High Court Cases 

High Court Wellington CP 354/98
29 March 2000; 7 April 2000
Gendall J

Immigration Act 1987 - Revocation of temporary permit - Grounds of revocation - Whether formal condition must be attached to permit before revocation can occur - Immigration Act 1987, s 33

Immigration Act 1987 - Service of notice revoking temporary permit - Meaning of personal service and of registered post - Immigration Act 1987 ss 2 & 46

Well-founded fear - Whether fear must exist

The plaintiff, a 36 year old citizen of Azerbaijan first arrived in New Zealand in February 1993.  After deserting his ship he sought refugee status.  Following the decline of that application he appealed to the Refugee Status Appeals Authority (RSAA) but did not pursue that appeal as he left New Zealand in December 1993 by stowing away on a cargo vessel bound for the USA.  There the authorities deported him to Russia.  In January 1995 the plaintiff returned to New Zealand as a stowaway and again applied for refugee status.  Following the decline of that application he appealed to the RSAA.  The appeal was dismissed on 23 April 1998 on the grounds that the plaintiff's claims were simply unbelievable.  Following delivery of the RSAA decision, the plaintiff's work permit current to 12 December 1998 was revoked in August 1998 by the delivery of a courier envelope to the letterbox of the plaintiff's residential address.  In the High Court it was claimed that the notice of revocation was invalid as the work permit had not been issued subject to the condition that it was revocable on the appeal to the RSAA being dismissed, nor had the notice of revocation been served personally.  The decision of the RSAA was challenged on the basis that the RSAA was required to commence its inquiry with an assessment of objective information from the plaintiff's country of origin, Azerbaijan and Russia, and even if it considered that the plaintiff was not a credible witness it nevertheless failed to consider whether he would still be at risk of persecution if returned to Russia or Azerbaijan.

Held:

1    It was not necessary to make a formal condition of the temporary permit that it could be revoked if the RSAA dismissed the refugee appeal.  It is mandatory for a temporary work permit to be date specific so that it is said to exist for a defined period of time.  That defined period of time was one year.  Within that one year period the Minister had a wide discretion to revoke a permit.  This he did and although there is no right of appeal, there is a right of judicial review.  No attempt had been made to show that the exercise of the Minister's discretion in revoking the permit fell into that area of law or unfairness so as to entitle relief by way of judicial review.  Indeed, it was hard to see how one could legitimately argue against the exercise of the discretion to revoke a permit, once the right to remain, as an applicant for refugee status, had been curtailed (see para [15]).

2    There had been proper service of the notice of revocation in terms of the statutory provisions and their clear intent and purpose.  It was unnecessary to decide whether there had been personal service through delivery of the notice to the plaintiff through the courier system, being a recorded delivery similar in nature to the registered post service provided by New Zealand Post.  The plaintiff's point was technical and without merit in judicial review proceedings (see para [16]).

3    The test in the Refugee Convention is not whether a person seeking refugee status should be fearful, but whether the person is in fact fearful.  It is therefore not enough to establish that in a particular country, or some parts or regions of that country, there is persecution of persons of a particular race, religion, nationality or particular social group or political opinion.  It does not follow that all persons from that country hold a fear of such persecution.  There must be a fear which leads to a decision of unwillingness to avail oneself of protection or return.  If such genuine fear does not exist for a reason set out in the Convention, as the Authority found unequivocally to be the case, then there is no basis to declare a person a refugee (see para [33]).

R v Secretary of State for the Home Department; Ex parte Sivakumaran [1988] AC 958 (HL) and Dayal v Refugee Status Appeals Authority (High Court, Wellington, CP 50/97, 26 August 1997, Gallen J) referred to.

4    It is not accepted that despite a finding that an applicant has no genuine fear for persecution for a Convention reason, based upon a credibility assessment of an applicant's contention, such person could still qualify for refugee status because it might be otherwise established that elements of persecutory behaviour exist within the state.  A fear cannot in reality be well-founded unless the fear first exists. If it does not exist, any other objective extrinsic facts are immaterial (see paras [34] & [37]).

Application for review dismissed

Other cases mentioned in judgment

Singh v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J)
R v Immigration Appeal Tribunal, ex parte Syeda Khatoon Shah [1997] Imm AR 145 (QBD)
Dayal v Refugee Status Appeals Authority (High Court, Wellington, CP 50/97, 26 August 1997, Gallen J)
Butler v Attorney-General [1999] NZAR 205 (CA)

Counsel

J S Petris for the plaintiff
A S Butler and J Foster for the defendants

[Editorial note: The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1979) paras 37-46 assume that the phrase "well-founded fear of persecution" contains a subjective element (fear) and an objective element (well-founded) and suggests that the definition attaches importances to the subjective element.  This approach is unhelpful and mistaken for two reasons.  First, it erroneously assumes that the contextual meaning of fear is that of a painful emotion whereas it is clear that fear is used in the sense of anticipation of harm in the future.  There is no emotional content.  Second, the approach overlooks the paramount importance given to the objective element of the definition.  The point made in R v Secretary of State for the Home Department; Ex parte Sivakumaran [1988] AC 958 (HL) is that the focus of the Refugee Convention is not on the facts as subjectively perceived by the individual, but on the objective facts found by the decision-maker.  The dangers inherent in reading the phrase "well-founded fear" disjunctively so as to (erroneously) identify subjective and objective components are discussed by the RSAA in Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) at 11-15.  In this decision the RSAA held that the issues for determination are entirely objective, namely:

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

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

This formulation was accepted as correct by Gendall J at para 22 of the Judgment.  For a more recent affirmation by the RSAA of the objective nature of the assessment, see Refugee Appeal No. 71404/99 (29 October 1999) paras 23-41 & 79.]

GENDALL J [1] The plaintiff is aged 36 and is a citizen of Azerbaijan. He wished to be accorded refugee status by the New Zealand Immigration Service to enable him to reside permanently in this country. His request was declined. He brings proceedings by way of judicial review against the Refugee Status Appeals Authority ("the Authority"), seeking to have its decision quashed. He further sues the Chief Executive of the Department of Labour ("the Department") alleging that the notice of revocation of a work permit issued to him was exercised without lawful authority.

Background Facts

[2] These are comprehensively set out in the decision of the Authority. Their full detail need not be repeated here. The plaintiff is a citizen of Azerbaijan and, prior to the dissolution of the Soviet Union in 1991 he completed military service in the USSR. He then studied in and worked on ships from Sakahlin Island, USSR. He then held a Russian seaman's passport. Between 1986 and 1993 it seems that he worked from Sakahlin Island, Russia, apart from a short period when he returned to visit family in Azerbaijan. There had been nationalistic conflict between the countries of Azerbaijan and neighbouring Armenia after the dissolution of the Soviet Union in 1991 and the respective declarations of independence of those two countries. The plaintiff sailed to New Zealand on a Russian fishing vessel, arriving in Nelson in February 1993. There he deserted his ship. He applied for refugee status to the Refugee Status Section of the Immigration Department. This was declined. He gave notice of an appeal against such decision in October 1993 but did not pursue that appeal, because he secreted himself aboard a cargo vessel in Auckland harbour in December 1993. The vessel went to the United States where the plaintiff was intercepted by American Immigration Authorities. They deported him back to Russia. In the meantime the plaintiff's solicitor had advised the Authority that the plaintiff had left New Zealand and his appeal could be withdrawn. This occurred on 3 March 1994.

[3] Undeterred by his deportation from the USA, the plaintiff left Sakahlin Island, Russia again in mid December 1994 having stowed away, he said, on a fishing vessel. He left the vessel on 16 January 1995 in Nelson and applied again for refugee status. After his interview by the Refugee Status Board, the application was declined and from this he appealed. He then entered into a marriage in Nelson. The Authority heard the appeal on 1 November 1996, hearing oral evidence and questioning of the plaintiff, receiving extensive submissions from counsel and material relating to conditions in Azerbaijan and Russia. It delivered its decision on 23 April 1998, rejecting the appeal and finding that the plaintiff was not a refugee so as to be accorded refugee status.

Procedures for determination of refugee status

[4] Though the Immigration Amendment Act 1999 provides a statutory basis for dealing with applications for refugee status the procedures applicable for determining this plaintiff's status were those which operated pursuant to terms of reference approved by Cabinet on 30 August 1993. The procedures and background were described in Singh v Refugee Status Appeals Authority [1994] NZAR 193 at 197-200. The procedures and terms of reference of the Authority arose upon the exercise by the executive government of its prerogative and not upon any statute. New Zealand has Treaty obligations in respect of persons to whom international protection was to be afforded by the 1951 Convention Relating to the Status of Refugees, and the 1967 protocol ("the Convention"). The Convention defines “refugee” in Article 1A(2) as a person who:

"Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

“In this highly specialised field of adjudication, a great deal depends upon the expertise of the Immigration Appeal Tribunal itself. Its adjudication is not a conventional lawyer's exercise of applying a legal litmus test to ascertain the facts; it is a global appraisal of an individual's past and prospective situation in a particular cultural, social, political and legal milieu, judged by a test which, though it has legal and linguistic limits, has a broad humanitarian purpose."

[6] No person has a statutory right entitling them to a temporary permit, which includes a work permit, but if such is granted then a decision to revoke such temporary permit is a matter for the discretion of the Minister and subject to any special direction under s 130 of the Immigration Act 1987 and the appropriate Immigration Officer. Whilst there is no right of appeal from revocation of a temporary permit a right of judicial review remains. The statutory scheme provides that a temporary permit has to be endorsed as to its currency and the Minister has the right to cancel or vary conditions at any time.

[7] Revocation of the plaintiff's temporary permit was governed by s 33 of the Act. It provides:

"33. REVOCATION OF TEMPORARY PERMIT BY MINISTER -

(1) The Minister may at any time, by notice in writing served on the holder of any temporary permit either by personal service or by registered post addressed to the holder's New Zealand address, revoke the permit.

(2) A notice given under subsection (1) of this section shall -
 

(a) Give the reasons for the revocation of the permit; and

(b) In the case of a person to whom subsection (4) of this section applies, notify the person that the revocation is effective immediately upon service of the notice; and

(c) In any other case, specify a date by which, unless the holder can show good cause why the permit should not be revoked, the holder is required to leave New Zealand.
 
 

(3) Any date required to be specified by paragraph (c) of subsection (2) of this section shall not be earlier than 14 days after the date on which the notice is served on the holder of the permit and, unless the holder sooner shows good reason why the permit should not be revoked, the revocation shall become effective on that date.

(4) Where the holder of a temporary permit is a person to whom any of paragraphs (a) to (d) of section 7 (1) of this Act applies, any revocation under subsection (1) of this section shall become effective immediately on service of the notice under that subsection."

[9] "Personal service" is defined in s 2 as:

"In relation to any document or notice served or to be served on a person, means personal delivery of the document or notice to that person or, where the person refuses to accept the document or notice, the bringing of the document or notice to that person's attention."

"Any service that provides a system of recorded delivery and is similar in nature to the registered post service provided by New Zealand Post."

[11] The plaintiff's first cause of action against the Minister was that the notice to revoke his work permit was not properly served upon him. Further he contends that, not having been issued subject to the condition it would remain in force only so long as his refugee status application was being considered, the permit should not have been revoked upon his appeal being dismissed by the Authority.

[12] The short factual background is that upon the Authority's dismissal of the plaintiff's appeal, the temporary work permit, which had been granted for one year as from 12 December 1997, was revoked by the Minister pursuant to s 33 of the Act. Under that section the notice of revocation must set out the reason for the Minister's decision. It stated that the reason was that as the application for refugee status had been declined, "the work permit is deemed to be revoked and you must make immediate arrangements to depart New Zealand". The plaintiff received that notice sometime after 7 August 1998 and before 14 August 1998. He says that he located it in his letterbox, at his address, which has been given as 20 Hanky Street, Wellington. On behalf of the Minister it is said it was delivered by way of courier. Accepting for the moment the plaintiff in fact obtained the notice from his letterbox he clearly received it prior to 14 August 1998 because his current solicitor wrote to the Immigration Service on that date. He said that the plaintiff had provided him with the copy of the notice of revocation and in that letter he raises what he says is a "technical point". The solicitor said that:

"Our client has advised us that the document that he has was found in his letterbox in a courier envelope. He assures us that he did not sign for this letter. We are therefore of the view that the revocation has not been properly served (sic) terms of s 33 of the Act and is therefore not valid."

[14] The permit, if in force, would have expired on 12 December 1998. Its duration was fixed at one year. It is the plaintiff's argument that the revocation was invalid and that therefore, he says, the Minister should take no action against the plaintiff pending the outcome of these proceedings. The matter is moot. No action to remove the plaintiff has been taken pending the determination of the judicial review proceedings. The permit, even if valid, would have expired on 12 December 1998. The Court has no power to order the issue of a new work permit or the renewal of the old one. The plaintiff and his former solicitors would have had no expectation that the permit would continue after the appeal before the Authority was heard and certainly not after 12 December 1998, such being abundantly clear from the correspondence between the plaintiff's then solicitor and the Immigration Service.

[15] In any event I do not accept the submission that the permit could not have been revoked on the basis that the Authority had dismissed the plaintiff's appeal because, so it was said, such was not made a condition of the permit. It was not necessary to make that requirement a formal condition of the permit notwithstanding that it was made abundantly clear to the plaintiff and his solicitor. It is mandatory for a temporary work permit to be date specific so that it is said to exist for a defined period of time. That defined period of time was one year. Within that one year period the Minister has a wide discretion to revoke a permit. This he did and although there is no right of appeal there is a right of judicial review. No attempt has been made to show that the exercise of the Minister's discretion in revoking the permit fell into that area of law or unfairness so as entitle relief by way of judicial review. Indeed it is hard to see how one could legitimately argue against the exercise of the discretion to revoke the permit, once the right to remain, as an applicant for refugee status, has been curtailed.

[16] I have no doubt that there has been there was proper service of the notice of revocation in terms of the statutory provisions and their clear intent and purpose. The defendants say that there was personal service as defined in s 2 through delivery of the notice to the plaintiff, through the courier system being a recorded delivery similar in nature to the registered post service provided by New Zealand Post. I do not have to decide the precise point because service was acknowledged within seven days of the date of the notice and the point is technical and without merit in judicial review proceedings.
 
[17] As I have said, even if the revocation had not come into effect at that time the permit has long since expired by operation of law. That academic argument can have no sway in judicial review proceedings such as these. That the point is moot as is obvious from the relief sought against the Minister, namely that he take no steps until these proceedings have been determined. That in fact has been the case. This cause of action fails.

[18] The plaintiff's second cause of action alleged that the Authority did not treat the plaintiff with natural justice and fairness because in assessing the plaintiff's credibility it did not give him fair or adequate warning throughout the hearing that an adverse credibility finding might have been made. Sensibly, Mr Petris on behalf of the plaintiff abandoned this cause of action. It could have no possible basis to succeed.

[19] The plaintiff's third cause of action against the Authority was that it made an error of law in applying the law to the facts in determining whether the plaintiff had satisfied the test for recognition as a refugee.

[20] It is this point that requires more detailed analysis. The plaintiff said that the Authority was required to commence its inquiry with an assessment of objective information from the plaintiff's country of origin Azerbaijan and Russia and even if it considered that the plaintiff was not a credible witness it nevertheless failed to consider whether he would still be at risk of persecution if returned to Russia or Azerbaijan.

[21] Some examination of the Authority's decision is therefore called for.

[22] The Authority heard evidence over a period of two days from the plaintiff and I have read the transcript of the evidence, which runs to 117 pages. The Authority's reserved written decision encompasses 32 pages. It is an exhaustive and careful decision setting out the background matters, which led to the first appeal, not pursued, because of the plaintiff's departure from New Zealand. It recites in detail the chronology and makes a close analysis of the factual matters the plaintiff related in his evidence concerning not only the circumstances of his first arrival in New Zealand from Sakahlin Island on 19 January 1993 but also the subsequent events when he departed to the United States and thereafter was somewhere in Russia before arriving, again, on 16 January 1995 on board a fishing vessel from Sakahlin Island, Russia. I do not need to recite at all the evidential and factual matters set out in the Authority's decision, except to say that these are comprehensive, detailed and involve a critical and close analysis of events and circumstances as described by the plaintiff. The Tribunal leaves no stone unturned in analysing the evidence including medical evidence said to support the plaintiff's intentions. The Tribunal accurately sets out the issue of being a determination of whether the plaintiff was a refugee in terms of Article 1A(2) of the Refugee Convention and identifies the principle issues as being:

"(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?"

"We are of the view that the appellant is not a man who has given a truthful but imperfect account due to memory lapses, but rather the appellant has throughout given an untruthful account designed to advance a bogus refugee application."

"The Authority has reminded itself that demeanour should not be over-emphasised as a means of assessing the credibility of any witness .... But in some cases the demeanour of a witness may be decisive. It is a form of real evidence not evident from perusal of any written transcript. The style, delivery, manner, timing and tone of the evidence may, cumulatively lead to an irresistible inference that the witness is stage managing the evidence. This is more so where the content of the evidence offends the inherent probability. The appellant was not reliving the past - he was inventing it. He was a skilful practitioner of dissemblance.”

"He was roguishly describing events that had never happened. The Authority had two whole days to observe the appellant's evidence. His answers were an intricate blend of fantasy, fiction and occasional fact. He told the Authority about his succession of James Bond-like escapes with a curious deceitful pleasure."

[25] The Authority concluded that it:

"Accepts only that the appellant is an Azeri who has come to New Zealand twice and left New Zealand once. His account of how he inadvertently left New Zealand is rejected.”

"His account of events in Azerbaijan, Russia and even much of the United States of America is rejected."

"... rejects the assertion that the appellant claim refugee status in America" and that his wish "to convey the impression that he did not know that he was being deported [from America] offends common sense. The appellant is a very worldly street-wise person who moves from country to country, almost at will."
 
"... rejects the appellant's evidence. His life may have had its complications but those complications are unrelated to the former war in Azerbaijan, just as they are unrelated to any of the criteria stipulated by Article 1A(2) of the Refugee Convention.
 
The Authority has made every possible allowance for the anxiety and stress of the proceedings and the fact that the appellant was giving his evidence in a second language but unhesitatingly concludes that his evidence was simply unbelievable. Whatever the appellant was running away from, it was not what he told the Authority.

As the Authority rejects the appellant's evidence there is no evidential basis for the refugee claim."

[27] The Authority had before it material relating to political and social conditions in Azerbaijan as well as in Moscow but not, it seems, in Sakahlin Island. It determined however that as it had found on the facts that the plaintiff did not have a fear of being persecuted for reasons expressed in the Convention and for whatever reason he was endeavouring to enter New Zealand it was not for the reason that he gave in evidence, then it was not necessary to consider the further evidence as to the objective political situation in Azerbaijan and Armenia. This was because, as had previously been established, whether the test imposed in clause 1A(2) of the Refugee Convention is met involves a determination of whether a claimant has subjectively a fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and if so, then whether, objectively assessed, that fear is well founded.

The plaintiff's argument in respect of the third cause of action

[28] The plaintiff says that the Authority erred in law in applying the law to the facts in determining whether the plaintiff has satisfied the test of recognition as a refugee because, he says, it failed to commence its inquiry with an assessment of the objective information from Azerbaijan and Russia. Further it was submitted that even if the plaintiff were not a credible witness he would still be at risk of persecution if returned to Russia or Azerbaijan.

[29] On behalf of the plaintiff it was said his fear relates to return to both Azerbaijan and/or the Russian Federation but for different reasons. The Authority rejected this evidence. However, counsel for the plaintiff submits that the Authority did not consider the actual state of affairs in Azerbaijan or, for that matter, Russia, and that in failing to consider what the actual political situation was the Authority erred.

The plaintiff relies upon the decision in R v Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 AC 958. In that case the House of Lords held that whether an applicant had a "well founded fear" of persecution within the meaning of the Convention and Protocol was to be determined objectively in light of the circumstances existing in the country of his nationality but the Lords did not take issue with the requirement that there be an existence of a state of fear in the mind of an applicant, that being clearly a subjective matter. The decision proceeded on the basis that an actual fear of persecution existed, and the test thereafter to be satisfied was whether such fear was well founded. Lord Goff of Chieveley said, (at p997):

"It is, I think, important to state precisely the form of the competing interpretations of "well founded fear" in Article 1A(2) of the Convention. The view of the Court of Appeal, as expressed in the judgment of Sir John Donaldson M.R. was that "well founded fear" is demonstrated by proving (a) actual fear, and (b) good reason for that fear, looking at the situation from the point of view of a person of reasonable courage circumstanced as was the applicant for refugee status."

"... it must, in my opinion, require that an inquiry should be made whether the subjective fear of the applicant is objectively justified. For the true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people whose fear of persecution is in reality well-founded."

[31] The thrust of the plaintiff's submission is that the Authority disregarded the material put forth as to persecution in Azerbaijan and parts of Russia and that in not assessing objectively what the actual political state was in those respective countries the Authority erred in law because without doing so, it is said, the Authority could not properly determine the issue of refugee status.

[32] The argument is flawed. It is presented on the basis that if it is established that in a particular country, or some parts or regions of that country, there is persecution of persons of a particular race, religion, nationality or particular social group or political opinion, then it must follow that those seeking refuge in another state should, or would have, fear of this. Yet they may not. They may live so far distant from an area of concern that they have no fear. The Convention speaks first, of a person "who owing to well founded fear". That must inevitably mean that a fear exists in the mind of the applicant for refugee status. Without such fear there can be no determination, objectively, whether it is well founded or not. In this case the Authority said there was no Convention fear held by the applicant and the test is not whether the applicant or persons seeking refugee status "should" be fearful but whether in fact they are. In R v Secretary of State for the Home Department ex parte Sivakumaran (supra) is ample authority for the proposition that the applicant for refugee status must establish that there is firstly actual fear of return to a country for a Convention reason, that being an actual subjective element, and secondly that objectively the fear is justified. Genuine fear is required; Dayal v Refugee Status Appeal Authority (High Court, Wellington Registry, CP50/97, 26 August 1997, Gallen J).

[33] It is clear from the wording of Article 1A(2) that "fear" itself is crucial. A critical element in determining whether a person is entitled to refugee status is that fear relates to persecution, and as a result of such fear the applicant is unwilling to avail himself of protection of his country of origin, or because of such fear unwilling to return to it. This is abundantly clear from the use, in three places in the definition, of phrases "owing to a well founded fear of being persecuted", "owing to such fear is unwilling to avail himself of the protection of that country", "owing to such fear, is unwilling to return to it". There must be fear which leads to a decision of unwillingness to avail oneself of protection or return. If such genuine fear does not exist for a reason set out in the Convention, as the Authority found unequivocally to be the case, then there is no basis to declare a person a refugee.

[34] I do not accept that despite a finding that an applicant has no genuine fear of persecution for a Convention reasoning, based upon a credibility assessment of an applicant's contention, such person could still qualify for refugee status because it might be otherwise established that elements of persecutory behaviour exist within the State. By way of example, it is obvious that if there were persecutory elements or actions occurring in one part of a country, but not in that part from which the applicant was living and working, so that he had no genuine fear of persecution, it could not therefore follow that he was entitled to refugee status.

[35] Of course it is not the case that a person who may be subject to persecution is excluded from refugee status if he could relocate elsewhere. That is apparent from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (as quoted in Butler v Attorney General [1999] NZAR 205 at 214):

"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person would not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."

[37] It is in my view beyond argument that a fear cannot in reality be well founded unless the fear first exists. If it does not exist, any other objective extrinsic facts are immaterial.

[38] I am well satisfied that there was no error of law on the part of the Authority in reaching its decision that the plaintiff had not established that he had refugee status in terms of the definition contained in the Convention. In its application of the law to the facts the Authority did not err in determining that the plaintiff had not satisfied the test. The third cause of action fails.
 
[39] As a consequence it follows that the application for judicial review has no foundation in law. The plaintiff has managed to remain in New Zealand, on this occasion, for five years (although two of those years relate to the time from the hearing of his appeal before the Authority and its decision) despite having no entitlement to do so. The application for judicial review is dismissed.

[40] The defendants are entitled to costs and I invite submissions from counsel on that issue.

Solicitor for the plaintiff: J S Petris (Wellington)
Solicitors for the defendants: Crown Law Office (Wellington)