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Ally Hassan Mohammed v Refugee Status Appeals Authority

High Court Auckland M500/95
21 December 1995; 21 December 1995
Tompkins J

Judicial review - Interim order - Application for interim order preventing removal from New Zealand pending determination of substantive claim for judicial review against the decision of the Refugee Status Appeals Authority

Judicial review - Reasonableness - Challenge to credibility finding

Evidence - Burden of proof

The applicant, a citizen of Tanzania, arrived in New Zealand in 1992. After being served with a removal order he claimed refugee status. When that application was declined he appealed to the Refugee Status Appeals Authority (RSAA). In 1995 the appeal was dismissed, the RSAA holding that the applicant's account was not credible.  In the alternative the RSAA held that as the real chance test was not satisfied, the fear of persecution was not well-founded.  The applicant applied for an order preventing his removal from New Zealand until his judicial review proceedings had been determined.

Held:

1    The reference by the RSAA to the applicant not making any effort to get in touch with his family to obtain information or evidence did not set any standard of proof.  The issue was whether the applicant was credible (para [10]).

2    The RSAA was required to make a determination as to the applicant's credibility. In doing so it was entitled to take into account relevant matters of fact. There was no error of law in the credibility finding of the RSAA (see para [10]).

3    There was nothing to support the submission that the conclusion of the RSAA that the real chance test was not satisfied was unreasonable in the Wednesbury sense. Indeed, the decision was eminently reasonable. The applicant had had ample opportunity to produce evidence to support his claim, and had failed to do so (see para [14]).

Application declined

Counsel
G Monk for the applicant
M Woolford for the respondents

TOMPKINS J [1] The applicant has applied for an order restraining any immigration officer from removing the applicant from New Zealand pursuant to the provisions of the Immigration Act 1987 until such time as the High Court has determined and heard the applicant's case for judicial review.

Background

[2] The applicant is a citizen of Tanzania.  He is 24 years old and single.  Because of his father being involved in a political group and the police arresting him as a result, the appellant fled from his home, spent some time in Dar-es-Salam where he stowed away on a Russian ship to Bombay and subsequently stowed away on a New Zealand ship arriving in New Zealand on 2 October 1992.  On 24 December 1992 he made an application for refugee status after a removal order had been signed and served on him.

[3] The application for refugee status came before the Refugee Status Appeal Authority on 2 February 1995.  In its decision, delivered on 21 July 1995, the authority declined the application.  Although the applicant's solicitors have occasionally been in touch with him, he apparently was of no fixed abode and was unable to be found by the New Zealand Immigration Service until he was arrested this morning.  He is due to be flown out of New Zealand at midnight tonight.

[4] At about 4.30pm this afternoon, the applicant's solicitors filed by fax the application for interim order.  I have seen counsel in chambers just after 5 pm.  I heard oral submissions from Mr Monk in support and from Mr Woolford for the second respondent to oppose.

Arguable case

[5] It is Mr Woolford's submission that the applicant is unable to establish an arguable case in support of the application.  Mr Monk submits that there is an arguable case in two respects.

[6] He submits that there was an error of law in the decision. The error is not set out in the application but in his oral submissions Mr Monk submitted that the authority made an error of law in that it required the applicant to make enquiries in Tanzania in order to satisfy the burden of proof lying on him and that that requirement amounted to an error of law.  Mr Monk accepted that the authority in its decision correctly described the burden of proof.  But it was his submission that by making that requirement the authority set the level of evidence required to satisfy it too high.  In essence, therefore, he submits that the authority has set too high a standard of proof.

[7] The authority, at page 9 of the decision, referred to paragraphs 195 to 205 of the UNHCR Handbook on procedures and criteria for determining refugee status as making it clear that the burden of proof of a refugee claim while lying with the applicant, is to some extent a shared burden with the examiner who has a duty to ensure the appellant has full opportunity to present all available evidence and to apply the criteria "in the spirit of justice and understanding".  It referred expressly to two paragraphs that refer to the need of the applicant to make a genuine effort to substantiate his story and that the benefit of the doubt should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility.

[8] Earlier in the decision the authority had set out five reasons why it felt unable to rely upon the appellant's account as truthful.  Accordingly for that reason alone the authority was of the view that he has not established that he has a genuine fear of persecution for a convention reason.

[9] The second of the five reasons is that the appellant made no effort to get in touch with his family following the arrest of his cousin.  The fourth of the five reasons is that the authority found it strange that the appellant has acknowledged that since being in New Zealand he has not made any attempt to communicate with his family or to get any information about his family from friends or neighbors or other family connections.  It is these findings that in Mr Monk's submission, amount to an error of law in setting too high a standard of proof.

[10] I am not able to accept this submission.  The authority was certainly required to judge credibility.  In doing so it was entitled to take into account such matters of fact as it thought appropriate provided, of course, those facts do indeed bear on the credibility issue.  I do not regard the authority's reference to the applicant not making any effort to get in touch with his family as setting any standard of proof at all. The issue is whether the applicant is credible.  The authority was entitled to make a finding on what is essentially an issue of fact by having regard to the matters it did.  I do not consider that even approaching the matter favourably from the applicant's point of view, any error of law can be said to be even arguable.

[11] The second ground that Mr Monk advanced is that the decision taken as a whole is unreasonable in the Wednesbury sense.  That is that when regard is had to the circumstances, the decision is one to which no reasonable tribunal could have reached.  In support of that submission, he refers to the acceptance by the authority at page 6 of the decision of the applicant's contention that his father was being pursued for promoting a tribalistic political party and also to the authority's acceptance that information available suggests that in Tanzania the enforcement of legislation is likely to be persecutory in nature rather than the subject of normal public trial in the courts of the land.  Mr Monk submitted that having accepted those facts, the authority was unreasonable in the sense to which I have referred in determining that the appellant has failed to establish that there was a real chance that he will suffer persecution if he returns to Tanzania.

[12] As I have already indicated, the authority initially considered that because it was unable to rely upon the appellant's account as a truthful one, that in itself was sufficient for the authority to reach the view that he has not established that the applicant has a general fear of persecution.

[13] But then the authority went on to put aside the issue of credibility.  It found, as I have indicated, that the applicant has not established that there was a real chance he will suffer persecution.  It gave its reasons.  There was no information available to the authority as to whether or not the applicant's
father is still sought by the authorities or whether his particular political group still exists or not or whether his cousin has been released or not.  It went on to say:

[14] It is Mr Monk's submission that this conclusion is unreasonable to the extent necessary.  I am not able to accept that submission.  Indeed, on the face of it, and contrary to Mr Monk's submission, the conclusion that the authority reached appears eminently reasonable.   The applicant has been in New Zealand now for some three years.  He knew that he would be seeking refugee status.  He had ample opportunity to collect at least some evidence to support his claim that he would be persecuted.  It appears from the authority's decision that at least in the respects to which the authority refers, he did not do so.

[15] I find no possible basis on which it could be said that the conclusion the authority reached in this respect was unreasonable to a degree that could support an application for review.

[16] Accordingly, for these reasons, the application for an interim order is declined.

[17] Mr Woolford not seeking any order, there will be no order.
 
Solicitors for the applicant: Vallant Hooker and Partners (Auckland)
Solicitors for the respondents: Meredith Connell (Auckland)