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C v Refugee Status Appeals Authority

High Court Auckland M 1365-SW00
18 & 19 December 2000 and 14 March 2001; 4 May 2001
Nicholson J

Interpreter - whether refugee claimant suffered any significant disadvantage because of language difficulty

Judicial review - approach to judicial review of RSAA decisions - judicial review not an appeal - challenge to credibility finding

Judicial review - review not an appeal - whether grounds of challenge relate to merits of RSAA decision and not to manner in which it was made

Procedure of RSAA - burden of proof - whether a burden of proof on refugee claimant

Procedure of RSAA - conduct of interview - purpose of interview - whether appropriate for interview to be detailed and lengthy - whether appropriate to be persistent and penetrating with indication of questioner's reaction to answers

Procedure of RSAA - mental disability - whether RSAA failed to take account refugee claimant mentally and emotionally disturbed

Procedure of RSAA - number of Members to hear appeal - whether panel of one member in breach of rules of fairness

The plaintiff, a citizen of Morocco, was found by the Refugee Status Appeals Authority (RSAA) (sitting as a panel of one member) not to be credible, that he was not of any interest to the Moroccan authorities for political reasons and that there was no well-founded fear of persecution. On judicial review it was argued that the RSAA had failed to have regard to the fact that the plaintiff was mentally and emotionally disturbed (which affected how he gave evidence) and that the Authority had also failed to have regard to the fact that special consideration needs to be given and special questioning techniques used where a refugee claimant is mentally and emotionally disturbed. It was further argued that the RSAA should have sat as a panel of two members as the member who had sat on his own had observed in his decision that "Ideally, difficult cases (which this was) should be determined by a panel of two or more. The burden of the decision in this particular case has been shouldered by one member which largely explains the delay in finalising this decision. The reflective process was intense."

Held:

1. Challenge to a decision of the RSAA is limited to an application for review under the Judicature Amendment Act 1972. A general appeal is not available. It is not possible to bring a general appeal under the guise of an application for judicial review. The bulk of the grounds advanced by the plaintiff related only to the merit of the RSAA decision and not to the manner in which it was made (see paras [22], [26]-[29]).

Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1174, (HL); Korengkeng v Removal Review Authority (High Court, Auckland, M 1250/97, 30 January 1998, Williams J) and M v Refugee Status Appeals Authority (High Court, Auckland, M 1101/SW-00, 28 November 2000, Nicholson J) referred to.

2. A reading of all the documents which the member had before him, a reading of the transcript and a listening to the audio recording of the hearing showed that the member conducted the appeal and reached his decision fairly, appropriately and competently. The fact that he mentioned the increased burden he had shouldered as a one member Authority demonstrated sensitive perception of responsibility and conscientious discharge of that responsibility. In the circumstances the sitting of one member as the Authority was not a breach of natural justice (see paras [33] & [34]).

3. The plaintiff did not suffer any significant disadvantage in the consideration of his appeal because of language difficulty (see para [40]).

4. There was no foundation for the allegation that the RSAA failed to take into account that the plaintiff was mentally and emotionally disturbed in a way which affected how he gave evidence. Nor was there foundation for the allegation that the RSAA had failed to give the special consideration which needed to be given and to use the special questioning techniques which needed to be used (see para [56]).

5. The RSAA was correct in finding that the burden of proof was on a claimant and that this was mitigated by three principal factors, namely the low threshold of standard of proof, the benefit of the doubt principle being applied liberally and the non-adversarial nature of the proceedings which means that the enquiry is shared between the claimant and the decision-maker. The fact that the claimant and the decision-maker each have a responsibility to ascertain the facts does not relieve the claimant of the legal burden of proof to establish the claim and the liberal attitude to refugee determination adopted by the RSAA should not lead to an uncritical acceptance of any and all allegations made by refugee claimants (see paras [60] & [61]).

Refugee Appeal No. 523/92 Re RS (17 March 1995) referred to.

6. In interviewing an appellant the RSAA is seeking to make a realistic assessment of the validity of his or her claim and this generally involves crucial issues of assessing credibility and reliability. As with testing of evidence by cross-examination, it may be appropriate that questioning be persistent and penetrating with indication being given of the inquisitor's reaction to the answers. The RSAA is a specialist tribunal. It would be well aware of the pressures and strains that may influence an appellant during the interview arising from language, cultural and personality factors, the difficulties of getting corroborating information and the importance of the outcome. Interviews are generally detailed and lengthy. They should be conducted fairly. The presence of counsel representing the appellant is a safeguard to ensure that this is so. Recording of the interview is a further safeguard (see para [62]).

Application for review dismissed

Other cases mentioned in judgment

Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J).

Counsel

D Manning for the plaintiff
M Woolford for the defendants

[Editorial note: In relation to Holding No. 6, useful comparative reference may be made to Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 (24 May 2001) at paras 30 & 31.]

NICHOLSON J

Introduction

[1] C was born in Morocco in 1973. He is a national of Morocco. On 12 August 1997 he arrived at Auckland airport and sought refugee status. He said that he was travelling on a false Italian passport which he had destroyed before arrival. On 3 December 1997 C was interviewed by an officer of the Refugee Status Branch ("RSB") of the New Zealand Immigration Service. On 17 March 1998 refugee status was declined. C appealed to the Refugee Status Appeals Authority ("the Authority"). The appeal was heard on 24 and 25 June 1998. The Authority, in its decision of 27 August 1998, said that it did not find C's story credible. The Authority did not consider C was of any interest to the Moroccan authorities for political reasons and there was, in it's view, no well-founded fear of persecution. It accordingly dismissed the appeal.

[2] On 24 August 2000 C filed the present review proceeding seeking orders setting aside the appeal decision and remitting the matter back to the Authority for reconsideration.

C's story

[3] Before his RSB interview, a written statement was prepared on C's behalf. Parts of the story were later amplified and modified. The Authority said that the picture presented was reasonably clear. It was in essence that C's father was born in Morocco and his mother in Algeria. These differing origins caused some problems. C's family "had a very strong Government background". A brother-in-law of C's father was apparently a General in the army. C's father held the military rank of Commander and worked in a military hospital with apparently some involvement in military operations against the Polisario front. This front was established in 1973 as a national liberation movement in the (then Spanish) Western Sahara. After the Governments of Morocco and Mauritania had, under an agreement with Spain, divided the Western Sahara between themselves, the front took up an armed struggle against both these Governments with the support of the Government of Algeria. C's mother experienced problems. She was disliked by C's family. C asserted that steps were taken to try and deport her from Morocco. C suggested that his father and brother were involved in an Islamic fundamentalist group.

[4] C's father's death in hospital in 1980 was sudden, raising a suspicion that his death was engineered. C left school at the age of 9 and worked as a furniture maker. He returned to live with his mother in 1986. He claimed that his mother was essentially illiterate and could not read French. C's brother, I, who was five years older than C, supported an Islamic fundamentalist organisation. This involvement led to C's mother being detained and interrogated at a Police Station in 1988 for 15 days. No further problems occurred after her release until four years later in November 1992 when C said that he was forcibly arrested at his mother's home by six military Policemen who beat him, handcuffed him and forcibly enlisted him in the Moroccan army for a ten year term. C said that he underwent basic military training for six months at a training camp. He returned home for approximately a week's leave with his mother during which time he said he was kept under surveillance by military Police. He said he was then transferred to a military detachment in the Sahara near Tindouf as a member of an army outpost fighting the Polisario front. He said he wrote to his family and told them he wanted to run away. His family counselled him to wait. Approximately two months later C's outpost was attacked. He said he was wounded and was evacuated to a military hospital. In October 1993, a month after hospitalisation, he deserted from the army by jumping over the hospital wall at 4.30am during morning prayer. He caught a bus to Agadir where he met his mother and brother by pre-arrangement outside the Agadir railway station. He was given some clothing and his brother's passport and approximately two hours later boarded an Air France flight to Paris.

[5] C said that after living in France for approximately two years he learned from a Moroccan who he met at a mosque that his mother was concerned that the military knew of his presence in France. After a short period, and for payment of US$2,000, C acquired a false Italian passport and travelled from France to Thailand. He arrived in Bangkok in July 1995 and for the next two years lived in Thailand, Malaysia and Indonesia. C claimed that he could never go back to Morocco. He was scared for his life and believed that he would either die or be imprisoned for life as a result of deserting from the army.

[6] The Authority said C gave a similar narrative at the 3 December 1997 RSB interview. At that interview C was represented by Jan Laurent of the law firm Marshall Bird. The RSB officer was presented with a variety of documents and country information including a certificate sealed by a military official at Rabat on 28 October 1997 ("the military certificate"). The military certificate is in French. C was asked to translate it for the benefit of the RSB officer. He said:

"It was saying that the Certificate was from the Military Government and was issued to me testifying that I am in the military service. The Certificate did not say anything about the fact that I had run away from the service ..."

[7] A record of the RSB interview was sent to Marshall Bird for comment. No challenge was made to the accuracy of C's explanation of the military certificate.

[8] The Authority said that what emerged from the RSB interview was that C was afraid to return to Morocco because he feared he would be either executed or imprisoned "underground". C said it was the political Government of Morocco he feared and not the military. As for his desertion from the army, C was adamant he was not afraid to return to the army and, again, it was the Government rather than the army that he was scared of. The Authority commented that that aspect was amplified somewhat by C through Marshall Bird, stating in a letter to the RSB dated 17 December 1997:

"What I meant by not being scared of the military is that I am not scared about being a soldier. If Morocco had been attacked by an aggressor, I would fight to protect my country. When I was taken to the Sahara to fight I was expected to fight my own people. This is what I could not do. ... The military police are part of the political government and they are the people I am scared of. The military police are separate from the military and they wear different uniforms. I believe I was persecuted when I was taken by force to the military and I will be persecuted by the police and the government because of our family's involvement with the Islamic Front and for leaving the military because I could not fight and kill my own people."

[9] The Authority said that at the appeal hearing further evidence was supplied. This was by way of a further supplementary statement and also by way of verbal evidence from C elicited by his counsel, Mr R McLeod of Marshall Bird. The supplementary statement asserted that C's family on his paternal side, who in his earlier statement he described as having a "very strong Government background", were Sahrawis, the people from the Western Sahara who spoke Arabic in a different dialect from the Moroccans. C said his paternal grandfather came from the Western Sahara and was "a strong supporter of independence in the Western Sahara and self determination for Sahrawi people". C further asserted that he understood from his mother that some time in the early 1960's his paternal grandfather, grandmother and uncle were killed by the Moroccan army and his father and sisters were taken to Morocco and brought up in a Government run camp in Ravat. C's father, so he claimed, was forcibly conscripted into the army where he remained until his death in 1980 and, although involved in the Moroccan war against the Polisario, was opposed to it and began "to secretly aid the Polisario in an indirect way" by providing information and assistance to an Islamic group.

[10] The Authority said that C's views on military service seemed to have changed somewhat since his December 1997 RSB interview. He now claimed that he "totally objects to fighting in any army and to being involved in military combat". He believed that killing any person is utterly wrong and something he could never do. If his country was invaded, he would support his country's struggle "... in any non-violent way". The Authority went on to state that when C was posted to the Sahara he said he was "absolutely stunned" and did not want to fight against his "Muslim brothers in the Polisario". Out of a group of 45, who were apparently in C's draft undergoing six months military training, C was the only draftee to be posted to the Sahara.

[11] The Authority said:

"Further information was given about the attack on his outpost. He states that he was sleeping in a tent with a fellow soldier. He awoke at 3am to the sound of gunfire. He opened the flap of his tent and saw a man coming towards him in the dark. Although armed with a rifle, [C] '... could not bring myself to point it at the man. I simply found myself unable to shoot'. [C] recalled being struck on the head with a butt of a rifle. He awoke in hospital some considerable time later to find that he had been shot in his right shoulder and both shot and stabbed in his left thigh. [C's] sergeant who apparently visited him in the military hospital was angry with him for not having fired at the attacker."

[12] The Authority said that additional evidence proffered by C at the hearing was that, in the days leading up to his deserting from the military hospital he had written a letter, as best he could, to the Moroccan government asking why people were being killed in the western Sahara and also criticising the King. C left this letter behind in the hospital prior to his flight. He described the letter as being only two lines or so in length. No one's name was on it.

Authority's decision

[13] The Authority member said in reaching his decision he had been particularly mindful of a number of matters, including that C was entitled to the benefit of any doubts which he may have, but having given all matters canvassed by the appeal close and anxious consideration, it was his conclusion that "... overall [C's] narrative is not credible". The Authority said:

"The central core to [C's] narrative is that, being identified as a member of a family of Sahrawi origin, he has, as an individual, been deliberately made the target of discriminatory and/or persecutory conduct. That is his sole explanation for his forcible recruitment into the army in 1992; the sole reason for his posting to a Polisario combat area in 1993; and is the reason advanced as to why, if he returns to Morocco, he has a well-founded fear of persecution, which he considers will flow from his desertion from a military hospital. The Authority does not find that core credible. It refuses to accept it. It's reasons for so deciding include: ..."

[14] The Authority then gave eight reasons. These occupied three pages. It concluded:

"For all these reasons, therefore, some in isolation and all in combination, the Authority rejects [C's] narrative. The story which he has constructed, some at a relatively late stage, is not for the reasons listed credible. It follows therefore that [C] is not entitled to refugee status. The Authority does not consider [C] is of any interest to the Moroccan authorities for political reasons. There is, in the Authority's view, no well-founded fear of persecution. The appeal is dismissed."

Judicial review - grounds and submissions

[15] In his second amended statement of claim C pleaded the following grounds for relief:

[a] Failing to take into account relevant considerations;

[b] Taking into account irrelevant considerations;

[c] Breach of natural justice;

[d] Mistakes of fact; and

[e] Unreasonableness.

[16] C pleaded that the Authority failed to have regard to 26 relevant considerations. The first four of these were:

"16.1 [C] is mentally and emotionally disturbed (including concentration and memory problems) which affects how he gives evidence.

16.2 That special consideration needs to be given and special questioning techniques need to be used as [C] is mentally and emotionally disturbed.

16.3 [C] was not asked proper probative questions by the Refugee Status Branch which would have surfaced more important and relevant evidence.

16.4 The Refugee Status Branch did not realise [C] was mentally disturbed."

[17] Some others were:

"16.9 Young Sahrawi men are recruited into the Moroccan armed forces to swell its numbers.

16.11 It is speculative whether [C] has a knife wound below his left posteria, as it may be a bullet wound ... (medical evidence was ambivalent on this point).

16.14 That [C] did not have an interpreter to assist him in the preparation of his Refugee Status Branch claim.

16.16 The central core to [C's] claim was that he believed he was the target of persecutory conduct because his brother was and still is part of a fundamentalist Islamic group and because of his Sahrawi origins.

16.18 [C] was mentally disturbed when he left the military hospital which explains why he left the anti-government note.

16.21 The subjective impact on [C] of the close relationship between France and Morocco which would make him reluctant to involve himself with the French authorities.

16.23 That [C] did not understand the interpreter at his Refugee Status Branch interview.

16.24 That [C's] mother suffered problems because she was Algerian because of the close links between Algeria and the Western Sahara/Polisario."

[18] C pleaded that the Authority had regard to nine irrelevant considerations, the first four of these were:

"18.1 [C's] mother was educated in French which is incorrect.

18.2 [C's] mother arranged [C's] departure from Morocco which is incorrect.

18.3 [C's] mother physically wrote the letters to [C] which is incorrect.

18.4 That because [C's] mother was the wife of a Moroccan army officer she could have obtained a genuine document. This is incorrect."

[19] The particulars of breach of natural justice pleaded were:

"22.1 The Authority failed to use a different technique of examination for [C's] case which it should have as [C] was mentally and emotionally disturbed.

22.2 The Authority should have had a panel of two or more members.

22.3 The Authority failed to apply the important principle of the benefit of the doubt.

22.4 [C] was not asked to provide corroborative evidence of his story from any family or associates in Morocco.

[20] The particulars of the alleged mistakes of fact pleaded were:

"24.1 [C] was able to give evidence like an average appellant. This is incorrect.

24.2 [C] did not have has memory and concentration problems (sic). This is incorrect.

24.3 [C] has wounds on opposite sides of his body. This is incorrect."

[21] The particulars of unreasonableness pleaded were:

"26.1 The [Authority] did not consider that [C] is mentally and emotionally disturbed. It assumed that he was able to give evidence like other appellants. The [Authority] should have made allowances for [C] and its approach was therefore unreasonable.

26.2 The failure of the [Authority] to recognise that [C] is mentally and emotionally disturbed coloured its evaluation of [C's] evidence with the result it failed to rationally examine whether there was sufficient evidence to bring him with the terms of the Convention (sic).

26.3 The [Authority] failed to give proper weight to the relevance of [C's] brother. It focussed on [C's] Sahrawi origins and totally neglected to consider the relevance of his family's links with Islamic groups.

26.4 The [Authority] presumed it knew how the attack on [C] occurred by applying the reasoning of what is probable and improbable. This approach is not appropriate as the [Authority] cannot deduce what is likely to have happened in such a situation as it is outside the realms of the [Authority's] expertise and experience and is outside the evidence.

26.5 The [Authority] has based its credibility finding on a number of irrelevant factors, has failed to take a number of relevant factors into account and has made mistakes of fact. Its decision is therefore unreasonable and irrational."

[22] I quote most of the particulars pleaded to show the broad range and nature of the matters covered by the review application. At the review hearing, C was represented by Ms D Manning. Having considered the pleadings, the 270 page agreed bundle of documents, the ten affidavits of nine people filed by C before the start of the hearing and having looked through Ms Manning's 55 page "memorandum of submissions" soon after the hearing started, I expressed my concern that the review proceeding seemed to be, in effect, an appeal against the Authority's decision under the guise of the review procedure. I was particularly sensitive to this because I had encountered such a situation earlier in the year - M v Refugee Status Appeals Authority & Anor, Auckland Registry M1101-SW00, 28 November 2000. As counsel had done in that case, Ms Manning assured me the proceeding was not an appeal. I asked her to tell me whether the substance of the challenge to the Authority's decision would have been any different if there had been a right of appeal and the proceeding was brought by way of appeal. She said the substance of the matters complained of would have been the same whether the challenge was by appeal or by application for review, but submitted they came within the recognised grounds for considering and granting judicial review.

[23] Wishing to avoid any influence which my earlier judgment in the M case might carry and in light of the serious consequences to C of the Authority's decision and the obvious care and prodigious effort which Ms Manning had put into the preparation of the application, I allowed counsel full opportunity to present their submissions in the manner and detail which they wished. In the event, Ms Manning's submissions occupied two full Court hearing days. Mr Woolford's submissions in response occupied nearly a full Court morning.

[24] The bulk of Ms Manning's submissions related to why C was not convincing at the RSB and Authority interviews, consideration of the information which the Authority had and did not have, and the validity of the inferences which the Authority drew leading to its finding that C's claim lacked credibility. Mr Woolford responded with cogent submissions to the contrary. The exercise was argument on assessment of fact and credibility very much on the lines of argument in a general appeal on the grounds that a decision was unreasonable, or could not be supported having regard to the evidence or that there was a miscarriage of justice.

Judicial review - pertinent law

[25] On 1 October 1999 the Authority received statutory status - Part VIA Immigration Amendment Act 1999. Before then the Authority functioned without a statutory basis pursuant to terms of reference promulgated by cabinet. There was, and still is, no right of appeal to any Court in respect of the Authority's decisions. This contrasts with the situation relating to the Removal Review Authority, the Residence Appeal Authority and the Deportation Review Tribunal in respect of which the Immigration Act 1987 ("the Act") provides limited rights of appeal on questions of law. The High Court, however, has accepted that decisions of the Authority are subject ot review under the provisions of the Judicature Amendment Act 1972 and in a series of review cases has stated the administrative law principles which apply. These were conveniently summarised by Fisher J in Khalon v Attorney-General [1996] 1 NZLR 458, 463.

[26] Challenge to a decision of the Authority is limited to an application for review under the Judicature Amendment Act 1972. In Korengkeng v The Removal Review Authority & Minister of Immigration (HC Auckland, M 1250/97, 30 January 1998), Williams J pointed out there was no general appeal in respect of a decision of the Removal Review Authority and a review application was required to be determined on conventional judicial review grounds. In doing so, the Court considered the process by which the defendant's decisions were reached rather than the merits of those decisions. He pointed out that, as so often happens in such matters, the matter before him was argued very much as if it were a general appeal on the facts and the Court's approach to such matters is not to justify converting applications for judicial review into something akin to a general appeal on fact when the statute does not provide for such an appeal. The same considerations apply to applications for review of a decision of the Authority.

[27] In the Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1174, Lord Brightman said:

"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which a decision was made."

[28] The comment of GDS Taylor in "Judicial Review: A New Zealand Prospective" (Butterworths 1991) 18 is pertinent:

"The well known grounds of review such as considering irrelevant factors and failing to consider relevant ones must be understood as part of the 'manner in which a decision is made' in Lord Brightman's terms, although analytically they are part of the deliberative as opposed to the procedural process (or 'manner'). But once the deliberative process is admitted to review, it becomes more difficult to draw the line clearly to exclude questions of the sufficiency of the material in support of the decision being reviewed, which is of the essence of a general appeal not review. The recently apparent grounds of substantive natural justice, substantive fairness, mistake of fact and giving wrong weight to relevant factors all may turn judicial review into a general appeal and the restrictions on these grounds are designed to prevent this occurring."

[29] I consider the bulk of the grounds advanced by C relate only to the merit of the Authority's decision on fact and not the manner in which it was made. With the exception of those which I state soon, the challenges to the crucial credibility finding of the Authority which were advanced by Ms Manning and countered by Mr Woolford, are not of sufficient magnitude, nature and relevance to be the subject of consideration in judicial review proceedings and therefore I do not consider them further and reach a decision on them. The points that I do consider warrant further consideration and decision are the composition of the Authority, interpreting and C's interview ability.

Composition of Authority

[30] The Authority sat as a division of one member. This was permitted by para 2 of Part II of the rules governing refugee status determination procedures in New Zealand in force at the time. This was:

"The Authority may sit in divisions to hear and determine matters before it. A division of the Authority shall consist of a minimum of one member. [refer to letter note 2] All divisions shall consist of one member unless the Chairperson directs that, because of the exceptional circumstance of the case, more than one member should sit in a division. Where more than one member is sitting in a division the Chairperson shall appoint one member to act as Chairperson for the hearing."

[31] In its decision, the Authority said that one of the matters it was particularly mindful of in reaching its decision was that:

"The Authority, for the purposes of this hearing, was a single-member Authority. Ideally, difficult cases (which this was) should be determined by a panel of two or more. The burden of the decision in this particular case has been shouldered by one member which largely explains the delay in finalising this decision. The reflective process was intense."

[32] Ms Manning submitted this statement suggested an internal uncertainty and pointed to the possibility that the Authority member knew when he wrote the decision that there were unresolved issues. She submitted C "was clearly prejudiced by the fact he had a single member panel and it is submitted on this reason alone the matter should be referred back to a rehearing". Mr Woolford stated in his submissions, and this was not challenged, that the member who heard the appeal was one of the two longest serving members of the Authority. He submitted that it is a reasonable inference that if the member felt it necessary he would have rescheduled the appeal for a hearing before two members.

[33] Not only have I read the documents which the member had before him and considered his decision, but I have also read the 105 page transcript of what was said at the hearing and listened to the audio recording from which that transcript was made. From all this material I have formed the view that the member conducted the appeal and reached his decision fairly, appropriately and competently. The fact that he mentions the increased burden which he had shouldered as a one member authority in my view demonstrates sensitive perception of responsibility and conscientious discharge of that responsibility.

[34] In the circumstances I am satisfied that the sitting of one member as the Authority was not a breach of natural justice and I decline to grant review on this ground.

Interpreting

[35] C complains he did not have an interpreter to assist him in the preparation of his RSB claim and that evidence regarding his Sahrawi's origins had not been provided to the Branch because he could not communicate properly with the interpreter at the RSB interview. C was represented at the Authority hearing by Mr McLeod, a solicitor employed by Marshall Bird. C was represented at the 3 December 1997 RSB interview by Ms Jan Laurent, who was employed by Marshall Bird as an immigration consultant.

[36] The RSB interview documents record at the outset C said he spoke little English, that he wished to be interviewed in Arabic and that the interviewer then checked to see C had no objection to the interpreter present being used for the interview. When the interview report was prepared it was sent to Ms Laurent for any comments C wished to make. The Branch received a two page letter from Ms Laurent stating C's response. No criticism was made of interpreting at the interview.

[37] In the memorandum which he filed with the Authority the day before the appeal hearing, Mr McLeod said:

"Counsel notes consistent problems in interpretation and translation at the RSB level. The appellant experienced difficulties at the RSB interview in making himself understood through an interpreter who did not fully understand his Arabic dialect. Furthermore, continued problems with interpretation and the appellant's poor knowledge of written and spoken English led to misunderstandings in later written correspondence between his representative and RSB."

[38] From the material which I have considered, it is clear C has some proficiency with oral English. When Mr Burson, solicitor of Marshall Bird, had C examined by Dr de Castro in May 9198, Dr de Castro said in his report:

"He was seen on the 8th and 11th of May 1998. He comes from Morocco and speaks Lejzre, a Moroccon (sic) dialect of Arabic, French and good English. He did not require a translator." - emphasis added

[39] From listening to the record of the Authority interview with C wherein the member questioned him for approximately three hours twenty minutes and his counsel, Mr McLeod, then questioned him for nearly an hour, I formed the view that there was proficient interpretation with answers reflecting questions. No complaint was made during the hearing or subsequently about the adequacy of interpretation at the appeal hearing. Alleged interpretation problems at the RSB level were brought to the attention of the Authority. Any such problems did not seem to exist at the Authority hearing.

[40] In light of these factors, I consider C did not suffer any significant disadvantage in the consideration of his appeal because of language difficulty.

C's interview ability

[41] Ms Manning submitted the Authority failed to take into account that C was mentally and emotionally disturbed in a way which affected how he gave evidence, did not give the special consideration which needed to be given and use the special questioning techniques which needed to be used. She made two separate arguments on this issue. The first was that the Authority had evidence before it that C was mentally and emotionally unwell and therefore should have taken this into account when questioning him and assessing his evidence. The second was that the Authority had a duty to enquire and should have requested expert medical reports on C's emotional and mental state. Before the review hearing Ms Manning filed affidavits by Mr R Sisley, registered psychologist, and Dr G Cliff, psychiatrist. At the hearing there was reference to C having been examined by Dr J Simcock, neurologist. When I asked if there was a report from Dr Simcock, Ms Manning produced an affidavit which Dr Simcock had sworn on 1 December 2000.

[42] Mr Sisley deposed how he had seen C on two occasions. He produced his reports of 3 August 2000 and 24 November 2000. In his first report Mr Sisley said that he had been requested to investigate:

"1 Whether [C] suffers from memory impairment and, if so, to what extent;

2 Whether he suffers from any psychosomatic disorder; and

3 The probable emotional and psychological effects on [C] if he were denied access to, or otherwise separated from, his two New Zealand born children."

[43] The overall summary which Mr Sisley gave in his first report was:

"[C] is clearly suffering from substantial depression and anxiety, presumably reactive to his situation, and probably aggravated by some element of post-traumatic stress disorder. There is also strong evidence indicating some type of closed head injury, although localisation of this is difficult. Certainly his memory and concentration are significantly effected, and are likely to remain so long term, although successful treatment of his depression would alleviate this to a limited extent. He needs on-going professional care at least until his mood and other depressive symptoms improve significantly."

[44] In his second report Mr Sisley said:

"Taking his educational and language problems into account, and even allowing for the fact that the test questions and his responses had to be communicated through an interpreter, in my opinion there is still good evidence that [C] suffers from substantial memory impairment ... he also suffers from poor concentration and emotional lability, which is consistent with the diagnosis of Post-Traumatic Stress Disorder."

[45] Dr Simcock saw C on 18 October 2000 and C had an MR scan on 26 October 2000. In his report of 6 November 2000 Dr Simcock said that he had available to him Mr Sisley's report of 3 August 2000. Dr Simcock said:

"Formal neurological examination is normal. The MR scan, which is a sensitive test of brain injury, is normal. In my opinion, the psychological tests performed by Mr Sisley do not indicate evidence of brain damage; in particular, the unusual memory disturbance noted in [C] is not that pattern which is seen in other patients after head injury.

In summary, I find no evidence that [C] has suffered a significant head injury in the past that could be responsible for his present symptoms."

[46] In an additional report of 30 November 2000 Dr Simcock added:

"1 There is no indication on the clinical examination or the MR scan, that [C] has suffered a major head injury.

2 The reported problems of memory, with apparent remembering of forgotten items hours or days later, is not consistent with the impairment of memory seen after a head injury.

3 Because of problems with language, I cannot positively exclude the possibility that he had some minor impairment of brain function as a result of the reported head injury."

[47] Dr Cliff saw C on 21 November 2000 and reported that:

"In the past three years he has had a far from happy time.

Finding work was difficult, especially because of his limited English language skills. He also felt unsettled and insecure, so tended to keep on the move.

He had a de facto relationship out of which was born his first child, then he was married for a year or so, during which time his second baby was born.

Now he is in another de facto relationship with Ms ..."

[48] Dr Cliff said that on the basis of the information presented to him together with C's mental state at examination he had little difficulty in formulating a diagnosis of chronic post-traumatic stress disorder ("PTSD") which was of considerable severity. It seemed likely to Dr Cliff that C did sustain a significant head injury with post-traumatic amnesia lasting several hours to perhaps a couple of days. In answer to a specific question from Ms Manning, Dr Cliff said it was his opinion that:

"a person suffering from PTSD would certainly have problems performing in question and answer sessions at an immigration interview (lasting for approximately 2-3 hours) and the more so at an appeal hearing lasting for approximately 6 hours. This would relate to fear, stress sensitivity, cognitive impairment (memory, attention and concentration, as described above) and fatigue."

[49] C was represented at the Refugee Status Branch interview by Ms Laurent and at the Authority hearing by Mr McLeod. Neither of them raised concerns or reservations at the time about C's ability to remember, understand and answer questions. Ms Manning criticised the standard of representation of C by Ms Laurent and Mr McLeod. In its decision the Authority referred to Ms Laurent as "a person who has been involved with the active assistance of refugees for a number of years". There is nothing in the record of the RSB aspect which indicates Ms Laurent acted other than competently. Ms Manning advised that Mr McLeod took over the conduct of the appeal from Mr Burson of his firm the week before the hearing and submitted Mr McLeod did not adequately represent C at the hearing.

[50] Having read the relevant papers and particularly the transcript which records the bulk of Mr McLeod's participation in the hearing, I find no foundation for the submissions he did not adequately represent C. From the record of the hearing he appears to have represented C competently and tenaciously.

[51] The Authority was not advised of any psychological or psychiatric problems and it seems the only medical information it had before it was a report from Dr de Castro dated 27 May 1998 who saw C at the request of his solicitor. As stated earlier, Dr de Castro reported that C spoke good English and did not require a translator. Dr de Castro said that he had had experience in examining refugees, having prepared detailed assessments of approximately 76 cases since 1991. Dr de Castro described C as a young man of fit appearance who "appeared anxious". He described scars and concluded:

"He has signs of injury compatible with the wounds he described and psychological features suggesting an anxiety response to severe stressors."

[52] The main way in which the Authority could have gauged C's ability to understand and answer questions and remember relevant events was from his appearance, conduct and statements at the hearing. In this regard the taped record of what was said is illuminating and invaluable. During the interview the Authority asked whether in December last year C had problems when being interviewed by a refugee officer of being understood. C answered:

"I did not understand the English at all and the interpreter was Lebanese, I didn't understand if he was Lebanese I couldn't understand if he was Lebanese or Egyptian or whatever, and although I thought I could understand some of what he was saying, I was not able to give him the right replies, I spoke in a very broken dialect."

[53] When Mr McLeod asked C if he forgot some of the army exercises and drills and a lot of what he was being taught, C answered that he had a problem remembering things because of his blow on his head and still had problems up to now. Later Mr McLeod asked C to tell a bit more about that. C replied "... sometimes during the night I have bad dreams and I think that everything is burning, I can't think clearly".

[54] In the affidavit which he swore on 1 December 2000 Mr McLeod described C's body language during the hearing as "cowering". "His body was turned away from the member and he was leaning towards the interpreter. He was clearly concentrating very intently on the interpreter. He sat very close to the interpreter and he was very anxious". The recording of the interview reveals that when C said he did not understand a question it was explained to him and when he asked for a question to be repeated this was done. At no stage during the interview or following it did Mr McLeod request an adjournment to speak with C about his condition or submit to the Authority that C was not in a fit condition to answer questions.

[55] In his decision, the Authority member said C exhibited symptoms of stress related anxiety but clearly considered his condition was not such that the hearing should be adjourned or medical assistance obtained.

[56] Having listened to the recording of the hearing with the criticisms Ms Manning had made in mind, I found her criticisms were without foundation. In my view the member conducted the interview in a fair, measured and appropriate way, appropriately expressed and signalled when he was concerned about some of the information given and gave C every opportunity to respond. C's answers indicated he understood the questions and in most instances he gave what appeared to be full and pertinent answers.

[57] As an illustration of C's ability to remember and understand and answer questions, I cite the following questions and answers.

"Authority: Well why didn't you desert from the army earlier, whilst you were in the military training at Meknes I think it was? Or when you went on home on leave, at the end of your six months training. Why didn't you desert then?

[C]: Because in Meknes there was no possibility whatsoever of escape and when I was in Rabat I was under observation as well, I couldn't possibly escape ...

Authority: Now tell me about your escape from hospital, how did this come about?

[C]: People were doing their early morning prayers at 4 o'clock in the morning. 4.30. And they didn't pay any attention to me and I went out and jumped.

Authority: You jumped over what?

[C]: Over the wall. So I walked and asked people to show me where the bus station was. And I took a bus from Dakhla to Agadir. And from Agadir I left the bus and took a train. I found my mother waiting for me and we went to the train station."

[58] The most telling example, however, showing C's ability to understand, remember and respond, occurred when the member clearly explained to C the importance of giving candid answers and gave him the opportunity to correct earlier answers. Having received this caution, C then corrected what he had earlier said about not firing live ammunition in training, he obviously realising that the member did not find that explanation credible.

"Authority: OK so I want you to think very carefully and then tell me whether there's anything about your story you want to change, or if there's anything extra you haven't told me which you think I should know about.

[C]: There is one question, about bullets because I misunderstood the question, because I was thinking ahead and without waiting for the translation, I thought I understood you wrong and gave the wrong answer.

Authority: What was the bit you gave the wrong answer to? Give me the right answer now.

[C]: I understood that you were asking me whether I used true real bullets to shoot at people and I told you no.

Authority: Well what has your experience been of live ammunition.

[C]: The truth is that we did actually use live bullets but we were shooting at targets but when you asked me the question I didn't wait for the translation and I immediately replied that I didn't use any live bullets."

[59] Although the interview by the Authority asking questions took approximately three hours twenty minutes, it was at an unhurried pace with adequate pauses for translation and answer. C's counsel, Mr McLeod, was present throughout and did not find it necessary to intervene or protest. When C requested that a question be repeated, it was. During the course of the interview there were morning and lunch adjournments. At the conclusion of the member's interview, Mr McLeod was given full and unhurried opportunity to ask C questions and took nearly an hour doing this. In the course of this he elicited answers which caused the Authority to review an earlier impression which he had formed about C not having received military training.

[60] When evaluating the conduct of the hearing, its purpose and nature should be borne in mind. Applications for refugee status are considered in New Zealand pursuant to the Government's obligations as a party to the 1951 United Nations Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees ("the refugee convention"). Before 1 October 1999 the system by which New Zealand ensured it met its obligations under the refugee convention was prescribed by terms of reference promulgated by Cabinet. On 1 October 1999 the system received a statutory basis - s 129A Immigration Amendment Act 1999. The system remained substantially the same. Pertinent aspects of the system were stated by the Authority in Re RS (Refugee Status Appeals Authority, Auckland Appeal 523.92 17 March 1995). As stated by the Authority:

"A person who claims the right to be recognised as a refugee under the Refugee Convention must necessarily be aware of the circumstances which justify the assertion that he or she holds a well-founded fear of persecution for one of the five Convention reasons. By making a claim to refugee status, that person must shoulder the obligation of establishing the claim as the facts on which it is based lie peculiarly within the knowledge of the claimant." - p 17

[61] In correctly finding that the burden of proof was on a claimant, the Authority pointed out this was mitigated by three principal factors, namely the low threshold of standard of proof, the benefit of the doubt principle being applied liberally and the non-adversarial nature of the proceedings meaning that the enquiry was shared between the claimant and the decision-maker - p 19. As the Authority pointed out, the fact the claimant and the decision-maker each have a responsibility to ascertain the facts does not relieve the claimant of the legal burden of proof to establish the claim and as pointed out by Grahl-Madsen in The Status of Refugees in International Law (Vol 1) 146, the liberal attitude to refugee determination adopted by the Authority should not lead to:

"... an uncritical acceptance of any and all allegations made by suppliants."

[62] Accordingly in interviewing an appellant the Authority is seeking to make a realistic assessment of the validity of his or her claim and this generally involves crucial issues of assessing credibility and reliability. As with testing of evidence by cross-examination, it may be appropriate that questioning be persistent and penetrating with indication being given of the inquisitor's reaction to the answers. The Authority is a specialist tribunal. It would be well aware of the pressures and strains that may influence an appellant during the interview arising from language, cultural and personality factors, the difficulties of getting corroborating information and the importance of the outcome. Interviews are generally detailed and lengthy. They should be conducted fairly. The presence of counsel representing the appellant is a safeguard to ensure that this is so. Recording of the interview is a further safeguard.

[63] For the reasons I have stated I have the clear view that the Authority member conducted the interview fairly and appropriately and there was no reason for him to call for medical examination or have the reservations as submitted by Ms Manning.

Result

[64] C has not made out any valid ground for review of the Authority's decision and I accordingly decline to grant review.

Non-publication - costs

[65] Because of the nature of the proceedings and possible consequences to C if his identity became known because of the refugee process, I have referred to him throughout this judgment as C. I order that there be no publication of C's name or particulars which might lead to his identification apart from those stated in this judgment.

[66] As C is on legal aid and does not have the financial ability to pay costs, I do not make an order for payment of costs.

Solicitors for the plaintiff: Ryken & Associates (Auckland)
Solicitor for the defendants: Meredith Connell & Co (Auckland)