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S v Chief Executive of the
Department of Labour
Court of Appeal,
Wellington
CA18/06; [2007] NZCA 182
18 April 2007; 8 May 2007
Hammond, Ellen France and
Wilson
JJ
Persecution - meaning
of - violation of basic human rights other than risk to life or other
violence
Procedure of RSAA - burden of proof - whether a burden of proof on
refugee claimant
Procedure of RSAA - responsibility to establish refugee claim - whether
matter stands out as requiring decision - Immigration Act 1987, ss
129G(5) and 129P(1)
The appellant, a
citizen of Iraq and an Assyrian Christian had based his claim to
refugee status on risk to his life and safety in Iraq but had been
unsuccessful before the Refugee Status Appeals Authority (RSAA) which
had found that the claimed risk was not well-founded. A challenge to
that decision in the High Court failed. See S v Chief Executive of the Department of
Labour [2006] NZAR 234 (Keane J). In the Court of Appeal it was
argued that the RSAA had erred in not considering (or not adequately
considering) whether, although there was no risk to life or other
violence, there was nonetheless a risk of serious harm arising from
systemic violation of other basic human rights. The High Court had
erred in similarly approaching the matter in terms of life and death
and had not come to grips with the question whether the RSAA had dealt
with persecution in its broader sense.
Held:
1 It
cannot be an error of law for a tribunal considering a matter properly
before it to fail to rule on some particular aspect of the matter if
that matter is not raised with it by the interested party and if it
does not stand out as requiring decision (see para [26]).
Butler v Attorney-General [1999]
NZAR 205 at 215 (CA) and Jiao v
Refugee Status Appeals Authority [2003] NZAR 647 at [33] (CA)
applied.
2 The
question of "persecution" in the broader sense was not one which stood
out in the manner described in Butler
as requiring decision. The point now advanced had not been emphasised
before the RSAA nor before the High Court. Rather the focus in the High
Court to some extent had been on the application of the real chance
test. The appeal could be dismissed on that basis (see paras [31] &
[32]).
3 On
the assumption that it is correct to say that to constitute
"persecution" the harm threatened need not be that of loss of life or
liberty and that other forms of harm short of interference with life or
liberty may be sufficient and measures in disregard of human dignity
may in appropriate cases, constitute persecution, there was nothing in
the evidence before the RSAA sufficient to meet the "stand out as
requiring decision" test in Butler
and Jiao (see paras [32] to
[34]).
Chan v Minister of Immigration and Ethnic
Affairs (1989) 169 CLR 379 (HCA) at 430 referred to.
Appeal dismissed
Other cases
mentioned
in the judgment
Refugee Appeal No. 75248 (19 May
2005)
S
v Chief Executive of the Department of Labour [2006] NZAR 234
(Keane J)
T v Refugee Status Appeals Authority
[2001] NZAR 749 (Durie J)
Counsel
DJ Ryken & IM Chorao
for the
appellant
IC Carter & KM
Howard for
the first respondent
[Editorial note:
There in no mention
in the judgment of the fact that the jurisprudence of the RSAA
on the "being persecuted" element of the refugee definition has moved
beyond the now dated decision in Chan.
In Refugee Appeal No. 74665/03
[2005]
NZAR 60; [2005] INLR 68 the RSAA adopted a human rights understanding
of "being persecuted". That is, refugee law ought to concern itself
with actions which deny human dignity in any key way and that the
sustained or systemic denial of core human rights is the appropriate
standard. In other words, core norms of international human rights law
are relied on to define forms of serious harm within the scope of
"being persecuted". Those core norms are to be found in the Universal
Declaration of Human Rights, 1948, the International Covenant on Civil
and Political Rights, 1966, the International Covenant on Economic,
Social and Cultural Rights, 1966, the Convention on the Elimination of
All Forms of Racial Discrimination, 1966, the Convention on the
Elimination of Discrimination Against Women, 1979 and the Convention on
the Rights of the Child, 1989. The RSAA decision also emphasises that
the Convention text uses "being persecuted", not "persecution". The
difference is important. Among
other things, the phrase "being persecuted" draws attention to the fact
of exposure to harm rather than to the act of inflicting harm. This
is a significant point, especially in the context of causation.]
Judgment of the Court:
A The appeal is
dismissed.
B In terms of s
40(4) of the Legal Services Act 2000 an award of costs of $3,000 plus
usual disbursements would have been made if s 40 of that Act had not
affected the appellant’s liability.
C The appellant is
to be referred as ‘S’ in this Court’s judgment, including intituling,
and any other court document produced in future.
D Facts redacted in
the decision of the Refugee Status Appeals Authority including the name
of the appellant’s village and places visited by the appellant are to
be similarly redacted in any judgment of this Court.
E This Court’s file
is not to be searched without prior leave of a Judge, after first
hearing from the parties to the appeal.
REASONS OF THE COURT
(Given
by Ellen France J)
Table
of Contents
Introduction
Factual background
High Court judgment
The appellant’s case
Discussion
Suppression
Result and costs
Introduction
[1] The appellant, an Iraqi
national and a Chaldean (Assyrian) Christian, came to New Zealand in
December 2001, initially on a nine months visitor’s permit. In October
2002, the appellant claimed refugee status. On 31 May 2004, the Refugee
Status Branch (“RSB”) declined his claim. His appeal to the Refugee
Status Appeals Authority (“the Authority”) was dismissed on 19 May
2005: Refugee Appeal No 75248.
The Authority accepted Iraq remained a “generally violent place” and
that there was an increasing level of anti-Christian violence in the
relevant parts of Iraq. However, the Authority concluded there was
nothing in the available material to show that the appellant had a
well-founded fear of persecution.
[2] The appellant sought judicial
review of the Authority’s decision. In a decision delivered on 19
December 2005 and now reported as S
v Chief Executive of the Department of Labour [2006] NZAR 234
(HC), Keane J dismissed the application for judicial review.
[3] The primary focus of the
appellant’s claim for refugee status was on the risk to his life and
safety on a return to Iraq. The appellant now says that there is a risk
of persecution through serious harm of a lesser kind due to problems
the appellant will have in terms of matters such as employment and the
ability to practice his religion.
[4] The appellant submits that
the Authority erred in not considering the risk of persecution in this
broader sense and that Keane J, in turn, erred in his approach by not
addressing this aspect.
[5] The issues have been
substantially refined from the way in which the matter was put in the
notice of appeal and in written submissions. This refinement has meant
we do not need to consider matters raised in the written submissions
such as the intensity of review. Further, the appellant did not pursue
an argument that Keane J’s reasons were inadequate. It follows that the
only issue for us is whether Keane J erred in concluding that matters
had to fall within the case as presented. Implicit in this issue is a
question about the scope of the duty on the Authority.
[6] The Authority, the second
respondent, took no part in the appeal.
Factual
background
[7] We largely adopt the
description of the facts in the decision of the Authority.
[8] The appellant was born in
the late 1960s in X, a village near Mosul, in northern Iraq. He lived
there with his family – his parents and siblings. There are some seven
or eight thousand people in X, the majority of whom are Yezidi,
described at [5] by the Authority as a “distinct ethno-religious group
of Kurdish origin”. Muslims form the next largest population group in
X, comprising 25 per cent of the population. Of this group, 17 per cent
are Kurds and the remaining 8 per cent are Arabs. The Chaldean
Christians make up the rest of the population. There is no Turkoman
population in X. The appellant comes from the Chaldean Christian
community.
[9] The Authority observes at
[6] that this demographic composition is “unusual” in the area. Other
villages nearby were overwhelmingly populated by one ethnic group or
the other. “Indeed”, the Authority notes at [6] that, “some villages to
the east of X are well-known because they are populated solely by
Christians”. The Authority continues:
[7] X was spared the policy of
Arabisation of the former Ba’ath regime under which non-Arab ethnic
populations were forcibly displaced or made to adopt Arab ethnicity so as to
change the demographic composition of the area. There was, however, an
ill-fated attempt by the Ba’ath party in the mid 1980s to have Christians in X
read the Quran. They objected and the leader of the Assyrian Christian church
went to see the relevant minister. Following this meeting, the plan
was not pursued.
[10] The Authority records at [8]
that in general inter-communal relationships were good and the
appellant experienced no specific problems in growing up.
[11] In 1985 the appellant was
conscripted into the Iraqi Army. He was discharged in 1990. During this
time he was harassed by non-Christian soldiers who would mock him and
laugh at the prayers he said before eating his meals.
[12] After discharge from the
Army, the appellant worked for two companies in Mosul for brief periods
of time. There he was verbally harassed by co-workers who would call
him derogatory names and would mock his religious beliefs. The
appellant did not want to continue working in this environment and in
1993 he started to work for his father.
[13] The Authority says that
the appellant’s family was well known in X being an Assyrian Democratic
Movement (“ADM”) family. His father had been a member of the ADM, an
ethno-political party in Iraq, for many years. From at least 1980, the
appellant’s father had been elected the local leader for X. The
appellant became involved in the ADM in the late 1980s. The Authority
explains as follows:
[12] The ADM was not allowed to
have an office in X. Rather, the appellant’s father spoke to
local ADM members in public places frequented by Christians, giving
instructions as to what needed to be done. The ADM members in X, were all
instructed by the appellant’s father to keep watch over their community. Thus, if
any Christian person was arrested, this had to be brought to his father’s
attention. Similarly, if there was any movement by Iraqi military or security
units through the X area, this too would be reported to his father.
[13]
As a local leader the appellant’s father was required to report to the overall ADM leader in D. The
appellant occasionally went with his father to such meetings. After the
establishment of the Kurdish Autonomous Region (KAR) in the aftermath of the
first Gulf War, the ADM opened an office in D with the consent of the
regional Kurdish leadership and the appellant became involved in ferrying
information from X to the leadership at this office. This required him to
frequently travel over what was the de facto border between the KAR and that
part of Iraq under Ba’ath Party control. He carried out such activities
until he left Iraq. While the appellant’s father had ceased being a local leader
in the late 1980s he remained active in the ADM and in the community.
[14] The Authority records that the
appellant had no trouble until early 2001. At that point, the police
came to his house asking for him. He was in D at the time. A relative
came to see him in D and told him about the police visit. He waited in
D for a few days and then he went back to X. Two months later, on
coming home with his family, the appellant was told by a neighbour that
the police had come to the house looking for him.
[15] There was a further visit
by the police in late 2001. The appellant’s house was raided at night
and the appellant was taken to a local police station where he was held
for four days. During that time he was questioned each day about his
involvement in the ADM. The questioning would last for about an hour to
an hour and a half. The appellant was assaulted with a hose and punched
in the face. The appellant’s father obtained his release by paying a
bribe. After this, the appellant stopped all his activities and kept a
low profile, staying at home.
[16] The Authority then records
that the appellant left Iraq towards the end of 2001. He initially
entered New Zealand on the basis of a temporary permit granted because
he was engaged to an Iraqi woman who has permanent residency in New
Zealand. The appellant made his claim for refugee status when the
engagement did not lead to marriage.
[17] After the appellant left
Iraq, his family moved from X to another town although they returned to
X with the fall of the Ba’ath party. Whilst in New Zealand the
appellant has maintained regular telephone contact with his family. He
learnt from them that the authorities visited the family home as an
order had been issued requiring all young men of his age to report back
to the Army. The Authority continued:
[17] [The appellant] has learnt
that the situation for Christians in Iraq has deteriorated since the fall of
the regime. Many churches in Iraq have been bombed and his family have told
him that the church in X has closed out of fear. He fears he will be
targeted by either Muslims or Kurds because he is a Christian. He fears the fact
that his family were well-known in the area for being an ADM family, will
increase the prospect of him being targeted at some stage.
[18] After the hearing of the
appellant’s appeal, the Authority undertook some research of its own.
The Authority provided the material it obtained from its research to
counsel for the appellant and sought counsel’s submissions on it.
Further submissions were received from the appellant’s counsel along
with further country information.
[19] The Authority’s decision
dismissing the appeal was delivered on 19 May 2005 and the judicial
review proceedings followed. A consent order was made by the High Court
to the effect that the appellant’s temporary permit continues until
disposal of the judicial review proceedings.
[20] The United Nations
Commission for Refugees (“UNHCR”) in its advisory report dated 18
December 2006 recommended to member states that there be no forcible
repatriation of Iraqis back to Iraq until the security situation in
Iraq improves. The first respondent, the Chief Executive of the
Department of Labour, advises that the New Zealand position is that, in
general, forcible repatriation to Iraq is suspended but the government
reserves its right to make decisions on a case by case basis.
High
Court judgment
[21] Keane J approached the matter on the basis that the case
was one of “high stakes” for the appellant and, as such, warranted a
“close” look by the Court on review (at [31]). The Judge said at [43]
that the “final point of reference” was the risk to the claimant for
refugee status. The Court referred to the discussion of the broader
definition of “persecution” by McHugh J in Chan v Minister of Immigration and Ethnic
Affairs (1989) 169 CLR 379 to which we return later in this
judgment.
[22] However, Keane J concluded
that, absent new evidence, the issue on review was on how the Authority
resolved the case as it was. The focus of the case before the Authority
was on the risk to the safety and life of the appellant and that is
what the Authority had to assess. In that context, the Judge said the
Authority had asked itself the right question, as the appellant
accepted. On that basis, there was no error of law and the Authority’s
decision was not unreasonable.
The appellant’s case
[23] The appellant says
that the Authority erred in not considering or not adequately
considering whether, although not amounting to persecution because of
risk to life or other violence, there was nonetheless a well-founded
fear of persecution because of the risk of serious harm arising from
systemic violation of basic human rights. The appellant argues that the
failure to consider or to adequately consider this matter was critical
for the appellant especially as he is a refugee sur place, that is, a person who
whilst already away from their country of origin, determines that he or
she cannot or will not return to that country. The contrast is with the
person who flees his or her country because of a risk of persecution,
Hathaway The Law of Refugee Status (1991)
at 33. The effect of that status is that the appellant has not lived
under the current regime in Iraq and does not have personal knowledge
of it. In that context, the appellant is critical of what Mr Ryken
described as the backward or historical nature of the Authority’s
consideration.
[24] The appellant says that
the Authority should have considered the implications arising out of
the fact that the appellant belonged to a class of persons whose
religious buildings were being systematically destroyed to a larger
extent in Baghdad and to a lesser extent (but to an extent) in northern
Iraq. Reference to previous discriminatory treatment to the appellant
in the past was not sufficient. Hence, the appellant in his written
submissions submits that the Authority “failed by and large to grapple
with the ultimate issue because it got side tracked”.
[25] Against that background,
the appellant says that the High Court erred in similarly approaching
the matter in terms of life and death and did not come to grips with
the question of whether or not the Authority had dealt with persecution
in its broader sense.
Discussion
[26] The appellant in
oral argument initially focused on what Mr Ryken described as the need
for “shared” decision-making involving both the appellant and the
Authority. Ultimately, however, the appellant accepted that the
position is as set out in Butler v
Attorney-General [1999] NZAR 205 at 215 (CA) and reiterated in Jiao v Refugee Status Appeals Authority [2003]
NZAR 647 at [33] (CA):
As this Court said in Butler v Attorney-General at p 215,
it cannot be an error of law for a tribunal
considering a matter which is properly before it to fail to rule on some particular
aspect of the matter if that matter is not raised with it by the interested party
and if it does not stand out as requiring decision.
[27] The Court in Jiao at [21] expressly disagreed
with the interpretation in T v
Refugee Status Appeals Authority [2001] NZAR 749 at [23] (HC)
where Durie J said, obiter, that the “responsibility of an appellant to
establish the claim” in s 129P(1) of the Immigration Act 1987 “can be
no more than a responsibility to establish what the claim is”. Durie J
had said at [23] that s 129P(1) “cannot by itself deprive the Authority
of its role as a Commission of Inquiry with all the attendant duties to
fully inquire into such claims as are presented to it”.
[28] The approach in Butler and Jiao reflects the statutory
framework although Butler pre-dates
the enactment of Part 6A of the Immigration Act. Part 6A is designed to
provide “a statutory basis for the system by which New Zealand ensures
it meets it obligations” under the United Nations Convention Relating
to the Status of Refugees 1951 (s 129A). Refugee claims are determined
in the first instance by a refugee status officer (s 129E) and then
there is a right of appeal to the Authority (s 129O). There is also an
ability, in terms of s 129J, to seek to have a further claim for
refugee status considered where circumstances in the applicant’s home
country have changed “to such an extent that the further claim [for
refugee status] is based on significantly different grounds to the
previous claim”.
[29] The procedure on appeal to
the Authority is set out in s 129P which relevantly provides as follows:
(1) It is the responsibility of
an appellant to establish the claim, and the appellant must ensure that all
information, evidence, and submissions that the appellant wishes to have
considered in support of the appeal are provided to the Authority before it makes
its decision on the appeal.
(2)
The Authority–
(a) May seek information from
any source; but
(b)
Is not obliged to seek any information, evidence, or submissions further to that
provided by the appellant; and
(c)
May determine the appeal on the basis of the information, evidence, and submissions
provided by the appellant.
[30] The appellant’s argument
essentially is that the question of persecution in the broader sense
was one which stood out in the manner described in Butler as requiring decision. The
relevant information was before the Authority or was found in the
Authority’s other decisions on other claims for refugee status by Iraqi
Christians and did not need emphasis by the appellant.
[31] Giving the judgment of the
High Court in this case a fair reading, it is implicit that the Judge
had in mind the concern that the Authority should have considered the
broader aspects of persecution. That is apparent, for example, from
Keane J’s description of the appellant’s case (at [49]). We accept that
this matter was not emphasised by the Judge but in our view this was
because the point was not emphasised before the Authority, nor indeed
at the High Court. It is apparent that the matter has not previously
had the emphasis it has now been given. Rather, the focus in the High
Court to some extent was on the application of the “real chance” test
(used to determine whether or not there was a well-founded fear of
persecution) when really what the appellant says is that a relevant
matter has just not been considered or not considered adequately.
[32] The appeal can be
dismissed on this basis. However, given the importance of the decision
to the appellant acknowledged by the High Court and decision-makers in
the area generally, we have gone on to consider what was available to
the Authority against the appellant’s broader claim. For these purposes
the parties, and indeed Keane J, were content to approach the matter on
the basis set out by McHugh J in Chan.
There, at 430, McHugh J stated:
Moreover, to constitute
“persecution” harm threatened need not be that of loss of life or liberty. Other
forms of harm short of interference with life or liberty may constitute
“persecution” for the purposes of the Convention and Protocol. Measures “in
disregard” of human dignity may in appropriate cases, constitute persecution:
Weis, “The Concept of the Refugee in International Law”, Journal du Droit International,
(1960), 928 at p. 970.
[33] Further, at 431, McHugh J said:
Hence, the denial of access to
employment, to the professions and to education or the imposition of
restrictions on the freedoms traditionally guaranteed in a democratic
society such as freedom of speech, assembly, worship or movement may
constitute persecution if imposed for a Convention reason: Goodwin-Gill,
pp. 38 et seq.
[34] Assuming that approach is the
correct one, we turn then to the evidence available to the Authority.
First, there was the appellant’s evidence. In terms of his direct
evidence the appellant did not point us to any material supporting the
broader claims. The appellant is in regular telephone contact with his
father but there was nothing from that contact to which we were
directed on this aspect. In terms of the other material, we accept the
submissions of the first respondent that there is nothing which stands
out in the Butler and Jiao sense as requiring
consideration. The evidence amounted to short passages in lengthy
reports and is not enough to meet the “stand out as requiring decision”
test.
[35] The other material
includes the Home Office’s Iraq Country Report (April 2004), the UNHCR
Country Report of August 2004, the further material obtained by the
Authority, and the additional information from the appellant.
[36] That material shows the
parlous nature of the civil state and of the economy in Iraq. However,
the information is more general and does not, as the first respondent
says, get distilled down to the circumstances of the appellant’s home
village or the surrounding area.
[37] It is apparent from this
information that there are very high rates of unemployment but no
targeting of or restricted access to employment to Chaldean Christians.
Some of the material shows some improvements, for example, in terms of
access to education and access to health and medical services. Other
than material about the general level of violence, the effect on the
right to worship in the appellant’s home area is not addressed.
[38] As to the approach in
other cases where the Authority has granted refugee status to Iraqi
Christians, the first respondent is correct that in those cases there
were particular factors which helped those claimants to qualify for
refugee status.
[39] For these reasons, we do
not consider either the Authority or the High Court erred in their
approach.
Suppression
[40] Section 129T of the Immigration Act provides that
confidentiality as to the identity of a refugee claimant and as to the
particulars of their case must at all times, “both during and
subsequent to the determination of the claim” be maintained by refugee
status officers, the Authority and various other persons.
[41] Against that background,
the first respondent sought suppression orders. The appellant agreed
that suppression orders in the form sought by the first respondent
should be made and we made orders in that form in the course of the
hearing accordingly.
Result
and costs
[42] The appeal is dismissed.
[43] The appellant is legally
aided. The first respondent sought an order under s 40(4) of the Legal
Services Act 2000 specifying what order for costs would have been made
against the appellant if s 40 of that Act had not affected the
appellant’s liability. We make an order in terms of s 40(4), namely,
that an award of costs of $3,000 plus usual disbursements would
otherwise have been made.
[44] Finally, we record that we
made orders requiring that:
(a) The appellant is to be
referred to as “S” in this Court’s judgment, including intituling, and any
other court document produced in the future;
(b)
The facts redacted in the decision of the Refugee Status Appeals Authority including the name of
the appellant’s village and places visited by the appellant, are
similarly to be redacted in any judgment of this Court; and
(c)
The Court of Appeal file is not to be searched without prior leave of a
judge,
after first hearing from the parties to the appeal.
Solicitors for the
appellant: Ryken and Associates (Auckland)
Solicitors for the first
respondent:
Crown Law Office (Wellington)