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HP v Refugee Status Appeals Authority

High Court Auckland CIV7007-03
7 April 2004; 4 May 2004
Paterson J
 
 

Judicial review - credibility findings - whether notice must be given of a proposed adverse finding and that other witnesses should be called

Judicial review - fairness - whether notice must be given of a proposed adverse finding and that other witnesses should be called

Judicial review - ineffective counsel - whether fault on part of counsel gives right to judicially review decision

Medical evidence - cross-examination - whether obligation on decision-maker to cross-examine medical witness

Medical evidence - weight to be given - limitations on weight to be given where facts relied on by medical practitioner not accepted by tribunal

Refugee Status Appeals Authority - misleading counsel - whether complaint established on the facts

The plaintiff, a citizen of Iraq, arrived at Christmas Island in Australia by sea in August 2001 and after being transferred to Port Hedland was recognised as a refugee.  A Temporary Protection Visa (TPV) was granted on 3 April 2002.  The TPV permitted the plaintiff to remain in, but not to re-enter, Australia for a period of three years.  He was entitled to apply for a further TPV at any time if he believed he was still in need of protection.  However, he was statutorily ineligible to bring his wife and her children to Australia or to make alternative arrangements to meet them outside Australia as he would forfeit his TPV status if he left Australia.  Travelling on a false passport the plaintiff arrived in New Zealand on 7 February 2003 and claimed refugee status at Auckland International Airport.  The account he gave of his circumstances in Iraq differed substantially from the account earlier given to the authorities in Australia.  He also concealed his true identity and that of his wife to prevent the New Zealand authorities from discovering that he had been living in Australia as a refugee.

Having been permitted to remain in New Zealand to pursue his refugee claim, on 6 March 2003 he submitted a detailed written statement enlarging on the account given at Auckland Airport.  He still concealed his true identity and the fact that he had been recognised as a refugee in Australia.  Included in the claims made in this statement was a claim that he had been tortured in Iraq.  Based on the account given in this statement and on a physical examination, a medical practitioner concluded that marks on the plaintiff's body were consistent with the plaintiff's claim to have been tortured.  The torture claim had not, however, been advanced in support of the refugee claim made in Australia.  The plaintiff later admitted to the Refugee Status Appeals Authority (RSAA) that the claims made in the written statement of 6 March 2003 were false.

One element of the plaintiff's refugee claim was that he was the imam of a mosque in al Zubayr with an authority from Sadeq al Sadr and was therefore required to take a position in respect of Muqtada al Sadr.  He either had to join the Mahdi army formed by Muqtada al Sadr, or risk being killed by him.  At first instance the refugee status officer had not believed the plaintiff's claim that he was an imam.  On appeal to the RSAA the plaintiff filed statements by witnesses he intended to call to prove his claim to be an imam.  Later in the hearing, in response to a request by counsel for the plaintiff that she be given an indication as to whether the evidence on the imam question was still at issue, the RSAA stated that it accepted that the plaintiff was an imam of a Shi'ia mosque in al Zubayr.  As a result, counsel did not call further witnesses who spoke to that issue.

In its decision the RSAA accepted that the plaintiff was the imam of a Shi'ia mosque in al Zubayr and had studied religion in Najaf, but it did not believe the plaintiff's claim that should he be returned to Iraq, he would have to join the Mahdi army or support Muqtada al Sadr.

On judicial review it was alleged that the RSAA had misled the plaintiff's counsel as to what it intended to find and in addition the Authority had erred in law by giving no weight to the opinion of the medical practitioner that the marks on the plaintiff's body were consistent with the plaintiff's account of alleged torture.  In the High Court the plaintiff also raised the possibility that counsel error was a ground for judicial review and that there had been a failure of natural justice, not because of any action taken by the RSAA, but because counsel had failed to adduce evidence on important issues.

Held:

1   The allegation that the RSAA had misled counsel was not supported by the facts, was not established and could not have been established.  It was clear that counsel was aware that there were two distinct issues, namely the imam issue and the question whether the plaintiff was a religious representative of al Sadr.  The RSAA, in various exchanges with counsel, made it abundantly clear that it accepted that the plaintiff was an imam at a mosque in al Zubayr.  It did not accept anything further than that and made it clear to counsel that it was for her to determine whether or not she wished to call further evidence.  In its decision, the RSAA had not resiled from the indication which it had given.  There was simply no foundation for the submission that the RSAA in any way had misled plaintiff's counsel.  It was difficult to see how the RSAA could have stated in plainer terms the matter which it accepted, and that it was for counsel to determine whether further evidence was required to establish other matters.  Counsel could have not been in any doubt that the RSAA was not making a finding that the plaintiff was obliged to follow Muqtada al Sadr or to join the Mahdi army, or that the plaintiff held authority from Sadeq al Sadr (see paras [27], [28] & [32]).

2   On the facts, it was doubtful whether there was a failure on counsel's part to adduce evidence on important issues.  But even if there had been such failure, that was not a ground for judicial review.  Counsel knew the case that the plaintiff was facing and nothing that the RSAA did denied her the right to adduce evidence or to run the case as she wished to.  If there was a fault on the part of counsel, that fault did not give the plaintiff the right to successfully judicially review the decision of the RSAA (see paras [33]-[35]).

R v Home Secretary; Ex parte Al-Mehdawi [1990] 1 AC 876 (HL) applied. R v Diggines; Ex parte Rahmani [1985] 1 QB 1109 (CA) referred to.

3   There was no foundation for the submission that the RSAA had acted unreasonably in the imam matter.  There were no witness statements before the RSAA which would have alerted it to additional evidence on the authority from Sadeq al Sadr and the obligation to follow Muqtada al Sadr and join the Mahdi army.  The RSAA did not restrict the plaintiff from adducing evidence.  It did not go back on an indication that it gave on the imam question.  There was no resiling from the indication given.  Nothing which the RSAA did prevented the plaintiff's counsel from adducing whatever evidence she wished to adduce (see para [37]).

4   The RSAA made two separate findings on the report from the medical practitioner.  First, it noted that the report was made on the basis of statements made by the plaintiff and from which he  had resiled.  It was therefore not prepared to give any weight to the medical practitioner's statements because the factual basis on which the observations had been made had been resiled from by the plaintiff.  However, although most of the written statement was fabricated, there may have been portions of it which were correct, and the torture allegations may not necessarily have been untrue.  In the circumstances it may have been more accurate for the RSAA to have said that it could have given little weight only to the doctor's report, rather than no weight (see para [42].

5   The second reason given by the RSAA could not be undermined.  A medical practitioner who is an expert can say no more than that the injuries are consistent or inconsistent with a series of stated facts.  A medical practitioner can obviously not say that the events which the plaintiff has reported, even if correct, were necessarily the cause of the injuries.  In this case, the RSAA justifiably had serious doubts about the plaintiff's credibility.  He was found to have lied on so many matters that it was difficult to see how credence could have been given to much, if any, of his evidence.  The statement in which he alleged the actions which caused the injuries was made in New Zealand and the RSAA correctly did not believe the reason he gave for not making similar statements to the Australian authorities.  At the interview with the refugee status officer the plaintiff had given confusing and contradictory reports of his alleged mistreatment.  In the circumstances, the RSAA had been perfectly entitled to come to the view that it did not accept the plaintiff's evidence on torture (see para [43]).

6   As to the submission that the RSAA should have alerted the plaintiff to the fact that they were going to disregard the report of the doctor, counsel for the plaintiff was free to call the doctor as a witness if she wished to do so.  The court could not accept the submission that the doctor would have been able to give evidence that the scarring could not have been caused in any way other than that described by the plaintiff.  There was no obligation on the RSAA to run the plaintiff's case for him and to advise his counsel what evidence should be called and not called.  As the RSAA said itself in its decision, it is not until after all the evidence has been called and submissions made that it comes to its factual findings.  Neither it nor any other court has any obligation to advise counsel that it is likely to come to an adverse finding and that, as a result, counsel should call other witnesses.  There was no obligation nor need for the RSAA to indicate during the hearing that it had formed the view that the wounds were manufactured.  The onus rested with the plaintiff (see paras [44]-[46]).

Application for review dismissed

No other cases mentioned in judgment

Counsel
CJ Tennet  for the plaintiffs
MA Woolford for the defendants

PATERSON J

Introduction

[1] HP, a citizen of Iraq, arrived in New Zealand in February 2003. He claimed refugee status. In a decision given on 10 June 2003, the Refugee Status Branch (RSB) declined to give HP refugee status.

[2] HP appealed to the Refugee Status Appeal Authority (RSAA). After a four day hearing in September 2003, the RSAA issued a written decision on 15 October 2003 dismissing HP's appeal. HP now seeks judicial review of the decision of the RSAA. The RSAA took no part in this hearing and abides the decision of the Court. The Attorney-General, sued in respect of the New Zealand Immigration Services opposes the application for judicial review.

Issues

[3] HP alleges that the RSAA erred in two respects:

a) By misleading HP's counsel on the Imam question; and

b) By discarding a medical report by Dr Beltowski without first warning HP of potential adverse credibility findings, and giving HP an opportunity to call Dr Beltowski as a witness.

[4] In respect of the Imam question, it was alleged that the RSAA failed to observe natural justice, breached the provisions of s27 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), and acted unreasonably. The allegations of failing to observe natural justice and breaching the provisions of s27 of the Bill of Rights are based on the following allegations:
a) The RSAA indicated to HP's counsel that the Irnam question (including his authority from al Sadr) was accepted, when in fact it was not;

b) The RSAA then made adverse findings against HP after that indication;

c) In making the adverse findings the RSAA ignored or dismissed the statements of persons who were present at the RSAA to give evidence on oath, and who were not called to give evidence; and

d) The RSAA failed to give HP (through his counsel) a chance to call further evidence to corroborate his story.

[5] The allegation that the RSAA acted unreasonably is based on the following allegations:
a) Although the burden of proof remained on HP, the RSAA was aware (or ought reasonably to have been aware) that evidence could have been given by supporting witnesses (whose statements were before it);

b) Thus, if the RSAA had doubts about the credibility of HP and/or required information or was otherwise in a state of doubt, it had a duty not to restrict HP from adducing evidence;

c) Having given the indication that it did (on the Imam question), the RSAA acted unreasonably by going back on that indication and/or otherwise limiting the indication so that it could make adverse findings of credibility against HP and dismiss the statements from the proposed potential witnesses in the manner that it did.

[6] The allegations that the RSAA failed to observe natural justice and breached the provisions of s 27 of the Bill of Rights in respect of Dr Beltowski's statement are founded on the following allegations:
a) A report from Dr Beltowski, an expert witness, was submitted on the understanding that the doctor would be available to give evidence and/or be cross-examined on any aspect of his report and, in particular, on his conclusions as to whether certain scarring could have been caused in any way other than that described by HP, and on his conclusion that they were caused by torture (and had not been caused in any other way);

b) If the RSAA had concerns about HP's credibility on the reasons he gave for the scarring, the failure of the RSAA to alert HP's counsel to that fact and that they were going to disregard the report of the doctor (as they ultimately did), or otherwise ignore it meant that HP lost the opportunity to call evidence from Dr Beltowski.

[7] The allegation that the RSAA acted unreasonably in respect of Dr Beltowski's evidence is based on the following allegations:
a) The general grounds stated in para 6 above are relied upon, and in addition, the RSAA allegedly should have indicated to HP's counsel, either directly or by implication, that the wounds were "manufactured" for the purpose of assisting a false story, and should have given counsel the opportunity to call Dr Beltowski so that he could express his conclusion on this aspect;

b) The RSAA dismissed the doctor's reports on assumptions. It was not entitled to dismiss the conclusion of the doctor as implausible without having heard from the doctor in evidence.

Background

[8] Brief details of the background are required to put this matter in context. HP left Iraq in June 2001. He was one of 360 individuals who sailed from Indonesia towards Australia but was intercepted by the Australian authorities in August 2001 and taken to Christmas Island. Later, he was transferred to Port Hedland on the north west coast of Australia. On 2 December 2001, he lodged a formal claim to refugee status in Australia. The Australian authorities recognised HP as a refugee and a Temporary Protection Visa (TPV) was granted on 3 April 2002.

[9] The TPV permitted HP to remain in, but not to re-enter, Australia for a period of three years. He was entitled to apply for a further TPV at any time if he believed he was still in need of protection. A TPV holder is provided access to services consistent with the temporary nature of his or her stay. Such a person may apply for a Permanent Protection Visa. Such a holder was not able to sponsor family members to Australia. Therefore HP was statutorily ineligible to bring his wife and her children to Australia, or to make alternative arrangements to meet with them outside Australia as, if he left Australia, he would forfeit his immigration status in that country.

[10] HP unsuccessfully attempted to leave Australia by air for New Zealand in August 2002. He attempted to leave on a false passport. HP made a second attempt and arrived in New Zealand on 7 February 2003, travelling on a false passport. At Auckland International Airport he claimed refugee status. He gave to the authorities in Auckland an account of his circumstances in Iraq which differed substantially from the account earlier given to the Australian authorities in September 2001. Also, he deliberately concealed his true identity and that of his wife in order to prevent the New Zealand authorities from discovering that he had been living in Australia as a refugee.

[11] On 6 March 2003, he submitted a detailed written statement enlarging on the account given at the Auckland Airport. He still concealed his true identity, and the fact that he had been recognised as a refugee in Australia. When this deception was later discovered by the New Zealand authorities, HP acknowledged that the account he had given in support of his refugee claim in New Zealand was a false statement. HP reverted to the account originally given to the Australian authorities.

[12] In a lengthy decision given on 10 June 2003, the RSB declined HP's refugee claim. That claim failed largely on credibility grounds. The RSB officer rejected HP's claim to be an Irnam of the Mosque in Al Zubayr, and his claim that he was at risk of harm as a result of his status and profile as an Imam.

The RSAA Hearing and Decision

[13] The relevant details of the hearing and portions of the decision will be dealt with when the issues are addressed. However, it is relevant to comment on some aspects of the decision.

[14] The RSAA detailed the present political and religious position in Iraq. It particularly dealt with the al Sadr dynasty, and noted the political presence at present of Muqtada al Sadr.

[15] The RSAA had before it the statement made by HP to the Australian authorities. In that, he claimed he was an authorised agent of Sadeq al Sadr who had been assassinated in February 1999. As a follower of Sadeq al Sadr the Iraqi authorities had become interested in him and he had been arrested by security forces more than once. The authorities had attempted to defame his reputation and he stated he left Iraq in fear of being executed by the Ba'ath Party.

[16] The statements which he gave to the New Zealand authorities, before it was determined that he had entered under a false name and on a false passport, included claims that he had been in prison in Iraq for one and a half years. On 6 March 2003, before his deception was discovered, HP submitted through his then solicitor a detailed written statement in Arabic dated 16 February 2003. A translation was included. He also submitted a medical report by Dr Beltowski dated 26 February 2003. In his report, he made allegations that he had been tortured while in Iraq.

[17] When it was discovered that HP had entered on a false passport under an assumed name, he reverted to his Australian statement and retracted the written statement submitted through his solicitor. He was, in effect, retracting statements made to the New Zealand authorities and, as will be noted, the RSAA noted that what he was retracting included the statements that he had been tortured. HP gave a detailed account to a Refugee Status Officer on 17 March 2003 and gave evidence at the hearing before the RSAA. In these accounts, he confirmed that he was an Irnam at the Al Hasaaia Mosque in Al Zubayr. He stated that he had been enrolled at the Hawza Almia School of Religious Studies in Najaf which was under the supervision of Sadeq al Sadr. The day after the assassination of Sadeq al Sadr he was arrested in Al Zubayr and detained for three days. He also chimed to have been arrested and placed in detention for several days on the first anniversary of the death of Sadeq al Sadr. During the following twelve months, he stated he had been arrested four further times, and on his final arrest, he had been physically mistreated. The Refugee Status Officer noted that HP's evidence as to his episodes of detention in Al Zubayr was confusing and contradictory. HP stated that further events occurred on the second anniversary of Sadeq al Sadr, at which time HP went into hiding and then eventually left Iraq.

[18] During his interview with the Refugee Status Officer in March 2003, HP was asked to address a number of issues of concern. These included the fact that nowhere in HP's refugee claim in Australia had he mentioned physical mistreatment or torture. He was also asked to clarify his reasons for coming to New Zealand. He stated that this was because he was denied the right to bring his family into Australia. He was also asked questions on the confusing statements, as seen by the Refugee Status Officer, on arrests and mistreatment.

[19] The RSAA noted that HP's primary focus on appeal "was to challenge the finding that he was not an imam of the Mosque in Al Zubayr." The RSAA noted that there were several witness statements having the essential purpose of establishing that HP was what he claimed to be, namely, an Irnam at the Al Hasaaia Mosque in Al Zubayr. The RSAA also noted that in his revised appeal statement dated 29 August 2003, HP disclosed for the first time a reason for leaving Australia. This was that he was under some type of pressure and threat from his wife's brothers who lived in Australia. In that statement, he stated that he did not wish to return to Iraq because if he did so, he would be required to join the Mahdi Army. If he did not, he would be killed and if he did, he would be required to kill Americans. Further, he would have been at risk from members of the Ba'ath Party.

[20] The RSAA made a credibility finding in the following terms:

For the reasons which follow it will be seen that the Authority has concluded that the appellant is not a credible witness and that his refugee claim is not based on the truth, the whole truth and nothing but the truth in terms of the affirmation he took prior to his giving evidence. Instead, the Authority has been presented with a carefully crafted claim to refugee status which is basically untrue, but which does contain a few elements which are truthful. These latter elements fall into the particular and the general. As to the particular, the evidence received by the Authority in statement form (albeit unsworn) from the various witnesses does show that the appellant was the imam at the al Hasaaia mosque in al Zubayr and has undergone religious training in Najaf. As to the general, the al Sadr family certainly exists and independent information certainly establishes that Bakir al Sadr was executed in 1980, Sadeq al Sadr assassinated in 1999 and that Muqtada al Sadr is a significant player in the current political kaleidoscope in Iraq. But after closely interviewing the appellant over a number of days, the Authority is of the view that he has skilfully interwoven a few strands of truth (that he is the imam of a mosque in al Zubayr and has studied religion in Najaf) into a refugee claim which has been manufactured (and that term is intentionally used in the pejorative sense) with the sole aim of allowing the appellant to be reunited in this country with his wife. His claim that he is at risk of being persecuted in Iraq is, in summary, based on evidence which the Authority does not believe. All that the Authority accepts is that he is a Shi'ia imam at the al Hasaaia mosque in al Zubayr who has studied religion in Najaf. Our reasons for these conclusions follow.
[21] In summary, the RSAA's reason for making the credibility finding was the various different accounts given by HP to the authorities in Australia and in New Zealand which included an elaborate deception scheme to trick the New Zealand authorities. From this, the RSAA drew the conclusion that HP was "a devious and calculating individual who has shown no hesitation in manipulating the refugee system to suit his purposes. The fact that he is an Imam and has studied religion for some number of years has clearly failed to instil in him any degree of moral rectitude or appreciation of what the obligation to tell the truth means."

[22] The reversion to the application made in Australia also was seen to have caused difficulties. It made no mention of torture. His explanation that he concealed this information to speed the processing of his refugee claim was not accepted by the RSAA for reasons which it is not necessary to repeat, but which appear perfectly valid. It is relevant to one of the issues in this review application that the doctor's report on the alleged torture is based on statements similar to those in a written statement from which HP has now resiled.

[23] Another factor which affected the RSAA's credibility finding was the different reasons given by HP for desiring to leave Australia. The brothers-in-law version was given for the first time at the hearing. In his interview with the Refugee Status Officer in March 2003, HP had been asked whether he had any difficulty in Australia with police or other authorities and whether there were any other reasons to leave. He did not at that time raise the question of pressure from his brothers-in-law. Further, the RSAA found his evidence in respect of the brothers in law inconsistent in itself. Another matter which went to HP's credibility was the conflicting evidence given in respect of his wife and his contacts with her. It is relevant to note that several reasons were given by the RSAA for its strong credibility finding against HP. None of the matters on which the RSAA made its credibility finding are directly involved or related to the issues raised by HP on this application.

The Imam Question

[24] The RSAA noted that HP's claim was that as an Imam with an authority from Sadeq al Sadr, he is required to take a position in respect of Muqtada al Sadr. Thus, he either had to join the Mahdi Army formed by Muqtada al Sadr, or risk being killed by him. Although the RSAA accepted that HP was the Imam of a Shi'ia Mosque in Al Zubayr, who once studied religion in Najaf, it did not believe HP's claim that if he is returned to Iraq, he will have to join the Mahdi Army or support Muqtada al Sadr.

[25] In coming to the finding expressed in the previous paragraph, the RSAA did not accept that HP held an authority from Sadeq al Sadr. It noted that in the false statement made in February 2003, HP dwelt at considerable length on his alleged relationship with Sadeq al Sadr and his Hawza. However, HP has since resiled from the statement made in February 2003. In his evidence before the RSAA, HP downplayed his relationship with Sadeq al Sadr to the point where he said he never received any direct teaching from him. The RSAA saw HP's willingness to fabricate a position of such closeness to one of the most venerated Shi'i spiritual leaders as demonstrative of the length to which HP will go to create the false impression of importance and significance. Consequently, no weight was placed on HP's claim to have studied at the al Sadr Hawza or that he had received authority from Sadeq al Sadr. The RSAA's acceptance of the fact that he studied religion in Najaf was not an acceptance that he studied at an institute associated with Sadeq al Sadr or that HP held an authority from Sadeq al Sadr.

[26] A witness who was questioned on HP's alleged authority from Sadeq al Sadr stated that he understood that to be the position from what HP had told him. An unsworn witness statement of a witness who was not called, did not speak of the claimed authority from Sadeq al Sadr, and went no further than supporting the claim that HP studied religion in Najaf, a matter which the RSAA accepted. In the view of the RSAA, there was no credible independent evidence that HP held an authority from Sadeq al Sadr. Indeed, the only witness called by HP who gave relevant evidence stated that an Imam such as HP would be expected (if not required) to have a spiritual leader. Once that spiritual leader died, the Imam would be expected to seek out and give allegiance to the most senior and learned individual. The witness did not put Muqtada al Sadr in that category. That witness did not accept that HP would be obliged to follow the son of Sadeq al Sadr. Because of the sequence of evidence, HP completed his evidence after this witness had given evidence. He was questioned about this witness's evidence and the RSAA found him to be notably evasive. The RSAA concluded that HP's explanation was convoluted and self-serving. If this were an appeal from the RSAA decision, which it is not, this Court would not set aside factual findings made by a specialist Tribunal which had heard the evidence and was in an ideal position to assess it. To succeed on review, HP needs to establish either a breach of natural justice on the part of the RSAA, or, alternatively, that it acted unreasonably.

[27] Mr Tennet, for HP, submitted that the RSAA's finding that HP was not obliged to follow Muqtada al Sadr or to join the Mahdi Army were crucial findings. He submitted that in coming to these findings, the RSAA failed to take into account statements of witnesses whose unsigned statements had been presented, but who were not called to give evidence although they were available to give evidence. Essentially, the allegation is that the RSAA misled HP's counsel as to what it intended to find and, as such, counsel did not call witnesses who would have been called had counsel known what the findings were to be. On my view of the matter, this allegation is not established and could not have been established. It is not supported by the facts.

[28] It would have been obvious to HP's counsel that HP's credibility was at stake. In its decision of 10 June 2003, the RSB did not accept that HP was an Imam. The hearing before the RSAA was originally scheduled for 21 and 22 July 2003. Counsel who acted for HP at the adjourned hearing in September 2003 was instructed shortly before the proposed July hearing. She sought an adjournment as she needed more time to prepare evidence from various witnesses "who are able to attest to [HP's] claim that he is an Imam." On 12 August 2003, HP's counsel advised the RSAA that there would be approximately six witnesses to cover ten discrete topics, including that "the plaintiff is an Imam." The discrete topics did not include the question of authority from al Sadr. However, in a memorandum dated 27 August 2003 to the RSAA, counsel made it clear that she was aware that there were two distinct issues, namely, the Imam issue, and the question whether HP was a religious representative of Al Sadr. Counsel asked the RSAA to advise urgently what witnesses it wanted, and when. In a reply of 29 August 2003, the RSAA noted that the question of which witnesses HP called was entirely a matter for HP to decide. When the hearing started in September 2003, counsel for HP knew that the authority from al Sadr was an issue and had obtained an adjournment in order that the appropriate witness statements could be prepared to support HP's claims.

[29] The basis of HP's allegations on this issue are contained in exchanges between counsel and the Chairman of the Authority, Mr R P G Haines QC. At an early stage in the hearing, counsel asked whether she could be given an indication as to whether the evidence that the witnesses proposed to give, "and each give very similar evidence in fact", is still at issue. She was asked to raise the issue again later in the hearing. On the penultimate day of the hearing, the issue was raised again. Mr Haines said:

Later today we suggest possibly either just before or after the afternoon adjournment, please raise with us the question that you presaged earlier, as to whether, I'm not sure if you put it as bluntly as this, but effectively your point is that if the Authority accepts that your client has attended the howza in Najaf and is an Imam at the mosque that he has mentioned in Al Zubiyr, then that might clear the way for a large number of the witnesses to be excused, because their evidence would simply be accepted within the general credibility framework.

[30] The issue was addressed later that day. In response to a comment from counsel, Mr Haines stated:

It is unusual for the Authority in mid-stream to give an indication of any findings because we actually don't arrive at findings until we have had a chance to look at all the evidence in the light of the submissions made and then when one is sitting on the panel of two or more, opportunity to discuss it. We do have difficulties, but it might help if we put it to you this way. On the evidence we have heard from your client and on the written statements we have received, we would accept that he is a Shi'ite Imam. I don't have the name of the mosque, forgive me, the name of the mosque in al Zubiyr. If that is of any assistance to you Ms Curtis, that's as far as we can go. It is now over to you. That's as far as we can go.

[31] After a further exchange, Mr Haines noted that:

At the end of the day, how you run your client's case must always remain in your hands and we don't want you to misunderstand us ... We can't tell you what witnesses to call or not to call, or more indirectly suggest which witness to call or not call. All of this evidence goes to the single issue as to whether your client is an Imam at this mosque in al Zubiyr ... having given to you an indication that we would accept that your client is a Shi'ite Imam from the specific mosque that he's mentioned in al Zubiyr, we could not resile from it unless we gave fair notice to you and your client that we are going to resile from it.

A little later, Mr Haines stated:

What decisions you make and what instructions you get as to which witness is called, is not something that we could ever try and interfere with, or to give back door indications, because we simply can't do that.

[32] The RSAA in various exchanges with counsel, some of which have been referred to above, made it abundantly clear that it accepted that HP was an Irnam at this mosque in al Zubayr. It did not accept anything further than that and made it clear to counsel that it was for her to determine whether or not she wished to call further evidence. In its decision, the RSAA did not resile from the indication which it had given. There is simply no foundation for the submission that the RSAA in any way misled HP's counsel. It is difficult to see how the RSAA could have stated in plainer terms the matter which it accepted, and that it was for counsel to determine whether further evidence was required to establish other matters. Counsel could have not been in any doubt that the RSAA was not making a finding that HP was obliged to follow Muqtada al Sadr or to join the Mahdi army, or that HP held authority from Sadeq al Sadr. It is difficult to accept the submission that the obligation to follow Muqtada al Sadr or to join the Mahdi army were crucial findings in the context of a case where there were so many matters on which the RSAA held that HP had lied. In the view of the RSAA, his credibility was completely undermined by factors which are not directly relevant or part of the grounds for review.

[33] Mr Tennet raised the possibility that counsel error was a ground for judicial review. This was, in effect, a submission that there had been a failure of natural justice, not because of any action taken by the RSAA, but because counsel had failed to adduce evidence on important issues. I doubt whether there was a failure on counsel's part in this case, but even if there were, this in my view, is not a ground for judicial review. Counsel knew the case that HP was facing and nothing that the RSAA did denied her the right to adduce evidence or run the case as she wished to do.

[34] Mr Tennet referred to the traditional view that the default of a person's legal advisor could lead to a breach of natural justice and cited R v Diggines Ex Parte Rahmani [1985] 1 QB 1109. However, he also referred me to the more recent House of Lords decision in R v Home Secretary, Ex Parte Al-Mehdawi [1990] 1 AC 876. There, their Lordships considered whether certiorari lies to quash a decision given when a Tribunal acted correctly in the procedure adopted but the applicant was deprived of the opportunity to put his case by the negligence of his own legal advisors or otherwise without personal fault on the part of the applicant. After reviewing various decisions, Lord Bridge of Harwich said at p898:

These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.

[35] The case under consideration in the House of Lords was in respect of a student from Iraq and in respect of his right to remain in the United Kingdom. Thus, the basic issue was not greatly different from the basic issue in this case. If, in the present case, there was a fault on the part of counsel, that fault does not give HP the right to successfully judicially review the decision of the RSAA.

[36] I have considered the witness statements of the witnesses who would allegedly have been called to deal with the issues of following Sadeq al Sadr and joining the Mahdi army. It is not necessary to detail what was contained in their unsworn witness statements which were before the RSAA. It is sufficient to note that none of those witnesses directly dealt with the alleged obligations. As counsel knew that these alleged obligations were central issues in the case, it is surprising that there were no direct statements on point in the witness statements, if those witnesses were in a position to give that relevant evidence. The evidence which the witnesses could have given, would not, in my view, have altered the decision made by the RSAA.

[37] Just as there is no basis for the allegation that the RSAA failed to observe natural justice and breached the provisions of s 27 of the Bill of Rights, there is no foundation for the submission that the RSAA acted unreasonably in the Imam matter. Substantially for the reasons given, the grounds set out in paragraph 5 above have no foundation. There were no witness statements before the RSAA which would have alerted it to additional evidence on the authority from Sadeq al Sadr and the obligation to follow Muqtada al Sadr and join the Mahdi army. The RSAA did not restrict HP from adducing evidence. It did not go back on an indication that it gave on the Imam question. There was no resiling from the indication given. Nothing which the RSAA did prevented HP's counsel from adducing whatever evidence she wished to adduce.

[38] This is a case where the RSAA did not believe HP. The reasons for this have been summarised in paragraphs 21 to 23 above. This is not a case where on one particular piece of evidence the RSAA was required to consider credibility. It formed the view that HP was a deceptive manipulator and in the absence of any supporting evidence on the two matters which Mr Tennet submitted were crucial, and in the absence of any supporting statements in the unsworn witness statements of those proposed witnesses who did not give evidence, the finding of the RSAA was inevitable. There are no grounds to review the RSAA on the Irnam question.

The Dr Beltowski Issue

[39] The complaint in respect of Dr Beltowski's evidence is that the RSAA refused to accept the statements he made without hearing him. In my view, this ground cannot succeed either.

[40] The references to Dr Beltowski in the RSAA decision are as follows:

26. As mentioned, this statement of 16 February 2003 was tendered to the refugee status officer together with a report from Dr Beltowski dated 26 February 2003. It records that the medical practitioner examined the appellant on 24 February 2003 and goes on to say:

He also gives a history of being suspended by his arms and beaten with thick electrical cable. He also had two heavy bags of sand placed on both shoulders for 5-6 hours while being suspended by his arms. He was also tortured by electric shocks to his abdomen and testicles.

The report then details scaring and pigmentation observed by Dr Beltowski, including old thin traverse linear scars on both sides of his back which the doctor concluded was evidence of "a severe beating." The report concludes with the following paragraph:

In my professional opinion the marks noted on [HP's] shoulders would be consistent with healed pressure areas while the marks on his back would be consistent with a severe whipping or flogging. The marks on his right abdomen and left scrotum would similarly be consistent with old electrical burns inflicted as stated.

45. As mentioned, there is a medical report from Dr Beltowski dated 26 February 2003. The appellant continues to rely on that report and indeed has produced a supplementary report from Dr Beltowski dated 10 September 2003 which confirms that the appellant does have a scrotal injury.

[41] When dealing with HP's torture claims, the RSAA stated at paragraph 54:

The appellant was asked by the Authority whether the account given to Dr Beltowski on 24 February 2003 was the account set out in the handwritten (Arabic) statement. He replied that it was. In the result, Dr Beltowski's report is based on a story from which the appellant has resiled and which he now frankly admits to be a false statement. In the circumstances, no weight can be attached to the doctor's report. As the Authority has observed on numerous occasions, a medical practitioner cannot say more than that the injuries observed by him or her are consistent or inconsistent with the account given as to their cause or origin. The medical practitioner cannot say that the injuries were in fact suffered in the way claimed, unless, of course, the practitioner witnessed the incident or incidents personally. Where the account given by a refugee claimant is not credible, the weight to be given to the medical opinion is limited. The injuries could have been caused in circumstances other than those described by the appellant.

[42] The RSAA, in effect, made two separate findings on Dr Beltowski's report. First, it noted that the report was made on the basis of statements made by HP and which were the same as those made in the written (Arabic) statement made to the RSB Officer. It was therefore not prepared to give any weight to the doctor's statements because the factual basis on which the observations have been made had been resiled from by HP. I accept, as submitted by Mr Tennet, that although most of the written statement was fabricated, there may have been portions of it which were correct, and the torture allegations may not necessarily be untrue. In the circumstances it may have been more accurate for the RSAA to have said that it could have given little weight only to the doctor's report.

[43] The second reason given by the RSAA cannot, in my view, be undermined. Mr Tennet submitted that the limitation put on the doctor's report by the RSAA was speculation and that the RSAA should not have concluded that there were other ways in which the injuries could have been inflicted as there was no evidence on this point. In my view, what the RSAA said was perfectly logical and correct. A medical practitioner who is an expert can say no more than that the injuries were consistent or inconsistent with a series of stated facts. A medical practitioner can obviously not say that the events which HP had reported, even if correct, were necessarily the cause of the injuries. In this case, the RSAA justifiably had serious doubts about HP's credibility. He was found to have lied on so many matters that it is difficult to see how credence could be given to much, if any, of his evidence. The statement in which he alleged the actions which caused the injuries was made in New Zealand, and the RSAA correctly, in my view, did not believe the reason he gave for not making similar statements to the Australian authorities. At the interview with the Refugee Status Officer on 17 March 2003 he gave confusing and contradictory reports at his alleged mistreatment. In the circumstances, the RSAA was perfectly entitled to come to the view that it did not accept HP's evidence on torture.

[44] It is only necessary to deal briefly with the allegations made in paragraphs 6 and 7 above. Counsel for HP was free to call Dr Beltowski as a witness if she wished to do so. I cannot accept the submission that the doctor would have been able to give evidence that the scarring could not have been caused in any way other than that described by HP. Further, the doctor did not come to a conclusion that the scarring was "caused by torture (and has not been caused in any other way)."

[45] The RSAA did not disregard the report of the doctor, as suggested in paragraph 6(b) above. There was no obligation on the RSAA to run HP's case for him and to advise his counsel what evidence should be called and not called. As the RSAA said itself in its decision, it is not until after all the evidence has been called and submissions made that it comes to its factual findings. Neither it nor any other Court has any obligation to advise counsel that it is likely to come to an adverse finding and that, as a result, counsel should call other witnesses.

[46] In respect of the allegations contained in paragraph 7, there was no obligation nor need for the RSAA to indicate during the hearing that it had formed the view that the wounds were manufactured. The onus rested with HP. As already noted, the RSAA did not dismiss the doctor's report on assumptions. This is a misinterpretation of its decision.

Result

[47] The application for judicial review is dismissed.

Costs

[48] Costs are reserved and if either party wishes to apply for costs, that party should file a written memorandum and serve the same on the other party. The other party is then to reply by written memorandum within a further period of 14 days.


Solicitors for the plaintiffs: Marshall Bird & Curtis (Auckland)

Solicitors for the defendants: Crown Solicitor (Auckland)