High Court Cases 

High Court Auckland M47/95
13,14 November 1995; 8 March 1996
Morris J

Judicial review - Bias - Weight to be given to evidence - Rules of fairness - Application of the real chance test - Credibility findings - Legal representation - Interpreter

Well-founded fear - Application of real chance test

In 1992 the applicant, a citizen of the People's Republic of China (PRC), arrived in New Zealand and claimed refugee status. When that application was dismissed, an appeal was lodged with the Refugee Status Appeals Authority (RSAA). In 1994 the appeal was dismissed, the RSAA holding that the applicant's account was not credible and that there was no real chance of him suffering persecution in the PRC. In so holding, the RSAA relied on reports from the Australian Department of Immigration and Ethnic Affairs and from the Australian Department of Foreign Affairs and Trade, which reports had been disclosed and discussed at the appeal hearing. The applicant sought judicial review of this decision.

Held:

1    There was no evidence to support the submission that the RSAA was biased against the applicant, nor was there any evidence to support the submission that it had reached a conclusion adverse to the applicant prior to the hearing. It was plain that the RSAA had considered not only the Australian reports, but also the evidence submitted by the applicant and there was absolutely no basis to suggest that the RSAA viewed the reports and their contents in other than the proper light. It was for the RSAA to give such weight to the matters raised in these reports as it saw fit having considered any criticism made of them and in light of any contrary opinions. As a specialist body the RSAA was entitled to use its own expertise and knowledge (see para [15]).

2    There was no obligation under the rules of fairness requiring the RSAA to give notice to the applicant of its proposed findings and to then give the applicant an opportunity to be heard on those findings (see para [16]).

3    In deciding whether the real chance test is satisfied, the RSAA must necessarily perform a balancing exercise having regard to all the evidence before it. In this balancing exercise, the RSAA is entitled to attach weight to evidence as it sees fit and to employ its own knowledge and expertise as a specialist body. On the facts, the RSAA considered all the material evidence put before it, approached the matter with an open mind and made a proper evaluation of whether or not a real chance of persecution of the applicant existed should he return to the PRC (see paras [22] to [25]).

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA) and Wu v Minister of Immigration and Ethnic Affairs (1995) 130 ALR 367 (FC:FC)discussed.

4    The RSAA, as with any other judicial body, must have full jurisdiction to determine the plausibility and/or creditworthiness of witnesses. As long as the inferences drawn by it are reasonable having regard to the evidence before it, the High Court should not interfere with its findings. Where the reasons for the findings are clearly spelt out in a considered and detailed judgment, and the reasons are founded in evidence, it is an almost impossible task to successfully ask the High Court on review to overturn a finding of credibility. On the facts the RSAA had reached a proper conclusion taking into account all of the available material before it (see para [31]).

5    The fact that the applicant was not represented by a legally qualified person at the RSAA hearing did not handicap him. There was no evidence that the applicant had anything other than a fair hearing. The RSAA was not under a duty to advise the appellant of his right to be represented by a legally qualified person or of his right to legal aid (see para [37]).

6    There was no substance to the allegation that the RSAA had failed to ensure that a skilled and qualified interpreter assisted at the hearing. The courts will always have problems with translations and nothing advanced by the applicant demonstrated that the possible errors in translation would have caused any material difficulty to the hearing and certainly would not have resulted in the RSAA reaching any decision different to that which it did (see paras [39] & [40]).

Application dismissed

Counsel
D Ryken for the applicant
B H Dickie for the defendants

[Editorial note: As to holding (2), reference should be made to Khalon v Attorney- General [1996] 1 NZLR 458 (Fisher J) where the issue is addressed in greater detail].

MORRIS J [1] The applicant seeks Judicial Review of a decision of the Refugee Status Appeals Authority (hereinafter called "the Authority") given on 20 December 1994, in which it dismissed an appeal by the applicant against a decision of the Refugee Status section of the New Zealand Immigration Service refusing to grant the applicant refugee status.

[2] The applicant seeks:-

(a) An order setting aside the decision of the Authority and declaring the same to be void;

(b) An order remitting the matter back to the Authority for reconsideration or in the alternative, an  order the applicant be granted refugee status;

(c) Such further or other order as might be just.

(1) Any comment he wished to make on two reports referred to during the course of the hearing and

(2) A psychiatrist's report. He was given leave to make a final statement.

[5] The decision of the Authority extends over eight pages. It traverses the matters raised in evidence. Specifically it refers in detail to:-

(a) The applicant's early life in China and his parents' suffering in and as a result of their involvement in the cultural revolution there;

(b) The applicant's involvement in political activity and, in particular, his involvement with the students' pro-democracy movement;

(c) The actions of the local authorities towards the applicant as a result of his student involvement as claimed by him;

(d) The steps taken by the applicant to avoid the authorities including the arrangements made to ensure his arrival in New Zealand;

(e) A psychiatrist's report produced by the applicant. This confirmed he was suffering an adjustment disorder with mixed anxiety and depressed mood;

(f) Reports from the Australasian Department of Immigration and Ethnic Affairs, the Australian Department of Foreign Affairs and Trade, the Information and Research Branch of the Immigration and Refugee Board of Canada and a Mr Mark Hamilton, a marketing consultant for a Hong Kong firm.

"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 habitual residence, is unable, or owing to such fear, is unwilling to return to it."

(1) Is the applicant genuinely in fear?

(2) If so, is it a fear of persecution?

(3) If so, is the persecution he fears persecution for a Convention reason?

(4) If so, is that fear well founded?

[9] In written submissions, it was submitted "the main focus of these submissions will be the treatment of the evidence of the applicant before the Authority and the way in which erroneous information generated by Australian Immigration officials was used in order to determine that the applicant's evidence was implausible and not credible or, that there was no "real chance" that the applicant would be persecuted."

[10] As must be invariably the case, the Authority had to consider the credibility of the applicant. The applicant claimed he had successfully hidden from the authorities in China for nearly three years on the outskirts of the township of Guangzhou. This township is in the Guangdong province of China. The  Authority did not accept this claim. Likewise, it did not accept his claims as to the nature of the steps taken by the authorities to find him. It found his claims inconsistent with the actions of the applicant's wife in writing to him and inconsistent with the applicant's ability to leave openly via Guangzhou airport using a passport in his own name. The Authority did not accept his activity in the 1989 demonstrations were other than low key and certainly would not have attracted the attention of the authorities which he claimed. It also felt, after a consideration of the material put before it, the Chinese authorities were no longer interested in pursuing low profile June 1989 demonstrators. It further decided, even if the applicant's account was true, there was no real chance he would suffer persecution on his return to China because of any earlier activity on his part. It found there was no real chance of persecution of the applicant arising from his membership of an Asian association known as the Chinese Students' New Zealand Association.

[11] The evidence before me consisted of:

(i) Affidavit of applicant;

(ii) Affidavit of Wei Yue (interpreter);

(iii) An Agreed Bundle of Documents which included:-
 

1 Refugee Status determination procedures dated 30 August 1993, Part II - Determinations on Appeal (Refugee Status Appeals Authority).

2 Applicant's statement for application for refugee status (pages 021-025 of the Immigration file).

3 Letter declining refugee status by the Refugee Status Section dated 24 November 1995 (pages  083-085 of the Immigration file).

4 Decision of the Refugee Status Appeals Authority (Refugee Appeal No. 851/92).

5 Letter, plaintiff's representative to Refugee Status Appeals Authority.

6 Psychiatrist's report.

7 Report of Mark Hamilton.

8 Transcript of hearing.

9 China: "Economic Growth and Human Rights” (December 1993).

10 Dissent in China - 1993 (April 1994).

11 DFAT Report (Refugee determination: Country Profile China, November 1993).
 

(iv) Affidavit by the Chairman of the First Defendant.

(1) Was biased against applicant and acted unfairly towards him;

(2) Failed to properly assess the risk of persecution faced by the applicant should he return to China;

(3) In making findings adverse to the applicant's credibility and plausibility, the Authority failed to consider all of the evidence, took into account irrelevant matters, misdirected itself and reached a decision which was unreasonable and or unfair;

(4) Was guilty of improper and or incorrect procedure practices which resulted in a breach of natural justice such as to justify setting aside the Authority's judgment.

The allegation of bias and unfairness on the part of the Authority

[14] This centres round the two Australian reports to which I have earlier referred. It was claimed these reports were written by the authorities for the purpose of providing immigration officers with a basis upon which to refuse refugee status to persons such as the applicant. It was further claimed the worth of such reports is and was very open to question and therefore, the applicant should have been given notice of the importance which the Authority would place on these reports. It is alleged the acceptance of these reports and the matters contained therein, support the claim the Authority was prejudiced against the applicant, i.e. biased.

[15] An affidavit has been filed by the Chairman of the Authority. I have also considered a transcript of the proceedings before the Authority. As I have earlier said, the judgment of the Authority extends over eight pages and is a full, careful reasoned consideration of all matters raised. Let me say there is absolutely no evidence to support the proposition the Authority was biased against the applicant. There is absolutely no evidence to support the submission it had reached a conclusion adverse to the applicant prior to the hearing. It is plain to me from both the judgment and the transcript, the Authority considered the material in the two reports to which I have referred, but it is equally plain it carefully considered the report obtained by the applicant and submitted subsequent to the hearing. There is absolutely no basis to suggest the Authority viewed the reports and their contents in other than the proper light. It was for the Authority to give such weight to the matters raised in these reports as it saw fit having considered any criticism made of them and in light of any contrary opinions. There is certainly nothing in the evidence to support an allegation the reports were brought into existence for any improper purpose.

[16] During the hearing before me, I gather it was being suggested the Authority owed a duty to give notice to the applicant of any findings adverse to him which it proposed to give in its formal judgment. I take this to mean the Authority is under some form of duty to give notice of its proposed findings and then afford an opportunity for the applicant to be heard and answer them if he can. Some form of draft decision appears to be envisaged. I know of no authority for any such proposition and certainly the rules of "fairness" do not impose any such obligation.

[17] It must also be borne in mind this is an expert Authority, experienced in dealings with such cases and accustomed to considering reports such as were put before it and reaching assessments of the worth and value of such reports. I find no substance in this allegation.

The allegation the Authority failed to properly assess the risk of persecution faced by the applicant

[18] The applicant accepts the proper test to be applied in deciding whether a well grounded fear to prosecution exists, is the real chance approach adopted by Chan v Ministry of External Affairs (1989) 169 CLR 379, 87 ALR 412, a decision of the High Court of Australia. The applicant also accepts the Authority has purported to use such test but submits a consideration of its judgment and the material before it, should satisfy me the Authority did not in reality make a proper evaluation assessment of whether there was a real chance of persecution of the applicant should he return to China.

[19] The applicant submits such an examination will establish the Authority "has relied on the comments made in the Australian reports and even then, it has not evaluated all of the material in those reports to determine whether there is a real chance in the plaintiff's particular case" and in doing so, was in error to such an extent as to justify my setting aside the judgment.

[20] I have been referred to Wu v Ministry of Immigration (1995) 130 AIR 367. Similar issue as here. In Wu, supra, the decision maker (a delegate) gave an articulation of the real chance test but decided matters on the basis of information contained in a departmental report. The court said at p. 378

"Undoubtedly the delegate considered Mr Wu to have a genuine fear of persecution for a Convention reason. The question was whether there was objective support for that fear. The delegate was obliged to find if there was a real chance of persecution. The expression "real chance of persecution" is used in the reasons. We refer to para 4.6(4) as an example. Paragraph 12 (earlier quoted) provides another. The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written.

Having reflected on the matter, we have reached the conclusion that the correct test was not applied. Paragraph (9) seems to suggest that speculation ought not be engaged in. Yet the whole exercise, involving as it does the assessment of a real chance must be a speculative one. One can do little else except engage in speculation. In some cases the correct decision will be that there is a real chance of persecution because the speculation will suggest strongly that is the view which should be taken; other cases will be on the borderline; and some others will be in the category of speculation which is fanciful.

Here the delegate has put speculation aside so one does not know what view she would have had if she had been prepared to engage in it. Then there is the use of the expressions "give more weight to" and "give greater weight to" in paras (4) and (7). As was the case in Mok; the delegate appears to have been engaged in an exercise which involved acceptance or rejection of the available material (emphasis added). It is true that the language she has used expressed as it is in comparative terms, may be capable of a meaning whereby the two opposing pieces of evidence are left in play, but one was thought to have more weight than the other. However, even if that be so, the problem is to know the place in the decision given the material which had the lessor weight. Paragraph (8) contained a positive finding about the position of those who had been on board the Jeremiah and para (9) is the paragraph in which the delegate eschews speculation Notwithstanding what is said in para (12), we think that it must be concluded that the delegate did not in fact apply the correct test. She did not turn her mind to what it involved (emphasis added). As in Mok the reality of what she did seems to have been to approach the matter as if it involved the establishment of a state of fear as being more probable than not."

[22] Clearly, the Authority in most cases must speculate. The degree of speculation will vary. It seems to me the Authority must perform something of a specialised balancing act having regard to all of the evidence properly admitted before it.

[23] This Authority considered the two Australian reports. They are referred to in its judgment. They were put in evidence. Copies were made available to the applicant's representative. The applicant was given an opportunity to consider them. He obtained a report from Mr Hamilton. He put this before the Authority. The Authority considered such report. It is commented on in the Authority's judgment.

[24] The Authority is a specialist body. I note para 13 of the Chairperson's affidavit refers to the wide range of material constantly considered by members of the Authority. This must be acceptable practice and is akin to a lawyer keeping up with developments in the law. I note the Chairman has deposed if in a particular case any material contrary to the position of an applicant is known to or is being considered by the Authority, the applicant is made aware of it. What could be fairer?

[25] All three reports having been properly put before the Authority, it was for it to attach such weight to each report as it saw fit taking into account other material before it which might affect the weight to be attached to the report. In considering the reports, the Authority was also entitled to use its own expertise and knowledge.

[26] Nothing advanced by the applicant suggests to me the Authority should not have considered these reports, and certainly there was nothing before it, nor before me, which should have led the Authority to consider the reports were worthy of no weight at all.

[27] Furthermore the judgment makes it plain the contents of the report played but a small part in the rejection of the applicant's claim. It was the unlikelihood of his tale being true as found by the Authority which really spelt the end of his chances.

[28] I have considered the detailed submissions made to me. I find no basis to support the contention the Authority misdirected itself by assuming a certain state of affairs existed by reference to the Australian reports. To the contrary, I find it considered all of the material evidence put before it and approached the matter with an open mind, and made a proper evaluation of whether or not a real chance of persecution of the applicant existed should he return to China.

The allegation the Authority in making findings adverse to the applicant's credibility and plausibility, failed to consider all of the evidence, took into account irrelevant matters, misdirected itself and reached a decision which was unreasonable and or unfair.

[29] In support of this allegation counsel drew my attention to:-

(i) Other decisions of the Authority where it was submitted refugee status had been granted to Chinese citizens from the same province as the applicant;

(ii) Various portions from the reports not referred to in the judgment of the Authority;

(iii) Various parts of the evidence which he claimed supported his client's version, including the psychological report, and which he claimed had been overlooked, and/or were given insufficient weight by the Authority.

(iv) Various facts which he submitted the Authority had failed to take into account. These included matters pertaining to the plaintiff's personal background and his relationship with his wife.

[31] This Authority, as with any other judicial body, must have full jurisdiction to determine the plausibility and/or creditworthiness of witnesses. As long as inferences drawn by it are reasonable having regard to the evidence before it, this court should not interfere with its findings. Where, as here, the reasons for the findings are clearly spelt out in a considered and detailed judgment, and the reasons are founded in evidence, to successfully ask this court on review to overturn a finding of credibility is an almost impossible task.
 
[32] The onus of establishing the allegations now made rests on the applicant. Clearly decisions must depend on the personal circumstances of each applicant. These must vary from individual to individual.
 
[33] Here the conclusions of the Authority were reached on properly founded evidence and after a consideration of all the material before it. I do not consider any evidential material has been overlooked nor do I consider the Authority has given undue weight to any particular part of the evidence. The claim is not made out.

The allegation the Authority was guilty of improper and/or incorrect procedure practices

[34] The applicant submits procedural practices followed by the Authority were breaches of natural justice of such a nature as to justify a setting aside of the Authority's judgment. The particular complaints are:-

(1) Permitting the applicant to be represented by an unqualified immigration consultant, and

(2) Failing to ensure a skilled and qualified translater assisted at the hearing.

(i) Of his right to have legal assistance, and

(ii) Of the availability of legal aid.

"the examiner should:

(1) Ensure that the applicant presents his case as fully as possible and with all available evidence.”

[38] No evidence whatsoever has been put before me to support this allegation. Nothing whatsoever has been put before me to establish the applicant did not have a fair hearing in this regard. In my opinion, the Chairman bent over backwards to ensure everything which could be said for the applicant was said on his behalf. Furthermore, I know of no authority and none was referred to me, which requires a specialist body to give advice to a party before it of the nature now suggested. In para 18 of his affidavit, the Chairman deposes as follows:

"Further it is also claimed that there was an obligation on the Authority to advise the plaintiff that he should obtain legal counsel. I know of no specific provision of the Refugee Convention to which the plaintiff refers which would require the Authority to advise an applicant that he or she should obtain legal representation. If an appellant appears in person without any form of representation the Authority asks as a matter of practice whether the appellant does wish to have a lawyer representing him or her. If he or she does, an adjournment would normally be granted to enable him or her to obtain such representation. It is unusual for appellants to not have any form of representation. It is common however for appellants to be represented by Immigration Consultants."

[40] The affidavits in support of this allegation refer to possible errors in translation. None of the matters referred to in the affidavits are such as would have caused any material difficulty to the hearing and certainly would not have resulted in the Authority reaching any decision different to that which it did.

[41] There is no substance to this allegation. For the foregoing conclusions the application is dismissed and if necessary I will hear counsel on the question of costs.

Solicitors for the applicant: Haigh Lyon (Auckland)
Solicitors for the defendants: Crown Solicitor (Auckland)