Refugee Status Appeals Authority
REFUGEE APPEAL NO. 70002/96
AT AUCKLANDBefore: R P G Haines (Chairperson)
G J X McCoy (Member)
Counsel for the Appellant: Mr A K Sharma
Appearing for the NZIS: No appearance
Date of Hearing: 7 May 1996
Date of Decision: 7 May 1996
INTRODUCTIONThis is the appellant’s third appeal.
It is the first time the Authority has encountered a third appeal. The case raises matters of serious concern.
The appellant arrived in New Zealand on 11 December 1988. On 13 August 1991, he filed his first application for refugee status. The appellant was interviewed by the Refugee Status Section of the New Zealand Immigration Service on 15 April 1992. By letter dated 29 May 1992, he was advised that his application had been declined. From that decision, the appellant appealed.
The first appeal to this Authority was heard on 27 July 1993. Following a regrettable delay, the appeal was dismissed in a decision delivered on 10 May 1994. See Refugee Appeal No. 254/92 Re BS (10 May 1994). The ground of the decision was that the appellant was not a credible witness and his claims were not believed. The Authority observed at p 7:“The Authority had difficulty with the credibility of the appellant in that the versions of the incidents given to the various interviewing agents and before this Authority were quite different. There was certainly contradiction and in many instances, embellishment. The Authority did not consider the demeanor of the appellant lent weight to his credibility and parts of his story were quite incredible. We conclude that we are unable to rely upon his account as the truth.”Both at the Refugee Status Section interview and at the first appeal, the appellant was represented by counsel.
On 7 June 1994, within days of the Authority’s first decision, the appellant lodged a second refugee application. The appellant at this stage was represented by an immigration consultant by the name of Mr Ujagar Singh.
On 6 July 1994, the Refugee Status Branch wrote to Mr Ujagar Singh drawing his attention to paragraph 3 Part 1 of the Terms of Reference which stipulates that a person who has previously had a claim to refugee status finally determined by the Refugee Status Branch or by the Refugee Status Appeals Authority has no right to have a further claim accepted for consideration by the Refugee Status Branch unless since the original determination, circumstances in the claimant’s home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim. The appellant was given ten working days to provide evidence and submissions which demonstrated that these criteria were satisfied. The appellant did not take advantage of this opportunity to be heard.
The second refugee application was declined by the Refugee Status Branch in a letter dated 30 August 1994 on the grounds that on the information provided there had been no change of circumstances of the kind required by the Terms of Reference.
From the Refugee Status Branch decision dated 30 August 1994, the appellant appealed. It will be referred to as his second appeal. The second appeal was heard on 14 February 1995 by a differently constituted Authority. The appellant was represented by the consultant, Mr Ujagar Singh. In a decision delivered on 7 July 1995, the second appeal was dismissed. See Refugee Appeal No. 2276/94 Re BS (7 July 1995). The ground of the decision was, once again, that the appellant was not a credible witness. The Authority concluded at p 10:“Having found the appellant’s account to be entirely lacking in credibility, there is no basis upon which this Authority can conclude that the circumstances in the appellant’s home country have changed to such an extent that his second claim is based on significantly different grounds to the original claim.”On 18 September 1995, the appellant, through Mr Ujagar Singh, applied to the Minister for “political asylum”. The application misrepresented the facts to the Minister. It claimed that at the first appeal the appellant’s account was found by the Authority to be credible. As to the second appeal, the letter to the Minister merely noted that the appeal had been dismissed. The Minister’s attention was not drawn to the two strong adverse credibility findings made by two separately constituted panels of the Authority. The claim to “asylum” was based upon a distorted, if not bizarre reading of paragraphs 25 to 27 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. These paragraphs do no more than point out that even though an individual may not meet the criteria prescribed by Article 1A(2) of the Refugee Convention (i.e. the definition of “refugee”), State Parties to the Convention are nonetheless free to permit such person to remain on humanitarian grounds provided, of course, that such grounds exist. Clearly it would be unimaginable for this essentially humanitarian discretion to be exercised in favour of a refugee claimant who has twice lodged a false and abusive claim to refugee status and who has no genuine humanitarian circumstances.
In a decision dated 12 December 1995, the Minister declined the application.
It was against this background that, on 5 February 1996, under cover of a letter from Mr Sharma of the same date, the appellant submitted a third refugee application. The significantly different ground on which the appellant relied was explained in Mr Sharma’s covering letter as being:“Mr [S] now claims that he has now become a member of a particular social group and upon his forced return to India he will be presecuted (sic). The particular social group is the Sikhs who have sought asylum or refugee status abroad and were being returned or deported back to India.”By letter dated 14 February 1996, the Refugee Status Branch wrote to Mr Sharma requiring that the appellant provide, within ten working days, evidence which demonstrated that his further claim to refugee status met the criteria prescribed by paragraph 3, Part 1 of the Terms of Reference. Mr Sharma responded to this request by letter dated 26 February 1996, but apart from providing country information of marginal relevance, no evidence was provided to establish that the alleged particular social group existed in fact. Importantly, no attempt was made to address the legal issues raised by the social group claim.
By letter dated 25 March 1996, the Refugee Status Branch declined the third application. From this decision, the appellant has appealed.
COURSE OF EVENTS AT THE HEARING OF THE THIRD APPEAL
By letter dated 30 March 1996 (received by the Authority’s Secretariat on 1 April 1996), Mr Sharma gave notice that the appellant appealed for a third time.
By letter dated 18 April 1996, the Secretariat gave notice to Mr Sharma that the appeal would be heard on Tuesday 7 May 1996 at 10am.
By letter dated 20 April 1996, Mr Sharma wrote requesting an adjournment on three grounds:
(a) The date did not suit him.
(b) He was attempting to get “some fresh evidence to comply with the terms of reference of the Authority”.
(c) A date in June 1996 was unacceptable as he was attending Auckland University and anticipated semester exams in June 1996.
In making this request, Mr Sharma was wholly unrealistic. The unavailability of counsel is not of itself a ground for an adjournment. See, for example, R v Kay (1992) 9 CRNZ 464, 469:“But counsel with professional obligations must be prepared to react in a way which discharges those obligations. This includes, where necessary, returning briefs. “To similar effect, see Chef and Brewer Bar and Cafe Limited v Police  NZAR 428, 431. Recent decisions of the Authority to similar effect include Refugee Appeal No. 2416/95 Re AMM (18 October 1995) and Refugee Appeal No. 112/92 Re IS (27 October 1995).
In the event, by letter dated 22 April 1996, Mr Sharma was advised that the adjournment application had been declined.
In a letter dated 2 May 1996 (received by the Secretariat on Friday 3 May 1996), Mr Sharma filed a memorandum in support of the appeal. The memorandum entirely failed to address the issue whether there was evidence that the social group propounded on behalf of the appellant existed in fact and also failed to address the legal issues raised by the novel social group claim.
Accordingly, at 8am on Monday 6 May 1996, Mr Sharma was served with a letter from the Secretariat in the following terms:“Having received your letter of 2 May 1996 and enclosures the Authority notes that the appellant now relies on the “social group” limb of the Refugee Convention.Inexplicably, the appellant’s submissions do not explain how, as a matter of fact and law, this is a tenable claim.To remedy this failure, counsel will be expected to address these issues at the hearing on 7 May 1996 and in particular, the following cases:(a) Refugee Appeal No. 3/91 Re ZWD (20 October 1992) 59-85(b) Refugee Appeal No. 1312/93 Re GJ (30 August 1995) 23-34; 56-57(c) Canada (Attorney-General) v Ward  2 SCR 689, 726-745; 103 DLR (4th) 1, 24-38 (SC:Can)(d) Morato v Minister for Immigration. Local Government and Ethnic Affairs (1992) 111 ALR 417 (FCA:FC)(e) Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 (FCA:FC)(f) Jahazi v Minister for Immigration and Ethnic Affairs (1995) 133 ALR 437 (FC:French J)(g) Lo v Minister for Immigration and Ethnic Affairs (1995) 134 ALR 73 (FC: Tamberlin J)(h) Secretary of State for the Home Department v Savchenkov  Imm AR 28, 37-38 (CA)Mr Sharma’s response was to telephone the Secretariat with a further request for an adjournment as he claimed that he needed time to consider the cases listed in the letter. Mr Sharma was advised that any adjournment application would have to be presented by him personally to the Authority at 10am on 7 May 1996. He was told that the appellant would also have to appear at the hearing.
The first three cases are included in the course materials distributed to you at Auckland University as part of the Refugee Law Course.”
At approximately 5pm on Monday 6 May 1996, Mr Sharma telephoned once again to advise that the appeal would be withdrawn. Mr Sharma was told that he and the appellant were expected to appear before the Authority at 10am the next day.
At 10.45am on 7 May 1996, the Authority sat to hear the application to withdraw the appeal. The hearing was delayed from its 10am scheduled time as the appellant did not initially appear.
Upon the appellant attending, Mr Sharma told the Authority that he had seen the appellant at 4.30pm the previous afternoon and had told the appellant that he (Mr Sharma) had had insufficient time to prepare for the hearing and the appellant therefore had three options. First, the appellant could instruct other counsel. Second, the appellant could appear in person. Third, the appellant could instruct Mr Sharma to withdraw the appeal. The appellant chose the third alternative. The Authority was tendered a document in the following terms:"Ashok Kumar Sharma
OtahuhuRe: No. 70002/96 - [BS] 5-2-1959Please withdraw my appeal at the Refugee Status Appeals Authority coming on 7th May 1996.Date 6 - 5 - 1996 5.15pmSigned [BS].”This document was put to the appellant who confirmed that the signature endorsed at the foot of the page was his and that he understood the meaning and effect of the document. He confirmed that he wished to withdraw the appeal.
The appeal is accordingly dismissed.
However, there remain issues of serious concern.
ISSUES OF CONCERNThe Authority is concerned at the growing phenomenon of repeat refugee applications which have no merit whatsoever. These applications are over-burdening the refugee status determination system, depriving genuine asylum seekers of an expeditious determination of their cases and bringing the system into disrepute. In the period 1 April 1995 to 31 March 1996, the Authority received 222 appeals. Of that figure, 139 were second or third appeals, constituting 63% of the total number of appeals received. In April 1996 alone, 80% of all appeals received by the Authority were second or subsequent appeals.
The present appeal is a striking example of the magnitude of the abuse. A man whose account has twice been found entirely lacking in credibility and who is at no risk of harm were he to return to India has advanced a third refugee application based on a spurious social group claim which was doomed to fail both on the facts and on the law.
When at the hearing the Authority confronted Mr Sharma with its concerns, Mr Sharma said that he had advised the appellant to lodge a third refugee application because he (Mr Sharma) had “seen a point” and believed that it had to be raised. With respect, this was an entirely misconceived view of counsel’s responsibility. The third refugee application was bound to fail both because the social group claim was unsupported by the facts and also because it was untenable in law. The application was unquestionably abusive. It is no part of counsel’s duty to advance arguments which are untenable. The point is succinctly made by Rule 8.01 of the Rules of Professional Conduct for Barristers and Solicitors (4th ed, 1996) which provides:“In the interests of the administration of justice, the overriding duty of a practitioner acting in litigation is to the court or the tribunal concerned. Subject to this, the practitioner has a duty to act in the best interests of the client.”To similar effect, see 3(1) Halsbury’s Laws of England, 4th ed, Re-issue, para 415 and Refugee Appeal No. 112/92 Re IS (27 October 1995) 17.
When the Authority asked Mr Sharma why the memorandum filed in support of the appeal failed to address the legal and factual issues arising out of the appellant’s belated claim to be a member of a particular social group, Mr Sharma responded that the Authority was under a duty to give him time after the appeal hearing to file such submissions. This is, with respect, an unacceptable response and reflects a wholly misconceived understanding of the role of counsel in refugee hearings. First, it is counsel’s responsibility to inform himself of the relevant law and to address both that law and the facts in the memorandum, especially when a claim as novel as that advanced here is made, a claim which flies in the face of all known authority. Mr Sharma has had since at least January 1996 to prepare the appellant’s case but has failed to do so. On any reasonable view of the facts, there has been more than adequate time to prepare.
Second, the decision in Santokh Singh v Refugee Status Appeals Authority (High Court Auckland M1224/93, 9 February 1994, Smellie J, 17) upon which Mr Sharma relies is authority only for the proposition that if the Authority ten minutes before a hearing draws counsel’s attention to a decision and related material which reasonable diligence could not otherwise have discovered, a reasonable time must be given for the decision and material to be considered and submissions made. The judgment of Smellie J does not excuse counsel from the responsibility of keeping abreast of the law in an area in which he practises. Counsel’s professional responsibility was described in the following terms in Central Trust Co v Rafuse  2 SCR, 147, 208 (SC: Can):“A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken ... [H]e must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points.”.In this regard, the Authority notes that all of the decisions listed in the Secretariat’s letter of 6 May 1996 were readily available to Mr Sharma. Six of the decisions are reported in conventional law reports available here in Auckland. The two decisions of the Authority are available at both the University Davis Law Library and the Auckland District Law Society Library at the High Court. Mr Sharma, who this year has enrolled in the first semester paper 810.428 Immigration and Refugee Law at the Law Faculty, will be aware that the Davis Law Library has a computerised database of all Refugee Status Appeal Authority decisions. The most elementary of searches of that database would have revealed the two leading decisions of the Authority on the particular social group category and which are the first two cases listed in the Secretariat’s letter.
In short, Mr Sharma has had more than ample time to prepare and research the appellant’s case. Given that this was a third appeal, Mr Sharma had the clearest of obligations to ensure that if the case was to be seriously prosecuted, it was fully prepared and that he came to the appeal hearing ready to address the pivotal issues in his client’s case.
If counsel is to practice in this area, counsel has a duty to attend hearings properly prepared. It is a fundamental principle that refugee applications be fully and responsibly presented and argued. It is also a fundamental principle that counsel has no duty to prosecute claims which are untenable or clearly abusive.
“R P G Haines”