High Court Cases 

High Court Auckland M No.1678/98
9 August 1999; 13 August 1999
Smellie J

Judicial review - Whether fresh evidence admissible

Judicial review - Reasonableness - Challenge to credibility findings

Judicial review - Fairness - Whether Refugee Status Appeals Authority (RSAA) able to hear evidence in the absence of appellant

The plaintiff, a citizen of Nigeria, arrived in New Zealand on 19 December 1995 and sought refugee status on the grounds of fear of political persecution.  At the time of his arrival in New Zealand he was accompanied by another applicant for refugee status, one JJ who also sought refugee status.  After the refugee applications by the plaintiff and JJ  were declined by the New Zealand Immigration Service (NZIS), appeals were lodged.  The hearing of the plaintiff's appeal before the RSAA occupied four days.  The appeal by JJ was heard concurrently but separately.  The plaintiff's counsel agreed to this course and raised no objection. After hearing the evidence of JJ in the context of JJ's appeal, the RSAA put to the plaintiff during the course of the plaintiff's appeal hearing for his comment statements made by JJ which were at variance with what the plaintiff had said.  The appeal was dismissed, the RSAA rejecting the plaintiff's evidence in its entirety as not being credible.  On judicial review the plaintiff sought to introduce fresh evidence tending to cast doubt on the conclusions reached by the RSAA. It was also complained that it was unfair for the RSAA to have heard evidence from JJ on his appeal adverse to, but in the absence of the plaintiff.

Held:

1    The fresh evidence could have been available if the appropriate steps had been taken for production to the RSAA.  It must have been apparent by early 1997 that the NZIS was investigating the plaintiff's case in depth and an adverse credibility finding was possible.  Since the fresh evidence was entirely within his knowledge, it was up to the plaintiff to bring it forward and present it to the Authority.  While counsel for the Minister was disposed to accept that in very exceptional circumstances such fresh evidence might be admitted, it could not be said that if allowed in, the evidence would have had a decisive effect on the outcome of the application (see paras [12] & [13]).

Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650, 658 (CA) referred to.

2    As to the credibility findings, while the High Court itself would not necessarily have placed the degree of significance on some of the matters mentioned by the RSAA, the court was unable to say that the RSAA acted improperly or outside its jurisdiction in reaching the conclusions it did on those matters.  While in respect of other matters the inferences drawn by the RSAA were not ones which the court would have drawn, the court was not prepared to say that this specialist tribunal, after its lengthy and careful hearing, was not entitled to view the matter in the way that it did.  As to issues of weight, it was not appropriate for the High Court to substitute its own weighing of the evidence for that of the tribunal (see paras [19] to [22]).

3    As to the manner in which the Authority heard the evidence of JJ without the plaintiff having an opportunity to challenge it by way of cross-examination, the procedure followed was with the knowledge of and consent of the plaintiff's counsel.  No objection was raised to the procedure.  In addition, the Authority did not make any specific finding as to which of the two men was telling the truth.  Rather, it simply regarded it as unsatisfactory that when the plaintiff had put to him JJ's version of events, the plaintiff modified his evidence in an apparent effort to avoid an adverse finding based on the conflict between the two (see para [25]).

Application for review dismissed

Other cases mentioned in judgment
[No other cases were mentioned]
 
Counsel
M J Hine for the plaintiff
M A Woolford for the second defendant
 
SMELLIE J

Introduction

[1] The plaintiff seeks judicial review of the decision of the Refugee Status Appeals Authority handed down on 28th May 1998 refusing him refugee status.  The Authority refused that status on the grounds of credibility concluding that the plaintiff had not established the requirements of the 1951 United Nations Convention relating to the status of refugees as amended by the 1967 Protocol in that he was not a person who

"... owing to a well founded fear of being persecuted for reasons of ... 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 ...".

[2] The plaintiff is aged 35 and is one of 6 children (4 sons and 2 daughters) of well-to-do parents who have their own compound in Lagos and who, until trouble with the military dictatorship, ran a prosperous business.

[3] The plaintiff's upbringing was in keeping with his social position, his primary and secondary education was of a high standard although he was expelled from one secondary school that he attended.  At University he became involved in active protests against the military dictatorship and came to the attention of the Security Forces.  He was under surveillance for some time and his evidence was that for a period of a year or more the Security Police were seeking him but he was avoiding them.  In 1995, however, he was taken into custody and suffered a period of incarceration in Itako Prison and subsequently in Gusau Prison, which is said to be in the north of Nigeria.  Upon his release he fled Nigeria for fear of his life.  In company with another applicant for refugee status, JJ, he travelled first to Saudi Arabia posing as a Moslem pilgrim.  They stayed with JJ's uncle in Jeddah and then decided to travel to New Zealand and seek refugee status.  The plaintiff's evidence was that he received support in this from an organisation called the Campaign for Democracy who supplied him with funds and a Lufthansa airline ticket which provided for travel from Saudi Arabia to Singapore to Indonesia to New Zealand and finally Fiji.

[4] The plaintiff and JJ left the plane in New Zealand and claimed refugee status.  They arrived on 19 December 1995.  Between January 1996 and July 1997 the plaintiff's claim to refugee status was investigated and finally refused by the New Zealand Immigration Service on 17 July 1997.  The plaintiff lodged an appeal to the Refugee Status Appeal Authority on 28 July, which, over a period of 4 days in November and December 1997, heard his case.  The Authority handed down its decision on 28 May 1998 declining the plaintiff's application whereupon the plaintiff launched these proceedings.

[5] Before the Appeals Authority the plaintiff's solicitor Mr S. Anderson competently and thoroughly represented him.  Before me on this application for judicial review Mr Hine was retained.

The Appeal Authority's Decision

[6] The decision handed down on 28 May 1998 runs to 45 pages and it followed a 4-day hearing, the transcript of which occupies 599 pages.  The decision sets out the plaintiff's case in considerable detail, recognises the issues to be addressed referring first to the Convention and Protocol as quoted above and stating that the principal issues to be decided were:

1. Objectively, on the facts as found, was there a real chance of the appellant being persecuted if returned to Nigeria; and

2. If the answer is yes, is there a convention reason for that persecution.

[7] Assessing the appellant's case the Authority noted at the outset that it must first make an assessment of the appellant's credibility.  In his statement of claim the plaintiff pleads in paragraph 16 as follows:

"16. The first defendant declined the plaintiff's appeal substantially on the basis that his claim to having a well founded fear of being persecuted for reasons of membership of a particular political opinion lacked credibility upon the following grounds, inter alia

16.1 The plaintiff lacked knowledge and was inexplicably vague about Nigerian politics.

16.2 The plaintiff's account of Police searching for him in 1994 was found to be highly unlikely and not credible.

16.3 The plaintiff's evidence of maltreatment was not found to be credible.

16.4 The plaintiff's account of being detained at Gusau after March 1995 was doubtful.

16.5 The plaintiff's account of his release from Gusau and subsequent escape from Nigeria totally lacked credibility.

16.6 The plaintiff was vague about what had happened to his family members since escape from Nigeria.

16.7 The plaintiff appeared to have done little to continue his political activities since arriving in New Zealand and/or making contact with the Campaign for Democracy in Nigeria."

[9] At the end of the Authority's judgment at page 44, under the heading of Conclusion, it is recorded:

"In view of the matters raised above the Authority is left in no doubt whatsoever that the appellant's claim is not credible.  The Authority would like to add that, as already stated, the appellant's demeanour became emotional when relating to the details of his maltreatment in detention.  The Authority has already stated why this evidence is unreliable but wishes to add that even if it were to entertain the possibility that the appellant was detained and maltreated in Nigeria as he alleges, in view of the matters raised above in the assessment section of this decision the Authority is satisfied that any such detention was not related to any alleged political activism on his part.

As the appellant's account is rejected as lacking credibility the issues framed above which the Authority is called on to determine in deciding whether or not the appellant is a refugee within the meaning of the Convention, are therefore answered in the negative."

[10] These may also be conveniently taken from the statement of claim but without elaboration by the particulars at this juncture.  They are as follows.

"17.1 The Authority took into account irrelevant and extraneous matters.

17.2 The Authority drew inferences of fact that were not available on the evidence before it.

17.3 The Authority failed to place any or proper weight on the evidence adduced on behalf of the plaintiff in support of his application.

17.4 Where there was reasonable doubt the Authority failed to accord the plaintiff the benefit of the doubt as to credibility.

17.5 The Authority adopted a procedure that was manifestly unfair and prejudiced the plaintiff and breached the standards of natural justice."

[11] Within the plaintiff's affidavit filed in support of his application for review and in 3 further affidavits, one by an Officer of the Campaign for Democracy in Lagos, another by the family solicitor in Lagos and a third by the family doctor in Lagos, the plaintiff sought to introduce further factual material tending to cast doubt on the credibility conclusions reached by the Authority.

[12] I am satisfied that this further information could have been available if the appropriate steps had been taken for production to the Appeal Authority.  It must have been apparent by early 1997 that the New Zealand Immigration Service was investigating the plaintiff's case in depth and an adverse credibility finding was possible.  Since the fresh evidence was entirely within his knowledge it was up to the plaintiff to bring it forward and present it to the Authority.  It is trite law, (and readily acknowledged by Mr Hine), that issues of credibility and a decision on the merits were essentially for the Appeal Authority as a specialist Tribunal.  Before me on the application for judicial review the approach is much more restricted.  I am concerned with the integrity of the decision making process and as the Court of Appeal said in Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd (1997) 1 NZLR 650 at 658:

"It is not appropriate to allow in this material which was not before the decision maker, and was largely brought into existence after the impugned decision was made, and ... essentially for the purpose of casting doubt on the substantive reasonableness of the decision."

[14] For the reasons set out above I decline to receive the fresh evidence.

The credibility finding and the challenge to it

[15] Obviously the plaintiff faces a considerable hurdle in view of the emphatic finding based upon the observation by the members of the Appeal Authority of the plaintiff during the 4 days of investigative hearing which led to the decision under review.  In a careful and competently presented submission Mr Hine drew out every point that could be made in favour of the plaintiff but at the end of the day none of his submissions, in my judgment, were substantial enough to overturn the conclusion reached by the Appeal Authority that they were left in no doubt whatsoever "That the appellant's (plaintiff's) claim is not credible".

[16] Mr Hine was forced, of necessity, therefore, to mount a flank attack via the pleadings in paragraph 17 of the statement of claim set out above.

[17] The plaintiff's submissions here are drawn from the portion of the Appeal Authority's decision, which commences under the general heading "Assessment of the Appellant's Case" at page 16 and continues on through to page 44, at which point the conclusion earlier referred to is recorded.

[18] Dealing first with the alleged irrelevant and extraneous matters.  The Authority expressed surprise at the plaintiff's lack of knowledge of the details of harassment alleged to have been suffered by members of his family after he left Nigeria.  It also found it unsatisfactory that the plaintiff had failed to refer initially to an alleged blowing up of his motor car at a political rally in respect of which, when he did raise the matter, he blamed the Security Police.  He also alleged that whilst in prison he was subjected to sexual abuse, but this only came out at a late stage and there was no medical evidence to support it.  The Authority was also puzzled by the fact that the plaintiff apparently did not continue his political activities once he arrived in New Zealand despite the fact that Campaign for Democracy had made all the arrangements for his departure from Nigeria and had intervened subsequently to secure his wife's release from prison.  And there were discrepancies between the accounts advanced by the plaintiff and his companion JJ in respect of incidents and activity where the Authority took the view inevitably they would both have had the same knowledge.

[19] I am not able to regard any of those matters as being irrelevant and extraneous.  It may be that had I been charged with the responsibility of finding the facts in this matter I would not necessarily have placed the degree of significance on some of the matters mentioned that the Authority did.  But I am quite unable to say that the Authority acted improperly or outside its jurisdiction by reaching the conclusions it did on those matters.

[20] Next it was alleged that inferences of fact that were not available on the evidence had been drawn.  First the Authority was left with 'grave doubts' about the extent to which the plaintiff was involved in politics in Nigeria.  This was primarily because he was vague about political history, personalities and timing of events all of which the Authority felt he would surely be very familiar with if his political activities had been such that he came to the attention of the Security Police and had to flee the country as a consequence.  Furthermore the plaintiff admitted that in some respects he had embellished his evidence with events which did not happen.  Having looked at that evidence and considered the submissions I am not able to say that the inference drawn by the Authority was not one open to it.  Another apparent inference drawn was from the date of issue of the airline ticket upon which the plaintiff and JJ travelled to Auckland.  It is shown as having been issued on 17 July 1997 which, according to the plaintiff, was a point of time when he was in prison.  On one reading of the Authority's decision it could be said the Authority apparently doubted that the plaintiff was in prison at that time because of the issue of the ticket on that date.  It is significant that at the end of the hearing it was accepted on all sides that in fact the ticket had been illegally issued and tampered with to provide travel to South Pacific destinations whereas originally it related to African and European flights.  Mr Woolford responsibly, in my view, acknowledged that since the ticket was a forgery the date was only a small point.  On balance I think the Authority read more into this than it deserved but it was obviously a matter that concerned it and which required careful investigation.

[21] It is alleged also that the Appeal Authority drew the inference that the plaintiff was not involved in politics in the way he described in Nigeria because his lack of interest once he arrived in New Zealand and because of certain discrepancies between his evidence and that of his companion JJ.  On balance I think it fair to say that inferences of that kind were drawn, for myself I doubt that I would have drawn them.  But I am not prepared to say that this specialist Tribunal after its lengthy and careful hearing was not entitled to view the matter in the way that it did.

[22] It was then argued that the Authority failed to place proper weight on the evidence adduced on behalf of the plaintiff in support of his application.  Here the emphasis was on his membership of various political organisations and the evidence of the harassment of his family as a consequence of those activities.  A weighing of the evidence and the weight to be placed upon specific aspects of it was essentially a task for the Appeal Authority as the fact finder.  It would not be appropriate on this application for review for me to substitute my own weighing of the evidence for that of the Tribunal.

[23] It was also argued that in a number of areas, such as the plaintiff's membership of the Campaign for Democracy, his maltreatment and sexual abuse when in custody and the circumstances under which he came into possession of the Lufthansa airline ticket, there ought to have been a reasonable doubt and the Authority failed to accord it to the plaintiff.  Those submissions, however, have to be weighed against the firm finding as to credibility based upon demeanour and performance under cross-examination which, as earlier indicated, are not open to challenge in this application.

[24] Finally, it was alleged that there was a procedure which was manifestly unfair and prejudicial to the plaintiff and breached the standards of natural justice in that the Authority heard evidence from JJ on his appeal adverse to, but in the absence of the plaintiff.  There is a superficial attraction in the submission that the Authority could on one view of the matter perhaps be seen as favouring the evidence of JJ as against that of the plaintiff when the plaintiff did not hear that evidence and had no opportunity to challenge it by way of cross-examination.  I am satisfied, however, that that proposition cannot be sustained.

[25] First, there was a discussion right at the beginning of the hearing in which the Authority indicated to Mr Anderson how it would proceed.  That indication was necessary because initially Mr Anderson acted for both men and then withdrew from representing JJ because of a potential conflict of interest.  The Authority then decided, in effect, to run the two cases concurrently but separately.  Mr Anderson knew about that and agreed to that course.  Later in the hearing when the matter was adverted to again he raised on objection to the procedure whereby the Authority simply put to the plaintiff during the course of his hearing for his comment statements made by JJ which were at variance with what the plaintiff had said.  Also it appears to me that the Authority did not make any specific finding as to which of the two men was telling the truth.  Rather, it simply regarded it as unsatisfactory that when the plaintiff had put to him JJ's version of events the plaintiff modified his evidence in an apparent effort to avoid an adverse finding based on the conflict between the two.  There again, however, this was not a big issue and Mr Woolford, running true to form, adopted a fair and objective attitude on the point and tended to agree with the view I have expressed.

Decision

[26] Although there were some points upon which Mr Hine raised some anxiety in my mind, (among which was the implication that the Security Police letters to the plaintiff's father may have been forged), nonetheless I am satisfied on an overview of the whole case that the adverse credibility finding is insurmountable.  Even in those areas of Mr Hine's submissions where some doubts were raised I still would not, on balance, be prepared to substitute my view for that of the specialist Tribunal which spent 4 days on this heating and had the opportunity to question the plaintiff and closely observe him throughout.

[27] No doubt the result will be a disappointment not only to the plaintiff but also to his solicitor Mr Anderson and his counsel Mr Hine.  I commend those two practitioners for the very thorough and careful way in which they have fought their client's comer throughout.  Everything that could be said for the plaintiff has been said and advanced in a competent and professional manner.  But as I have already
indicated, the inescapable fact is that the fact finders after careful investigation did not believe him and therefore he was not accorded refugee status.  There were no defects in the process engaged in to reach that conclusion and as a consequence there is no jurisdiction for me to grant relief in any form.

[28] I was advised that the plaintiff was legally aided and accordingly there will be no award as to costs.
 
 
Solicitor for the plaintiff:  S R Anderson (Auckland)
Solicitor for the second defendant:  Crown Solicitor (Auckland)