding;
b)
failed to give M the benefit of the doubt;
c)
erred in finding that the prosecution of M had been genuine and did not amount to
persecution;
d)
failed to give any or adequate weight to the evidence M relied on to show a well-founded
fear of persecution if he returned to Romania;
e)
erred in finding that M’s actions in reporting D’s involvement in the fraud did not amount
to an expression of political opinion.
[4] An application for judicial
review is concerned with the decision making process rather than the
decision itself. The Court will only intervene if the decision making
process was procedurally unfair or the decision was based on a
misunderstanding of facts, an error of law or if the Authority has
taken irrelevant matters into account, failed to take relevant matters
into account or was so unreasonable that no rational authority could
have made that decision.2
[5] A significant aspect of M’s
challenge is the Authority’s adverse credibility assessment of him.
That assessment unquestionably influenced the Authority’s decision. One
of the reasons given for the Authority’s assessment was the inherent
implausibility of M’s account. This is recognised as a legitimate basis
for decision making. In B v Refugee
Status Appeals Authority3 Giles J considered
this issue, referring with approval to the decision in Cen v Canada (The Minister of Citizenship
and Immigration)4 and the passage cited in that
case from Augebor v Minister of
Employment and Immigration:5
There is no longer
any doubt that the Refugee Division, which is a specialised Tribunal,
has complete jurisdiction to determine the plausibility of testimony: who is
in a better position than the Refugee Division to gauge the credibility of an
account and to draw the necessary inferences? As long as the inferences
drawn by the Tribunal are not so unreasonable as to warrant our intervention, its
findings are not open to judicial review. In Giron the Court merely observed
that in the area of plausibility, the unreasonableness of a decision may be
more palpable and so more easily identifiable, since the account appears on
the face of the record. In our opinion,
Giron in no way reduces the burden
that rests on an appellant of showing that the inferences drawn by the Refugee
Division could not reasonably have been drawn.
The basis for M’s claim for refugee status
[6] M asserts that his
problems in Romania arose from his involvement with his wife’s family.
His wife’s father and uncle both held responsible positions within the
local authority. Although his wife’s father disapproved of the
marriage, eventually M was accepted into the family, particularly by D.
M emphasised D’s political connections, which existed by reason of his
business relationships, local government connections and membership of
the Social Democrat Party. He also emphasised (and the Authority
accepted) that they hold these positions in the context of pervasive
corruption in Romania.
[7] M became involved with D’s
group and eventually, in 2003, D assisted him to set up business on his
own account dealing in trucks and vehicles. M described at least one
fraudulent transaction organised by D to assist M acquire a vehicle for
his new business. Also in 2003 M agreed to transfer 55 per cent of the
shareholding in his company to D’s wife so that she could start a
business without the difficulty of D being associated with the company
of a close relative, thereby exposing him to a claim of conflict of
interest.
[8] The VAT fraud stemmed from
a transaction later in 2003 involving M’s company. D asked M to sign a
contract and an invoice recording the sale of land by D’s associate S,
to M’s company. D gave M few details and told M that it was a matter
between D and S and that M should stay out of it. D subsequently
advised M that VAT returns on the transaction had been submitted and
that he should expect a visit from VAT inspectors. M claimed not to
have signed any VAT refund request. D instructed M as to what to say to
the VAT inspectors and M followed these instructions. Within a few days
D told M that the VAT refund had been approved and told him to meet
with the VAT inspectors to go through details of the claim. He did this
and duly received the VAT refund of €120,000. On D’s instructions he
transferred this money to S’s account.
[9] The following year the
Economic Police commenced an investigation about the VAT refund. By
late 2004 M had decided to begin distancing himself from D’s group.
This change of heart, he claimed, was prompted by the discovery that
his company’s accounts showed a debt to S about which he knew nothing.
When M sought to exit the company he was told by D’s wife that he could
not do so because that would leave her with the apparent debt to S.
[10] Throughout 2005 M had no
contact with D. He learned later that year that the investigation into
the VAT refund was ongoing. M passed this information on to D who told
him that there was nothing to worry about. In 2006 however, the
investigation seemed to intensify, with M being interviewed by the
Economic Police and later the District Attorney.
[11] M was subsequently charged
with fraud and making a false statement. S and the two VAT inspectors
were also charged. M was acquitted following a trial in September 2006.
D conveyed to him that he had fixed this outcome by bribing the Court
appointed expert. The prosecution appealed. D told M that one of the
Appeal Court Judges had had an affair with M’s father-in-law and M’s
own lawyer also warned that this Judge was against M. M claimed that at
this time he began to pay attention to the documents and discovered to
his surprise that D’s signature had been on the VAT refund approval. D
was not prosecuted in relation to the refund.
[12] The appeal succeeded with
the result that all defendants were found guilty. M and S each received
prison terms of four years two months. M appealed the conviction. He
was not required to begin serving his term of imprisonment pending the
appeal but the legal advice he received was that there was no prospect
of success on appeal. M and his wife decided to leave Romania and, in
the meantime, to divorce from one another in order to protect the wife.
During discussions in mid-2008 with D, D encouraged M to leave the
country, which M interpreted as D wanting to be rid of him so that he
could not use the knowledge he had about D’s group.
[13] M claimed that it was
about this time that he came to believe that D had planned for M to be
prosecuted as retribution for him having distanced himself from D’s
group and that M was seen as a danger to the group because of his
knowledge about how it operated. M believed that D had influenced or
arranged the initial acquittal in order to give the illusion that the
account given by D to M about the transaction would be accepted. By the
time a conviction was later entered by the Appeal Court it would be too
late for M to change his account and implicate D. In his statement M
explained what he believed had happened:
When the Appeal Court
decision came out I had stopped trusting [D] but it wasn’t until later
(September 2008) that I fully realised what he had done. That’s when it all
fell into place for me that he had planned the prosecution in his usual
immaculate way as retribution for me falling out with his group which they took as an
act of rebellion against them. When I said to [D] that I would no longer
server them, I didn’t properly understand how seriously they would take it …
It
became clear to me that once the investigation of the VAT refund had stated [D] had plenty
of time to plan how it was going to go. I have no direct evidence but I am
sure he influenced or arranged the Base Court’s decision so as to sell me the
illusion that the story I was telling would work … . Once I had been sold the
illusion that his story would work I would be comfortable with what would
happen in the Appeal Court, where he would get me convicted and then it
would be too late to reverse the decision or to reverse the story I had been
given to tell.
[14] M resolved to disclose what he
knew about D to the High Court. In October 2008 M wrote out a statement
which he claimed to be the truth of what had happened with the VAT
refund and arranged for it to be sent to the High Court on 3 November
2008, by which time he had already left the country. The High Court
subsequently upheld the conviction and sentence.
[15] On M’s instructions, the
statement he had made to the High Court was also sent to the National
Anti-Corruption Directorate. His wife made a similar complaint which
was lodged with the office of the Romanian President in early 2009. M
did not think that these statements would result in any independent
investigation and, further, believes that D will have got himself in
charge of processing the complaints either personally or through
members of his group. M claims that if he returns to Romania he will be
targeted by D and his group in retribution.
Credibility assessment
[16] Early in its
decision the Authority recorded its acceptance of the fact that
corruption is pervasive in Romania at all levels. The Authority
considered, however, that the evidence suggested that D’s group was
engaged in “low-level” corruption rather than the high-level corruption
asserted by M.
[17] At the outset of its
assessment of M’s case the Authority made an adverse credibility
finding in respect of M:
[66] The Authority
does not accept the appellant’s exculpatory protestations and his
claim that he was an innocent who, having unwittingly married into a
leading family of the “oligarchy”, had to extract himself from it. Rather, the clear
impression of the appellant as a witness is that he is an opportunist who
readily takes advantage of any favourable circumstance but quickly blames others
for circumstances which are not in his favour. He is presently facing a
prison term which he does not wish to serve. He would much rather start a
new life with his wife and son in a country from which he cannot be extradited
and he hopes that the refugee claim will serve this purpose. To achieve
his end he has minimised his own part in the fraud and attempted to shift
all responsibility to others such as [D] and the members of the “oligarchy”. His
“spin” to the fact is given superficial plausibility because the
“oligarchy”, [D] and the other dramatis
personae in his detailed account do in fact
exist. As does pervasive corruption in commerce and the judiciary. However,
the fact that the appellant is able to weave his account around persons and
circumstances which do exist does not mean his account itself is true.
Having seen and heard the appellant give evidence the Authority is of the
view that the dramatis personae
and the corrupt society in which they operate
have simply been co-opted into the appellant’s self exonerating (and
untrue) twist to events. …
[18] The Authority gave two
main reasons for this view. The first was that by the time the
offending had occurred M had already become involved in the corrupt
practices of D’s group and had obtained personal advantages. It
commented that:
[69] Against this
background the Authority does not believe the appellant when he claimed that
his involvement in the VAT refund scheme was an unwitting one in
which he was as much a victim of it [D’s] scheming as the VAT system itself.
The Authority’s assessment of the appellant is that he was a willing
accomplice in the VAT fraud, operating in the climate of perceived impunity in
which he was protected by [D] and [D’s] circle. Only when he was charged
with a VAT fraud and ultimately convicted did he reflect on his
activities and the consequences to his wife and young child. He now minimises his
own role and “talks up” anything and everything which lends
plausibility to the “persecution claim”.
[19] The second reason given was the
inherent improbability at the core of M’s case. M’s assertion that [D]
arranged the prosecution, conviction and jail sentence in order to
punish him for leaving D’s group and prevent him from disclosing what
he knew was inherently unlikely, particularly given the fact that the
prosecution was not commenced until 2006, a year and a half after M had
begun to distance himself from the group. During that time there had
been no concern expressed by D and no steps to punish him in any way.
Further, the Authority considered that, even allowing for a level of
corruption in the Romanian judicial system, M’s claim that D not only
fixed the outcome of the first instance proceeding, but also either
knew or persuaded the prosecution to appeal and knew that the Appeal
Court would convict or corruptly arrange that, was “fanciful”.
[20] M asserted that there was
no evidential basis for the adverse credibility assessment such as
inconsistent or contradictory statements by him. He challenges several
specific findings forming part of the overall credibility assessment on
the basis that they were not supported by the evidence. They can be
conveniently summarised as being the findings that:
a) That M was not an
unwitting and innocent participant in the VAT fraud.
b)
M gave a false account to the VAT inspectors.
c)
M minimised his part in the fraud.
d)
M’s account of his prosecution and conviction were inherently implausible.
e)
The prosecution process was not unfair.
[21] Underlying these specific
challenges is the assertion that the Authority wrongly rejected M’s
sworn statement and failed to give any or adequate weight to other
evidence that was available to it. In terms of M’s own statements, M
asserted that the Authority was obliged to take the approach that is
taken in Canada whereby when an applicant swears to the truth of
allegations it creates a presumption that the allegations are true
unless there is a reason to doubt their truthfulness. This, however, is
not the approach that has ever been adopted in New Zealand and it would
in fact be contrary to the requirement under ss 129G(5) and 129P(1)
Immigration Act 1987 that the claimant has a statutory duty to
“establish the claim”.
[22] In any event, it is
apparent that the Authority did have reasons for rejecting M’s sworn
statements. First, by M’s own account he had engaged in dishonest
practises at D’s instigation. These included corrupt transactions in
his business, bribing his way out of a drink driving conviction and
agreeing to D’s wife taking a controlling interest in his company to
help D avoid the problems of conflict of interest rules.
[23] Secondly, in terms of
providing a false statement to the VAT inspectors, even on M’s own
account he made statements to the VAT inspectors that were based on
instructions from D rather than his own knowledge. Given his knowledge
of D’s business practises and his own previous involvement in them the
Authority was entitled to conclude that M either knew or suspected that
the VAT transaction was a fraud and nevertheless co-operated by passing
on to the VAT inspectors an account created by D for that purpose.
[24] I also consider that M’s
claim was inherently improbable and the Authority was entitled to take
that view. M’s claim that the prosecution and his ultimate conviction
had been manipulated by D was not plausible in light of the long period
between M’s supposed break with D’s group and the commencement of the
prosecution and D’s apparent attempt to assist him at the trial.
Further, the suggestion that D had the ability to engineer the
prosecution, the acquittal, the appeal and ultimate conviction is not
only improbable but overlooks the fact that a conviction on the
evidence as it was known to the Authority would have been entirely
justified.
[25] M also asserts that the
Authority failed to give adequate weight to the statements by T and
recordings of conversations between M’s wife and T and M’s wife and D.
The statement by T, a family friend and prosecutor, is only mentioned
in passing at [38] of the decision. T’s only involvement at the
relevant time was prior to the prosecution actually commencing. He met
with M, advised M that there was an ongoing investigation and advised
him to repay the money. Because of his connection with M’s family, T
took no further part in the investigation or prosecution.
[26] M produced a written
statement by T and the transcript of a taped conversation between M’s
wife and T in support of his claim. However, it is apparent that
neither could have improved the Authority’s assessment of M’s
credibility. T’s statement was that when he advised M to repay the
money:
[M] told me that [D]
in his position as chief in department of … had approved the VAT
refund … [D] had promised [M] that nothing will happen because of his [D’s]
connection, on the condition that [M] not declare the truth and keep secret
that this business was initiated by the husband of his associate …
Fully
trusting his promise and because of his position …[M] easily ignored any of my advice,
being convinced that [D] would do everything possible to end this
investigation and exonerate him from responsibility, without having to pay back the VAT
refund.
[27] There is nothing in this part
or any other part of T’s statement that would support M’s claim that he
was genuinely innocent and unwitting in his participation of the VAT
refund. Instead, it paints a picture of M having gone along with D’s
plans and not being prepared to take any action to rectify the
position, in reliance on D’s assurance that he would end the
investigation (through corrupt means). It is certainly clear from T’s
statement that D was involved in the fraud. That fact, however, does
not mean that M himself was not party to the fraud. The fact that he
felt pressured by D and the fact that he did not make any money from
the fraud does not change this position.
[28] Nor, for the same reasons,
is there any assistance to be gained for M from the recordings of a
conversation between his wife and D.
[29] M also argued that the
Authority should have given him warning of the possibility of an
adverse credibility finding. Any such submission needs to be considered
against the fact that the Authority is a body recognised as having
specialist expertise in the assessment of claims for refugee status.
Its expertise and the specialist nature of its inquisitorial process
has previously been recognised by this Court6 and by
the Court of Appeal.7
[30] The question of whether
and in what circumstances it might be incumbent on the Authority to
give warning of a possible adverse credibility finding was considered
by Fisher J in Khalon v
Attorney-General.8 Fisher J made the
observation that credibility findings seemed fundamental to the work of
the Authority; its function was to decide whether a refugee applicant’s
version of events ought to be accepted. Although the Authority usually
has available to it some independent information about the conditions
in the applicant’s country of origin it will almost always depend on
the applicant to provide a truthful account of the particular
circumstances relied on to support the claim to refugee status. In that
situation, and especially where an applicant is represented, it is
difficult to see how any applicant would not appreciate his or her
credibility was in issue. These comments are apt to the present case.
[31] M’s claim depended, in
part, on his assertion that he was an innocent and unwitting
participant in the VAT fraud and that threats had been made to him and
his wife. Self-evidently, his claim could not succeed unless those
aspects of it were accepted. Since the only evidence of them came from
M himself (leaving aside the unsworn statement of his wife), the
Authority clearly could not make an accurate assessment of the validity
of his claim without first making an assessment as to his credibility.
Further, I was advised by counsel for the defendant that at the hearing
before the Authority, M’s counsel acknowledged specifically that M’s
credibility was in issue.
[32] In these circumstances the
Authority was not under any obligation to warn M that he might be
disbelieved.
Benefit of the doubt
[33] M argued that,
given the Authority had such serious doubts about his credibility, he
was entitled to be given the benefit of the doubt in terms of the
assessment of his claim. The approach to giving the applicant the
benefit of the doubt in this context was considered at some length in Jiao v Refugee Status Appeals Authority.9 Noting the feature of many refugee claims that the
applicant may not be in a position to conclusively prove his or her
assertions and the fact that a refugee’s life may be a risk if refugee
status is declined, the Court of Appeal referred to the Handbook on Procedures and Criteria for
Determining Refugee Status of the Office of UN High Commissioner for
Refugees which provides that:
… if the applicant’s
account appears credible, he should, unless there are good reasons to the
contrary, be given the benefit of the doubt …
The
benefit of the doubt should, however, only be given when all available evidence has been
obtained and checked and when the examiner is satisfied as to the applicant’s
general credibility. The applicant’s statements must be coherent and
plausible and must not run counter to generally known facts.
[34] In this case there is no
real dispute over the significant facts in the case. The issue was
whether M was a knowing participant or an innocent participant. That
was a question that required an assessment of M’s credibility. The
Authority has concluded (and was entitled to) that M is generally
unreliable. It is plain that the question whether M should be entitled
to the benefit of the doubt was not one that the Authority was even
required to consider.
Well founded fear of persecution
[35] In order to
establish refugee status M had to establish a well founded fear of
persecution if he were to return to Romania. In his submission, M
submitted that the
Authority had “failed to establish [the] plaintiff’s well-founded
fear”. This of course misunderstands the fact that the obligation lay
with M himself to establish that fear.
[36] M’s argument on this point
was directed towards the likelihood of revenge being taken against him
in the event of him returning to Romania as a result of his
denunciation of D. In particular, M pointed to the fact that his father
in law had physically and psychologically abused his wife and other
members of the family for not complying with family “politics” and
ideals. He referred particularly to the abuse of his wife following M’s
departure from Romania and his subsequent denunciation of D to the
authorities. He also pointed to the attitude of D’s group to opponents
of their interests and politics, being one of threat and revenge.
[37] M criticised the Authority
for not according proper weight to his wife’s statement which he
maintained supported his fears. This lengthy statement was produced in
typewritten form, undated and unsigned. In her statement M’s wife
described an incident when her father asked her to go out for lunch
with him following his conviction. Her father took her to the
restaurant within the prison where prison staff ate. She did not report
any specific threat made but conveyed the intimidation she felt.
[38] The Authority referred to
the statement at [84] noting that:
The Authority has not
had an opportunity to question the wife in relation to her unsworn statement
and given the credibility findings made in relation to the appellant, the
Authority is not prepared to attach significant weight to the statement. In
particular, it does not consider the statement to in any way out weigh the simple fact
that [D] was supportive of the appellant throughout the Court process and has
not since made threats of any kind. The prison lunch incident must be seen
in the context of the longstanding psychological control which the
father exercises over his wife and daughters. The claimed implicit threat
contained in the prison visit, is, in the Authority’s view, conjecture or surmise
as there is no “real ground” for believing that there is a well-founded risk to
the appellant in … Prison. As mentioned earlier, a fear of being persecuted
is not well-founded if it is merely assumed or if it is mere speculation.
[39] It is apparent from [84] that
the Authority did take in M’s wife’s statement into account; it did not
reject the account given of the prison lunch, for example. However, the
Authority cannot be criticised for declining to attach significant
weight to the statement. It was unsigned, unsworn and M’s wife was not
available for cross-examination.
The Authority was bound to treat such a statement with caution.
[40] The statement does not
significantly assist M’s position in any event. The factors that
weighed most heavily with the Authority were essentially that,
notwithstanding M’s decision to leave D’s group in 2004, there was no
evidence of actual threats, intimidation or acts of retribution after
that date. This, of course, assumes that D did not manipulate M’s
acquittal and subsequent conviction and I have concluded that the
Authority had ample reason to find that D did not influence the outcome
of the prosecution. Given the fact that the Authority was entitled to
find that there had been no threats or other retribution taken against
M, its conclusion that there was no well-founded fear of persecution is
entirely justified.
Political opinion
[41] The convention
ground asserted by M in support of his claim is a fear of being
persecuted on the ground of political opinion. M’s claim was based on
the assertion that his complaint against D was a political act or
expression of political opinion because D’s group was a political
oligarchy that could influence public administration and, as a result,
a complaint would be perceived by that group as an expression of
opinion against the PSD based elite.
[42] The Authority rejected
this characterisation. It held that:
[107] … the making of
complaints to the authorities by the appellant, his wife and brother
concerning the alleged unlawful activities by [D] and his group was done not to
manifest a political opinion or to align themselves with the forces of
law and order, but as a means to an end namely, the exoneration, if not
acquittal, of the appellant and the simultaneous exposure of [D]. The appellant
acted in self interest both when getting into the [D] group and when
leaving it. Nothing he has done can sensibly described as a political act or
expression of a political opinion. Nor, on the facts, has [D] or [his group] seen any
actual or imputed political act or expression on the appellant’s part in
their dealings with him. [D]’s singular aim in all his dealings with the
appellant has been to enrich himself by crime and to
protect
himself from being held to account. As far as the appellant’s father in law is concerned,
the operative elements here are disappointment and the dishonouring of the
family’s name. In short, it is manifestly artificial to talk in terms of political
opinion in the context of the present case.
[43] M submitted that it is
sufficient that perceived political opinion, as opposed to actual
political opinion, can form the basis for a claim for refugee status
and argued that the Authority failed to properly consider how the
complaints by M and his wife would have been viewed by D and his group.
[44] It was essential to M’s
argument that D’s group be regarded as having political control.
However, the Authority was entitled on the evidence before it to take
the view that D’s primary interest was enriching himself, and that M’s
complaint to the authorities about D were properly viewed as steps
taken in self-interest. Aside from M’s assertions as to D’s political
power, which were not supported by any independent evidence, there was
simply no basis on which the Authority could properly have found that
complaining to the authorities about M’s fraud was a political act or
an expression of political opinion.
Result
[45] The application for
judicial review is declined.
[46] I was not addressed on the
issue of costs. If costs are to be pursued memoranda may be filed
within 14 days. The plaintiff may respond within seven days after that
and the defendant may reply within a further seven days.
Solicitor for the
defendant: Crown Law Office (Wellington)
1 Refugee Appeal No.76339 23 April
2010
2 Chief Constable of North Wales Police v
Evans [1982] 1 WLR 1155, 1173 applied in Mercury Energy Ltd v Electricity Corp of
NZ Ltd [1994] 2 NZLR 385, 389
3 B v Refugee Status Appeals Authority
HC Auckland M1600/96, 23 July 1997
4 Cen v Canada (The Minister of Citizenship
and Immigration) [1996] 1 CS 301
5 Augebor v Minister of Employment and
Immigration (1993) NR 315 (FCA)
6 e.g. U v Refugee Status Appeals Authority HC
Auckland CIV-2003-404-002530, 30 September 2003; A v Refugee Status Appeals Authority
HC Auckland CIV-2005-405-1520, 1 March 2006
7 Jiao v Refugee Status Appeals Authority
[2003] NZAR 647
8 Khalon v Attorney-General [1996] 1
NZLR 458
9 Jiao v Refugee Status Appeals Authority
[2003] NZAR 647