Refugee Status Appeals Authority
REFUGEE APPEAL NO. 70461/97
S M I
AT AUCKLANDBefore: D J Plunkett (Chairperson)
S Joe (Member)
Counsel for Appellant: B Burson
Representative for NZIS: No appearance
Date of Hearing: 11 June 1997
Date of Decision: 4 September 1997
This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service (RSB), declining the grant of refugee status to the appellant, a national of the Islamic Republic of Iran.
INTRODUCTIONThis is the appellant’s third appeal to this Authority.
He arrived in New Zealand on 26 September 1992 and made his first application for refugee status immediately upon arrival at Auckland Airport. He was interviewed at the airport by the Immigration Service concerning his application on the same day. The application was resubmitted, by solicitors on his behalf, on 2 October 1992. The appellant was interviewed by the RSB on 16 February 1993 in the presence of his solicitor. His application was declined by letter to the appellant’s solicitor dated 5 May 1993, prompting the appellant’s first appeal to this Authority.
That appeal was heard on 21 February 1995. The Authority, in its decision dated 27 October 1995 (Refugee Appeal No. 1891/93 Re SMS), dismissed the appeal, concluding in respect of the fundamental incident in his story:“The Authority is of the view that that story has not been told consistently by the appellant and that the appellant’s evidence is not credible. In short, the Authority believes that his case is a fabrication.”The appellant had produced photocopies of three Justice Ministry summonses (dated 3 February 1993, 1 July 1993 and 8 June 1994) with informal translations. As to these the Authority said:“The Authority finds that these documents are fabrications by the appellant’s father or others in Iran designed to bolster the appellant’s claim.”The appellant then filed a second claim, through new solicitors and the present firm representing him, on 23 February 1996. On 29 February 1996, the RSB wrote to the appellant’s solicitor pointing out the jurisdictional criteria for second claims and requiring submission of evidence demonstrating that the further claim to refugee status fell within the criteria. The solicitor, by letter date 13 March 1996, responded by submitting the following new evidence:
1. Two documents described as follows:(a) Communication between the [A] Branch of the Komiteh and the Tehran Komiteh.(b) Communication between the specialist Komiteh court and the Komiteh itself.As the documents had only just been obtained, no translations were provided.
2. Declarations from members of the Iranian community in New Zealand that the format of the court summonses was authentic.
The second claim was not accepted by the RSB, as notified by letter dated 22 March 1996 to his solicitors enclosing an assessment of the claim. This led to the appellant’s second appeal to this Authority.
The second appeal was heard before a differently constituted panel of the Authority on 12 August 1996. Prior to the hearing, on 9 August 1996, the appellant’s solicitors had submitted a comprehensive memorandum setting out the appellant’s case and enclosing the new evidence on which the second appeal was based, including translations of the two Komiteh communications referred to above (which had been faxed to the appellant’s solicitors in New Zealand by his father on 11 March 1996).
In a decision dated 19 September 1996 (Refugee Appeal No. 70027/96 Re SMI), the appeal was dismissed. As to the court summonses, the Authority said:“... 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 these documents were validly issued summonses against the appellant.”As to the two new documents, being the communications involving the Komiteh, the Authority noted that they bore the dates 1 June 1994 and 22 December 1994 respectively but that counsel had informed the Authority that these dates were both clerical errors and they should be dated 1 June 1992 and 22 December 1992 respectively. The Authority also recorded in its decision that they had been translated (although not by an official translator) and that the accuracy of the translations was confirmed during the hearing by the Authority’s interpreter.
The decision reached by the Authority in respect of these two documents was that they were fabrications. In so concluding, the Authority said:“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.”Undeterred, the appellant filed his third refugee claim, through the same solicitors who had represented him on the second claim, on 22 November 1996. In their covering letter of the same date, the appellant’s solicitors state:“Since the most recent decision further and new evidence and new translations have become available and I believe this evidence materially affects his claim.”However, none of this material was filed with the application itself which, on its face, appeared to be a claim identical to the earlier two.
Accordingly, on 6 December 1996, the RSB wrote to the appellant’s solicitors quoting the jurisdictional criteria for the acceptance of further claims and requiring the production, within ten working days, of evidence demonstrating that the further claim to refugee status fell within the above criteria.
The reply of 18 December 1996 from the appellant’s solicitors was unhelpful. No evidence was forthcoming. Instead, the solicitors submitted, in essence, that no proper assessment could be made as a result of written submissions and/or evidence without a hearing.
The Authority has previously commented adversely on this firm’s refusal to provide evidence in response to such requests from the RSB in its decision in Refugee Appeal No. 70387/97 Re MSI (14 May 1997). As the Authority said in that decision:“... the Refugee Status Branch has an administrative law duty to ensure that it acts within jurisdiction, and Part 1, para 3 of the [Terms of Reference] specifically excludes jurisdiction to accept a further claim for consideration unless the prescribed criteria are present. If the papers disclose no arguable case that the prescribed criteria are present, the Refugee Status Branch cannot accept the application.”The appellant’s solicitors were notified of the RSB’s refusal to accept the further claim in a letter dated 20 February 1997, enclosing an assessment of the third claim. The appellant then lodged this third appeal to the Authority on 19 March 1997.
The hearing of that appeal was scheduled for 19 May 1997.
In the light of the failure of the appellant’s solicitors to submit any evidence in support of the third appeal, the Authority on 15 May 1997 directed the Counsel’s memorandum for the hearing address, as preliminary issues:
(a) The jurisdiction of the Authority to entertain a further appeal, being the appellant’s third, in the light of the Authority’s decision in the second appeal dated 19 September 1996 and its recent decision in Refugee Appeal No. 70387/97 Re MSI (14 May 1997). Counsel was particularly asked to address what are the changed circumstances (since the second appeal) in the appellant’s home country.
(b) Why the appeal should not be dismissed as prima facie manifestly unfounded or clearly abusive without a hearing and without consideration of the evidence, pursuant to paragraph 8(3) of the Authority’s Terms of Reference.
For the reasons set out in the Authority’s minute of 26 May 1997, the hearing of the third appeal was adjourned until 11 June 1997. The Authority further directed, at the brief hearing on 19 May, that counsel’s memorandum address the preliminary issues set out in the Authority’s letter of 15 May 1997 and provide a full brief of the new evidence of the appellant and any additional witnesses, in particular evidence addressing the Authority’s jurisdictional criteria.
Counsel duly provided comprehensive written submissions on the facts and the law on 6 June 1997, including certified professional translations of the two communications emanating from the Komiteh which had been produced to the Authority hearing the second appeal (with unofficial translations) and a brief of evidence of a witness, MK.
At the hearing on 11 June, counsel for the appellant was invited to address the Authority on the jurisdictional issues only and at the conclusion of the hearing the Authority adjourned to consider whether it had jurisdiction to entertain the third appeal and to hear the evidence of the appellant and that of his witness.
Counsel’s memorandum submitted prior to the hearing included a description of the factual circumstances in Iran giving rise to the appellant’s third claim and at the hearing counsel confirmed, as did the appellant, that these circumstances were identical to his two earlier appeals. Following the hearing, it became apparent to the Authority that they were not identical and accordingly on 19 June 1997 the Authority’s secretariat wrote to the appellant’s solicitors inviting them to review this matter. On 25 June 1997, the appellant’s solicitors wrote confirming that the memorandum was in error, as regards the factual circumstances, and advising that the error was made by counsel and not the appellant (which the Authority records that it accepts). The letter further advised that the appellant confirmed that the facts of his case were those presented to the Authority in his two previous appearances before the Authority and recorded in his interview with the RSB on 16 February 1993.
Accompanying the letter of 25 June 1997 from the appellant’s solicitors were five video tapes relating generally to the conditions in Iran. On 2 July 1997, the Authority’s secretariat wrote requiring either a transcript or a summary of any evidence relevant to the appellant’s claim and returned the tapes for this purpose. The appellant’s solicitors replied on 25 July 1997, advising that the video tapes contained information of general relevance to the situation in Iran but no references to the appellant.
JURISDICTIONThe jurisdictional issues raised by further appeals are fully canvassed in Refugee Appeal No. 2245/94 Re SS (28 October 1994) and no purpose would be served by repeating what is said there. The essential issue to be addressed is whether, since the last determination, i.e. the second appeal,
1. Circumstances in the appellant's home country have changed.
2. To such an exent that the further claim is based on significantly different grounds to the second claim.
To determine this issue, it is necessary to examine the factual basis of the first, second and third refugee applications submitted by the appellant.
THE FACTUAL BASIS OF THE APPELLANT’S REFUGEE APPLICATIONS
The appellant is a 29 year old single man from Tehran who worked for his father as a watch repairer. In 1988, he went to Japan but was deported as an overstayer in 1991.
In mid-1992, the appellant visited his uncle in [A] and assisted him on three occasions to distribute pamphlets at night in nearby villages. He did not know their purpose but thought they were about the Iranian economy. On about 31 March 1992, he went with his uncle to a house and was left in a room containing a typing machine, photocopiers and piles of blank paper. After a while, another man arrived with a letter bringing news of happenings in the city of A. After a discussion, the appellant believes those in the next room were about to type and reproduce something. As they prepared to come into the appellant’s room, there was a loud knocking on the door and Pasdars were seen outside. The others started destroying written material. Three minutes later the appellant went down and opened the door. He was immediately hit by one of the Pasdars with a rifle butt. The appellant and the others were arrested and imprisoned.
The appellant was held in prison for two days where he was interrogated, abused, kicked and beaten up. He was accused of being a member of the Mojahedin, which he denied, though admitted distributing pamphlets on three occasions. The appellant was then taken to Evin Prison in Tehran, where he was subjected to mental and physical torture. He was beaten on the soles of his feet with a stick and the interrogators would cover his face and say they were going to kill him. The appellant was kept for one month and discharged on 2 July after his father paid a bribe.
The appellant then went home to rest. After 25 days, he received a letter from the court which was a type of summons but during this period, members of the Komiteh (Sepah) would come to his father’s shop to abuse and interrogate them. Their house was also searched about three times.
The appellant left Iran on 1 August 1992, arriving in New Zealand on 26 September 1992. His father had paid a further bribe to remove his name from the ?black list’ maintained at the airport. After he failed to appear in court, someone from the court came many times to look for him.
The appellant produced in evidence with his first claim three Justice Ministry summonses dated 3 February 1993, 1 July 1993 and 8 June 1994 respectively, all relating to the case brought against him by the Komiteh in the Tehran Court.
The factual basis of the appellant’s second appeal was, in all material respects, identical. New evidence was however submitted in the form of:
(a) A professional translation of the appellant’s original Farsi statement (an unofficial translation had previously been submitted).
(b) Two internal communications of the Komiteh dated 1 June 1994 and 22 December 1994, but which the appellant’s counsel advised should have been dated 1 June 1992 and 22 December 1992 respectively.
(c) Statements from Iranians in New Zealand as to the format of Iranian court summonses.
The circumstances of the appellant’s third appeal are said to be set out in the interview with the Immigration Service on 16 February 1993. These are similar, though no identical, to the earlier two. The new evidence submitted by the appellant was:
(i) Independent professional translation of the letter dated 2 June 1994 from the Sepah, [A] to the Sepah, Tehran.
(ii) Letter dated 18 November 1996 from the professional translator to the appellant’s solicitor regarding the meaning of the document in (i) above.
(iii) Independent professional translation of the letter dated 23 December 1994 from Sepah, Tehran to Prosecutor’s Office, Tehran.
(iv) Copy printout of activity for fax machine used by the appellant to request documentation from Iran.
(v) Fax confirmation reports of faxes being sent to the number in Iran corresponding to the fax number from which original copies of the documents at (i) and (ii) above were faxed to the appellant in New Zealand.
(vi) Brief of Evidence of a witness, MK.
The Authority notes that the document at (1) dated 2 June 1994 is the same document as that dated 1 June 1994 produced for the second claim and the document at (iii) dated 23 December 1994 is the same as the one dated 22 December 1994 produced for the second claim (the one day date difference for each document is an immaterial translation difference). At the hearing on 11 June 1997, the appellant confirmed that there was no other additional evidence which he sought to advance for his third appeal (except the videos mentioned above relating to the conditions in Iran generally for political activists and which bear no direct relevance to the appellant’s claim).
ASSESSMENT OF THE APPELLANT’S THIRD REFUGEE APPLICATION
The appellant’s counsel clarified in his oral submissions that the documents at (iv) and (v) above were to counter any suggestion that the two internal communications, faxed by the appellant’s father to his solicitors on 11 March 1996, were manufactured by the appellant in New Zealand. That does not, however, rule out fabrication in Iran on the appellant’s behalf.
The witness, MK, whose evidence the Authority accepts on its face for the purpose of determining whether it has jurisdiction to consider this appeal (and for only that purpose) is a former Sepah officer who was employed in its airplane security division. It is plain from his brief of evidence that he had no involvement with, or knowledge of, the appellant while a Sepah officer. Relevantly, he states:“I have seen the letters and summons in respect of Mr SI. I can confirm that they are in a form and style of Sepah document.” (sic)The witness’s evidence is of little, if any, assistance to the appellant. It says nothing about the authenticity of the documents produced by the appellant, only that they are in a proper form. As to the three summonses, the Authority in the second appeal accepted that their format was consistent with the various types of summonses issued in Iran. Furthermore, while the two internal communications were rejected as fabrications, the Authority did not give as one of its reasons for that rejection the format or style of the documents. Accordingly, the form and style of the Sepah documents is not an issue.
The material new evidence then for the third appeal, upon which counsel focused in his written and oral submissions, was the professional translations of the two Komiteh communications at (i) and (iii) above (the translator’s letter at (ii) above adds nothing to the translation of the document at (i)).
However, there is no relevant difference between the professional translations submitted in the third appeal and the informal translations, also submitted by the appellant, available to the Authority on the second appeal. It is clear from counsel’s written submissions, as amplified at the hearing, that the only new material evidence for the third appeal is the year attributed by the appellant to the two internal documents. Counsel submitted that both documents should bear the same dates, but in 1994 and not in 1992, the latter being the basis of the second appeal.
The Authority notes that this difference in evidence concerning dates was not, however, caused by any translation error, as counsel properly conceded at the hearing. It is patent that the dates of the communications, as translated to the Authority on the second appeal, was the correct year of 1994 in each case. The 1992 date was advanced by counsel at the second appeal (being a different counsel from that appearing at the third appeal, though from the same firm). Counsel at the hearing before the Authority on 11 June 1997 accepted that the appellant’s case at the second appeal (being that the documents should bear 1992, and not 1994, dates) must have been on the appellant’s instructions. He explained that there was confusion in the appellant’s mind because the appellant could not be sure whether he had the two documents with him when he left Iran.
In truth then, this “new” evidence is a change of mind by the appellant. Having presented a case at the second appeal based on the new documents being 1992 documents and failed, partly on the ground of the year attributed to them, the appellant has sought to run a further case based on the 1994 dates which they actually bear. However, the fact that the documents, on their face, bear 1994 dates was known to the appellant and to the Authority at the second appeal.
CHANGE OF CIRCUMSTANCESIn light of the nature of this “new” evidence, the appellant would appear to have considerable difficulty in establishing that this Authority has jurisdiction to hear this appeal given that the appellant must show that, since the determination of the second appeal (19 September 1996), circumstances in the appellant’s home country have changed to such an extent that the further claim is based on significantly different grounds to his earlier claim.
Counsel submitted that the change of circumstances in this case is a change in the circumstances as they were perceived to be by the Authority in the second appeal. This submission was made, unsuccessfully, by the same counsel, in Refugee Appeal No. 70387/97 Re MSI (14 May 1997).
Counsel submitted that Refugee Appeal No. 70387/97 (supra) is wrong since it takes no account of the word “exceptional” used by the Authority in Refugee Appeal No. 70027/96 Re SMI (19 September 1996), the decision in the appellant’s second appeal.
It would be instructive at this juncture to quote the relevant passage in Refugee Appeal No. 70027/96 (supra) cited by counsel:“Before 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.”It was further submitted that if the Authority in Refugee Appeal No. 70027/96 (supra) was doing no more than espousing an orthodox view of the Terms of Reference, there would be no need for the Authority to use the word “exceptional”in its judgment and, furthermore, that the purpose of the refugee determination process does suggest an expansive interpretation of Refugee Appeal No. 70027/96 (supra).
It seems clear to this Authority that the Authority, as constituted in Refugee Appeal No. 70027/96 (supra), was doing no more than saying that if the appellant could surmount the jurisdictional threshold (quoted by the Authority earlier in the same passage) then all issues, including credibility, could be revisited. This is because if the Authority’s jurisdictional criteria are met, the second claim (or appeal) is in effect a de novo hearing of the appellant’s entire fresh claim (including so much of it as is advanced from the previous claim). This is the case since the relevant date for the assessment of refugee status is the date of determination (Refugee Appeal No. 2254/94 Re HB (21 September 1994)). The use of the word “exceptional” is intended to make the obvious point, whether orthodox or not, that such cases will be rare.
These arguments, including the expansive interpretation of Refugee Appeal No. 70027/96 (supra), were considered by the Authority, and rejected, in Refugee Appeal No. 70387/97 (supra). The Authority can do no better than repeat what was said in the latter case:“Refugee Appeal No. 70027/96 Re SMI (19 September 1996) is not authority for the proposition for which it is cited. The Authority in that case merely gave recognition to the fact that if it be established that there has been a change in circumstances in the home country, it may well be that the fresh information now relied on by the refugee claimant will permit a previously adverse credibility finding to be revisited. The Authority affirmed, however, that neither the Terms of Reference nor common sense 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 the first appeal.”Mr Burson also sought to distinguish Refugee Appeal No. 70387/97 (supra) on the ground that it did not directly concern adverse credibility findings. In that case, the Authority accepted the appellant’s credibility and found, based on his evidence, that he was excluded from the protection of the Refugee Convention (under Article 1F(a)). With regard to the appellant in this case, he was found not credible by the Authority. In other words, as counsel noted, the problem the appellant in that case faced, was that on the first appeal, he was believed as to the evidence which excluded him, not that he was disbelieved. However, the Authority considers that no meaningful distinction can be made between the two cases on this basis as the principles established by Refugee Appeal No. 70387/97 (supra) equally apply in cases were credibility is an issue. This is clear from the discussion of Refugee Appeal No. 70027/96 (supra) in the former case. Counsel did not articulate any other reason why the Authority should not follow the decision in Refugee Appeal No. 70387/97 (supra) nor can the Authority discern any valid reason.
Counsel also urged that the Authority adopt a liberal interpretation of its Terms of Reference given the overall humanitarian objectives of the United Nations Refugee Convention, citing the decision of this Authority in Refugee Appeal No. 2245/96 Re SS (28 October 1994) and in particular the following passage:“... fine semantic and philosophical distinctions are to be avoided. The case must be looked at in the round and with the humanitarian purpose of the Refugee Convention in mind. The Authority would not be attracted by a submission that an individual who can now establish a well-founded fear of persecution is to be rejected as a refugee and refouled simply because of the adoption of a narrow interpretation of the Terms of Reference and an abstruse, if not meaningless, definition of what constitutes a change of circumstances or what constitutes “significantly different grounds to the original claim”.”The Authority accepts that this is the proper approach to interpretation of its Terms of Reference but the humanitarian objective of the Convention, and consequently the Authority’s interpretation of its Terms of Reference within that spirit, does not justify the Authority departing from the Terms of Reference by assuming a jurisdiction it does not have. The appellant’s counsel is not asking us to “interpret” the text of the Terms of Reference but to supplement it. Indeed, counsel recognised the difficulties he faced when he conceded, quite properly, that he could not point to any change of circumstances in the appellant’s home country arising out of the appellant’s new evidence.
The Terms of Reference are not sufficiently elastic to embrace the proposition advanced, namely that a change in the circumstances “as perceived by the Authority” is a change of circumstances envisaged by the Terms of Reference. Neither a change of perception, nor the new evidence advanced by the appellant, amounts to a change of circumstances in the appellant’s home country, let alone one based on significantly different grounds to the original claim.
Accordingly, the Authority does not have jurisdiction to consider this third appeal.
This is sufficient to dispose of this appeal but in deference to the passion and thoroughness with which counsel presented his client’s case, the Authority proposes to deal with some of the general observations made by counsel in relation to Refugee Appeal No. 70387/97 (supra) and the perceived impact of that decision on the practical collection of evidence, documentary or otherwise, by refugee claimants.
It was the understanding of counsel that Refugee Appeal No. 70387/97 (supra) shut out appellants whose claims had been dismissed on credibility grounds from mounting a further claim even if new evidence came to light, subsequent to an earlier determination, which case doubt on an earlier adverse credibility finding and which was of a compelling and demonstrably true nature.
For instance, in a hypothetical case, if a claim by a refugee claimant that he was the victim of persecution at the hands of the police in his home country was rejected on credibility grounds but new documentary evidence became available later, perhaps an arrest warrant or court summons, which was credible, would the appellant be precluded from submitting a further claim by the jurisdictional criteria of the RSB and this Authority? If so, counsel was troubled by the possibility of genuine refugees being rejected because of the difficulties in obtaining from the country of origin documentary evidence to support claims of persecution, particularly when regard is had to the security risk of obtaining such documents, the practical difficulties of accessing documents from far-flung places and the limited resources of most refugees. It could, as counsel pointed out, be a matter of serendipity whether documentation arrived before or after the decision.
There are two observations the Authority wishes to make.
Firstly, counsel’s understanding of Refugee Appeal No. 70387/97 (supra) is misguided. As was stated in the decision itself:“... the assessment as to whether a fear of persecution is well-founded at any particular point in time must necessary focus on the attitude of the agent of persecution. As that attitude changes, so will the strength or weakness of the claimant’s case.”The focus then is on the attitude of the agent of persecution in the appellant’s home country. If that attitude changes or intensifies after the determination of the appellant’s earlier refugee application then that change or intensification may amount to “a change of circumstances” in the appellant’s home country and, if so, such a change may, if sufficiently serious or important, allow a finding to be made that the further claim is based on “significantly different grounds”. So much is plain from Refugee Appeal No. 70027/96 (supra) where a second appeal was allowed, based on persuasive new documentary and oral evidence “in” the appellant’s home country that the police had renewed interest in the appellant, such an interest having been rejected on credibility grounds by the Authority on the occasion of that appellant’s first appeal. It is also clear from the earlier decision of the Authority in Refugee Appeal No. 2254/94 (supra) that a change in attitude of the agent of persecution will amount to a change of circumstances. In other words, it is not necessary, in order to constitute a change of circumstances on significantly different grounds, that the agent of persecution itself change. To adopt such a narrow interpretation of the Terms of Reference would be contrary to the humanitarian spirit of the Refugee Convention.
Secondly, the Authority is mindful of the severe practical difficulties and security risks facing refugees and the limited resources available to most of them in prosecuting their refugee claims. The impediments to obtaining independent documentary evidence are particularly acute for those claiming to be refugees sur place. The Authority does not necessarily expect asylum seekers to be in a position to support their cases with independent documentary evidence or official Government documents from their country of origin. The Authority is well experienced in considering claims based solely on the oral testimony of the appellant and, occasionally, additional witnesses. Indeed, greater weight is generally placed on the plausible or credible nature of the appellant’s own testimony, or otherwise, than on documentary evidence, which is easily fabricated. However, in saying that, the putative refugee in bearing the onus of proving his or her claim, is expected to use reasonable efforts to locate and produce such documentary evidence as is accessible. Evidence, whether oral or documentary, that could, and should, have been produced on the earlier claim will not be sufficient to ground a subsequent claim.
The answer then to the hypothetical case posed earlier is that an appellant is not precluded from submitting a further claim where the new evidence casts doubt on an earlier adverse credibility finding providing this evidence meets the jurisdictional criteria.
The Authority stresses, however, that its generous interpretation of its jurisdiction in the light of the humanitarian objectives of the Refugee Convention is not an invitation to unscrupulous appellants and their advisors (of which the appellant’s firm is not one) to mount repeated unmeritorious applications for refugee status based on cosmetic changes to the evidence supporting the alleged attitude of the agent of persecution or, worse still, based on the manufactured evidence of an intensified interest by the agent of persecution. This depressingly endemic abuse of the Authority’s jurisdiction to allow multiple appeals is noted in Refugee Appeal No. 70387/97 (supra) and is a practice which the Authority is alive to and condemns.
As to the videotapes submitted after the hearing, the Authority considers that they do not amount to the requisite change of circumstances either, nor does the Authority understand that the appellant to be advancing them as such. As previously noted, their content is of a general nature only and confirms what is already well-known, which is that the Iranian regime continues to be a serious violator of fundamental human rights and the depth of feeling of opponents of the regime.
CONCLUSIONIn view of the express provisions of the Authority’s Terms of Reference (paras 5(1)(f), 5(4), 7(1)(a), 15, Part II), the Authority finds that it has no jurisdiction to entertain this third appeal from the appellant. There has been no change in circumstances in the appellant’s home country.
The appeal is accordingly dismissed and refugee status is declined.
“D J Plunkett”