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TN v Refugee Status Appeals Authority

High Court Wellington CP212/00
1 May 2001; 10 May 2001
Chisholm J

Judicial review - new grounds - whether completely new matters can be raised on review

Judicial review - failure to consider evidence - whether error of law to fail to consider evidence

The plaintiff, a citizen of Vietnam, had been detained by the Vietnamese police on two occasions but was not mistreated. After arriving in New Zealand he became involved in protest activities directed against the Vietnamese government and in particular had joined a demonstration by a small group of Vietnamese students at the Auckland Apec meeting on 12 September 1999. His claim that the Vietnamese authorities had an interest in him on account of his political activities in Vietnam and/or in New Zealand was rejected by the Refugee Status Appeals Authority (RSAA) which decided there was no real chance of the plaintiff facing persecution in Vietnam.

Held:

1. The possibility of the plaintiff becoming engaged in political activities on his return to Vietnam had not been raised during the hearing before the RSAA. He was not entitled to raise completely new matters on judicial review (see para [6]).

2. The failure by the RSAA to consider the evidence relating to the Apec demonstration was an error or law (see paras [9] & [11]).

Decision set aside. Matter remitted to RSAA for hearing.

Other cases mentioned in judgment

[no other cases were mentioned]

Counsel

JS Petris for the plaintiff
M Hodgen and J Foster for second defendant

CHISHOLM J

[1] After his arrival in New Zealand during 1997 the plaintiff, a Vietnamese national, made application for refugee status. His application was declined and he unsuccessfully appealed to the Refugee Status Appeals Authority. This application for judicial review challenges the decision of the Authority principally on two grounds: first, the Authority erroneously applied Article 1A(2) of the 1951 Refugee Convention to the facts; and, secondly, the Authority failed to have regard to all relevant considerations. The first defendant abides the decision of the Court.

Background

[2] Before he came to New Zealand the plaintiff had been detained by the Vietnamese police on two occasions when he attempted to stop them confiscating equipment from his family's business but he was not mistreated on either occasion. Over several years the plaintiff's family also encountered problems with a Vietnamese gang which culminated in the appellant complaining about these activities. This prompted members of the gang to visit the family home and to demand information as to his whereabouts which led to the appellant going into hiding and leaving Vietnam for New Zealand.

[3] Since arriving in New Zealand the appellant has become involved in Vietnamese politics. According to his evidence his involvement included: reception of relevant information and distribution to Vietnamese persons resident in New Zealand; attendance at several meetings concerning the political situation in Vietnam; attendance at a candlelight protest on 28 August 1999; involvement in the establishment of a New Zealand branch of the Free Vietnam Alliance (FVA); and involvement in a demonstration by a small group of Vietnamese students at the Auckland Apec meeting on 12 September 1999.

[4] Although the Authority considered the appellant's evidence to be "largely credible", it regarded his evidence concerning the Vietnamese authorities' interest in him on account of his political activities in New Zealand as "very evasive". His claim that the Vietnamese authorities had an interest in him on account of his political activities in Vietnam and/or in New Zealand was rejected and the Authority decided that there was no real chance of the appellant facing persecution in Vietnam. It concluded that he was not a refugee within the meaning of Article 1A(2) of the Refugee Convention and his appeal was dismissed.

First ground of review

[5] It is claimed that the Authority was in error when it concluded that:

"... the possibility of the Vietnamese authorities having any interest in the appellant's limited activities, even if they knew of them, is remote. Therefore this country information concerning the response of the Vietnamese government to dissent, including criminal provisions which might be applied, is of no relevance in the instant case, given that the appellant's activities are not known to the Vietnamese authorities. Any possible application of the [Vietnamese] penal code in the appellant's case is remote and speculative."

Mr Petris' point was that instead of confining its attention to the consequences of the plaintiff's activities before he came to New Zealand and while in New Zealand, the Authority should also have considered the consequences the plaintiff might face by virtue of his political dispositions if he returned to Vietnam.

[6] The problem with this ground of review is that it raises an issue which was not argued before the Authority. Mr Petris accepted that the possibility of the plaintiff becoming engaged in political activities on his return to Vietnam had not been raised by the plaintiff during the hearing before the Authority. Instead the plaintiff's case before the Authority was built around his activities in Vietnam before he came to New Zealand and his activities after he had arrived in New Zealand. The plaintiff is not entitled to raise completely new matters at this stage. This ground of appeal cannot succeed.

Second ground of review

[7] It is not disputed that at the hearing before the Authority the plaintiff stated that he had been involved in a demonstration during the visit of the Vietnamese premier to the Auckland Apec conference and that those demonstrations had been the subject of world media broadcasts. It seems that five Vietnamese students including the plaintiff were involved in that demonstration. The plaintiff claims that the Authority completely overlooked this aspect when arriving at its decision.

[8] The Authority heard the plaintiff's appeal on 15 February 2000 and delivered its decision several months later on 3 August 2000. Only one reference to the Apec demonstration can be found in the decision. That reference is in the introductory section which lists documents received by the Authority including a letter from the Auckland City Council to a member of the Vietnamese Student Association granting the Association permission to protest at the Apec conference.

[9] It is difficult to escape the conclusion that by the time the Authority came to prepare its decision it inadvertently overlooked the information relating to the appellant's involvement in the protest at the Apec conference. When considering whether the plaintiff had a well grounded fear of persecution in Vietnam on account of his activities in New Zealand the Authority said:

"[22] The Authority has carefully considered the appellant's political activities in New Zealand and finds that these are not known to the authorities in Vietnam. The Authority has already rejected as not credible the appellant's claim that his father disclosed to the authorities that the appellant was involved in the FVA. As far as the appellant was aware, no Vietnamese government officials had ever attended the group's meetings. There is no Vietnamese Embassy in New Zealand, indeed the appellant is unaware of the location of the closest embassy. The Authority notes that there is a very small Vietnamese population in New Zealand and any pro-democracy activities they engage in are unlikely to be of any great moment to the Vietnamese government. While the appellant carries out a role in the organisation and his name has been printed (once) in a local Wellington newspaper there is no credible evidence that his activities are known to the Vietnamese authorities and no real chance that this will occur."

Of all the plaintiff's activities which might have become known to the authorities in Vietnam and been of moment to them, the Apec demonstration must have been at the forefront; especially when one of the available inferences on the evidence before the Authority was that the demonstration itself had been the subject of world media broadcasts. Given the nature of the evidence about the Apec protest, the Authority's finding that the appellant's political activities were not known to the authorities in Vietnam is bold, to say the least. In fact when para [22] is read as a whole it is difficult to conceive that it was written with the evidence relating to the plaintiff's involvement in the Apec protest in mind. In all the circumstances the Authority's failure to consider the evidence relating to the Apec demonstration constitutes an error of law.

[10] Soon after the plaintiff's appeal had been dismissed the Authority considered appeal No. 71932/2000 by another Vietnamese student involved in the same demonstration. That appellant had seen himself on the CNN coverage of the Apec conference and it seems that photographs showing his participation were produced. In those respects that decision is distinguishable from the decision under consideration. Nevertheless the Authority's line of reasoning is relevant to the present application:

"While no tape of the CNN coverage was produced to the Authority, there is no reason to doubt that the international media was covering Apec, and it is not unlikely that some exposure would have been given to the numerous protests which took place outside. The Authority is compelled to accept that there is a real likelihood that the Vietnamese authorities would have seen footage of the appellant protesting."

As I read these comments, the Authority considered that in the context of the Apec conference it was not unlikely that some exposure would have been given to the protests and that there was a real likelihood that the Vietnamese authorities would have seen footage of those protests.

[11] Under those circumstances it would be unfair to the plaintiff, and inconsistent with the humanitarian context of this application for judicial review, if this Court was to adopt the simplistic attitude that the plaintiff's actual involvement in the Apec demonstration has not been proved and should therefore be regarded as inconsequential. There does not seem to be much doubt that only five Vietnamese students were involved in the protest. If that is right, common sense would indicate that the chances of his presence having been captured by the media coverage must have been reasonably high.

[12] Given the error of law that has been identified the only safe course is for the matter to be referred back to the Authority. I am not prepared to assume that the Authority would have reached the same conclusion if it had directed its attention to the plaintiff's involvement in the Apec protest. It might also be added that although there might be some merit in the point made by counsel for the second defendant that the plaintiff's involvement in the protest does not seem to have been at the forefront of the plaintiff's case before the Authority, it is nevertheless tolerably clear that the issue of his involvement in the protest was raised. That is enough. The second ground of review has been made out.

Outcome

[13] The matter is remitted back to the Authority for reconsideration. Hopefully the Authority will consider whether it would be desirable in all the circumstances for an attempt to be made to clarify the plaintiff's actual role in the protest. Leave is reserved for either party to seek further directions should that become necessary. Counsel should file memoranda if issues as to costs arise.

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