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A M v Refugee Status Appeals Authority

High Court Auckland CIV-2004-404-6586
15-16 September 2005; 20 October 2005
Courtney J

Benefit of the Doubt - when appropriate to apply

Judicial review - admission of new evidence on review - whether fresh evidence admissible

Judicial review - approach to judicial review of RSAA decisions

Judicial review - credibility findings

Judicial review - duty to investigate - Immigration Act s 129P

Judicial review - mistake of fact - whether mistake of fact a ground for judicial review

Judicial review - new grounds - whether on judicial review refugee claimant can advance claim to refugee status on significantly different grounds

Medical evidence - duty to investigate - whether duty to make enquiries into psychological condition

Procedure of RSAA - joint hearing - whether procedurally unfair

The plaintiff, a citizen of Iran, was one of four children. His elder brother experienced problems with the Iranian authorities and left Iran for New Zealand in 1997. There he was recognised as a refugee. Following the departure of the elder brother the plaintiff opened a shop near Tehran University selling music CDs, videos, posters and gifts. He also provided a photocopying service which was used mainly, and often, by students. His claim to refugee status was that he was at risk of being persecuted for copying Western videos and for allowing his photocopying service to be used to produce anti-government pamphlets. Travelling on a false passport he left Iran for Thailand, claiming that he was unaware that his mother and elder brother were also in Thailand at that time. When he arrived in New Zealand he claimed refugee status. His sister, claiming to have been detained on three occasions and interrogated about the plaintiff's whereabouts, also arrived in New Zealand and claimed refugee status. After their claims to refugee status failed at first instance, both the plaintiff and his sister appealed to the Refugee Status Appeals Authority (RSAA). By consent their appeals were heard jointly, with the evidence in the one appeal treated as evidence in the other. The RSAA made adverse credibility findings in respect of both the plaintiff and his sister and both appeals were dismissed. In the High Court a number of challenges were made to the RSAA decision. In addition the plaintiff sought to introduce further evidence and to radically alter the basis on which his claim to refugee status rested.

Held:

1.   The further evidence could not be adduced. The new country information addressed circumstances different to those of the plaintiff and the other evidence could have been adduced at the RSAA hearing but was not (see paras [7] & [8]).

2.   The function of the High Court in a judicial review proceeding is limited to considering whether the RSAA approached its decision-making process properly. Generally, it can only act if the RSAA exceeded its power, erred in law, made its decision based on a mistake of fact, took irrelevant matters into account, failed to take relevant matters into account or if its decision was so unreasonable no rational authority could reach it or if the decision-making process was procedurally unfair (see para [15]).

Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (PC) and Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC) referred to.

3.   Only in rare cases will the Court interfere with a credibility finding made by the RSAA. As to the facts, it had had the opportunity to observe the plaintiff and other witnesses over a period of days and in the context of the issues that are routinely coming before it. The RSAA made very explicit adverse credibility findings against both the plaintiff and his sister, whose evidence supported his application. There would have to be an exceptional reason for interfering with that finding (see para [17]).

4.   It was not open to the plaintiff to radically alter the basis for his refugee case. The Court could only embark on a review of the case as it was advanced before the RSAA (see paras [20] & [60]).

5.   Section 129P specifically imposes on the applicant the responsibility for establishing his or her claim to refugee status. This is, of course, subject to the claimant's right to the benefit of the doubt in respect of aspects of the case that cannot be established. Generally, however, there is no obligation on the RSAA to seek further information or evidence in addition to that provided by the claimant. This includes evidence relating to the applicant's psychological condition (see paras [22] & [38]).

Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) referred to.

6.   Mistake of fact as a ground of judicial review has not been the subject of clear confirmation by the Court of Appeal but there are several instances in which the High Court has accepted that mistake of fact is available as a ground of review. However, even in those cases, the Court has required, amongst other things, the mistake to have been made in relation to an established or incontrovertible fact (see para [40]).

Taiaroa v Minister of Justice (High Court Wellington, CP99/94, 4 October 1994, McGechan J); Northern Inshore Fisheries Company Ltd v Minister of Fisheries (High Court Wellington, CP235/01, 4 March 2002, Ronald Young J) referred to.

7.   The difficulty confronting the plaintiff was that the RSAA did not reject his claim because of doubts about a few peripheral aspects of his account that could not be proven. The RSAA rejected all aspects of the account, both fundamental and peripheral. In those circumstances it would not have been appropriate to have given the plaintiff the benefit of the doubt in relation to peripheral aspects when his core claim had been disbelieved (see para [52]).

8.   The plaintiff having consented to a concurrent hearing of his appeal with that of his sister, with the evidence in the one appeal being treated as evidence in the other, he could not later complain that his sister's credibility played a part in the RSAA's assessment of his case. Nor was there any procedural unfairness (see paras [56] & [63]).

Application dismissed.

No other cases mentioned in judgment

Counsel

E Orlov for the plaintiff
A Longdill for the second defendant

[Editorial note:  This judgment is to be read with the judgment delivered by Courtney J on the same day in relation to the sister, namely So M v Refugee Status Appeals Authority (High Court Auckland, CIV-2004-404-6740, 20 October 2005, Courtney J)]

RESERVED JUDGMENT OF COURTNEY J
Table of Contents

Introduction
Application to Adduce Further Evidence
Amnesty International Report
S M’s Immigration File
RSAA’s Decision
Principles Applicable in Judicial Review 
Change to Case
First Ground of Review – Failure to Make Enquiry
Second Ground of Review – Mistake of Fact / Failure to Take Vital Facts Into Account
Status of mullah with whom S M had dispute  
Confiscation of family home 
Plaintiff’s psychological condition
Military Service
Failure to take account of cultural and legal background in Iran  
Third Ground – Failure to Apply Proper Test in Assessing Credibility 
Failing to give plaintiff the benefit of the doubt 
Assessing credibility against standard of a New Zealand family  
Assessing plaintiff’s credibility on the basis of the credibility finding in respect of So M
Plaintiff’s belief as to reason for detention not determinative
Fourth Ground – Failed to Take Into Account or Apply Appropriate Tests
Fifth Ground – Procedural Unfairness
Result

Introduction

[1] The plaintiff is an Iranian national. He arrived in New Zealand in October 2003 and sought refugee status. His sister, So M had arrived in New Zealand in September 2003 and also applied for refugee status. His older brother, S M, was already living in New Zealand, having been granted refugee status in 1998.

[2] The plaintiff applies for judicial review of the Refugee Status Appeals Authority (RSAA) decision 1 September 2004, which dismissed his appeal against the decision of the Refugee Status Branch (RSB) declining refugee status. His sister has a similar proceeding on foot, which was heard immediately before this case (M v RSAA & Anor HC Auckland, CIV-2004-404-6740, …………….. Courtney J).

Application to Adduce Further Evidence

[3] The plaintiff had filed an application for leave to adduce further evidence. The evidence sought to be adduced was:
 
a)  Reports and country information from Amnesty International regarding recent information concerning persecution of family members of refugees; and  
               
b)  The full immigration file and RSAA decision in relation to S M's application for refugee status.

[4] No specific affidavit was filed in support of this application. However, a substantial affidavit was filed in the proceeding CIV-2004-404-6740 relating to the plaintiff’s sister, So M which I treat as relating to the present application as well. In her proceeding So M also filed an affidavit annexing a copy of the Amnesty International report and I therefore proceed on the basis that her affidavit (to the extent that it annexes this document) is also made in support of the plaintiff’s application.

Amnesty International Report

[5] The plaintiff seeks to rely on this report to support a submission that the probable basis for his persecution in Iran was his relationship to a refugee, namely S M. This report is entitled “human rights violations and the risk faced by family members of political and social activists”. Mr Orlov made submissions in relation to this report in the context of Ms M’s hearing and I treat them as being adopted in this proceeding as well. He asserted that, although the report was dated 23 June 2005 (well after the RSAA decision), the information in it has simply been drawn from Amnesty International’s files and could have been available to the RSAA at the time of the hearing, had a request been made.

[6] In response, Ms Longdill submitted that the RSAA had no obligation to obtain the information (s 129P Immigration Act 1987) and further, that the report is irrelevant because it deals specifically with the risks faced by families of political and social activists, not refugees.

[7] I accept Ms Longdill’s submissions.  It is clear that under s 129P the RSAA had no obligation to obtain a report such as this when considering the plaintiff’s appeal. I also consider that the circumstances of those referred to in the report are different to the circumstances of S M, whose problems did not stem from political or social activism but from a personal difference with an authority figure. I also note that a number of the incidents referred to in the report occurred after 23 September 2003 when the plaintiff left Iran.  I therefore decline leave to adduce this report as evidence.

S M’s Immigration File

[8] This file could have been obtained by the plaintiff at the time of the RSAA hearing, had it been regarded as relevant. S M gave evidence to the RSAA in support of the application by his brother and sister. Any relevant information could also have been obtained from him then. There is no basis on which to justify allowing the file to be adduced as evidence now.

RSAA’s Decision

[9] The RSAA heard the plaintiff’s and his sister’s appeals together over 27-30 July 2004 and delivered its decision 1 September 2004. An interpreter was provided for the duration of the hearing and at the conclusion of the hearing the plaintiff’s counsel was permitted further time to make written submissions.

[10] In its decision the RSAA set out the factual basis for the plaintiff’s case as it was advanced by him. The essential aspects of the case were as follows:

a)    He is one of four children born into a Shi´ite Muslim family in Iran and aged 24 years at the time of the hearing. The plaintiff’s early life was unremarkable until 1997 when his elder brother, S M, suddenly departed Iran.  Thereafter the family were targeted by authorities and the plaintiff’s father and sister taken away for questioning. The family’s home and car and his father’s restaurant were confiscated. However, the plaintiff had little knowledge of why these events had occurred. His family did not discuss with him the reasons for his older brother being forced to flee. He was uncertain as to how often or for how long his father was detained;

b)    Upon leaving school the plaintiff completed a course at a technical institute, worked for a period for his father (now a building contractor) and assisted in his cousin H’s shop. In March 2003 the plaintiff opened his own shop near Tehran University selling music CDs, videos, posters and gifts. He also provided a photocopying service which was used mainly, and often, by students. His cousin worked with him in the shop;

c)    The plaintiff deliberately ignored his obligation to perform compulsory military service because he resented the injustices experienced by his family in the past although he himself had not experienced any problems with the authorities up until that time;

d)    In addition to his normal merchandise the plaintiff also sold illegal (mostly western) music and videos. These were kept out of sight of usual customers.  Businesses such as these are regularly monitored by members of the security forces and after he had been operating for about a month Ettela’at officials searched the shop. They did not find anything illegal but nevertheless arrested the plaintiff and questioned him over a few days. He was warned by the officials not to tell anyone of his detention and he did not tell his family but did tell his cousin;

e)    About two weeks later his shop was raided again and illegal CDs were found. He was fined and released;

f)    In June 2003, during a student demonstration, a student sought refuge in the plaintiff’s shop. The student, referred to as K, began to visit the shop most days. He was about five years older than the plaintiff and studying political science. He talked at length about political matters and he and the plaintiff became friends.  The plaintiff began to attend demonstrations with K;

g)    Towards the end of June 2003 K asked if he could photocopy pamphlets using the plaintiff’s photocopier. The plaintiff understood the pamphlets to be anti-regime. K refused the plaintiff’s request to see one of the pamphlets. But the plaintiff was not concerned about that and let K use the photocopier in the basement storeroom on various occasions;

h)    On 7 July 2003 K failed to meet the plaintiff to attend a demonstration as they had arranged. The next morning the plaintiff went out to purchase stock for his shop. He telephoned his cousin at the shop to arrange for further money to be sent. When there was no reply he telephoned a neighbour who was also a friend. This friend told the plaintiff that his shop had been searched, his cousin arrested and papers removed from the storeroom;
 
i)    The plaintiff assumed that these events were related to K. He telephoned K’s home and was told that K had been missing for the last two days or so.  He telephoned his own mother and she told him that officials had been to his home looking for him. On his mother’s advice he went to his grandmother’s home.  From there his uncle took him to stay with his paternal grandmother who lived in a small town out of Tehran.  He remained in hiding there for three months during which time his uncle organised his escape from Iran;

j)    In early September 2003 the plaintiff departed Iran through Mehrabad airport on an Iranian passport in a false name. His uncle had arranged for his mother’s cousin who worked at the airport to assist him;

k)    The plaintiff flew to Bangkok where he was met by an agent arranged by his uncle.  After several days he was told to proceed to China where he was supplied with a false Italian passport. He was unaware during his time in Thailand that his mother and elder brother were also there;

l)    Since being in New Zealand the plaintiff has had limited contact by telephone with his mother. He feels responsible for the plight of his father, cousin and sister.  He is afraid that if he returns to Iran he will be imprisoned and that his life might be at risk.

[11] Having set out the factual basis for the plaintiff’s case the RSAA identified the issues it was to consider. It set out the Inclusion Clause in Article 1A(2) of the Refugee Convention defining a refugee as a person who:

…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

[12] The Authority then stated the issues for its consideration as:

a)    Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

b)    If the answer yes, is there a Convention reason for that persecution?

[13] The Authority then assessed the plaintiff’s case. At the outset it stated its conclusion that the plaintiff’s claims of being sought by the authorities and also the detentions of his cousin, father and sister were not credible. It referred to its decision in relation to the plaintiff’s sister (Refugee Appeal number 75172) indicating the decisions should be read in conjunction with one another. The Authority then went on to review the significant factual aspects of the plaintiff’s account which caused it concern:

a)    The plaintiff had little detail to give about the events in 1997. Given the significance of those events, namely the arrests of his father and sister and confiscation of the family home, business and car, the plaintiff’s description of his family response was not believable. The Authority reiterated at this point their previous conclusion in relation to So M’s appeal and their rejection of her account of having been arrested in 1997;

b)    Despite being arrested twice in 2003 the Ettela’at did not identify the fact that he had never done his military service. This was regarded as implausible;

c)    The Authority considered that the relationship with K was implausible. There was an age difference of five or so years between them, K was a political science student active in student politics and the plaintiff clearly lacked any political sophistication. The Authority considered that such a friendship in such a short time was improbable. In addition, had this version of events been true it is unbelievable that the plaintiff’s friend would refuse to show him the pamphlets he was photocopying on the plaintiff’s photocopier;

d)    The response of the security services in arresting the plaintiff’s cousin and his father (who apparently have never been released) and his sister was inherently improbable given that the plaintiff was not a student, not involved in or with any knowledge about the groups that K was involved in and that neither his cousin, his father or his sister had any political connections or involvement;

e)    The Authority considered that the plaintiff’s sister’s account was fictitious;

f)     It was implausible that the plaintiff’s mother should have decided to travel to Thailand to see S M when her husband had been arrested and the plaintiff and his sister were both in the process of escaping from Iran;

g)    The reactions of the plaintiff (and his brother and sister) to their father’s alleged ongoing detention was not believable. There had been little evidence of efforts to maintain contact with the family in Iran or to make enquiries about the family’s and cousin’s situation. S M's evidence as to the one conversation he had had with his uncle about this issue did not ring true. Overall the Authority did not accept that the plaintiff’s father had been arrested in 2003 or remained in detention now;

h)    The coincidence that all four members of the same family should travel to Thailand during August/October 2003 with only the mother and S M knowing one another’s movements was not believable.  Nor was it likely that the plaintiff should have been ignorant of the fact that his sister had already preceded him to New Zealand via the same route;

i)    There was contradictory evidence between S M's and his sister’s description of family life following his departure in 1997. The plaintiff and his sister had both referred to the family home being confiscated in 1997 but S M referred to that having occurred in 2003. S M did not know anything of the summons his sister claimed to have received.

[14] In conclusion the Authority found that even if the appellant was given the benefit of the doubt in relation to avoiding military conscription and departing Iran illegally, the penalties for that conduct would not amount to persecution for Convention reasons. Otherwise, the Authority rejected the plaintiff’s core claims and in particular did not accept that he was sought by the Iranian authorities because of his association with K.

Principles Applicable in Judicial Review
 
[15] The function of this Court on judicial review is limited to considering whether the RSAA approached its decision-making process properly. Generally this Court can only act if the Authority exceeded its power, erred in law, made its decision based on mistake of fact, took irrelevant matters into account, failed to take relevant matters into account or if its decision was so unreasonable that no rational authority could reach it or if the decision-making process was procedurally unfair.

[16] In Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, 1173 (applied by the Privy Council in Mercury Energy v Electricity Corp of NZ Ltd [1994] 2 NZLR 385, 389) the House of Lords observed that judicial review:

…is concerned not with the decision but the decision-making process. Unless that restriction on the power of the Court is observed, the Court will…under the guise of preventing the abuse of power be itself guilty of usurping power.

[17] Only in rare cases will this Court interfere with a credibility finding made by the RSAA. The Authority enjoys the unique advantage of being able to observe applicants and witnesses (sometimes over a period of days) in the context of issues that routinely come before it. In this case the RSAA made very explicit adverse credibility findings against both the plaintiff and his sister, whose evidence supported his application. There would have to be an exceptional reason for interfering with this finding.

Change to Case

[18] Before I consider the various pleaded grounds for the proceeding I note that in submissions Mr Orlov advanced a case that was significantly different to that put in the RSAA.  He began his submissions by saying that the case in the RSAA had rested on the plaintiff’s persecution for copying western videos and being involved with K but that neither of these circumstances would normally lead to persecution in Iran. Although they were against the law, Mr Orlov submitted that these things, against a background of no previous difficulties, should not have resulted in persecution.

[19] Mr Orlov says that the plaintiff still does not know why he was persecuted but the fact is obvious that it was because of S M. Mr Orlov claims that the plaintiff’s problems all come down to the fact that S M had insulted a mullah and the plaintiff’s beliefs as to the reason for his persecution were not correct (although the RSAA should nevertheless have believed his story).  Mr Orlov submitted that if the RSAA believed S M (as it must have done in order for him to obtain refugee status) then it must automatically believe the plaintiff.

[20] It is not open to the plaintiff to so radically alter the basis for his case. This Court can only embark on a review of the case as it was advanced before the RSAA. The case described by Mr Orlov is an entirely different one. I therefore proceed to deal with the case on the basis of the pleadings. As the submissions made specifically in relation to the plaintiff were very brief I also treat the submissions made in relation to the plaintiff’s sister as being intended to relate to the plaintiff as well.

First Ground of Review – Failure to Make Enquiry

[21] The first ground pleaded was that:

That the RSAA made an error of law in failing to make enquiries or requesting from the appellant that enquiries be made and further evidence be
adduced and giving them (sic) further opportunity to adduce [evidence] in relation to some or all of the following issues:

1. The full circumstances surrounding the older brother’s (S M) grant of refugee status and his full file;

2. The exact details under what names the appellants had arrived in Thailand pursuant to their escape from Iran;

3. Evidence in support of the appellant’s statement that his father had been abducted or arrested by the authorities and was still in custody;

4. Failed to request or enquire into country information regarding the treatment of families of deserters of refugee applicants and the treatment of people who have escaped the country illegally and then returned;

5. Failed to make enquires or direct enquiries be made as to what property of the fathers was confiscated and when.

[22] Section 129P specifically imposes on the applicant the responsibility for establishing his claim to refugee status: Jiao v Refugee Status Appeals Authority [2003] NZAR 647. This is, of course, subject to the applicant’s right to the benefit of the doubt in respect of aspects of the case that cannot be established and I discuss this later. Generally however, there is no obligation on the RSAA to seek further information or evidence in addition to that provided by the plaintiff.

[23] I also make the following observations:

a)    The RSAA heard evidence from S M and any information relevant to the plaintiff’s claim could easily have been obtained at that point;

b)    Details of the names under which the plaintiff travelled from Iran to New Zealand were provided to the RSAA in the Confirmation to Claim Refugee Status form completed by the plaintiff in October 2003.  So no further information would have been needed in that regard;

c)    Under s 129T the RSAA was required to maintain the confidentiality of the plaintiff’s claim which would have effectively precluded independent enquiry into the status of the plaintiff’s father and confiscation of his property;

d)    Not only was there no obligation to request or enquire into country information regarding the treatment of deserters, refugee applicants and those who have escaped the country illegally and then returned, the plaintiff’s case was simply not advanced on these bases.  So there would have been no reason to make further enquiries into this aspect.

Second Ground of Review – Mistake of Fact / Failure to Take Vital Facts Into Account

[24] The plaintiff pleads several errors under this ground.

Status of mullah with whom S M had dispute

[25] The first error pleaded is failing to take into account a vital fact or making a wrong finding of fact, namely that S M’s grant of refugee status was over a dispute with a religious leader when it was in fact over a dispute with a religious leader who was also a high-ranking officer of the secret services.
 
[26] The RSAA did not, in fact, make this finding in relation to the plaintiff’s claim. I assume that this pleading has simply replicated the allegation from So M’s statement of claim. The RSAA’s decision in relation to So M’s appeal is relevant because the RSAA indicated that both decisions should be read together. I found that, overall, this aspect was not ignored or downplayed by the RSAA in its decision relating to So M.

[27] But in any event I do not consider that the status of the mullah involved had any bearing on the RSAA’s decision. The significance of the alleged error was said to be that, had the full circumstances been taken into account, the relentless persecution of the appellants by the secret service over apparently minor or insubstantial matters would have been credible. However, the credibility findings relating to the events in 1997 did not turn on the status of the mullah involved. Instead, the RSAA was influenced by the apparent lack of response by the plaintiff’s family to So M’s detentions and the plaintiff’s assertion that the family did not discuss S M’s predicament or the reasons for it with him.

[28] I consider that this view was open to the RSAA and is an entirely different issue from the status of the mullah involved. The factors that caused the RSAA concern would have existed regardless of his status. I do not consider that the RSAA erred in taking a wrong view of the mullah’s status but even if it had, such an error would not have had the effect contended by the plaintiff.

Confiscation of family home

[29] The plaintiff says that the RSAA made a mistake of fact, which impinged directly on its finding as to his credibility. The impugned finding of fact is said to be that the plaintiff had stated that the house was confiscated in 1997 whereas the older brother had stated that the house was confiscated in 2003. The plaintiff says that the Tribunal made a mistake of fact in failing to understand that S M had stated that all the father’s property had been confiscated in 1997 and then in 2003 newly acquired property was confiscated.
 
[30] At paragraph 56 of its decision the RSAA commented that:  
    
SM mistakenly had the family home being confiscated in 2003…   
   
[31] I note that in So M’s appeal the RSAA made a similar adverse comment to the effect that So and A M had both said the confiscation occurred in 1997 but that S M had said (and was adamant) that it occurred in 2003.

[32] Examination of the transcript shows that S M referred to both 1997 and 2003 when talking about property being confiscated.  This meant that there were inconsistencies between the plaintiff and his sister on the one hand and S M on the other. 

[33] The transcript (page 8) records the following exchange between the Authority and the plaintiff:
 
AU:     And why did you leave Shahrak-e Gharb?  
    
AM:     Because of the problem S caused that     
 
AU:     What problems were those?      
 
AM:     I don’t exactly recall them but they were problems which S caused them    
  
AU:     What do you mean you don’t recall?     
 
AM:     That time I was not, I was very young and therefore I don’t remember   
   
AU:     Was this 1997?       

AM:     It was in 19, 1376 which is the beginning of 1998 when we left Nasi Abad and we moved to Shahrak-e Gharb
      
AU:     Well, sorry. Well why did you leave, what was the problem that made you leave?       

AM:     OK sorry. We went from Sharak-E Gharb back to Nasi Abad     

INTER: I said the other way. Shahrak-E Gharb to Nasi Abad

AM:     We did not want to shift from Shahrak-e Gharb to Nasi Abad but the reason for it was government forced us to do so

AU:     How do you mean?

AM:     By that I mean government confiscate all we had, all our possessions

          (emphasis added)

[34] During S M’s evidence (page 4) there were the following exchanges:

AU:     Alright.  So did you know anything about the problems that your mother was having at that time in 2003?

SM:    I knew some, because my mum she didn’t tell me all of them, just she said A had some problems and So too.  Until when I get to Thailand she told me what happened.

AU:    Well has she been in contact with her?

SM:     Pardon?

AU:     Before you met her in Thailand?

SM:     Yes

AU:     Have you been in contact with her?
 
SM:     Yes    
  
AU:     By telephone?    
  
SM:     Yes, because grandma have it, and because she, I think she stay their (sic) now. Because since they get my father she most of the time there in my uncle’s house   
   
AU:     What did she tell you when you phoned her in Iran?  
    
SM:     She said she want to see me, maybe… 
     
AU:     Yeah what else did she tell you?       

SM:     She didn’t describe whole thing what happened there, she said they got my father and my brother’s missing and they arrest my sister a couple of times
      
AU:     And what else if anything did she tell you?   
   
SM:     That my father got a …from him    
  
AU:     Sorry my father?     
 
SM:     What he got like house, everything the authority take from him  
    
AU:     That was last year was it?
      
SM:     Yes
      
AU:     She told you this last year when you rang? 
     
SM:     My mum   
   
AU:     When have the authorities taken your father’s house?  
    
SM:     Pardon       

AU:     When have they taken your father’s home and everything?      

SM:     I’m not sure when I talked to her last time except it was about 2003, yeah     
 
AU:     So did they, did they take your father’s house in 2003?     
 
SM:     Yes      

           (emphasis added)     

[35] And later (page 8):

AU:     Where was the house that was, that the authorities took from your father?
 
SM:     I think it was Nasi Abad…because when I was young we were living there, Shahrak-e Gharb when I come here they move to…fin 
     
AU:     What’s your father’s occupation?      
 
SM:     He used to have a restaurant and like being in the …but…they come they take his restaurant and what he had 
     
AU:     So he had a restaurant?   
   
SM:     Yes and then a building construction
      
AU:     Has he always been a builder, I mean was he, did he train as a builder?     
 
SM:     Over in Iran you don’t have to have a trade or have a certificate like here, you don’t have to 
     
AU:     How long has he been in the building trade?   
   
SM:     My father       

AU:     Hm       

SM:     Long time       

AU:     So was the restaurant just a sort of secondary, not his real occupation?   
   
SM:     No it was secondary       

AU:     Oh okay, so he had always been a building contractor?  
    
SM:     Yes   
   
AU:     What was his restaurant called?  
   
SM:     I can’t remember       

AU:     Did you ever work in it with him?   
   
SM:     Not really but just sometimes after when I go to help him because I was working with a friend and cos most of the restaurant open in the afternoon 
     
AU:     What about his building business. Did he have a proper company?       

SM:     No not really       

AU:     He just operated under his own name?     
 
SM:     Yeah       

AU:     You said the restaurant was taken?     
 
SM:     Yeah     

AU:     What do you mean by that?

SM:     When I left the…take his restaurant and a house we were living there

AU:     When you left?

SM:     When I left

AU:     1996?

SM:     I’m not sure, 1997. Yes 1997. Yeah they take his restaurant then. The house that we were living there and I think we had…and take the cars, what they had

          (emphasis added)

[36] It is not entirely accurate to say (as the RSAA did) that S M’s evidence was that the confiscation occurred in 2003 because he referred to both 1998 and 2003.  Possibly, as Mr Orlov suggests, S M was describing two confiscations, with the 2003 confiscation being of property accumulated since the 1997 confiscation.  But even if that were so, there was inconsistency in the versions given by the three siblings.  Neither the plaintiff or So M referred to any confiscation in 2003, whereas S clearly did.  This alone would justify the RSAA’s concern about the inconsistency in the various accounts.  So I do not think that the criticism, even to the extent that it is valid, could have affected the outcome.
 
Plaintiff’s psychological condition

[37] The plaintiff then alleges that the method adopted by the RSAA in making the finding relating to the date of confiscation was an error of law because the RSAA:

a)    Failed to take into account, make enquiries of or request information into the plaintiff’s treatment in New Zealand by a qualified psychologist for nervous illness and depression directly caused by the said persecution which would have been vital to establishing whether the plaintiff had a well-founded fear of persecution; and

b)    Calling the psychologist or requesting a psychological report would have been vital to establishing the appellant’s credibility and assessing the demeanour and evidence of the said plaintiff

[38] I have already dealt with the effect of a failure by the RSAA to make further enquiries itself. It is clear that it is under no obligation to do so and any failure to do so cannot amount to an error of law. In any event, evidence as to the plaintiff’s psychological condition was before the Tribunal in the form of a letter from Dr Wansborough of the Auckland District Health Board 23 July 2004, which addressed his mood, concentration and memory. Clearly, the plaintiff’s counsel was alert to this aspect of his case and had it been thought necessary that additional evidence was required it could easily have been obtained. I therefore find that there was no error of law by the RSAA in the way alleged.

Military service

[39] The plaintiff challenges the RSAA’s finding that it was not credible that the Iranian authorities should fail to detect that the plaintiff had avoided military service. He says that this finding is based on a mistake of fact or an erroneous assumption that the Iranian authorities have ready access to requisite computer databases of army absconders.

[40] Mistake of fact as a ground of judicial review has not been a subject of clear confirmation by the Court of Appeal, although there are several instances in which the High Court has accepted that it is available (e.g. Taiaroa v Minister of Justice HC Wellington, CP99/94, 4 October 1994, McGechan J); Northern Inshore Fisheries Co Limited v Minister of Fisheries & Anor (HC Wellington, CP235/01, 4 March 2002, Ronald Young J). However, even in those cases the Court has approached this ground as requiring, amongst other things, the mistake to be made in relation to an established or incontrovertible fact.
 
[41] This aspect was the subject of only a short exchange between the plaintiff and the RSAA. The effect of that exchange was that the plaintiff agreed that he was lucky the Ettela’at did not look up his record regarding military service. He said that they had not asked about military service and that, unlike New Zealand, in Iran information about a person is not necessarily in the computer.

[42] The RSAA’s assessment was simply that it was improbable that over the course of three days in detention the plaintiff’s failure to undertake military service had not been identified.  It did not make any assumption as to the resources available to the Ettela’at to check such matters.  The plaintiff claimed to have been detained on two separate occasions, once involving a three day detention. In the circumstances the RSAA could reasonably have concluded that it was improbable that the authorities would fail to identify this omission in the plaintiff’s background.

[43] There is a further error said to have occurred in relation to this finding and that is the assumption that the plaintiff would not be persecuted on his return. The RSAA found that, even if the appellant had avoided military service, on his return to Iran he may be directed to perform that service possibly with an additional penalty but that this would not amount to persecution for a Convention reason. The consequences of avoiding military service were touched on in the plaintiff’s own evidence before the RSAA. There was nothing in his evidence to suggest that avoidance of military service would have serious consequences. Even allowing for the fact that, on the plaintiff’s case this aspect should not be regarded in isolation because he would have other issues that would concern the authorities, I nevertheless consider that on the plaintiff’s own evidence the RSAA was entitled to make the finding that it did.

Failure to take account of cultural and legal background in Iran

[44] The final error was said to be the RSAA’s failure to assess the actions of the plaintiff’s family against the cultural and legal background of Iran and that, had it done so, a favourable finding of credibility would have resulted.

[45] The pleading does not elaborate on what parts of the RSAA’s decision is being impugned in relation to this ground. I assume it is the findings in relation to the 1997 arrests of the plaintiff’s father and sister. The RSAA considered that the plaintiff’s evidence of the family’s response was not believable and also referred to their finding in relation to his sister’s claim that the circumstances of her arrest were implausible.  In essence, the RSAA found that, given the traumatic nature of the experience of arrest and confiscation, it seemed unlikely that there would have been no discussion with the plaintiff about the reasons for these events. In relation to So’s appeal it considered it implausible that a family which could (and did) remove its children from danger would fail to act after repeated detentions.

[46] There is no reason to think that these aspects of family dynamics would have been different because of the specific cultural and legal circumstances that existed in Iran. The RSAA was entitled to make the credibility assessment that it did for the reasons it gave.

Third Ground – Failure to Apply Proper Test in Assessing Credibility

[47] There are four errors identified under this ground.  

Failing to give plaintiff the benefit of the doubt

[48] The plaintiff says that in assessing his credibility the RSAA failed to take into account the tests and warnings laid down in the UN handbook on refugees that conflicts in evidence and even untruths as to matters not directly concerned with the actual fact of the persecution in the circumstances of real persecution and an imminent threat to safety and life should be used with great care in drawing conclusions as to veracity of events i.e. that the plaintiff should have been given the benefit of the doubt in relation to peripheral issues.

[49] The RSAA’s credibility findings were made following extensive evidence from both the plaintiff and his brother and sister. Although some of the findings were made in relation to peripheral issues the RSAA specifically disbelieved the plaintiff in relation to the factual assertions that were fundamental to his claim. These included the nature of his relationship with K and the fact that he was being sought by the Iranian authorities.

[50] The circumstances in which the “benefit of the doubt” test should be applied were discussed at some length by the Court of Appeal in Jiao v Refugee Status Appeals Authority (supra). The Court first cited from the Handbook on Procedures and Criteria for determining refugee status of the office of the UN High Commission on refugees, including the following:

After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements.  As explained above (paragraph 196) it is hardly possible for a refugee to “prove” every part of his case and indeed if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.

The benefit of the doubt should, however, only be given where all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statement must be coherent and plausible and must not run counter to generally known facts.

[51] The Court went on to observe that:

What may be said, however, is that the phrase should not get in the way of the proper consideration of the evidence bearing on disputed facts, including a weighing of the possible availability of other evidence supporting or questioning that given by the claimant.

[52] The difficulty confronting the plaintiff is that the RSAA did not reject his claim because of doubts about a few peripheral aspects of his account that could not be proven. The RSAA rejected all aspects of the account, both fundamental and peripheral. In these circumstances it would not have been appropriate to have given the plaintiff the benefit of the doubt in relation to peripheral aspects when his core claim had been disbelieved.  

[53] I note that the RSAA did contemplate what the effect would be of giving the plaintiff the benefit of the doubt in respect of two aspects of his account (avoiding military service and departing Iran illegally) and concluded that whilst he might be subject to questioning and penalty and a direction to perform military service these outcomes would not in themselves amount to persecution for a Convention reason. So it is clear that even if he had been given the benefit of the doubt in relation to these aspects, the outcome would not have been any different.

Assessing credibility against standard of a New Zealand family

[54] I have already dealt with this aspect above. There is absolutely no indication that the RSAA applied New Zealand standards in assessing how the plaintiff and his family could have been expected to act in the circumstances the plaintiff said existed. The RSAA’s assessment as to how one might have expected the family to act was made on the basis of what the plaintiff and his sister said about their family and the way the family was known to have acted.

Assessing plaintiff’s credibility on the basis of the credibility finding in respect of So M

[55] The plaintiff complains that the RSAA should have considered his claim entirely separately from that of his sister.  At the outset of the RSAA’s decision the Authority recorded the fact that “This appeal was heard concurrently with that of the appellant’s sister So (Refugee Appeal number 75172). The appeals are separate but involve linked events and, by consent, the evidence of each appellant has been considered in support of the other’s appeal.”  It was not suggested to me during argument that the RSAA had incorrectly recorded this position.

[56] It was clear from the transcript and counsel’s submissions that the plaintiff’s case relied in part on the alleged detentions and ill treatment So had suffered in 2003, which both she and he attributed to his activities. His counsel’s submissions included several references to So's evidence. It is not open now for the plaintiff to complain that his sister’s credibility has played a part in the RSAA’s assessment of his case. Nor do I consider that there was any procedural unfairness in this aspect of the RSAA’s handling of the appeal.

Plaintiff’s belief as to reason for detention not determinative

[57] Following the RSAA hearing the plaintiff’s counsel then acting made written submissions stating that:

The applicant’s claim is based on:

a)    The profile of the Applicant’s family in the eyes of the Authorities in Iran because of his brother S’s imputed political opinion;

b)    The Applicant’s own political activities

[58] In this Court the plaintiff resiled entirely from the second ground. Mr Orlov specifically submitted that the activities A M claimed had led to his persecution in Iran would not in fact have attracted the attention of the authorities. Instead, he submitted that the 2003 events were a renewal of the persecution of the family arising from S M’s conduct in 1997.  He says that although the plaintiff might have assumed or believed that the events in 2003 were the result of his own activities, in fact they were due entirely to his brother’s conduct and that the RSAA should not necessarily have accepted the plaintiff’s subjective belief as to the reason for his persecution.

[59] There was, however, no evidence on which the RSAA could or should have drawn the conclusion that the plaintiff’s difficulties with the authorities in 2003 were in any way linked to S M’s conduct in 1997. To the contrary, the evidence of both the plaintiff and his sister about events in 2003 focused solely on the plaintiff’s activities; he was questioned about his shop, she was questioned about the plaintiff’s whereabouts. There was no mention in the evidence of any reference to the elder brother’s conduct as being of continuing interest to the authorities.  

[60] The function of this Court is to review the process that the RSAA followed in determining the claim that the plaintiff advanced to it. I have already held that the findings that the RSAA made were open to it on the evidence before it. The RSAA cannot be expected to disregard the grounds which the plaintiff himself advanced.

Fourth Ground – Failed to Take Into Account or Apply Appropriate Tests

[61] The plaintiff has pleaded that the RSAA failed to take into account the fact that he has illegally escaped Iran and was the family member of a refugee who had also breached his military duties. It is said that these facts alone would make him a refugee under the UN Convention.
 
[62] The tribunal could only take these facts into account if it was satisfied they existed. The RSAA very specifically rejected the fact that the plaintiff escaped illegally. This would leave only the fact that he was a family member of a refugee and the fact that he had not undertaken his military service. However, there is no evidence to suggest that being related to S M would in itself have resulted in persecution; the fact that life was entirely uneventful from 1997 to 2003 tends to suggest that it would not.  Secondly, the RSAA considered what the position would be had it given the plaintiff the benefit of the doubt in relation to his claim about military service and found that it would not have resulted in persecution.  have already noted that, given the general tenor of the plaintiff’s own evidence, this finding was open to the RSAA.

Fifth Ground – Procedural Unfairness

[63] This final ground appears to be quite inapt. It replicates the final ground pleaded in So M’s claim, namely that the RSAA failed to inform the plaintiff that his claim would rest on the credibility of “his younger brother’s claim”. Taken literally, it makes no sense. If it is read as though referring to So’s claim then I have already dealt with that on the basis that the plaintiff specifically advanced his claim in part on the basis of her evidence and cannot now complain that her evidence was taken into account in assessing his own credibility.

Result

[64] The plaintiff’s application for judicial review fails. There will be judgment for the second defendant.

[65] Costs are reserved. Counsel may apply by memorandum filed within one month, with memorandum in reply filed within one month after that.

Solicitors for the plaintiff: Henley-Smith Law (Auckland)
Solicitors for the second defendant: Meredith Connell (Auckland)