High Court Cases

High Court Auckland CIV 2003-404-002530
29 August 2003; 30 September 2003
Harrison J

Judicial review -  implausibility - finding of - principles of review

Judicial review - credibility findings - implausibility - finding of - principles of review

Judicial review - deference to RSAA - challenge on grounds of unreasonableness

Refugee Status Appeals Authority - deference - when decision challenged on grounds of unreasonableness

Refugee Status Appeals Authority - imperfections in decision - failure to express findings logically and with clarity - evidential basis for findings available - effect of

The Refugee Status Appeals Authority (RSAA) concluded that the refugee claim was implausible and on that basis found the claim  false.  On judicial review the issues for determination were the grounds on which such findings could be challenged and whether the particular decision was capable of challenge.  

Held:

1    The legal principles applicable to reviewing factual determinations made by the RSAA are:

a)    A decision of the RSAA is final (s 129Q(5) Immigration Act).  An applicant has no right of appeal.  Accordingly, his only avenue of redress is by way of application for judicial review under the Judicature Amendment Act 1972, to be determined on standard grounds relating to the decision making process, not to the merits of the decision itself;

b)    The High Court will only interfere with a credibility finding made by a specialist tribunal on the ground of unreasonableness if it is proven to be perverse, capricious or without any factual basis (this last category may also constitute an error of law);

c)    A tribunal’s discrete finding of implausibility may be more vulnerable to challenge but not if it is reasoned and based upon the orthodox judicial decision making process of drawing inferences available from proven facts by applying logic, common sense and experience;

d)    A conclusion based upon a detailed examination of irrelevant or peripheral issues is unsatisfactory, as is one which obviously fails to make allowance, where appropriate, for the applicant’s cultural background and previous social experiences.

(See para [13])

Lubana v Canada (Minister of Citizenship & Immigration) (2003) 26 Imm LR (3d) 292 (FC:TD) referred to.

2    Members of the RSAA are barristers, trained and experienced in the art of human evaluation.  They enjoy specialist expertise in this important area of the law, and a working familiarity with the reasons variously given by those wanting asylum.  That is not to suggest that the approach adopted by its members is clouded by cynicism, but to recognise the value of their knowledge and insight which a Judge on review cannot hope to replicate.  Accordingly, the RSAA’s factual decisions are entitled to particular respect, and a person challenging them faces a high hurdle in proving unreasonableness (see para [14]).

3    The RSAA cannot properly rely on a speculative answer about the reasons for the failure of a relative or friend to act or speak to draw an adverse conclusion.  A decision-making body cannot legitimately rely on an absence of evidence for this purpose.  Nor, in the circumstances, could the RSAA find adversely to the claimant because of his ignorance of two summonses (see paras [20] & [28]).

4    While the decision of the RSAA followed a convoluted and disparate reasoning process and failed to record direct findings, accompanied by a succinct summary of its reasons, its findings were not unreasonable.  The defects in it's reasoning process were failures to express logically and with clarity adverse findings which were evidentially available.  There was a sufficient factual foundation for rejecting the claimant's evidence without introducing confusion by adopting what appeared to be make-weight grounds (see paras [22], [29] & [36]).   

Applications for review declined

[Editorial note: The judgment at para [10] states that a refugee claimant must satisfy the RSAA "that his subjectively stated fear of persecution" is justified.  While s 129G(5) of the Immigration Act 1987 makes it the responsibility of the claimant to establish the claim, neither the Act nor the Refugee Convention impose a requirement that a refugee claimant establish a subjective fear of being persecuted.  The word "fear" in the Article 1A(2) expression "well-founded fear of being persecuted" refers not to the emotion of fear, but to a well-founded anticipation of being persecuted.  The refugee claimant is not required to establish both a subjective fear as well as an objective risk of serious harm.  The Refugee Convention requires only that the objective risk be established.  See for example Refugee Appeal No. 70074/96 (17 September 1996); [1998] NZAR 252, 260-263 and more recently Refugee Appeal No. 72635/01 (6 September 2002) at [56] & [57].]

Counsel
Chris Tennet and Simon Laurent for the plaintiffs
Marc Corlett for the defendant

HARRISON J

Introduction

[1]    “U” and “V” are young male Iranians.  They flew separately to New Zealand last year.  On arrival each applied for recognition as a refugee under the 1951 Convention and its 1967 Protocol.  The Refugee Status Branch of the New Zealand Immigration Service rejected their applications.  Each then appealed unsuccessfully to the Refugee Status Appeals Authority (“RSAA” or “the Authority”). 

[2]    “U” and “V” have sought judicial review of the two RSAA decisions on a number of grounds falling broadly within the settled categories of unreasonableness and error of law.  They have combined their cases in a composite statement of claim even though they are challenging separate decisions.  This course was plainly inappropriate.  Each plaintiff has a different cause of action based upon different facts.  There is no legal unity between the cases.  

[3]    Accordingly, I shall discuss each claim separately, effectively delivering two decisions within the one judgment.

(1)    “U”

(a)    RSAA’s decision

[4]    The Authority heard evidence on 7 and 28 February 2003 and delivered its decision on 12 March 2003.  It opened by noting that “U” was a 22 year old male who arrived in New Zealand on 9 September 2002 without travel or identity documents.  It summarised events following his arrival before giving a detailed account of “U’s” case which I shall not repeat here.

[5]    I am content to adopt the informative factual summary prepared by Mr Marc Corlett, the Authority’s counsel, as follows:

(1)    The key event which U claims has given rise to a well founded fear of persecution arose out of a friendship with a woman, M.

(2)    M was the widow of a son of a neighbouring family, (the “K” family).  The son had been killed in the Iran/Iraq war.  The K family was strictly loyal to the regime.  Indeed because they had lost three sons during the Iran/Iraq war they were visited on two occasions by the religious leader of Iran, Ayotollah Khamanei.

(3)    U’s family on the other hand were not loyal to the regime.  His father had belonged to a political group which opposed the regime, and had worked as the head of a pharmacy for an international humanitarian organisation up until the Iranian revolution.  Because of his father’s activities, U’s family home was searched on a number of occasions, and his father was detained several times.  While at university U became interested in Sufism, but did not actually become a Sufist.  He did encounter some difficulties during his time at university, and subsequently with the authorities.

(4)    One member of the K family, Mort, was the head of the local Basiji, and U believed that he worked for the intelligence services.  Mort’s brother had been M’s husband.

(5)    In late 2001/early 2002 M came to U’s family home and spoke to U’s mother about floral arrangements.  From that time on, M would come to the family home approximately two times per month, staying about one hour.  Mort and his family did not know of M’s visits to U’s family.

(6)    At some stage U asked M for an accountancy book, and thereafter a friendship began.  M would phone U, and on two occasions they arranged to meet in a public park.

(7)    On 12 June 2002 M invited U over to her parents’ home, saying that she and her brother would be there.  When U arrived, M was wearing a skirt and shirt rather than the chador as she had always previously been dressed in when U had seen her.  She initially told U that her brother had gone out but would be home soon.  However, she subsequently said that her brother had gone to another city and would not be coming home.  M then seduced U, taking him to a bedroom where they had sex.

(8)    M subsequently told U not to worry about what had occurred as no one would find out, but U was unhappy and cried.  He fell asleep and was awoken about 3 a.m.  Mort and give other Basiji officers broke into the house and accosted U in the bedroom.  Mort hit U on the face with a pistol and abused him.  Mort then took U to the basement of a detention centre where he again hit U and threatened him.  U was subsequently taken to a local police station.  He obtained bail, and was taken by an uncle to his grandmother’s home from which he left for a village 180 kms away where he stayed with his grandfather.

(9)    On 22 June 2002, U returned to his native city where he received an Iranian passport of his cousin which contained an entry visa for Thailand.  The following day he flew from Iran to Thailand where he remained until 30 August 2002.  He then left Thailand for China, staying there approximately eight days before arriving in New Zealand on 9 September 2002.

[6]    Two additional facts assumed considerable importance on this appeal.  First, following his departure from Iran “U” remained in contact by phone with his father and his friends, “AJ” and “X” (although he said that “AJ” hung up the receiver on him in January 2003 and they did not converse subsequently).  Second, in a telephone discussion with his father and “AJ” shortly after arriving here “U” learned that one week after he left Iran officials came to the family home looking for him.  They returned again at a later date.  On one occasion officials took away his brother, “MLH”.

[7]    After outlining the facts, the Authority recited the definition of a “refugee” found in the Inclusion Clause in Article 1A(2) Refugee Convention, as follows:

[A person who] owing to 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 habitual residence, as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

[8]    The RSAA then postulated two principal questions for determining whether “U” fell within this definition.  The threshold question was objective: was there a real chance, on the facts as found by the RSAA, that “U” would be persecuted if he was returned to Iran?  The Authority answered this question in the negative, and thus did not have to consider the second question of whether there was a Convention reason for “U’s” persecution.

[9]    The RSAA based its decision on two nominally discrete but factually interrelated grounds.  First, it did not accept that “U” was a credible witness; it described him as ‘… unimpressive … often vague, unresponsiveness and evasive…’ (para 44).  However, it then set out a number of reasons for concluding separately that “U’s” account of his relationship with “M” and her subsequent arrest was ‘completely false and not credible’ (paras 44 and 45).  Later it found that documentary evidence which he had produced in support was fabricated (para 47).

[10]    I pause here to record the obvious.  The RSAA’s inquiry was essentially a factual one.  “U” had to satisfy the Authority that his subjectively stated fear of persecution in Iran was justified (s 129G(5) Immigration Act 1987).  He was the only available witness, supported by documents.  Accordingly, the credibility of his account was essential to the success of his application.

[11]    I shall now consider briefly the legal principles before dealing with “U’s” challenge to the decision itself.

(b)    Legal principles

[12]    Mr Christopher Tennet, senior counsel for both “U” and “V”, advanced detailed submissions on the legal principles applicable to reviewing factual determinations made by immigration tribunals.  With respect, his argument reinvented a well moulded wheel, and introduced an unnecessary degree of over-refinement.  He referred to numerous authorities, but all were variants on the same settled theme and it would be pointless to subject them to discussion.  

[13]    The relevant principles are capable of succinct expression (see generally Lubana v Canada (Minister of Citizenship and Immigration) (2003) 26 Imm. LR (3d) per Martineau J (Federal Court)) as follows:

a)    A decision of the RSAA is final (s 129Q(5) Immigration Act).  An applicant has no right of appeal.  Accordingly, his only avenue of redress is by way of application for judicial review under the Judicature Amendment Act 1972, to be determined on standard grounds relating to the decision making process, not to the merits of the decision itself;

b)    The High Court will only interfere with a credibility finding made by a specialist tribunal on the ground of unreasonableness if it is proven to be perverse, capricious or without any factual basis (this last category may also constitute an error of law);

c)    A tribunal’s discrete finding of implausibility may be more vulnerable to challenge but not if it is reasoned and based upon the orthodox judicial decision making process of drawing inferences available from proven facts by applying logic, common sense and experience;

d)    A conclusion based upon a detailed examination of irrelevant or peripheral issues is unsatisfactory, as is one which obviously fails to make allowance, where appropriate, for the applicant’s cultural background and previous social experiences

[14]    The practical context is this.  The Authority’s members are barristers, trained and experienced in the art of human evaluation.  They enjoy specialist expertise in this important area of the law, and a working familiarity with the reasons variously given by those wanting asylum.  That is not to suggest that the approach adopted by its members is clouded by cynicism, but to recognise the value of their knowledge and insight which a Judge on review cannot hope to replicate.  Accordingly, the RSAA’s factual decisions are entitled to particular respect, and a person challenging them faces a high hurdle in proving unreasonableness.

(c)    Argument

[15]    The real issue is whether or not the Authority’s decision was unreasonable according to these principles.  Mr Simon Laurent conducted “U’s” argument on this point.  He subjected the RSAA’s decision to a careful, informed and balanced analysis.  Mr Corlett argued the Crown’s case with comparable skill.  I wish to commend both on the quality of their advocacy.

[16]    Mr Laurent acknowledged that he could not challenge the RSAA’s adverse credibility finding (para 44).  However, the RSAA could not and did not rest its decision on that ground alone.  It found, independently, that “U’s” account was untruthful (para 45).  In other words, “U” had not established a factual basis upon which the Authority could conclude that there was a real or substantial chance of persecution if he returned to Iran.  

[17]    Mr Laurent submitted that there was no sustainably objective or logical basis for the RSAA’s findings of implausibility; and that, accordingly, its decision was unreasonable.  The structure and content of the Authority’s decision gave credence to his argument and invited attack.  It identified two grounds for finding that his factual account was ‘completely false and not credible’.  I shall discuss them separately.

(i)    Iranian authorities

[18]    First, the Authority held that “U” was ‘inexplicably vague’ about news given by his family on the steps taken by Iranian authorities to prosecute him (para 45(a)).  It identified a number of inconsistencies in his account.  It focused upon “U’s” failure to inquire into the welfare of his brother, “MLH”, whom he alleged was detained by the authorities one week after his departure.  It found that “U’s” prolonged failure to make inquiry about what happened to “MLH” was ‘vague, … unconvincing and … extraordinary’.  Mr Laurent accepted that “MLH’s” fate was rightfully germane to the decision making process but challenged the RSAA’s treatment of the relevant evidence.

[19]    On the second day of the hearing “U” produced an email, sent by his friend, “X”, advising, according to “U’s” father, that “MLH” was released from custody 15 days after “U” left Iran (i.e. by the end of July 2002).  An Authority member asked “U” whether he knew the reason for the failures of his father or his friend, “AJ”, to advise him earlier about “MLH’s” release.  In the absence of direct evidence, “U’s” answer would be conjectural.  

[20]    “U” said that he did not know the reason but speculated, from the placatory way in which his father had earlier communicated, that ‘there was nothing wrong happening there’ and ‘I don’t think they wanted to worry me’.  “U” had assumed his brother was released on the afternoon of his arrest and ‘there was not a significant problem’.  The RSAA relied upon “U’s” answer to draw an adverse inference against him, concluding that his explanation was ‘simply inconceivable’.  I agree with Mr Laurent that the Authority could not properly rely upon “U’s” speculative answer about the reasons for the failure of a relative or friend to act or speak to draw a conclusion adverse to “U”.  A decision  making body cannot legitimately rely on an absence of evidence for this purpose. 

[21]    The Authority asked “U” some questions about the email.  He acknowledged that its author, “X”, lives in Iran.  It then inquired whether “U” knew the reason for his ability to send an email from a United States address.  “U” was unable to assist.  The Authority then concluded:

Given [U’s] vagueness about what he has learned from family and friends in Iran as to steps taken by the authorities to prosecute him and the implausible account given of what news he has received, the Authority rejects these claims on this point.

[22]    Mr Laurent criticised this line of reasoning on the basis that the RSAA used existing findings adverse to “U” to justify an additional finding.  Again, there is force in Mr Laurent’s argument.  However, in my judgment this problem has arisen because the Authority’s decision followed a convoluted and disparate reasoning process.  The terms and timing of the email itself provided an appropriate evidential basis for a finding that the document was fabricated.  Indeed, in a later and unrelated part of the decision (para 47) the RSAA found, without elaboration or explanation, that “the documents produced in support of this appeal [are] also fabricated”.  The RSAA could have avoided the criticisms legitimately advanced by Mr Laurent by recording a direct finding, accompanied by a succinct summary of its reasons, that the email was not genuine but was produced to provide a false explanation for “U’s” earlier failures to make inquiries about his brother’s fate.

[23]    This brings me back to the first day of the hearing.  As I have noted, the RSAA was unimpressed by “U’s” prolonged failure to make inquiries about “MLH” (he could not rely on the contents of the email, which did not materialise until the second day).  In particular it noted the inexplicability of “U’s” evidence that he forgot to ask his friend about “MLH”.  To remedy this omission, he sent “X” an email three days before the first hearing, inquiring whether “MLH” had been released.  Earlier the Authority had found that “U’s” assumption that his brother had been released, based upon avenues of influence available to his father, was unconvincing.

[24]    Mr Laurent also subjected this conclusion to severe criticism, submitting that the Authority imposed an oppressive and unfair burden of inquiry upon “U”.  However, I accept Mr Corlett’s submission to the contrary.  “U” normally would be expected to take a close interest in his brother’s fate.  Inquiries of this nature would be consistent with the familial relationship.  Moreover, in terms of self interest, they may well yield an insight into “U’s” own fate should he return. 

[25]    “U” failed to make any inquiries even though several months were available for this purpose.  The Authority was entitled to reject “U’s” explanation that he was being stonewalled by his friend, “AJ”.  Again, though, the Authority would have assisted the cause of clarity, and pre-empted a great deal of argument, if it had expressed a finding, in direct and unequivocal terms, that “U’s” evidence about “MLH’s” arrest was a fabrication.

[26]    On the first day “U” produced two official summonses.  One directed his attendance at the Justice Department on 19 June 2002; the other required him to appear at a Revolutionary Court on 29 June 2002.  “U” said he did not learn of their existence until receipt of advice from “X” just before the first hearing date.  The second summons specified that an arrest warrant would issue if “U” did not appear on the due date. 

[27]    The RSAA found that:

a)    If the documents were genuine, it was implausible that “U” would be unaware of their existence until advised by “X”.  In this respect it relied upon “U’s” inability to explain why his family had not earlier advised him of the documents;

b)    Having gone to the trouble of obtaining these documents, “U’s” failure to inquire whether an arrest warrant had been issued was implausible.  The Authority relied upon “U’s” ignorance of and failure to inquire about the existence of an arrest warrant.

[28]    Mr Corlett realistically accepted that the line of reasoning adopted by the Authority was unsustainable.  It could not find adversely to “U” on the ground of his ignorance of the documents.  As noted, in a later part of its decision (para 47) the RSAA made an omnibus finding that all documents were fabricated.  Assuming that finding embraced the summonses, which was open to it on the evidence, the Authority should again, in this part of the decision, have expressed a direct and unequivocal view that the summonses were forged, and then given reasons.  Instead its rationale for an adverse finding was an apparent premise that the documents were genuine but “U’s” explanation for his ignorance of their existence was not. 

[29]    In summary, I am not persuaded that the RSAA’s findings in this section of its decision are unreasonable.  On analysis, the defects which Mr Laurent identified in its reasoning process are failures to express logically and with clarity adverse findings which I am satisfied were evidentially available.  I refer to its conclusions on the authenticity of three documents produced by “U” in support of his appeal, and his prolonged and inexplicable failure to inquire into his brother’s fate.  They provided a sufficient factual foundation for rejecting “U’s” explanation without the Authority introducing confusion by adopting what appear to be make-weight grounds. 

(ii)    Relationship with “M”

[30]    Second, the Authority rejected “U’s” account of his sexual liaison with “M” as implausible and incredible.  Again, its treatment of this issue has caused problems.  Mr Corlett identified it as the ‘key event’ giving rise to “U’s” stated fear of persecution.  The RSAA appeared at first to give it this prominence (para 45) but then relegated it, both in order and detail, to a position of secondary importance (para 45(b)) following its treatment of “U’s” account of his arrest. 

[31]    The RSAA set out five apparent reasons for rejecting “U’s” account of the liaison.  Again, in my judgment, many of Mr Laurent’s criticisms stem from the Authority’s failure to commence with a statement of its apparent finding; namely, that the sexual liaison never occurred or, if it did, the authorities never discovered it.  A general rejection of “U’s” account gave rise to ambiguities. 

[32]    The first two, if not three, reasons adopted by the Authority were peripheral.  For example, “U’s” vagueness about details of “M’s” personal life or his speculation about “M’s” reasons for deciding to commence a friendship with his family carried little, if any, weight, either separately or together.  So, too, did the RSAA’s conclusion that “U”, a young man, would have been ‘so reckless’ as to allow himself to be seduced by an older woman.  I agree with Mr Laurent that this last reason is an example of ambiguity: was the Authority saying that the liaison happened but not in the way that “U” related or was it saying that “U” concocted the whole story? 

[33]    As Mr Corlett acknowledged, the Authority could have avoided this attack by following its conclusion of fabrication by relying solely on the final two reasons which it identified.  The RSAA was entitled to find on “U’s” own account that, first, given the position of power enjoyed by Mort (“M’s” brother-in-law), the authorities were most unlikely to release “U” on any conditions whatsoever pending his appearance in Court and, second, that “U” would have certainly taken steps to inquire into “M’s” fate and welfare if events were as he described.  As with his brother, the treatment which she suffered at the hands of officialdom would be a critical guide to “U’s” likely fate on his return to Iran. 

[34]    Although Mr Laurent did not address argument on this issue, the Authority continued to compound its problems (para 49).  When concluding, it wrote that as it did not accept “U’s”:

… account of his relationship with M and subsequent arrest, there is no credible evidence before [it] as to U’s life in Iran after being detained a few hours by police in June 2002.  There is no credible evidence … that U remained of interest to Iranian authorities after that time …

[Emphasis added]

[35]    The Authority rejected “U’s” account of his relationship with “M” and his subsequent arrest.  Yet, in this passage, it then appeared to accept that he was detained for a few hours by police in June 2002.  Rejection of “U’s” account of the liaison led logically to a conclusion that it never occurred, and that he was never arrested as a consequence.  The two findings are inconsistent.  In this context I will treat the RSAA’s acceptance that “U” was detained for a few hours in June 2002 as inconsequential to its decision. 

[36]    I accept that the Authority’s decision contains imperfections.  But ultimately I am satisfied that it had a sufficient factual foundation for drawing inferences adverse to “U” that there was no real chance he would suffer persecution if he returned to Iran.  I have identified those findings which individually and cumulatively provide a proper basis for its decision.  Accordingly, in my judgment the RSAA did not act unreasonably and I dismiss “U’s” application for review.

(2)    “V”

[37]    A differently constituted Authority dismissed “V’s” appeal in a decision dated 10 March 2003.  The relevant facts fall into a relatively narrow compass as follows:

(1)    “V” is a 28 year old Kurd who arrived in New Zealand in August 2002.  He graduated in mathematics from university in Tehran in 1997.  Following graduation he worked for a state company then privately;

(2)    In about December 1999 “V” met his prospective wife at his former university.  Eventually, despite reservations, his parents consented to his request to obtain consent from her family to a marriage.  Both families attended the marriage ceremony in June 2000.  However, the couple agreed not to live together for two years while “V’s” apartment was being built on top of his father’s home.  In that time the two met only twice, accompanied by their respective mothers;

(3)    In March 2002 “V” and his wife started living together.  Within a week she reacted with hostility to a popular music tape which “V” was playing at home.  She warned that he would suffer a dreadful fate if he continued with this practice.  She threatened to tell her father.  He desisted and apologised;

(4)    Three or four months later “V” drank some wine with a childhood friend, “M”.  He returned home smelling of alcohol.  His wife left immediately for her parents’ house.  There was a familial dispute.  His wife’s father forgave him reluctantly;

(5)    On or about 25 June 2002 “M” came to “V’s” home late one evening.  He remained for 5-10 minutes.  He gave “V” a parcel which he said contained important education documents.  He did not explain his reason for giving the parcel to “V”, and “V” did not inquire.  When “V” awoke in the morning, the parcel was missing.  He suspected that his wife may have taken it and destroyed the documents because she hated “M” for leading “V” astray earlier.  “V” immediately phoned “M”.  The latter warned that the documents were anti-regime.  He implored “V” to escape.  “V” heeded his advice;

(6)    While “V” was on the run, his father phoned to advise that officials were at the house and that he should not return.  His father-in-law phoned with a contrary request.  “V” realised that his wife had given the parcel to her father, and that his invitation was a trap.  “M” then helped him escape through Turkey.  He made all “V’s” travel arrangements and accompanied him to Sydney.  “V” is unaware of “M’s” subsequent actions;

(7)    Since coming to New Zealand “V’s” family has advised him that security forces accompanied by his father-in-law have visited his house on a number of occasions, looking for “V”.  Twice they detained his father.  On another occasion they left a document from the Revolutionary Court with his family.  His mother has since destroyed the document.  His family now refuse to accept calls from “V”.  His flat has been sealed by the authorities.

[38]    The RSAA directed itself on the law in the same way as the differently constituted Authority in “U’s” decision.  First, it made an adverse credibility finding against “V”.  It described him as a ‘demonstrably vague witness’ on issues with which he must be familiar if his story was true.  It then concluded that his story was false and implausible, ‘so improbable that it cannot be true’ (para 18).  Later the RSAA described “V” as a person who has ‘learned a short simple story well”. 

[39]    Mr Laurent challenged this decision on the same ground of unreasonableness as he advanced to impugn the decision in “U’s” case.  It is unnecessary for me to recite the relevant principles here.  With great respect to Mr Laurent, his task was hopeless.  This case was very different from “U’s” for two reasons.  First, “V’s” story, reduced to its most simple facts, was overtly implausible; “V” would have had to make an extraordinarily convincing impression to rebut a presumption of fabrication.  Second, the RSAA’s decision on the one core ground for rejecting “V’s” story is expressed in unimpeachable terms (although four of the six grounds on which it relied – the first, second, third and sixth – were also make-weights, adding little to its essential conclusion but opening up instead a peripheral flank for Mr Laurent’s attack). 

[40]    The RSAA had ample grounds for rejecting “V’s” story solely on the basis of his account of his relationship with “M”, commencing with the drinking incident and proceeding to “M” entrusting him with a package of dangerous material.  This ground constituted the fourth of the six grounds identified by the Authority.  It was more than sufficient on its own to justify its decision.  On analysis, it comprised four discrete findings as follows:

a)    “V” knew very little of “M”, even though he described him as his friend.  They saw each other infrequently.  “V” did not know where “M” lived, where he worked, the nature of his work, or whether he was in employment at all.  It was illogical and implausible that, in these circumstances, “M” would trust “V” sufficiently to leave a dangerous package with him, thereby exposing them both to great risk;

b)    “M” allegedly gave as his reason for trusting “V” his assumption that the package would be safe in the home of a Mullah’s daughter.  Yet “M” did not, for example, impress upon “V” the need to secure the package.  Moreover, the consequences of discovery would be more serious, because of the prospect that the package would fall into the hands of unsympathetic officials;

c)    It was inconceivable that “V” would not inquire of “M” about the nature and source of the documents.  His explanation of concern that his wife would interrupt and embarrass him was unconvincing.  “V” was assuming a huge risk, at the request of somebody who was no more than an acquaintance, in failing to take the rudimentary step of inquiring about the contents of the parcel;

d)    Despite their friendship and spending six weeks together on the run after the package was discovered, “V” did not know the group with which “M” was involved, his political activities, or the contents of the parcel (beyond denouncing the regime).  Moreover, he knew nothing of “M’s” intentions when they separated in Sydney, and has made no subsequent inquiries about his fate.  The Authority rejected an attempt by “V’s” counsel to explain away this ignorance on the grounds of distress and “M’s” provision of tranquillisers.

[41]    At the conclusion of his submissions Mr Laurent accepted that all these findings were inferentially available to the Authority.  He was unable to identify a reviewable error.  It was unnecessary for me to call upon Mr Corlett to reply.  Accordingly, I dismiss “V’s” application for review.

[42]    As both “U” and “V” are legally aided, there will be no order as to costs.

Solicitor for the plaintiffs: Laurent Law (Auckland)
Solicitor for the defendant: Meredith Connell (Auckland)