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So M v Refugee Status Appeals Authority

High Court Auckland CIV-2004-404-6740
15-16 September 2005; 20 October 2005
Courtney J

Benefit of the Doubt - when appropriate to apply

Judicial review - admission of new evidence on review - whether fresh evidence admissible

Judicial review - approach to judicial review of RSAA decisions

Judicial review - credibility findings

Judicial review - duty to investigate - Immigration Act s 129P

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

Judicial review - inconsistent findings

Judicial review - mistake of fact - whether mistake of fact a ground for judicial review

Procedure of RSAA - joint hearing - whether procedurally unfair

The plaintiff, a citizen of Iran, was one of four children. Her elder brother experienced problems with the Iranian authorities and left Iran for New Zealand in 1997. There he was recognised as a refugee. Following the departure of her elder brother the plaintiff married but soon divorced in 2001. It was claimed that in 2003 her younger brother began experiencing problems with the authorities in Iran. The plaintiff was said to have been detained on three occasions and interrogated about that brother's whereabouts. On the occasion of her third detention she claimed to have been raped. The plaintiff left Iran and upon arrival in New Zealand claimed refugee status. She said that she was unaware that her younger brother was travelling by the same route, also destined for New Zealand. When that brother arrived in New Zealand he too claimed refugee status. After their claims to refugee status failed at first instance, both the plaintiff and her younger brother appealed to the Refugee Status Appeals Authority (RSAA). By consent their appeals were heard jointly, with the evidence in the one appeal treated as evidence in the other. The RSAA made adverse credibility findings in respect of both the plaintiff and her younger brother and both appeals were dismissed. In the High Court a number of challenges were made to the RSAA decision. In addition the plaintiff sought to introduce a wide range of further evidence, including a summons addressed to the plaintiff. The RSAA had made a specific finding that the summons did not exist and that finding was clearly a factor in its assessment of the plaintiff's credibility.

Held:

1.   The further evidence could not be adduced. Some did not exist at the time of the RSAA hearing, some could have been adduced at the RSAA hearing but was not (see paras [6], [7], [8], [9], [12] and [13]).

Don v Refugee Status Appeals Authority [2001] NZAR 343 (Chambers J) referred to.

2.   The function of the High Court in a judicial review proceeding is limited to considering whether the RSAA approached its decision-making process properly. Generally, it can only act if the RSAA exceeded its power, erred in law, made its decision based on a mistake of fact, took irrelevant matters into account, failed to take relevant matters into account or if its decision was so unreasonable no rational authority could reach it or if the decision-making process was procedurally unfair (see para [23]).

Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (PC) and Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC) referred to.

3.   Only in rare cases will the Court interfere with a credibility finding made by the RSAA. As to the facts, it had had the opportunity to observe the plaintiff and other witnesses over a period of days and in the context of the issues that are routinely coming before it. The RSAA made very explicit adverse credibility findings against the plaintiff. It considered that the version of events advanced was so implausible that it did not believe that they had occurred. There would have to be an exceptional reason for interfering with this finding (see para [25]).

4.   Section 129P specifically imposes on the applicant the responsibility for establishing his or her claim to refugee status. This is, of course, subject to the claimant's right to the benefit of the doubt in respect of aspects of the case that cannot be established. Generally, however, there is no obligation on the RSAA to seek further information or evidence in addition to that provided by the claimant. A refugee claimant cannot demonstrate an error or law by the RSAA as a result of its own failure to make further inquiries or requesting the claimant to make further inquiries (see paras [28] & [29]).

Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) referred to.

5.   The function of the Court is to review the process the RSAA followed in determining the claim as it was advanced then. The findings that the RSAA made were clearly open on the evidence before it. The RSAA could not be expected to disregard the reasons advanced by the plaintiff herself for her detentions and to go in search in what might have been other reasons (see para [55]).

6.   Mistake of fact as a ground of judicial review has not been the subject of clear confirmation by the Court of Appeal but there are several instances in which the High Court has accepted that mistake of fact is available as a ground of review. However, even in those cases, the Court has required, amongst other things, the mistake to have been made in relation to an established or incontrovertible fact. As to the summons, it cannot be said that there was an established fact that might have been the subject of a mistake. The document adduced could not be treated as establishing the existence of the summons and such existence could not safely be treated as an established fact (see paras [63], [64] & [65]).

Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA); Taiaroa v Minister of Justice (High Court Wellington, CP99/94, 4 October 1994, McGechan J); Northern Inshore Fisheries Company Ltd v Minister of Fisheries (High Court Wellington, CP235/01, 4 March 2002, Ronald Young J) referred to.

7.   The difficulty confronting the plaintiff was that the RSAA did not reject her claim because of doubts about a few peripheral aspects of her account that could not be proven. Instead, the plaintiff was faced with a general credibility finding about all aspects of her story, including the very facts that underpinned her claim. The RSAA did not believe that she had suffered in the way she claimed nor that she had exited Iran in the way she described. In those circumstances it was simply not possible to point to one or two aspects of the plaintiff's version of events and complain that she should have been given the benefit of the doubt in respect of them. She was not entitled to the benefit of the doubt in respect of the most critical and fundamental aspects of her story, which the RSAA, following extensive evidence, rejected as implausible (see paras [47] & [49]).

Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA); UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paras 203 & 204 referred to.

8.   The Authority was not required to, and did not, make a finding about the circumstances of the refugee status claim advanced by the elder brother. That brother gave evidence to the RSAA and to that extent his story was before the RSAA. No adverse credibility assessment was made in respect of it. But the truth of those circumstances could not assist in determining the veracity of the plaintiff's account of events that happened to her. The fact that certain things may have happened to the elder brother could not help in deciding whether the plaintiff's account was true, since her account related to events that occurred after the elder brother had departed Iran. The RSAA reached its view based on its assessment of the plaintiff's evidence, which it was quite entitled to do, regardless of how the elder brother's version of events was viewed (see para [73]).

9.   In general, there is no obligation on a tribunal to warn of a possible adverse credibility finding and give an opportunity to respond. There may be particular cases in which the circumstances dictate that such a warning be given. In the present case it must have been obvious to the plaintiff and her counsel that, having advanced the claim in reliance on the younger brother's account of events, his credibility would be relevant to the RSAA's assessment of the plaintiff's claim. The plaintiff gave evidence that during the 2003 detentions she was questioned about the younger brother's whereabouts. If that brother's account of events were not accepted, this would inevitably undermine the plaintiff's account of the detentions (see para [82]).

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J); Hoffmann-La Roche (F) & Co AG v Secretary for Trade and Industry [1975] AC 295 (HL) referred to.

Application dismissed.

Other cases mentioned in judgment:

Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA)
Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163 (Healy J)
New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA)
Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA)

Counsel
E Orlov for the plaintiff
A Longdill for the second defendant

[Editorial note:  This judgment is to be read with the judgment delivered by Courtney J on the same day in relation to the younger brother, namely A M v Refugee Status Appeals Authority (High Court Auckland, CIV-2004-404-6586, 20 October 2005, Courtney J)]

RESERVED JUDGMENT OF COURTNEY J
Table of Contents


Introduction
Application to Adduce Further Evidence  
Correspondence with Amnesty International Regarding Plaintiff’s Father
S M’s Immigration File
Medical Report 1 June 2005
Letters to Red Cross Regarding Plaintiff’s Father
Amnesty International Report
The Plaintiff’s Divorce Decree
Summons
RSAA’s Decision
Principles Applicable on Judicial Review  
First Ground of Review – Failure to Make Enquiry
Second Ground of Review – Mistake of Fact / Failure to Take Vital Facts Into Account
Status of mullah with whom S M had dispute 
Detention and rape of plaintiff 
Finding that response of plaintiff’s family implausible 
Third Ground – Failure to Apply Proper Testing in Assessing Credibility 
Failure to give plaintiff the benefit of the doubt 
Failing to assess credibility against how Iranian family and woman would have acted
Assessing plaintiff’s credibility by reference to credibility of AM
Failing to view plaintiff’s belief as to reasons for detention as not determinative of the actual reason
Possible error of fact forming basis of credibility assessment
Further submissions in relation to first, second and third grounds for review
Fourth Ground of Review – Failure to Take Into Account or Apply the Appropriate Test (the RSAA’s Decision was Unreasonable)
Fifth Ground of Review – Procedural Unfairness
Result

Introduction

[1] The plaintiff is an Iranian national. She arrived in New Zealand in September 2003 and applied for refugee status. Her younger brother, A M, arrived in New Zealand in October 2003 and also applied for refugee status. Their elder brother, S M, was already living in New Zealand, having been granted refugee status in 1998. 

[2] The plaintiff applies for judicial review of the Refugee Status Appeals Authority’s (RSAA) decision 1 September 2004, which dismissed her appeal against the decision of the Refugee Status Branch (RSB) declining refugee status.

Application to Adduce Further Evidence

[3] I deal first with the plaintiff’s application to adduce further evidence. Although the application was filed on 22 April 2005 the affidavits in support were not filed until 7 June 2005 (Sharon Bricknall) and 31 August 2005 (the plaintiff). Even then, one of the annexures referred to in the plaintiff’s affidavit was not attached to the affidavit and I gave leave for the plaintiff to file a further affidavit rectifying that, which she has now done.

[4] The evidence sought to be adduced is:
[5] Ms Longdill opposed the application in respect of all the documents on various grounds; some did not exist at the time of the RSAA hearing, others could not be authenticated and some could have been put before the Authority at the time. She relied generally on the decision in Don v Refugee Status Appeals Authority [2001] NZAR 343 in which Chambers J considered an attempt to adduce additional evidence in support of an application for judicial review of an RSAA decision, saying:

The focus of my enquiry must be on the integrity of the earlier decision making process. As the Court of Appeal said in Roussel Uclas Australia Pty Limited v Pharmaceutical Management Agency Limited [1997] 1 NZLR 650, 658:

New opinion evidence, not presented to the decision-maker, can seldom help to demonstrate that a decision on what is essentially an evaluation exercise was unreasonable when made. It is not appropriate to allow in this material which was not before the decision-maker and was largely brought into existence after the impugned decision was made, and to do so essentially for the purpose of casting doubt on the substantive reasonableness of the decision.

Correspondence with Amnesty International Regarding Plaintiff’s Father

[6] This correspondence post-dates the RSAA decision. The RSAA could not have taken it into account and there is no basis on which it could be adduced as evidence now.    

S M’s Immigration File

[7] The plaintiff seeks to adduce S M’s full immigration file in relation to his refugee status application in 1998. Plainly, this file could have been obtained by the plaintiff at the time of the RSAA hearing had it been regarded as relevant. S M gave evidence to the RSAA in support of the plaintiff’s application. Any relevant information could have been adduced then. There is no basis on which to justify adducing these documents as evidence now.

Medical Report 1 June 2005

[8] This report post-dates the RSAA decision. There is no basis on which it could be adduced as evidence now. Further, I note that evidence of the plaintiff’s medical condition was before the RSAA in the form of a letter from the Auckland District Health Board 23 July 2004.

Letters to Red Cross Regarding Plaintiff’s Father

[9] These letters also post-date the RSAA decision. In any event, they are quite inconclusive and add nothing to the plaintiff’s case. There is nothing to justify allowing them being adduced as evidence now.

Amnesty International Report

[10] This report is entitled “human rights violations and the risk faced by family members of political and social activists”. The plaintiff wishes to rely on it as tending to support her claim that, as the sister of a refugee (S M), she is in a class of persons that would be targeted by the Iranian authorities and liable to detention and ill treatment. Mr Orlov asserts that although the report was dated 23 June 2005 (well after the RSAA decision) the information in it has simply been drawn from Amnesty International’s files and could have been available to the Authority at the time, had a request been made.

[11] Ms Longdill, submitted that the RSAA had no obligation to obtain this information (s 129P Immigration Act 1987) and further, the report is irrelevant because it deals specifically with the risks faced by families of political and social activists, not refugees.

[12] I accept Ms Longdill’s submissions. Section 129P makes it clear that the RSAA had no obligation to obtain a report such as this for the purposes of considering the plaintiff’s appeal. I also accept that the circumstances of those referred to in the report are different to the circumstances of the plaintiff’s brother, whose problems did not stem from political or social activism but from a personal difference with an authority figure. I also note that a number of the incidents referred to in the report occurred after September 2003, when the plaintiff left Iran. For these reasons, the Amnesty International report cannot be adduced.

The Plaintiff’s Divorce Decree

[13] This document is annexed to the plaintiff’s affidavit 31 August 2005. However the annexure is not in English and there is no translation provided. It is impossible even to know what it purports to be, let alone whether it is authentic. Had the plaintiff wished to rely on her divorce decree as part of her case before the RSAA she could have produced it then. There is no foundation on which the document now proffered could be adduced.

Summons

[14] This is the document in respect of which I gave leave for the plaintiff to file a further affidavit. After argument, I also gave leave for her to adduce it as evidence in this proceeding. The second defendant opposed the application to adduce this document as evidence. Ms Longdill says first that this document, if it existed at the relevant time, could and should have been placed before the RSAA. She says that the authenticity of the document must be in doubt, that it is non-specific as to the subject matter of the questioning and gives as the plaintiff’s address one which the plaintiff herself has never referred to before.

[15] I allowed the document to be adduced because the RSAA had made a specific finding that the summons did not exist. That finding was clearly a factor in its assessment of the plaintiff’s credibility, which assessment is impugned in this proceeding. Given the possibility of a mistake of fact, I allowed the document to be adduced so that I could properly consider this issue. In doing so I make no assessment as to its authenticity; I deal with that aspect later.

RSAA’s Decision

[16] The RSAA heard the appeals by the plaintiff and her brother, A M, together over 27-30 July 2004 and delivered its decision 1 September 2004. An interpreter was provided for the duration of the hearing and at the conclusion of the hearing the plaintiff’s counsel was permitted further time to make written submissions.

[17] In its decision the RSAA set out the factual basis for the plaintiff’s case as it was advanced by her. The essential aspects of the case were as follows:

a)    She is one of four children born into a Shi’ite Muslim family in Iran and aged 27 years at the time of the hearing. In 1997 she became engaged to a man who was acquainted with her elder brother, S M, through work. At about this time she became aware that her elder brother was having problems with the Iranian authorities though she was not aware of the reasons. S left the family home before her marriage and she did not see him again until after she herself had left Iran;

b)    Two days after S left the family home she was detained by the Iranian security services, the Ettela’at. She was beaten and released after several hours. Her father was detained at the same time and released the following day;

c)    A week later the plaintiff was arrested again. She was beaten and detained for a few hours. Her fiancé, who had been unaware of her earlier detention, knew about this detention and was angry. Nevertheless the marriage proceeded with the legal marriage in April 1997 and the ceremony in September 1997;

d)    The plaintiff’s marriage was unhappy. Her husband was possessive and violent. About a month after her marriage she was detained again and questioned. After that detention her marriage deteriorated and the couple separated in December 1997. They were divorced in February 2001;

e)    The plaintiff moved back to her family home. She was very depressed as a result of her failed marriage. The family generally was depressed following S’s departure and did not celebrate any family occasions. The plaintiff was still unaware of the reasons for her brother leaving Iran apart from understanding in a general sense that he had problems with an influential cleric concerning a woman;

f)    In 2001 she applied for and obtained an Iranian passport. Her brother S wanted her to visit him in New Zealand, though she was not keen to do this. However, her visitor’s visa application was declined;

g)    In 2003 her brother A opened a shop together with his cousin, H. The shop sold music CDs, gift items and posters and also supplied illegal western CDs. In July 2003 Iranian officials came to the plaintiff’s home looking for her brother A. Soon afterwards A telephoned his mother to explain that his cousin H had been detained and his shop raided. A friend who ran a nearby shop had warned him not to return to his shop. On his mother’s advice A went to his grandmother’s home;

h)    That afternoon the authorities detained both the plaintiff and her father. The plaintiff was beaten and verbally abused. She was released that day, although her father was not;

i)    The next day officials detained her again. She witnessed her father being beaten. She was slapped and abused and interrogated about A’s whereabouts. She was released the following day although her father was not;

j)    A week later the same officials detained her for two days. She was interrogated, beaten and raped. Several days later she received a summons to appear at the revolutionary court to answer questions. The summons was non-specific as to the subject matter on which she was to answer questions.  Her mother contacted her uncle and he arranged for a false passport and for her to depart to Mehrabad airport with the help of a relative who was an airport official;

k)    The plaintiff departed Iran for Thailand on the false passport on 10 August  2003. There she met an agent arranged by her uncle. The agent procured a false Belgian passport for her and instructed her to travel to China, which she did;

l)    Whilst in China the plaintiff telephoned her uncle in Iran and was told that both her mother and her elder brother S were both in Thailand. He provided contact details and she telephoned S who travelled to China with money for her and stayed four days in the hotel with her;

m)    The plaintiff arrived in New Zealand in September 2003. She did not know that her brother, A M, was travelling by the same route, also destined for New Zealand.

[18] Having reviewed the factual basis for the plaintiff’s case the RSAA set out the definition of a refugee in the Inclusion Clause in Article 1A(2) of the Refugee Convention:

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 such 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 residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it

[19] The Authority stated the issues for consideration as follows:

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

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

[20] The Authority then made an assessment of the appellant’s case, considering in some detail the various relevant aspects of the events in 1997 to 2003 i.e. the period beginning with S’s departure from Iran and ending with the plaintiff’s and her younger brother’s departures. The Authority made adverse credibility findings in respect of both the plaintiff and her brother. It accepted that the plaintiff was the sister of S M and A M but beyond those biographical details was left with the clear impression that she had given a fictitious account of detentions resulting from her brothers’ problems. The Authority went on to conclude that A M’s account of events was also fictitious and that he had never been wanted by the authorities in Iran as he claimed.

[21] The Authority identified a number of specific aspects of the plaintiff’s case which had led it to reject the plaintiff’s account:

a)    The fact that there was no attempt by her family to remove her from Iran following the three detentions in 1997 when she was physically mistreated on each occasion. This was to be contrasted with her family’s response to her brother A’s situation; he was removed into hiding merely upon the news that his shop had been raided without ever being detained himself. 
 
b)    Despite being detained three times (along with her father) the plaintiff knew very little of the reasons for which her elder brother S was being sought and did not discuss the matter with her family, notwithstanding that she and S had been confidantes before her marriage and that S said, in evidence in support of the plaintiff’s claim, that he had talked to the plaintiff once or twice about the woman who had given rise to his difficulties;

c)    The plaintiff and A M said that the family’s home was confiscated in 1998 as a penalty for the elder brother’s activities. In comparison the elder brother said in evidence that the home was confiscated in 2003;

d)    In relation to the 2003 detentions the Authority regarded the similar stories, together with other unlikely features, as generally implausible. Despite her previous experiences in 1997 and the fact that she was detained more than once in 2003 the family appeared to take no steps to remove the plaintiff to safety until after the third detention. This seemed implausible given the apparent skills and resources that the family had to remove their children to safety when it was considered necessary;

e)    The plaintiff had given evidence that she had been depressed and withdrawn after the events of 1997 and her previous sociable family was so affected by S’s departure that their home was “like a cemetery” and they no longer celebrated family birthdays. In comparison S gave evidence that following his departure from Iran his family continued to celebrate his birthday. He had made this statement to the NZIS in support of a visa application made for the plaintiff in 2002 and confirmed to the Authority that the statement was correct during the RSAA hearing;

f)    The Authority did not accept that the plaintiff could have been forced against her wishes to visit her brother in New Zealand and therefore did not accept that she was being forced to do so;

g)    The plaintiff had supported her visitor’s visa application in 2002 with evidence of employment in the form of a letter confirming that she had been employed for two years in Iran. However, the plaintiff now says that this letter was false and that she had never worked in paid employment at all in Iran;

h)    The Authority considered it unlikely that the plaintiff’s mother would have travelled from Iran to Thailand in 2003 to visit S while her husband was allegedly in detention, the plaintiff having fled and the plaintiff’s brother still in hiding. S had been able to travel on his New Zealand passport since 2001 but this was the only time any member of his family had travelled to meet him. It appeared that the mother travelled on her own passport without difficulty, which indicated that the family was not generally facing difficulties with the authorities; 

i)    The Authority considered it unlikely that all four members of the family should coincidentally have travelled to Thailand at the same time but, apart from S M and his mother, been kept in ignorance of one another’s movements;

j)    The Authority considered the plaintiff and her brother A’s explanation, that they were worried about their father’s situation, unconvincing in light of their failure to make any real attempt to obtain information about him;

k)    The Authority noted the plaintiff’s failure to produce either the original or a copy of the summons without explanation other than she felt she did not need it and no-one had told her to obtain it. The Authority concluded that the summons did not exist.

Principles Applicable on Judicial Review

[22] In argument the plaintiff’s counsel referred to this proceeding as an appeal but it is a proceeding for judicial review. There is no right of appeal from the RSAA’s decision.  

[23] The function of this Court in a judicial review proceeding is limited to considering whether the RSAA approached its decision-making process properly. Generally, it can only act if the Authority exceeded its power, erred in law, made its decision based on a mistake of fact, took irrelevant matters into account, failed to take relevant matters into account or if its decision was so unreasonable no rational authority could reach it or if the decision-making process was procedurally unfair.

[24] In Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1173 (applied by the Privy Council in Mercury Energy Limited v Electricity Corp of NZ Limited [1994] 2 NZLR 385, 389) the House of Lords observed that judicial review:

…is concerned not with the decision but the decision making process. Unless that restriction on the power of the Court is observed, the Court will…under the guise of preventing the abuse of power, be itself guilty of usurping power

[25] Only in rare cases will this Court interfere with a credibility finding made by the RSAA. It had the opportunity to observe the applicant and other witnesses over a period of days and in the context of the issues that are routinely coming before it. The RSAA made very explicit adverse credibility findings against the plaintiff. It considered that the version of events advanced was so implausible that it did not believe that they occurred. There would have to be an exceptional reason for interfering with this finding. 

[26] I now turn to the various grounds for the review. In argument the plaintiff’s counsel dealt with the first three grounds together. I did not find this helpful. Instead, I consider each pleaded ground separately and then consider the additional submissions made in relation to all three grounds.

First Ground of Review – Failure to Make Enquiry

[27] The first ground pleaded in the statement of claim was that:
 
The RSAA made an error of law in failing to make enquiries or requesting from the appellant that enquiries be made and further evidence be adduced and giving them (sic) further opportunity to adduce [evidence] in relation to some or all of the following issues:

1. The full circumstances surrounding the older brother’s (S M) grant of refugee status and his full file;

2. The exact details under what names the appellants (sic) had arrived in Thailand pursuant to their escape from Iran;

3. Evidence in support of the appellant’s statement that her father had been abducted or arrested by the authorities and was still in custody;

4. Failed to request or inquire into country information regarding the treatment of families or deserters of (sic) refugee applicants.

[28] Section 129P specifically imposes on the applicant the responsibility for establishing his or her claim to refugee status: Jiao v Refugee Status Appeals Authority [2003] NZAR 647. This is, of course, subject to the applicant’s rights to the benefit of the doubt in respect of aspects of the case that cannot be established and I discuss this aspect later. Generally however, there is no obligation on the Authority to seek further information or evidence in addition to that provided by the plaintiff.

[29] In light of s 129P the plaintiff cannot demonstrate an error of law by the RSAA as a result of its own failure to make further enquiries or requesting the plaintiff to make further enquiries. However, for completeness, I note that:

a)    S M gave evidence before the Authority and was questioned on the circumstances leading up to his application for refugee status. There was no reason for the RSAA to go further and request his file or even to indicate to the plaintiff that she should obtain it.

b)    The details of the names the plaintiff claimed to have used to enter Thailand was before the Authority by way of the Confirmation to Claim Refugee Status form completed by the plaintiff in September 2003 when she arrived in New Zealand.

c)    In relation to possible evidence to support the plaintiff’s statement that her father was still in detention, s 129T required the RSAA to maintain the confidentiality of the plaintiff’s claim, which would effectively preclude any independent enquiry in any event.

d)    In relation to the treatment of the families of refugee applicants the plaintiff’s case in the RSAA was predominantly that she had been detained as a result of A’s activities, not those of S.  Further, there was no evidence that the Iranian authorities actually knew of S’s refugee status.

Second Ground of Review – Mistake of Fact/Failure to Take Vital Facts Into Account

[30] The plaintiff asserts three errors of law by the RSAA.

Status of mullah with whom S M had dispute

[31] The first alleged error is failing to take into account a vital fact or making a wrong finding of fact, namely that S M’s grant of refugee status was over a dispute with a religious leader when it was in fact over a dispute with a religious leader who was also a high-ranking officer of the secret services.
 
[32] At paragraph 39 the Authority refers to S M as having a fight with a clergyman. I agree that this description does not adequately express the situation. S M described the mullah with whom he had the problems as being “head of national security of Iran”. But at paragraph 13 the RSAA refers to an “influential cleric”. This is a more accurate description. Read in its entirety the decision does not indicate that the circumstances described by S M were ignored or downplayed.

[33] In any event, this aspect of the decision would not have had any effect on the outcome. The significance of the alleged error was said to be that, had the full circumstances been taken into account, the relentless persecution of the appellants by the secret service over apparently minor or insubstantial matters would have been credible. However, the credibility findings relating to the events in 1997 did not turn on the status of the mullah involved. Instead, the RSAA was influenced by the apparent lack of response by the plaintiff’s family to her detentions and her assertion that the family did not discuss SM’s predicament or the reasons for it.

[34] The plaintiff’s case was that she was detained in 1997 because of S’s conduct. The RSAA’s response was that if that had been true her family could have been expected to act to protect her rather than leave her in danger of being repeatedly detained. Further, it was unlikely that neither the plaintiff nor her husband would have discussed the matter with her parents.  

[35] This view was open to the RSAA and it is an entirely different issue from the status of the mullah involved. The factors that caused the RSAA concern would have existed whether it had referred to the mullah as being a member of the secret service or not. I do not consider that the RSAA erred in taking a wrong view of the mullah’s status but even if it had, such an error would not have had the effect contended by the plaintiff.

Detention and rape of plaintiff

[36] The second alleged error is the RSAA’s finding that the appellant had not been beaten and raped. The general basis for this complaint is twofold. First, it is said that the RSAA failed to take into account or make enquiries of or request further evidence or information about the appellant’s treatment by a psychologist for nervous illness and depression said to have arisen directly from the beating and rape. I dispose of this issue by referring back to s 129P and the fact that the RSAA was under no obligation to obtain or request further evidence or information. The plaintiff referred in her evidence to being depressed and produced a letter from the Auckland District Health Board as to treatment she was receiving. This aspect was referred to in the RSAA’s decision. There was no need, nor any obligation, for it to go further.

[37] Secondly, the plaintiff alleges error by the RSAA in finding that the plaintiff’s failure to go into hiding after the first detention impacted on her credibility. The plaintiff asserts that this finding was made by reference to the response of a normal (by implication, western) woman rather than an ordinary Iranian woman, whose cultural and legal position is such that she could only gain protection from her immediate family and husband. This is more properly viewed as an allegation that the RSAA acted unreasonably in assessing the plaintiff’s credibility and I deal with it in that way as a separate ground later.

Finding that response of plaintiff’s family implausible

[38] The RSAA found that the response of the plaintiff’s family was implausible in light of the way they acted to protect her bothers (sic) at the first sign of trouble. The plaintiff asserts that had her family’s actions been assessed against the cultural and legal background of Iran the credibility findings would have been in her favour. In particular, the plaintiff claims that the RSAA’s assessment of her family’s apparent lack of response to her plight was based on an erroneous assumption that men and women were treated identically in Iran.

[39] In response, Ms Longdill submits that the RSAA’s decision was simply that the plaintiff had not “suffered serious harm at the hands of the authorities for the reasons she described” (paragraph 63) i.e. because of her brothers’ activities. Ms Longdill says this falls short of a finding that she had not been raped or beaten at all. However, I think that the RSAA did make a factual finding that no such beatings and rape took place. At paragraph 48 there is a specific finding that the plaintiff “had not suffered at the hands of the authorities in the way alleged”. I take this as a clear finding that the beatings and rape had not in fact occurred. The question is whether the process followed by the RSAA in reaching that decision was flawed.

[40] Mr Orlov spoke at length about the difficulties women face in Iran and in particular about the hostility faced by those who are divorced or sexually abused. I note that evidence of this type was before the Authority in the form of the statements of both the plaintiff and S M. It is also reasonable to assume that general information of social conditions in Iran is within the Authority’s knowledge. The RSAA decision refers several times to the plaintiff’s concerns about how she might be treated as a result of these factors. It is plain from the experience of the RSAA in dealing with all types of refugee status applications, including those from Iranian applicants, and the country information available to the Authority that it is aware of the relevant cultural issues highlighted by the plaintiff in Mr Orlov’s submissions. 

[41] The reasons the RSAA gives for rejecting the plaintiff’s account cannot, however, be linked to any failure to appreciate these aspects of Iranian culture. The credibility findings were based predominantly on the failure by the plaintiff’s family to respond to her situation. The plaintiff claimed that her family is a progressive one, within the constraints that exist in Iran. Therefore the general attitude towards women in Iranian society would not explain the failure of the plaintiff’s family to act.

[42] The RSAA’s doubts centred on the fact that, although the plaintiff’s family clearly could have acted to ensure her safety much earlier, it chose not to. It concluded from this that there was no need to act. I consider that this conclusion was open to the Authority and it cannot be said to have been either unreasonable or reached without taking account of any relevant consideration.

Third Ground – Failure to Apply Proper Test in Assessing Credibility

[43] There are several errors alleged under this head.

Failing to give plaintiff the benefit of the doubt

[44] The plaintiff says that, in assessing her credibility, the RSAA failed to take into account the tests and warnings laid down in the UN handbook on refugees that conflicts in evidence and even untruths as to matters not directly concerned with the actual fact of the persecution in the circumstances of real persecution and an imminent threat to safety and life should not be used or should be used with great care in drawing conclusions as to the veracity of events i.e. it should have given her the benefit of the doubt.

[45] The starting point for this discussion is the reiteration of the difficulties faced by the plaintiff in attacking credibility findings. These were findings made by the Authority following extensive evidence from both the plaintiff and her brothers. Further (and contrary to the pleading) most of the credibility findings were not made in respect of peripheral issues but in respect of factual assertions fundamental to the plaintiff’s claim.

[46] It is true that a number of peripheral factual issues played a part in the Authority’s overall assessment of credibility. I take as an example the RSAA’s view that it was implausible that the plaintiff’s mother should travel to Thailand to meet S M at such a fraught time for the family. This aspect could be regarded as peripheral. However, most of the factual findings related to the events at the heart of the plaintiff’s claim, namely whether the detentions in 1997 and 2003 and her and her family’s response to them occurred as she claimed.

[47] The circumstances in which the “benefit of the doubt” test should be applied were discussed at some length by the Court of Appeal in Jiao v Refugee Status Appeals Authority (supra). The Court cited from the Handbook on Procedures and Criteria for determining Refugee Status of the Office of the UN High Commission on Refugees, including the following:

After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196) it is hardly possible for a refugee to “prove” every part of his case and indeed if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.

The benefit of the doubt should, however, only be given where all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statement must be coherent and plausible, and must not run counter to generally known facts…
 
[48] The Court went on to observe at [30] that:

What may be said, however, is that the phrase should not get in the way of the proper consideration of the evidence bearing on disputed facts, including a weighing of the possible availability of other evidence supporting or questioning that given by the claimant.

[49] The difficulty confronting the plaintiff is that the RSAA did not reject her claim because of doubts about a few peripheral aspects of her account that could not be proven. Instead, the plaintiff is faced with a general credibility finding about all aspects of her story, including the very facts that underpin her claim. The RSAA did not believe that she had suffered in the way she claimed nor that she had exited Iran in the way she described. In these circumstances it is simply not possible to point to one or two aspects of the plaintiff’s version of events and complain that she should have been given the benefit of the doubt in respect of them. She is not entitled to the benefit of the doubt in respect of the most critical and fundamental aspects of her story, which the RSAA has, following extensive evidence, rejected as implausible.

Failing to assess credibility against how Iranian family and woman would have acted

[50] I have already dealt with this ground above and do not need to consider it again. The RSAA did not err in the manner alleged; its finding was open to it.

Assessing  plaintiff’s credibility by reference to credibility of A M

[51] This ground is also pleaded as procedural unfairness and is more appropriately dealt with in that way. So I leave this issue for consideration later under that ground.

Failing to view plaintiff’s belief as to reasons for detention as not determinative of the actual reason

[52] Through this submission Mr Orlov sought to recast the plaintiff’s case from the way it had been advanced before the RSAA. Before the RSAA the plaintiff relied predominantly on A M’s activities as being the reason for her detentions in 2003. In written submissions her counsel, referring to events in 2001-2002, said that detention and persecution as a result of S M’s conduct had stopped by then.

[53] In this Court, however, Mr Orlov disavowed that this was the case. He submitted that A M’s activities would not usually have attracted the attention of the authorities.  He submitted that what happened in 2003 was actually a renewal of the persecution arising from S M's conduct. He said that whilst the plaintiff might have assumed or believed that treatment in 2003 was due to A M’s activites, in fact, it was due to S M’s conduct in 1997 but that the plaintiff could not have been expected to appreciate that fact. 

[54] Mr Orlov made extensive submissions about the power of the mullah involved, the nature of the Iranian secret service and the manner in which it could be expected to behave, namely that it was entirely likely that a vendetta against S M’s family would be renewed some six years later for no apparent reason. There was, however, no evidential basis for these submissions. This was not the way the plaintiff’s case had been put before the RSAA, where the plaintiff gave evidence and, through her counsel, made submissions that she had been detained in 2003 as a result of A M’s activities.

[55] The function of this Court is to review the process the RSAA followed in determining the claim as it was advanced then. The findings that the RSAA made were clearly open on the evidence before it. The RSAA cannot be expected to disregard the reasons advanced by the plaintiff herself for her detentions and go in search of what might have been other reasons.

Possible error of fact forming basis of credibility assessment

[56] At this point I deal with the issue of the summons. It is not specifically pleaded as a mistake of fact but the plaintiff challenges the RSAA’s credibility assessment and that assessment was, in part, based on it finding that the summons did not exist. The plaintiff’s late production of the summons raises the issue of a possible mistake of fact.

[57] In various statements before the RSB and the RSAA the plaintiff said that she had received a summons to appear before the Revolutionary Court to answer questions and that this was the catalyst for her decision to leave Iran. However, she did not produce a copy of the summons. At paragraph 59 of its decision the RSAA (referring erroneously to a summons for arrest) made a specific finding that the summons did not exist, essentially on the basis that the significance of the document had been signalled to the plaintiff by the Refugee Status Officer and the plaintiff could have obtained a copy of it but did not.

[58] The RSAA referred to the plaintiff’s statement to the Refugee Status Officer that she would think about obtaining the summons but did not want to cause her family any trouble. It noted that she did not give any reason why it would cause her family trouble to send the document, particularly given that the plaintiff’s mother had recently travelled in and out of Iran and sent documents to her elder brother without difficulty. I note also that in written submissions 12 August 2004 the plaintiff’s counsel refers to having requested the plaintiff to arrange for her mother to courier her the plaintiff’s original passport, without mention of any difficulty in doing this.

[59] The documents relating to the RSB decision show the following:
[60] In the RSAA hearing the plaintiff was questioned about why she had not produced the summons. The transcript records the following exchange:

AU:    Is your, you said you received a summons, a court summons.
SM:   Yes, they gave it to my mother.
AU:    Where is that document?
SM:    I feel it is at our home.
AU:    Have you asked your mother to send it?
SM:    No, I have not asked, because mostly my mother is with my grandmother in her house.
AU:     Is that the reason why you haven’t asked her?
SM:     Ah yes that is the reason but also when I was Iran (sic) the document was in our home but I do not know what happened to it now.
AU:     You haven’t asked you mother to look for it?
SM:     No I haven’t.
AU:     Why didn’t you?
SM:     When I wasn’t in a situation to ask my mother, mum where is that.
AU:     Can you just explain what you mean by that?
SM:     By that I mean first of all I did not need it, second nobody told me to ask my mother to send it for me, that’s it.
AU:     S knows about that summons doesn’t he? 
SM:     I think he knows.
AU:     And he hasn’t asked you or your mother to get hold of it?
SM:     No. S doesn’t need such a document.
AU:     Your summons?
SM:     No.
AU:     It could be helpful to you. Has anybody suggested to you that you should try to get hold of it?
SM:     RSO just said to me if I can get hold of that document. I said I think about it to see if it wouldn’t cause trouble for my family then and I said to…. I will think about it and others all didn’t ask me later on. Didn’t send me a letter according to that letter I ask my mother.
AU:    …understand you.
SM:     RSO did not send or requested through a letter that summons therefore I didn’t ask my mother.
AU:     So because the RSO didn’t ask you in a letter to get the summons so you haven’t got it, is that it?
SM:     It is correct yes.  
AU:     But it is surprising that S has not, or your uncle has not got hold or tried to get hold of that document.
SM:     Well I didn’t ask for it. Until I request it they wouldn’t send it to me, they wouldn’t think about it.

[61] This exchange suggests that the plaintiff was under the impression that since the summons had not specifically been requested there was no need to obtain it. However, she was represented at both the RSB interview and the RSAA hearing by experienced counsel. It was apparent from the RSB decision that the plaintiff’s failure to obtain the document reflected adversely on her. It must have been obvious to the plaintiff, through her counsel, that the summons would be of relevance at the RSAA stage.  Even after the exchange reproduced above, which made it plain that the RSAA viewed it as relevant, the plaintiff did not ask for the opportunity to obtain it before the RSAA delivered its decision. 

[62] There can be no criticism of the RSAA for its approach to the issue of the summons. But given its relevance it is appropriate to consider whether the RSAA’s finding that it did not exist was based on a mistake of fact, in light of the document now produced.

[63] Mistake of fact as a ground of judicial review has not been the subject of clear confirmation by the Court of Appeal. In Lewis v Wilson & Horton [2000] 3 NZLR 546, involving an appeal from a judicial review proceeding which had succeeded in part on the basis of new evidence as to facts not made available to the District Court Judge, Elias CJ, delivering the judgment on behalf of the Court of Appeal, observed that:

Whatever the scope of mistake of fact as a ground of judicial review (as to which see Daganayasi v Minister of Immigration [1980] 2 NZLR 130; New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544), the additional facts put forward in the High Court do not establish reviewable error. The approach adopted in the High Court would have the effect of permitting any conclusion of fact to be reopened on application for judicial review. The supervisory jurisdiction does not go so far, except where the decision of fact is a condition precedent to the exercise of power or where the error of fact result in a decision which is unreasonable. In such cases, the decision-making process will have miscarried. That was not the case here, even accepting the Judge to have been under the wrong impression of the true facts. Given however the conclusions reached on the reasonableness of the decision it is unnecessary to consider the point in more detail.

[64] There are several instances in which the High Court has accepted that mistake of fact is available as a ground of review (e.g. Taiaroa v Minister of Justice (HC Wellington, CP99/94, 4 October 1994, McGechan J); Northern Inshore Fisheries Company Ltd v Minister of Fisheries and Another (HC Wellington, cp235/01, 4 March 2002, Ronald Young J). However, even in those cases, the Court has required, amongst other things, the mistake to have been made in relation to an established or incontrovertible fact.

[65] It cannot be said in the present case that there was an established fact that might have been the subject of a mistake. Clearly, the document that has been produced cannot be treated as establishing the existence of the summons. It is said to be the photocopy of a faxed document, the original of which was itself a copy. By the plaintiff’s own admission, the document was not served on her personally. This document is not sufficient evidence of a fact in respect of which a mistake could have been made. Had the document been produced to the RSAA, it might have been accorded some weight. But in the context of judicial review it could only be relevant if it could safely be treated as an established fact which, clearly, it cannot. As a result, I do not need to go on to consider whether the summons could have impacted on the credibility findings made by the RSAA.

Further submissions in relation to first, second and third grounds for review

[66] So far, I have followed the grounds of review as they are set out in the statement of claim. At the hearing, however, Mr Orlov made other submissions, which he said related generally to the first three grounds for review.

[67] First, the plaintiff submits that the RSAA undermined the analysis of exceptional humanitarian circumstances by focusing overwhelmingly on the credibility of the plaintiff. Because of its focus on the credibility issue it failed to take into consideration the other relevant circumstances presented by the plaintiff. Some of the issues that the plaintiff says should have been taken into account arise from evidence that I refused leave to adduce. I therefore do not deal with these aspects. There are three remaining facts that the plaintiff says should have been taken into account rather than the RSAA focusing on the credibility issue.

[68] The first are the exact details, particularly the name the plaintiff used on her arrival to Thailand. I do not need to deal with this in any detail because it is already covered above; it is clear from the information that the plaintiff provided in support of her claim that the RSAA did have these details.
 
[69] The second is the plaintiff’s status as a divorcee who has been sexually abused, which means that she will be stigmatised and discriminated against if she returns to Iran. Mr Orlov submitted that the RSAA failed to appreciate that selective discriminatory harassment can constitute persecution and that it had failed to properly consider what the plaintiff may be expected to endure on her return to Iran. As noted, there was evidence (which the RSAA clearly appreciated) from both the plaintiff herself and from her brother S as to the difficulties faced by divorced women in Iran and about the great shame felt by a woman who has suffered any sexual abuse.  

[70] Mr Orlov relied on the decision of the Federal Court of Australia in Kord v Minister for Immigration and Multicultural Affairs [2001] FCA1163, which involved an Iranian of Algerian descent who claimed that he faced persecution as a result of his colour. The Court confirmed that unjustifiable and discriminatory conduct could amount to persecution unless the impact on the applicant is trivial or insignificant. Mr Orlov submitted that the RSAA should have regarded the treatment of women in the plaintiff’s situation similarly i.e. as capable of constituting persecution for the purposes of an application for refugee status. 

[71] However, there is an obvious distinction between that case and the present one, namely that in Kord there was an established factual basis i.e. the plaintiff was coloured and had suffered persecution as a result. Whilst I accept, of course, that the anticipation of persecution may suffice, there must nevertheless be a factual basis for believing that such persecution will occur. In order to advance this ground the plaintiff needs to overcome the factual finding that she was not sexually abused (I do not think that Mr Orlov was suggesting that the mere fact of divorce would be sufficient). The plaintiff cannot attack that finding by pointing to persecution which might exist had the factual circumstances that were specifically rejected by the Authority been true.

[72] The third fact that the plaintiff maintains was not properly taken into account were the circumstances of S M’s refugee status claim. In essence, Mr Orlov submitted that, as the RSAA had accepted S’s account of the events that happened to him (in the context of his own refugee status application) it should therefore have also accepted the plaintiff’s account. However, this does not follow at all.  

[73] This Authority was not required to, and did not, make a finding about the circumstances of S M’s refugee status claim. Mr M gave evidence to the RSAA and to that extent his story was before the Authority. No adverse credibility assessment was made in respect of it. But the truth of those circumstances could not assist in determining the veracity of the plaintiff’s account of events that happened to her. The fact that certain things may have happened to S could not help in deciding whether the plaintiff’s account is true, since her account related to events that occurred after S had departed Iran. The Authority reached its view based on its assessment of the plaintiff’s evidence, which it was quite entitled to do, regardless of how S M’s version of events was viewed.

Fourth Ground of Review – Failure to Take Into Account or Apply the Appropriate Test (The RSAA’s Decision was Unreasonable)

[74] Mr Orlov submitted that the RSAA should have had regard to the test expressed in Guo v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 that:

….a fear is “well-founded” when there is a real substantial basis for it, [and] a substantial basis for a fear may exist even though there is far less than a 50 percent chance that the object of the fear will eventuate. [Whether] a fear of persecution is well-founded an assessment must be made as to whether or not an event might or might not occur in the future”

[75] The plaintiff claims that the RSAA failed to take into account the combination of the circumstances that the plaintiff was a divorced woman who had illegally escaped from Iran, did not have a male family member able to protect her and where it had been alleged in Iran that she had been raped, placed her in the category of people who would not be given the protection of the state and therefore fell within the definition of a refugee under the Convention.

[76] This submission depends, of course, on whether the circumstances relied on did exist. It is not sufficient for the plaintiff to assert that there is a well-founded fear of persecution if none of the factual circumstances said to give rise to that fear exist. It was for the plaintiff to satisfy the RSAA that there was at least some factual basis for her fears. Until she did that the question of whether her fear was well-founded could not arise. 

[77] The RSAA made specific findings that the factual basis for the  plaintiff’s claim were not established. It was entitled to make those findings. In light of them, it cannot have been unreasonable to have found that the plaintiff could not establish a well-founded fear of persecution.

Fifth Ground of Review – Procedural Unfairness

[78] This ground rests on the complaint that the RSAA did not adequately inform the plaintiff or her counsel that her claim would rest on the credibility of her younger brother’s claim and that she was not given the opportunity to address such matters properly or make submissions on them.
 
[79] A review of the way the plaintiff’s claim has progressed makes it clear that the claim has always been based, in part, on her brother’s account of events and that the two claims have been advanced in tandem: 

a)    At question J5 in her Confirmation of Claim to Refugee Status form completed 10 September 2003 the plaintiff stated:

My brother became a fugitive on 8 July 03. The Ettela’at was looking for him. In the process they dug out my record and took me to the Police station a few times.

b)    Arrangements for the hearing of the plaintiff’s claim and that of her brother were made in tandem and on 17 February 2004 the NZIS wrote to the plaintiff’s then solicitor stating:

I have also included a Privacy Waiver form which I would like your client to fill out in respect of her brother, A R M. This will assist the RSB to assess these claims jointly. (emphasis added)

c)    In the refugee status interview report 17 February 2004 which reported on the RSB’s interview with the plaintiff on 5 November 2003 the RSB recorded the plaintiff’s claim as being based on a fear of returning to Iran for three reasons. The second of these was that the authorities believed that she was involved in political activities because of her brother A. In that report the RSB raised various credibility issues it was concerned about and invited the plaintiff’s response. On page 17, it referred to the plaintiff’s statement that she had been arrested and detained on three occasions on account of her brother A and then went on to identify concerns that the RSB had with this evidence. 

d)    At paragraph 2 of the decision the RSAA specifically recorded the fact that, by consent, the evidence of both the plaintiff and her younger brother were considered in support of one another’s appeal.

[80] It is plain that at the RSAA appeal hearing the plaintiff advanced her claim, in part, on the basis of her brother A’s evidence. Although the written submissions filed by her solicitor 12 August 2004 noted that the two claims were separate and had to be considered separately, the submission then went on to specifically deal with the 2003 detentions under the heading “arrests because of A”, submitting that the escalation of violence towards the plaintiff was because of her inability to tell the authorities about the whereabouts of her younger brother A (paragraph 5.3).

[81] Whilst the plaintiff’s claim is, of course, a separate one and had to be considered separately, an integral part of the claim was the account given by A M of events that happened to him in 2003. There were apparently no difficulties for the plaintiff or her family between 1997 and 2003 and there was no suggestion in her statement, evidence or counsel’s submissions in the RSAA appeal to suggest that the renewed interest by authorities in her was the result of anything other than A M’s activities. In particular the questioning by the authorities referred only to A’s whereabouts. The plaintiff’s case was advanced on the basis that her brother’s version of events would be accepted and would support hers.

[82] In general, there is no obligation on a tribunal to warn of a possible adverse credibility finding and give an opportunity to respond: F Hoffmann-La Rouche & Co v Secretary for Trade & Industry [1975] AC295; Khalon v Attorney-General [1996] 1 NZLR 458. There may be particular cases in which the circumstances dictate that such a warning be given. These were discussed at length by Fisher J in Khalon v Attorney-General, also in the context of judicial review of a decision of the RSAA. But in the present case I do not see any basis for departing from the usual position. It must have been obvious to the plaintiff and her counsel that, having advanced the claim in reliance on A M’s account of events, his credibility would be relevant to the RSAA’s assessment of the plaintiff’s claim. The plaintiff gave evidence that during the 2003 detentions she was questioned about A’s whereabouts. If A’s account of events were not accepted, this would inevitably undermine her account of the detentions.

[83] In any event, had such a warning been given it is difficult to see what the plaintiff could have done to alleviate the RSAA’s concerns. Her brother had already given evidence and his credibility assessed. The plaintiff could not alter the basis for her case without offering a further, inconsistent, version of events. In the circumstances, I am satisfied that there is no procedural unfairness in the manner in which this appeal was conducted.

Result

[84] The plaintiff’s application for judicial review fails.

[85] I note that the plaintiff is not legally aided. Costs are reserved. Counsel may apply by memorandum filed within one month, with memorandum in reply filed within one month after that.

Solicitors for the plaintiff: Henley-Smith Law (Auckland)
Solicitors for the second defendant: Meredith Connell (Auckland)