Refugee Status Appeals Authority
REFUGEE APPEAL NO. 70027/96
S M I
AT AUCKLANDBefore: J M Priestley QC (Member)
Counsel for Appellant: Mr Marshall Bird
Representative for NZIS: No Appearance
Date of Hearing: 12 August 1996
Date of Decision: 19 September 1996
This is an appeal against the decision of the Refugee Status Branch (RSB) of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a national of Iran.
BACKGROUNDThis is the second appeal by this appellant before the Authority. The appellant is aged 28 years. He is a national of Iran. He arrived in New Zealand in September 1992 and claimed refugee status on arrival at Auckland International Airport.
Whilst living in New Zealand the appellant has married a national of the Republic of Korea (South Korea) who is currently living in New Zealand on a student visa. The couple have a 5 month old child.
In 1993, the appellant was interviewed by the Refugee Status Branch of the New Zealand Immigration Service. Refugee status was denied. He duly appealed to the Authority. His appeal was heard no 21 February 1995 before a two-Member Authority, one Member of which was an UNHCR Member. A written twelve-page decision was released on 27 October 1995, being Refugee Appeal No. 1891/93 Re SMS. The appeal was dismissed. After reviewing all of the evidence and the appellant’s narrative, the Authority concluded:“The Authority finds that the appellant is not credible and his story with its supporting evidence is not to be believed in any respect.”Included in the evidence presented at the appellant’s February 1995 hearing, were three summonses (being photocopies) with “informal” translations. The Authority rejected those documents together with another document as being “fabrications”. In particular, the Authority stated that it was not impressed by the documents which did not, so far as their format was concerned, appear to the Authority to have the expected degree of formality.
A second refugee application, dated 23 February 1996, was received by the New Zealand Immigration Service through the appellant’s current solicitor. A letter dated 12 February 1996 (but received concurrently with the second refugee application) stated:“We are strenuously investigating [the appellant’s] claims and in particular establishing the court summonses he received are in fact genuine and not a fabrication as originally believed which will show clearly that his claims are not contrived. I do not make this new application lightly be in the belief, based on this and other material, that there are new circumstances which exist, and that an extremely serious miscarriage of justice may result if the new grounds for his application are not considered. This information has only just become available to us ....”The nature of this fresh information appears in a later portion of this decision. It was, in due course, considered by the RSB which, in terms of Section 3 of Part 1 of the Refugee Status Determination Procedures, had to determine whether the relevant criteria had been met of establishing that since the original determination of the appellant’s claim:“... circumstances in the claimant’s home country have changed to such an extent that the further claim is based on significantly different grounds to (sic) the original claim.”In its decision released on 22 March 1996, the RSB declined to accept the appellant’s second claim for refugee status. It reviewed carefully the new materials submitted by the appellant’s solicitors and concluded:“Since [27 October 1995] there has been little change in the general situation in Iran. Personally, [the appellant’s] circumstances have not changed in relation to his previous claim. His position is that previously, his testimony and documentation was considered fabrication and now he continues to submit that his claim is genuine ....[The appellant] was found not to be credible and to have fabricated his claim, not just because of reservations about the summonses, but the essential elements of his claim were presented inconsistently throughout and ran contrary to widely accepted country information. Again, even if it is accepted that the general format of the summonses is in line with normal documentation, it does not automatically follow that they are therefore genuine. In fact, a resourceful person and/or family would wish to supply items of genuine appearance. We simply do not attach the earlier or new documents supplied with any weight. [The appellant] was clearly found previously by the RSAA to be not a credible witness in all areas and we believe that the further documents and submissions as to previous documentary evidence does not give his further claim for refugee status any further merit.”From that adverse decision in respect of his second refugee claim, the appellant has appealed to this Authority.
JURISDICTION OF THE AUTHORITY TO HEAR THE APPEAL
The Refugee Status Branch and this Authority operate under terms of reference which came into force on 30 August 1993. Under part one, the Refugee Status Branch has jurisdiction to consider a second or further refugee application provided the criteria specified by paragraph 3 are met.
Paragraph 3 provided:“A person who has previously had a claim to refugee status finally determined by the Refugee Status Section or the Authority has no right to have a further claim accepted for consideration by the Refugee Status Section, 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 (sic) the original claim.”Under part two of the terms of reference, the Refugee Status Appeals Authority has jurisdiction to hear an appeal where the Refugee Status Branch has concluded that the criteria stipulated by paragraph 3 has not been met. Paragraph 5(1) of the Authority’s Terms of Reference confers power on the Authority:“(f) to determine an appeal by a person who has made a further claim to refugee status, against the decision of the RSS not to accept the claim for consideration because, since the original determination, circumstances in the claimant’s home country have not changed to such an extent that the further claim is based on significantly different grounds to (sic) the original claim.”The question of whether there is jurisdiction in any particular case to entertain a second refugee application is a question of mixed fact and law. Therefore it most cases it is necessary to first hear the application so as to establish findings of credibility and fact before a final determination can be made. For an analysis of the requirements of Paragraph 5 (one of the Authority’s Terms of Reference) refer to Refugee Appeal No. 2245/94 Re SS (28 October 1994), pages 16-22.
It is therefore proposed to examine the appellant’s original claim and his case as presented at the second appeal with a view to determining:
(a) whether under the terms of reference which came into force on 30 August 1993 the Authority has jurisdiction to hear a second appeal, and if so,
(b) whether the appellant is a refugee within the meaning of Article 1(A)2 of the Refugee Convention.
THE APPELLANT’S CASEThe appellant had a number of criticisms relating to the conduct of his case before the Authority in February 1995 by his then counsel. In particular, he claimed that, although leave was reserved to supply an official translation of a Farsi statement which the appellant had produced in evidence, his counsel neglected to avail himself of that opportunity despite clear instructions. The statement (which was previously translated into English unofficially and in handwriting) was duly translated in February 1996 by Pacific International Translations Limited. It has been read and considered by the Authority. It does not, however, relate to the post-October 1995 situation.
A few days after receiving notification in writing from his former solicitor that his appeal had been dismissed, the appellant, on the same day, consulted two lawyers who both have a good reputation and skill in handling refugee appeals by Iranian claimants. The first of these solicitors clearly contemplated a judicial review application and wrote to the Authority on that vein (file page 108), seeking information pursuant to the Privacy Act. The appellant’s evidence was that he could not afford that solicitor. However, his current solicitor was approached on the same day and agreed to take the case.
The appellant was adamant that he went to see his current solicitor before he had picked up his file from his previous solicitor. He stated that, at that time, he had some personal knowledge of his case having read the Authority’s decision himself. Before he was able to recover his file from his first solicitor, the appellant had to make an arrangement to meet unpaid fees. When asked what it was about his current solicitor’s approach which conviced him that he should retain Mr Bird before he was in a position to uplift his file from his previous solicitor, the appellant stated that he was impressed by Mr Bird’s reputation in the area. He also stated that he had lost confidence in his former solicitor because this lawyer had failed to arrange for the translation of the Farsi document. His answer was inconsistent with a previous answer given to the Authority that the appellant was unaware of this alleged lapse on his first solicitor’s part until such time as the file had been uplifted. This inconsistency, although not crucial to the merits of the appellant’s second claim, was but one example of the generally unfavourable impression which the appellant made on the Authority.
Although, in his opening, the appellant’s counsel described his client as a “confused” young man, he appeared far from confused to the Authority. Frequently answers were glib or not to the question put. On occasions he attempted to “second guess” the direction of the Authority’s questions and provide a pre-emptive answer. He was generally unconvincing.
The Authority, of course, did not have to canvass the same issues and evidence which were canvassed by the Authority which heard his first appeal in February 1995. Nor was it necessary to revisit any of those areas in which an adverse credibility finding had been made. However, having questioned the appellant during the course of the hearing, which occupied approximately three hours, it comes as little surprise to this Authority that an adverse credibility finding was made on a previous occasion.
The appellant stated to the Authority (he having been given appropriate advice by the Authority that he was not obliged to give evidence on matters cloaked by privilege) that his current solicitor advised him that a second appeal would require the production of further documentary evidence from Iran and particularly documentary evidence which would corroborate the appellant’s story.
The appellant accordingly telephoned his father in Iran. He advised his father that his appeal had been dismissed. The appellant was too scared, however, to reveal on the telephone the manner in which his father could help him. He accordingly, sent to his father a facsimile, from a public fax bureau in New Lynn, advising what was required. The appellant stated that he asked his father to obtain copies of any helpful documents even if he had to pay a bribe for that purpose. In general terms, the appellant told his father that his lawyer needed documents; that his appeal had been denied; and that further documents, particularly documents which tended to show that the appellant had been imprisoned, were required.
New documents duly arrived. These were faxed by the appellant’s father from a facsimile in Tehran owned by the father of a friend of the appellant who operates a watch-making business. The documents in question appear on page 141 and 142 of the file. These have been translated (although not by an official translator). The accuracy of the translations was confirmed during the hearing by the Authority’s interpreter. The first document is dated 1 June 1994. The Iranian year involved is 1373. Counsel informed us, however, that this was clerical error and that the year should really be 1371, which would make the date of the document 1 June 1992.
The document was issued on letterhead of the Sepah or Pasdaran of the Islamic Revolution and has been stamped with a “Restricted Archives” stamp. It is addressed to the director of the Redress of Grievances at Tehran. The letter, signed by one [name deleted] informs the Tehran official that the appellant (who is described as a “seditious person”) has been captured and is being transferred from [X] to Tehran. The Tehran officials were requested to look into the accused’s file and his family. [Name deleted] is described as the head of the [X] Security Intelligence. For good measure, a “confidential” stamp is added.
The next document is dated 22 December 1994. Again the Iran year is given as 1373 although, according to counsel, this should be 1371 which would make the date of the document 22 December 1992. The same letterhead is employed. The addressee (the director of the Redress of Grievances at Tehran) is the same. The letter this time is signed by one [name deleted], head of Security Intelligence. It refers to the previous letter sent (this time giving the “correct” date of 1 June 1992), “regarding the arrest of the accused” and names the appellant. The letter concludes:“... they have repeatedly questioned the accused’s family and searched their home. The accused has left the country.”The document refers to the previous letter (dated 1 June 1992) as letter No. [detail deleted]. That letter was allegedly sent to the [detail deleted]. However, the first letter, addressed to the director of the Redress of Grievances, bears the identical number.
The appellant’s evidence was that he had learned from his father that these documents had been copied by a connection of the father’s, from the Sepah files in Tehran. The originals of the documents were held on the Komiteh files. Only photocopies could be smuggled out of Komiteh premises.
The appellant learned from his father through a telephone call that these documents had been obtained. The appellant, during the course of this telephone call, gave to his father the facsimile number of his solicitor. The documents were faxed from Tehran to the appellant’s solicitor on 11 March 1996.
In addition to these new documents, the appellant submitted hand-written comments from various members of the Iranian community in New Zealand, to the effect that the three summonses, the authenticity of which had been rejected by the Authority in October 1995, were in fact summonses in the normal format of such documents in Iran.
It is not necessary to repeat in any detail the appellant’s past history. It is set out in the Authority’s previous decision dated 27 October 1995. The Authority did ask the appellant some further questions relating to his personal history to clarify some matters. The appellant, prior to his arrival in New Zealand was a single man, and considered that there were inadequate employment opportunities for him in Iran. Between 1998 an 1990, the appellant obtained employment in Japan. He was deported from Japan as an over- stayer. The next year, he endeavoured to travel to Japan again but was turned around at a Japanese airport, presumably as a prohibited immigrant.
His alleged arrest by the Komiteh when he was working with his maternal uncle in a house at night, helping with pamphlet preparation, occurred on 31 May 1992.
The appellant was detained and interrogated with his uncle in [X] for two days. He then was transferred to Tehran. Despite a finding by the previous Authority that he was flown from [X] to Tehran (a road journey of approximately seven hours) in a military aircraft, the appellant contends was transferred in a prison vehicle. After a detention of approximately four weeks in the notorious Evin prison, the appellant was allegedly released. Bribes and sureties were provided by his family. The appellant states that he recuperated at home (he having allegedly being tortured in prison) for a period 25 days, at the end of which he was served with a summons requiring his appearance before Revolutionary Court on 27 November 1992. Approximately a week later, in early August 1992, the appellant left Iran travelling on his own passport, having paid a bribe to have his name removed from a list of wanted people.
As previously stated, this story was rejected by the Authority. So too were the three summonses which were produced in support. These summonses have been produced again for the purposes of the second appeal hearing. The appellant’s evidence was that these were summonses which were served on the appellant’s father after his departure from Iran. The summonses are all designed to require attendance at a court to “review” the appellant’s case. The three summonses are dated 22 February 1993, 30 June 1993 and 7 June 1994.
DECISIONBefore a second refugee application can be entertained, it must be established that there has been a change in circumstances in Iran to such an extent that the second claim was based on significantly different grounds from the original claim. The Authority’s approach, in a general way, is set out in the decision cited above, Refugee Appeal No. 2245/94 Re SS. Neither the Terms of Reference nor commonsense can be stretched to the extent to permit a second appeal to be used as a pretext to revisit adverse credibility findings made in the course of determining a prior appeal. It may well be, as counsel for the appellant correctly submitted, that fresh information will cause previous evidence or narrative to be viewed in a new light. A narrow or legalistic approach is to be avoided. Conceptually, it might well be possible for a claimant, during the course of a second claim, to produce evidence which is so compelling and demonstrably true that an adverse credibility finding made during the determination of the first claim would have to be revisited. Such a situation would be exceptional, however. In the absence of such exceptional evidence it is not permissible for the determination procedures of the second claim to be used as a vehicle for a de novo hearing of the first claim.
The appellant, in his second claim and appeal, has failed to produce any new information or material which constitute a change in circumstances or the basis for a further claim on significantly different grounds. The Authority unhesitatingly rejects the two new documents faxed to the appellant’s solicitor by his father on 11 March 1996 as being fabrications. So far as the three summonses are concerned (which were rejected as fabrications by the Authority in its decision dated 27 October 1995), the Authority accepts that, so far as their format is concerned, they are consistent with the various types of summonses issued in Iran by revolutionary courts. However, there are no grounds at all for finding that those documents were validly issued summonses against the appellant.
The Authority’s reasons for rejecting the two new documents as fabrications are as follows:
1. On their face they are dated 1 June 1994 and 22 December 1994 respectively. Typographical errors can, of course, be made. However, these two documents on their face were written in respect of the same person but over six months apart. They are also signed by different officers. It is highly improbably that the same error (being a mis-statement of a date by two years) would remain undetected by both authors of genuine documents. It is even more improbable that the same mistake would be made twice on the same file.
2. The appellant was, at all material times, a resident of Tehran. If he was, in fact, transferred by the Komiteh from [X] to Tehran, then all subsequent inquiries after his release from the Evin prison would be made by the Komiteh in Tehran. There would thus be no point, the [X] authorities having transferred their file and the appellant from their area to Tehran in June 1992, for the [X] authorities to write to Tehran over six months later, conveying information about searches of the appellant’s family home in Tehran and the appellant having left the country, when such information would already be known to the Tehran authorities and indeed, would have been discovered by them well before the authorities in [X] were ever informed of those developments (if ever).
3. The appellant, according to his evidence was suspected of being a member of the Mojahedin. Quite apart from the improbability of such a suspect ever being released, it is, in the Authority’s view, highly improbable that the appellant’s family or contacts of the appellant’s family would be prepared to run the risk both of locating the appellant’s file and of obtaining copies of documents from it solely for the purpose of assisting a second refugee claim in New Zealand, if the appellant were indeed a Mojahedin suspect.
4. The second document on its face, contains the “correct” assertion that the appellant had left Iran. If, as the document suggests, the Tehran authorities were aware that the appellant no longer lived in the country, it would be futile for the authorities to persist in serving summonses, and in particular, the three summonses produced at the first hearing in February 1993, June 1993 and June 1994, all of which were after the purported date of the second “new” letter dated 22 December 1992.
In short, the new materials and information submitted by the appellant in support of his second refugee claim are not credible. The Authority disbelieves the documents. In particular, it rejects the two documents faxed to the office of the appellant’s solicitor on 11 March 1996 as being fabrications. There is thus no credible evidence to support a second refugee claim.
It follows, therefore, that the RSB correct rejected the appellant’s second claim under Paragraph 3 of its Terms of Reference. Accordingly, the appeal is dismissed.
“J M Priestley QC”