High Court Cases
High Court Auckland
CIV2005-404-3360;
[2006] NZAR 234
25 October 2005;
19 December 2005
Keane J
Judicial review -
approach to judicial review of RSAA decisions - specialist tribunal
Judicial review -
approach to judicial review of RSAA decisions - judicial review not an
appeal
Judicial review -
review not an appeal - whether grounds of challenge relate to merits of
RSAA decision and not to manner in which it was made
Persecution -
meaning of
Procedure of RSAA - burden of proof - whether a burden of proof on refugee claimant
Procedure of RSAA -
responsibility to establish refugee claim - Immigration Act 1987, ss
129G(5) and 129P(1)
The plaintiff, a
citizen of Iraq and an Assyrian Christian, claimed refugee status on
the basis that were he obliged to return to Iraq, his safety, even his
life, would be at risk because of his ethnicity, his religion and his
political affiliation. The Refugee Status Appeals Authority (RSAA)
arrived at the conclusion that Iraq was subject to a high level of
internecine violence in which all Iraqis potentially, Muslim Arabs,
Assyrian Christians, Kurds and others, were at risk. The RSAA accepted
that Assyrian Christians in some parts of Iraq, notably Baghdad, were
particularly at risk and for Convention reasons. But the RSAA did not
consider that risk to Christians throughout Iraq to be general. It
concluded that were the plaintiff to return to Iraq he would not
necessarily be at risk simply because of his ethnicity, his religion
and his political affiliation. The risk in Northern Iraq fell below the
"real chance" threshold. In contrast to the level of violence against
Christians in Baghdad, it concluded that the risk to Christians in the
north was still random, not systematic. Other members of the population
could equally be injured or killed. There was nothing that singled out
the plaintiff to any greater risk, particularly for a Convention reason.
For the plaintiff it
was submitted that the RSAA had limited "persecution" to acts of
violence. It excluded less extreme forms of oppression, involving the
denial of basic human rights, which are nevertheless well recognised
forms of persecution. The RSAA also required that at the time of the
refugee claim the level of violence towards Assyrian Christians
throughout Iraq was so pervasive that the risk of violence to the
plaintiff, should he return to Northern Iraq, could be seen to be
imminent. This, it was argued, was a misdirection as the Convention
does not require actual persecution. It seeks to anticipate persecution
by its focus on "well-founded fear".
Held:
1.
The issues that arise on a claim for refugee status can be of the
highest personal and public significance. Reasonableness, not
unreasonableness, must be the focus of the inquiry of the High Court on
review of a decision of the RSAA. But there is a need for care also in
another sense:
(a) Though
the Wednesbury test sets the
need for restraint on review at the highest conceivable level, it
remains the clearest possible instance of what review is and what it is
not. Judicial review is not an appeal. It is concerned with how a
decision was made rather than its merit; with whether the decision
maker asked and answered the right question, and did so with sufficient
material. It involves neither a rehearing nor the fresh exercise of a
discretion (see para [26]).
(b) By
statute the RSAA is the ultimate decision maker, it has garnered hard
experience by deciding an ever increasing number of cases, and it is
rarely reviewed by the High Court. That, and the complex dimensions of
the Refugee Convention question itself, are reasons for restraint (see
para [27]).
(c) The
reasonableness of the RSAA's decision, sometimes a matter of degree,
even perhaps impression, is not at large; much depends not just on how
the RSAA decided the ultimate question, but what it was asked to decide
(see para [29]).
(d) Unless
there is significant new evidence to which the RSAA could not have had
access, and which might call for a fresh assessment by the RSAA, the
focus on review has to be on how the RSAA resolved the case as it then
was. There is warrant for a close look. There is no warrant for a fresh
look (see para [31]).
Wolf v Minister of Immigration
[2004] NZAR 414 (Wild J); A v Chief
Executive of the Department of Labour (High Court Auckland,
CIV2004-404-6314, 19 October 2005, Winkelmann J); K v Refugee Status Appeals Authority
(High Court Auckland, M1586-SW99, February 2000, Anderson J); R v Secretary of State for the Home
Department; Ex parte Daly [2001] 2 AC 532 (HL); R v Immigration Appeal Tribunal; Ex parte
Shah [1997] Imm AR 145 (Sedley J); R v Immigration Appeal Tribunal; Ex parte
Shah [1999] 2 AC 629 (HL); Jiao
v Refugee Status Appeals Authority [2003] NZAR 647 (CA) referred
to.
2. The
Authority asked itself the right essential question. It reviewed the
case presented by the plaintiff and went further. After hearing the
appeal it exchanged further information with the plaintiff's solicitors
and on those materials as well decided his claim against the "real
chance" test, resorting to a statistic but only illustratively. It did
not narrow the concept of "persecution". It tailored its conclusion to
the plaintiff's own case. It made no invalidating error of law and it
was not unreasonable (see para [52]).
Observations:
1. The RSAA
understands the "well-founded" standard of the Refugee Convention as
mandating a "real chance" of being persecuted. This has still to be
approved expressly at a high appellate level in New Zealand but has
been recognised to have a settled place (see para [35]).
Chan v Minister for Immigration and Ethnic
Affairs (1989) 169 CLR 379 (HCA) and Jiao v Refugee Status Appeals Authority
[2003] NZAR 647 (CA) referred to.
Application for review dismissed
Other cases mentioned in Judgment
Horvath v Secretary of
State for the Home Department [2001] 1 AC 489 at 515 (HL)
Refugee Appeal No 27558/01 and 27559/01 (19 November 2002) (NZRSAA)
Refugee
Appeal No 70074/96 (17 September 1996) (NZRSAA)
Refugee Appeal No. 74838 and 747839 (14 July 2004) (NZRSAA)
Refugee Appeal No. 74686 (26
November 2004) (NZRSAA)
Counsel
DJ Ryken & IM
Chorao for the plaintiff
MA Woolford for the
first defendant
[Editorial
note: Obiter comments in the judgment discuss "persecution".
Not cited on the point is the leading decision of the RSAA in Refugee Appeal No. 74665/03 [2005]
NZAR 60; [2005] INLR 68. That decision emphasises that the
Convention text uses "being persecuted", not "persecution". The phrase
"being persecuted" draws attention to the fact of exposure to harm
rather than to the act of inflicting harm. This is a significant point,
especially in the context of causation.
Further Editorial Note: The plaintiff appealed unsuccessfully to the Court of Appeal. See S v Chief Executive of the Department of Labour [2007] NZCA 182 (8 May 2007). The judgment of the Court of Appeal is to be found on the Case Search page of this database.]
KEANE J [1] S,
an Iraqi national, who is an Assyrian Christian, entered New Zealand in
December 2001, initially on a nine month visitor’s permit. In October
2002 S claimed refugee status. On 31 May 2004 the Refugee Status Branch
declined his claim and on 19 May 2005 the Refugee Status Appeals
Authority declined his appeal. On this application for review, it is
contended, the Authority was unreasonable and unfair. S seeks orders
setting aside the Authority’s decision and directing that it reconsider
his appeal.
[2] In assessing under Art 1A(2) of
the 1951 Convention relating to Status of Refugees whether S, an
Assyrian Christian and a once active member of the Assyrian Democratic
Movement, had a legitimate claim to refugee status – whether he had a
‘well founded fear of being persecuted’ in Iraq, were he to return
there, and whether, that being so, he was unable or unwilling to avail
himself of the protection of the State of Iraq - the Authority, it is
contended, set the threshold too high.
[3] The purpose of the 1951
Convention, it is contended, is to provide surrogate protection from
persecution where the state from which a claimant comes will not or
cannot; and ‘persecution’ extends to any denial of basic human rights.
But the Authority, it is contended, required to be satisfied that as an
Assyrian Christian S was likely to be persecuted in the most extreme
sense; to be at imminent risk of injury even loss of life. That, it is
contended, rested on a fundamental error of law.
[4] The Authority, which abides the
decision of this Court, it is contended for the Chief Executive of the
Department of Labour, made no such error. S, as claimant, was obliged
to demonstrate to the Authority that he was entitled to refugee status.
He claimed Iraq to be so in the throes of internecine violence, and
Assyrian Christians to be so singled out, and the state to be so
powerless, that were he to return to Iraq his safety, even life, would
be at real risk. Lesser forms of persecution were less emphasised. The
Authority did no more, it is contended, than to find that S had failed
to establish his claim.
[5] Until this application is
resolved S, whose identity is protected from disclosure under s 129T of
the Immigration Act 1987, is entitled by consent order to remain in New
Zealand under a temporary work permit. Presently, it appears also, at
the request of the High Commissioner for Refugees, New Zealand is not
repatriating to Iraq any Iraqis claiming refugee status.
Decision under review
[6] S, the Authority
accepted on the appeal, is as he claims to be an Assyrian Christian,
who from his birth in 1967 lived with his family in a small town in
Northern Iraq, in which Kurds comprise the majority, and Arabs the
sizeable minority. His family, the Authority accepted also, had been
intimately connected with the Assyrian Democratic Movement, which
during the Ba’athist regime promoted the independence and security of
Assyrian Christians, and under the present regime still does. Until 16
years ago his father was a local leader.
[7] The Authority accepted that in
the Iraqi Army, in which he served between 1985 and 1990, S was mocked
for his religious beliefs and practices, that when he returned to the
work force he was harassed; and that he was pressed constantly to
convert to Islam. The focus before the Authority, however, became
rather the risk to Assyrian Christians, and to S were he to return to
the town in which his family still lives, as that risk has evolved from
two distinct sources since the demise of the Ba’athist regime:
traditional Arab Muslim intolerance of Assyrian Christians, and
resurgent Kurds coveting their lands.
[8] Relevant to that risk, as S
himself saw it, the Authority recorded, were the facts set out in paras
[11] to [17] of the decision:
[9] Iraq remains, the Authority
accepted, a ‘generally violent place’; and in Baghdad there was a ‘real
chance’ that practising Christians could be persecuted for a Convention
reason. But, as had been held in recent cases, the Authority concluded,
except in Baghdad, where a significant proportion of Christian Churches
have been bombed, Christians in Iraq were unlikely to be persecuted
because they were Christians: Refugee
Appeal No 74838 and 74839 (14 July 2004) and 74686 (26 November 2004).
[10] Equally, the Authority
accepted, drawing on news agency and interest group reports,
anti-Christian violence in the northern parts of Iraq was increasing
and ADM leaders, if not members, could well be at increased risk. The
risk faced by S’s father, on account of his historical role as an ADM
leader, and by S himself, the Authority
concluded however, could be no greater than that endured by other
Iraqis - Arab Muslims, Assyrian Christians and Kurds alike.
[11] During the Ba’athist regime,
the Authority accepted, S had been detained and beaten, but his only
immediate risk lay in being conscripted into the army. Muslim Arabs,
the Authority found, and Kurds too, were unlikely to be interested in
him and his risk of harm fell well below the ‘real chance’ threshold.
[12] The Authority’s critical
reasoning is set out in paras [32] – [37]:
Appellant’s submissions
[13] In denying his
appeal, it is contended for S, the Authority made two errors, the more
fundamental of which was that by narrowing the Convention question, it
raised without warrant the threshold for refugee status. The Authority
required S to demonstrate that he was ‘at real risk of serious harm’.
The issue was rather, it is contended, whether S had a ‘well founded’
fear of – a ‘real chance’ of suffering ‘persecution’.
[14] One effect of that was, it is
contended, that the Authority limited ‘persecution’ to acts of
violence. It excluded less extreme forms of oppression, involving the
denial of basic human rights, which are nevertheless well recognised
forms of persecution. Then again, it is contended, the Authority
required that at the time of claim the level of violence towards
Assyrian Christians throughout Iraq be so pervasive that the risk of
violence to S, should he return to Northern Iraq, could be seen to be
imminent. Yet the Convention does not require actual persecution. It
seeks to anticipate persecution by its focus on ‘well founded fear’.
[15] This error in its two aspects,
it is contended for S, led the Authority into further error when it
assessed the risk of violent persecution to S as ‘highly serendipitous’
and as indistinguishable from the risk of violence faced by any
‘randomly unfortunate’ victim in the general population.
[16] Underlying the Authority’s
conclusion, it is contended, was an unspoken and impermissible question
– the statistical probability of S becoming a victim of violent attack.
The Authority contrasted the risk to S’s home village or its church
with the statistic that 25 percent of Christian churches in Baghdad had
been attacked, perhaps destroyed. It described the village to which S
would return as ‘one of many’ Christian villages. It adhered to this
when considering whether any risk to S was heightened by his ADM
allegiance.
[17] The issue, it is contended,
can never be numerical. Whether one Christian is injured or killed as
opposed to another might be random. The issue for the Authority was
whether attacks were systemic and expressions of ideology. Did any
attacks, one or several, show that underlying likelihood? If that
likelihood did exist, as the Authority ought to have accepted, it is
contended, then S too was at real risk of persecution.
[18] Persistent acts of random
violence, whether by Arab Muslims or by Kurds, against Assyrian
Christians, on which the Authority focused, it is accepted, could have
been highly indicative. But lesser forms of persecution had to be no
less significant. The Authority ought to have concluded, it is
contended, that S could anticipate that, were he to return to Northern
Iraq to his family, nothing would have changed. He would again find it
difficult to obtain work and he could again expect to be ostracised and
oppressed.
[19] Finally, it is contended,
there has since the demise of the Ba’athist regime been a radical shift
in Iraq, to which the Authority gave little or no weight. Under the
Ba’athist regime Assyrian Christians were persecuted but Kurds were
equally oppressed. Under the present regime Arab Muslim intolerance has
heightened and Kurds seek to oust Christians from their traditional
northern lands. S, who played a part in the ADM in the past, even if at
a low level, the Authority ought to have concluded, could well become a
target.
[20] The Authority’s error, it is
contended, lay in failing to ask what is necessarily a global question.
Instead of asking whether S would be a victim of violence, it should
have asked ‘will life be intolerable for the plaintiff because of a
Convention reason, and will the state fail to protect him, making him
deserving of surrogate international protection?’
[21] The decision of the
Authority is, it is contended for S, perverse in the extreme Wednesbury sense but, because of
what is or may be at stake, the denial of basic human rights and at the
extreme risk to life itself, this Court on review has wide latitude to
intervene.
Scrutiny on review
[22] There can be no
question that in these cases the stakes can be high and, whether and to
what extent they are, it is the anxious task of the Authority to decide
a responsibility that on review this Court shares.
[23] That being so, in Woolf v Minister of Immigration
[2004] NZALR 414, on review of the Deportation Review Tribunal, Wild J
assessed the Tribunal’s decision against a less constraining
standard - not whether it was unreasonable in the sense that it
was perverse or irrational, but whether it was inherently reasonable.
He found that it was not. On the same principle Winkelmann J held in A & Ors v The Chief Executive of the
Department of Labour and The Refugee Status Appeals Authority
(HC Auckland, CIV 2004-404-6314, 19 October 2005, paras [29] – [33]),
on review this time of the Authority, that the Authority’s decision was
to be scrutinised with great care. So scrutinised, she found, it too
contained a significant error.
[24] This need for searching
scrutiny on review was first identified in this context, so far as I
can see, by Anderson J in K v
Refugee Status Appeals Authority (HC Auckland, M 1586-SW99,
February 2000); and it may be that Winklemann J, in the level of
scrutiny on review that she endorsed, intended to echo what Anderson J
said at paragraph [40] of his decision:
[25] In principle, I agree with each
of these decisions. The issues that arise on a claim for refugee status
can be of the highest personal and public significance. Reasonableness,
not unreasonableness, must be the focus of this Court’s inquiry on
review of a decision of the Authority. But there is a need for care
also in another sense, it seems to me, for two reasons identified by
Winkelmann J.
[26] The first is that though the Wednesbury test sets the need for
restraint on review at the highest conceivable level and in that
respect, as Lord Cooke said in R v
Secretary of State for the Home Department, ex parte Daly [2001]
2 AC 532, at para [32], may now be seen as ‘unfortunately
retrogressive’, it remains the clearest possible instance of what
review is and what it is not. Judicial review is not an appeal. It is
concerned with how a decision was made rather than its merit; with
whether the decision maker asked and answered the right question, and
did so with sufficient material. It involves neither a rehearing nor
the fresh exercise of a discretion.
[27] The second is that in the case
of the Authority, in contrast to the Deportation Review Tribunal, there
is no right of general appeal to this Court. By statute the Authority
is the ultimate decision maker, it has garnered hard experience by
deciding an ever increasing number of cases, and it is rarely reviewed
by this Court. That, and the complex dimensions of the Convention
question itself, are yet further reasons for restraint.
[28] In Winkelmann J’s judgment
there is a statement by Sedley J in R
v IAT; ex parte Shah [1997] Imm AR 145, at 153, which bears
repeating:
In R v IAT; ex parte Shah [1999] 2 AC
629, HL, at 646, this statement was endorsed by Lord Steyn.
[29] Finally, on review, the
reasonableness of the Authority’s decision, sometimes a matter of
degree, even perhaps impression, is not at large; much depends not just
on how the Authority decided the ultimate question, but what it was
asked to decide.
[30] A feature of the statute
remarked on by the Court of Appeal in Jiao
v Refugee Status Appeals Authority [2003] NZAR 647, is that a
claimant for refugee status, when applying initially, and when
appealing, carries the ‘responsibility’ to establish his or her claim
on the basis of ‘all information, evidence and submissions’ on which
she or he wishes to rely: ss 129G(5), 129P(1). By contrast, the Court
noted, any officer who decides a claim, and the Authority on appeal,
can seek further information, but does not need to and may decide the
claim solely on the claimant’s own case: ss 129G(6), 129P(2).
[31] Unless then, that suggests to
me, there is significant new evidence to which the Authority could not
have had access, and which might call for a fresh assessment by the
Authority, the focus on review has to be on how the Authority resolved
the case as it then was. There is warrant for a close look. There is no
warrant for a fresh look.
Convention issue
[32] The Appeal
Authority, it is accepted for S, articulated the convention question
correctly but, it is contended also, did not adhere to the question in
its decision. The harm it identified as essential was greater than that
inherent in the concept of ‘persecution’. Thus the ‘real chance’ test
became meaningless. It is as well then to begin at the beginning.
[33] Article 1A(2) defines a
‘refugee’ as one who:
[34] On this appeal the Authority,
relying on the decision Refugee
Appeal No 70074/96 (17 September 1996), as it does invariably,
stated the principal issues it had to decide as these:
(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?
[35] This way of expressing the
issues derives, it appears, from the 1989 decision of the High Court of
Australia, Chan v The Minister of
Immigration and Ethnic Affairs, 87 ALR 411. In New Zealand it
has still to be approved expressly at a high appellate level, but has
been recognised to have a settled place: Jiao v The Refugee Status Appeals
Authority [2003] NZAR 647.
[36] The Authority’s two questions
are abstractly stated. They assume the concept of ‘persecution’, and
the premise on which the duty to accord refugee status arises – the
principle of surrogacy – the equation ‘persecution equals serious harm
plus the failure of state protection’. The duty to protect only arises
when the claimant’s own state is the persecutor or is unwilling or
unable to protect the claimant from the persecution of others: R v IAT; ex parte Shah [1999] 2 AC
69 (HL); Horvath v Secretary of
State for the Home Department [2001] 1 AC 489 at 515 (HL); Refugee Appeal No 27558/01 and 27559/01 (19 November 2002).
[37] On that essential premise Lord
Hope of Craighead said in Horvath,
at 499, speaking of such a case as this, as appears to have been
uncontested on the appeal where the state is not itself the
persecutor, and may be unable rather than unwilling to offer
protection:
[38] What was at large on the appeal
if only implicitly, at least in retrospect, was what might constitute
‘persecution’; and relying on the extended analysis McHugh J
made of that concept in Chan,
at 448-449, it is contended for S, the Authority so reduced its scope
as to deny it efficacy.
[39] In his analysis McHugh J,
having first propounded the ‘real chance’ test of persecution, at 448,
turned to consider what ‘persecution’ might be, beginning with what
kinds of conduct might qualify and then with what purpose and effect;
and as to the former said this:
[40] As to the essential purpose and
effect of such conduct, McHugh J continued:
[41] These descriptions may seem
expansive and, it is contended for S, ought to be applied expansively.
But they exist to serve and must be harnessed to the ‘real chance
test’, which McHugh J propounded; of which Mason CJ, who joined McHugh
J both in that test and in his wider analysis, said at 418:
That is the finally
decisive question and, where direct evidence is lacking, the Authority
will have to resort to inference from the variety of sources Lord Clyde
identified in Horvath, at
513.
[42] Lord Clyde began by saying
this:
[43] At each phase then in the
process, the administrative phase, on appeal and on review, one can
expect both claim and decision to involve these layers of asserted
and either accepted or rejected inference, always with the risk to the
claimant as the final point of reference; and this case was no
exception.
Case before Authority
[44] Complicating his
claim to refugee status in October 2002, the officers of the Refugee
Status Branch found, was that S had failed to disclose that, when he
entered New Zealand in December 2001 on a nine month visitor’s permit,
that was to marry his then fiancée, an Iraqi national with
permanent resident status. They questioned his credibility. They did
accept that he was an Assyrian Christian and an ordinary supporter of
the ADM. They did not accept that, if he were to return to Iraq, he was
at risk in any sense of persecution.
[45] On his appeal on 17 November
2004, at which he was represented by counsel, S contended that there
was a ‘real chance’ that he would be persecuted if he did return to
Iraq. He asserted that violence and lawlessness prevailed, that the
situation of the general population remained volatile and dangerous,
that attacks on Iraqis considered to be collaborating with the
occupying forces were at a peak, that the situation of Christians
living in Iraq had worsened and that Muslim Arab groups, two in
particular, were subjecting them to co-ordinated attacks.
[46] A theme of his appeal was that
because the invading forces were largely Christian, and Christian
missionaries were active, that had excited the anger of Arab Muslims.
Assyrian Christians were particularly at risk, and were leaving Iraq in
increasing numbers. S said that if he had to return to Iraq he would be
at real risk, because of his ethnicity, religion and politics. He
relied also on a recent decision of the Authority, which had concluded
that the Iraqi state could not protect at risk Christians, and in
Northern Iraq, he contended, he would be no better placed. The Kurds,
whom he then seemingly assumed still to be benign, were themselves
victims of violence and unable to offer any protection.
[47] On 8 March 2005 the Authority
sent to S’s solicitors articles it had discovered going to the risk to
Assyrian Christians in Northern Iraq. On 24 March 2005 the solicitors
responded with still more materials. These showed, they contended, that
in Northern Iraq the Kurds, intent on taking by force if need be the
lands of minorities, including Christians, and creating reality on the
ground by denying them access to the ballot box, had become a distinct
source of danger.
[48] S contended that he and his
father were, because of their roles in the ADM, even more exposed; and,
as the Authority had accepted in other recent cases, were unable to
relocate to any other part of Iraq in which they might be safer.
Conclusions
[49] S’s case for
refugee status, as will be apparent, was that, if he were obliged to
return to Iraq, his safety, even his life, would be at risk because of
his ethnicity, his religion, and his political affiliation. Implicit in
his case may well have been that access to housing and employment might
also be denied him, but that was not prominent. It was the risk to his
safety and life for Convention reasons that the Authority had to
assess.
[50] The Authority concluded that
Iraq is subject presently to a high level of internecine violence in
which all Iraqis potentially, Muslim Arabs, Assyrian Christians, Kurds
and others, are at risk. The Authority accepted that Assyrian
Christians in some parts of Iraq, notably Baghdad, were particularly at
risk and for Convention reasons. But the Authority did not consider
that risk to Christians throughout Iraq to be general. Hence its
conclusion that if S were to return to Iraq he would not necessarily be
at risk simply because of his ethnicity, his religion and his political
affiliation.
[51] As to the risk S might be under
if he returned to Northern Iraq, once again the Authority concluded
that it fell below the ‘real chance’ threshold. In contrast to the
level of violence against Christians in Baghdad, the Authority
concluded, that visited on Christians to the north was still random,
not systematic. Other members of the population could equally be
injured or killed. There was nothing that singled out S to any greater
risk, particularly for a Convention reason.
[52] In this analysis the Authority,
as is accepted for S, asked itself the right essential question. It
reviewed the case S presented, and went further. After hearing the
appeal it exchanged further information with S’s solicitors and on
those materials as well decided his claim against the ‘real chance’
test, resorting to a statistic but only illustratively. It did not
narrow the concept of ‘persecution’. It tailored its conclusion to S’s
own case. It made no invalidating error of law, it was not
unreasonable, and S’s application for review will be dismissed.
Solicitors for the
applicant:
Ryken & Associates (Auckland)
Solicitors for the first
defendant: Crown Solicitor (Auckland)