High Court Cases 

Judicial review - implausibility - finding of - imperfections in credibility finding to be read in context of other credibility findings 

Judicial review - credibility findings - implausibility - finding of - principles of review

Judicial review - credibility findings - difficulty in challenging credibility finding

Refugee Status Appeals Authority - imperfections in decision - imperfections in credibility finding to be read in context of other credibility findings 

Following a five day hearing the Refugee Status Appeals Authority (RSAA) concluded that the refugee claim was implausible and credibility findings were made that it did not believe the plaintiff's evidence. On judicial review it was submitted that the decision was irrational and an interim order was sought to prevent the plaintiff's departure the following morning.  It was said that there was an illogicality in the reasoning of one particular paragraph. 

Held:

1   It is difficult to challenge a finding as to credibility by way of judicial review, particularly one in which the decision-maker has had an opportunity to assess the credibility of the witness in question for a lengthy period, as was the case here.  The impugned paragraph formed only part of a lengthy decision which at a number of different points touched on the question of credibility, in nearly every case in a fashion adverse to the plaintiff.  In a hearing of that kind there is an element of osmosis involved in assessing credibility.  It is not to be expected that a tribunal will exhaustively identify and bring together all of the factors that have influenced it in arriving at its credibility conclusion (see para [6]).

2    On the facts the difficult task of demonstrating an arguable case that the RSAA's approach to credibility was irrational for judicial review purposes was insurmountable.  No arguable case could be found.  The plaintiff's case within a judicial review context was unarguable (see para [9]).

Application dismissed.

Other cases mentioned in judgment

[No cases were mentioned]

Counsel

S Laurent for the plaintiff
M A Corlett for the defendants

FISHER J [1] The plaintiff seeks to judicially review the decision of the Refugee Status Appeals Authority of 18 September 2003 rejecting the plaintiff's appeal from a decision of the Refugee Status branch of the New Zealand Immigration Service declining the grant of refugee status to the plaintiff. Today the plaintiff seeks an interim order under s 8 of the Judicature Amendment Act 1972 declaring that pending the determination of the substantive proceedings no further steps be taken by the authorities to implement the decision declining the plaintiff's refugee status.  The interlocutory application under s 8 is one of real urgency given that it is the intention of the Immigration Service to deport the plaintiff back to his country of origin, Iran, tomorrow morning.

[2] It is common ground that the thrust of the plaintiff's judicial review case turns on the alleged irrationality of an adverse credibility finding by the Refugee Status Appeals Authority.  Essentially the plaintiff had argued that he had a justified fear of threats to his life and liberty if returned to Iran.  His case was that in October 2001 he had been arrested, tortured and detained for political activity and released under a suspended sentence of 25 years imprisonment with the justified fear that if apprehended again his life would be at risk from Iranian authorities.  He said that in December 2002 he was arrested for installing satellite dishes, another offence in Iran, and that on that offence he was bailed.  He says that he then got caught up in another political demonstration in the course of which he was observed by authorities.  This gave rise to an expectation on his part that they would arrest him when they caught up with him with dire consequences for his future if he remained in Iran.  Under that belief he fled the country and applied for refugee status here in New Zealand.

[3] After an adverse decision from a Refugee Status Officer of the Refugee Status Branch of the NZIS the plaintiff appealed to the RSAA.  The Authority heard evidence over a period of five days.  In a reserved decision of 18 September 2003 the Authority declined the appeal on the basis that it did not believe the plaintiff's evidence as to the suspended 25 year prison sentence and the associated threat to his life.  In short, the decision turned on an adverse credibility finding.

[5] The focus of Mr Laurent's challenge is paragraph 70 of the Authority's decision which reads:

Similarly, his mere appearance at a demonstration would hardly warrant risking 25 years incarceration or his life.  Furthermore, according to him, his uncle's house and business would be placed in jeopardy because of his foolhardy acts.  The Authority finds that the appellant's evidence in regard to these matters to be wholly implausible and concludes that it is a fabrication.  Specifically, we reject his evidence that such a sentence was ever imposed on him, or that he was detained and mistreated in Evin prison as described.  Had either of these events occurred, he would not have subsequently behaved as he did.

[6] It is difficult to challenge a finding as to credibility by way of judicial review, particularly one in which the decision-maker has had an opportunity to assess the credibility of the witness in question for a lengthy period, as was the case here.  Paragraph 70 of the Authority's decision forms only part of a lengthy decision which at a number of different points touches on the question of credibility, in nearly every case in a fashion adverse to the plaintiff.  In a hearing of that kind there is an element of osmosis involved in assessing credibility.  It is not to be expected that a tribunal will exhaustively identify and bring together all of the factors that have influenced it in arriving at its credibility conclusion.

[7] In the present case paragraph 70 of the decision is preceded by three other paragraphs which amplify in greater detail what was concerning the Authority about the credibility finding referred to in paragraph 70.  For example, in paragraph 67 the Authority talks about the political demonstration in greater detail and the curious way in which the plaintiff acted in relation to that demonstration, quite independently of the broader implications of having a 25 year prison sentence hanging over him.  Then in paragraph 68 the Authority embarks on a different ground for questioning the plaintiff's credibility when it refers to the difficulty in accepting that the plaintiff presented as someone with the kind of deeply held political views that would have underpinned the way in which he alleged he had acted.  In paragraph 69 the Authority moves on to other details bearing on credibility concerning the installation of satellite dishes and the high risk of detection.

[8] In other parts of its decision the Authority traverses the fact that the plaintiff's evidence was "often contradictory, embellished and inconsistent".  These ranged across such matters as inconsistent stories given by the plaintiff as to the events that unfolded during the demonstration, the details of the injuries that he suffered, the raid on his family's home on another occasion and matters of that sort (para 42).  Again at paragraphs 71 to 73 the Authority referred to the evidence given by the plaintiff's cousin who, far from indicating that the plaintiff had left Iran under a well justified concern for his life or liberty due to political persecution, gave it as his understanding that the plaintiff had left for reasons associated with living conditions and employment prospects.

[9] The matters I have referred to are by no means intended to represent a comprehensive analysis of the Authority's decision and the various reasons that prompted it to find against the plaintiff on credibility.  It is sufficient to say that the difficult task of demonstrating an arguable case that the Authority's approach to credibility was irrational for judicial review purposes has proved insurmountable.  I can not find any arguable case in that respect.  I do not overlook Mr Laurent's appropriate comment that caution is needed in a matter of this kind given the far-reaching consequences for the plaintiff.  The fact is, however, that the plaintif'f's case within a judicial review context is simply unarguable and the application must therefore be dismissed.

[10] I am advised that the plaintiff is legally aided and that in any event he will be departing the country tomorrow morning without assets in New Zealand.  In the circumstances costs are reserved.

Solicitors for the plaintiff: Laurent Law (Auckland)
Solicitors for the defendants: Crown Solicitor (Auckland)